משנה: הַמִּקִּיף אֶת חֲבֵירוֹ מִשְׁלֹשׁ רוּחוֹתָיו וְגָדַר אֶת הָרִאשׁוֹנָה וְאֶת הַשְׁנִייָה וְאֶת הַשְּׁלִישִית אֵין מְחַייְבִין אוֹתוֹ. רִבִּי יוֹסֵי אוֹמֵר. אִם עָמַד וְגָדַר אֶת הָרְבִיעִית מְגַלְגְּלִין עָלָיו אֶת הַכֹּל. כּוֹתֶל חָצֵר שֶׁנָּפַל מְחַייְבִין אוֹתוֹ לִבְנוֹתוֹ עַד אַרְבַּע אַמּוֹת. בְּחֶזְקַת שֶׁנָּתַן עַד שֶׁיָּבִיא רְאָייָה שֶׁלֹּא נָתַן. מֵאַרְבַּע אַמּוֹת וּלְמַעְלָה אֵין מְחַייְבִין אוֹתוֹ. סָמַךְ לוֹ כוֹתֶל אַחֵר אַף עַל פִּי שֶׁלֹּא נָתַן עָלָיו אֶת הַתִּקְרָה מְגַלְגְּלִין עָלָיו אֶת הַכֹּל. בְּחֶזְקַת שֶׁלֹּא נָתַן עַד שֶׁיָּבִיא רְאָייָה שֶׁנָּתַן. MISHNAH: Somebody’s [property] surrounded another’s on three sides. If he fenced in the first, and the second, and the third sides, one does not hold [the other] liable. Rebbi Yose said, if the latter then fenced in the fourth side, one rolls everything over to him22Since he now uses the three fences put up by the other owner for his own purposes, the latter can ask for half the cost of erecting the other three fences..
If the wall of a courtyard collapsed, one obligates him23If one of the parties wants to rebuild, the other is forced to share the costs. to rebuild up to four cubits. There is a presumption that he gave, unless he brings proof that he did not give24If later the party which rebuilt the wall claims that it was not paid by the other party, he is the claimant and the burden of proof is on him.. Higher than four cubits one does not obligate him, but if he built an adjacent wall, even though he did not put on roofing, one rolls everything over to him25If only one party is in charge of rebuilding, he cannot claim reimbursement for the costs of raising the wall higher than four cubits, even if the wall which had collapsed was higher. But if the party which is not in charge then builds a wall on his own property in the full hight of the separation wall, at a right angle to it, and now has three walls, the two newly built ones and his house, which he may use to create a new roofed space, he uses the full hight of the rebuilt wall and has to pay his share for the full hight.. There is a presumption that he did not give, unless he brings proof that he gave26If he did not pay his full share, putting the roofing on the other person’s wall would be illegal. Therefore, the rules of torts apply rather than those of civil claims. Since it is common usage that the second party pays only for the costs of building up to four cubits, the presumption is that he did not pay for his share of the part of the wall which exceeds the customary height..
הלכה: הַמִּקִּיף אֶת חֲבֵירוֹ כול׳. כּוֹתֶל חָצֵר שֶׁנָּפַל כול׳. רַב חוּנָה אָמַר. וּבִלְבַד כְּשָׁעָה שֶׁבָּנָה עַכְשָׁיו. דְּאִין הֲוָה בָּנִי דְכִיפִין בָּנִי לָהּ דְּכִיפִין. בְּרַם הָכָא הֲוָה בָּנִי דְכִיפִין וּבְנָתֵיהּ בְּלִיבְנִין גָּבִי לֵיהּ כִּיפִין וְכָל־שָׁעָה דִנְפִיל בָּנִי לָהּ. HALAKHAH: “Somebody’s [property] surrounded another’s,” etc. Halakhah 5: “If the wall of a courtyard collapsed,” etc. Rav Ḥuna said, only at the rate he is building now27Commentary to Mishnah 4. The farmer who only built one fence has to pay to the one who built three at most half the cost of his fences if they were built like the fourth (Babli 4b). E reads בְּשַׁעַר “at the rate” instead of L’s בְּשָׁעָה “at the time”; the reading of E was translated.. For if he built it arched28Commentary to Mishnah 5. The wall was built in the way of Roman architecture, sturdy Roman arches with a thin filling below and a flat top. This saves material but costs more in labor., he had to build arched. But here if it was built arched and he built it with bricks, he can collect the cost of arches, and if it should collapse, he has to rebuild it29The party which rebuilt the wall can require to be paid for the quality of the previous wall, but if it was executed with inferior material or workmanship he has to rebuild it at his own expense..
