MISHNAH: If the ground floor [בַּיִת in rabbinic Hebrew means either a one-storey (usually, one room) house or the ground floor of a multi-storey house. A building with more than two floors is called פָּלָטִין “a palace”.] and the upper floor belonging to two different persons collapse, they divide wood, stones, and dust between themselves [Tosephta 11:1 prescribes that in case the two apartments were of unequal size, the building material is divided proportional to the size of the apartments.] . One takes into consideration which stones were at risk to break [This is an instruction to the court if the case needs judicial intervention.] . If one of them recognized his stones, he takes them, and they are debited to his account.
HALAKHAH: “If the ground floor [בַּיִת in rabbinic Hebrew means either a one-storey (usually, one room) house or the ground floor of a multi-storey house. A building with more than two floors is called פָּלָטִין “a palace”.] and the upper floor belonging to two different persons collapse,” etc. It was stated: If they were blackened like an oven, the upper ones were apt to break. If they fell to the outside, the lower ones were apt to break [There are no parallels to the baraita, but it seems that one has to switch the statements: If the broken stones were black like the inside of an oven, they probably were foundation stones. If stones fell away from the house and are broken, they were upper floor stones (Responsa Radbaz vol. 5, #2112; cf. Tosephta kiFshutah Bava meṣia‘ p. 304).] .
“If one of them recognized his stones, he takes them, and they are debited to his account.” Rebbi Hoshaia said, this means that the hand rules on one side [It is not clear what the sentence means. It seems that R. Hoshaia’s problem is that both rules given in the Mishnah, i. e., that all broken stones probably from a certain place are debited to the owner of that place, and that the person who recognizes his stones takes them for his account, disregarding a certain margin of error. If property rights (“hand”) are given to one side, it rules over the entire lot in dispute. This seems to contradict common sense.] . There [Mishnah Demay 7:9, Notes 128–129.] , we have stated: “A hundred ṭevel in a hundred profane, he removes 101. A hundred ṭevel in a hundred tithe, he removes 101.” [As explained there, the ṭevel in question is tithe of which heave of the tithe was not taken and which therefore is forbidden for consumption to anybody not a Cohen. The question is why 101 has to be taken as ṭevel rather than 100. The question is answered by R. Yose.] Rebbi Yose said, if you say that he takes 100, I would say that only profane came to his hand and the other remains ṭevel. [While this is extremely unlikely, it is possible and the legal rule is based on this possibility. The same situation applies here. While it is unlikely that all broken stones come from one party’s floor, it is possible and that is enough as a legal principle.] So he takes 101 in order to separate heave and heave of the tithe from the ṭevel.
Those bearing columns [If a condominium is rebuilt, who has to pay for those elements of the wall whose only function is to carry the weight of the upper storey and the roof?] . Rebbi Ze‘ira: He [The owner of the rights to the upper floor.] tells the bottom dweller, you are obliged to support me. Rebbi La: He [The owner of the rights to the lower floor.] tells the dweller in the upper floor, the builders say that both have to build the foundations. The following supports the builders: [A similar text is Tosephta 11:4.] “If his ruined building was close to the wall of his neighbor’s courtyard, he should not tell him: I am contributing to the foundations of your wall where it comes up, but he has to contribute to the foundations from the bottom and up [His plot is situated higher than his neighbor’s courtyard. Then he has to pay not only for the part of the wall which he will use but also for the foundations on which his part of the wall will be built. Therefore, the owner of the second floor also has to pay for the additional cost incurred by the owner of the ground floor for foundations and walls built for a heavier load.] . If it was built on top of ditches or caves, he is not obligated for anything. [Since the ground floor could not be built without covering what is beneath, the costs cannot be claimed from the owner of the second floor.] ” Rebbi Yose ben Rebbi Abun said, explain it, for example those inhabitants of Bet Shean where the bottom dweller cannot build unless the builder of the upper floor builds [If the house is built on a steep hillside, the excavation must be done simultaneously for both floors; otherwise debris from above would fall into the building site of the lower floor. Therefore, each one of the parties has to assume part of the cost; satisfying both Rabbis Ze‘ira and La.] .
