Harm to Neighbors
TOPICS IN HALAKHA
HARM TO NEIGHBORS
Based on a Shiur by Rav Shlomo Levi*
Harm caused to neighbors refer not to damages in the usual sense of the term, but rather to conduct which is seemingly benign that is deemed problematic because of its consequences on a neighbor. An example of this would be planting a tree in ones own property which is near a neighbors cistern, in which case the roots of the tree are liable to weaken the walls of the cistern and cause them to collapse. Of course, chopping down trees in a neighbor's yard or the like would fall under the rubric of ordinary damages which are subject to the laws of damages and are not our present concern. Indeed, a central question to be addressed in this context is whether the laws of harm to neighbors are part of the laws of damages, or whether they are separate ordinances enacted by the Sages to regulate neighborly relations.
This question seems to lie at the root of a disagreement regarding the scope of the laws of harm to neighbors in a mishna in Bava Batra 25b:
A tree must be kept away from a cistern [in a neighbor's field] twenty-five cubits If the cistern was there first, the owner can have the tree cut down on giving compensation. If the tree was there first, he can not have it cut down Rabbi Yose says that even if the pit was there before the tree the owner cannot have the tree cut down, because this one digs in his property, the other plants in his.
The mishna deals with a case where it is possible to resolve the issue between the neighbors. The question is only who is responsible to resolve the problem. Rabbi Yose maintains that the responsibility falls upon the injured party, because the person causing the damage does whatever he does on his own property, and therefore it falls upon the other person to distance himself from the possible damage. The law was decided in accordance with Rabbi Yose.
The Gemara there, in the passage preceding the aforementioned mishna, speaks about a person who set up a ladder in his yard. The ladder causes damage to his neighbor, because the neighbor has a dovecote, and his doves will bump into the ladder and suffer injury. The Gemara concludes that the owner of the ladder is responsible and he must move the ladder. The Gemara objects that surely the law is in accordance with Rabbi Yose who says that it is the injured party who must distance himself from the possible damage. The Gemara answers that even Rabbi Yose agrees in the case of "his own arrows," i.e., Rabbi Yose agrees that in a case of direct damage, the responsibility falls upon the person causing the damage. When he said that the responsibility falls upon the injured party, that was limited to a case of indirect damage. But in this case, it is possible that the moment the person sets up his ladder, he will already cause damage, and therefore it is defined as direct damage.
For example: If a person has a balcony in his apartment, the floor of which is the ceiling of the apartment below him, and the balcony is not appropriately sealed, so that as soon as it begins to rain, water leaks into his downstairs neighbor's apartment who is responsible to resolve the problem?
The Shulchan Arukh in Choshen Mishpat 155:4 rules:
If water goes down from an upper apartment to a lower apartment, causing damage if there is no cement flooring, so that as soon as [the upstairs tenant] pours water, it immediately goes down to the lower apartment and causes damage, he must remove the source of damage. But if there is cement flooring which absorbs the water, so that it does not go down immediately, but only after some time does it go down and cause damage, he is not obligated to remove the source of damage.
The Rema rules in that same section:
It all depends on the circumstances But if rain fell on the upper story and it went down, it falls upon the injured party to see to it that he not suffer damage.
In this case as well, a distinction is made between direct and indirect damage, in accordance with Rabbi Yoses position.
In practice, today, it is presumed that part of the understanding of neighborly coexistence in an apartment building is that each person is responsible for his own area of the building, and therefore the owner of the balcony is obligated to properly seal his area.
WAIVER AND CHAZAKA
In the laws of neighbors, there is a rule that states that if a person regularly used his property in a way that would ordinarily be regarded as a nuisance, and the neighbor knew about it and did not object, the first party acquires a chazaka allowing him to continue that practice. That is to say, the neighbor may not get up one morning and say that this disturbs him, unless he had objected to the other person's behavior from the outset. The assumption is that when the neighbor tolerated the nuisance he waived his right not to be disturbed, and he cannot later retract.
The Gemara notes that there are certain things regarding which there can be no waiver, e.g., a foul smell. What this means is that even if the neighbor did not raise any objections about a foul smell initially, we do not say that presumably he waived his right not to be disturbed by such a smell, but rather the moment he raises an objection, the person causing the smell is required to remove it.
Even if the property is sold, the neighbor who had acquired the right to create a nuisance retains the right to do so even after the sale. This is because one of the conditions of the sale is the right acquired by the other person in that property, and that right cannot be taken away from him by sale to a third party. It should be noted that the reverse does not hold. Namely, the right to perform this type of action is acquired by a specific person, but when he sells the property he cannot transfer that right to the buyer.
