Siman 158

Our sages, of blessed memory, said that the common practice regarding gardens is to fence them, and therefore in a place where there is no custom not to fence them, one must fence. In this, it is not similar to a courtyard, for in a courtyard, even if the custom is not to fence, one is obligated to fence; but in a garden, if they practiced not to fence, we do not obligate one to fence. The reason is that in a courtyard, the usage is constant and the damage of sight is great. A common valley is not customarily fenced unless there is a custom to fence. Therefore, two partners in a garden that has the law of division according to the measure that will be explained in siman 171, and they come to divide, one can compel his fellow to make a fence between them unless the custom is not to fence. But in a valley, we do not obligate by default unless the custom is to fence. And the same applies when they do not have the law of division but they consented to divide and divided it: one compels his fellow in a garden, and in a valley in a place where they practiced to fence, just as in a courtyard in siman 157 [Sma]. And some say that in this they are not similar to a courtyard, for since in these the fence is not as necessary as in a courtyard, the second party can say, "I did not consent to divide such that you would compel me to make a fence" [Mishneh LaMelech and Ketzot HaChoshen]. However, even according to this opinion, if one desired to make a fence at his own expense, he may place it in the middle, and his fellow cannot compel him to place it only on his own land, for in this his power is certainly not so superior [it appears to me].

And what is called a "gina" and what is called a "bik'ah"? A bik'ah is a place where they sow grain [Rashi, beginning of Bava Batra], and a gina is a place where they sow seeds or plant trees. And there are some of the great authorities who say that a gina is a place where seeds remain all year, and according to this, in our countries the law of a gina is completely nullified. However, we see even in our country that for ginas of seeds, vegetables, and fruit trees, they make a fence for the most part, and for a field of grain they do not make a fence. Therefore, it appears that even now we rule accordingly. And the measure of the fence for them: some say it should be four amot as in a chatzer because of hezek re'iyah, and some say there is no hezek re'iyah in them, and only in a chatzer which is made for modest usage as well does hezek re'iyah apply, and not in a gina or a bik'ah. And even though it is forbidden to stand over the field of one's fellow at the time it stands in its stalks because of ayin hara, this is of the measure of piety, and the fence between them is only so that he should not stretch out his hand into his domain to steal. Therefore, a fence of ten tefachim is sufficient, and he will be considered a thief if he stretches his hand beyond the fence. And this is the opinion of the Rambam, of blessed memory, and in our days we have never seen one make a fence four amot high in a gina.

If one of them desired to fence in a valley or a garden in a place where the custom is not to fence, he must withdraw into his own property and build. If he wishes to place it on the boundary, the second party may protest against him, since by law a fence is not required. And this person who builds must make a sign that the fence and the ground are his. Our sages, of blessed memory, said that he should make a khazit, which is a plastering of lime an amah by an amah on the side of his fellow. And why did they not say that he should make it on his own side? Because they feared perhaps the other would also make such a khazit on his side and say that it belongs to both of them. Therefore they said he should make it on the side of his fellow, and they did not fear that perhaps his fellow would peel off the lime, because the peeling would be noticeable. And the same applies if they practiced another sign. Therefore, if the wall fell, the ground and the fence are his. And if both of them agree to make the fence, they build in the middle and make a khazit from here and from here. And why should both of them make it? Because they fear that if both do not make it, one will enter secretly at night and plaster on the side of his fellow and say it is his; and even if this one peels it off, the peeling will be noticeable. Therefore, if the wall fell, the ground and the wall belong to both of them. And if both of them did not make a sign, there is one who says that even if it falls into the domain of one, it is in the presumptive ownership of both of them as in a courtyard, since by law they were not required to make a sign and they only feared the deceiver as has been written; therefore it is in the presumptive ownership of both of them. And there is one who says that the one into whose domain it falls shall be believed to say that it is his, since the rabbis enacted that they should make a sign, and this one who is not in possession did not make one, his power is weakened; even though this one also did not make one, nevertheless he is the possessor. And the great later authorities agreed with the first opinion [and so it appears in Bava Batra 4a: according to the resolution of Ravina it remains the law like the difficulty, and study this].

The Rambam, of blessed memory, wrote in the second chapter of Laws of Neighbors: One who sells a garden to his fellow without specification, and it was interspersed with other gardens, we compel the buyer to build a wall between them, even in a place where they are accustomed not to fence in gardens. But in a plain without specification, we do not obligate him to fence unless it is in a place where they are accustomed. Thus far his words. And there are those who disagree and hold that we follow the custom even in gardens, just as with partners; and if it is a place where they are accustomed not to fence, he is not obligated to make a fence. But in a place where they are accustomed to fence, or without specification, the buyer must make a fence at his own expense, for the unspecified intent of the seller at the time he sold it to him was that he should not incur expenses for a fence, as in siman 218, see there [it appears that they do not disagree on this]. Our teacher, the Rema, decided in accordance with those who disagree. And in the Yerushalmi it is implied like the Rambam, and according to his opinion the buyer is obligated to remove all damage from the seller, and the principle "a seller sells with a generous eye" does not apply to this [Lechem Mishneh]. And see what I wrote in siman 218, section 21.

