Translation:Shulchan Aruch/Choshen Mishpat/157

Paragraph 1- In the case of a courtyard-partnership that is legally meant to be divided, or if the parties agreed to divide it even though it was not required, each partner has the right force the other to build a wall in middle so that one partner cannot see the other while he is using his portion. Even if the courtyard existed this way for many years without a wall, each partner can force the other to create a wall at any time. Even if there was a city custom not to build a wall, we would not follow the custom and one partner can force the other. Even if one of the partners claimed he obtained rights to the courtyard without a wall and that the other partner waived his right, it would not be effective unless there were witnesses that they waived rights to each other on the damage-by-sight, in which case they would no longer be able to object.

Paragraph 2- In a situation where no division is required but the partners wanted to divide, each party can retract even if they made a kinyan, because it is a kinyan on words. If each one chose his side and one partner wanted such side and the other wanted the other side and they made a kinyan, however, they would not be able to retract. Similarly, if each one went and took possession of his portion, neither of them can retract, even if they did not make a kinyan from each other. There are those who say that even where one took possession outside the presence of another and the other did not tell him “go, take possession and acquire,” and even if only one party took possession, the other party has acquired his portion as well. See later in Siman 171 for the laws regarding locations in a synagogue.

Paragraph 3- The aforementioned wall should be built on both of their properties, at the expense of both of them. Neither party can say he only agreed to divide with the condition that the other build it himself, even if it is not a courtyard legally intended to be divided. Even if one party has the double the size of the other, they would split the wall evenly. If one party was wealthy and the other was poor and one wants to build on his own property he may do so, just like a case of a house and an upper story. See above Siman 164. If both parties are poor they can use the courtyard as is but each one must distance as much as possible so as not to damage the other by sight.

Paragraph 4- The width of the wall is dependent on the local custom of partners when they divide courtyards, even if the custom is to create a partition of reeds and branches, so long as there is no airspace where one can gaze and see into the other’s property. If the custom is something inferior to reeds and branches, there are those who say we would not follow local custom. If there is no known custom in the city, they should make a wall that the judges view as appropriate based on expert opinion. If the partners made a kinyan from each other to build a wall, they cannot retract because a kinyan to build does not qualify as a kinyan on words. There are those who disagree with this. If the custom is to make a low-quality wall and one party offers to make it all stone in his own property or in the reverse case, there are those who say that the other party can object and they must follow the custom. There are those who disagree.

Paragraph 5- If the wall fell at a later time, the area and stones belong to both of them. Even if the stones fell into one of their properties or one of the partners cleaned up the debris into his property and claims the other sold or gifted the stones to him, he would not be believed. Rather, they are considered to be in both of the properties until one brings proof otherwise. There are those who say this only applies where it is evident that these stones came from this wall.

Paragraph 6- If a wall between two partners fell and the parties are dividing the stones, and more expensive stones are on one partners’ sides and he wants to keep those, we would not listen to him.

Paragraph 7- If the courtyard does not have the legal status of one intended to be divided and one party only agreed to divide if the other built the entire thing, there is no solution other than with a document or if the building party creates a roof and plastering or if there a windows on his side and it is clear that it was made at the time the wall was built. There are those who say that a lip on the other’s property is effective as well. According to all views, a lip would be effective above four amos where one party cannot force the other to join. If the city has a specific custom to guard their walls against fraudsters, they should follow that custom.

Paragraph 8- If there was a wall in a partnership-courtyard and one partner claims he built it himself and the other said he assisted in building, he is presumed to have assisted. Even if it is known that one partner built it and he asks the other to pay him back his portion and such other partner says he already paid, he would be believed with a heses oath. Even if he claims he paid back before construction was completed and even if there are witnesses that the building party made a claim on the other to assist and he did not want to, he would be believed to say he paid later, unless the building party can bring witnesses that the other party was with him in such and such place from the day construction began and they know he did not pay back, or if witnesses testified that the building party brought the other party to court to assist in construction, the court instructed him to assist and he refused to comply with the court’s instructions.

Paragraph 9- If one of the partners wanted to raise the wall higher than four amos, the other may stop him and say half the area of the wall belongs to me and I don’t want to detract from the airspace because I want to use the half of the airspace that is mine, unless there is a city custom to the contrary. On his own portion, however, one can build whatever he wants. There are those who say that the other cannot stop him and the building party can raise the wall and pay the other the amount the wall decreases in value because of its heaviness.

Paragraph 10- If the wall of a courtyard that separated between two partners fell, each one can force the other to rebuild it up to four amos high. If one party wanted to build higher than four amos, we would not require the other to pay his share of the amount over four amos unless he were to build another high wall opposite or adjacent to this wall, in which case we would require him to pay his portion of the height corresponding to his wall. How so? If one party built the wall between them and raised it to 10 amos, and the other comes and builds a wall opposite or adjacent to it and raised that wall to six amos, we would require him to pay his portion of two amos that he added to the four amos because it is apparent from his actions that he wanted it. Similarly, if he carved out a spot on the top of the wall between them to place beams, or if he leaned a large beam on the top of the wall, we would require him to give his portion of the entire six amos his partner added over the four amos, even though he did not build the entire wall, because he has shown that he wants the entire height. The same applies along the length of the wall. If he placed a stone going in and a stone going out as people ordinarily do when adding on to walls, he would be required to pay his share of the entire amount his partner added. The same is true if there already was a wall and he built something indicating that he wants what his partner did. Similarly, if he benefited from what was built, even if he did not do anything at all showing he wanted it, he would be required to give based on the amount he benefited.

Paragraph 11- If the party that built the wall higher brings a claim against his partner to pay his share of the expenses on the amount over four amos because his partner made a wall opposite or adjacent to the high wall, and the partner says he paid, he would not be believed. Rather, the building party would swear while grasping a holy item that his partner did not pay him anything, and he would collect, unless the partner could bring proof that he paid. If he built him a permanent building, however, he would be believed to say he paid his share.

Paragraph 12- When is this true? When we know with witnesses that this plaintiff built the entire wall. If we do not know, however, it is in the possession of both parties. If the defendant admits to the plaintiff that he built it but claims he paid back, he would be believed with a migu that had he wanted he could have said I built it with you. There are those who say that if he agreed originally to a high wall, he would be believed to say he gave his portion. As soon as the party says he will pay half the expenses he has acquired half the wall, the other party cannot object and we would require him to pay.

Paragraph 13- If a wall between the courtyards of two partners fell and the wall was originally wide but one of the partners is preventing the other from rebuilding it as wide as it was and instead wants it to be like the other walls in the country between two courtyards, such partner is in the right. Similarly, if the wall was higher than four amos and one of the partners does not want to assist to raise the wall higher than four amos, such partner is in the right.