Translation:Shulchan Aruch/Choshen Mishpat/154

Paragraph 1- If one partner in a courtyard purchased a home in another courtyard, he cannot open an entrance to the partnership-courtyard because each of the of partners does not have any permission to change anything. Rather they must keep it the way it was when they built it, purchased it or inherited it. Even if he built a second story on top his house, he cannot create an entrance into the courtyard because he is increasing the length of the path for his partners. It is as if he had one neighbor and he is adding many neighbors. He can, however, build a second story on top of his home, so long as it does not enter into the courtyard but into his home. It goes without saying that if he wants to divide his home into two, he may do so, because he is not opening another entrance into the courtyard. When is it true that if he purchased a house in another courtyard he cannot open an entrance into the partnership-courtyard? Where he was opening the entrance into the actual courtyard. He can, however, open an entrance into his home and close off the entrance that he has in the other courtyard. There are those who disagree and say he is even prohibited from opening an entrance into his home.

Paragraph 2- If one of the partners in a courtyard brought others from another home into his home, the partners may stop him because he is increasing the length of the path. Similarly, if one rents his home to a solo homeowner who subsequently brings his friends or relatives to live with him together, the owner can stop him. If he supports them, neither a partner or homeowner can stop him. There are those who say that a partner can fill his house with guests and dwellers so long as he does not add an additional structure, even if he divides his house for the different dwellers and even if the courtyard only has one bathroom. The second partner cannot say they are occupying the whole bathroom. If two partners share one house, one partner cannot give a third party permission to use his portion. Although partners do not care when it comes to a courtyard, they do care when it comes to a house.

Paragraph 3- One may not open a window into another’s courtyard. Even if a partner in a courtyard wants to open a window from his home to the courtyard, the partner may stop him because he can gaze at him from the window. If he did open the window he must close it. If the partners in the courtyard gave him permission to open a window or entrance, he is permitted to do so, so long as he does not open an entrance opposite an entrance or a window opposite a window. One would not obtain rights for an entrance opposite an entrance. The same is true for a window opposite a window. There are those who say that one can obtain rights for a window opposite a window. If two parties come to open an entrance opposite an entrance or a window opposite a window at the same time, and one of them would not lose out while the other would benefit, we would force such party via “midas sedom.” If they are both in the same position and would each suffer a loss, they must compromise. Rather, he should distance any amount from the other partner’s window or entrance. If he was granted permission to open an entrance or window into another courtyard, he must distance himself from another’s window or entrance to a point where they would not be able to see him at all. One can, however, open an entrance opposite an entrance or a window opposite a window into a public domain if it is not more than four amos tall, because he can say I am just like a member of the public who can see you. If one comes to be the first to build a second story, whether the other is able to stop him and say today or tomorrow I will create an entrance and you will stop me, is discussed later in this Siman in seifs 14, 15, 16 and 17. In the case of an alleyway, if there are three houses below, there are those that say it has the status of a public domain. There are those that say that if the alleyway is not open it would not have the status of a public domain. If one opened into the public domain and there is damage-via-sight to a courtyard on the side of the public domain, the courtyard-owner may object. Notwithstanding the foregoing, one may not open a store opposite another’s entrance or window because this is a constant source of damage. The public walks by and is not constantly looking in, whereas this person will sit in his store all day and stare through the other’s entrance or window. Thus, he must distance himself enough so that he is unable to see the others at all. There are those who say that a person must be careful not to look into another’s home enough for him to perceived as a thief because he has no valid claim.

Paragraph 4- If one of the partners had an entrance in a small courtyard, he cannot expand his entrance because his partner can tell him that when he has a small entrance he is able to hide from him while using the courtyard but cannot hide if he has a big entrance. If the partner had a large entrance, he cannot convert it into two entrances because his partner can tell him he can only hide from one entrance but not from two. If, however, one had a small entrance into the public domain and he wants to expand it or if it was wide and he wanted to convert it to two entrances, the person opposite him cannot stop him and it goes without saying that the public cannot stop him either. If he had a large entrance he can make a small entrance in the same place but not in another place.

Paragraph 5- If one of the partners in a courtyard had an entrance that opened to the courtyard with two doors and he wants to convert them to one door, there are those that say that the partners cannot stop him, notwithstanding the fact the open door will not be completely open as opposed to when it was two doors. If the partner had two entrances that were two amos each, however, he cannot make on entrance of four amos.

Paragraph 6- If one wants to open a window in another’s courtyard, the courtyard-owner can stop him, whether the window is large or small and whether it is high or low, because the courtyard-owner can say that the window-owner will damage him by looking. Even if the window is high he can climb a ladder and see.