Our teacher, the Beit Yosef, wrote in section 6: One who had a ruin among the ruins of his fellow, and his fellow stood and fenced the first, second, and third sides, so that this ruin is found to be fenced on three of its sides, we do not obligate him to give anything of the expenditure, for he has not benefited him, and his ruin remains open to the public domain as it was. Therefore, if he fenced the fourth side for him until his ruin is found to be surrounded by a fence, we roll the entire cost upon him, and he gives half of the expenditure that this one spent on the four sides up to four cubits, provided that the place of the wall belongs to both of them. But if the wall belonged to this one who built it, and he built it in his own portion, we only roll upon him a small amount as the judges see fit, for he cannot make use of the walls. And so too, if the surrounded party himself is the one who fenced the fourth side, he has revealed his intent and gives half the expenditure of the three sides if the walls belonged to both of them. Thus far his words. And it is the wording of the Rambam, of blessed memory. And it appears that he did not mean specifically half the expenditure of the three sides, for he must deduct for him half of the fourth wall. And our teacher, the Rema, wrote that all this refers to where he fenced between himself and the surrounded party, but if he fenced from the outside and between him and the surrounded party it is still open, if it is a place where they are accustomed to fence, the surrounded party does not need to pay him anything even when the surrounding party fenced all four sides, for he still needs to fence between himself and the fields around him [Sma]. But if the surrounded party fenced one of the sides, such that he revealed his intent that it is pleasing to him, he is obligated to give according to what the extra surrounding caused him. Thus far his words. And they calculate according to the calculation of the area, how many cubit by cubit there are in the total fields and how many are in this inner one; for example, if in total they are ten by ten, which are one hundred pieces of cubit by cubit, and the inner one is five by five, which is twenty-five cubits in area, it is found that such a surrounding caused him a benefit which is a fourth part of all the fields, and from this he must give half, which is an eighth part, just as if the surrounding were around him, this one would give half and this one half [and this is the intent of the Tur, and in the Sma it should say he shall also give a portion of a third, etc.].

According to the opinion of the Rambam in the Commentary on the Mishnah, this law applies only to that which is open to the public domain, which is a place that requires fencing, and were it not a ruin, he would compel him to fence it according to the law of a courtyard; only because it is a ruin is there no ability to compel, and nevertheless, it is customary to fence. Therefore, since he fenced it from its four sides, he is obligated to give his portion. But in a place where they are not accustomed to fence, such as in a valley, this law does not apply [and "Drunya" at the beginning of Bava Batra was an orchard]. And some say that this law applies even in a place where they are not accustomed to fence, such as in a valley [Rashi], for that which they are not accustomed to fence refers specifically to a fence between him and his fellow because of damage of sight, but if he surrounded it from four sides and prevented the foot of man and animal from it, he is obligated to pay [Hagahah ibid. and Tur]. Furthermore, since the one who was surrounded did not protest against him to say that he would not pay him his portion, he is like one who enters into the field of his fellow without permission, for in a field that is suited for planting, one assesses for him and he has the upper hand, as I have written in siman 375. And here too, even though they were not accustomed to fence, nevertheless it is fit for this and is considered like a field suited for planting [Nimukei Yosef]. And from the words of our teacher, the Rema, which we wrote in the previous section, it is clear that he holds like the "some say."

This matter, that we roll the entire cost upon him, is specifically when the fourth side was fenced with a building, whether it was the one who surrounds or the one who is surrounded; but if he fenced the fourth side with reeds, he only gives him the value of reeds for all four directions.

If the one who surrounds is unable to clarify how much he expended, he shall swear a type of Torah oath and take, since he had permission to expend because his fellow also benefits from this. And if he said to the beit din, "Appraise it for me at the lowest of appraisals and I shall take without an oath," they listen to him. And regarding the claim of repayment, he is not believed to say "I paid" until he brings proof, because his debt is not so well known that he would pay on his own [Sma].

If from the beginning the surrounded party said to him, "I will not give you anything, for for my part, a protection of a 'zuz' is sufficient for me"—that is, a fence of thorns or to hire a guard [ibid.]—even if he did not say this to him until after he fenced the third side, since the statement was made prior to the fencing of the fourth side, he only gives him the cost of a protection of a "zuz." And it appears to me that in a ruin, if the owner of the ruin subsequently built a building on the site of the ruin and the fence is between him and the owner of the fence, he must pay the full half, since it has become like a courtyard and they can compel one another to fence.