Shechenim - Chapter 5

I.e., if one of the partners refuses to contribute to the cost voluntarily, the other partner may call him to court and have the court compel him to participate in the expenses.

E. g., a lock and a bolt. (See the following halachah.)

For adherence to local custom is a fundamental principle of Jewish business law.
This ruling is important in another context. Bava Batra 1:5 records a difference of opinion among our Sage concerning this matter. Rabban Shimon ben Gamliel rules that the other partners may not necessarily be compelled to shoulder his portion of the costs. Now Bava Metzia 38b quotes Rabbi Yochanan as stating that whenever there is a difference of opinion between Rabban Shimon ben Gamliel and another sage, the halachah follows Rabban Shimon ben Gamliel. Despite that statement, in this ruling the Rambam accepts the view of the other sage. On that basis, the Kessef Mishneh states that the principle stated in Bava Metzia does not apply in all instances.

I.e., aesthetic touches, which while not an absolute necessity for the courtyard, make it a more desirable place to live in.

And at his own expense.

This can be derived from the law stated by the Rambam in Chapter 3, Halachah 1, with regard to adding to the minimum height of a wall (Maggid Mishneh). The Kessef Mishneh states that it can be derived from the law stated in Chapter 3, Halachah 3.

These are necessary for the protection of the courtyard from thieves. Since he owns a home in this courtyard, it is in his interest that the courtyard be protected from theft. He is not, however, compelled to contribute to the gate-keeper’s room, for the gate-keeper’s function is to protect the privacy of the courtyard’s inhabitants (Netivot HaMishpat, Be’urim 161:1).

All these acts make the courtyard unpleasant for its inhabitants. The noise produced by the animals, the mill and the chickens, the filth the animals and the chicken produce and the damage they may cause make their presence in the courtyard undesirable.

See Hilchot lssurei Bi’ah 21:21, from which it appears that a woman would appear immodest when doing laundry at the riverside.

Implied is that even if it is the local custom in a city for the women to do their laundry at the riverside, a woman may refuse to do so.
The Ramah (Choshen Mishpat 161:5) states that in a locality where it is customary for men to do the laundry, this exception does not apply. He also states that if the water from the laundry flows into a portion of the courtyard belonging to another person, that person may prevent the others from doing laundry.

See Chapter 6, Halachot 8 and 11.

I.e., even if the animal or the mill has been there for an extended period, even for three years. the other partner can force the owner of the animal or the mill to remove it from the courtyard. We do not say that because he did not protest at the outset, the other partner established his right to have the animal or the mill there and he cannot be forced to remove it.
The rationale is that the inconvenience that these entities cause is considered so great that at any time the other partner can say: “Until now I could bear it, but now I can no longer bear it.”

The claim is established immediately, as soon as the partition is noticed by the other partner in the courtyard.

It would appear that even if the person who erected the partition does not claim that he purchased the right to bring the animal in, as long as the other partners in the courtyard do not protest immediately, they are considered to have granted him the right to maintain the partition and the animal.

And the owner of the courtyard can compel him to remove his animal at any time. Even if he granted him a favor for an extended period, he is under no obligation to continue to do so.
The Maggid Mishneh cite Hilchot To’en V’Nit’an 12:14, which states that if a person makes use of land for three consecutive years and claims that the owner sold it to him, or that it is in fact his land, his claim is accepted. In this halachah, however, the owner of the animal does not claim to own the land, merely that his colleague allowed him to use it.

Certainly this principle applies if a person desires to open up a window that overlook a colleague’s private property [Bava Batra 59b, Shulchan Aruch (Choshen Mishpat 154:3)].

This applies provided the colleague protests immediately. If he does not protest immediately, he is considered to have waived his privilege and the colleague may keep his window open (Kessef Mishneh, based on Chapter 11, Halachah 4).

Since he can see what his colleague is doing in the courtyard, it is considered an invasion of privacy. It is true that before, the two could have seen each other when they were both together in the courtyard. Nevertheless, by opening a window from his home, a person is able to see his colleague’s conduct more frequently, and to watch him without necessarily being seen himself (Rashbam, Bava Batra, loc. cit.).

