May these words of Torah serve as a merit le’iluy nishmat Menachem Mendel Ben Harav Yoel David Balk, a”h.
This week we learned Bava Batra 41. Here are some highlights.
Bava Batra 41: If a building was mistakenly built on a neighbor’s property, must it come down?
A yeshiva built a new building. It had multiple floors. They mistakenly ended up building on their neighbor’s land. Their building took half a meter of the neighbor’s property. The neighbor demanded that they destroy the building and give him back his land. Alternatively, he was willing to accept generous compensation. He told them that if they gave him 10 times the value of the land he would drop his claims. They wished to pay for the land they had taken. They demanded a fair assessment from the bet din. They did not want to pay excessively or to take down the building. The question was brought to Rav Zilberstein: did the building have to come down?
Bava Kama taught that the Sages made enactments to help thieves repent. They made takanat hashavim. If a man stole a beam and then built it into his home, they did not obligate him to take apart the building in order to return the beam. To encourage repentance, they directed him to pay for the beam. He would not have to take apart the building. What about in our case? Is there a takanat hashavim when someone steals land?
Rama (Choshen Mishpat 360:1) rules: “If one stole land and built on it big buildings, he must tear them all down and return the land to the rightful owner. The Sages never made a takanat hashavim for theft of land.” In light of the Rama it would seem that the yeshiva would have to come down.
Mabit (Chelek Gimel Siman 143) provides hope for the yeshiva. Mabit limited the ruling of Rama to a case when a person deliberately stole land. However, if a person mistakenly took the land of his friend, our Sages created a takanat hashavim. All he must do is pay for the value of the land. He does not need to take down the building. Mishneh Lamelech disagreed with the Mabit (Hilchot Geneiva 7:11). In light of these sources, according to Mabit the yeshiva would only have to pay the fair value of the land, and according to Mishneh Lamelech they would have to take down the building that had been illegally built.
Shu”t Porat Yosef (Siman 40) proved that the Mabit was correct from our Gemara. Our Gemara relates stories about rivers that had disturbed structures in fields. A river came and took down the fence in Rava Kahana’s field. Rav Kahana rebuilt the fence. He placed it in his neighbor’s field. The neighbor brought two witnesses against Rav Kahana. One said that the fence had now illicitly incorporated two rows of the neighbor into the field of Rava Kahana. The other witness said that the location of the fence had taken three rows from the neighbor. Rav Kahana tried to have the witnesses thrown out for they contradicted each other. Rav Yehudah accepted the witnesses. They both agreed that the fence illicitly took two rows. He told Rav Kahana, “Zil shlim, Go pay.” Asked Porat Yosef: why did Rav Yehuda tell Rav Kahana to pay? He should have told him to move the fence. Apparently, Rav Kahana had placed his fence in the wrong spot based on a mistake. Our Gemara is teaching that when someone steals the land of his friend by mistake, there is an enactment allowing him to pay for what he took and he need not tear what he built down. In light of this source, the yeshiva could stay up and would merely have to pay the fair value of what they illicitly took (Chashukei Chemed).
By Rabbi Zev Reichman
Rabbi Zev Reichman teaches Daf Yomi in his shul, East Hill Synagogue.
