Asks, this is a contradiction to the Gemara later. The Gemara later says very clearly, בין גג לגג לא, that if you have two houses next to each other and there's the roofs in between, there's a roof for both sides, you don't have to make a wall between two roofs. And the reason is because the way by a roof, you could know when the guy comes up, umimeila he could hide himself. But the bottom line, without getting into the pratim, the bottom line is that the Gemara says clearly, later on on this amud, בין גג לגג לא. Between two roofs, you don't need a wall. So why all of a sudden here do you need a wall when you have the two houses across the street and the problem is the roofs, that each one is going to be able to see from his roof to the other roof? So the Gemara describe, how do you make the wall? You don't have to make two walls, this guy makes half, this guy makes half, and you have to a little bit overlap. But why you bichlal need a wall? It's בין גג לגג. That's the kashya, obvious kashya. Tosafot comes to meva'er the kashya, and Tosafot answers, איירי דוקא בשני צידי רשות הרבים. When it says here between the two roofs you have to make a separation, because they're across the street of each other, שאין אחד מרגיש בחבירו כשיעלה בגגו שיזהר ממנו, because you can't see exactly when the guy will come up so you should be careful. Now,

how does Tosafot know that this is only when they're two across the street? So he says, מדאמר בסמוך אבל בין גג לגג לא. It can't be a regular two roofs, that the same din would be if they're close to each other, then it's a contradiction, the Gemara says בין גג לגג you don't need. So basically the way Tosafot answers the kashya, the setira between these two Gemaras, that this Gemara says that between the two roofs you do have to have a wall, half this guy, half that guy, and later it says between two roofs you don't have to have a wall, because if it's close to each other, you don't have to have a wall. If they're further from each other, they're across the street, you do have to have a wall. That's the answer. But that's not the only answer that's given in the Rishonim. You have the answer that the Nimukei Yosef says. There's a difference, he says, between what kind of roof. There is a roof that is used להשתמש, some roofs are made that it's made lechatchila to use, and some roofs are not made to use. When it says בין גג לגג לא, that between the two roofs you don't need anything, when it's not used להשתמשות, usually they don't use it. When it says in our Gemara here that between the two roofs that you do have to make a wall, because these are talking about regular roofs which you use, which is like a chatzer. In the Shita, he brings the same type of teirutz and he teitshes, it's even more בפרטיות. It depends if it's a straight roof or a slanty roof. When it says that between two roofs you don't need a separation, that's talking about slanty roofs. Slanty roofs you can't really use so you don't really sit there. אקראי בעלמא you have to go up, you have to fix your roof, you go up on a slanty roof. So בין גג לגג לא is by a slanty roof, but the nekuda is not the word slanty or straight, the nekuda is: Is it usable, or is it not usable? So בין גג לגג you don't need, that's when the roof is not usable normal, and this is where it is usable. This is how the Nimukei Yosef says, this is what it says in the Shita. The

Ri Migash asks a kashya on this on this shita, and he says, you can't say it depends what kind of roof it is, is it a slanty roof or a straight roof, because if that's the din, the Gemara would have said so! How does the Gemara skip saying it? The Gemara doesn't say, the Gemara doesn't say specific type of roof. From the Gemara it's mashma it makes no difference what kind of roof. Therefore the Ri Migash learns like Tosafot, that the difference is whether it's across the street or not. If it's close, you don't need, if it's far, you do need. And that you can't ask, how come the Gemara doesn't say it? The same she'eilah you could ask: If the difference is whether it's close or far, the Gemara should have said that too! That's not a kashya, the Gemara does say it! The Gemara says clearly, when do you have to make it? If it's two sides of the רשות הרבים, that means that there is a street in the middle. So the Gemara itself makes a chiluk whether it's something in the middle, and later בין גג לגג there's nothing in the middle. So bottom line, we have these two shitos. How does the Rambam learn? So

from the Rambam most mefarshim learn that the Rambam learns not like Tosafot. The Rambam says this din of the Gemara that when you have the two roofs across the street, you have to make half and half, so the Rambam uses adds a few words: If you have two houses across the street and the roof is a roof עשוי לדירה, and it's a roof which you use to live in, then you have to make half and half. So the Rambam meva'ers clearly that what kind of roof is it that you have to make, if it's made for uses, if it's made to live in. So the Rambam also holds that way. So basically we have this machloket here between some rishonim against other rishonim. The Rambam learns that the difference is what kind of roof, and Tosafot and other rishonim learn that difference is how close it is. So it's not only a machloket in peshat in the Gemara, it's a machloket lahalacha. What would be the din if it's a roof that you don't really use so much? Do you have to make a separation in between? Now,

