August 31, 2009

Bava Batra 2.

When the tenant complained that the landlord was watching her by means of a video hook-up secreted in the clock on her wall which transmitted her movements real time onto the landlord’s T.V. screen, the Court, condemned the behavior as unethical, but not illegal. It was not able to point to any statute on the books prohibiting such intrusion.

Not so the Halachah. From the days of the Jewish desert dwellings, Jewish law has outlawed the Peeping Tom. When Bil’am reluctantly observed “how beautiful are your dwellings O’ Yaacov,” he was referring to the desert tents. They were designed in such a way that neighbors could not peer into each other’s windows and doors.

The problem secular law has with visual intrusion of privacy is that it involves no act other than simply looking. There is nothing illegal about looking at other people just as there is nothing illegal with talking about other people. The Torah, however, does not recognize any distinction between ethics and law. If it is unethical, it is illegal. Peering into other peoples’ lives without consent may lead to Lashon Harah, bad mouthing, Kinah, envy and Choser Zeniut, crassness.

Accordingly, the Halachah will not permit one to cut open a new window in the wall of one’s house that looks out onto one’s neighbor’s window or door. Similarly, the owner of a house or an apartment that fronts a “Chatzer,” courtyard, or a “Ginah,” garden owned in common by all the owners of the other houses or apartments surrounding the courtyard or garden, may not, unilaterally, cut open a window into the wall that looks out onto the courtyard or garden. The neighbors that sunbathe or otherwise use the garden or courtyard for their private activities may object. Till now, they may argue, we could continue with our private activities without being watched by you. You have no right to invade our privacy.

Of course, this does not apply if the neighbor moved in after the window already existed. In that case, the neighbor, knowing the situation upon moving in, cannot force the homeowner to block the window. He is deemed to have consented to its existence. Neither may he build so close to his neighbor’s existing window that he either blocks his light or intrudes his privacy. Nevertheless, the preexistence of the window does not give its owner a license to gaze through it at the neighbors. The window must be curtained and when standing next to it, one should take care to avert one’s eyes from the neighbor’s activities. It should be noted, however, that although the Halachah protects a homeowner’s right to privacy and right to light, it does not protect the right to a view if blocking the view neither blocks light nor intrudes one’s privacy.

There may, however, be situations in which a person who cuts open a new window into his wall overlooking his neighbor’s property, may not have to block it up again. This can occur if the neighbor did not object to it, even though he was aware of it. He may, for example, have even assisted in the construction of the window. Or, he may just have watched and sat silently by, in which case, according to the Rambam, he will have immediately waived his rights to object to it. According to other Halachic authorities however, he will only have waived his rights if he sat silently by for three years and the owner of the window claims that he either bought the right from his neighbor or that the neighbor waived the right to object.

For similar reasons of privacy, two brothers who inherit a piece of land or two other partners to a piece of land, that is large enough to be divided into two, are required to build a partition of four “Amot,” about 8 feet, between them. This prevents one from seeing into the property of the other. So too, homeowners who regularly use the roofs of their houses for dwelling purposes must fence them off so that one cannot see onto the roof of the other.
It turns out that according to the Halachah, the partner who peers down, through his antique $5000 telescope from his 50th floor corner office onto the apartments, rooftop gardens and swimming pools below, is not so cool after all.

Raphael Grunfeld’s book, Ner Eyal on Seder Moed is available now at OU.org and at your local Judaic bookstore. His new book, Ner Eyal on Seder Nashim & Nezikin will be available shortly. You can reach Raphael at rafegrunfeld@gmail.com.