Legal Advisor to Torah Mitzion
In an earlier column on “Smoking and the Hypersensitive,” we cited the Talmudic case of Rav Yosef (Bava Batra 23a). Rav Yosef was a highly sensitive individual who could not bear the thought of eating dates which had become bloodstained by the indirect acts of bloodletters who were drawing blood in their adjoining property, and who then shooed away the ravens that were attracted to the blood – who in turn then flew into the branches of Rav Yosef’s palm trees and smeared his dates with the blood.
Even though he had not protested to the bloodletters over the previous 3 years about the croaking of the ravens and the ‘damage’ that was being caused to his dates, Rav Yosef argued that just as there is no chazakah for smoke or a toilet (to which a neighbor would never relinquish his right to object), there could be no chazakah for bloodletting under his palm trees, for “since I am sensitive, these [noises/damages] are like smoke or a toilet to me.”
Similar to smoke and foul odors, noise too is thus classified as extreme, and those responsible for such nuisances are not permitted to claim “unchallenged practice” in their defense. In such instances, the injured party’s failure to protest does not establish the perpetrator’s right to continue his offensive practice. Since the damage in these cases is to the injured party himself – not to his property – and causes him to suffer, the Halacha presumes that he never waives his right to restrain the perpetrator. In future columns, we shall see that a similar principle operates for aesthetic values of the city, where residents do not have the power to waive enforcement of ordinances protecting aesthetic standards.
Why are smoke, smells and noise different from other kinds of damage? Because it is hard for a person to endure these, and we presume that the neighbour who suffers the damage has not waived his right to prohibit them inasmuch as he is subjected to persistent suffering. But if he has bound himself by a kinyan (i.e. he sold the rights to perpetuate the existing nuisance to the perpetrator of the nuisance using a Halachic symbol of sale), he is then deemed to have waived his right in this manner and he cannot then retract even in case of those damages (ibid. 11:4)
From the story of the bloodletters, we can learn one further important principle, viz. that a person can be held responsible not only for causing direct damage to the environment, but also for creating circumstances that lead to damage. So, for instance, even if a person makes no noise himself, but rather creates a situation that causes noise to be produced, he can be restrained. Moreover, even where compensation cannot be had (as with Rav Yosef), because the damage is merely incidental and indirect, the person who creates the circumstances that cause the damage can be compelled to desist.
Noisy School Children
Earlier, we explained that where a given profession which includes noisy work was already in the neighborhood, while the residents have foregone their right of protest regarding that profession, they can still at any time complain because of the noise of customers entering their common territory. However, this perpetual right to protest has an intriguing exception: it does not apply to Torah teachers, i.e. the residents have no right of protest that the sound of the children studying [or the dirt or bother] disturbs them and that they cannot sleep on its account!
In citing this Halacha, the Rambam (ibid.) seems to compare the “right” of anyone to set up school in the courtyard to the “right” of an artisan to stay put, even if the neighbors complain about the noise of his hammering, since he had been there for a while and they didn’t protest. That comparison is odd, unless we explain as follows: Just as you lose your right to protest when the artisan has been working there for a significant time, similarly you never had a right of protest against the Torah-teaching, since that was mandated.
The Shulchan Aruch expands the law that permits the noise of school children learning Torah to “any other Mitzvah-related matters” (C.M. 156:3). Nonetheless, in cases of excessive noise, e.g. if there is more than one teacher (Rashi, “besofer mata”) or where are there over 50 children in one class (Ramban, “besafra demata”), the Gemara rules (Bava Batra 21a) that a courtyard resident can block the teaching of children.
Precautions that must be taken to avoid damaging a neighbor’s brick wall
The Mishna (Bava Batra 2:1) rules that a mill (which causes the surrounding ground to vibrate when it revolves) and an oven (whose heat is damaging to a wall) must be distanced at least three tefachim from the wall of one’s neighbor. However, in the case of a large millstone, the Shulchan Aruch rules (C.M. 145:7) that “a greater distance must be left… and similarly in case of other types of damage, such as a weaver who damages his neighbour with the blows that he performs at the time of weaving – in such a case the distance must be assessed by a panel of experts and craftsmen.”
In the bye-laws for the “Meah Shearim” neighborhood in Jerusalem, which was established in 1874, noise, smoke or ground movement is only permitted with the consent of the neighbors and the Neighborhood Board:
“Everyone is under an obligation to watch what he does, even in the privacy of his own home, to ensure that he dos not cause any damage or distress to his fellow and his neighbour, both near and far, even against excessive noise, smoke or ground movement, and even if the immediate neighbors voice no objection, those further away can protest his conduct… and may good and peaceful neighbourly relations reign between them… and no one has permission to open a cowshed or sheep pens, even in his own house and yard, without the permission of the Board…”