מתני׳ הַבַּיִת וְהָעֲלִיָּיה שֶׁל שְׁנַיִם שֶׁנָּפְלוּ, שְׁנֵיהֶם חוֹלְקִין בָּעֵצִים וּבָאֲבָנִים וּבֶעָפָר, וְרוֹאִין אֵלוּ אֲבָנִים הָעֲשׂוּיוֹת לְהִשְׁתַּבֵּר. אִם הָיָה אֶחָד מֵהֶן מַכִּיר מִקְצָת אֲבָנָיו – נוֹטְלָן, וְעוֹלוֹת לוֹ מִן הַחֶשְׁבּוֹן.

In the case of the house and the upper story belonging to two people, i.e., the lower story was owned by one individual, while the upper story belonged to someone else, that collapsed, the two of them divide the timber and the stones and the earth of the collapsed structure. And the court considers which stones were likely to break, those of the lower or upper story, and gives those broken stones to the one who presumably owned them. If one of them recognized some of his stones he may take them for himself, and they count toward his amount of stones, and the other party takes other stones accordingly. They do not divide the remaining stones equally.

גמ׳ מִדְּקָתָנֵי רוֹאִין – מִכְּלָל דְּאִיכָּא לְמֵיקַם עֲלַיְיהוּ אִי בַּחֲבָסָא נָפֵיל אִי בַּחֲבָטָא נָפֵיל.

From the fact that the mishna teaches that the court considers which stones were likely to break, it can be understood by inference that the case is one in which it is possible to establish with regard to the stones, by looking at the debris, how the accident occurred: Whether it fell with pressure [ḥavasa], i.e., the lower story collapsed, and the upper story followed, or whether it fell with a blow, i.e., the upper story collapsed, and caused the lower story to follow suit. In the first instance, it is the stones of the lower story that were likely to break, in the latter instance, the stones of the upper story.

אִי הָכִי, רֵישָׁא אַמַּאי חוֹלְקִין? נֶחֱזֵי: אִי בַּחֲבָטָא נָפֵיל – עִלָּיָיתָא אִיתְבּוּר; אִי בַּחֲבָסָא נָפֵיל – תַּתְיָיתָא אִיתְבּוּר!

The Gemara asks: If that is so, that it is possible to ascertain how the collapse occurred, then why, in the first clause of the mishna, do they divide the stones without taking the circumstances into consideration? Let us see: If the house fell with a blow, it means that the stones of the upper story broke, and the owner of the lower story takes the unbroken stones. And if it fell with pressure, it means that the stones of the lower story broke, and the owner of the upper story takes the unbroken stones.

לָא צְרִיכָא, דְּנָפֵיל בְּלֵילְיָא. וְלֶחֱזִינְהוּ בְּצַפְרָא! דְּפַנִּינְהוּ. וְלֶיחֱזֵי מַאן פַּנִּינְהוּ וְלִשַׁיְילֵיהּ? דְּפַנִּינְהוּ בְּנֵי רְשׁוּת הָרַבִּים וְאָזְלוּ לְעָלְמָא.

The Gemara rejects this analysis: No, it is necessary to state the ruling of the mishna in a case when the house collapsed at night, and no one saw how it fell. The Gemara challenges: But in such a case, let them see the stones in the morning to ascertain how the house collapsed. The Gemara answers: The first clause of the mishna is referring to a case where they had cleared away the stones, and consequently there is no way to determine what occurred. The Gemara challenges: But even in such a case, let them see who cleared them away, and let them ask them what happened. The Gemara explains: The ruling of the first clause of the mishna is stated with regard to a case where the general public cleared them away and left, so that they cannot be asked.

וְלֶיחֱזֵי בִּרְשׁוּת דְּמַאן יָתְבָן, וְלֶיהֱוֵי אִידָךְ הַמּוֹצִיא מֵחֲבֵירוֹ עָלָיו הָרְאָיָה! לָא צְרִיכָא, דְּיָיתְבָן בְּחָצֵר דְּתַרְוַיְיהוּ. אִי נַמִי: בִּרְשׁוּת הָרַבִּים. וְאִיבָּעֵית אֵימָא: שׁוּתָּפִין בְּכִי הַאי גַּוְונָא לָא קָפְדֵי אַהֲדָדֵי.

