Siman 157

It has already been explained that damage caused by sight is considered damage. Therefore, a courtyard of partners that is subject to the law of division—for example, where each has four cubits of land by four cubits, aside from the four cubits adjacent to the entrances, as written in siman 171—or where they divided it by their will even though it was not subject to the law of division, each of them has the power to compel his fellow to build a wall in the middle so that his fellow shall not see him while he uses his portion. And even if they stood thus for many years without a partition, he may compel him to make a partition at any time he desires. And chazakah does not apply here, for the reason for chazakah is that since he did not protest, he lost his right, and this is specifically in a place where the one holding the chazakah causes damage and is not himself damaged, such as one who has a window open to the courtyard of his fellow and the like. But in this case, where the one holding the chazakah is damaged by his fellow just as he damages him, he can say: "I did not care to protest, for since we are both equal in the damage, I thought perhaps you would be the first to claim it from me." Furthermore, it is a constant damage, and such a thing has no chazakah, as written in siman 155 regarding smoke and a privy [Tur]. And even if there is a custom in the city not to make a partition, we do not follow such a flawed custom, which is contrary to the sensibilities of people who are particular about damage caused by sight, and they may compel one another to make a partition. And even if the one refusing says, "You waived it to me" or "You sold it," he is not believed unless there are witnesses that they waived the damage caused by sight to one another, and then they can no longer protest even when there was no kinyan. For although smoke and a privy require a kinyan as written there, nevertheless here it is effective, for it is not similar to there; as there it is impossible to endure it at all, but regarding damage caused by sight there are some who endure it, and therefore waiver is effective even without a kinyan [Sma]. Furthermore, this is like a monetary claim, and waiver alone is effective, as written in siman 241 [Rosh, beginning of Bava Batra].

A place that does not have the law of division where the partners consented to divide, each one may retract, for mere words have no substance, as this is not like a waiver but rather like a sale. And even if they performed a kinyan from their hands, it is not effective, for this is a kinyan of mere words; for every kinyan takes effect upon some object or some land that enters his domain in exchange for the sudar, and in division there is no substance upon which the kinyan may take effect. However, if each one designated his portion and this one consented to such a side and that one to such a side and they performed a kinyan from their hands upon this, they cannot retract, for the kinyan takes effect upon the location of the land that he designated for himself. And even without a kinyan, if after this one designated such a side and that one such a side, each one went to the location he designated for himself and performed a chazakah that is effective for land, such as digging in it slightly, neither of them can retract. And some say further that in this case it is not necessary as in all other cases of chazakah where the transferor must say to him "go, perform chazakah and acquire" or that he performs chazakah in his presence, as was written in siman 192; but here, even if he performed chazakah not in the presence of his fellow and he did not say to him "go, perform chazakah and acquire," they have also acquired, for this is nothing more than a clarification of the portions. And even if only one of them performed chazakah, the second has also acquired his portion, just as in exchange where once the sudar is acquired, the object or the land is acquired wherever it is. And some say further that even to perform a chazakah in his portion is not necessary, but rather once each one walked in his portion it is a chazakah [Shach], because this is nothing more than a clarification of the portions. and specifically when both of them walked [Beit Yosef], for since it is not an actual chazakah, one of them is not sufficient, and it is not similar to exchange. And in siman 171 more will be explained regarding this with the help of Heaven.