MISHNAH: The ground floor and the upper floor belong to two different persons [Following the Babli, Maimonides and Rashi explain that the house is the property of the person dwelling in the lower apartment; the dweller in the first floor rented his apartment. The landlord is required to keep the rented apartment in good repair. According to Tosaphot, the Mishnah either refers to a rental situation or to two brothers who inherited the house together. Then the expenses for necessary repairs have to be borne equally by both of them. If one of them refuses to pay his part, the other brother may use his apartment as a temporary dwelling.] ; if the upper floor sprang a leak and the owner of the ground floor does not want to fix it, the owner of the upper floor descends and dwells below until he fixes the upper floor for him. Rebbi Yose says, the lower one gives the roofing [Wooden logs or planks to make a roof.] and the upper one the roof covering [Mortar and cement to make a smooth, watertight surface.] .
HALAKHAH: “The ground floor and the upper floor belong to two different persons,” etc. It was stated: “If it sprang a leak above the oven, he descends. If it sprang a leak above the fireplace, he descends [Not to dwell there but to bake and cook in the courtyard in front of the bottom dweller’s door. In the Babli, 116b, this is Rav’s opinion. Samuel holds that if the top dweller has to descend for any household chores, he comes to live in the ground floor apartment.] .” But he may tell him, make yourself a ladder so you do not have to ascend and descend through my dwelling [In any case the second floor dweller is supposed to have his own stairs outside the first floor dweller’s apartment.] .
“Rebbi Yose says, the lower one contributes the roofing and the upper one the roof covering,” etc. [Babli 117a. In most mss. of the Babli the name is Justinus.] Rebbi Justus in the name of Rebbi Simeon ben Laqish:: The bottom dweller contributes the logs and the planks [The logs to make a roof and the planks to create a platform on top of the roof.] ; the dweller on the upper floor contributes the roof covering [Mortar and cement to make a smooth, watertight surface.] . Which kind of roof covering? Rebbi Jacob bar Aḥa in the name of Rebbi Eleazar: heavy roof covering. Rebbi Abbahu in the name of Rebbi Eleazar: medium roof covering, since they only spoke about rinsing cups. But if he wanted to wash clothing, also Rebbi Abbahu in the name of Rebbi Eleazar will agree that the roof covering has to be heavy [If the flat roof is used for any activity, the roof covering must withstand prolonged use without becoming leaky.] . Rebbi Ḥanina instructed those of Sepphoris that both of them should contribute the logs and the plates since they expect to bring up there their wine and their produce [If both parties intend to use the roof, both have to equally share the expenses.] .
MISHNAH: If the ground floor and the upper floor belonging to two different persons collapse, and the owner of the upper floor suggests to the owner of the ground floor to rebuild but himself refuses to build, then the owner of the upper floor rebuilds the ground floor and dwells in it until he [The owner of the rights to the lower floor.] pays his [The owner of the rights to the upper floor.] expenses. Rebbi Jehudah says, but he who dwells in another person’s [place] would have to pay him rent [His problem is that if the owner of the ground floor pays his share, the owner of the upper floor will have dwelt in the apartment rent free, which amounts to receiving hidden interest.] ; so the owner of the (ground) [Clearly one has to read הָעֲלִייָה “the upper floor” with the Babli and all Mishnah mss.] floor builds ground and upper floors and makes the roof over the upper floor [To make the upper floor livable, even if he does not dwell there.] but dwells on the ground floor until he [The owner of the rights to the lower floor.] pays his [The owner of the rights to the upper floor.] expenses.
HALAKHAH: “If the ground floor and the upper floor,” etc. But if the owner of the ground floor wants to build and the owner of the upper floor does not, may he tell him: seal it? [Can the ground floor dweller ask the owner of the upper floor to provide a roof? If both floors were rebuilt, the roof would be a charge on the second floor’s owner.] Let us hear from the following: [A related baraita is Tosephta 11:4.] “If his collapsed building was next to another’s collapsed building [And the two buildings shared a wall.] , and he rebuilt without permission, he computes his actual expenses and he has to pay him all his expenses [If the second owner later decides to rebuild his house, he cannot use the other building’s wall without paying the first builder’s cost in full. But at the moment of building, he is not required to contribute.] .” This implies that he cannot tell him, seal it on the side. Just as he cannot tell him, seal it on the side, so he cannot tell him, seal it on top [The owner of the ground floor has no regress on the owner of the upper floor at the moment when he is building; he has to finish his own roof. He will be able to recoup part of his expenses only when the owner of the upper floor decides to rebuild.] .