In such a situation, when the entrances to both homes are open, a person in one home can see into the other and compromise his neighbor’s privacy.
Bava Batra, loc. cit. explains that Bilaam’s prophecy (Numbers 24:2): “How goodly are your tents O Jacob, your dwelling places, O Israel,” was motivated by the fact that he saw that the openings of their tents did not face each other. “These people,” he said to himself, “are fit for the Divine presence to rest among them.”

There are opinions that state that it is permitted as long as the entrances or the windows are on a slight angle, while other require that the angle of the new window or entrance be large enough to prevent one from seeing into a colleague’s house under all circumstances (Maggid Mishneh). [See also the Shulchan Aruch (Choshen Mishpat 154:3), which follows a more lenient view with regard to a courtyard which is jointly owned.]

A lane that does not end in a cul-de-sac is considered like the public domain. If it does end in a cul-de-sac, there is a difference of opinion among the Rabbis whether it is considered like the public domain or not [Shulchan Aruch (op. cit.)].

The Maggid Mishneh and the Shulchan Aruch (op. cit.) state that this applies only when the windows are less than four cubits high. If the windows are more than four cubits high, the person with the opposite window may protest, for the passersby in the public domain cannot see anything above four cubits.

And will not stand in one place to see what is going on in a person’s house.

In this instance, the Shulchan Aruch (Choshen Mishpat 164:3) states explicitly that one must structure his store in such a manner that he will not be able to see his colleague’s entrance at all.

I.e. the person owns a house in one courtyard and then buys a house in an adjacent courtyard from which he could open up a new entrance to the other courtyard.
A Home Located In One Courtyard Which Was Purchased By A Person Owning A Home In an Adjoining Courtyard
a) The courtyard in which the home is located
b) A home in an adjoining courtyard owned by the purchaser
c) The house purchased
He may, however, combine the two dwellings together, by allowing access from one building to the other. If he does this, however, he must close the entrance from the home he just purchased to. the courtyard to which it previously opened (Kessef Mishneh in the name of Rabbenu Yitzchak Alfasi).
Rav Yosef Karo also cites this ruling in his Shulchan Aruch (Choshen Mishpat 154:1). The Tur and the Ramah differ and maintain that he may not even open an entrance to his own home.

The Tur and the Ramah (Choshen Mishpat 154:1) state that no one in a shared courtyard has the right to change the structure at all. As it was originally built, so must it remain, even if the different dwellings changed hands.

If he entered from his new house, more people would be walking through the courtyard, and that would create an inconvenience for the other partners.

I.e., adding an apartment on the second storey, to which the person must enter through one’s home. But, as the Maggid Mishneh and the Kessef Mishneh mention, we assume that - because the entrance to the second storey is through his own home - he will not rent that out to others, but instead will simply widen his own living space.

The division may not be made with the intent that two families will be living in the same space in which one lived previously. Instead, it must be made to ensure more privacy within one’s existing apartment.

As reflected in the previous halachah, the Rambam’s opinion is that a person may build additional structures within his property, but he may not bring other people to live with him. The Ra’avad and others differ, maintaining the opposite. He may increase the number of people living in his home, but may not build a new structure.
To clarify the Rambam’s view: A person may bring guests into his household at any time. If, however, he rents out his premises to others who are not his guests, the other people in the courtyard may protest (Maggid Mishneh).
The Shulchan Aruch (Choshen Mishpat 154:2) quotes the Rambam’s view, while the Tur and the Ramah quote that of the Ra’avad.

For the owner of the house can protest that the rental agreement did not entitle the renter to invite many others to dwell with him. The Maggid Mishneh, nevertheless, postulates that the renter is allowed to bring another person to share the apartment with him, for it could be assumed that a person would dwell together with a comrade.
Even the Ra’avad and the others who differ with the Rambam concerning the first clause accept his ruling in this instance [Maggid Mishneh; Sefer Me’irat Einayim 154:5; see Tur and Shulchan Aruch (Choshen Mishpat 316:1)].

The Siftei Cohen 154:8 states that the same laws apply with regard to a window, for increasing its size is an invasion of the other person’s privacy.

One may, however, reduce the size of one’s entrance, provided one does not change its location [Tur, Ramah (Choshen Mishpat 154:4)].

This applies even when one does not enlarge the total size of the entrance. Sefer Me’irat Einayim 154:15 explains that it is not common for a person to leave one large entrance open. Therefore, most of the time the other person will be able to conceal himself. If, however, there are two small entrances, one will frequently be left open, and it will be harder to conceal oneself.