obviously according to the Nimukei Yosef, according to the Rambam, you don't, because the whole din here, he says that you do have to make, is because it's usable. But is, but if it would be not really usable, בין גג לגג לא, so you don't have to. According to Tosafot, that Tosafot doesn't make that chiluk, and farkert, the way it comes out, why doesn't Tosafot make the chiluk like the Ri Migash says, because it doesn't say, in other words, in all cases, the din is that you have to make a wall, unless it's far apart. So it comes out that according to Tosafot, even if it's a roof that's slanty, which is used very little, all the mefarshim say this, that lehalacha, according to Tosafot וסיעתו, Tosafot and those that followed that שיטה פשט in the Gemara, will learn that when don't you have to make? Only if they're far away from each other. But if if it's slanty, you still have to make a wall. So we have a machloket lehalacha here. If you have two roofs and one is slant they're slanty, and memeila that's not so good the usage is not קביע תשמישתא, let's say, it's not commonly used, is a machloket whether you need a wall or not. According to Tosafot you still need a wall, and according to the Rambam and according to the Nimukei Yosef you don't need a wall. So it's נוגע להלכה. So, as we always do, the she'elah is, what is the nekudah of the machloket, whether in a case where you have the two roofs and they're not so usable, and nevertheless you have to make a wall or not? Which usually when we ask a she'elah, what's the sevara of the machloket, we always look at which one is the one that needs need needs a be'ur. Always one makes more sense than the other, and the other one needs a be'ur. In this case, the Rambam would make more sense, that since it's not so קביע תשמישתא, since it's not usable, you don't have to make a wall, there's no chiyuv. Mah she'ein kein if you learn the other way, it's a pele. So, but the bottom line is what are the sevarot for both sides? So, bifshitut, what you what some people want to say is the famous chakirah which is in every one, every sefer of every rosh yeshiva on on Bava Batra, first פרק בבא בתרא has this chakirah, בנוגע the whole din of היזק ראיה. What is the real reason why we have to have a wall for היזק ראיה? Because there are two ways to look at it. You could say it is why do you need a wall? Because when you look at the guy when he's doing his private things, you're mazik him. That itself, that's an hezek. You're seeing what he does. I'm not even talking about private things of tzniut. It could be other things. A guy is standing there counting his money in his house, he wants to count how much money he made, he doesn't want anyone to know how much money he has, but the other guy could see. So the etzem seeing is a is an hezek, and therefore you have to make a wall in order to avoid, not to be mazik him with your ראיה. And the other way to look at it is it's not because the etzem looking is the problem. Since you could look and see what he's doing, and he doesn't want it, mimela he will not be able to do certain things that he wants to do. That's called the מניעת ההשתמשות. You're stopping him from using. He has an office on his in his house, on his roof or in the chatzer, and there he is. Now, soon as this guy moved in, he has to move out. He can't use his office there anymore. You're not allowing him to be mishtamesh. That's the hezek. It's not the hezek of the etzem looking that you're seeing, the hezek of the מניעת ההשתמשות. And they always talk about they all talk about it back and forth, there's ראיות from this Gemara, from that Gemara, from this Rishon, that Rishon. So, some want to say that could be the machloket here too. If the whole reason for the wall is מניעת ההשתמשות, that because you're going to stop him from using it, and that's an hezek, that now he can't use it, well, if it's a very little meni'ah, because the השתמשות is very little, the Chachamim wouldn't make a din of a wall. They only if you're going to make a big hezek. So in a case where the wall is slant this roof is slanty, where you can't really use it much, so emet he could use it a little bit, and because of the guy being next door and he could see, I will not be able to use that little bit. But to stop a person for using a little bit would not be enough to make the Chachamim make a takana to make a wall. That's why this is the shita of the Rambam, that if in a case where it's slanty, the Chachamim didn't make a wall. Mah she'ein kein the shita of Tosafot would be that the reason is not because of מניעת ההשתמשות. The reason is the looking itself. There's an issur, you're not allowed to look in somebody else's property. And we know that the Gemara later on brings the pasuk where it says מה טובו אוהליך יעקב, that Bilam praised the Yidden, he saw that what, שאין פתחיהם מכוונים זה כנגד זה. You can't look. Now, when you're talking about the issur of looking, that's more a איכותדיגע, it doesn't depend on כמות, how often you're going to do it. If we want to avoid the issur, then the Chachamim made a takanah even if it's slanty, memela it won't be too often that you're going to do it. But there's a issur, the Chachamim made a takanah. So lichorah this sevara would be, according to this, that the shita of Tosafos is that if it's slanty you still have to make a wall, because the ikar is the re'iyah, the looking, and therefore it makes no difference if it's a little bit. And the Rambam who says that the ikar is that that if it's slanty you don't have to make a wall because the ikar is מניעת השתמשות, and מניעת השתמשות is not so terrible if it's a place where you don't really are משתמש so often. But really what we have to try to not make that this should be the machloket, we want to try to explain that whichever way we learn the hezek, whether it's the looking or the stopping the usage, we could still find a way to explain the machloket and not to be תולה on this, because it seems like in every one of the Rishonim you will find different expressions that's mashma either way, that they both seems like be'etzem that all the Rishonim hold that they're both a problem. So you can't be מגדיר that Tosafos holds like this, Rambam holds like this. I mean, you could, but it's not so good, so we have to try to go to some other way. That's one thing in this sugya. Then we have another thing in this sugya.

When it says that each one makes when you have the two roofs across the street and you have to block out, you shouldn't see, you make two, you have to make a wall, each one has to make half of the wall, then it says ומעדיף. You can't just make a wall, this guy makes half and finishes at the same place where this guy starts, and the reason is very pashut, cuz if you do like that, this guy who stands a little bit further could see in the angle, directly he could see. So you got to overlap. How much do you have to overlap? So if you look at Rashi's lashon here, Rashi says ומעדיף משך אמה יתיר מחצי הגג כדי שיהא במקצת whatever it is there, ומתוך כך לא יראה בהדיא לגגו של חבירו. You have to make it so that you shouldn't be able to see very easily. Which basically means you don't have to go too far to overlap. A little bit. That's all you have to overlap, a little bit. So when you stand, you can't. But in the shita he brings the Rashba, Raavad, there were a few, the Raavad is one, the

