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Steinsaltz

We learned in the mishna: With regard to a gutter pipe, one does have the means to establish an acquired privilege for its use. Granted, according to the one who says those first two explanations, i.e., Shmuel and Rabbi Ḥanina, it is well. The distinction between the halakha with regard to a spout and that of a gutter pipe is clear: Since the gutter pipe is fixed in place, there is an acquired privilege, and it may not be moved or shortened.

But according to Rav Yirmeya bar Abba, the one who says that the mishna means: If the owner of the field wishes to build beneath it he may build, what difference does it make to the owner of the gutter pipe if the owner of the field builds beneath it? Why would he have the right to prevent it?

The Gemara answers: Here we are dealing with a gutter pipe that is made of stone and is built into the walls of the building, in a case where the owner of the gutter pipe said to the owner of the field: It is not amenable to me that you build beneath my gutter pipe, as my walls will weaken as a result.

Rav Yehuda says that Shmuel says: With regard to a pipe from which water is draining into another’s courtyard and the owner of the roof comes to seal his drainage pipe, the owner of the courtyard can prevent him from doing so. As the owner of the field can say to him: Just as you have acquired my courtyard for the purpose of throwing your water into it, I have also acquired the water of your roof, and since I wish to use it, you may not seal the pipe.

It was stated that there is a dispute with regard to this issue, as Rabbi Oshaya says: The owner of the courtyard can prevent the owner of the roof from sealing the pipe, while Rabbi Ḥama, Rabbi Oshaya’s father, says: He cannot prevent it. Rabbi Oshaya went and asked Rabbi Ḥama’s father, Rabbi Bisa. Rabbi Bisa said to them: He can prevent it. Rami bar Ḥama read the verse about him: “And if a man prevail against him that is alone, two shall withstand him; and a threefold cord is not quickly broken” (Ecclesiastes 4:12), saying that this applies to Rabbi Oshaya, son of Rabbi Ḥama, son of Rabbi Bisa, three generations of Torah scholars in one family who knew one another and conversed with each other with regard to matters of halakha.

§ The mishna teaches that with regard to an Egyptian ladder, which is small and portable, one has no means to establish an acquired privilege for its use. The Gemara asks: What is an Egyptian ladder like? The members of the school of Rabbi Yannai say: It is any ladder that does not have four rungs.

The mishna teaches that with regard to an Egyptian window, one has no means to establish an acquired privilege for its use. The Gemara asks: What is different with regard to an Egyptian ladder, that the mishna does not explain what it is, and what is different with regard to an Egyptian window, that the mishna does explain what it is? The Gemara answers: It was necessary for the mishna to state the definition of an Egyptian window according to the unattributed opinion of the mishna because it wants to cite the dissenting opinion of Rabbi Yehuda in the latter clause.

With regard to windows, Rabbi Zeira says: If one built a large window at a height that is lower than four cubits from the ground, he has the means to establish an acquired privilege for its use, and therefore, his neighbor can protest the initial construction of the window. If one built a large window at a height that is above four cubits from the ground, he has no means to establish an acquired privilege for its use, and therefore his neighbor cannot protest its construction. And Rabbi Ile’a says: Even if it is built at a height that is above four cubits from the ground, he has no means to establish an acquired privilege for its use, but nevertheless, his neighbor can protest its construction.

The Gemara asks: Shall we say that they disagree with regard to whether there is coercion concerning conduct characteristic of Sodom? Perhaps their dispute is with regard to a circumstance where one will not suffer any loss while another gains some benefit, and the former desires to prevent the latter from gaining the benefit, if the former is coerced into not being evil without reason and consequently allows the latter to derive the benefit, counter to the behavior of the residents of Sodom. One Sage, Rabbi Zeira, holds that there is coercion, and therefore the neighbor who does not suffer any damage from a high window cannot protest, and one Sage, Rabbi Ile’a, holds that there is no coercion.

The Gemara rejects this: No, everyone agrees that there is coercion concerning conduct characteristic of Sodom, and it is different here, as according to the opinion of Rabbi Ile’a this is not conduct characteristic of Sodom, as the neighbor can say to the one who constructed the window: There are times when you place a bench beneath yourself, and you stand and see into my home. Therefore, I can protest. The Gemara relates that there was a certain individual who came before Rabbi Ami and presented this precise scenario. Rabbi Ami sent him before Rabbi Abba bar Memel to ask for a ruling. Rabbi Abba bar Memel said to him: Act in accordance with the opinion of Rabbi Ile’a.

Since the mishna cited a dispute with regard to the conditions under which an owner has acquired the privilege to use a window, the Gemara teaches that Shmuel says: And if a window was built for the purpose of enabling light to enter a dark room, then the owner of the window has the means to establish an acquired privilege for its use, whatever size it is, not only if it is a large window. And if the neighbor did not protest its construction, he cannot subsequently force the owner of the window to seal it.

MISHNA: With regard to a projection emerging from the wall of one’s house, overhanging a courtyard, one has the means to establish an acquired privilege for its use if it protrudes at least as far as a handbreadth,

Talmud - Bavli - The William Davidson digital edition of the Koren No=C3=A9 Talmud
with commentary by Rabbi Adin Steinsaltz Even-Israel (CC-BY-NC 4.0)
אדם סלומון
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