This wall, they shall build it on the place of both of them and with the expenditures of both of them. And even if it did not have the law of division but one of them persuaded his fellow to divide, his fellow cannot say, "I only consented to divide on the condition that you build from your own." And even if one has twice as much in the courtyard, they shall make the wall in halves, for just as the owner of the large portion is obligated to remove his damage of sight, so too is the owner of the small portion. And since he consented to divide and they divided, it is incumbent upon both of them to make the wall. And if one is wealthy and one is poor, if it is the will of the wealthy one to bring it into his own and build, he needs no more, and the poor one cannot say to him that he should build in the middle so that he can also lean his beams on the wall when he needs, or force him to guarantee him that when his hand attains the means to build in the middle of the courtyard, he will demolish his wall and they will build in the middle at the expenditure of both of them; for since now he does not have the means and the wealthy one builds from his own, he may place it as he wishes. And if the wealthy one wishes, he builds in the middle at his own expenditures and uses the entire wall, and does not allow the poor one to use it until he pays him half the expenditure, like a house and an upper story which will be explained in siman 164. And likewise, he can compel the poor one to give half the expenditure or to sell his portion in the courtyard [Netivot HaMishpat], for the building of the wall is like a monetary claim where they descend to his properties. And if both of them are poor, if it is in their power to take from tzedakah to make some light partition, they shall take [Tur], and this is not theft from tzedakah, for the making of a partition is a necessity like all human necessities, and they are permitted to take from tzedakah for this. And if it is not in their power and they are forced to use it without a partition, nevertheless the obligation is incumbent upon each one to distance himself so as not to look at the actions of his fellow and not to damage him with the damage of sight, as I have written in siman 154.

The width of this wall is according to the custom of the province that partners are accustomed to when building a wall when they divide between them. And even if they were accustomed to making it only of reeds and palm branches, which are branches of trees, one of them cannot compel the second to make it larger than this, provided that they seal it well so that it will not be possible to look and see his fellow and his actions. And if they were accustomed to less than reeds and palm branches, some say that we do not follow such a poor custom, and one can compel the second to make it at least of reeds and palm branches. And if there is no custom regarding this in the city, they shall make it according to the assessment of the judge based on experts or according to the least of walls [Sma]. And if they were accustomed there to a light partition and one wants to make it from his own of stones and bring it into his own territory, some say that his fellow can prevent him, for he may say to him: if you bring it into your own territory, I will not have permission to use it; and even if he says "I will give you permission," he can say "I do not want a gift," and let us act according to the custom. And so too the reverse: if they were accustomed to stones and one wants to build from his own a weak partition, the second can protest against him, for he may say to him: I do not wish to litigate with you when the wall falls. And some disagree in all this and hold that since it is the will of the one to bring it into his own territory and to build at his own expense, the second cannot prevent him when he allows him to use it. And some say even if he does not allow him to use it, he cannot prevent him, for a partition wall is not made for use but rather to remove the damage of sight [Taz]. And if they performed a kinyan from their hands to build the partition not according to the custom but from something else, they cannot retract, and this is not a "kinyan of words" like the kinyan to divide in section 2, for here the kinyan takes effect on the building of a certain thing, as "to build" is not called a kinyan of words. And some disagree and say that this too is a kinyan of words, for what is the difference to me between "to divide" or "to build," as a kinyan does not fall upon an obligation unless they performed a kinyan from them that they obligate themselves to give such and such, which is like an admission as I wrote in siman 40, or that they lien themselves to build, for a lien of the person is effective for any obligation [Tur]. And these two opinions depend on the dispute that will be explained in siman 245 regarding a kinyan of "I will give," whether it is effective or not [Sma ibid.].

Since the obligation is upon both of them to build the wall, therefore if after a time this wall fell, the place and the stones belong to both of them. And even if it fell into the domain of one of them, or if one of them cleared all the stones into his domain, and even if they remained in his domain for a long time [Tosafot, beginning of Bava Batra], the one in whose domain they are is not believed to say that he built everything from his own and the stones are his. And even if they do not recognize the stones as being from this wall and he has a migo, for if he wanted he could have said they are other stones, this is like a migo in the place of witnesses, for we are witnesses that both of them built it. And even if he claims that he bought the stones and his half of the place from him while the wall was standing, he is not believed, for who forced him to do so? And it is also like a migo in the place of witnesses [Netivot HaMishpat, and the difficulty of the Shach and the Taz is answered]. And if he claims that he bought his portion of the stones from him after the wall fell, or that he gave them to him as a gift, if they recognize that these stones are from this wall, he is not believed, for they are in the presumptive ownership of both of them until he brings proof. And if they are not recognized as being from this wall, he is believed with a migo that he could have said they are not from this wall [Taz and Shach], not like the one who disagrees in this. And if they remained in his domain for a long time, he is believed to say "I bought them from him" even when they are recognized as being from this wall; since they remained longer than the usual time, it appears that this is so [Tosafot, ibid.].

