Shabbat Parashat Shemot 5785

P'ninat Mishpat: Counter Claims – part I (Laundry)

Case: [Last time we discussed a dispute over rights to a courtyard. Now we deal with counter claims.] Def countersued pl to close the laundry business they run from their house, at which they operate large machines throughout the day and night, including at times that prevent def from sleeping (they are not well people). They also are suing for 50,000 NIS for six years of sleep deprivation due to the noise. Def also complain about sacks of clothes that crowd the stairwell and the shaking of the building due to the large washing machines. Pl respond that they have been making a little money on the side from operating two large but not huge machines for eleven years, and the only reason def is complaining is due to the recent conflicts between them.

Ruling: The question of chazaka (acquired rights by the silence of the affected person) is relevant in cases where the one who is operating questionably does so in an area which he does not own or when he operates in his own area but in a manner that damages his neighbors. Our case is a matter of the latter.

The Rambam (to Bava Batra ch. 3) rules that chazaka applies to allow one to continue damaging to the extent he had been before without complaint except in the cases of specific damages that are deemed too severe for one to be assumed to have truly accepted. The Shulchan Aruch (Choshen Mishpat 154:7) rules like the Rambam on chazaka for damage even after a short period of acceptance. There are differing ways to understand the Rama (see S’ma 153:32), but in the case where the damager is working within his own property, all agree that simple mechila works (see Netivot Hamishpat 153:13).  Therefore, even if operating the washing machine is disturbing, pl can generally continue as they did in the past, but they cannot expand the operation.

However, based on the Rivash (196), accepted by the Rama (CM 155:15), when a new situation arises in that a neighbor is now sick and his necessary sleep is compromised, this is like a case of what the gemara (Bava Batra 23a) calls “his arrows.” The Pitchei Teshuva (CM 156:1) says that disturbance of sleep for a sick person is not only significant at night, but even when it disturbs the sick person during the day. Additionally, Israeli law sets sleep time as 14:00-16:00 and 23:00 to the next 7:00. This limitation will apply now to pl even if in the past, they operated the machines beyond those hours.

We can assume that the permission granted, explicitly or implicitly, was for a minor operation, which should not be clogging the joint staircase. During one of the hearings, pl offered to not have bundles of clothing in the joint area for more than a half hour a day. Beit din is adopting that limitation as a binding ruling.

The claim of major shaking of the building has not been proven and is difficult to accept. However, if within 14 days of this ruling, def provides an expert’s report that the vibrations significantly exceed normal standards, beit din will revisit the matter.

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