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[This summary does not explore all elements of the ruling.]
Ruling:There are two possible reasons for def to be obligated to share in building expenses. The first is based on agreement, but that does not apply in this case. Although they planned to build together, there was never a commitment to do so, nor was there a serious discussion about apportioning expenses. Pl thus had no ability or right to force def to build with them.
The second possibility is based on the concept that one who benefits due to his counterpart has to pay for the benefit unless it is waived. If one built a wall between his and his neighbor’s properties higher than halacha requires, the neighbor has to chip in toward the extra building if he built his other walls to this height (Bava Batra 5a).
Acharonim ask why when he shows that he enjoyed the building, he is obligated, in light of the halacha that when one takes benefit from another party who does not lose as a result, the one who benefits does not have to pay (see Bava Kama 20b). The K’tzot Hachohen (158:6) explains that when the neighbor shows he likes the wall, he turns into a partner in the wall, and then he is obligated to pay as one who so-to-speak bought part of the builder’s wall. The Maharam MiRotenberg (IV:685) that the halacha that one who benefits does not have to pay is only when his presence is beneficial for the person who provided the benefit. Otherwise, there is a natural obligation to pay for the benefit.
According to the latter opinion, while having a second floor on top of pl’s extension protects pl’s rooms from leaks and cold, overall most people prefer to not have neighbors on top of their heads. Therefore, it is likely that the Maharam would require payment.
[We will continue from here next time.]
P'ninat Mishpat (829)
Various Rabbis
257 - Responsibility for a Failed Joint Investment – part II
258 - Sharing in Building Expenses When One Did Not Directly Benefit – part I
259 - Sharing in Building Expenses When One Did Not Directly Benefit – part II
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Kuzari -Rabbi Ari Shvat Kuzari class 8- "Answering Questions on the Kuzari's Proof from Mass Revelation
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