July 17, 2024
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Bava Batra 3a: Good Fences Make Good Neighbors

Bava Batra begins with a discussion of whether hezek reiyah—damage caused by sight, is a real concern. The opening mishna states הַשּׁוּתָּפִין שֶׁרָצוּ לַעֲשׂוֹת מְחִיצָה בְּחָצֵר—בּוֹנִין אֶת הַכּוֹתֶל בְּאֶמְצַע, that is, if partners desire to make a “mechitza” in a courtyard, they build the wall down the middle. The precise translation is difficult, because that’s what the Gemara debates at length.

Firstly, רָצו—“desire,” indicates that the partners agree, which is at odds with one partner compelling the other. This can be contrasted to later in the mishna, regarding a garden, where there is (also) a custom to partition, that מְחַיְּיבִין אוֹתוֹ, we compel him. Secondly, מְחִיצָה always means a physical partition in mishnaic literature. There are biblical instances where it means a division of some entity.

Taken together, the straightforward reading of the mishna is that making a physical wall is optional—based on partners agreeing—which is how the first Talmudic variant (lishna kamma) understands it. Thus, “hezek reiyah” isn’t a valid concern for one partner to compel the other. A second Talmudic variant (lishna batra) takes מְחִיצָה to mean a chaluka, the splitting up of the partnership and courtyard. The desire is to sever the partnership, whereupon the wall construction is compelled. Here, hezek reiyah is a valid concern. Within each variant, many of the same sources are brought to attack the premise, which is then defended. Within the second variant, Rabbi Assi citing Rabba Yochanan, and Rav Ashi, both appear.

 

Which Variant Prevails?

The Rosh notes that the Rif only quotes the second variant, thus considering it primary, and lehalacha. Rosh provides several reasons: (A) There are many contradictory sources brought to bear on the premise of the first variant. Even though these are responded to, these are farfetched responses. (B) Two named Amoraim, Rabbi Yochanan and Rav Ashi, interact to resolve aspects of the second variant, namely how come the partners cannot retract. (C) Throughout Shas, the underlying assumption is that “hezek reiyah” is a valid concern. And, that’s how we rule.

I would personally favor the first variant. Firstly, the peshat, the simple language of שֶׁרָצוּ לַעֲשׂוֹת מְחִיצָה favors the first reading. This is a mishna, so we should look at Tannaitic usage. Indeed, employing מְחִיצָה to not mean the wall it typically means, when immediately speaking about building a כּוֹתֶל, is horribly misleading. In terms of (A), I disagree that the responses are farfetched. In terms of (C), yes, that is the prevailing assumption, but it is a nuanced assumption, not an overarching principle  that applies in every circumstance.

Space considerations preclude a full analysis of the proofs and rejoinders within the sugya, to explain why I think they are plausible. Instead, I’ll quote Robert Frost’s poem, “Mending Fences:” “My apple trees will never get across / And eat the cones under his pines, I tell him. / He only says, ‘Good fences make good neighbors.’ / Spring is the mischief in me, and I wonder / If I could put a notion in his head: / ‘Why do they make good neighbors? Isn’t it / Where there are cows? But here there are no cows1.”

 

Contextual Privacy

Regarding (A) and (C), expectations of privacy naturally vary based on the usage of the property and the prior expectations of the people involved. Thus, the sugya mentions a later mishna (3:7) and associated baraita (Bava Batra 22a) motivated by privacy2, so that one cannot see into another person’s house window. However, as the Gemara notes, people do more private acts—and expect more privacy—in a house than a courtyard!

A typical courtyard—in terms of laws of Shabbat—is shared between multiple houses, and people have lowered expectations of privacy, but still some level. A married woman often covers her hair. Ketubot 72a discusses a woman wearing a kalta (basket hat), which is sufficient for wearing in a courtyard but not an alley. The parallel Yerushalmi Ketubot 7:6 discusses a courtyard like an alley, and an alley like a courtyard, based on whether the public generally intrudes.