Paragraph 7- If one opened a window into another’s courtyard, and the courtyard-owner waived his objection or indicated that he allowed it, such as where he came and assisted or if he knew and did not object, the individual will obtain rights to the window and the courtyard-owner cannot later object and demand the window be closed up. This is the appropriate way to rule since the party has obtained rights, notwithstanding the fact that many argue and hold one cannot obtain rights for damage-by-sight. Even according to the view that one can obtain rights, this only applies for the actual window and the courtyard-owner cannot close it up or object. The individual is still prohibited from standing on the window and looking at the other’s courtyard so that he not damage him by sight in which case he would violate a prohibition. The obtainment of rights would not work for such a thing and the courtyard-owner can object to that. So long as the window-owner has not obtained rights, however, the courtyard-owner can object and the window-owner would have to close up the window even if the courtyard-owner does not need to build next to it. Whether the window-owner would need three years to obtain rights is a matter of dispute, as was explained above in Siman 153 with respect to protrusions and similar items.

Paragraph 8- When is it true that one can obtain rights on damage-by-sight? Where the individual performs an action, such as opening a window to another’s courtyard. With respect to a partnership’s courtyard, however, even if they went many years without putting up a partition, because without performing any action they automatically damage each other by sight, neither partner will obtain rights and each one can force the other to create a partition.

Paragraph 9- If one opened a window into another’s courtyard and the courtyard owner was aware and did not object, and the wall with the window subsequently fell, the window-owner would not lose his rights. When he rebuilds the wall he may put the window in again.

Paragraph 10- What are the rules regarding this window that the courtyard owner allowed him to open? If a person’s head was able to fit through it or if it was lower than four amos, even if a person’s head could not fit through it, the courtyard-owner cannot build opposite it or next to it, unless he builds at a distance of four amos, as will be explained in seif 21. If the window was too small for a person to stick his head through and it was higher than four amos, the courtyard owner can build opposite it or on its side, because he can say that he only allowed the other party to open the window because it was small and high but not so that he could obtain rights requiring me to build at a distance. When is this true? Where the party opened the window to use it or to allow wind to pass through. If he opened the window for its light, however, even if it was very small and high, because the other party did not object, the courtyard-owner cannot build opposite it or on its side unless he builds at a distance of four amos because he has waived his rights to oppose the other’s light. Whether a specific window is created for light depends on the perception of the judges and the type of window.

Paragraph 11- There are those who say that this idea that one can obtain window-rights is only where there is a doorframe or a pile of bricks because otherwise it would simply be like a hole that was dug by mice. There are others that say that it is all dependent on local-custom. This seems correct to me.

Paragraph 12- Similarly, if one had rights to a window and another came and built opposite or adjacent to the window without distancing or if he closed up the window, and the window-owner did not object, he can no longer object and open the window or force the structure to be put at a distance because he has waived his rights by remaining silent. A person does not generally have his light-source shut off in front of him and remain silent unless he has waived his rights. The waiver would be effective immediately. There are some who say that the party that ruined the window would need a claim and if the window-owner had a document or proof on the window the other party must claim he purchased it and the closure in the owner’s presence would be proof to that. If the window-owner does not have proof on the window but just the fact that he obtained rights, the other party would not need another claim, and can just simply says his obtainment of window-rights was in error. This is all where the courtyard-owner closed the window and the window-owner was silent. If the window-owner himself closed the window, however, the fact that he closed it temporarily would not qualify as a waiver unless he removed the frame of the window, in which case it is apparent that he does not want to open the window again. The same would apply if he built a bona-fide structure in front of the window or anything similar. If the window-owner said he closed it and did not waive his rights and the courtyard owner said he closed it and the window-owner did waive his rights, the window-owner is considered the possessor and the courtyard-owner has the burden of proof. See later in seif 20 and 155:35.

Paragraph 13- If one has windows low down on his wall and another comes to build in front of them and says he will build other windows on the same wall higher up, the window-owner can stop him and say that when he opens up the new windows the wall will shake and be ruined. Even if the other party were to say he will destroy the entire wall and create a new one with windows high up and rent a house for him while construction is taking place, the window-owner can object because he can say he doesn’t want to burden himself by moving from place to place, even if he was only using the window for wood. Thus, if there was no burden at all and he did not have to move, the window-owner cannot object. If the window-owner wanted to move the location of the windows, however, whether higher or lower, and even where he says he will open a smaller window and close this one, the courtyard-owner may stop him. Similarly he cannot expand a window any amount. If there was a wall between Reuven and Shimon and the wall belonged to one of them, the owner may destroy it when he wants and the other party cannot object.

