Translation:Shulchan Aruch/Choshen Mishpat/158

Paragraph 1- If two parties were partners in a garden and come to divide, we require they create a fence between them, even in a standard case where there is no known custom. In the case of a standard valley, however, we would not require a fence, unless there was a known custom to build a fence.

Paragraph 2- If one sells a garden to another without specification, and the garden was mixed together with other gardens, there are those who say that we force the buyer to build a wall between them, even in a place where the custom is not to build a fence around gardens. There are those who disagree and hold that we always follow the custom just as we would in the case of two partners. This seems to me to be the primary view.

Paragraph 3- The size of the fence for a garden or valley is 10 tefachim. There are those who say it is four amos.

Paragraph 4- If one partner wanted to create a fence for a valley, he will build on his own property and he will build a lip of approximately an amah of cement on the outside- the same rules would apply if they used one of the signs mentioned earlier in 157:7- in order to show that the wall belongs to him. Thus, if the wall fell, the area and the stones would belong to him. If they both agreed to build the wall, they build it in middle and make a lip on each side. Thus, if the wall were to fall, the area and stones would belong to both of them.

Paragraph 5- If both parties made the wall but neither made a sign, there are those who say that even if the wall fell into one of the properties, the wall is assumed to belong to both. There are others who say that if it falls into one of their properties, it would belong to such party.

Paragraph 6- If someone owned ruins between ruins of another, and such other party went ahead and built on the first, second and third sides, resulting in his ruins being surrounded on three sides, we would not require the surrounding party to pay any expenses because the other party did not benefit him at all. His ruins are still open to the public domain as it was before. Therefore, if he created a fourth wall so that his ruins are now surrounded by a fence, we put the entire wall on him and he must pay half the expenses that were spent on all four walls up until four amos. If the party fenced in two sides, and the surrounded party put a fence on the third side but the fourth side is still open, it seems to me that he would not be required to pay anything until one of them fences in the fourth side. This applies so long as the area of the wall belonged to both parties. If the wall that was built belonged solely to the builder and was on his portion, we would only require the other party to pay a small amount as the judges see fit because such party is unable to use the walls. Similarly, if the surrounded party himself builds the fourth wall, he has revealed to us his desires, and he must pay half the expenses of the other three walls so long as the wall belonged to both of them. This is all in a case where he made a fence between himself and the other party. If he made a fence between himself and the outside, but the area to the other party is still open and it is in a place where the custom is to build a fence, however, the surrounded party does not have to pay anything, even where the party built around all four sides. If the surrounded party built one of the sides, however, he has revealed to us his desires and would be required to pay based on the amount his garden creates a larger circumference to build around.

Paragraph 7- This that we require the surrounded party to pay for the all the walls is only where the fourth fence was a bona-fide construction, regardless of whether the surrounding party or surrounded party built it. If the fourth fence was built with reeds, however, the surrounded party would only be required to pay for the cost of the reeds.

Paragraph 8- If the surrounding party is unable to demonstrate how much he spent, he would take a biblical-like oath and collect because he spent the money with permission. If he says to appraise the cost at the lowest appraisal and he will collect without an oath, we would listen to him. With respect to the surrounded party claiming he paid, he is not believed to say he paid until he brings proof.

Paragraph 9- If the surrounded party originally said he is not giving anything because he is comfortable with a security system of a zuz, which is a thorn fence, he would only have to pay the one zuz for security, even if he only said it after the third side was fenced in because he said it before the fourth side was fenced in.