A wall between two partners that fell, and they came to divide the stones, and there were better stones on the side of the wall of one of them than what was on the side of his fellow, and the one on whose side they are wants to merit them, we do not listen to him, for all the stones are in the presumptive ownership of both of them equally, as has been written.

Since it has been explained that the stones and the place are in the presumptive ownership of both of them, therefore, if the courtyard was not subject to the law of division and one did not consent to divide unless his fellow builds the entire wall from his own funds, there is no remedy for this such that the builder would be believed after some time to say that it is his, except with a deed or if this builder builds a ceiling and plastering upon it if it is thick, or if there are windows on his side and it is evident that they were made at the time of building. And there is one who says that a chazit is effective for this, which is a plastering of lime on the wall toward the side of his fellow, one amah by one amah, for this is a sign that he built it, and we are not concerned that perhaps his fellow will peel it off because the peeling would be evident, as is written in siman 158. And so too, if the courtyard was subject to the law of division and one consented to build the wall from his own funds, he must make a deed or some sign that has been explained. And so too, above four amot, as will be explained, that he cannot compel the second party; if he built of his own accord above four amot, he must make a sign. And if they followed another custom in the city to protect their walls from deceivers, they should act according to the custom. And if he also built the entire wall on his own ground, he must necessarily make a deed, for no sign will avail for this, as the sign is only regarding the stones and not regarding the place of the wall, for the other can say, "I did not consent to the removal of the wall, but they placed it in the middle." And it is not similar to a garden, as will be explained in siman 158, section 3, because there one is not required to make a fence; see there.

From what has been explained, we have learned that regarding a courtyard wall between two partners, where one claims that he built it alone and his fellow says that both of them built it, it remains in the chazakah of both of them. Moreover, even if it is known that one built it and he demands from his fellow that he pay him his portion, and he claims that he paid him, he is believed with a shevuat hesset, just as he is believed to say "I paid" regarding a loan by word of mouth. And even if he claims before the completion of the building of the wall that he paid him, he is believed. It is not similar to "within its time" where one is not believed to say "I paid," for here every moment is its time, as the obligation is incumbent upon both of them and there is no "within its time" here at all. And even if there are witnesses that he demanded that he assist him in the building and he did not want to, he is believed to say "I gave afterwards," unless he brings witnesses who were with them from beginning to end and know that he did not pay him, or that they stood him in beit din and the beit din commanded him to give his portion and he refused to perform the command of the beit din, for then he is not believed afterwards to say "I paid," as I wrote in siman 79. But if he refused based on the words of witnesses, he is believed afterwards to say "I paid."

If one desired to raise the wall higher than four amot, his fellow may prevent him, because he can say, "I wish to use it, and when you raise it, I will not be able to use it due to its height." And if there is a custom in the city not to prevent this, we follow the custom. And even if he can prevent it, nevertheless, on his own half he may build as he wishes. And some say that one who comes to raise it higher than four amot, his fellow cannot prevent him; for while we do not obligate the fellow to give a portion in this, as will be explained, to prevent the second person makes no sense at all, for by raising it he prevents more hezik reiyah; he must only pay his fellow for what the wall is diminished due to its weight. And nevertheless, he shall not raise it excessively until it could fall suddenly beneath it because of the height, even if he would agree to pay his fellow for the damage, for he does not wish to stand with him in litigation [Sma].

