Rabbi Yehuda says, “The owner of the attic (the second floor of the building) rebuilds both the first floor and the attic, and lives there until the owner of the first floor pays him for his expenses.”
The mishna teaches about a building with two floors and two owners living there, one owner on each floor. The building falls down and the owner of the attic wants his upper floor dwelling area rebuilt, but the owner of the first floor refuses to rebuild the first floor or agree to pay for its rebuilding. What should the owner of the attic do?
The first opinion in the mishna is that he builds one floor, and lives there until the owner of the bottom floor pays his expenses. Rabbi Yehuda, however, argues that this is problematic since the owner of the attic would need to pay rent for living in the bottom floor once the owner of the bottom floor pays his debt. Therefore, Rabbi Yehuda teaches that the owner of the attic should rebuild both floors and live in the building until the owner of the bottom floor pays his debt. (Since, according to Rabbi Yehuda, the attic is ready for living in, the attic owner is not considered having benefit from living in the building. Therefore, he would not need to pay rent later, and there is no issue of the rent appearing as a ribit (interest) payment. If the attic owner had built only the bottom floor and lived there, he would need to pay rent to the owner of the bottom floor later, and this is the ribit problem that Rabbi Yehuda avoids with his solution in the mishna.)
The Nimukei Yosef asks a seemingly basic question on our mishna. Why does the attic owner need to pay for rebuilding the dwelling, instead of Beit Din forcing the bottom floor owner to rebuild his part of the building, or pay for building it? He has an obligation to the attic owner, according to the terms of their arrangement, to provide a first floor of the building in order to allow for the existence of the attic owner’s second floor. This question is also asked in the Talmud Yerushalmi.
The answer given in the Yerushalmi is that the owner of the bottom floor has gone far away and is not present to collect from. And even if he has assets here that Beit Din could take for the rebuilding, they do not do so. This is in accordance with the ruling in the case of a run-away borrower, in which case Beit Din does not collect from his property without his being present. (see Ketuvot 88a) This is also the approach of the Ramban to answer the Nimukei Yosef’s question.
The Rashba, however, states that the halacha is that in the case of a borrower who has gone without paying his loan, the Beit Din may in fact seize his assets without him present, as is the ruling of Rav Nachman in Masechet Ketuvot. This is due to a Rabbinical decree that allows collection for the lender, even in the absence of the borrower, so that people won’t borrow and run away, thinking that their assets are safe. Now, since Beit Din may in fact collect from the bottom floor’s owner’s assets if he is not present, why don’t they do so instead of requiring the attic’s owner to rebuild the structure and hope he gets repaid one day by the owner of the bottom floor?
The Rashba answers that the owner of the bottom floor never really had a “personal obligation” (shibud haguf) to provide a bottom floor for the attic owner to dwell on. Rather, only his bottom floor structure was “obligated” (shibud habayit) to serve the attic owner. But if it fell, its owner has no obligation to replace it. This is why the mishna teaches that the attic owner would need to rebuild it himself if he wants to live there. (See Tosefot Yom Tov who discusses the issues in this mishna at length, and also offers his own fascinating explanation to resolve why the Ramban says that Beit Din cannot collect from the bottom floor owner’s assets in his absence, despite the halacha being that Beit Din can indeed collect from an absent borrower’s assets. He suggests that the case of a loan is different than the case in our mishna. For a loan, by allowing collection from borrowers’ assets even in their absence, lenders will be more assured of being able to collect loans, and will not refrain from fulfilling the mitzvah of lending and helping the needy.)
- Bava Metzia 117 a