Shabbat Parashat Ki Tisa 5772

P'ninat Mishpat: School Recess that Disturbs Neighbors – part II

Case:   A Talmud Torah (elementary school that focuses on Torah studies) (=def) has been operating, from the beginning of the year, in an apartment building, which shares a large play area together with another apartment building. The plaintiffs (=pl) are neighbors who do not object to the presence of def but to the “unbearable noise” made during recess, when the children play in the outside play area. This is especially troublesome for one of pl, who is on maternity leave and needs the morning for catching up on sleep and regaining strength. Pl demand that the children go to some public playground for recess. Def says that it is not feasible to go to another playground, primarily because it would take extra time and would include crossing streets to get there. Since the halacha is that they are allowed to operate wherever they desire, this must include the ability to give normal recesses to the children, without which it is impossible for them to learn.

Ruling:  [Last time, we saw that the school has a right to continue to function even if will cause discomfort for neighbors, including new mothers.]

These days in Israel, municipalities, not individuals, are responsible to supply facilities for schools in public locations. When a school’s location (e.g., in an apartment building) causes a nuisance to its neighbors, it is also not healthy for the school, considering their need to mitigate the issue. Therefore, a ruling that facilitates the school’s ability to remain in its current location is even bad for the school.

The use of the joint, outdoor play area is particularly problematic for the following reasons. Regarding noise one makes within his own home, he is using his own private area, and the question is just of damage to others. In contrast, when one uses an area shared by neighbors, one may only make use that is appropriate in such cases. When he oversteps his bounds, neighbors can curtail his usage (Shulchan Aruch, Choshen Mishpat 161:5). While the existence of a school in a residential area includes usage of joint areas by increased traffic, this likely does not apply to extended use of the play area during recesses. The Rambam and Shulchan Aruch speak of one “teaching within his home.”

The Levush (CM 156:3, cited in Pitchei Teshuva 156:2) says that when two people own living quarters jointly, one of the partners may not operate a school without the other’s permission. This is because Chazal’s institution on behalf of Torah study did not allow for situations which normal people would not have accepted when entering a partnership unless special acceptance was obtained. Although the Levush’s situation (within someone’s apartment) is much more extreme, one learns that a school cannot impose all levels of nuisance.

Beit din realizes that it is hard to set clear guidelines according to strict law, and focused on finding a balanced compromise. After discussing the particulars with the sides, beit din allows def’s use of the play area for a full recess, only twice a week, on set days, and only until the end of the present school year.

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