Hezek Re'iya (Part 1)
The first two perakim (chapters) of Bava Batra address ordinances which govern neighborly relations. The second perek provides an extensive list of activities which must be conducted at a safe distance from a neighboring property, as well as those which are not allowed to be undertaken at all. The list of regulations includes activities which cause ecological damage, generate disproportionate noise, or seriously inconvenience a neighbor. The first perek highlights one particular proscribed activity: gazing upon a neighbor while the latter performs any personal or private affairs. The ordinance against this potential damage - known as hezek re'iya - stems from a pasuk in Parashat Balak where the heathen prophet marveled at the codes of privacy to which the Jewish nation adhered under the challenging conditions of desert travel. He exclaimed "Ma tovu ohalekha Yaakov" ("How goodly are thy tents, O Jacob" Bemidbar 24:5) thus reinforcing the importance of privacy laws.
The gemara records some debate as to whether 'gazing' is considered hezek (damage) and should be legislated against. Ultimately most Rishonim rule that it is indeed considered hezek and must be avoided. The principal effect of this ruling is an obligation upon neighbors to build a wall separating their courtyards.
Are we to take this gemara literally? Should we consider 'gazing' as an actual damage akin to physical forms of damage? Even though no physical impact occurs, perhaps there are consequences similar to physical damage. Two examples of such consequences of hezek re'iya are ayin hara (an evil eye - mentioned in the gemara 2b in a different but related context and whose existence was hotly debated by Rishonim) and 'embarrassment' (a component in determining compensation for injuries).
Alternatively, we might claim that hezek re'iya cannot possibly be equated to classic forms of damage due to the absence of any real material impact. The obligation to build a wall stems instead from general municipal responsibilities which all populations share. For example, the mishna (7b) lists the various expenses which all members of a shared courtyard must bear - the gate, the gate-keeper and the wall between themselves and the public streets. The responsibility of sharing these costs does not emerge from the damaging impact of one neighbor upon another. In fact, the members of the courtyard share potential vulnerabilities to BEING damaged by the public and they must therefore share the burden of eliminating these dangers. They are obligated by halakhically approved codes which each and every population unit has the authority to establish for the common good of that entity. Could this concept underlie the responsibility to erect a wall? Halakha may not deem 'gazing' as an actual damage but might consider it important enough to allow the establishment of 'neighborly laws' to obligate the construction of divider walls.
A signature machloket may reflect these two approaches. All neighborly restrictions may be suspended if one neighbor repeatedly performed activities without active protest from the other neighbor. These established rights are known as chezkat tashmishin. Would chezkat tashmishin be attainable for gazing rights? If a person continued to gaze upon a neighbor would the victim be able to halt this activity? The Ramban, in his comments to Bava Batra (59b), elaborates upon the position of the Rif who absolutely denies this prospect. As the Ramban stresses, hezek re'iya is a real substantive hezek similar to physical bodily damage. No chazakot can be acquired for physical damage; if a person repeatedly inflicts harm upon another person or his possessions, he may not continue with impunity. Evidently, the Ramban took hezek re'iya LITERALLY as a form of damage and denied the possibility of chazaka.
By contrast, the Rosh lodges a claim which can only be understood if hezek re'iya is not ACTUAL damage and the construction of a wall is merely a municipal ordinance. He claims that if a neighbor unilaterally waives his rights to privacy, the other neighbors are excused from constructing a wall. This position is striking and suggests that he does not actually view gazing as real damage. If gazing is an actual damage and a person were to waive his rights to be protected, his counterpart would not be permitted to gaze. The very notion that a victim can waive his privacy rights suggests that compromising privacy is not regarded by halakha as a substantive damage.
The Rosh employs language which leaves little doubt to his position. The neighbors basically have monetary obligations to each other and any monetary obligation (such as a debt) may be waived. Interestingly, nowhere does the gemara establish a monetary debt for each neighbor. It merely asserts their role in damaging each other and compels them to alleviate this situation. They possess an OBLIGATION not a monetary DEBT. Evidently, the Rosh believed that building a wall is part of a larger system of taxation for public needs. In his eyes, municipal taxation (when generated through recognized public bodies) creates monetary debt!
An astounding position of Rabbenu Yona appears to agree with the Rosh. The mishna acknowledges the local customs in determining the quality of the wall to be erected. Even though lesser walls would protect privacy, each neighbor is obligated to abide by local standards in contributing to a wall which may be more expensive that he would personally choose. Rabbenu Yona claims that in a city which does not demand divider walls, the neighbors are excused from this obligation. How can an errant local custom override a halakhic norm? Evidently Rabbenu Yona also viewed the obligation to build a wall as stemming from halakhically empowered local civic ordinances. If the local zoning code does not demand divider walls, no obligation exists.