The Laws Governing Damage to Property

The Rules Governing Damage to Property. (1–25)

1 It is forbidden to cause damage to another person’s property,1 even if one intends to reimburse him,2 just as it is forbidden to steal or rob with the intent of reimbursing [the victim].3

It is even forbidden to cause another person loss [indirectly] through deed or speech.4 For example, Reuven sold merchandise to a non-Jew. Shimon came and told the non-Jew that it was not worth as much [as he paid]. Even though [Shimon] is telling the truth, it is forbidden [for him to make such a statement to the buyer]. The rationale is that it is permitted to keep money that a non-Jew overpaid for an article.5 Similarly, if a person seeks to flee to avoid paying a debt owed to a non-Jew (because he does not have the entire amount [to repay] the debt, and he is worried that he will be imprisoned according to their laws), it is forbidden to inform [the non-Jews] of his whereabouts.6 True, the person who [reveals his whereabouts] is not considered a moseir,7 for he did not cause [the fugitive] a loss; he only obligates him to pay his liabilities (by selling his wife’s garments8 or by taking a loan from others9 ). Nevertheless, [the informer] has perpetrated a great evil.10 (Although it is forbidden to renounce a debt [owed a non-Jew] when doing so could lead to the desecration of G‑d’s name,11 [in this instance, an exception is made]. For [one who] has no resources is considered as one acting under duress.)

Whoever causes damage to another person [or his property] — even if he would be exempted by a mortal court — has a moral obligation12 [to make restitution].13

2 Even if damage is being caused to a person’s own property, it is forbidden to divert it if doing so will [adversely] affect [the property of] another person. For it is forbidden to save oneself by causing [even] indirect damage to the property of another.14 However, before the damaging factors affect one’s property, it is permitted to divert them so that they will not be manifest [on his property], even if by doing so they will affect the property of another person.

For example, if an approaching torrent of water is threatening to wash away one’s field, he may construct a dam before it reaches his own field, even if doing so will cause [the waters] to wash away a neighbor’s field. Once the water enters his field, however, it is forbidden to remove [the water] in a manner that will cause it to affect his neighbor’s field.15 For once the damaging factor became his liability, he may not remove it [by imposing] it on another person.

3 Similarly, if a king’s army enters a city and the inhabitants are obligated to provide the [soldiers] with lodging, it is forbidden for a person to bribe the commander to absolve him from hosting [the soldiers], for this will cause damage to another Jew.16 ([Leniency, however, is granted] if he bribes him before [the army] enters the city).17

Similarly, with regard to all other issues of taxation, it is forbidden for a person obligated to pay a [given] tax to try to influence an official to exempt him when doing so will cause an [added] burden on others.18 A person who does so is considered a moseir.7

4 Similar [rules apply] if a king or a minister levies a duty on one or two wealthy persons and another Jew has influence in the court of the king or the minister and could exert his influence to absolve them. If it is definitely clear that were he to absolve them, the ruler would levy the obligation on other [Jews], it is forbidden to try to exert his influence to absolve them.19

The above applies when the [wealthy] individuals are known to the king or the minister and were singled out by name in the royal decree. If, however, [the ruler] did not specify particular individuals on whom this decree will fall, but rather decreed [that the obligation will be borne] by any two individuals, one may endeavor [to influence the ruler] not to have the decree fall on a given person or persons, even though [by doing so] it will certainly devolve on others. [The rationale is that] since the identity of these individuals was not specified, the damage is not considered to have affected them yet.20 [Hence] he is permitted to divert it from one whom he seeks to protect, just like he is permitted to divert it from his own self. Similar laws apply in all analogous situations.

5 If one’s own property is being damaged by the property of another person, and he can not save his own property without causing damage to that person’s, he is permitted [to do so]. One need not [suffer] the damage caused by that person and [then] take him to court [to resolve the matter].21 Nevertheless, one must minimize the damage caused to the other person as much as possible.22 If by taking extra trouble one can save his own property without damaging the other’s, he has a moral obligation23 to take that trouble and save [the other person’s property] , even when he would not be held liable according to mortal law. For it is a positive commandment to expend physical effort to save another’s property; this is also included in [the mitzvah of] returning a lost object, as explained in Hilchos Metziah [U’Fikadon].24

Therefore, when another person’s ox climbs on one’s own ox with the intent to kill it, he should not push [the other person’s ox off it] if he can pull out his own ox from under it.25 Moreover, when he pulls out [his own ox], he should pull it out gently, and not forcefully, which would cause the upper ox to fall.26 Similar laws apply in all analogous situations.

