Commentary for Bava Batra 4:18

Rendered forbidden (kidesh): The produce, if it increased by a two hundredth. It [used] the language of Scripture (Deuteronomy 22:9), "lest it be rendered forbidden (tikdash)."

[If] he neglected [it] and did not build a partition: Specifically when he neglected [it]. But if he did not neglect and is occupied with it all the time, to build the partition, it is permitted, even though it added a two hundredth. It is as we learned in Tractate Kilayim (5:6), "One who sees a vegetable in a vineyard, and said, 'When I reach it, I will pluck it,' it is permitted. [But if he says,] 'When I return, I will pluck it,' if [the vegetable] has increased by a two hundredth, it is forbidden." Hence when he is pursuing its plucking, it is permitted even when it adds a two hundredth. And it can be explained that the reason is because it is written (Deuteronomy 22:9), "Do not plant in your vineyard forbidden mixtures" - that which is similar to planting, such that it is pleasing to him.

And he is liable for the loss: Even though damage that is not noticeable is not called damage (Gittin 53a). [As] it appears to RI that this is considered noticeable damage. For behold, it is noticeable that it is a forbidden mixture when he sees the vines [crossing over] into the field. But one who spread impurity - even though we see the sheretz (a category of particularly impure animals) on the pure foods, it is not considered noticeable damage. As who knows if they were made susceptible [to absorb impurity]. However it should not be said that also [our case here] is damage that is not noticeable but that the [Sages] fined him - like with the one who spreads impurity (Gittin 53a), so that everyone not go and render the pure foods of his fellow impure. For here there is no concern for that, since the owner of the vineyard will also incur a loss. And also, if it was a fine, he should only be liable if it was volitional.

The reason is that they wanted: To build the wall - as it was the will of both of them - that is when the Sages obligated both of them to build [it]. And later, it challenges, "When they wanted? What [does it matter], let them retract it?" However if the two of them did not want it - such that one said, "It is enough to divide it with a bordermark of low wooden pegs planted into the ground" - we do not force him. And the other one may not [force the other and] say to him, "I do not want you to see my business."

A division: The splitting of a courtyard, such that they were in agreement about the splitting. And it is when there is not enough [room] for there to be eight ells for this one and for that one, such that one may not force his fellow to split it. And for this [reason], it taught that [it is if they wanted] - that since they want to split it, they build a wall of stones [even] against their will. And if one comes to say, "I do not want this expense, but rather [only] a mere bordermark," we do not listen to him, because of damage to visual privacy.

But say, "What is a mechitzah? A division": RI explains that it is because there are several difficulties with [understanding it as] a wall, as it challenges adjacently. Hence it forces it and explains a mechitzah as [being] a division - even though a mechitzah is a wall in every [other] place.

And since they wished [to divide the courtyard], they build a wall in the center [even] against his will: Later it is established [that this is a case] not subject to the law of division. But this is surprising to RI: As why did the teacher of our mishnah take [a case] not subject to the law of division, and teach, "who wished?" He should [more simply] speak about [a case] subject to the law of division. And he answered that we learn to deduce that I might have [otherwise] said that when it is not subject to the law of division, he would find to say, "It was on condition not to make a [bona fide] wall. I did not concede to you to make a wall." And there are some texts that explicitly ask and answer this at the end of the discussion.

I would say that a mere bordermark: [That this] is what the mishnah is discussing. As it too is called a partition. And that which it taught, "who wished," is about the splitting; and it is when it is not subject to the law of division - it teaches us [it must be] a wall; and that which it taught, "who wished," is about the wall. As if they did not want [to split it with a wall], let them split it with a bordermark.

I would say that a mere bordermark: And the explanation of, "who wished," which it taught, is about a bordermark. And even though, even if they did not wish [a bordermark], they also make a bordermark against their will, as shown adjacently - as it says, "Is it not with a wall? No with a bordermark" - that means an inferior bordermark. But if they wanted [a bordermark], they must make a bordermark from non-chiseled stone or chiseled stone in accordance with the regional custom. And that is called a bordermark because it is full of windows - as it is explained in the Arukh - and it does not protect from damage to visual privacy. And also (another possibility is) because it is not ten handbreadths high, as is shown later concerning a roof that is adjacent to a courtyard. As Rav Nachman said, "He makes a parapet for it ten handbreadths high." And it challenges, "For what? If it is for damage to visual privacy, we need four ells; and if it is for [one crossing it to] be caught like a thief, a bordermark is enough! But [Rashi] explained that, "who wished," is referring to the splitting. But that is a wonder! As behold [the Gemara] concludes that a mechitzah is a wall; for if it were a division, it should have said, "Who wished to divide." Moreover, how could one find to say that I would have said it is with a mere bordermark? Behold, we understand [otherwise] from the end [of the mishnah] (Bava Batra 11a)! As it taught, "But when both of them wish [to divide it], they may divide it, even if it is less than this." And that is at least with a [more solid] bordermark. Moreover, how could one find to say, "With a mere bordermark?" Behold it is explicitly taught in our mishnah, "non-chiseled stone or chiseled stone."

