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Shabbat Parashat Naso 5772

P'ninat Mishpat: Misplaced Window? part I

(condensed from Hemdat Mishpat, rulings of the Eretz Hemdah-Gazit Rabbinical Courts)

Case:   The plaintiff (=pl) is a shul that is located in a courtyard off the street, and people must enter by passing through a walkway that goes through the defendant’s (=def, a store) property, which is also used by workers and customers. The Land Registry has the area registered as owned by def but slated for the use of pl as well. The walkway had been roofed for years with a semi-transparent plastic material. Because of leaks in the roof of def’s store, def redid the roof and extended it over parts of the walkway. Pl complains that the new roof damages their rights in a few ways. It restricts light and air. It is also lower, thereby preventing bringing large items in. It also makes it harder to see who is coming the other way, which causes problems of modesty when a man and a woman enter the area from different sides. Therefore, pl wants the new roof removed. Beit din visited the site and saw that the additions are only a few centimeters lower, and while there is some darkness, one does not feel a lack of air or crowdedness.   


Ruling: The mishna (Bava Batra 59a) forbids opening up windows to a joint courtyard (used for semi-private activities such as laundering) without permission. Another mishna (ibid. 60a) says that even when one has permission to open a window to a joint courtyard, he may not do so opposite the window of another’s home. Similarly, one is not allowed to enlarge such a window without permission. The gemara learns these concepts of privacy from Bilam’s praise of the way Bnei Yisrael’s encampment was arranged (Bamidbar 24), claiming that it made them fit to have the Divine Presence dwell among them.

The Rashbam says that it is sufficient to place the window in a manner that is slightly off to the side of the opposite window even though one can still see from one to the other. The Ramban explains that we are talking about a situation where it was anyway possible to see into the house, from the courtyard, and the issue is of creating a qualitatively greater intrusion when the visibility is direct.

Acharonim deliberate whether the issue of damage of sight is related to the prohibition to look at a neighbor’s private activities or whether the issue is that the feeling that others are looking at him takes away from one’s ability to maximize the use of his property (see Even Haezel, Sh’cheinim 2:16). One difference between the approaches is whether we view the situation objectively (first approach) or subjectively from the perspective of the allegedly damaged. Another difference is in a case where one opened a window with permission because there was a wall between the properties and subsequently the wall fell: who is the one who is required to fix the situation? [Without getting into the various indications,] it appears that there is an element that has to with the person’s ability to use his property freely.

After touring the apartments, beit din confirmed that pl has a basis for feeling a significant change in the level of privacy due to the window.

[The questions that remain for next time are whether to accept def’s claim that they received permission, and what steps need to be taken to solve the problem.]

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