The Gemara challenges: But even in such a case, let them see in whose domain the stones are situated. And once this is determined, the halakha will be that the burden of proof rests upon the claimant, i.e., the owner of the stones situated in the other’s domain. The Gemara answers: No, it is necessary to state the ruling of the mishna in a case where the stones are situated in a courtyard that belongs to both of them, or alternatively, if the stones fell into the public domain. And if you wish, say that partners in cases like this are not particular with each other about dividing the courtyard in such a way that the one cannot leave his belongings on the other’s side of the courtyard, and therefore the presence of the stones in the area of the courtyard belonging to one of them does not substantiate a claim for the stones.

״אִם הָיָה אֶחָד מֵהֶן מַכִּיר״ כו׳. וְהַלָּה מַה טּוֹעֵן? אִי דְּקָאָמַר אִין – פְּשִׁיטָא! וְאִי לָא אֲמַר אִין – לָמָּה נוֹטֵל? אֶלָּא, דַּאֲמַר לֵיהּ: אֵינִי יוֹדֵעַ.

§ The mishna teaches: If one of them recognized his stones he may take them. The Gemara asks: And the other, what does he claim? If he says: Yes, they belong to the other, this halakha is obvious, so why would the mishna need to state this? And if he does not say yes, why does the one that recognizes the stones take them? What proof does he have that they are his? Rather, it must be that the other says to him: I don’t know whose stones they are, and consequently, the one who stated a definitive claim is deemed credible.

לֵימָא תֶּהֱוֵי תְּיוּבְתָּא דְּרַב נַחְמָן? דְּאִיתְּמַר: מָנֶה לִי בְּיָדְךָ וְהַלָּה אוֹמֵר אֵינִי יוֹדֵעַ, רַב הוּנָא וְרַב יְהוּדָה אָמְרִי: חַיָּיב. רַב נַחְמָן וְרַבִּי יוֹחָנָן אָמְרִי: פָּטוּר.

The Gemara suggests: Shall we say that it is a conclusive refutation of the opinion of Rav Naḥman? As it was stated that the amora’im disagreed about the following case: With regard to one who approaches another and says: I have one hundred dinars in your possession, and the other says: I don’t know, Rav Huna and Rav Yehuda say: The respondent is liable to pay, because he did not deny the claim. Rav Naḥman and Rabbi Yoḥanan say: He is exempt from payment. It appears from the mishna that the response: I don’t know, is tantamount to an admission.

כִּדְאָמַר רַב נַחְמָן: כְּגוֹן שֶׁיֵּשׁ עֵסֶק שְׁבוּעָה בֵּינֵיהֶן – הָכָא נַמִי כְּגוֹן שֶׁיֵּשׁ עֵסֶק שְׁבוּעָה בֵּינֵיהֶן.

The Gemara refutes this contention: Just as Rav Naḥman says in that context: He is liable to pay only in a case where there is a matter of an oath between them, here too, it is a case where there is a matter of an oath between them. In that case, Rav Naḥman rules that he is liable to pay only if he is already liable to take an oath concerning his denial of part of the claim. Since he does not know if he owes this sum, and he is therefore unable to take the oath he is liable to take, he must pay. In this case as well, the mishna is discussing a case where the one who says he does not know is liable to take an oath.

הֵיכִי דָּמֵי עֵסֶק שְׁבוּעָה? כִּדְרָבָא. דְּאָמַר רָבָא: מָנֶה לִי בְּיָדְךָ וְהַלָּה אוֹמֵר אֵין לְךָ בְּיָדִי אֶלָּא חֲמִשִּׁים וְהַשְּׁאָר אֵינִי יוֹדֵעַ, מִתּוֹךְ שֶׁאֵינוֹ יָכוֹל לִישָּׁבַע – יְשַׁלֵּם.

The Gemara asks: What are the circumstances of a matter of an oath? The Gemara explains: This in accordance with the statement of Rava, as Rava says: One who approaches another and says: I have one hundred dinars in your possession, and the other says: You have in my possession only fifty dinars and as for the rest, I don’t know. As one who admitted to part of a claim, he is liable, by Torah law, to take an oath that he does not owe the other fifty dinars. Since he cannot take an oath to that effect, as he is unsure if he owes it, he must pay.

