Hezek Re'iya (Part 2)

  • Rav Moshe Taragin

            The last shiur explored the source of the obligation to build a dividing wall between courtyards.  It examined situations in which extenuating factors (waiving privacy rights, sustained gazing, and city ordinances which do not zone for walls) may or may not exempt this responsibility.  This shiur will explore issues pertaining to the quality and location of the wall.

 

 

Hutza walls

 

            The first mishna in Bava Batra establishes various acceptable standards of walls, to which neighbors have a responsibility to adhere.  The minimum standard is a hutza wall (made from palm branches – Bava Batra 4a), but it may be used only in cities which allow for it.  In areas which demanded a higher standard, the wall must be built accordingly.  The Ramban questions this obligation to build according to the local standard: If, fundamentally, hutza prevents hezek re'iya, why should one be forced to build a better grade?  The Ramban responds that an inferior wall may collapse more frequently and neighbors will damage each other during the interim period, until the new wall is erected.  Essentially, according to the Ramban, the actual damage of GAZING is solely responsible for obligating a wall and its higher quality!

 

            A very different image emerges from the Ra'avad in his comments to Bava Batra (6b).  The gemara discusses adjacent courtyards with different elevations (see diagram)

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and the consequent responsibilities of the owners to participate in the construction of a dividing wall.  Though the bottom part of the wall must be crafted from quality material, the top section (only accessible to the owner of the higher plane) may be made from any material, including hutza.  The Ra'avad reasons that the obligation to build dividing walls superior to hutza is to allow peripheral uses of the wall, such as leaning beams against it.  Once walls were legislated they were zoned to also facilitate many other uses.  The "demanded quality" of a wall is intended SOLELY to enable these utilities.  Hutza WOULD be universally sufficient to meet the needs of hezek re'iya alone but the walls are zoned for peripheral uses and this requires higher grades! In this instance, since the top section does not enable peripheral utility for the owner of the lower field, it may therefore be built from whatever material the owner of the top field desires.

 

            This insight by the Ra'avad accentuates an important position regarding the construction of walls.  Evidently, the Ra'avad agrees that the obligation stems from municipal zoning laws; therefore, the typical wall is intended to serve multiple functions beyond merely preventing hezek re'iya.  The demanded quality is intended to facilitate all these functions.  In the unique circumstance that peripheral functions are not mutually feasible, any material may be used. 

 

            One can wonder how the Ra'avad would read the case of two roofs opposite each other but divided by a large Boulevard. (6b)  The gemara establishes an obligation for the two roof owners to build a wall preventing hezek re'iyah from one roof to the next, even though the areas are not continuous.  Would this wall have to be built to local standard or would hutza suffice?  Presumably, the Ra'avad would allow these exclusively "hezek re'iya" walls to be fashioned from minimal material since they cannot enable peripheral services.  The gemara does not clearly articulate any building standards for this type of wall nor does the Shulchan Arukh stipulate this issue - inviting the possibility that walls built exclusively for hezek re'iya can be made from any material, even of hutza standard. 

 

            Of course, the Ramban would probably reject any scenario of building substandard walls.  He consistently viewed hezek re'iya as a substantive form of damage, and viewed the obligation to construct a higher grade wall as the direct result of gazing violations.  Even if the wall cannot service peripheral functions it nevertheless must be constructed to grade. 

 

Unilateral wall building

 

            A parallel discussion concerns a neighbor who unilaterally offers to build a quality wall solely in his courtyard.  This would seem to be an offer which 'cannot be refused' since he is personally incurring total costs and total space allocation!  Though the Rashba rejects this option, it seems that the denial is based purely on technical hezek re'iya concerns.  Again the wall may one day fall and the current builder may no longer feel so altruistic.  He may tarry in rebuilding the wall, leading to even more hezek re'iya.  To ensure his continued involvement, he is forced to participate in the construction of a shared wall located between the two courtyards.  The Rashba felt compelled to reject this option solely based upon particular hezek re'iya concerns.  This seems to be in line with the Ramban's position regarding the quality of hezek re'iyah walls, consistent with the Rashba's rejection of Rabbenu Yonah principle that city zoning laws may eliminate the obligation to build a wall.

 

            A different message emerges from the Nimukei Yosef.  He quotes the Re'ah who denies this option since it will not service peripheral uses for each neighbor.  By building a wall solely in his property, the builder (though eliminating hezek re'iya) deprives his neighbor of peripheral utilities (which would be partially paid for by each neighbor).  Even though this type of wall would convincingly eliminate hezek re'iya, it is illegal since it would not serve broader municipal interests!  This view seems to correspond to the Ra'avad's understanding (as we saw above) of the ban against hutza walls stemming from the necessity for the walls to enable peripheral usage.

 

Division of small areas

 

            We might locate another manifestation of this principle in an interesting dispute between the Rambam and the Ra'avad.  Partners are forced to divide a shared courtyard only if each will receive an area of at least four amot by four amot.  If the courtyard is smaller each cannot FORCE the other to split the area.  A different recourse in these cases is known as "gud oh aggud" in which one partner demands that his counterpart sell out or buy out.  What would happen if neither partner opts to buy (each wants to sell for money) and the area cannot be easily rented out, so that the profits can be evenly split?  We now face the undesirable prospect that two neighbors will live in close precincts and continually damage each other through gazing.  A wall is not feasible because the area has not and cannot, practically be divided in two.  The Rambam claims that the partners alternate years, forcing them to constantly relocate to avoid any scenario of hezek re'iya.  The Ra'avad is aghast at this possibility, ruling instead that they live together and do their utmost to avoid hezek re'iya.  In his opinion, the option of rotating years is more absurd than accepting a certain level of hezek re'iya!

 

            Perhaps this issue revolves around the original question.  The Rambam, as the Ramban, may have viewed hezek re'iya as substantive damage.  Typically this specter obligates the construction of a wall. In an instance where a wall is unrealistic, extreme measures have to be adopted to avoid violating this objective crime.  The Ra'avad may have rejected the notion that hezek re'iya is actually considered substantive hezek.  As such, it alone cannot mandate construction of a wall.  The construction is obligated because of overall neighborly dynamics - one aspect of which is privacy concerns.  However, since it is part of an overall dynamic, hezek re'iya is not the sole, or even the most convincing issue.  Conceivably, there may be instances in which hezek re'iya will be tolerated to avoid a more bizarre option - such as rotating years of residence. 

 

AFTERWORD

 

This shiur outlined the possibility that the wall is mandated as a This concept emerges from the position of the Ra'avad in his commentary to the gemara regarding hezek re'iyah-exclusive walls fashioned from substandard materials.  The shiur also examined the position of the Ra'avad in his commentary to the Rambam regarding a unique scenario where partners are faced with the equally unattractive options of residence rotation or hezek re'iya tolerance.  In each instance the position reflected a view of hezek re'iya walls as part of a broader municipal obligation. 

 

            It is important to mention, however, that these positions may not have been authored by the same person.  There is significant question as to whether the Ra'avad who authored comments on the Rambam was the same person who authored a commentary on the gemara by the same name.