They build the wall in the middle - that is obvious: According to the one that said it is a wall, it is challenging [it] - like all those challenges from further on: For when they resolved to make a wall, one resolved like the other like this. So it is obvious that it is in the middle. But according to the one that said it is a division, one must say that you would have thought to say that on account of [preventing] the damage to visual privacy, he must help in building the wall - but he [actually] does not have to build it on his portion because of that.

Where one of them convinced his fellow: He requested from him, the division with a barrier.

Lest you say [that] he can say, "When I was persuaded by you about the barrier, I was persuaded about a thin barrier - such as one of boards, since it is thin - and to reduce the airspace; and [that is enough, since] with it, there is no damage to visual privacy. Otherwise, pull the width of the wall into your portion, except for a small [space]. But I was not persuaded to build a thick wall of stones to also reduce my usage [of the courtyard's space]."

Come and hear, "And similarly with a garden": Below we conclude that this is what it means: And similarly with an unspecified garden - it is like a place that people are accustomed to fence off. Hence [the Gemara] inferred well [from here] that damage to visual privacy is considered damage.

It is prohibited for a person to stand, etc.: That he not damage it with an evil eye.

A garden is different, in accordance with Rabbi Abba: And if you will say [that] but, from that reason, he should also be liable to make a fence in a [cultivated] valley - it can be said that a garden is different, since we grow vegetables there to eat, so that [they] are standing all the time. But [the grain] is only standing in a valley for one month a year, so we do not obligate him to make a fence. But it is [nevertheless] forbidden to stand [there] at the time it is standing. And if you will say, but according to the one that said it is a division - since we have understood that it is considered damage even in a courtyard, all the more is it so in a garden - why was it necessary to teach, "And similarly with a garden": It can be said that it is necessary to teach, "And similarly with a garden," on account of non-chiseled stone or chiseled stone (to learn that they also need to be used in a garden).

But behold, it teaches, "And similarly": Such that it is implied that both of them have one reason, the garden and the courtyard.

We obligate him: And here it was not taught, "They wished," but it is rather [even] against his will.

Fell is different: Since they became accustomed to doing private matters in the courtyard and did not get used to being careful from one another.

Fell is different: As the first [owners] already consented to the wall.

And he who asked it, why did he ask it: And did he not know that fell is different?

And he who asked it, why did he ask it: Meaning to say it is obvious that fell is different. So he should have, just the opposite, shown from that which it teaches, "and if it fell," that in general, it is not considered damage.

It was necessary [to teach] the latter clause: Meaning to say, the law is also the same from the start (before it fell). So that which it taught, "If it fell," is because the latter clause makes us understand that we do not obligate [him to rebuild] more than four ells. And even though the first [wall] was higher, we do not obligate him.

We compel him: [We compel] every resident of the courtyard to give his share to the construction.

Damage of the public is different And even though, below, it is implied that it is speaking about a courtyard that is not adjacent to the public domain, there is nevertheless damage of the public. For sometimes the public crowds [in the public domain] and enter there, as we say below. And [regarding] Rabbi Shimon ben Gamliel - even though he does not subscribe to the reason that sometimes the public crowds, [he holds that] they nevertheless can see inside from far away. And that is why he only argues about a gatehouse; but he concedes that we force him to build a door.

A gatehouse: Since we build a wall in front of the gate [that is] curved all around. And in that circumference, we make a small entrance on the side, on account of [preventing] damage from the vision of people in the public domain, such that they not see into the courtyard.

Damage of the public: Since all the people in the public domain stare there.

We do not divide: One may not compel his fellow to divide.

What, is it not with a wall: This is a wonder. And let it be a wall - perhaps this is its explantion: We do not divide a courtyard even if one wants to build the wall within his [section] until there are four ells for each one. But if there are four ells in it for each one, we divide it - if he wants to retreat and build it within his [section]. However it may be said (the reason the Gemara did not entertain this possibility is) that, "divide," implies in the middle. For if it was to make us understand as we explained, it should have taught, "We do not make a wall in the courtyard until there is, etc."

The windows: One of those sharing the courtyard who builds a wall in the courtyard opposite the windows of his fellow, whether above, etc. - if the wall is higher than the windows, he must raise [it] four ells above them, as it continues to explain: So that he will not support himself on his wall and bow down and see into his fellow's windows.

Whether below: If the wall is lower than the windows, he must lower if four ells from them so that he not stand on the width of his wall and see.

Or opposite them: He must distance the wall four ells from the windows so that it will not darken [the interior of his fellow's house].

Damage of a house is different: As a person does private things in his house.

A parapet four ells high: So that he will not look into the courtyard of his fellow when he uses his roof.

It is different there, as the owner of the courtyard can say to the owner of the roof, etc.: It is a wonder! Why did it not bring from that which we learned (in a baraita) later (Bava Batra 6b), "Two courtyards, one higher than the other; the top one cannot say, 'I will build from my level and upward,' but rather he assists the owner of the lower courtyard and builds [from below]" - hence, it is considered damage.

But I do not know when you will go up: To use your roof.