Siman 313

One who leases a single room to another in his house, and in the house there are many rooms, he may use the ledges that protrude across the length of the house from the outside, and up to four amot he has permission to use even though the room is not his for a distance of four amot. And so too with the walls from the outside, he may use according to this measure. And if his room extends more than four amot, he may use corresponding to the room from the outside and no more [it appears to me]. And in a place where it is the custom to use the thickness of the wall on its top, such as in places where the roofs are not sloped, this one who leased the room also uses according to the stated measure. And in all these matters, we follow the custom of the land and the names known to them. And there is one who says that the permission to use the thickness of the wall is specifically when he leased an upper story that is on top of the house [Nimukei Yosef], for since it is adjacent to it, presumably it was the intent of the lessor that he use it.

And so our sages, of blessed memory, said [Bava Batra 6b] that one who rents a single room may use the tarbetz of the courtyard, which is like a small garden for fresh air where grass grows and the appearance is pleasing to the eyes. And so too it was permitted for him to use the expanse behind the houses, which is like our courtyard, for in the days of the sages of the Shas the courtyard was in front of the house and the expanse was behind the house. And there are those for whom it is implied from their words that he was not permitted to use the garden and the expanse itself, but rather their walls. However, from the Rambam in chapter 6 of Laws of Hiring and the Tur and Shulchan Aruch it is not implied so. And in our country the simple custom is that one who rents a single room in the house of his fellow uses the courtyard for the usage he requires, but in the garden or the orchard that is in the courtyard he does not use it unless he specified. However, regarding merely walking through, there are those who are not fastidious. And all these matters depend on the custom, and if there is no custom there, they shall act according to the law of the Shas as I have written [see Taz].

The Tur wrote: If one rented him a house in a courtyard, the renter has nothing in the courtyard except for the right of passage to cross through it to his house. Thus far his words. And even though in an open area or a courtyard space one may make use of it, nevertheless, in the courtyard before the houses there is more meticulousness. And although from the perspective of logic it does not appear so [and so it appears in the Sma], nevertheless, since the Tur wrote this explicitly, and so wrote the Tosafot [Bava Metzia 102a, s.v. "Tartei"], and in other poskim we have not found explicitly to the contrary, we should not innovate another opinion in this. Furthermore, the Sages, of blessed memory, said [ibid.] that one who rented his courtyard to his fellow without specification has not rented the cowshed within it. And in our country, the custom is simple that one who rents all the houses in the courtyard, the cowsheds and the courtyard and everything in the courtyard that belongs to the usage of the homeowner and the cellars also belong to the renter. And even when he rents one room, he also has permission to use the courtyard for placing wood and the like, and to place food items in the cellar. However, when he wishes to designate for himself a cowshed or a cellar, he must specify. And custom is a great principle in monetary laws, and in a place where there is no custom, they shall act as we have written.

The manure in the courtyard, if the courtyard is not rented to him, the manure belongs to the lessor. And similarly, in places where the manure is worth nothing and they incur expenses to remove it from the courtyard, it is upon the lessor. And the Tur wrote that this is specifically regarding manure gathered from other animals, for his courtyard acquires it for the lessor, and the owners presumably renounce ownership of the manure; and even if the lessee preceded and lifted them, he did not acquire them [Rashi ibid.]. But that which is gathered from the animals of the lessee, or if he brought manure out from his house to the courtyard, it is his. And the reason is that since he dwells in the courtyard, he does not renounce ownership of his manure. And even that which is gathered from other animals, if the lessee caught them from the air in a vessel and the manure did not rest in the courtyard, the manure is his, for the courtyard of the lessor never acquired it. And there are those who say that this is specifically if he placed the vessel under the animal before it excreted the waste from its body, such that it was not destined to rest in his courtyard; but if the manure preceded the vessel, the lessor acquired it, for air that is destined to rest is considered as if it has already rested [Sma]. And let it not be difficult in your eyes that in a place where the manure is worth nothing and they must incur expenses to remove it, how is it relevant to say that his courtyard should acquire it for him—behold, he does not desire this acquisition? However, it is certainly so: since the courtyard is his, the expenses to clean it necessarily fall upon him, for there is no logic to impose upon every animal owner that he should follow after his animal and if it casts dung in any place he should remove it. But regarding the animals of the lessee, since he dwells there, it is incumbent upon him to remove them; just as if it were worth money he would acquire them, so too if it requires expense to remove them, it falls upon him as well.