Raavad says, even though you can't see directly, but if the guy really wants when he stands a little further, he could bend his head over and look in and he'll be able to see. And they answer, that's not a problem, because what'll happen if you have to look into the other side by bending over, you're always afraid you'll fall. Umemela people won't do it. And therefore it's enough if you just overlap a little bit that you can't see directly by standing, but you don't have to go too far. From the Rambam is mashma, the Rambam's lashon is ומעדיף כדי שלא יראו זה את זה. You have to make it more that you should not be able to see each other. That means in no way. That means that Rambam holds you have to be ma'adif much more that you shouldn't even be able to bend over and see. Now, just as I mentioned in the other shiur, if you look at Rashi, Rashi here says כדי שלא יראה בהדיא. You only make enough that you shouldn't be outright, clearly you shouldn't be able to see, but you don't have to go too far. Rashi on the Rif, and we don't know, Rashi on the Rif if Rashi wrote a separate peirush on the Rif, or the printer took some Rashi from the Gemara and rewrote it over there, or it's bichlal not Rashi, it's a different mefaresh, it's called Rashi cuz he wrote he copied Rashi, but it's not, but Rashi on the Rif says that you have to make the overlap כדי שלא יוכל לראות כלל. You shouldn't be able to see at all. But that's Rashi on the Rif. Rashi here says clearly כדי שלא יראה בהדיא, you shouldn't be able to see clearly. So the bottom line is we have a machloket here, again a machloket. When you say that you have to overlap, do you have to overlap a little bit so you shouldn't see clearly and or more? The Rambam, I said, holds that you have to do further, you shouldn't see at all. Ai, what's with the teirutz that the Raavad gave in the shita that we're not afraid that he's going to look if it's not direct, ai, he could bend over, not afraid he's going to bend over cuz he'll fall, obviously the Rambam doesn't accept that teirutz. He says, no, we are afraid. We are afraid that he's going to bend over, and he's going to look, and we have to cover that, too. Why doesn't he accept the teirutz? The she'eilah is what is the sevara here whether we accept this bi'ur or not. Obviously, according to Rashi, that he says it's enough if you make that you can't see clearly, he accepts accepts this bi'ur, we're not afraid he's going to look too much, bend over, and the Rambam doesn't accept it. So we have to understand this all. So the nekudah of the teirutz is, I just want to say a vort, I'm going to bring many examples to such a type of thing. The chakirah which I had once בנוגע the din of a wall by היזק ראיה, that the חכמים were מתקן you have to make a wall, is the pshat be'etzem you don't need a wall? You don't need a wall. You're not allowed to look, whichever way, because you're not allowed to look because it's an issur to look, you're not allowed to look because by looking the guy is going to not be able to do his things, whatever, but you're not allowed but there's a problem of looking, that's all it is. So, really, what can a guy answer? I don't want to make a wall. I won't look, I'm telling you, I won't look. I'm not going to look, I know I'm a frumer yid, I'm not allowed to look, I won't look. Nu, why can you force me to spend money to make a wall? So we tell him, sorry, it's impossible. May for a day, a minute you could not look, vadai, but you going to live there for for the next 50 years, it's not shayach. So you must make a wall. So it's not the pshat that be'etzem you have to make a wall. Because of the situation that there is no ברירה, and there's no other way, so the חכמים said you got to make a wall. But it's not be'etzem a din you got to make a wall. Or you can say the opposite. Because the חכמים knew what happened, they made a din. Be'etzem the din is every time you're שותפין, you have to make a wall. The nafka mina between the two is when there's a safek, do you have to make a wall or not? In other words, when there's a safek if there's a din of היזק ראיה, does the ניזק, the one that's having the problem that you're going to look at me, have to prove that you have to make a wall, or farkert, the מזיק who wants to not make a wall has to prove that he doesn't have to make a wall? Well, it depends. If be'etzem you have to make a wall, so the chazakah is you got to make a wall. He טענה'ט, this is a specific case where I'm where I I I don't have to make a wall. So as long as you don't prove that you're an exception, you got to follow the rule. The rule is you got to make a wall. If you learn the other way, it's the opposite. If be'etzem you don't have to make a wall, ela mai, because I know you're going to look, I have to make a wall. So if I don't know, the chazakah is you don't need a wall. אלא מאי, בדרך כלל you need a wall because of the situation. But if I don't know for sure that I need a wall, be'etzem you don't it's not be'etzem that you need a wall. Now, I

want to bring some Gemarot to this concept of be'etzem, whether be'etzem you're chayav or be'etzem you're not chayav. It's not just stam. We find it in different places. Just to say one of the things that we learned: זה נהנה וזה לא חסר, what's the din? We learned it's patur. That means if I do something, and you gain from it, but your gain didn't cost me any money, can I claim that you should pay me? The classical example in the Gemara is if I have a house which is not used, and I don't rent it out ever, and there's a guy who's homeless and doesn't ever rent pay money, he found my house and he moved in, and he slept over a night. Can I come the next day and say, charge him for it: you slept over a night, and a night in a hotel costs money, pay me? But the guy ta'net, didn't cost you anything, didn't cost me anything he moved in. So it's זה נהנה, he gained, לא חסר. The din is it's patur. You can't claim the guy, you can't make you can't tell him to pay, he's patur. So the she'eilah is in is בנוגע to different things that we learned before in the Gemara. How is it be'etzem? One way is be'etzem like this: Since the guy had hana'ah from you, be'etzem he has to pay. You gained from me, you have to pay. But since I was לא חסר, it didn't cost me anything, that's a patur. That's like an that's a reason why you don't pay. Or farkert, because I didn't lose anything, so why should he have to pay? But there's still a sevara to say because you are chaser, because you are no, because you are nehenah, I mean, because you gained, you should have to pay. Now there's a machloket whether זה נהנה וזה לא חסר חייב or patur. What's the machloket? What do we stress? If we say the main thing is be'etzem you're patur, אלא מאי, maybe you should have to pay because you gained, so we say no you don't. Or is it farkert, be'etzem you're chayav, you gained from me, you gained from my property, you have to pay, but sof kol sof it was I was I was not chaser, so still you have to pay, whatever. I'm just giving an example of a case where you could look, are you be'etzem patur, or are you be'etzem chayav and

