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Shabbat Parashat Ki Teitzei | 5769

Hemdat HaDaf HaYomi: Damage by Viewing (lack of privacy)

Rav Ofer Livnat

This week in the Daf Hayomi, we begin to learn masechet Baba Batra. The first sugya (passage) deals with two neighbors who have a shared yard and want to divide the yard between them. The Halacha is that hezek reiyah (damage by viewing) is considered to be damage. In other words, the ability of the neighbor to see into one's yard is considered damage, and therefore, each neighbor can force the other to build a fence between the two parts of the yard.

However, in the continuation of the masechet, we will learn that, even in a situation where one neighbor is damaging the other, if he has a chazaka on the item causing the damage (ie-it has existed for a certain period of time without any objection from the neighbor), he does not have to remove the item causing the damage. The Rishonim therefore ask, why does the Gemara in our sugyah not state that, if the neighbors co-existed without a fence for some time, then they each obtain a chazaka on the hezek reiyah, and, in such a situation, one cannot force the other to build a fence.

The Rif (in a response quoted by the Ri Migash 2a) learned from this that hezek reiyah is considered to be such a serious form of damage, that one does not waive his objection, and there is therefore no chazaka for hezek reiyah. According to the Rif, if a person opens a window from which he can see into his neighbor's property, he does not obtain a chazaka, and even after a long period of time, the neighbor can force him to seal the window.

The Ri Migash disagrees with the Rif. He claims that there is a chazaka for hezek reiyah, and therefore one who opens a window can obtain a chazaka. He offers two explanations as to why neighbors with a shared yard do not obtain a chazaka. The first is that a chazaka is obtained only when one side is causing the damage, and the other is being damaged, since the one being damaged didn't object, it is proof that he waived his right to object. However, in a shared yard, each neighbor is damaging the other, and thus each can claim that he didn't object, because he was sure that the other neighbor would be willing to build a fence, in order to remove the damage from himself as well. The second explanation is that, in order to obtain a chazaka, a positive action to create the item that causes the hezek reiyah is required, such as opening a window, but here the damage is pre-existing due to the lack of a fence.

The Rosh (1, 2) also disagrees with the Rif and gives two explanations as to why there is no chazaka in a shared yard. The first explanation is similar to the first explanation of the Ri Migash. The second is that the damage in a yard is much more serious than the damage by a window, since one doesn't look out from his window constantly, as opposed to a yard that is constantly used. Therefore, although one may waive his right to object for hezek reiyah from a window, he does not do so for a yard.

The Shulchan Aruch (154, 7-8) rules in accordance with the Ri Migash and the Rosh; that, in general, one can obtain a chazaka for hezek reiyah. However, regarding a shared yard, he writes that a chazaka is not obtained, because there was no action involved in creating the damage, as the Ri Migash explained in his second explanation. 


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