Paragraph 14- If one comes first to open a window on an upper story into the public domain, opposite the window of another, according to Rabeinu Yonah he can only open up the half of the upper story, leaving the rest to the other party opposite him. According to the Rosh and Rashba the other party cannot stop him and say today or tomorrow I will open and you will stop me, because the public domain is ownerless and the first one to open is as if he acquired unowned properties.

Paragraph 15- The aforementioned law is only in a place where the individual cannot build a protrusion or balcony from his upper story to the public domain. In a place where the person can build them, however, the light in front of his upper story is not ownerless but is considered the partnership’s courtyard, and when this person opened a window into the airspace of the upper story opposite him, he did it illegally since the other individual can also build into the public domain.

Paragraph 16- The view of the Rosh is that when one opens a window into another’s property where at the moment he would not damage-by-sight, the neighbor cannot stop him with a claim that today or tomorrow he will build up that area and be damaged-by-sight because of that window, because right now he is not damaging him, and thus the neighbor has no power to object. It is a case where one party benefits and the other suffers no loss. Because the neighbor cannot object, the window-owner would not obtain any rights. Once the other party builds the area, he can force the window-owner to close the window so that he would not be damaged-by-sight. Similarly, the neighbor can build opposite that window without any distance from the window. Based on this viewpoint, the Rosh ruled that where Reuven built his upper story out and opened a window from it, and subsequently his neighbor, Shimon, also wants to build out his upper story, and Reuven claims that Shimon must distance his building from his window so that he does not make it dark, Shimon is in the right, because since the local custom is that one is permitted to create protrusions into the public domain, the public domain has the status of a partnership-courtyard, and when Reuven opened his window into the airspace of Shimon’s upper story, it was done illegally because Shimon also had the right to build out. Up until this point Shimon did not care because the window did not damage him yet, so he could not object. Thus, Reuven did not obtain any rights and Shimon can build opposite his window. Because of this, the Rosh ruled that if Reuven wants to open a window into Shimon’s ruins, Shimon cannot object because it does not damage him. Because he cannot object, Reuven would not obtain any rights. Therefore, if a window is opened into someone’s ruins, the window-owner would not obtain any rights unless he brings witnesses that the window was there prior to the property’s destruction. If a person has a window opened into another’s property and the property was destroyed, it is beneficial for him to produce witnesses that he had the window prior to destruction, and the witnesses would write their testimony so that he has an accessible proof. On this basis, the Rosh ruled in a case where the roofs are covered with slats and have no use, that one can open a window from it. If the roof-owner subsequently opens his roof and he can see from his window to the other courtyard, the other party can force him to close the window. Thus, if a window is open to another’s courtyard in a high place and the other party wants to build underneath and make a roof of slats, and that building would prevent the party from looking out into the courtyard, the window-owner can object to the erection of the building and roof because he can say that today or tomorrow you will destroy your building and force me to close my window since you can say that I never obtained rights because it was opened onto my roof, and I will not be able to find witnesses that I actually took possession while I could still look into your courtyard. The Rashba writes, however, that if Reuven wants to open a window into Shimon’s courtyard in a situation where it would not currently create any damage-via-sight, and Shimon claims that he will build on his own property today or tomorrow and then Reuven will damage him by sight, Shimon is in the right and can stop him from opening the window because he does not want to bother himself to litigate with Reuven when Shimon decides to build. Even if Reuven is willing to write an admission document, we would not listen to him because now Shimon would have to guard the document from rodents. This is also the view of the Raavad. The Rivash agrees with this as well and writes that many of the later authorities agreed with him. This is also the view of Rabeinu Yonah and the Ramban, and that is how we rule. In a place where there is a local custom, we follow the local custom. The Ramban writes, however, that the window-owner would still not be able to obtain rights because he has not actually damaged him yet. Even according to the opinion that one can obtain rights because the other party had the right to object, this is only true where one opens a window into another’s property. If he opened a window into the public domain or somewhere similar, however, in which case the other party did not have any right to object, everyone would agree that he would not obtain rights. If Reuven had windows in his home opposite the courtyard or garden of another, and there is a wall between them which subsequently fell and now Reuven can see into the other’s property, Reuven must close up his windows, even if he built it legally. This is the view of the Rosh in his responsa. If there was a house that divided the properties that also belonged to Reuven or a third party and one can see from that house into the other’s property, however, and the house subsequently fell and now Reuven can see into the other’s property from another house, he would not have to close his windows because what difference does it make whether he can see from this house or another house. There are those that disagree, however, and hold that damage-by-sight is considered mere damage as a result of something, and since the window was originally built legally, the damage-victim has the responsibility to distance himself. See later in Siman 155.