there's a reason that you're patur. Give another example. A shomer. A shomer chinam, let's say. Person is a watchman and doesn't get paid. Shomer chinam is patur for everything, for ones, for גניבה ואבידה, he's patur. His only chiyuv is peshi'ah. So there is a two shitot of how we look at it. And in Alter Rebbe's Shulchan Aruch Hilchot Pesach, there's a contradiction. In one place he writes one of the two ways and once the other way. What are the two ways? One way is to say like this: A shomer who takes responsibility to watch someone's thing automatically is responsible to have the thing returned. And that's why if he was poshea, if he was negligent, he has to pay. Why do you have to pay? Because that's what you did, you took responsibility, you have to give it back. If it got lost without his peshiya, the תורה פטר'ט him. He's be'etzem you're chayav. In a case like this, you are patur, the תורה פטר'ט you. Or you could say farkert: A shomer is patur. He doesn't he doesn't have responsibility to give back. If you are a poshea, if you're negligent, then you start getting a chiyuv, and the Alter Rebbe uses the lashon because you become a mazik. If you're negligent, like מזיק בידיים. If I'm mazik your things, I have to pay. I have no responsibility over your things, but I'm chayav because I'm a mazik. Same thing here, a shomer is patur. Shomer chinam is patur from everything, a shomer sachar is patur from from ones. You're not chayav. If there was a peshiya, you are chayav. Or farkert, be'etzem say chayav. If there was no peshiya, you are patur. So this is an example of certain thing, are you be'etzem chayav or are you be'etzem patur? Even though in this case it seemed it seems like there's no difference lema'aseh. Lema'aseh is the same din. If it's no peshiya you're patur, if there is a peshiya you're chayav. It's noge'a to other dinim, like by Pesach, things like that. Aber we see the approach to something, whether you're be'etzem chayav and the patur is the chiddush, or be'etzem you're patur and the chiyuv is the chiddush. Other examples, it'll take too much time to give examples. The same thing here we have by this wall that we're saying here. Are you בעצם חייב to make a wall, when you're not chayav that's an exception to the rule and that's the reason why you're patur, or be'etzem you're patur, wherever you're chayav that's a חידוש דין that you're chayav to make a wall? And like I said, what is the difference between the two? The difference is when there's a safek, like I said. If we don't know, who is the one that's supposed to bring a re'ayah? So if you say be'etzem you're chayav, so as long as you don't know for sure you're patur, you're chayav. To be patur, the guy who wants to be patur, the mazik has to prove it. If be'etzem you're patur, the chiyuv is a chiddush, so as long as you don't know that he's chayav, you're patur. And the only time you're chayav if the guy brings a re'ayah. The nafka mina

will also be, not only in a case of a safek, when we say that you don't have to make a full wall, let's get back to us here. When you have the two neighbors, the two roofs across the street, and you have to make a wall. If you learn be'etzem between two neighbors you have to make a wall, if you have to make a wall between two neighbors each one is mechuyav, so you know what be'etzem is? Each one has to make a wall. You have a chiyuv to make a wall! So you know what be'etzem should be? Both of them should make a full wall! Makes no sense. Why should they make two walls? I mean, what's the purpose, it's extra money. So because of that we took off and say you don't have to make each one a full wall. How much did we take off? As in how much we took off is the amount that we know for sure that you don't need. If we say farkert that be'etzem you don't need a wall, the whole wall is a chiddush. So you have to make lechatchilah half, but half is not enough because you're going to see. So we have to add. How much do we add? If you're going to make plain half, it's not enough because you could still see. So you add. How much do you add? How much we know for sure is a problem. In other words, here we have a case where there's a certain amount which is not for sure a problem. Whatever you could see direct is a problem. That's a that's the din of היזק ראיה is a problem. Here we have a case where it might be a problem, might not be a problem. The extra, the little bit extra for sure you have to do because if you don't have the little bit extra, then you could directly see, that's for sure. Do you need more than that? Why? Because he might bend over and look. Now the bending over and look is a she'eilah, will he or won't he? On one hand you could say, it's possible Yeah, sure he could. Could bend over. On the other hand, we could have the other sevara, what's the sevara of the Raavad? He's not gonna do it, because if he does, he might fall. So maybe he won't do it. So we don't know if this needs if this is a geder of היזק ראיה or not. What's the din if we don't know, do you have to do it or not? That will depend on this. If be'etzem you have to make a wall, so really you have to make the whole wall. We took off, how much did we take off? The amount that we are sure that you don't need. But the amount that's a safek, maybe you need it, be'etzem you have to make a wall, to take that away you have to be sure that you don't need it. So as long as there's a safek here, what do you do? You have to make it. That's the shita of the Rambam. So the Rambam holds that you have to make the wall a lot, because be'etzem you would have to make the whole wall all the way. We took off because it's extra, you don't need it. How much did we take off? We only took off that amount that we know for sure that you don't need. Whatever we don't know for sure, since be'etzem you have to, unless you'll prove me that we don't need it, you have to make it. So the

Rambam says you have to make a lot. Rashi will learn that be'etzem you don't need a wall. So be'etzem you just have to, pashut technically you have to make no היזק ראיה, because bafo'al you got to take it away. So really you have to make each one a half, but then there's a certain amount that you have to go overlapping. Why? Because that's for sure part of היזק ראיה, the same like like this half, you got to do it. The rest, which is a safek, if you'll prove to me that you need it, then I'll do it. But as long as you can't prove and it's a safek, you don't do it. And that's the machloket between, we say Rashi, these two shittot whether you need it or not, whether you need overlapping or not. So we have the two shittot here based on this sevara, whether be'etzem you have to make a wall or be'etzem you don't have to make a wall. In other words, is there be'etzem a התחייבות of a wall and sometimes you're patur, or be'etzem you're patur and there is a התחייבות of to make a wall as a chidush? This could be the machloket in another case, which also seems to be a machloket Rashi and the Rambam. On