רִבִּי יוֹסֵי אוֹמֵר. אִם עָמַד וְגָדַר הָרְבִיעִית מְגַלְגְּלִין עָלָיו אֶת הַכֹּל. רַב חוּנָא אָמַר. מְגַלְגְּלִין עָלָיו פְּשׁוּטוֹ שֶׁלַּכּוֹתֶל. “Rebbi Yose said, if the latter then fenced in the fourth side, one rolls everything over to him.30While this is a quote from Mishnah 4, Rav Huna’s remark refers to Mishnah 5.” Rav Ḥuna said, one rolls over the length of the wall to him31Even if the new wall built by the other party who did not construct the original wall higher than four cubits starts in the middle of the wall of partition, he has to pay for the elevation of the wall of partition in its entire length. This also is Rav Huna’s opinion in the Babli 6a, opposed by the authoritative Rav Naḥman who holds that he only has to pay for that part of the wall which he uses for his own purposes..
עַד כְּדוֹן לְאָרְכּוֹ. לְרָחְבּוֹ. אָמַר רִבִּי נָסָא. כּוֹתֶל חָצֵר לֹא נַעֲשֶׂה אֶלָּא לְהָצֵיל לוֹ. סָֽבְרִין מֵימַר. שֶׁאִם רָצָה לִקְרוֹת אֵינוֹ מַקְרֶה. אָמַר רִבִּי יוֹסֵי בֵּירִבִּי בּוּן. תִּיפְתָּר עַל יְדֵי מָרֵישָׁיו. So far lengthwise. What about its width?32The Mishnah refers to the case that the new wall be built at a right angle to the dividing wall; the builder then intends to put on logs which form the roof parallel to the dividing wall, between his house and his new wall. He uses the dividing wall only as back wall for his new room; the dividing wall does not carry any weight. Nevertheless, it is enough to make him responsible for half the cost of the entire dividing wall. The problem now is about a wall built parallel to the dividing wall, where the house will form the back wall of the new room to be constructed. If the owner of this piece of land pays half of the cost of the dividing wall, may he put his logs on it to form a roof over his new room? Rebbi Nasa said, the wall of the courtyard is only made to save for him33The purpose of the wall is to create privacy, rather than to carry any weight.. They34The members of R. Nasa’s school. intended to say that if he wanted to make a roof, he cannot make a roof35If the wall was not built for weight-carrying from the start, no party can put any weight on it. E has an additional argument:
וְחָזַר וְתַנָּה. סָמַךְ לוֹ כוֹתֶל אַחֵר אַף עַל פִּי שֶׁלֹּא נוֹתַן עָלָיו אֶת הַתִּקְרָה מְגַלְגְּלִין עָלָיו אֶת
הַכֹּל. הָא אִם רָצָה לִקְרוֹת אֵינוֹ מַקְרֶה.
He (R. Nasa) repeated and stated: “but if he built an adjacent wall, even though he did not put on roofing, one rolls everything over to him.” Therefore, even if he wanted to make a roof, he cannot make a roof.
The inference which his students wanted to draw from his statement already follows from the text of the Mishnah. The payment required is just for the wall as is, not for any additional use.. Rebbi Yose ben Rebbi Abun said, explain it by his beams36מָרֵישׁ is a weight-carrying beam. The person building a wall parallel to the dividing wall might put up vertical beams at the two ends of the dividing wall and use them together with his newly constructed wall to make a wooden frame on which to place the roof beams. Then he gets a room of which the dividing wall simply is a wall but carries no weight. The payment of half the cost of the dividing wall is enough to make this a legitimate construction..