MISHNAH: And so an olive press built into a rock with a vegetable garden on its top: If it caved in, the garden’s owner may sow on the bottom until he build cupolas on his olive press [Olive presses (as well as wine presses) usually were built with cupolas. If the natural roof of the press hewn into the rock collapsed, the owner of the vegetable plot may use the bottom for his vegetables until the owner of the olive press rebuilds it. The owner of the vegetable garden may fill the top with soil to create a level surface.] . If a wall or a tree fell into the public domain and caused damage, he is not liable to pay [Since it was an unforseeable accident.] . If he was given an order [By the court, on application of the building police.] to tear down the wall or cut down the tree; within the term he is not liable, after the term he is liable.
HALAKHAH: “And so an olive press,” until “if a wall or a tree,” etc. Rebbi Eleazar said: It happened that a vine was growing on another person’s peach tree [Latin prunus persica “Persian plum tree”] , and the peach tree withered [Killed by the vine which overgrew it.] . The case came before the great Rebbi Ḥiyya who told him, go and provide him with a peach tree. Rebbi Joḥanan told him: Is this not a Mishnah? “And so an olive press built into a rock and another’s vegetable garden is on its top”? Do we not understand that one does not force [The Mishnah does not require the owner of the oil press to rebuild but gives the gardener the right to use the area on top of the oil press for his purposes. The court is not empowered to force the owner of the oil press to reconstitute the vegetable garden.] ? But Rebbi Ḥiyya stated that one forces [To provide a replacement tree.] ! We may say that they did not disagree. He who says that one forces, if he is there. But he who says that one does not force, if he is absent [The Mishnah speaks of an absentee landlord. Until the absentee be notified it may take a long time; in the meantime the gardener is given the use of the area occupied by the oil press.] .
“If he was given an order to cut down. [This quote shows that the Mishnah underlying the Halakhah is not the version presented in the Mishnah (and Maimonides’s autograph) but the text given in the Babli and many Mishnah mss. which mention cutting down the tree before tearing down the wall.] ” What is the time limit? Rebbi Hoshaia said, 30 days [In the Babli, 118a, this is attributed to R. Joḥanan (R. Hoshaia’s student.) In the Tosephta, 11:7 and Bava qamma 2:5, the wording is: at least 30 days. The enforcement of a strict limit of 30 days for obeying court orders is Amoraic.] .
MISHNAH: Somebody’s wall bordering on another’s vegetable garden collapsed. That one told him, remove your stones; if he said, they are yours [If the neighbor pays for the removal of the building material, it is his.] , one [The court will not accept the proposition; the opposing party can force a judgment for their claim.] does not listen to him. If after the other had accepted, he told him: here are your expenses and I shall take what is mine, one does not listen to him. Somebody hired a worker to work on straw and chaff. When he said to him, pay me my wages, he answered, take what you worked on as your wages, one does not listen to him. If after the other [The worker.] had accepted, he told him: here are your wages and I shall take what is mine, one does not listen to him [The court will not accept the proposition; the opposing party can force a judgment for their claim.] . If somebody brought his manure into the public domain, he who brings, brings, and he who uses it to manure, manures [Temporary use of the public domain for agricultural purposes is permitted but care must be taken that the time in which the public domain is used to deposit potentially dangerous material is reduced to the absolute minimum.] . One does not soak loam in the public domain [Which takes a long time.] nor does one form bricks; one kneads loam in the public domain [If a wall is built bordering on the public domain it is permissible to knead mortar for immediate use on the wall.] but not bricks. If somebody builds in the public domain and somebody brings stones; he who brings, brings, and he who builds, builds [Again, the time in which the public domain is used to deposit potentially dangerous material must be reduced to the absolute minimum.] ; but if he caused damage, he pays for what he damaged. Rabban Simeon ben Gamliel says, also he has to prepare his work 30 days in advance. [No building permit should be given without a plan to hold the use of public domain for private purposes to a minimum.]