THE DAMAGE OF OVERLOOKING (HEZEK REIYA)
There is a major disagreement among the Rishonim whether the damage of overlooking the ability of one person to see what another person is doing on his own property is subject to waiver, or whether it is included among those disturbances that are not subject to waiver, as we saw regarding a foul smell.
The Ramban maintains that damage of this sort is not subject to waiver, whereas the Rosh maintains that if a person waived his right to privacy, he cannot retract.
The Gemara discusses the parameters of the damage of overlooking, and speaks of the severity of the matter. Indeed, the Rema rules that beyond the definitions of what is included in the category of the damage of overlooking and what is not, one is forbidden to gaze upon what is happening in another person's house.
Despite this prohibition, nowadays most houses are built in a way where one can easily look into the adjacent house. As such, since from the moment a person moves into such a house he can see the balcony on his neighbors house from which his neighbor can look into his house. Accordingly, he cannot later argue that the neighbor is guilty of the damage of overlooking, for he knew this from the outset, and he bought the house realizing that this would be the case. But in a case where a person remodels his home and creates a situation involving the damage of overlooking, the neighbor may object in accordance with the laws governing such damage.
THE HALAKHA VERSUS THE LAW
In cases such as the one just described, there is a tension between the halakha and the law (in this case, generally municipal ordinances).
There is a fundamental disagreement whether a person is permitted to demand a right to which he may be entitled by law, but not according to Halakha.
The Bet Yosef in Choshen Mishpat 156 cites the words of the Maharik:
The Maharik in section 191 dealt at length with these laws, stating that that which the Rosh wrote in a responsum that a person may live wherever he wishes, and that the townspeople cannot object it is obvious that he meant to say that the townspeople cannot object by turning to a [Jewish] court. But if the townspeople succeed in obstructing him, whether by way of the [non-Jewish] authority, or in some other way, it is obvious that they are permitted to do so. Only a crooked or obstinate person would argue with this, one who does not know, or understand, and has not reached the stage of issuing rulings.
Yet, the Bet Yosef disagrees with the Maharik:
His words are puzzling in my eyes. How is it permitted for one to overcome the other by way of a [non-Jewish] authority, and not by way of a Jewish court? Even though the Master greatly overstated his case, attacking anybody who disagrees with him, I shall not be deterred by this from writing what appears correct to me, for it is the work of heaven, and there is no favoritism in the matter.
As for the Maharik's position, it may be suggested that if all the townspeople decide that they are all entitled to a certain right, their decision obligates all of them, even though the halakha does not grant them this right. For example, if the local population decides that one must refrain from making noise during certain hours of the day. It is unreasonable to say that one need not heed such an ordinance because it has no halakhic basis. But if the law allows one to do something that is halakhically forbidden, even the Maharik would agree that one is forbidden to do it. For example, if a person was granted permission to build a balcony even if this will cause damage of overlooking to his neighbor. In such a case it is certainly forbidden for the person to build the balcony, because it runs contrary to Halakha.
The Shulchan Arukh in section 156:2 rules:
Regarding a shop in a courtyard, the neighbors can object and say to [the shopkeeper]: We cannot sleep owing to the noise of those coming and going, but rather he must do his work in his shop, but sell in the marketplace. But they cannot object and say: We cannot sleep owing to the noise of your hammer or the noise of your millstones, since he already acquired a chazaka to act in this manner, and they did not object.
The Shulchan Arukh distinguishes between acceptable noise, against which objections cannot be raised, and exceptional noise, against which objections can be raised.
The Rema (ad loc.) rules in the name of the Rivash:
This only applies to healthy people. But if they are sick and the noise is injurious to them, they can object.
The Acharonim discuss this ruling of the Rema, the main objection being that it is ill-defined. It is not clear who precisely is considered a sick person; perhaps an elderly person, or alternatively, an infant, is always considered a sick person, etc.
Regarding this issue, there is a very fundamental and important statement of the Chazon Ish. He argues that the Rema's ruling is limited to a case where refraining from making noise would not interfere with the way the person is using his property. But when making noise is essential to the way he is using his property, he is permitted to make the noise, despite the fact that he is disturbing his sick neighbor.
In any event, to summarize, normal noise that is not considered exceptional is permitted, while unusual noise is forbidden. A person is permitted to raise children in his house, even if they make noise, but he cannot suddenly turn his house into a dormitory that produces substantial noise for the entire neighborhood. Certain types of nuisance are generally accepted today, but Halakha prohibits them, and so they are forbidden, such as the damage of overlooking, a foul smell, and the like.
(Translated by David Strauss)
* Rav Levi did not review this version of the shiur.