For much of Tractate Bava Batra, we have discussed a particular form of chazakah in which a claim of presumptive ownership is made as a means of acquiring property. But over the last several pages, we have begun to consider a new kind of chazakah that concerns the presumptive right to use shared space in a particular way. This is the context for the mishnah we encounter on today’s daf:
A projection (emerging from one’s house), one has the means to establish a chazakah if it’s at least a handbreadth and (one can) protest. Less than a handbreadth, (the owner of the house) has no means to establish a chazakah, and one cannot protest.
The mishnah here is describing a case in which someone builds an addition to the side of their home that protrudes into a neighbor’s courtyard. Like the chazakah of presumptive ownership, the permissibility of this hinges on what behavior we believe people would notice and protest if they found it objectionable. Since a handbreadth–long protrusion is significant, the assumption is that if it bothered the owner of the courtyard, they would have said something. After three years without protest, they lose the right to insist it be removed.
At first glance, the mishnah also seems to state that if the courtyard owner does protest within this allotted time, they can either prevent the house owner from building the protrusion in the first place or require them to take it down. But the mishnah’s second clause actually creates some difficulties. The clear takeaway is that a protrusion less than a handbreadth long isn’t considered particularly significant and so the standards for it are different. But is the mishnah saying that one can’t establish a chazakah on it, meaning the courtyard owner could protest at any time? If so, how does one explain the clause “and one cannot protest,” which seemingly refers to the courtyard owner? But if it means that one doesn’t need a chazakah, or that one can establish a presumptive right of use more swiftly than with other objects, why is that? And if the final clause refers to the courtyard owner, meaning they can’t protest at all, why would someone need a chazakah in the first place?
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The rabbis try and tackle this ambiguity by debating what this final phrase of the mishnah refers to:
Rav Huna says: They taught only that the owner of the roof (cannot protest the actions) of the owner of the courtyard. But the owner of the courtyard can protest the owner of the roof.
And Rav Yehuda says: Even the owner of the courtyard cannot protest the owner of the roof.
In trying to resolve this difficulty, Rav Huna interprets the phrase in a less intuitive manner. Rather than referring to the courtyard owner’s inability to protest the house owner’s usage of the protrusion, it instead refers to the house owner’s inability to prevent the courtyard owner from building things that might interfere with her protrusion. But the courtyard owner still could prevent the construction of the protrusion to begin with or insist that the house owner not use it. Rav Yehuda, on the other hand, takes the phrase in its more intuitive linguistic direction: The courtyard owner cannot prevent the house owner from building or using a protrusion.
The Gemara attempts to discern the point of contention between these two interpretations:
Shall we say that they disagree with regard to damage caused by sight? As one sage (Rav Huna) holds that it is considered damage, and one sage (Rav Yehuda) holds that it is not considered damage.
Perhaps Rav Huna insists that the courtyard owner can protest at any time because the damage that might be caused when the house owner uses the protrusion and sees into the courtyard owner’s private space is considered substantive, whereas Rav Yehuda believes this doesn’t constitute real damage.
The Gemara dismisses this explanation:
No, everyone considers it damage. And (Rav Yehuda holds) it is different here, as (the owner of the roof) can say: The projection is not suitable for use. For what purpose is it suitable? To hang items on it. I will turn my face away and hang items on it.
Perhaps everyone agrees that violating a neighbor’s privacy amounts to real damage and the dispute between Rav Huna and Rav Yehuda is about usage. Rav Yehuda believes that with a tiny protrusion, the house owner can claim there won’t be any damage caused by seeing private matters, as they’ll only use it for hanging items, which wouldn’t allow them to see into the courtyard. How would Rav Huna respond?
And the other sage (holds that the owner of the courtyard) can say: There may be times when you are frightened.
Perhaps the house owner will be afraid of the height and will look carefully at the protrusion while using it. In doing so, they may in fact see private matters. Because this is a possibility, if not an inevitability, Rav Huna believes the courtyard owner can still prevent the usage of this protrusion.
Read all of Bava Batra 59 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on August 23, 2024. If you are interested in receiving the newsletter, sign up here.
