Shabbat Parashat Mishpatim| 5764
Distancing Damages - Part VI - Mechila
If one acts in a way that can cause damage to a neighbor, the one who could be damaged can, at times, protest his friend’s activities. However, it is not always worthwhile for him to do so. If he is silent as the “damager” sets up the potential damage and beyond, the damager can claim that he has a chazaka (an acquired right) to act as he does (Bava Batra 23a). Some rishonim understand that this chazaka, like those of chezkat habatim,is valid only after three years and with the claim that he bought or received explicit permission to act as he did. However, we accept the opinion that a one time decision not to protest can, under the right conditions, be a sign that the neighbor is mochel (relinquishes his rights) his opposition to the possible damages (Shulchan Aruch, Choshen Mishpat 155:35).
As a result of the mechila, the neighbor cannot change his mind in the future and protest at some later point. Even though mechila does not work regarding future rights, only present rights, this case is somewhat different. The activities of the “damager” are not outright damages but are normal activities with happen to contain some possibly negative consequences. If at the time of his activity, the neighbor does not mind, the activities are subjectively seen as reasonable and permitted. Once he acts properly, the affected neighbor cannot redefine his friend’s actions as irresponsible (K’tzotz Hachoshen, ad loc.).
Some damages are so universally objectionable that even when it appears that the neighbor is mochel, we do not view his silence as a binding mechila (Shulchan Aruch ibid.: 36).
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