Commentary for Bava Batra 8:17

לישנא אחרינא מקיף וניקף איכא בינייהו ת"ק סבר אם גדר מקיף את הרביעית נמי יהיב ליה ורבי יוסי סבר אם עמד ניקף וגדר את הרביעית הוא דיהיב ליה דגלי דעתיה דניחא ליה אבל אם גדר מקיף לא יהיב ליה מידי

It has been stated: R. Huna said, [The contribution to the cost of] the whole must be proportionate to the actual cost of erecting the fence;<span class="x" onmousemove="('comment',' Which will vary according to the materials used by the encloser. ');">¹³</span> Hiyya b. Rab said, It must be proportionate to the cost of a cheap fence of sticks.<span class="x" onmousemove="('comment',' Because the other can say that this is all that he requires. ');">¹⁴</span> We have learnt: IF A MAN HAS FIELDS SURROUNDING THOSE OF ANOTHER ON THREE SIDES AND FENCES THE FIRST, SECOND, AND THIRD SIDES, THE OTHER IS NOT COMPELLED [TO CONTRIBUTE TO THE COST]; which would imply that if the other fences the fourth side also, he must contribute [to the cost of the whole]. Now see the next clause: R. JOSE SAYS, IF HE TAKES IT UPON HIMSELF TO FENCE THE FOURTH, THE COST OF THE WHOLE DEVOLVES UPON HIM. This accords very well with the opinion of R. Huna who said [that he contributes to the cost of] the whole in proportion to the outlay on the fence; there is a genuine difference of opinion between the first Tanna and R. Jose, the former holding that the contribution has to be proportionate to the cost of a cheap fence of sticks, but not to the actual outlay, and R. Jose that it has [in all cases] to be proportional to the actual outlay. But if we accept the view of Hiyya b. Rab who said that it need only be proportionate to the cost of a cheap fence of sticks, what difference is there between the first Tanna and R. Jose? If he is not to give him even the cost of a cheap fence, what else can he give?<span class="x" onmousemove="('comment',' That is to say, can even the Rabbis fix his contribution at anything less than this? ');">¹⁵</span> — If you like I can say that they differ as regards the hire of a watchman,<span class="x" onmousemove="('comment',' During the time that the corn is ripe. ');">¹⁶</span> the first Tanna holding that he must pay the cost of a watchman<span class="x" onmousemove="('comment',' This would be less than the cost of a cheap fence, and the Rabbis might say that since this is all he requires, this is all that the fence is worth to him, and he need not contribute more than this. ');">¹⁷</span> but not of a cheap fence, and R. Jose holding that he must pay the cost of a cheap fence. If you like, again, I can say that they differ as to the first, second and third sides, the first Tanna holding that he has to contribute only to the cost of fencing the fourth side, but not the first, second and third,<span class="x" onmousemove="('comment',' That is to lay, we infer only this from the language of the Mishnah, and not, as above, that he has to contribute to the cost of the whole. ');">¹⁸</span> and R. Jose holding that he has to contribute to the cost of the first, second and third sides also.<span class="x" onmousemove="('comment',' Proportionately to the actual cost, according to one authority, and to the cost of a cheap fence according to the other. ');">¹⁹</span> If you like, again, I can say that they differ as to whether the fence in question must be built by the owner of the surrounding fields or of the enclosed field, [if the latter is to contribute to the cost of the whole]. The first Tanna holds that the reason [why the owner of the enclosed field has to contribute] is because the took the initiative [in building the fourth fence] and that is why the cost of the whole devolves on him, but if the owner of the surrounding fields took the initiative, the other has only to pay him his contribution to the fourth fence.<span class="x" onmousemove="('comment',' It is not clear on what grounds this opinion is ascribed to the first Tanna, as there is no hint of it in the Mishnah. Rashi does not seem to have had the whole of this clause in his text; v. D. S. a.l. ');">²⁰</span> R. Jose on the other hand holds that it makes no difference whether the owner of the enclosed or of the surrounding fields took the initiative In building the fourth fence, in either case the former has to pay the latter his share of the whole. According to another version [of this last clause], they differ as to [whether the fourth fence has to be built by] the owner of the enclosed or the surrounding fields [in order to make the former liable for contributing to its cost]. The first Tanna holds that even if the owner of the surrounding fields makes the fourth fence, the other has to contribute to the cost,<span class="x" onmousemove="('comment',' Apparently the cost of the whole is meant. ');">²¹</span> whereas R. Jose holds that if the owner of the enclosed field takes it upon himself to build the fourth fence, then he has to contribute to the cost [of the whole] because he makes it clear that he approves of it, but if the owner of the surrounding fields builds it, the other does not pay him anything.<span class="x" onmousemove="('comment',' Because he can say that he does not want any fencing. ');">²²</span>

Explore commentary for Bava Batra 8:17. In-depth commentary and analysis from classical Jewish sources.