Rabbi Tzvi Spitz

Many mistakenly think that Judaism is relegated to matters of the synagogue and holidays. In truth, Judaism is a societal system with laws of commerce, health, housing, etc. Below we examine one question of public versus private rights.

Q: What does Jewish law say when a disagreement arises in a public place (bus, classroom, etc.) as to whether a window should be kept open or closed? Is it a relevant consideration that the preference of some people involved is based on health considerations while that of others is simply a matter of comfort or convenience?

A: In cold weather the group favoring the closing of the window prevails, even if they are a minority. In warm weather the group favoring the opening of the window prevails, even if they are a minority. This rule applies even if the health of members of the opposing side might be adversely affected.

On days with moderate weather the two sides have equal rights, and must come to a compromise on their own. In this case, if one of the parties involved is guided by personal health considerations, that party prevails.

Although these rules represent the Jewish legal stand on these issues, it is always worthwhile for the two opposing parties to come to some sort of peaceful mutual agreement and to show understanding for the other side.

The case in the Talmud upon which this discussion is based is in Baba Batra (22b-23a): Rabbi Yosef had a neighbor who was a doctor, who used to perform a common medical procedure in his yard, which was adjacent to Rabbi Yosef's house. This practice attracted a large number of ravens to the yard, which caused a major disturbance to Rabbi Yosef, who was particularly sensitive to the noise (or filth) produced by the birds.

The Talmud rules that Rabbi Yosef was justified in his demand that the neighbor cease the offensive practice. This ruling is recorded in the Code of Jewish Law (C.M. 155:39), where the Rema adds that the same law applies to any form of intolerable nuisance, such as annoyances that are ordinarily bothersome to the average normal person, or to a sick person (if the complainant is ill) -- the one causing the disturbance must cease the offensive activity or do it elsewhere.

In our case, since most people find an open window bothersome in cold weather -- and a closed window in warm weather -- they do not have to tolerate these inconveniences when a person or a group of people seeks to impose it upon them. The same argument, however, could be advanced just as well by the other party, who sees the open window as a nuisance even though it is a warm day, except for the following consideration:

The Chazon Ish writes that a sick or insomniac person is not within his rights to complain about a neighbor's crying child. The reasoning behind this is that anyone who moves into an apartment or a neighborhood does so with the understanding that he will have neighbors and that there are certain normal noises produced by neighbors, one of which is the crying of a baby. The Talmud's ruling does not apply to ordinary nuisances that are a normal part of everyday life. Thus, no complaint can be lodged against people who create a "nuisance" that is part of the normal routine of life, such as keeping a window open in the summer and closed in the winter.

In moderate weather, where there is no clear "norm" to determine which party should prevail in regard to the window, there is no preference to either side's argument. However, in such cases, if one of the parties has a particular sensitivity (such as a health-related issue), this is analogous to the case of Rabbi Yosef and the doctor (cited above), and the "offending party" would have to yield to them. This is because the rights of the "offending party" are doubtful (because the weather does not clearly dictate a policy in either direction), while the interest of the sensitive (or ill) party is definitely established (his health stands to deteriorate as a result of the open window).

Excerpted with permission from "CASES IN MONETARY HALACHAH" - Contemporary issues and answers related to the laws of Choshen Mishpat for home, school and business.

Published by ArtScroll/Mesorah Publications Ltd., Brooklyn, NY http://www.artscroll.com

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