HALAKHAH: “Somebody who brought his manure,” etc. It was stated: [Tosephta 11:8, Babli 118b, Bava qamma 81b..] ”A person may unload his manure at his courtyard door in the public domain in order immediately to remove it. But it is forbidden to leave it there. If another person was injured by it, he is liable. Rebbi Jehudah says, at the time of carrying out manure [A month before ordinarily the fields have to be manured.] a person may unload his manure at his courtyard door in the public domain for it to be broken down by the feet of people and animals for 30 days, for on this condition did Joshua distribute the Land to Israel. [For other authorized private uses of public or other people’s properties, cf. Bava batra 5:1 Notes 16 ff.] ” [Tosephta 11:6.] “A person may unload his dust at his courtyard door in the public domain in order immediately to mix it with water [To make mortar.] and to bring it to the row of stones; it is forbidden to leave it there. If another person was injured by it, he is liable. He should not knead on one side [and build on the other] [Missing in L, added from E, confirmed by the Tosephta.] but on the side where he is building.” [Tosephta 11:5; Babli 118b.] “A person may unload his stones at his courtyard door in the public domain in order immediately to remove them; it is forbidden to leave them there. If another person was injured by them, he is liable. If the quarryman delivered to the camel driver, the camel driver is liable. The camel driver to the stone-mason, the stone-mason is liable. The stone-mason to the porter, the porter is liable. It it was brought up to scaffolding [Greek βωμός.] , it was wobbly there and fell, the master-mason is liable. If the (stone-mason) [Reading of L, erroneously copied from the next sentence.] [quarryman] [Reading of E, confirmed by the Tosephta.] handed it to the (porter) [Reading of L, erroneously copied from the next sentence.] [stone mason] [Reading of E, confirmed by the Tosephta.] and somebody was injured either by splinters or the stone, the stone-mason is liable. The stone-mason to the porter and he [A third party.] was injured by a splinter, the stone-mason is liable. By the stone, the porter is liable. If it was delivered, settled in the row [Greek δόμος “building; rows of stones or bricks in a building”; cf. Berakhot 2:5, Note 226.] , and fell, he is not liable [Since it was an unforseeable accident.] .”
MISHNAH: Two vegetable gardens, one on top of the other [One on the slope of a hill, the other in the valley.] and vegetables growing between them. Rebbi Meїr says, it is the upper’s [The owner’s of the upper plot.] . Rebbi Jehudah says, it is the lower’s [The owner’s of the lower plot.] . Said Rebbi Meїr: If the upper’s owner wanted to remove his earth, there would be no vegetables. Said Rebbi Jehudah: If the lower’s wanted to fill up his vegetable garden with earth, there would be no vegetables. Said Rebbi Meїr: Since both of them may object to one another one looks from where these vegetables grow [The wild growing vegetable in between grows from the water with which the upper plot is irrigated.] . Rebbi Simeon says, any which the upper’s may take by stretching out his hand are his; the remainder is the lower’s.
HALAKHAH: “Two vegetable gardens,” etc. What shall one do? Ephraim [In the Babli, 119a, he is called “Ephraim the scribe, R. Simeon ben Laqish’s student.” But there, he is quoted as deciding following R. Simeon (cf. Note 69).] in the name of Rebbi Simeon ben Laqish said, they shall split [Since it was not decided whom to follow in practice, it is “money in doubt” and must be split evenly (Chapter 1, Note 5).] . In the House of Rebbi Yannai they say, up to ten handbreadths [They decide following R. Jehudah who has precedence over R. Meïr and R. Simeon (Terumot 3:1, Notes 25,26). The owner of private property owns the rights to its airspace without limitations (Babli Šabbat 7a/b), but for any domain not purely private property, the domain only extends ten handbreadths from the ground (Kilaim6:2, Note 31, Šabbat 11:2 13a l. 32; Babli Šabbat 7b). Since the area between the two vegetable gardens is not the private domain of either of them, the domain of the owner of the lower plot cannot extend to more than 10 handbreadths above his ground.] . Rebbi Joḥanan said in the name of Rebbi Yannai: Only he shall not force himself [He decides following R. Simeon, following the rule that if a dispute between two authorities in the Mishnah is not resolved, practice follows the third opinion which arbitrates between the two (Babli Šabbat 39b, R. Joḥanan in the name of R. Yannai). He qualifies the right of the owner of the upper plot in that he has a right only to those vegetables which he can reach without undue exertion. In the Babli, 119a, this opinion is quoted in the name of the House of R. Yannai.] .
A wall between two partitions [The scribe first wrote שתי חצירות "two courtyards" and then corrected it to שתי מחיצות "two partitions". The problem to be corrected was that a courtyard usually is a condominium of many home owners dwelling in the same compound, whereas clearly, we are dealing here with only two owners. The corrected text is confirmed by E; the scribe's original text is quoted by Sefer ha'Iṭṭur (Warsaw 1883, vol. 1, part 2, p. 24b Note 14).] which was breached. Rav and Samuel, one said, half belongs to one party, the other half to the other party. The other said, both own it entirely. What is the difference between them? If one found a find. For him who said that half belongs to one party, the other half to the other party, if it was on one side it belongs to this party, one the other side it belongs to the other party. For him who said that both own it entirely, the finder acquired it [Since abandoned property on private grounds automatically belongs to the owner.] .