And all this is when the courtyard is not leased to the lessee, but when it is leased to him, it is his courtyard and he acquires all the manure that accumulates there, and this is the opinion of the Tur and most of the Rishonim. However, the opinion of the Rambam, of blessed memory, [there] is that even if the courtyard is leased to the lessee, the manure that accumulates belongs to the lessor, for he wrote: The manure in the courtyard belongs to the lessee, therefore he must attend to its removal; and if there is a local custom, we follow the custom. In what case are these words said? When the animals that made the manure belonged to the lessee, but if the animals belonged to others, the manure belongs to the owner of the courtyard, for a person's courtyard acquires for him without his knowledge even though it is leased in the hands of others. Thus far his words. And so he wrote in the Shulchan Aruch, section 3. And so it is in the Tosefta [end of chapter 8 of Bava Metzia]. And they wondered about this, for certainly regarding matters of acquisition, a leased courtyard is like his own, such that his courtyard acquires for him [and this is the difficulty of the Beit Yosef, and the Shach wondered about him in vain, and his resolution requires further study as the Ketzot HaChoshen wrote, and examine closely] [and see what I wrote in Even HaEzer siman 139, section 2, with the help of Heaven].

And there is one who answered that since one who leases a courtyard did not lease the cowshed within it, as we have said, we say that the lessor reserved for himself the matters of the cowshed, the essence of which is the manure, even though the manure will be in the courtyard; but in other matters, the lessee acquires them [Ktzot HaChoshen]. And it appears to me that for this reason the Rambam, of blessed memory, was precise to say that he attends to it to remove it, in order to clarify the reason. And the explanation of the matter is that this is certainly so: if in all places manure were worth money, every lessee would acquire it. However, in many lands where the soil is rich, the manure is worth nothing; on the contrary, they incur expenses to clean the courtyard of the manure. In such a case, it was certainly not the intention of the lessee at the time he leased the courtyard to remove the manure, for what is it to him to clean the courtyard of the lessor? Therefore, the lessor is automatically compelled to remove them. And the sages did not differentiate, even in a place where the manure is worth money, and they established a general rule that the manure belongs to the lessor, except that they cast the manure of the lessee's animals upon the lessee. Therefore, the Rambam omitted the law of "absorption from the air" that was mentioned there in the Gemara, because this is only common in a place where the manure is worth money; but the Rambam, of blessed memory, whose primary reason is as I have written, omitted this [I wonder that the commentators did not remark upon his omission].

Regarding that which we have said, that the lessor acquires the manure because his courtyard acquires for him without his knowledge, it must be understood: do we not require that he be standing beside his courtyard, or that it be a guarded courtyard to his knowledge? And here, since the lessee dwells there, it is not guarded to the knowledge of the lessor, but rather to the knowledge of the lessee. There are those who answered that in truth it deals here also with a case where the lessor's house is also open to that same courtyard, and it is called "standing beside his field" [Tosafot Bava Metzia 11b]. However, the poskim did not mention this at all [see Shach]. And according to what I wrote regarding the opinion of the Rambam, the matter is simple: for certainly if it were a matter of benefit, we would require that he stand in the courtyard of his courtyard or that it be guarded to his knowledge. But the manure is not a matter of benefit, and the lessee does not want his leased courtyard to acquire it for him. Consequently, since the essence of the courtyard belongs to the lessor, he is perforce required to clear his courtyard, for upon whom should this burden be placed? And that which the sages, of blessed memory, said, that "his courtyard acquires for him without his knowledge," this is the reason why they cast this upon the lessor, and it is merely a general illustration. Consequently, the rabbis did not differentiate even in a place where it is worth money, as I have written.

The ash that comes from the oven and the stove that stand in the courtyard and are rented to the renter for his use belongs to the renter, and even when others bake and cook in them. And even according to the opinion of the Rambam, because the renter's use of them is like in a house and not like a courtyard; therefore, they are entirely his. And furthermore, they become mixed with the ash of the renter and the lessor does not have his mind set on this [Sma]. And according to the first reason in section 6, it is simply well-settled.