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Shabbat Parashat Vayeitzei | 5771

Pninat Mishpat: Forcing a Neighbor to Allow an Appliance Delivery Through His House

(based on an article by Rav M. Farbshtein, Shurat Hadin, vol. II, pp. 323-333)

     Reuven awaited a refrigerator delivery, which could only be done through Shimon’s balcony. Shimon objected, without providing a good reason, unless Reuven pays him. Can Shimon be forced to do the favor for free?

The gemara (Bava Batra 12b) discusses cases where brothers divide fields they inherited and one of them owns a field adjacent to an inheritance field. Rabba says that we apply the rule of kofin al middat S’dom (we force people to [avoid adopting] the approach of Sodom). Rav Yosef explains why, in each case, the other brothers can justify preferring that same field. The Rambam paskens that we accommodate the brother in a case where the objectors have no good reason not to.

Although one who benefits from his friend’s property without the latter losing does not have to pay (Bava Kama 20b), Tosafot (ad loc.) says that even those who say kofin, agree that the owner can object in advance to the use of his property. The Nimukei Yosef (ad loc.) explains that kofin does not allow one to use someone else’s property, just to allow one to use his own property in a way that needs another’s permission but where it does not hurt him.

The Mordechai makes a different distinction. If the usage is something that one can charge rent for, even if this person does not plan to do so, he can object, but otherwise he cannot. The logic seems to be that if one had the ability to make money off the property and still decided to keep it unused, how can we force him to let someone use it for free?

The Noda B’Yehuda (II, CM 23) says one can distinguish between the two questions above. Even if one rules kofin to divide fields in the most logical way, we might not say it to force one to allow someone to use his property when he objects for any reason.

The Rambam (Sh’cheinim 8:4) allows one to lean a small ladder against a wall one shares with his neighbor from the other side, whereas the Tur (CM 153) says the neighbor can refuse. The Tur similarly disallows driving a ziz (small beam) into a neighbor’s wall. While the Tur is consistent, it is strange that the Rama is strict regarding the ziz but not regarding the ladder. The S’ma says that the issue with the ziz is that it might cause damage, and the disagreement is actually whether this is true, but this is a difficult explanation.

Rav Shimon Shkopp (Bava Kama 19:3) offers a fundamental distinction. A reason not to force a landowner to allow use is that this is a form of taking away his ba’alut (status as owner). This applies when the owner protests, whereas in many cases, if he is not present it would be fine to allow use when there will be no loss because it does not contradict ba’alut. Also, certain usages are by their nature not an infringement upon ownership (e.g., a plane flying well above head).

In our case, since a one-time usage of Shimon’s property is neither something that one rents out nor is it a usurping of any type of ba’alut, Shimon must allow Reuven to use his property to bring in the refrigerator for free. 

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