Gemara דף ו' עמוד ב', hey ז' עמוד ב', the Gemara brings a machloket, but we're going according to the halacha, that אחים שחלקו אין להם דרך זה על זה, ולא חלונות זה על זה, ולא סולמות זה על זה, ולא אמת המים זה על זה. Two brothers who divided. So, one guy took the house, let's say the one guy took the the yard. So the lashon of the Gemara is אין להם לא חלונות זה על זה. There's no din of a window one over the other. What does that mean? Rashi learns clearly what it means is, the guy one guy got the house and one guy got the yard. The guy from the yard has a right to put up a wall blocking this guy's windows. And this guy can't claim, \"I have a right of a window.\" So how could you block my window? You have to move away ד' אמות so the light will come in. So the Gemara says, \"No, אין להם חלונות זה על זה.\" He doesn't have the claim, \"I have a window and I have to I am allowed to keep my window, don't block it.\" That's how Rashi learns. In the Rambam, it's not clear, but many מפרשים learn that the Rambam argues pshat. And this is what the Rambam says: \"אין להם חלונות זה על זה\" means this guy has no right of the window, and he must block his window. Now that became to Before, it was owned by a father, one person owned the house and the yard. Now it's owned by two people. The guy from the yard could come to this brother from the house and tell him, \"I want you to close up your windows.\" And he has a right to tell him, \"You have no right to keep the window open.\" Why? Because of היזק ראיה. And that's how other ראשונים learn pshat. In the Rambam there is a מחלוקת, שאלה of the Kesef Mishneh and the Maggid Mishneh, but it seems like from the מפרשים mostly that the Rambam does not learn like Rashi. So again, Rashi learns what it means is that you have a right to block his windows. But Rashi doesn't learn that you could force the guy to close his windows. You can't do that. In other words, according to Rashi, there is no דין היזק ראיה here. You cannot tell the guy you must close the windows. While the Rambam, according to the Maggid Mishneh, according to other ראשונים, other מפרשים learn, that the pshat in the Gemara is that. The pshat is that אין להם חלונות זה על זה, that he could force him to close the window. Which if you want to put it down to the simple words, the machloket is whether in this case there's a din of היזק ראיה. According to Rashi, the There is no din of היזק ראיה. And memila you cannot force the guy to close his windows. There is no din of היזק ראיה. According to the Rambam, you could force him to close the windows because there is a din of היזק ראיה. Now what's the מחלוקת based on? In other words, let's ask the שאלה: why can't he force him to close the window? According to Rashi, and the Nimukei Yosef learns like that too, why can he not force him to close the window? Isn't there, everyone knows there's a דין of היזק ראיה. And this guy now is overlooking my property, so the דין of היזק ראיה. So why can't he force him to close the window? So the

