This Week's Article

Trees Overhanging the Street

Bava Batra (2:14) | Yisrael Bankier | 6 days ago

The Mishnah (2:14) records a debate regarding a tree whose branches grow out over the public domain. The first opinion is that the branches must be trimmed back so that it does not interfere with the transit of a camel and rider. R' Yehuda however maintains that it is cut back up to the height that does not interfere with a camel carrying a load. The Bartenura explains that R' Yehuda more lenient maintaining that it does not need accommodate a rider since they are able to duck under the branches.

R' Shimon however argues that all the overhanging branches must be cut so that nothing covers the public domain. This is out of concern for tumah. The Bartunera explains that there may be a source of tumat ha'met underneath the tree and the branches will act as an ohel to spread tumah to everything beneath it.

Why do the other opinion not address R' Shimon's concern? The Tifferet Yisrael provides two explanations. The first is that the owner is not considered as directly causing damage in the case of tumat ohel. He adds that it is also not common to find tumat ha'met in the public domain. Consequently, the possibility is remote about which we are not concerned.

A related issue is the question whether structural projections or balconies can extend over the public domain. The question is addressed directly in the Mishnah we will learn in the coming week. The Mishnah (3:8) teaches that one is simply not allowed.

The Rambam (Hilchot Nizkei Mamon 13:24) explains, based on our Mishnah, that one is allowed if the protrusion is above the height of camel along with its rider -- the first opinion in our Mishnah -- provided that it does not make the passageway too dark. In other words, there seems to be no difference between a balcony or branches. The limits are the same.

The Rashba (Shut HaRashba 3:156) however notes that the Mishnah does not provide any height restriction when discussing structural projections. The only solution the Mishnah provides if one wants a balcony, is to ensure his building is inset so the balcony does not hang over the public domain. Consequently a overhanging balcony is not allowed, irrespective of the height.

How do we understand the debate between the Rambam and Rashba?

We noted above that the Tifferet Yisrael understood the debate, at least in his first explanation, whether causing impurity was an issue, is whether it was defined as causing damage. Accordingly, what underpins the restrictions in our Mishnah is whether one's tree would cause damage to travelers. Indeed, much of the perek has been addressing restrictions regarding want one can do in their property due to potential cross boundary damage. Considering that the Rambam discusses the balcony extension in the laws of monetary damage, the same consideration underlies that law also. Consequently, as long as the balcony is high enough, and does not project too far to cause other damage, then it would be permitted.

It is possible that according to the Rashba there is a different consideration. Note that the Mishnah that discusses the balcony is in a different perek. That being that case, perhaps the issue with the balcony is simply that it is occupying public space, which is not justified.

If that is the reason, we can understand a different ruling of the Rashba. The Rashba (Shut 4:111) explains that if the local practice allows the extension of projections, then it would be permitted. "If there is a local practice then everything goes according to it". Indeed, the Shut HaRosh explains that this would be true even below the height of a camel and rider. All this makes sense if the consideration behind the that Mishnah is permissible use of public space, for that would indeed be defined by that accepted local practice.

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