Paragraph 17- If Reuven opened a window into a partnership-courtyard and one of the partners was not around, and Reuven made a condition with the partner that was around that if such partner receives the side of the courtyard next to Reuven when the partners divide the courtyard, that he cannot object to the window, the condition would be of no effect.

Paragraph 18- If Reuven has a house next to a gentile, Reuven opened a window onto the gentile’s roof, and the gentile later sold his house to a Jew, and the buyer wants to raise his house in a way that would close up the other Jew’s window and Reuven claims that the buyer is ruining the light from his window, notwithstanding the fact that the buyer is coming via a gentile, the buyer would be prohibited from closing up the window, just as the law would be in a case of two Jews because we do not find the concept that a Jew takes the place of a gentile, other than in a case where it is to the Jew’s detriment. There are those who say that because the gentile was able to close up the window, the buyer that comes via the gentile can also close up the window. The same would apply to any rights a Jewish buyer would obtain via the gentile. This is in fact how the Maharam and the Rosh rule, and this seems to me to be the appropriate way to rule. All the more so is this true in a place where there is a government regulation and we would follow such regulation. The buyer must careful to take possession of the gentile’s real property before giving the money to the gentile because if he gives money before taking possession, the gentile would immediately be removed from the property and it would be considered ownerless and the second Jew would obtain rights to these windows before he took possession. This is all in a case where it was known that the courtyard belonged to a gentile before the existence of the windows. If it was unclear if the windows were first and the window-owner obtained rights against ownerless property, however, the buyer who wants to close the windows would have the burden of proof. The rights obtained against a gentile and one that comes via a gentile would not be effective unless he obtained rights after he purchased it from the gentile. See later Siman 194.

Paragraph 19- If Reuven had a house next to a gentile’s courtyard and opened windows, as permitted under their laws, and the gentile now sells his courtyard to Shimon, and Shimon tells Reuven to close his windows, Shimon is in the right, even if Reuven claims that Shimon bought the house from the gentile. We already explained earlier that there are those who disagree. If Reuven had a house next to a gentile and the gentile opened windows into Reuven’s courtyard, and Shimon acquired the house from the gentile and Reuven wants to close the windows and produces a document that has the gentile telling Reuven that he has the right to close them, and Shimon says that the house he acquired had earlier belonged to a Jew who obtained rights to the windows before he sold it to the gentile, and the gentile would be required to close the windows under their laws or the document that Reuven produces says he has no rights to the windows because they were created illegally or just as a loan, Shimon is no greater than the gentile he is coming from. If the gentile was not required under their laws to close the window and he never admitted that he did not obtain rights, however, but simply wrote that he will close them whenever Reuven wants and he obligated himself to something he was not required by law to do, Shimon is not required to close them. A gentile that had windows would not obtain any rights because under their laws one has no right to object, so any obtainment of rights would not be effective.

Paragraph 20- If a Jew had a window open into a gentile’s courtyard and closed it off from the outside and left it open from the inside, and the gentile subsequently sold his courtyard to a Jew who now is building a wall whose edge will close off the window, and the Jewish window-owner claims that he only closed it because of the damage-by-sight to the gentile and he now wants to open it again, he cannot open the window again because since he closed off the outside and left the entire inner wall he has indicated that he has stopped using the window for its light and has turned it into a window that someone makes inside the home. Additionally, the buyer has the right to say he found this window closed off, who is to say that it was originally opened and then closed. Perhaps the gentile closed it and obtained rights to close it, and as we have stated earlier one obtains the right to close immediately upon closing the window.

Paragraph 21- If one had a window in his wall and another party went and created a courtyard next to him, the courtyard-owner cannot tell the window-owner to close the window so that he cannot look in to the courtyard, because he has already obtained rights to such damage. If the courtyard-owner wants to build a wall opposite the window to remove the damage-by-sight, he must distance the wall four amos from the window so that he does not make it dark for the window-owner. Once he has distanced four amos, he does not have to go any further, even if he makes it dark. If the window was on the lower part of the wall, the window-owner can force the courtyard-owner to build the wall at a distance of four amos from the window and to raise the wall four amos so that he cannot look at him through the window. If the window was on the higher part of the wall, and the courtyard-owner built a wall opposite the lower part of the wall and there is four amos or more between the top of the wall that was built and the window, the window-owner cannot stop him, even if he did build the wall at any distance from the window, because he did not make it dark for him and cannot damage him by sight. If there is less than four amos between the top of the wall and the window, however, the window-owner can force the courtyard-owner to lower the wall so that the courtyard-owner cannot stand on top of the wall and gaze through the window. Alternatively, he can raise the wall four amos above the window and the wall would be four amos removed from the window so that he will not make it dark and cannot gaze and see into the window. This is all in case where one built opposite a window looking into a courtyard. With respect a window that looks into the public domain, however, the window-owner would not obtain any rights, as was explained in seif 16. Thus, one can build opposite such a window, even if he makes it dark. See later in this Siman in seifs 31 and 32.