Nimukei Yosef says why can't he force him to close the window? Because when they split, there is no התחייבות that one was מתחייב himself to the other. There's no התחייבות. None of them were מחייב himself to there's no התחייבות. We split as is, and that's it, no other התחייבות. There's no side side התחייבות in here that is מחייב me. And therefore, according to Rashi, and the Nimukei Yosef learns so, you cannot force the guy to close the window as היזק ראיה because he was never מתחייב when he split, כיוון you split that with all the certain התחייבות. No התחייבות. That's for all the other things too, you can't stop him for an אמת המים, whatever, all the different things that the Gemara says, because אין ליה התחייבות על זה. That's how the Nimukei Yosef learns and he explains Rashi. Now the Rambam who learns that you could force him to close the window, means that he does hold of היזק ראיה here, holds that there is a התחייבות. What's the התחייבות? What's the, isn't there a good סברא that they were not מתחייב on each other? So why would he say there is a התחייבות? What would be the התחייבות? There's no התחייבות. So באמת you could say that it's this מחלוקת is תלוי in the same מחלוקת like before. Before we said the מחלוקת whether you have to overlap a lot or not, the Rambam holds you have to overlap a lot because בעצם there's a חיוב of a wall, we took off what we took off, whatever we have to, so we took off a little bit. Rashi says בעצם there is no chiyuv of a wall, farkert we added, so you add a little bit, you don't add the whole thing. The same sevara will be here too. The Rambam who says that you could force him, and there is a דין היזק ראיה on the guy with the window, אי there is no התחייבות, this is a התחייבות that you don't have to accept, it's בעצם הדין. The Rambam goes l'shitaso, the Rambam holds that the din of היזק ראיה is not the peshat it just happens to be that you have to make a wall. It was a, what was the chakirah? One sevara is: you're not allowed to look, fine, but there's no din of a wall, just happens that since there's no other choice, you make a wall. And the other sevara is: no, there's a דין בעצם of the Chachamim that you have to make a wall without any questions. If you want to say that you don't need, then you need an הפסק ראיה that you don't need. So the Rambam goes l'shitaso. The Rambam says that be'etzem there's a din of of a wall, is that היזק ראיה, דחכמים דעצם is the making of a wall. So whether they divided with a התחייבות or without a התחייבות, the division itself מאנט, needs a wall. And therefore the Rambam says you got to close up, you got to have a wall, you can't look out, you got to close up your windows. And Rashi who holds that be'etzem there is no din of a wall, it's a special chiyuv that we put on as an extra din, in a case where the brothers divided where there is no התחייבות, so that התחייבות doesn't apply. So we see that the two מחלוקת'ן that we're holding in this din, the machloket whether we add a lot or a little between Rashi and the Rambam, and the machloket now between Rashi and the Rambam whether you could force the din of היזק ראיה in that this case, in the case where they split and there was no התחייבות, is תלוי in the same thing, whether it's בעצם הדין or not. Now, I would like to connect this with another מחלוקת Rashi and the Rambam in a different דין, which would be following l'shitaso. We're talking here about היזק ראיה. That's the whole שאלה here. What is the גדר, is a היזק ראיה בעצם a חיוב that you בעצם חייב or not? היזק, it's a היזק! You're a מזיק! בנוגע being מזיק, this is like any other מזיק. When you're מזיק somebody, you have to pay. Same thing here, because of the היזק you have to pay, you have to pay for a wall. The only difference is, by a regular היזק when you're מזיק somebody, when do you pay? לאחר מעשה. After you cause the guy damage, you got to pay. Here, you got to pay to prevent the damage. Okay, it's before, to make sure you don't damage. Because we're so sure you're going to damage, pay lechatchilah that make sure you don't damage. But the logic behind it, this is the same gang, that this גדר of היזק ראיה is a גדר of a מזיק, and you have to pay for the being a מזיק. And the שאלה is, do you have to pay בעצם for that or not? So I want to say this is באמת a מחלוקת between Rashi and the Rambam, בנוגע a regular מזיק. When there's a דין in the beginning of Bava Kamma, we know that there is a דין that if your ממון, something that belongs to you is מזיק, you got to pay. שור! פרשת משפטים, השור המזיק, if my ox was מזיק, I have to pay for the היזק. So here we have or if if my ox, someone's ox killed somebody, so you got to pay kofer. So here we have the famous she'eilah which all the Acharonim talk about, and the Rebbe in a letter in חלק ו' in Likkutei Sichos talks about it, says the two sides of a chakirah. I think I once mentioned that that letter that is printed in לקוטי שיחות חלק ו', a long letter, the Rebbe wrote בכתב יד קדשו, he wrote that letter. Actually, the one that got this letter wasn't familiar with the Rebbe's handwriting and he couldn't read it, so he asked me to sit down with him and copy over the Rebbe's letter. There was one letter, one word there, one אות that I couldn't read clearly. We figured it out, but that's whether the word is תם or הם, I forgot already, one word there wasn't clear. I'll tell you who it was, it was a guy called Nachum Zevin, he's Rav Zevin's a grandson, and he learned in Ponevezh', but his grandfather wanted him to come to 770 to learn for a year, so he came for one year to 770, this was תשכ״ו. They put him into my room in the dormitory, so I got very close to him. And when he went to yechidus, the Rebbe spoke to him in nigleh. And then when he went out, he wrote something to the Rebbe, a she'eilah on something that the Rebbe said to him in yechidus in nigleh. And on that he got a long answer בכתב יד, the Rebbe, a big whole thing. And this is a pure thing very, very bekitzur, but if you'd write out just this letter, write it out, פשוט אויסשרייבן, what the kashya is, the teirutz, the two sides, everything, it could be a sichah of 10 pages. Actually, we had we thought we had a she'eilah later whether should we print it in the Sichos, the הוספות of Likkutei Sichos, or leave it and just write it out and make a sichah out of it, because it would be exactly as it's written, but be'arichut. But since it was printed, we couldn't do that. But what does the Rebbe talk about in that letter? When we say a person is chayav for the fact that his ox killed, there are two conditions, and I mentioned that once before in the shiur we learned about it, is it has to be like they has to be his, and it has to be that he didn't watch it. If it's not his ox, he's patur. Even if it's his, but he watched it properly, and something out of the ordinary happened, lightning hit and the door of the of the stable opened up and he ran out and was mazik, you're patur. So the she'eilah is, why are you chayav? What is the reason that you're chayav, and what is the condition? One way you can say, you know why you're chayav? You didn't watch it! You should have watched it. Since you didn't watch it, you're responsible, you have to pay. Or you could say that's not the reason. The reason is not because you didn't watch it, the reason is because ממונו הזיק, it's yours! And since it's yours, you are responsible for everything that your things do. If you watched it, then we can't blame you, memeila you're patur. And the

Rebbe says a nafka mina, I mentioned the other time a nafka mina, remember? Who remembers the nafka mina? I mentioned it in the other shiur. If you sell an ox to somebody and you make a condition that it should only become yours a minute before it's mazik, if it's mazik, a minute before. So to say you're chayav because it's your mamon, yeah, the minute it was mazik it's your mamon already, you're chayav. If the reason you're חייב על שלא שמר שורו, because you didn't watch it, you can't blame him, because it only became his. Would you expect him to watch a second before it gored? So you can't blame him for not watching, so you would be patur. That's a נפקא מינה למעשה between these two sides. And the Rebbe actually talks there about when it killed somebody. What's the din if it killed somebody? What's the din if a שור killed somebody? It says you have to kill the שור, וגם בעליו יומת, and the owner has to die. Owner has to die? Then the pasuk said אם כופר יושת עליו, you could give, make him pay money, and if he pays money, he's patur. What does it mean וגם בעליו יומת? So Rashi says in Bava Kama וגם בעליו יומת means מיתה זו היינו ממון. It means money. Doesn't mean to die. The Rambam says, when it says בעל, וגם בעליו יומת means מיתה בידי שמים. Yes, doesn't mean dying by by stoned, by by Beit Din killing him, but yes, you're חייב מיתה בידי שמים. If you pay the kofer, then you don't get the מיתה בידי שמים. So the Rebbe explains that what's the difference between the the two things? If you learn that you're chayav because you didn't watch him, so you are just a גורם to what it did. You didn't, you're not part of that the שור killed a person. You're not part of that. You're only responsible cause you didn't watch it. You didn't watch it, it became wild, and then it went out and killed. You're just a far cause. So why would you get מיתה בידי שמים? You're not part of the killing. But if it's ממונו, the reason you're chayav because it's an extension of you, so it's almost as if saying when the your ox killed somebody, you're part of it, you're a שותף to it. Memeila you should get killed. אלא מאי you don't get killed by אדם because lefoal you didn't do it, so מיתה בידי שמים. So the Rebbe says that that's the difference what it is. The Rebbe doesn't bring the Rambam and Rashi, but lefoal I'm saying this is a machloket between the Rambam and Rashi. If you