Who would protest that these changes make it more difficult for him to act in privacy.

Since it is possible that there will be passersby in the public domain at all times, the fact that a door across the street is open will not represent a significant invasion of the other person’s privacy.
The enlargement of a door to a residence cannot be compared to the opening of an entrance to a store mentioned in Halachah 7, for in the Talmudic era, a storekeeper would sit in front of his store throughout the entire day. A homeowner, by contrast, will not constantly be sitting at the entrance to his home.

As explained in Hilchot Shabbat 17:2, when a lane ends in a cul-de-sac, the inhabitants can receive permission to carry within it on the Sabbath by erecting either a pole at the entrance to the open side or a beam across the lane at that side.

This is considered one of the necessary expenses towards which all the inhabitants of the lane must contribute.
Sefer Me’irat Einayim 162:1 states that if a lane does not end in a cul-de-sac, and thus it is necessary to erect the frame of an entrance at one of the open sides to permit the inhabitants to carry within (Hilchot Shabbat 17:3), all the inhabitants must contribute toward the construction of such a structure.

This represents the Rambam’s interpretation of the Tosefta, Bava Metzia 11:9. The Tur and the Shulchan Aruch (Choshen Mishpat 162:1) interpret that passage differently, stating that if all the inhabitants of the lane except for one desire to erect gates, he can protest because he wants to be able to carry his burden directly to his home. And even if all the inhabitants of the lane agree, the people in the public domain may protest for the reason mentioned by the Rambam.

It would appear that, as the Kessef Mishneh clarifies in his gloss on the following halachah, the intent here is not necessarily a public domain as stipulated by the laws of the Sabbath – i.e., a thoroughfare at least 16 cubits wide – but rather any public domain through which a large number of people pass.
Our translation follows the interpretation of Rabbeinu Asher and the Rashba cited in the Sefer Me’irat Einayim 162:4. Others interpret this as referring to a situation where there are entrances to the public domain at both ends.

To prevent people who do not live in the lane from passing through.

E. g., on a market day, when there is much traffic in the public domain.

For the lane is not considered to be their private property, but rather part of the city as a whole.

I.e., he increases the human traffic in the lane, for he and the members of his household did not use that lane previously.

As mentioned above, the Kessef Mishneh states that in this instance, the public domain need not be 16 cubits wide.

Since passersby from the public domain will be using the lane, its inhabitants cannot control the human traffic in the lane. Hence, no restrictions are placed on opening new entrances.
Based on the Tur, the Shulchan Aruch (Choshen Mishpat 162:3) states that if the lane has gates that are closed at night, it is not considered to be open to the public domain, and its inhabitants have the right to protest against the opening of new entrances.

But which had been open at the time of the original construction of the lane.

Since he originally had the right to open the entrance, he has the right to open it at all times.
Sefer Me’irat Einayim 162:14 states that the owner must have witnesses that the entrance was once open, and that he – and not another person – closed it.

For by removing the door frame, he indicates that he no longer desires to open the entrance; it is as if he waived his right to open it again.

This refers to a situation where the inhabitants of the other lane consent that he build an entrance, or the other lane opens to the public domain on both sides, in which instance their consent is not necessary.

Thus, he is prohibited from making the change, because of the loss he might cause his colleagues.

For there is no loss that the inhabitants of the lane can suffer from his actions.
The Ramah (Choshen Mishpat 162:6) adds that if the person opens up an entrance to another lane, he must remove the door frame of his original entrance, so that he will not open it up afterwards and thus introduce traffic from the other lane.

For he has no right of passage through that courtyard.

The Ramah (Choshen Mishpat 162:7) differs and maintains that it is acceptable for the owner of the outer courtyard to place a bench in from of his entrance, even though it inconveniences the others.
A Bench Blocking the Entrance to a Courtyard in a Lane
a) The Innermost Courtyard
b) The fourth courtyard
c) The third courtyard
d) The second courtyard
e) The first courtyard
f) The lane
g) The bench

The Tur and the Ramah (op. cit.) differ and maintain that a person has the right of veto with regard to entrances on either side of his courtyard.

I.e., any of those owners (Kessef Mishneh).