6 It is forbidden to cause a Jew or his property to be seized by non-Jews.27 [This applies] even to a small amount of money. [One may not do this] verbally,28 providing [the non-Jews] information about him or revealing [what the Jew] has hidden.29 Even if the non-Jew is merely seeking straw, it is forbidden to tell him that “There is straw in the home of this-and-this Jew.” Nor may he point to the other person’s straw with his finger.30 Anyone who causes [a fellow Jew or his property] to be seized by non-Jews does not have a portion in the World to Come.31

It is even forbidden to enable non-Jews to seize the person or the property of a wicked and sinful Jew, even if he continually causes one32 distress and aggravation with his words.33 If, however, [the other person] caused [a Jew] to be seized by [non-Jews], one is permitted to have [that other person] seized by non-Jews. [This applies] in a situation where there are grounds for suspicion that he will have [the Jew] seized by the non-Jews again, and that [the Jew] has no way of saving himself other than having [that other Jew] seized (or if he has not yet been freed from the first accusation and it is impossible for him to save himself in any other way).34

Similarly, if a person frequently strikes others and it is impossible to save oneself from him except by having him seized by non-Jews, it is a mitzvah incumbent on everyone to have him seized by non-Jews so that they will take his money or cut off his hand35 so that he will not strike others again. If, however, one struck another person incidentally, it is forbidden — even for the victim himself — to have him seized by non-Jews.36 There are [those authorities] who will exempt [the victim] according to mortal law if he transgressed and had [the attacker] seized, because a person is not able to control himself when forced to bear suffering. Nevertheless, all authorities agree that it is forbidden a priori, and that he is unquestionably placed into the category of a moseir.37

Moreover, even when a Jewish man of force refuses to appear before a Jewish court, it is forbidden to issue a complaint against him to the ruling official to compel him to appear before a Jewish court unless one receives dispensation to do so from that court. Similarly, it is necessary to receive dispensation from a Jewish court to [appeal to] secular authorities to compel a litigant to carry out a decision handed down by a Jewish court.

7 It is permitted to kill a moseir in any locale, even in the present era,38 before he causes a Jew to be seized [by non-Jews].39 Even if he merely boasts: “I will have so-and-so — or his property — seized,” even if it is an insignificant amount of money, his actions release others from responsibility for his death. He is issued a warning and told: “Do not cause [the person or his property] to be seized.” If he brazenly responds, saying: “No; I will cause [him or his property] to be seized,” it is a mitzvah to kill him. [Indeed,] whoever takes the initiative first, merits. For one who intends to cause the property of a Jew to be seized by non-Jews is equivalent to one who pursues [a Jew] to have his person seized by the non-Jews.40 And when a person pursues a fellow Jew to kill him41 it is permitted to save [the victim by taking] the life of the pursuer.42

If there is no opportunity to issue a warning [to the moseir], it is not necessary to warn [him]. If it is possible to save [the intended victim by impairing] one of [the moseir’s] organs, e.g., cutting out his tongue or blinding him, it is forbidden to kill him.43

8 [Conversely], if the moseir carried out his [evil] scheme,44 it is forbidden to kill him45 unless he has established himself as a moseir [by committing such an act] three times.46 [In the latter instance,] he should be killed lest he cause others to be seized [by non-Jews in the future].

Although it is permitted to take a moseir’s life,47 it is forbidden to destroy his property through one’s own actions48 or by having it seized by non-Jews, because his property is fit [to be inherited by] his heirs.48 It is, however, permitted to [indirectly] cause him financial loss.49 Since his life is considered as having been forfeited, certainly this applies to his property. Needless to say, there is no need to lift up an object he lost to return it to him. Nevertheless, it is forbidden to take his money for one’s own self. ([One may not even keep] an object [a moseir] lost that came into his possession, since it is fit [to be inherited by] his heirs. Other authorities, however, maintain that a moseir is placed in the same category as an apostate who renounces the entire Torah.) Hence, if one finds an article lost by a moseir, he may keep it. It is forbidden to return it to him, just as it is forbidden to return a lost article to a non-Jew, because such an article is not considered as “the lost article of your brother.”50 A G‑d-fearing person should fulfill [the stringencies mandated by] both approaches and [therefore] not pick up such a lost article at all.51

9 If a person had already been established as a moseir, but it appears that [the non-Jews] accept his words only because he is a person of means, and were he to become poor, his words would not be accepted, it is permitted to destroy his property or cause it to be seized by non-Jews, for in this way one is saving others from [the harm that will result from] his informing [in the future].

