Shechenim - Chapter 11

This does not refer to a permanently established threshing floor, in which instance a person must separate 50 cubits, as stated in Chapter 10, Halachah 2. Instead, it refers to a threshing floor that the person intends to use on a temporary basis.

One need not, however, be concerned that an abnormal wind will cause damage that could not be foreseen under ordinary circumstances.

Bava Batra 26a states that a person is not liable in such a situation, because without the influence of the wind, the damage would never have been caused.

See Chapter 10, Halachah 5.

This follows the principle that a person is not liable for grama din’zikin, performing an activity in which he is the first cause - but not the only cause - of damage that takes place.
The commentaries question the Rambam’s ruling here, noting that in Hilchot Nizkei Mammon, ch. 14, he rules that a person is liable for the damages caused by a fire which he kindled even when it is spread by the wind. The commentaries (see Siftei Cohen 418:4) explain that although the person’s activity stirs up the dust or chaff, it exists independent of his activity. The fire, by contrast, would not have existed at all, had he not kindled it.

If, however, the courtyard merely shakes, but no objects are made to fall, it is not considered sufficient damage to require him to move (Maggid Mishneh). The Tur and the Ramah (Choshen Mishpat 155:15,36) differ and maintain that as long as a wall shakes slightly, it is considered a damaging factor, and the person performing the activity must move. The Rivash (Responsum 197) goes further and explains that even if the neighbor is prone to headaches and the noise causes him discomfort, the person performing the activity must move.

The Hagahot Maimoniot and the Ramah (loc. cit.:36) emphasize that even if the adjoining courtyard was built after that of the person performing this activity, be is not considered to have established his right to perform this activity. To apply this concept in contemporary terms: If an area is zoned for residential use, the fact that a person performed an activity that is unsuitable for a residential area in that place before homes were built is of no consequence. Once the homes are built, all the privileges that homeowners would expect must be granted to them.

I.e., Chapters 9 and 10.

As mentioned in the notes on Chapter 8, Halachah 3 and subsequent halachot, the Rambam maintains that waiving one’s right to protest takes effect immediately. The person performing the damaging activity does not have to continue that activity for three years before he establishes his right. As mentioned, the Tur (Choshen Mishpat 155) follows the more stringent view and requires three years to have passed. Both the Shulchan Aruch and the Ramah (Choshen Mishpat 155:35) accept the Rambam’s ruling.

See Chapter 6, Halachah 12, Chapter 7, Halachah 6 and others.

The Maggid Mishneh and the Shulchan Aruch (Choshen Mishpat 155:37) state that this refers to smoke that is produced constantly (to cite a contemporary example, a factory that is continually working). If, however, the smoke is produced only from time to time – e.g., by a household oven – if the neighbor does not protest, the activity may be continued.
[There is a difference of opinion (see the Shulchan Aruch and the Ramah, Choshen Mishpat 155:37) if, at the outset, a person is required to build a separation for smoke that is not constant.]

The Maggid Mishneh and the Shulchan Aruch (Choshen Mishpat 155:38 quote Rashi (Bava Batra 23a) as explaining that this refers to an open area used as a latrine. If, however, the facility is a covered trench or enclosed in a building, once the facility has been established, a separation is not required, for the odor from the outside will not be excessively offensive.

See also the following halachah.

The Meiri states that this concept applies even if the neighbor originally helped a person construct the latrine or the like. Even in such a situation, the builder is not considered to have established the right to perform this activity.

See Chapter 2, Halachah 14. The Maggid Mishneh explains that different principles apply with regard to the invasion of privacy from a window. If the person whose privacy is invaded waives his right to protest, the window may remain, as evident from Chapter 7, Halachah 6.

See Chapter 2, Halachah 14.

The Rambam’s approach represents a mid-point between the opinions of other Torah authorities. There are more lenient opinions that maintain that if the person explicitly agrees to the offending activity, even if he does not confirm this agreement with a kinyan, he cannot retract his consent. It is only when he remains silent that he retains the right to protest afterwards. And there are more stringent views (Rabbenu Tam) that maintain that even if the person confirms his consent with a kinyan, he may retract, explaining that he originally thought that he could bear the offending activity, but now he sees that he cannot.
The Rambam’s view is cited by the Shulchan Aruch (Choshen Mishpat 155:36). The Ramah adds that the same laws apply if the person sold or gave his colleague the right to perform the offending activity.

The Rambam’s words appear to imply that only a person who is irritable or sick may protest against this activity. If a person has a reputation for having a short temper, he has the right to protest (Maggid Mishneh). On the basis of this interpretation, the Shulchan Aruch (Choshen Mishpat 155:41) rules that whenever there is an activity that is known that a person will not be able to tolerate, even though others could tolerate it, that person is given the right to protest.

I.e., even though the people have a right to protest because of the noise of the customers, they do not have a right to protest against his performing his work (Maggid Mishneh, based on Chapter 6, Halachah 12).

I.e., if in fact it could be proven that his colleague had waived his right to protest, all future protests would be of no consequence.

See Chapter 7, Halachot 1, 6.

See Chapter 9, Halachah 1.

As reflected in the various examples mentioned in this and the previous chapter.

Since he is exercising this privilege, we assume that he is doing so because he justly acquired the right to that privilege. This can be compared to a situation where a person is known to have lived on a property for three years. The fact that he has lived there is considered evidence in his favor, even if he no longer possesses a deed of sale (Maggid Mishneh).
It must be emphasized that, as mentioned above, there are authorities who maintain that until the person has exercised this privilege for three years, the person whose rights are encroached can demand that he cease.

See Ketzot HaChoshen 153:4, which states that this applies only in instances where it is very likely that the person whose rights were encroached upon became aware of the infringement of his position.

I.e., a Rabbinic oath required of anyone who denies entirely a claim being issued against him.

See Halachot 4 and 5.

Since the exercise of these privileges does not establish a person’s right to them, the person exercising the privilege must bring other proof that he has a right to perform this activity.