משנה: הַבַּיִת וְהָעֲלִייָה שֶׁל שְׁנַיִם שֶׁנָּֽפְלוּ שְׁנֵיהֶן חוֹלְקִין בָּעֵצִים וּבָאֲבָנִים וּבֶעָפָר. רוֹאִין אֵילּוּ אֲבָנִים הָרְאוּיוֹת לְהִשְׁתַּבֵּר. הָיָה אֶחָד מֵהֶן מַכִּיר מִקְצָת אֲבָנָיו נוֹטְלָן וְעוֹלוֹת לוֹ מִן הַחֶשְׁבּוֹן. MISHNAH: If the ground floor¹בַּיִת 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 themselves²Tosephta 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 break³This 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.

הלכה: הַבַּיִת וְהָעֲלִייָה שֶׁלִּשְׁנַיִם שֶׁנָּֽפְלוּ כול׳. תַּנֵּי. נִכְמַר כְּתַנּוּר הָעֶלְיוֹנוֹת רְאוּיוֹת לִישָּׁבֵר. נָפַל לְחוּץ הַתַּחְתּוֹנוֹת רְאוּיוֹת לִישָּׁבֵר. HALAKHAH: “If the ground floor¹בַּיִת 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 break⁴There 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)..

הָיָה הָאֶחָד מַכִּיר מִקְצָת אֲבָנָיו נוֹטְלָן וְעוֹלוֹת לוֹ מִן הַחֶשְׁבּוֹן. אָמַר רִבִּי הוֹשַׁעְיָה. זֹאת אוֹמֶרֶת שֶׁשּׁוֹלֶטֶת הַיָּד מִצַּד אֶחָד. תַּמָּן תַּנִּינָן. מֵאָה טֵבֵל מֵאָה חוּלִין נוֹטֵל מֵאָה וְאַחַת. מֵאָה טֵבֵל וּמֵאָה מַעֲשֵׂר נוֹטֵל מֵאָה וְאַחַת. אָמַר רִבִּי יוֹסֵי. אִם אוֹמֵר אַתְּ נוֹטֵל מֵאָה אֲנִי אוֹמֵר כֹּל חוּלִין עָליוּ בְיָדוֹ וְנִמְצְאוּ אֵילּוּ בְטִיבְלָן. אֶלָּא נוֹטֵל מֵאָה וְאַחַת כְּדֵי לְהַפְרִישׁ תְּרוּמָה וּתְרוּמַת מַעֲשֵׂר מִן הַטֵּבֵל. “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 side⁵It 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.. There⁶Mishnah 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.”⁷As 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.⁸While 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.

אִילֵּין תְּקוֹעַייָא. רִבִּי זְעִירָא. אֲמַר אַרְעַיָּה. זְקִיק אַתְּ מַטְעִינֵנִי. רִבִּי לָא. אֲמַר עִילָאִי. בַּנַּאֵי אָֽמְרִין. תְּרַוֵּיהוֹן אֵילֵּין יְסוֹדַייָא. וְדָא מְסַייְעָה לְמָאן דְּאָמַר בַּנַּאֵי. הָֽיְתָה חוֹרְבָתוֹ סְמוּכָה לְכוֹתֶל חֲצַר חֲבֵירוֹ לֹא יֹאמַר לוֹ. הֲרֵינִי מְייַסֵּד עִמָּךְ כּוֹתֶל חֲצֵירִי וְעוֹלֶה. אֶלָּא מְייַסֵּד עִמּוֹ מִלְּמַטָּה וְעוֹלֶה. הָֽיְתָה עַל גַּבֵּי שִׁיחִין אוֹ עַל גַּבֵּי מְעָרוֹת אֵינוֹ נִזְקַק לוֹ כְּלוּם. אָמַר רִבִּי יוֹסֵי בֵּירִבִּי בּוּן. תִּיפְתָּר כְּגוֹן אִילֵּין דָּרַייָא דְבֵישָׁן דְּלָא יְכִיל אַרְעַייָא בָּאנִי עַד דְּבָנִי עִילַייָא. Those bearing columns⁹If 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: He¹⁰The owner of the rights to the upper floor. tells the bottom dweller, you are obliged to support me. Rebbi La: He¹¹The 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: ¹²A 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 up¹³His 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.¹⁴Since 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 builds¹⁵If 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..