10 When a non-Jewish man of force compels a Jew to show him property belonging to a fellow Jew, or even to bring him that person’s property, [he may comply] if there is a concern of danger to his person52 if he does not heed his request, for there is nothing that stands in the face of a threat to life and it is permitted to save one’s life at the expense of property belonging to another person.53 One must, however, take it with the intent of making restitution according to the guidance of the court, who will instruct him whether he is obligated to make restitution.54 If, however, there is no concern of danger to his body or life, but rather merely financial loss, he is not permitted to save his own property at the expense of property belonging to another person, even if he intends to make restitution, as stated [above] in Hilchos Gezeilah [U’Geneivah].53

When does the above apply? When the money belonging to the other person that the man of force is compelling him [to hand over] is not within his own domain. If, however, [the owner] gave him the property for safekeeping and the man of force learned of this and compelled him to hand it over to him, he is not obligated to [do more than] what is prescribed in Hilchos Metziah [U’Fikadon].55 [The rationale is that] it can be assumed that he undertook [the safekeeping of the article with] this understanding.56

11 It is forbidden to stand near another person’s field while it contains uncut grain, lest one harm it with the evil eye.57 (Needless to say, it is forbidden to look at another person in a way that could possibly harm him with the evil eye.)

Moreover, [there is room for restrictions] even with regard to business and other matters involving a fellow Jew, where there is no concern for harm caused by the [evil] eye. If the person conducts his affairs in his house and his own domain, it is forbidden to watch him without his consent,58 for perhaps he does not want others to know of his affairs and concerns.59

Therefore, two poor people who live in the same courtyard and cannot afford to build a wall [dividing] the courtyard into two,60 so that one will not see the affairs and concerns of the other when he uses the courtyard, [must also show regard for this issue]. If they can obtain [money] from charity [which would enable them] to build [even] a flimsy61 partition between them, they should. If not, they should take care to whatever extent possible not to watch the other person when he is using the courtyard.

Needless to say, it is forbidden for a person to look into the courtyard — and surely, the house — of one’s fellow man to observe his affairs without his knowledge and consent. [This applies] even if that person sees [the onlooker] and remains silent, for perhaps he is too embarrassed to inform him [of his objection]. Even if one’s neighbor gives him permission to open a window, [i.e., to cut out an opening in a wall overlooking] his courtyard, [it is considered that] he granted him this permission only for the sake of light. It is forbidden for him to stand at his window to gaze into his neighbor’s courtyard.

12 Therefore, it is forbidden to cut an opening in a wall to make a doorway facing a neighbor’s door or a window facing a neighbor’s window62 so that one not observe the affairs of his neighbor. Even if the two [neighbors themselves] agree, there are authorities who forbid this, because having one person see the conduct of his neighbor throughout the entire day63 does not reflect the trait of modesty. On the verse:64 “And Bilaam raised his eyes and saw Israel dwelling tribe by tribe,” our Sages comment62 that he saw that the doorways of their tents were not positioned opposite each other and [was moved to] say that it is fitting that the Divine Presence rest upon them [for this reason].

Even when a public thoroughfare runs between [the homes of two people], they are forbidden to open a window facing a window if the windows are positioned high enough so that the people in the public thoroughfare cannot see through them while they are walking and if the land on which their houses are positioned is higher than that of the public thoroughfare, enabling them to see through [the windows].65 If, however, the people in the public thoroughfare can also see through [the windows] while walking, there is no reason for concern even when one window is facing another, because ultimately, a person must conduct himself modestly in any event, since people in the public thoroughfare are passing by throughout the day.66 Needless to say, this applies when one door is facing another, for [doors] are lower [than windows].67

13 There are authorities who maintain that a person should be careful not to stand facing (the entrance of) another person’s house or courtyard and look at him, even with a brief glance without at all intending to watch and learn about his affairs.68 Instead, when he stands facing (the entrance to) another person’s house or courtyard, he should turn his head away so that that person not suspect that he is looking at him to learn about his affairs. Thus he would be “caught like a thief,”69 since he has no explanation as to why he is looking [inside]. (For even passersby in the public domain are not permitted to stand and look inside [a person’s home. It is only] when they glance briefly while walking, that there is no concern, because there is no way one can be careful in this regard. Therefore [a homeowner] must conduct himself modestly with regard to those actions in which he would be uncomfortable being watched even briefly [during their performance]).