look at the Rambam, the Rambam says that when it says וגם בעליו יומת, so the Rambam says מיתה זו is not מיתה בידי אדם, it's מיתה בידי שמים. In other words, there was even a hava amina that it should be מיתה בידי אדם. Lefoal it's מיתה בידי שמים. If you look at Rashi, like I said, Rashi in not in Chumash, Rashi Chumash says different, Rashi in Gemara says מיתה זו היינו ממון. So according to Rashi there is lechatchila no hava amina for מיתה. According to the Rambam there is. There is מיתה בידי שמים. What's it depend on? Why you're chayav. If you're chayav because לא שמר שורו, cause you didn't watch it, then it can't be מיתה בידי שמים, then it's only ממון. So Rashi who says מיתה זו היינו ממון, and the word מיתה has nothing to do with מיתה, because he holds that the reason why you're chayav for a שור המזיק, because you didn't watch it. So you're responsible, but not that you part of what he did. The Rambam who says that the reason that it is מיתה בידי שמים, according to the Rebbe's ביאור, holds that the reason is because ממונו הזיק, because it's you, it's your money, belongs to you, it's like you killed. Now באמת if you look at Rambam in other cases, it's almost clear in the Rambam. The Rambam starts off by the דינים of a mazik, of a שור שהזיק, the Rambam says like this, \"If your שור was mazik somebody, you are chayav.\" And he says the לשון why? שהרי ממונו הזיק. Because it's your ממון that was mazik. He doesn't say שהרי לא שמר שורו. So we see clearly that the Rambam holds that the reason you're a chayav by mazik is because ממונו הזיק and the היזק you are chayav. מה שאין כן רש״י says that מיתה זו is ממון, doesn't hold that it's because ממונו הזיק, it's לא שמר. The bottom line of these two שיטות is like this: when your when your שור is mazik, are you בעצם חייב or you're בעצם not chayav, you're only chayav for a certain thing, because of a certain reason? If you hold the reason is ממונו הזיק, yeah, just like when you're mazik yourself, you're chayav. This is an extension of you. That's what the Rebbe says, it's an extension of you, so it's like you're chayav. It's like you did it. So that means בעצם, for a שור being mazik, you are chayav, for your שור being mazik, you are chayav. If you learn that the reason is because you didn't watch your שור, it's not because be'etzem you're chayav. When the שור was mazik, it's not you, we don't look at it as as you're you. The שור was mazik, a שור is mazik, why am I chayav that the שור is mazik? Oh, because you didn't watch it, so you happen to be a cause for the שור to be mazik, oh, you're chayav for something that you did not watching the animal. And it's yours, so you could have watched it, but not that what you did. So be'etzem you're not chayav, there's a reason why you're chayav. So

I'm trying to connect this to our case, but yet we're also talking about a mazik, a different type of mazik, a mazik of היזק ראיה. And we're not making you pay after you were mazik, we're making you pay before you were mazik in order to prevent being mazik, making a wall. So just like we said that the Rambam learns by regular היזק, that your if your שור is mazik, you're be'etzem chayav, so I want to say the same thing he learns by היזק ראיה. That the reason you are chayav to make a wall, be'etzem you're chayav to make a wall. There's an עצמותדיקע דין of an היזק here, of you being responsible for the היזק of היזק ראיה, not just that happened to be that you're a mazik. מה שאין כן Rashi who learns over there that the reason you're a chayav is because לא שמר, happened to be you didn't watch it, not because what it did makes you chayav, same thing here, there's no עצמותדיקע דין of preventing the היזק, paying for the wall which is in order to prevent the היזק. It's also It just happens to be that the Chachamim say, you can send you're going to be mazik, you've got to do just like over there, because you're not shomer. Here also, because you can't stop yourself from looking, you're going to be mazik, so pay pay money and make a wall. So we see here how this all goes leshitaso between these two places. So the emes is we see in other places also. Oh, I know it's late. Let's get back to how we answered the first thing how we started. We'll have more we'll get other examples.