One does not obligate another to give a portion for a height of more than four amot, for four amot is sufficient to prevent the damage of sight. Furthermore, even if it was more than four amot and it fell and they must re-establish it, one does not compel for more than four amot. Therefore, regarding a courtyard wall separating two people that fell, each of them may compel his fellow to build it up to four amot. If one desired and raised it more, one does not obligate the second to give his portion for the remainder, even if he did not protest when the other raised it more, unless it is evident from the actions of the second that he is pleased with this, for then one obligates him to assist according to the height and length evident from his actions that he is pleased with. How so? For example, if the second built another wall opposite it higher than four amot and his desire is to place beams from this one to that one, one obligates him to give his portion according to the height of his wall. For example, if the first built to a height of ten amot and the second built opposite it to a height of six amot and made a mark for the placement of beams from this one to that one, he is liable to give a portion for the two amot that he added over the four amot. And so too if he built at its side, the law is such. And also, one obligates him only according to the length that he made and no more. And if it appears from his actions that he is pleased with the entire height, such as if he carved at the top of the wall that the first made a place to rest beams therein, or if he built upon it a large beam upon which the beams lean, even though he has not yet built another wall opposite it, one obligates him to give a portion for the entire height, for it is evident that his desire is to build another wall opposite it as high as this one. However, one does not obligate him in length except according to the length that he will make in the wall that he builds. And so too regarding the length, the law is such; even if he did not lengthen it opposite all of it, if he made a mark that he desires to lengthen it until all of it, such as if he left an "entering stone and exiting stone" in the manner that they do in building when they desire to add further, he is liable for the entire length of the addition that his fellow added. And the same applies if he already had a wall and built something that makes it evident that he desires that which his fellow did, one obligates him to give his portion. And so too if he benefited from his building in that which he raised it, even though he did not make any indication that he is pleased with it, he is liable to give him according to what he benefited. And this is dependent upon the assessment of the beit din according to the opinion of those expert in this.

And if the one who built the wall higher than four amot sues his fellow to pay his share for the additional height because his fellow supported [a structure] to it at its side or opposite it as has been written, and [the fellow] said "I paid," he is not believed, because this law is not known to everyone—that one is obligated to give a share in this—and we say that he is lying. Therefore, this [builder] takes an oath while holding a sacred object that he was not paid and collects from him, unless his fellow brought a document or evidence that he paid him. And some say that even an oath is not required, for it is more probable that he did not pay him than one who claims "I paid" within the set time, and he collects without an oath [Shach]. However, if he fixed a permanent structure to the wall, he is believed with a shevuat hesat to say that he paid his share, for in this case his obligation is known to everyone and its law is like [the law] up to four amot that has been explained. And so too if he says that he inquired of a beit din and they told him that he is obligated to give because of the attachment he made, and it was clarified that the truth is so—that he inquired of a beit din—he is also believed to say that he gave him his share [it appears to me].

In what case are these words said? When it is known through witnesses that this claimant built the entire wall. But if it is not known, it is in the presumptive ownership of both of them. And even if the defendant admits to the claimant that he built it, but claims "I paid you," he is believed through a migo, for if he wanted, he could have said "I built it with you." And some say that even if it is known that the claimant built the entire wall, if it is known that the second party initially consented to this and did not refuse it, he is believed to say that he gave him his portion. For in this case, the law is simple that he must pay, and he is believed with a shevuat hesat. And we do not fear that perhaps he retracted, for he cannot retract; for immediately upon saying that he consented to give half the expenditure, we obligate him to give, and he acquires half the wall. And also the builder cannot retract and make it all his own. For even though these are mere words, nevertheless, since the wall stands in the domain of both of them, immediately upon saying he will give, he acquires it such that his fellow can no longer protest, and he also cannot retract. And it is similar to what was written in siman 200, that when the movable objects are in the domain of the buyer, he acquires them with mere words; see there.

A courtyard wall between two partners that fell, which was wide from its beginning, and now one of the partners objects to building it as wide as it was, but rather like the rest of the buildings of the province regarding courtyard walls, the law is with him. For just as has been explained regarding a height of more than four cubits, that when it falls he is able to insist on four cubits, so too regarding the thickness; for we do not follow the previous thickness since it fell and they must build anew.