This chapter opened with a mishnah about people in a shared courtyard compelling one another to build a wall splitting it in two. In discussing this law, the Gemara concluded that the primary concern is the notion of hezek re’iya, damage through seeing — that is, privacy. While that mishnah focused on the division of one shared courtyard, today we’ll talk about roofs. Many ancient rabbis lived in homes with flat roofs that functioned much like a balcony, and so privacy concerns come into play in this space as well.
Rav Nahman says that Shmuel says: If one’s roof is adjacent to his neighbor’s courtyard, he must build a fence on the roof four cubits high, so that he will not be able to see into his neighbor’s courtyard, but he is not required to build a fence between one roof and another roof.
And Rav Nahman himself says: He is not required to build a fence four cubits high on the roof, but he is required to build a partition that is ten handbreadths high.
Roofs differ from courtyards. When a roof is level with someone else’s courtyard — say, for example, one of the houses is on a hill — the obligation is on the owner of the roof, specifically, to build a privacy wall. And between two roofs one doesn’t need to build a proper four-cubit (six-foot) wall, but there’s still enough need for sovereign space to compel a division of 10 handbreadths (about two feet).
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Earlier in the chapter, the Gemara explained that the rules for privacy screening on roofs are more relaxed because people don’t live on their roofs in the same way they live in their courtyards: They are neither on their roofs as frequently, nor as likely to use them for more intimate activities.
With regard to the second ruling about a partition between roofs, the Gemara asks why a lower partition is required but not a higher one:
For what purpose, according to Rav Nahman, does the neighbor have to build such a partition? If it is to prevent damage by sight (i.e. for privacy), we require four cubits. If it is to catch the neighbor as a thief, (i.e., to set a boundary between the two properties so that any trespass will be construed as an attempted theft) a mere partition of pegs suffices. And if it is to prevent kid goats and lambs from crossing from one roof to the other, a low partition that prevents them from leaping from one roof to the other suffices.
We can’t seem to determine what concern would require a divider that is exactly 10 handbreadths high. Such a divider is not high enough for privacy, but if the concern is a formal boundary to hold your neighbor liable for any trespass, ten handbreadths is unnecessarily high. Likewise, if there’s a practical consideration of keeping out animals, it’s overkill, or at least inexact. So why would the rabbis require a partition of this particular height?
Actually, it is built to catch the neighbor as a thief. With a partition of pegs he can give an excuse and say that he was merely stretching himself, but with a partition of ten handbreadths he cannot give such an excuse.
If the barrier is too negligible, argues the Gemara, it’s easy for the wandering neighbor to claim they hadn’t noticed it, or that they were merely stretching. A barrier to catch an attempted theft must therefore be high enough that it can’t plausibly be accidentally transgressed.
That’s one dilemma solved. Anther dilemma arises from the text immediately preceding Shmuel’s statement. While Shmuel and Rav Nahman’s teachings imply that we aren’t as concerned for the issue of privacy when it comes to roofs, just before this Abaye taught that people with roofs on opposite sides of the public domain must each fence off half their roof so as not to see into the other’s. This implies privacy is in fact an issue with regard to roofs, not just homes and courtyards!
The Talmud doesn’t solve this problem but the Tosafot, medieval commentators who often continue the Gemara’s project of addressing and resolving internal contradictions, propose an answer. Abaye’s statement is referring specifically to houses on opposite sides of the public domain. Since there isn’t great physical proximity, each person isn’t necessarily aware of when the other is using their roof and thus isn’t able to prepare accordingly. But Rav Nahman and Shmuel were referring to roofs that are immediately adjacent: Since they’re so close, one can instantly be aware of when the other is using their roof and not engage in private activity within their own space, so we don’t need the same structural preventative measures to ensure privacy. By establishing our seemingly contradictory rulings as referring to distinct scenarios, the Tosafot have fulfilled one of their primary goals — ensuring the Gemara’s coherence.
Read all of Bava Batra 6 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on July 1, 2024. If you are interested in receiving the newsletter, sign up here.
