Take Ten for Talmud
1636BabaBasra2- Rules of a Wall, do not look- Partnership Dissolution, who owns the picture in your office
A very good morning, on behalf of page 613, we welcome you to take 10th at Talmud. Baba Basra daf Beiz, the first daf in Baba Basra, theoretically, we're on page 3. And we have the privilege of beginning this mesetta, the third in the series of bhavos, the gates of financial matter Baba Kama, the first gate, largely about damages, Baba Mitziya, the middle gate, largely about entrusted items, and Baba Basra, the final gate, which has significant amount about real estate. The mission says, "Ha shudfim sharatsu la asos muhitsa bhachater." There are partners in a yard, and the yard is typically used for personal activities, somewhat private, and they are dividing this yard so that each of them will get a certain part of the yard. There's discussion whether this was a dinnhaluka that they were obligated to divide it, or they're doing it voluntarily, but they've made a decision that they're going to divide the yard. So, on an esoteric level, the gamara does quote that a person is not allowed to stay stand by the produce of his friend and gaze at it, because he can do damage. It's an eye in hara, he's doing damage, the evil eye, so we have to know how that works in Judaism, but there is such a concept that I could do damage by gazing at somebody's property. Our case, though, is focused on a different type of damage, a very, very functional type of damage, where a person will not be comfortable doing certain things in his yard because he knows that the other person could be looking, and it infringes on his privacy. The gamara points out, Anamud-based, for example, that in a house, the level of privacy is very high, and someone being able to look in through the window is a very great infringement. In the yard, it's a lesser degree of infringement, but it's still infringement on his privacy. The example I like to give is that the person wants to polish his shoes, he doesn't want to do it in the house, it's something he would do in the yard, and if he's open to the public, so then he's going to be compromised, he's not going to be comfortable using the hotzer for its functions, and therefore there's an obligation to build a fence. Says the Mishnah, "Once we know there's a halacha to build a fence, there's certain minhogum, local customs that get taken into account." Hakum Sennago Livnos Givil, Gaziz, Kefeeson, Levenin, Bonin. There are different types of walls that could be built, they're going to be different in their strength, they're going to be different in the amount of space they take up, they're going to be different in the expense involved, and both parties have to share in this endeavor, and the Mishnah says Hakum Kaminigamadina, "It's all going to be according to the local custom." In Shulchan Aruchsim and Kuf Nun Zion, it's brought that indeed it's all based on local custom, provided in Sif Dalid, that it indeed addresses the rules of Hezek Rhea that the person can't look in. If you have a picket fence, that's the local custom, but it has significant gaps, and we're talking about the type of hotzer that needs privacy, so then that local custom doesn't satisfy our needs. In our time, our yards may very well not be used in the way their yards were being used. Some people have a mudroom inside the house where they could do all kinds of different things that require that unique type of location. But if indeed there would be a need for privacy, so then we'll accept the minik to the extent that it still addresses that need. The Mishnah itemizes Gevil Zenosen Gimmeltfachim, Zenosen Gimmeltfachim, it required a total of six fachim to build such a wall, so each side would contribute three fachim handbreaths of their property in order to get this wall built. And likewise the Mishnah says until levainim which take up the least amount of space of these types of strong walls, a total of three fachim in total, so Zenosen Tefachimerza, each one is going to give a Tefach and a Hef. So the focus of our Mishnah really is Hezekre Ia, the damage done through sight and the obligations that are going to be incumbent on each one of these neighbors in order to build the fence that's required under these circumstances. A side ramification though is described in the middle of the Mishnah, Levikach therefore, imnaf al-Hakosel if the wall would fall eventually, years from now, ha'makkam vahur avanim shal-schnaykhim, the place and the stones themselves that people will want to reuse their expensive are going to be assumed to be shared because we know that at the time that a fence like this is built it's done as a partnership, each one contributes land, each one contributes the stones or the money to the stones, it's a partnership and therefore if and when it falls we can rest with confidence that it's a partnership and they should divide it. Tefachist points out in the end of Levikach that even if the stones remained in one person's property for a significant amount of time to the point that he starts making claims, he claims the reason it's been sitting in my yard is because it's mine, he claims he bought it, whatever his claim is Tefachist says there's an anansahadi, we say testimony with confidence even though there are no witnesses, we say with confidence that when the wall was built it was built jointly and we will consider those stones to be owned jointly and even though he has a MIGU and he might have certain types of claims he's going to have to have a very good claim for us to accept it because our predisposition here is to assume that it's indeed a partnership. Tefachist in the top Tefachist notes that this Mishnah is well connected to the end of Masechus Baba Mitzia because over there there was the Peric that described a house and the upper story that fell and how they're going to divide and this similarly has in the middle of the Mishnah the side ramification is that if and when it falls we're going to do a division according to certain known approaches that we assume were used at the time that they built the wall. This also has a strong link to our discussion in the beginning of Baba Mitzia the previous Masechta because over there the first Mishnah described Shnayim Ochazim Betalis two people are holding an item how do we handle it to figure out how to divide the item that they are holding. So the case of the Mishnah which is considered the proverbial case they're both holding a garment together perhaps they picked it up together from an ownerless state but they're both holding this garment together by extension it has ramifications for partnership dissolution if you have two people who are considered partners in an office and their desks phones bookcases chairs all kinds of things they're like holding it together and if one of them claims some of those items are his in a greater percentage let's say he claims all of these bookcases were personally bought with my own money or that entire set of books is mine personally so then we have this situation where one is claiming the entire item the other is claiming whatever is claiming the entire item or he claims it's a partnership I claim we own it 50/50 how do you resolve these types of things our Mishnah adds another step into the endeavor of clarifying things and that step is to ask what is the custom in this industry for purchasing these items or better said what was the custom in the industry at the time that this partnership was originally created if it's common for people to buy their own cheers his comfortable chair then his claim might be enhanced if that indeed is the common custom and our Mishnah is introducing the idea that if it's so understood that they build the wall in partnership then if and when it falls we can rest with confidence that indeed it was built with part with as a partnership and the claims that people make that differ with that assumption would really have to be proven indeed at the end of the Mishnah we find a concept called a chazis which is that if a person builds a fence in an area where there's no requirement to build a fence a bicca open area of valley people plant there but they don't necessarily build fences so if he does build a fence he should build it in a certain way with a marking that indicates that this fence is his personally and then we will know that the property and the stones are indeed his in business type applications more likely than building in a certain way with a certain simmon they probably would document it in a star in a document which can be put on file that when we purchased the office the following was the method a certain painting was a personal purchase for his own office and then that item upon this solution would not be considered a partnership item. Yashekowach, thank you for joining.