14 It is forbidden to damage another person’s property or to cause him harm even when one [causes such damage] by tending to his needs within his own property, but they [nevertheless] result in damage being caused to the property of a neighbor who lives near his home. For example, if a neighbor’s wall was next to one’s courtyard, he should not place articles that are hot and which emit warm vapors, e.g., stones that produce fire, fertilizer, salt and lime, and the like in his courtyard unless he distances them three handbreadths from his neighbor’s wall, because heat damages the wall.70 Similarly, one must distance any moist substance, e.g., wet sand, three handbreadths [from a wall].71 [This applies] even to a stone wall, not only to one of bricks.

Similarly, it is forbidden to pour water, even if only on occasion,72 within three handbreadths of [another’s] wall. Therefore, a drainpipe that allows water to spill off from a roof must be positioned so that the water will fall more than three handbreadths away from his neighbor’s wall. This applies even though such drainage occurs only during the rainy season.

There are authorities who [are more lenient and] permit one to pour water within three handbreadths of a neighbor’s wall when this is not an ongoing practice, provided that there is no pit [there],73 and hence [the water] will be absorbed immediately. [According to these authorities,] the prohibition [mentioned in the first clause] applies only with regard to [placing] sand [near a neighbor’s wall], for its moisture does not dry rapidly. A G‑d-fearing person should adopt a stringent stance with regard to his own conduct [and follow] the first opinion.

15 According to all opinions, it is forbidden to pour a chamber pot of urine less than three handbreadths away from a neighbor’s wall,74 even if the wall is of stone.

To urinate, however, it is sufficient to distance oneself a handbreadth [from the wall] if it is made of stones.75 If the stones have been smoothed, one may urinate next to it (or on the wall itself)76 without distancing himself. If, however, it is made of bricks, he must distance himself three handbreadths, whether to pour out the contents of a chamber pot or merely to urinate, so that the liquid not dissolve the bricks, which are made of dried clay.

Needless to say, one must distance himself from a wooden wall covered with dried clay on the outside. (With regard to a wooden wall that is not covered with clay, however, it is necessary to distance oneself [at least] a handbreadths even though there is reason to say that it resembles a wall of stone and not of bricks.)

There are, however, other authorities who maintain that the reason it was required to distance oneself from a stone wall is not because of the stones [themselves], but rather so that the ground near the foundation [of the wall] will not loosen because of the water and become soft. The stones [themselves], even if they are not polished, are not damaged by water, and there is no need to distance oneself from them as one must from [a wall of] bricks, which are made of dry clay. Thus it would have been permitted [to pour water directly] on the stones were it not for [the problem with] the earth in which their foundation [lies]. With regard to a wooden wall, there is no need to be concerned about its underlying earth. [Hence,] if the laws applying to it are the same as those applying to stone and not to bricks, there is no need to distance oneself at all. A G‑d-fearing person should adopt a stringent stance with regard to his own conduct [and follow] the first opinion.

16 It is forbidden to construct a dovecote in the midst of a town,77 because the doves will eat up the grains and seeds of the gardens in the town78 as well as the grains and seeds that have been spread out to dry on the rooftops and in the courtyards.79 [When one builds a dovecote] outside town limits, it must be distanced 50 cubits within his field or within ownerless property. [After taking such a safeguard, it is permitted,] since doves do not fly more than 50 cubits into a field, as they will have already sated themselves on what grows within 50 cubits. (If the majority of the gardens in the town are owned by non-Jews, it is permitted [to build a dovecote] even in the midst of the town.)80

17 It is forbidden to dispose of an animal carcass in the midst of a town or [even] within 50 cubits of the outskirts of the town,81 because its odor is harmful to the inhabitants of the town.82 (If, however, all the inhabitants dispose of their animal carcasses in the market place83 or on a dung heap in the market place [it is permitted], because the town’s inhabitants may forgo [the obligations] one has to the other.)84

Similarly, if one constructs a permanent outhouse in his courtyard, he must build it in a manner that the odor will not reach his neighbor or the passersby in the public domain.75

Similarly, he must take care that the smoke from his oven or range85 not reach [these people]86 as a result of an ordinary wind.75

If a person’s neighbor is suffering from a headache and the sound of banging will be harmful to him,87 one should not beat kernels of grain or other entities [if] the noise from beating them will reach his neighbor’s and injure him.