How did we start this whole shiur? With the two shitos, the machloket in a case where you have two roofs, and one and they're slanty, and the השתמשות is not so strong. Not so much קביעת תשמישתא. Do you still have to put up a wall, or not? So according to the Rambam, you only put up a wall if it's straight, it's usable, but if it's used very little, you don't have to. According to Tosafot we said, and other Rishonim seems for Rashi also, you have to put up a wall, no matter what, even if it's משופע, even if it's slanty and it's not so usable. What did we say does the Rambam hold? The Rambam hold that the chachamim made an עצמות׳דיקע דין of a wall. Now, if you made an עצמות׳דיקע דין of a wall, that's a big major takanah. See, to make a takanah that if you're mazik you have to pay, or in the case where you can prevent it, you've got to do something, that's not a major takanah. To make a din of a wall, that's a major takanah. So it makes sense that when would the chachamim make such a major takanah? If the hezek is a big hezek. So if it's a wall that if it's a roof that's not so usable, which is a very minimal minimal amount of hezek, why would the chachamim make such takanah that you have to make a wall, a takanah of an עצמות׳דיקע wall? Milah if they're saying בפועל ממש your mazik you've got to good. If you're looking at that, that's also בפועל ממש should be mazik. And this could be the machloket. The Rambam, who goes leshitaso, who says that be'etzem like the case of מעדיף, we said he holds that you got to make a lot, because be'etzem there's a wall. The case by the din of of the guy, he says you've got to block up the windows even though never made up to block the windows when they divided, why, because there's an עצמות׳דיקע דין of היזק ראיה. If there's an עצמות׳דיקע דין the Rambam says, of היזק ראיה, of making a din of a wall is by עצמות׳דיקע דין, that's why in this case the Rambam will be meikil. The Rambam will say if it's an עצמות׳דיקע דין, you've got to know when would Chachamim do it? Chachamim would only do it if it's a real real היזק, then the Chachamim make a if it's a very small amount of היזק, why the Chachamim should go out of their way and make such a תקנה? That's what the Rambam says that if they if it's not usable, you don't have to make a wall. But Tosafos will learn the other way, that the reason why it's not an עצמות׳דיקע דין, it's just a technical thing, so if it's a technicality, you could say a sevara, it's not a מוכרח סברא, but we're trying to explain the sides, a sevara that if it's לפועל you're going to be a היזק, and it's a פועל׳דיקע דין that you've got to prevent a היזק, so you've got to make a wall. So even if it's not so קבוע, if it's even if it's slanty, you still've got to make a wall. So again here, we have another din of the Rambam going לשיטתו. So לפועל we had this more cases in the din of היזק ראיה, but we have one thing is by the מעדיף, one thing is by the חלונות, one thing now is here, whether a slanty wall, you've got to make a wall, or not, which is Here, it's meikil. In normal cases, the Rambam is machmir. You've got to go further. Chumra of היזק ראיה, by the case of the house, you've got to block up your window. It's a chumra. Here, it's the same reason brings out a kula. The kula is that because it's such a chashuve zach, chashuve thing, me-meila it's only when it's a חשוב'ע case, not when it's a little bit. And also also fits to the Rambam שיטה by the regular din of hezek, that it's an עצמות׳דיקע דין that you have to pay for a מניעת היזק. We find the emes in other cases of the Rambam, in other dinim, not along the same also a she'eilah, it looks like it go together, that the Rambam is more נוטה to certain things that there is an עצמות׳דיקע דין to that, and other Rishonim might hold that it's not נוגע to an עצמות׳דיקע דין. And just many examples, I'll give one of something that we're very very familiar with, and that is בנוגע דינא דבר מצרא, which we have learned before a whole a whole sugya here before, and we had all kinds of shiurim on דינא דבר מצרא, that if you have a If you're a If you're If your neighbor If you're selling a field, and you have a neighbor who wants to buy it, he gets first choice. And if someone else, a stranger, bought it, the neighbor, the בר מצרא, kicks him out and takes over the field. And what did we say there is a machloket between, and the way the Rav explains a machloket between Rashi and the Rambam, here's again Rashi and the Rambam. The Rambam says that based The לשון of the Nimukei Yosef, that because you're his neighbor, you have an קצת קנין. You have a little kinyan in your neighbor's field, that he has to give it to you. And according to Rashi, it's only a zechut. You have a first right, that's all. We had all kind of explanations why. And where the Rashi the Rebbe says there in the הערה, the connection of the בר מצרא to that next field is as soon as he moves in. As soon as he becomes a neighbor, he has a certain connection to that field, and therefore he gets it first. The Rebbe brings a נפקא מינה להלכה: is the din of בר מצרא only on the buyer and he has to move out, the stranger buyer, or the seller cannot sell it to a stranger, he must sell it to? Whatever, another all the נפקא מינות. But the nekudah comes out here, a very simple nekudah: according to the Rambam, there's an עצמיות'דיקע connection between the בר מצרא and the field. It's a קצת קנין. In other words, b'etzem it's his. According to Rashi, it's not b'etzem his. According to Rashi, all he has is a zechut, he has nothing to do with that field, that belongs to the other guy. He has a zechut, a right, to buy it. A right means it's not b'emet yours, and you have no עצמיות'דיקע reason, the Chachamim gave because ועשית הישר והטוב the Chachamim gave it. But the Rambam doesn't learn like that. The Rambam would learns that he has a קצת קנין means it it made the דין דרבנן, or even if it's a דין דאורייתא for a בר מצרא, gave you a made an b'etzem you are it's your field, b'etzem you are a shaychus to it. And according to Rashi, not. Then you can find other cases where we find it. Just to

give a small example. Like the Rebbe brings in Likkutei Sichos a machloket between Rashi and the Rambam when it says you're not allowed to, then, in Ketubot, you're not allowed to move out of Bavel. So Rashi says the reason you're not allowed to move out of Bavel because there are yeshivot there. You're going away from a מקום תורה. And the Rambam says no, because it's a pasuk: בבלה יובאו ושמה יהיו, that you got you stay in Bavel, that's all. You can't move out. Nafka mina is, according to Rashi, what happens if there are no yeshivot there? You could move out. According to the Rambam, even if there are no yeshivot, you can't move out because it's What is basically the vort here? This דין, is it an עצמיות'דיקע דין or it happened to be? Is there a זייטיקע reason which makes it happen? According to Rashi, it's a זייטיקע reason. According to Rashi, it's because happened to be yeshivot there. So, according to Rashi, the other way, what happens if another place has yeshivot? You can't move out from there. Checking according to the Rambam, you can't move out from Bavel, nothing to do with yeshivot. So it's a chumra. Even if there's no yeshivot, you can't move out. On the other there's a kula. In another city where there are yeshivot, according to the Rambam you could move out, according to Rashi not. So the difference is: is the connection that a Yid has to Bavel where the Aibershter took be'etzem, or it just happens to be for a certain side reason because of yeshivot? So it could turn out to a kula or chumra, the same like by us. We said here, according to the Rambam be'etzem you have to make a wall. It's a chumra. That's why you have to be מעדיף more. That's why you had close force to close up the windows. But it could turn out a kula also! Because of that, if it's a slanty roof, you takeh don't have to. Over there also. But we see that in many things, whenever there's a she'eilah of something that you have a shaychus to, the Rambam will go that that שייכות עצמי, and according to the to Rashi, many other rishonim, it just happens to be a shaychus, but it's not a שייכות עצמי. So when when you when you mentioned the wall being that it might be an עצם דין to build a wall