״וְעוֹלוֹת לוֹ מִן הַחֶשְׁבּוֹן״. סָבַר רָבָא לְמֵימַר: לְפִי חֶשְׁבּוֹן שְׁבוּרוֹת. אַלְמָא, כֵּיוָן דַּאֲמַר אֵינִי יוֹדֵעַ – רִיעַ טְפֵי.

§ The mishna teaches: If one of them recognized some of his stones he may take them for himself, and they count toward his amount of stones, and the other party takes other stones accordingly. Rava thought to say that this means they count toward his amount of his broken stones. In other words, the first party takes the unbroken stones he recognized, in place of a similar amount of broken stones, and the other party takes an amount of broken stones correspond-ing to the amount of unbroken stones claimed by the first person. Apparently, since he said: I don’t know, his legal status is worse.

אֲמַר לֵיהּ אַבַּיֵי: אַדְּרַבָּה, הָא רִיעַ טְפֵי. מִדְּהָנֵי יָדַע, טְפֵי לָא יָדַע – תּוּ לֵית לֵיהּ, וְאִידָךְ כּוּלְּהוּ – דְּהֵיאַךְ נִינְהוּ.

Abaye said to him: On the contrary, this one, the one who recognizes some of his stones, is worse off. He is worse off because since he knows and recognizes these stones, he evidently does not know anything about any more stones, and therefore he has no rights to any more unbroken stones, and all the others are the property of the other party.

אֶלָּא אֲמַר אַבַּיֵי: לְפִי חֶשְׁבּוֹן שְׁלֵימוֹת. אִי הָכִי מַאי קָמְהַנֵּי לֵיהּ? לְמַלְבְּנָא רַוְוחָא, אִי נַמִי טִינָא דְּמִעַבְּדָא.

Rather, Abaye said that it means they count toward his amount of his unbroken stones. In other words, the first party takes the unbroken stones he recognized, in place of a similar amount of unbroken stones, and the other party takes an amount of unbroken stones corresponding to the amount of unbroken stones claimed by the first person. The Gemara asks: If so, what did the first party gain from recognizing his own stones? The Gemara answers: He gains with regard to bricks from the structure made in a wide brick mold. If his bricks were constructed from a wider mold, he is entitled to these slightly larger ones. Alternatively, if the clay from which his bricks were formed was processed better, he gains by obtaining superior bricks.

מתני׳ הַבַּיִת וְהָעֲלִיָּיה, נִפְחֲתָה הָעֲלִיָּיה וְאֵין בַּעַל הַבַּיִת רוֹצֶה לְתַקֵּן – הֲרֵי בַּעַל הָעֲלִיָּיה יוֹרֵד וְדָר לְמַטָּה, עַד שֶׁיְּתַקֵּן לוֹ אֶת הָעֲלִיָּיה.

If there was a house and an upper story owned by one person, and the upper story was rented out to another, if the floor of the upper story was broken, i.e., it fell in or collapsed, and the owner of the house does not want to repair it, the resident of the upper story can go down and live in the house below until the owner repairs the upper story for him.

רַבִּי יוֹסֵי אוֹמֵר: הַתַּחְתּוֹן נוֹתֵן אֶת הַתִּקְרָה, וְהָעֶלְיוֹן אֶת הַמַּעֲזִיבָה.

Rabbi Yosei says: With regard to a house of two stories owned by two people, i.e., the lower level was owned by one and the upper level by the other, in which the ceiling collapsed; the owner of the lower story provides the ceiling of beams or stones, and the owner of the upper story provides the plaster.

גמ׳ נִפְחֲתָה, בְּכַמָּה? רַב אָמַר: בְּרוּבָּהּ, וּשְׁמוּאֵל אָמַר: בְּאַרְבָּעָה.

The Gemara asks: In the case of the floor of an upper story that was broken, to what extent did it break? What is the extent of damage that permits the upper resident to say that he is no longer able to live there? Rav says: Most of it was damaged, and Shmuel says: A break of four handbreadths occurred.