18 Similarly, a person should not perform a task in his courtyard that produces sand or dust88 that could be carried by an ordinary wind89 [to a place where] his neighbor90 or passersby in the public domain could be harmed by it.91

Similarly, in all analogous cases, a person must be careful that his actions not cause damage to his neighbor or to passersby in the public domain, except if his neighbor waives his rights.92 Generally, it can be assumed that remaining silent can be considered as waiving one’s rights, unless it is known that the person is not waiving his rights wholeheartedly. For a waiver of rights and a gift not given wholeheartedly are of no consequence.

Harm [caused] to [passersby in] the public domain cannot be excused93 except by the seven communal leaders94 in the presence of the community.95 [For the waiver to be effective,] they must make an explicit statement to that effect.96 Wayfarers passing through the town cannot prevent [the town’s representatives from taking such a step]. Alternatively, the rights of the people in the public domain can be overlooked] when it has become common practice for anyone who desires to do so. For [in such an instance], it is as if all of the inhabitants of the city explicitly waived [their rights] in order that anyone — or his son97 — will be able to act in this manner when necessary.

19 Therefore, it is permitted to build projections and balconies from the roof of a home that extend into the public domain, even if they are no higher than a camel and its rider98 and which thus, contrary to the law, could prevent the rider of a camel from passing through the public domain near his home.99 Moreover, sewage water can be poured from the projection into the middle of the road. [This leniency is granted because] this has become common practice, and people at large waive their objections concerning such matters.100

Similarly, it is permitted to dig a cavity beneath the public thoroughfare, by hollowing out a cesspit into which home sewage water and rainwater would flow. It would be covered with a cover that will be part of the ground of the public domain. Although [initially] this is forbidden according to law lest the cover fall into disrepair over time, nevertheless, since it has already become customary for people to do this, the people at large waive their rights. Moreover, since the public thoroughfare belongs to the ruler of the land, it can be assumed that he has transfered authority over it to the inhabitants of the town to act according to their desires and customs.101

A cesspit less than three handbreadths deep may be dug in the public domain [even] according to law.102 It is not necessary to cover it, for any [pit or mound] less than three handbreadths is considered a continuation of the adjoining surface [lavud]103 and is not considered a cavity at all.

20 One may not allow mud to soak in the public domain, leaving it there for an extended time.104 One may, however, mix mud there for the sake of building105 if one intends to build immediately, but not in order to make bricks from it.106

21 When a person builds in the public domain and prepares stones [there], he is forbidden to leave them there for an extended time. Instead, he must bring them and build immediately.102

It is forbidden to discard stones or anything else from one’s own domain to the public domain,107 lest they cause people at large to stumble.

22 When a person uses thorny bushes as a divider [around his property that] borders on the public domain, he must [be careful to] restrict [them] so that a thorn does not project into the public domain,108 lest one be injured.109

It is a pious practice for a person to place thorns [from] his [property] and/or anything else that could be harmful in a place that will not cause a mishap, e.g., he should cast them into a river or burn them.110

23 When a cesspit or cellar contains foul water, it is forbidden to pour [the water] into the public domain in the summer111 unless one has the intent of removing it immediately.112 In the rainy season, it is permitted.113 Clean drainage water, by contrast, may be poured into the public domain even in the summer because it will not remain and linger in the public domain, as foul and fetid water would. Instead, [the clean water will] flow immediately from a higher to a lower place.

24 It is permitted to bring compost and animal waste into the public domain during times when everyone takes out compost.114 At other times, doing so is forbidden unless one has the intent to remove it immediately.

25 When a person digs in the public domain even when he has license to do so,115 or digs [in his own property] next to the public domain, he should not pile up the earth in the public domain116 (if it is three handbreadths [or more] high)117 unless he intends to remove it immediately.