Shabbat Parashat Naso 5778

P'ninat Mishpat: Turning to the Municiplaity to Stop Renovations

Case: The plaintiff (=pl) sued the defendant (=def) to stop expansion/renovation work in his home, which he claims are illegal, starting with the request of a temporary restraining order. Initially, the sides agreed that only the work needed to prevent water damage would continue. Pl now claims that def has not kept to their agreement and wants to protest the action with the municipal authorities before def creates facts on the ground. Is turning to the authorities without a ruling by beit din permitted, and how does it affect the proceedings in beit din?    

Ruling: As long as the complaint is still being investigated by the municipality, it is not appropriate to continue beit din’s deliberations on the same matters. Afterward, beit din can adjudicate on matters not decided in court if the two sides sign an arbitration agreement.

Let us now deal with def’s complaint about the fact that pl went to the municipality in the first place. In matters of claims of damage of one neighbor against another, as regarding other damages, one may take extra-judicial steps to protect himself when beit din is unable to enforce his rights. One example is the use of the authorities to enforce judgments after a ruling has been made. Before a ruling, as well, one may take steps, certainly to prevent loss (Shulchan Aruch, Choshen Mishpat 4:1). The Rama (ad loc.) does say that one should not bring another Jew to a non-Jewish court for this purpose. However, this does not apply to going to a Jewish municipality.

The Maharik (191) says that the people of a town can ask of the nobleman to prevent another Jew from moving in (the Maharashdam (407) concurs). The Beit Yosef (addendum to CM 4) disagrees, saying that one cannot make use of such an authority without beit din’s ruling on the specific complaints (the Mabit (III:31) concurs). The Rama (CM 157:7) rules like the Maharik, but the Pitchei Teshuva (ad loc.) says that this is because he did not see the Beit Yosef’s addendums. The Kesef Hakodashim (ad loc.) says that the machloket is whether one can prevent loss by using non-Jewish courts and suggests also that the sides are actually talking about different cases; i.e., it is permitted to bar someone’s entry and forbidden to remove him once he is there.

The Avnei Nezer (Orach Chayim 36) discusses an existing shul preventing a new shul from opening by lobbying against the granting of a governmental license for the shul. The Avnei Nezer says it is permitted to object because the legitimate law of the land is that the government must approve all places of prayer. Convincing them that this is not worthwhile is only withholding a gain from someone else and not considered damaging him. He does not see this matter as depending on the machloket between the Maharik and the Beit Yosef. In our case, as well, the municipality must approve of all building changes, and therefore their decisions are not considered adjudication, which are problematic.

Furthermore, we grant halachic status to the procedures of the people of a city even when they are more exacting than Torah law (Shut Beit Yitzchak, CM 78). These actually shape minhag hamakom, which are critical to Halacha on such matters. Just as this is so regarding demanding expenses from neighbors (see Pitchei Choshen, Nezikin, p. 445), so it is regarding renovations that impact on neighbors. 

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