- Questions about the tenant’s right to move to the lower apartment
The Mishnah taught that if a rented upper story collapses, the tenant may move into the landlord’s lower apartment. Rebbe Abba bar Mamel asked three questions about this right: (1) Does the tenant live there himself, as he originally did (and the landlord must leave), or do they live there together, because the landlord can say אדעתא לאפקינן לא אגרי לך – “I did not rent the upper story to you with the intent to be able to evict me!” (2) Assuming they share the apartment, can the tenant use the ground-floor entrance, or must he use his former entrance to the upper apartment, and then descend into the lower apartment? Perhaps the tenant can argue, “Although I originally agreed to make an ascent into my apartment, עלייה וירידה לא קבילי עלאי – I did not accept to make an ascent and descent to enter my apartment!” (3) Assuming the tenant can make this argument, what if there are three stories, and the rented second story collapsed? Can the tenant be required to move into the third story, since he agreed to “an ascent,” or is not he not required to make two ascents? This question is left unresolved.
- Floor plaster deteriorated,
The Gemara relates an incident about two people living on two stories, where the plaster of the upper story deteriorated, so that when the upper resident washed his hands, the water would flow to the lower story and damage property there. Rebbe Chiya bar Abba said the upper resident must fix the plaster, but Rebbe Chiya son of Rebbe Yose said the lower resident must fix it. The Gemara explains that the first opinion holds על המזיק להרחיק את עצמו מן הניזק – it is the damager’s responsibility to distance himself from [the property] being damaged, so he must repair the plaster to avoid damaging. The second opinion holds it is the ניזק’s responsibility to avoid the damage, so he fixes the plaster.
The Gemara suggests this is the machlokes in our Mishnah between the Tanna Kamma and Rebbe Yose about whose responsibility it is to provide plaster when repairing a ceiling but proves from elsewhere that they hold the opposite positions regarding the above question, and so explains the Mishnah differently. Although Rebbe Yose agrees that a מזיק must prevent damage which is "גירי דיליה" – his arrows, i.e., direct damages, this case was where the water stopped in the upper floor before leaking into the lower floor.
- An upper owner rebuilding and living in the lower apartment if the lower owner refuses to rebuild
The next Mishnah states that if a two-story building owned by two people collapsed, and the lower owner refuses to rebuild the lower apartment, the upper owner may build the lower apartment, ודר בתוכה – and he may live in it, עד שיתן לו את יציאותיו – until [the lower owner] pays him his expenses. Rebbe Yehudah objects: אף זה דר בתוך של חבירו – even this is a case of one living in his fellow’s property, צריך להעלות לו שכר – and therefore must pay him rent, since he is benefiting from it. Rather, the upper owner builds both stories, and then may live in the lower story until his expenses are paid (since he no longer benefits by living there). Rebbe Yochanan said that this is one of three places where Rebbe Yehudah ruled אסור לאדם שיהנה מממון חבירו – it is forbidden for a person to benefit from his fellow’s property without permission. However, all three proofs are deflected, including our Mishnah, where his ruling may be because of שחרוריתא – blackening of the new walls due to his living there, causing its owner a loss.