Paragraph 22- If one builds a wall next to a window, he must distance the wall one tefach from the window and lift the wall four amos over the window or bring the wall in so he will not be able to sit on the wall, look out and see. We measure the tefach from the actual window and not from the windowsill. Anyone who has a window has the ability to later create a windowsill, whether on the inside or outside, and the other party cannot stop him. Thus, a windowsill would not mean the window-owner had obtained any rights.

Paragraph 23- If one built walls on both sides of a window, there must be a distance of four amos between the walls and the window must be in middle of the four amos. He cannot make a roof on top of the walls unless he distances the roof four amos from the wall that has the window so that he does not make it dark.

Paragraph 24- If one made a sloped roof next to another’s window, he must lower the roof from the window four amos, notwithstanding the fact that the roof has no permanent use.

Paragraph 25- If one opened something like a skylight in the roof of his upper story, and light enters in that way, the neighbor would not have to distance at all if he wants to build. If Reuven built a room in his house to store wine or oil, and he needed air to cool off the wine, and another party wants to a build a wall opposite the room, Reuven has the right to object, even if he distanced more than four amos, because since the room is prepped for storage and was made legally in his own home, the other party is not permitted to cause him damage with his building.

Paragraph 26- If a partner wants to raise the partnership-wall at his expense more than four amos, the other partner cannot stop him, even if it makes the courtyard dark.

Paragraph 27- If two brothers consensually divided a courtyard and appraised the division of the building and wood but did not care to appraise the airspace, and one brother ended up with the garden and the other brother ended up with the porch, and one of the courtyard-owners want to build a wall at the end of his share, he can build in front of the porch, even if makes it darker, because they did not appraise the airspace. The same would apply if there were windows opened from the courtyard of one of them to another and he can build in front of them. If he does not build in front of the windows, however, he cannot say to the other brother to close the windows, even if there would be damage-by-sight. There are those who say that he could tell the other brother to close his windows. This is only true with respect to a porch that receives more than enough light. One cannot, however, build a wall opposite windows that are needed for a home. All the more so would he be prohibited from closing off the windows because a house without windows is not worth anything.

Paragraph 28- If Reuven gifted or sold a house to Shimon and courtyard to Levi simultaneously, and there were windows open from the house to the courtyard, and the party that acquired the courtyard wants to build in front of the windows, he may do so. The same would be true if Reuven sold or gifted the courtyard and retained the house for himself, and the party that acquired the courtyard is permitted to build in front of the windows, and there are those who say that he cannot build in front of the windows unless he distances four amos. If Reuven sold the house and retained the courtyard for himself, there are those who say that Reuven cannot close the windows because when one sells he sells generously. The same would apply where Reuven gifted the house. There are those who disagree. See latter 155:25.

Paragraph 29- If a party was damaging another by sight, and when he sees that the other party would make a claim against him, he transferred authority to his minor son, we do not say to wait to litigate until the son becomes an adult. Rather, we remove the damage immediately. If the damaging party went ahead and sold the house to a gentile, we force the seller to remove the damage.

Paragraph 30- If one had windows overlooking another’s courtyard and they have been closed off for many years but the windowsill boards have not been removed, if he wants to reopen the windows he may do so because the boards have not been removed.

Paragraph 31- The Rashba writes that although if one wants to open a window into the public domain another party opposite him cannot open a window opposite that window, if he wants to raise his wall he may do so. The other party cannot stop him, even if they don’t have four amos between them, so long as the wall is raised four amos so that he cannot gaze and see.

Paragraph 32- If Reuven acquired ownerless ruins and built houses and upper stories with windows and entrances, and Shimon also acquires ownerless properties and build houses and upper stories opposite Reuven’s, and now Shimon is being damaged-by-sight from Reuven and demands Reuven remove the damage, there is no merit to Shimon’s claim because Reuven has already obtained rights and Shimon cannot stop him. Moreover, if Shimon also comes to damage Reuven by sight, such as by opening a window opposite Reuven’s courtyard or into Reuven’s courtyard, he would not be allowed to do so.