R. Yossi’s “Residential” Restrictions (Giri)

The second perek of Bava Batra lists various limitations that apply to residences. Certain activities that inconvenience or slightly damage a neighbor are proscribed. In some cases, the activity is forbidden; in others, certain measures must be taken to protect the interests of the neighbor (such as distancing damaging activities or insulating against noxious fumes). These laws –commonly referred to as harchakat shekheinim – may be Biblical (as Rabbenu Chananel concludes in his comments to Sanhedrin 7b) or Rabbinic (as the absence of concrete sources may indicate). Either way the “inconveniencing" of the neighbor is not direct enough or impactful enough to be considered a classic form of mazik. If it were, payments would be obligated and, more importantly, the mishna would not have enumerated these specific situations, as any activities that meet the parameters of mazik are forbidden and actionable.

            These cases are not classic mazik situations in part because the damage is delayed, in part because it is indirect, and in part because the damages are not caused by something tangible owned by the damager; many of the damages are caused by fumes and smells. Despite the fact that no act of mazik has occurred, the unique laws of shekheinim (residential ordinances) mandate distance and isolation, and in some cases complete abstinence.

Although the Rabbanan adopt this stance, R. Yossi argues. The mishna in Bava Batra (25b) cites distance restrictions governing the planting of trees proximate to wells and cisterns, as the roots can potentially weaken the ground and collapse the walls of the well. R. Yossi argues that "each neighbor may independently act within his own property," effectively allowing the trees to be planted regardless of their potential harmful impact. As the gemara oftentimes comments, "al ha-nizak le-harchik et atzmo" – the potential victim has no legal recourse other than unilaterally distancing himself from the potential damage.

Despite R. Yossi's rejection, there is a scenario in which even R. Yossi forces the “damager” to change his behavior. The mishna in Bava Batra (22b) prohibits placing a ladder alongside the chicken coop of a neighbor, lest a cat climb the ladder, enter the coop, and damage a chicken. The gemara asserts that even R. Yossi, who rarely limits residential activities, would prohibit this ladder positioning, since R. Yossi concedes to the restrictions in “giri” cases. The word giri literally means “arrows” and evidently refers to damages that are direct and immediate.

What is unclear from the gemara is WHY R. Yossi agrees to limit and regulate giri cases. Did he adopt a shekheinim limitation but simply limit it to fewer cases – that is, only the ones which match the giri criteria? Or does R. Yossi entirely reject shekheinim laws (as is implicit in his very liberal policy allowing most activities) but still prohibit giri activities because those are actual cases of MAZIK? Shooting an actual arrow would constitute classic adam ha-mazik; similarly, giri cases of direct and immediate residential damage should be classified as adam ha-mazik. Thus, R. Yossi could theoretically completely reject shekheinim limitations but still prohibit a neighbor from activities that would be considered mazik.

Perhaps the scope of giri reflects whether giri limitations are driven by shekheinim laws or mazik laws according to R. Yossi. What does it take for a scenario to be considered giri and therefore enforceable even according to R. Yossi? The simple reading of the "ladder" gemara implies that damages that occur IMMEDIATELY are considered "giri." Since a cat could potentially scale the ladder into the coop WHILE the ladder is being positioned, the damage is considered instantaneous, and even R. Yossi would demand protection. However, a different gemara suggests that immediacy does not generate giri, but rather DIRECT execution by the person. The gemara (26a) discusses a situation in which people who were processing flax caused breathing problems for those who inhaled the circulating chaff. The gemara allows this, as it does not conform to giri criteria; since the WIND carries the chaff and it isn’t projected DIRECTLY by the person, it isn’t giri and the behavior needn’t be changed. Immediate damage would not be considered giri; damages directly powered by the mazik (as arrows are) would be.

Interestingly, Rashi, in his comments to the ladder scenario (22b Bava Batra), defines giri based on the parameters of “kocho” (directly powered damage). Even though the ladder would not typically seem to be a kocho case, Rashi demands this condition.

Presumably, immediacy would be sufficient to create an instance of a residential violation that even R. Yossi would proscribe. Gradual fume-damage or slow, evolving deterioration of land would not entail sufficient residential infraction to create adjustment. Immediate damages, in contrast, are unallowable, and even R. Yossi would limit them.  Therefore, if immediacy is sufficient to render a case as “giri,” it would be prohibited as an extreme form of shekheinim violation.

However, if R. Yossi completely rejects residential or shekheinim based concerns and only limits actual cases of mazik, immediacy would not be sufficient to render something an act of hezek. Only situations in which a person directly powered the damage (kocho) would be considered adam ha-mazik and enforceable according to R. Yossi. Ultimately, the criterion for inclusion within the category of giri should and does reflect the nature of this category.

Of course, the clearest indicator that giri may actually be considered real mazik would be the prospect of reimbursement. In the limited cases of giri, would a mazik who did not adjust/distance/insulate be obligated to pay? There is scant discussion about this issue, but comments of the Ritva in his explanation of 22b are suggestive that payment would be demanded. This would clearly reflect that the unique giri cases are problematic not because R. Yossi admits to severe shekheinim situations, but because these cases are considered actual mazik.

A final indicator as to R. Yossi's position may emerge from a debate as to whether PUBLIC damages are proscribed even WITHOUT giri characteristics. The mishna in Bava Batra (25b) discusses distancing a goren (grain collection and processing) sites from a city. Without question, damages from this grain processing do not constitute giri and should not be actionable according to R. Yossi. In fact, Tosafot (comments to 26a) concurs that R. Yossi would reject this rule and allow grain processing in close proximity to cities.

The Ra'avan, however (in the very first siman of his sefer), claims that public damages are to be limited according to R. Yossi EVEN if they are not classic giri. R. Yossi would force this grain processing to be monitored even though its damages are not direct or immediate because they affect the larger population. In effect, the Ra'avan establishes a companion limitation to giri. R. Yossi's limited set of restrictions includes cases of giri as well as cases of public damage. Does this indicate the giri restriction is based on shekheinim laws and not mazik? If giri were mazik and ONLY mazik circumstances are cause for restriction, the absence of giri would disqualify mazik identification regardless of the SCOPE of impact. An activity which is structurally not direct/immediate enough to be mazik (lacking giri qualities) cannot be considered mazik simply because it affects more people! However, if giri is restricted because it violated shekheinim laws, presumably the more broad the impact, the more likely the residential-based restrictions, even if the activity is STRUCTURALLY less assaulting of others.