Similarly, if partners did erect a partition in a courtyard, then they’ve established expectations and a status quo of privacy, so should rebuild it if it falls. Members of your courtyard are your neighbors, who you get to know well, and there’s a level of comfort more than a random person off the street. There’s also a dynamic of mutual vulnerability, in that you can see them and they can see you. You can also see them seeing you, so that you can be more modest as needed. All aspects of that dynamic are absent in a roof overlooking a courtyard, so we might be more concerned for privacy…

 

Amoraic Interaction

As for (B), Rabbi Yochanan and Rav Ashi’s interactions with the sugya, I’m not sure what to make of it. Until this point, my assumption was that the variant suygot were Savoraic. After all, it was anonymous, and beside bringing proofs from Tannaim, the first version attempted a proof from third-generation Rav Nachman citing Shmuel. To have second-generation Rabbi Yochanan interact with the second version suggests his interpretation of our mishna that “hezek reiyah” is a concern, even if not awareness of the Stammaic debate about how to interpret our mishna3. Why shouldn’t the first variant have cited Rabbi Yochanan and Rav Ashi, as a counterproof?

In general, in my analyses of sugyot across Shas, I am wary of a long Stammaic span followed by Amoraic reaction. Rav Ashi—a late Amoraic redactor—doesn’t concern me so much, but Rabbi Yochanan makes me more suspicious. Often, if we strip away the Stammaic framing, the named Amoraim can be talking about a different topic, or at least a topic that doesn’t need to interact with the Stammaic assumptions.

Even within the present framing, within the second variant, in our printings and the Vatican 115a manuscript, there are two included subvariants, 2a and 2b, in Rabbi Yochanan’s first statement, where he either said מִשְׁנָתֵנוּ—כְּשֶׁאֵין בָּהּ דִּין חֲלוּקָהּ, or said only the second statement, בְּשֶׁקָּנוּ מִיָּדוֹ. Then, where Rabbi Yochanan later says בְּשֶׁקָּנוּ מִיָּדוֹ, the Gemara attacks it and readjusts it as בְּשֶׁקָּנוּ מִיָּדָן בְּרוּחוֹת. This is where the much later Rav Ashi disagrees and says כְּגוֹן שֶׁהָלַךְ זֶה בְּתוֹךְ שֶׁלּוֹ וְהֶחֱזִיק. So, maybe the Talmudic narrator is adjusting their statements to his particular framing.

I don’t doubt that these are their respective positions. But, the Stammaic framing was בְּשֶׁאֵין בָּהּ דִּין חֲלוּקָה—where there isn’t a law requiring division, but they desired to divide. Then, כִּי רָצוּ מַאי הָוֵי, if the division is optional, how can you compel the wall building—they can just retract! An alternative framing—if the very building of the wall is optional, and the agreement was to build the wall, how can you compel the specific location in the center of the courtyard? This should be negotiable, since either party can retract. Rabbi Yochanan can say that they have already committed to aspects of this, so there’s no more retraction. Further, both Amoraim can speak not about the courtyard, but about the garden or field, where where the mishna distinguishes between אֶלָּא אִם רָצָה versus אִם עָשׂוּ מִדַּעַת שְׁנֵיהֶם about the decision to build the wall.

I don’t know if my answer works, but my working theory is that the Talmudic narrator framed these Amoraic statements based on the most recently occurring variant. It would have further complicated the sugya to make introduce yet another לִישָּׁנָא אַחֲרִינָא to explain how Rabbi Yochanan works in the first framing, so he doesn’t do it. But, one was possible.

Therefore, I favor the interpretation that mechitza means “wall” in the mishna. Then, “hezek reiyah” is not a factor in our mishna, of partners sharing a courtyard. It still is a factor in many other cases, where the people, their relationship and their usage would strengthen privacy concerns.


Rabbi Dr. Joshua Waxman teaches computer science at Stern College for Women, and his research includes programmatically finding scholars and scholastic relationships in the Babylonian Talmud.

 

1 As our sugya notes, for kilayim (mixed species) purposes, a fence between different crops is sometimes necessary, even where there are no privacy concerns.

2 It could have also mentioned the mishna on 60a, or the mishnayot in the sixth perek regarding accessing resources you own in someone else’s house, field or garden.

3 Though see the parallel Yerushalmi, where the Stamma frames the partition as optional vs. compelled, and with Rabbi Yochanan working with the second. The Yerushalmi requires separate treatment.

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