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BAVA METZIA 117

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BAVA METZIA 117 (23 Teves) - Dedicated l'Zecher Nishmas Nachum ben Shlomo Dovid Mosenkis, whose Yahrzeit is 23 Teves 5700, by his son, Shlomo Dovid (Sid) Mosenkis of Kew Gardens Hills, N.Y.
PAST DEDICATION
BAVA METZIA 117 - Today's study material has been dedicated by Al and Sophie Ziegler of Har Nof, Yerushalayim, in honor of the Yahrzeit of Al's father, Bernard B. Ziegler - Binyamin Baruch ben Avraham (and Miryam), which occurs on 30 Menachem Av.

SUMMARY

If someone rents the second floor of a house and the floor caves in he may live on the first floor until it is repaired however it is a Safek if he has exclusive right to live there or if he must share the space with the owner of the house.
 
If the answer to the previous question is that he must share the space with the owner it is a Safek if he may enter straight into the first floor or he must enter through the upper floor and than climb down. (1)
 
If someone was renting a third floor of a house and the floor caved in he has the right to live on the second floor instead.
 
If he was renting the second floor of a three story house and the floor caved in it is a Safek if the owner may tell him to live on the third floor instead.
 
If the plaster on the floor of the upper story of a two story house wears out in and when the resident of the upper floor washed his hands the water caused damage to the resident of the first floor R. Chiya Bar Aba says the owner of the second floor must fix it, while R. Ilai says the owner of the first floor smut fix it
 
A person must distance his tree twenty five Amos from his neighbor's well and if it is a carob or sycamore tree he must distance it fifty Amos whether the well is on higher ground than the tree or they are on even ground. (2)
 
If the well was dug before the tree was planted it shall be cut down and the owner of the well must pay for the tree, if the tree was planted first it is not cut down and if we don't know which was first it is not cut down.
 
R. Yosi holds that even if the well was dug before the tree was planted it is it not cut down because the tree was planted in one property and the well was dug in another property. (3)
 
If someone rents the second floor of a house and the floor caves in he may live on the first floor until both the floor boards and the plaster are repaired according to the Tana Kama because the plaster also provides support for the upper floor.
 
R. Yosi holds that the owner must provide the floor boards while the renter is must provide the plaster because he holds that the plaster in not for the purpose of support but only so that the surface will be even.
 
If a two story house that is owned by two different people collapses and the owner of the first floor refuses to rebuild the owner of the second floor may rebuild the first story and live there until he is paid his expenses.
 
R. Yehudah says that the owner of the second floor shall build both stories and than he may live in the first story until the owner gives him his expenses because someone who lives in his friend's house without permission must pay rent even though his friend was not planning on renting out the house. (4)
 
If someone instructs a dyer to dye his wool red and he dyed it black or vice versa R. Meir says the dyer is Koneh with a Shinuy and shall pay the owner the value of the non-dyed wool.
 
R. Yehudah holds that he must give the owner the dyed wool and he is paid his expenses or the appreciation of the wool whichever is less.
 
If someone pays part of his debt and deposits the Shtar with a third party and he tells him that if I don't repay the balance within an allotted time you shall give him the Shtar R. Yosi holds his instructions shall be followed, while R. Yehudah argues. (5)
 
If a two story house that is owned by two different people collapses and the owner of the first story wants to rebuild his walls with stronger material than previously, or with less windows or with lower ceilings he may do so but not vice versa. (6)
 
If the owner of the second floor wants to rebuild the second floor with lighter material than previously or with more windows or a lower ceiling he may do so but not vice versa. (7)
 
If the owners of both stories decide not to rebuild and the owner of the land decides to sell the land according to R. Nasan the owner of the first story receives two thirds of the proceeds of the sale, while the owner of the upper story receives a third.
 
Acherim says that the owner of the bottom floor receives three quarters of the proceeds while the owner of the upper floor receives a quarter.
 
If an olive press is built into a rock and there is a garden on top of it which is owned by someone else if the bottom of the garden caves in the owner may plant instead in the olive press until the owner of the olive press builds supports for his garden.
 
If a person's wall or tree falls into the Reshus ha'Rabim and causes damage he is Patur.
 
If the Beis Din condemned his wall or tree and gave him a certain amount of time to take it down if it falls and causes damage within the allotted time he is Patur but if it falls after the time is up he is Chayav.

A BIT MORE

1. Maybe the owner of the house can tell him just as originally you entered through the top floor so too even now you must enter through the top floor or maybe the renter can say I originally only had to climb up to get into the house but now I will have to climb up and climb down.
 
2. The roots of a regular tree spread out twenty five Amos and the roots of a carob and sycamore tree spread out fifty Amos and penetrate the walls of the well and cause them to crumble and even if the well is on higher ground the roots penetrate the ground underneath the well and causes the earth on the bottom of the well to crumble.
 
3. R. Yosi holds a Nizak must distance himself so that he will not be damaged and therefore it is the responsibility of the owner of the well to distance his well from the tree even if the well was dug before the tree was planted, while the Rabanan hold that a Mazik must distance himself so that he will not cause damage. However R. Yosi only holds that the Nizak must distance himself from being damaged in the event of an indirect damage, but in a case of Giri Dilei (a direct damage) he agrees with the Rabanan that the Mazik must distance himself.
 
4. R. Yehudah holds that if someone benefits from his friend even though his friend doesn't lose anything he must pay and therefore if he doesn't build the second floor since he doesn't have anywhere else to live he is benefiting from his friend's house and he must pay rent and therefore he must build the second floor and since he now has a place to live he is not benefiting from his friend and he doesn't owe him any rent.
 
5. R. Yehudah holds that even if he doesn't repay the balance by the allotted time the Shtar shall not be given back to the lender because it is an Asmachta and an Asmachta is not Koneh.
 
6.. If he rebuilds with stronger material or with less windows or with a lower ceiling it gives better support for the second floor and also a lower ceiling makes it an easier climb to the second floor.
 
7. If the second story is rebuilt with lighter materials or with more windows or with a lower ceiling it is less stressful on the first story.

BRIEF INSIGHT

SHARING LIVING SPACE
 
If a person rents a house and the floor caves in if the Halachah is that he shares the first floor with the owner it is a Safek if he may enter straight into the first floor or he must enter through the upper floor and than climb down. The Chachmas Shlomo asks that there is no logical reason for the owner of the house to make him climb up to the top floor before climbing down to the bottom floor and if he makes him do so it is Midas Sdom since he gains nothing from it. The Chachmas Shlomo answers that the owner of the house gains if he enters trough the top floor because if he enters straight into the bottom floor he will not use the upper floor at all and now that he is forced to first go up to the top floor he might use the top floor to some extent and will not be in the bottom floor as often. Since the owner of the house gains that the renter will not be with as often on the bottom floor it is not Midas Sdom if he makes him enter through the upper floor.

QUICK HALACHAH

TWO ALIYOS
 
If a person is renting a floor of a three story and the third floor caved in the renter may go down and live on the second floor, if the second story caves in it is a Safek if he shall go live on the third floor or he may live on the first floor therefore he shall not live on the first floor but if he moves to the first floor he may not be thrown out. (Shulchan Aruch CM 312:19)
 
If he moved to the first floor with permission from the owner he may not be thrown out, but if he moved in without permission he may be thrown out since it is a Safek if he has the right to live there and the Karka is in the Chazakah of the owner. (Ketzos ha'Choshen)

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