Simon Jackson
Legal Advisor to Torah Mitzion

 

The great 13th century Posek, Rabbeinu Asher ben Yechiel (the Rosh), was once asked a question concerning Reuven “who dug a hole in his yard for rainwater to collect, and now a large amount of water has accumulated, which in turn is flowing through the wall of Shimon’s cellar, and is also polluting Shimon’s yard on account of the smell of the water.”

To what extent, if at all, does Reuven need to refrain from digging in his own courtyard? After all, as we saw in our last column, the Mishnah in Bava Batra 2:10 only determined that certain specific enterprises must be kept at a distance of 50 amot [4-5 metres] from a town due to their foul odors.

 

The Rosh’s Responsum

The Rosh proves, in his responsum, based on Talmudic sources, that the requisite distance is such distance as will ensure that his neighbor is not damaged:

Chazal based their estimations on the extent to which each particular activity is likely to cause damage. Where the requisite distance was capable of precise quantification, Chazal stated this; but where it was not known, they simply wrote that it should not cause damage… for the Torah’s ways of ways of pleasantness and all her paths are peace (Proverbs 3:17), and the Torah went out of its way to ensure that a person should not perform any activity in his own domain which causes damage to his neighbor in the process…

All of the Geonim were of one mind on this point, viz. that the implicit can be derived from the explicit, and therefore in case of all activities not expressly detailed in the Talmud, the distance that one needs to keep is such distance as will ensure that one’s neighbour is not damaged… Therefore, if it appears that the water which has accumulated into Reuven’s pit flows into Shimon’s cellar, Reuven must remove the cause of the damage.

And even in relation to the distances stipulated by the Rabbis, the Maharam MiRotenburg states that these distances were set on the basis of the type of building that was prevalent in their times; whereas, with more stable construction work, such distances are no longer relevant.

 

Responsum of Maharam MiRotenburg

Maharam MiRotenburg (Responsa, Siman 690) cites a response given by another Posek to the following question:

My Master: Partners divided up a house. One partner ended up in the part without a toilet and now wants to dig near to his adjoining wall, leaving a distance of 4 amot, while the other partner objects on the grounds that there was never a toilet there in the first place, that the foundations of the building will be weakened, and that the smell is harming him – and that he should therefore dig on the other side.

And he answers:

We hold like Rabbi Yosi, that each party can dig in his own territory. And as I cited in an earlier response, all of the distances were applicable to their own times, when the walls were made of bricks, in the same manner as Rabbeinu Tam held in relation to the required distancing of toilets – that applied only to their toilets, which were open, while ours which are covered require no distancing.

 

The “Zichron Moshe” Regulations (1905)

One way of preventing the spread of bad odors to the public domain is seen in the prohibition imposed on opening the entrance or window to a toilet on to the public domain. A sanction was similarly imposed that if a person transgressed this rule and opened up a toilet on to the public domain – the opening would be closed up at his expense. The regulations enacted for the “Zichron Moshe” neighborhood in 1905 state clearly:

No person may open up the entrance to a pit or entrance to a toilet or the toilet window on to the public domain, and anyone who transgresses this rule shall have the entrance or window that he has created stopped up, at his own expense.

 

Air Pollution

The Mishnah in Masechet Bava Batra (2:8) sets down that a person must “distance a permanent granary [which contains a large volume of grain] a minimum of 50 amot from a city, nor may he make a permanent granary within his property, unless he owns 50 amot of land bordering it in each direction. One must also distance a granary from his neighbor’s saplings, as well as his ploughed field, far enough to ensure that the chaff that flies from the granary does not cause them any damage.”

Rashi (24b) explains that such open-air granaries must be 50 amot away from the city so that the wind-swept chaff should not injure any townspeople or fall on their plants causing them to dry out. From this we can learn that not only is it necessary to distance the granary from the city in order to prevent damage to the residents of the city, but that the distancing must ensure that even the surrounding vegetation sustains no injury!

The same applies to industrial pollution: Someone who beats flax in his own domain, and the chaff is liable to cause damage when blown around by the wind, must distance his activity to ensure that the chaff/dust does not reach his neighbour. “Even if the wind is the agent which causes the damage – he remains duty bound to distance his activity in such a manner that it will not approach or injure his neighbor. This applies even to the common wind – because all such activities come within the category of “his arrows” (i.e. direct damage to one’s neighbour caused by an activity performed within one’s own property)” (Rambam, Hilchot Shecheinim, 11:1).

 

Pleasing Aromas

In contrast to bad odors, Chazal placed tremendous importance on pleasing aromas, to the extent that they even established a separate beracha to be made before someone derives benefit:

From where do we learn that a beracha is made over fragrance? For it is stated: ‘Let every soul praise God’ (Psalms 150:6). What is something from which the soul derives pleasure but not the body? This is the fragrant smell.

Smells do not enter the body in the same tangible form as do food and drink, and are therefore considered (unlike eating) a ‘pleasure of the soul.’ Reiach (smell) and ruach (spirit) may also be interlinked, because sweet fragrances are a spiritual type of pleasure (see Aruch Hashulchan, O.C. 216:1).

 

Next Column: Odor Damage and The Right to Earn a Livelihood – Which Takes Precedence?