רַב אָמַר: בְּרוּבָּהּ, אֲבָל בְּאַרְבָּעָה – לָא, אָדָם דָּר חֶצְיוֹ לְמַטָּה וְחֶצְיוֹ לְמַעְלָה. וּשְׁמוּאֵל אָמַר: בְּאַרְבָּעָה, אֵין אָדָם דָּר חֶצְיוֹ לְמַטָּה וְחֶצְיוֹ לְמַעְלָה.

The Gemara analyzes their opinions. Rav says: Most of it was damaged, but if the break is only of four handbreadths, this halakha does not apply, since the owner of the upper story can use the lower story to place the item that would normally be placed in the area of the hole, and a person can reside partially on a level below and partially on a level above. In other words, the upper story remains inhabitable even if he must use the lower story to house some of his belongings. And Shmuel says a break of four handbreadths is sufficient for the halakha to apply, since a person cannot reside partially on a level below and partially on a level above.

הֵיכִי דָּמֵי? אִי דַּאֲמַר עֲלִיָּיה זוֹ – אָזְדָא. אֶלָּא דַּאֲמַר לֵיהּ עֲלִיָּיה סְתָם – לוֹגַר לֵיהּ אַחֲרִיתִי!

The Gemara asks: What are the circumstances of the case in the mishna? If the owner said at the time of the rental that he is renting this upper story to the tenant, the tenant has rights only to this upper story, and he has lost the ability to live there. Rather, the owner said to him that he wants to rent an upper story to him, without specifying which one. If so, the renter is certainly entitled to functional living quarters, and the owner must rent him an upper story in a different house belonging to this owner where he can live.

אָמַר רָבָא: לָא צְרִיכָא, דַּאֲמַר לֵיהּ עֲלִיָּיה זוֹ שֶׁאֲנִי מַשְׂכִּיר לָךְ, כִּי סָלְקָא – סְלֵיק בַּהֲדָהּ, וְכִי נָחֵית – חוּת בַּהֲדָהּ. אִי הָכִי, מַאי לְמֵימְרָא?

The Gemara answers: Rava says: No, it is necessary to state the ruling of the mishna in a case where the owner said to him: This upper story that I am renting to you, when it is up, i.e., functional, live up there in it, and when it descends, i.e., it is no longer functional, descend with it and live in the lower story. The Gemara asks: If so, what is the purpose of the mishna stating this ruling, as there was an explicit condition to this effect?

אֶלָּא אֲמַר רַב אַשִׁי: דַּאֲמַר לֵיהּ עֲלִיָּיה זוֹ שֶׁעַל גַּבֵּי בַיִת זֶה אֲנִי מַשְׂכִּיר לְךָ, דְּהָא שַׁעְבֵּיד בַּיִת לָעֲלִיָּיה.

The Gemara answers: Rather, Rav Ashi said: This is a case where the owner said to him: I am renting to you this particular upper story, which is on top of this particular house. As by emphasizing that the upper story is above that particular house, the owner thereby rendered the house as liened with regard to the upper story, although he did not explicitly state that the renter will have the right to live in the house were the upper story to become non-functional.

וְכִי הָא דַּאֲמַר רָבִין בַּר רַב אַדָּא אֲמַר רַבִּי יִצְחָק: מַעֲשֶׂה בְּאֶחָד שֶׁאָמַר לַחֲבֵירוֹ דָּלִית שֶׁעַל גַּבֵּי פַּרְסֵק זֶה אֲנִי מוֹכֵר לְךָ, וְנֶעֱקַר הַפַּרְסֵק, וּבָא מַעֲשֶׂה לִפְנֵי רַבִּי חִיָּיא וְאֲמַר: חַיָּיב אַתָּה לְהַעֲמִיד לוֹ פַּרְסֵק, כָּל זְמַן שֶׁהַדָּלִית קַיְימָא.

The Gemara adds: And this is in accordance with that which Ravin bar Rav Adda said that Rabbi Yitzḥak said: There was an incident involving one who said to another: I am selling to you the vine that is on top of this peach tree [parsek], and then the peach tree was uprooted. And the incident came before Rabbi Ḥiyya, and he said: You are obligated to erect for him a peach tree to support the vine, as long as the vine exists.

בָּעֵי רַבִּי אַבָּא בַּר מֶמֶל:

§ Rabbi Abba bar Memel raised a dilemma: