Introduction to the Laws of Visual Intrusion (Hezek Re'iyah) - Rabbi Yisrael Metof

00:02 Speaker 1 You’re listening to “Lema’an Yishme’u,” a podcast of Machon Halacha Chabad.

00:09 Speaker 2 Welcome to a fascinating new topic, full of details: the laws concerning neighbors. It’s a broad subject with all sorts of details. We often associate it immediately with disputes, because neighbors don’t always see eye to eye. Especially when you live in a tall building with sixty families—you can’t expect everyone to be on the same page. As in all our classes, we follow the Alter Rebbe’s approach. What is his approach throughout Choshen Mishpat? He tells each of us, as an individual, what I may and may not do. He deals less with all the conflicts and disputes; those are for batei din to decide. So the first topic we’ll study in the laws concerning neighbors is hezek re’iyah, harm caused by being able to see into someone else’s space. In our terms, that’s really a matter of privacy. A person wants privacy, and there are various ways you can infringe on it. Now, as with anything in any area of Torah, if you take what the Gemara says and apply it directly to life today, you’ll often get stuck somewhere along the way. Not because it doesn’t apply. The Torah does not change; the principles are valid and everything is precise. But sometimes we need to define what Chazal were referring to in terms of today’s reality. We’ll soon see a few examples. They spoke of a mavoi. What would that mean today? We don’t have a mavoi today. What exactly did they mean? So first we need to understand properly what things were like in their time, and then turn to our own time. I’ll give an example. We spent many classes discussing lost and found property. We saw what money was like in the time of Chazal. A person hardly carried any, except when he went to the market, and then he kept it safe. Today everyone carries money all day, though little by little we’re going back and doing without cash. I’ve noticed that lately, many more people say “I don’t have any” when someone asks them for tzedakah in the morning. People used to say “I don’t have any” less often. People don’t

02:30 Speaker 2 carry coins anymore—credit cards, computers. Yes, that’s why the people asking come with a device. So you always have to understand properly what things were like then before you can apply them to today. In today’s class we’ll learn just the foundations. We’ll touch a little on the practical side, but focus more on the foundations. Anyone who came to this class will benefit, because it will make the following classes easier to understand. So today we’ll learn how living spaces were used in the time of Chazal—how people used houses, courtyards, and all those places—and how that differs from our reality today. You can see the difference between these two houses here. It’s not just a difference in how they look from the outside; there are many differences inside too. Then we’ll look at the foundations of the laws of hezek re’iyah, which, as I said, means an infringement of privacy in today’s terms. So what is the source in the Torah? The Torah says, “Bilam lifted his eyes and saw Israel dwelling according to its tribes.” And what did he say afterward?

03:38 Speaker 1 “How good are your tents, Yaakov, your dwelling places, Israel.”

03:40 Speaker 2 The Gemara learns from this: What did he see when he lifted his eyes? He saw that the entrances to their homes did not face one another. He said, “These people are worthy of having the Shechinah rest upon them.” In general, that sounds like an aggadic teaching—a recommendation, something nice and good. But according to one of the halachic authorities whom the Alter Rebbe cites as halacha, we learn from it that it is forbidden to position one entrance opposite another entrance, or one window opposite another window. It’s not just a recommendation. Now, we do have places like that today, so we need to understand how it’s permitted. Now—

04:21 Speaker 1 Is it forbidden to move in?

04:23 Speaker 2 First there’s building, and then there’s moving in. Those are two stages. To begin with, the Alter Rebbe’s wording of the prohibition is—it isn’t shown here, but the wording is—that it is forbidden to make an entrance opposite an entrance, or a window opposite a window. So let’s see what kinds of spaces existed in the time of Chazal, and what corresponds to them today. First there was the house. A person lived in a house. There was a courtyard. In a moment I’ll show you a diagram with everything together.

04:54 Speaker 1 Like Rabbi [unclear]’s office.

04:56 Speaker 2 Right. In certain places today, you could even say there are places like that here in Savyon—something similar to the time of Chazal, with an entrance and openings leading to courtyards. The difference is that here the courtyards are private, while there they were shared. We’ll see that in a moment. So there was a house—a person lived in his own house—and there was a courtyard. Usually, unlike today, it wasn’t a private courtyard but a shared one. In other words, several houses shared one courtyard. What?

05:28 Speaker 1 Not an alleyway? A courtyard.

05:30 Speaker 2 A courtyard, not an alleyway. Not an alleyway—a courtyard. Then there was a mavoi, with several courtyards opening onto it. You could call that an alleyway. And the public thoroughfare ran outside. Beyond that were fields outside the city, and wilderness. Wilderness is an entirely uninhabited area. Now let’s look at the diagram, and then we’ll see what has changed today. So here you can see—one moment. Here we have a house, with several houses opening onto one shared courtyard. Here we have one courtyard, another courtyard, and another courtyard. All these courtyards open onto the mavoi in the middle. Now notice that this mavoi has an opening on this side and on that side. That is called a mavoi mefulash, a through alleyway. And there is a mavoi that is completely closed at one end, with an opening only at the other end. That is called a mavoi she’eino mefulash, a non-through alleyway. Outside—

06:35 Speaker 1 A dead end.

06:36 Speaker 2 What?

06:37 Speaker 1 A dead end.

06:37 Speaker 2 Yes, for example. Yes, there’s that expression, “a dead end.” You’ve reached a dead end.

06:41 Speaker 1 There’s no front courtyard here.

06:43 Speaker 2 There was such a thing. But most people used a shared courtyard. We’ll soon see why. Now, out here runs a public thoroughfare. Here the picture only shows fields around it. You don’t see a public thoroughfare here, but there were wider roads. A road sixteen amos wide is a public thoroughfare. Now let’s think a little about what has changed between then and today. Let’s look at how we use a house today and how they used one then. What do we do at home? Give me some examples.

07:18 Speaker 1 Sleep.

07:19 Speaker 2 Sleep, eat. Study, work on things a little. And then there’s laundry, and using the bathroom when needed. Let’s see how all those things worked back then. Take a look for a moment. Look at these two houses. What’s the difference between them? What do we have today that they didn’t have in that house?

07:50 Speaker 1 Water.

07:51 Speaker 2 Electricity. What?

07:53 Speaker 1 A door.

07:54 Speaker 2 A door. Well, they did have doors, but we’ll see what they actually did with them.

07:59 Speaker 1 They had bathrooms.

08:01 Speaker 2 The bathrooms were outside, yes. Basically, there was no plumbing—no running water, no drainage—and no electricity. Okay, so what were the consequences? Let’s think for a moment. A person—

08:11 Speaker 1 Everyone lives together.

08:12 Speaker 2 What?

08:12 Speaker 1 They live together.

08:14 Speaker 2 Right, that’s the first step.

08:15 Speaker 1 What do you mean?

08:16 Speaker 2 No, he’s saying everyone lives together. That’s actually the result. Let’s look at what comes before that. Say a person wants to sort rice at home at ten in the morning, today. What does he do? He sits at the table and sorts the rice. Now think of a person back then who wants to sort rice at ten in the morning. Where would he prefer to do it?

08:34 Speaker 1 Outside.

08:35 Speaker 2 Outside. His house is dark, with one window here and another there. That’s one difference. A second difference—

08:43 Speaker 1 Privacy.

08:45 Speaker 2 Yes, using the bathroom. He doesn’t have one—there’s no way it could be inside the house, right? So it had to be somewhere else. They had a place in the courtyard, a bathroom shared by everyone living around that courtyard. And water they had—what?

08:59 Speaker 1 Like a sandy floor, like a room of sorts.

09:01 Speaker 2 Right, so that too. Shared facilities, like the bathroom and the water cistern, meant everyone went outside. Where, where? Okay. So, um, there are still places like that in Russia.

09:18 Speaker 1 Not anymore. There used to be. There used to be, but not anymore.

09:28 Speaker 2 Now let’s take another difference. Say you want to do something private at home. What’s the problem? Today, tell someone to close all the windows to do something private. He’ll say, “Fine, I’ll close the windows. It’s Tammuz; I’ll turn on the air conditioner.” What was it like in their time? Not just in their time—even not so long ago in our own time—but what was it like then? Tell someone to close all the windows, and he won’t be able to see anything or breathe. It just wasn’t realistic. Now, someone here mentioned the door to the house. Their entrance back then—what about today? Is the entrance to the house open or closed most of the time? The door is closed.

10:07 Speaker 1 Today it’s closed.

10:08 Speaker 2 In their time it was open most of the time. They needed to see; they needed to breathe. And all these things lead—

10:15 Speaker 1 To differences.

10:16 Speaker 2 To differences in the law. There was less privacy back then, much less than today. On the other hand, today there’s a phenomenon of people living their lives in public, posting their pictures and living that way.

10:31 Speaker 1 Also, they shared things; everyone was together.

10:32 Speaker 2 Ah.

10:32 Speaker 1 They shared things; they breathed together.

10:34 Speaker 2 Right.

10:34 Speaker 1 They looked after one another.

10:36 Speaker 2 Laundry—he mentioned laundry too. Laundry was done either at the river, as we’ll see in a quote shortly, or in the courtyard. So let’s look at Rashi’s words. What he describes here is really what has changed today. Number one: “All the courtyards mentioned by the Sages are in front of the houses, and most of their activities take place in the courtyard.” That’s the first point. He says most of their activities, most of the things they do, are in the courtyard. Today it’s really not like that. Even someone with a private yard doesn’t do most things there. In a shared courtyard, he does almost nothing at all. Almost nothing. Another quote: “A person does private things in his house.” So he does most things in the courtyard. When he needs privacy, he goes inside and does it in the house, but most of what he does is in the courtyard. Another quote from Rashi, in Tractate Sukkah: “Every courtyard in the Talmud is in front of the houses, and the houses open onto it.” That is, as we said earlier, several houses open onto one courtyard.

11:57 Speaker 1 What does “in the Talmud” mean?

11:59 Speaker 2 Rashi also writes “in the Talmud”—in the Gemara. Whenever the Gemara says “courtyard,” it generally means a shared courtyard that several houses open onto. Now let’s go back to the diagram for a moment.

12:13 Speaker 1 Why do they need to make it exactly according to—

12:16 Speaker 2 He wanted to discuss the covered portico afterward, so he brings this as an introduction.

12:21 Speaker 1 Shimon, that—uh, the amount they put toward the courtyard and those walls, isn’t that shared, Rafi?

12:29 Speaker 2 Both. You’ll see—later we’ll look at someone opening a window onto a courtyard, right? The Gemara gives two possibilities: his neighbor’s courtyard or a shared courtyard. Both. But in most places where the Gemara discusses a courtyard, as it says here, “every courtyard in the Talmud” means a shared courtyard. There can be chametz in a shared courtyard too. Do you have to search it?

12:49 Speaker 1 Search it.

12:50 Speaker 2 What’s the proof?

12:50 Speaker 1 When a tenant wants to, uh, put the—

12:53 Speaker 2 Ah, a non-Jew. That case is about a hole between one house and another.

13:00 Speaker 1 A hole in the courtyard, no?

13:00 Speaker 2 Okay, a hole between courtyards—yes, between one courtyard and another. Now, what was this alleyway used for? In the courtyard, notice, only private things were done in the house. Most activities took place in the courtyard. We mentioned the privy and the water pit. There’s another quote here; look at number two: “Rabbi Yochanan said in the name of Rabbi Bena’ah: In all matters, partners can prevent one another” from doing certain things, “except for laundry.” Laundry is something they can’t prevent one another from doing, “because it is not the practice of Jewish women to expose themselves to embarrassment while doing laundry.” So you see that laundry was also something they did, uh, in the courtyard. And what about the alleyway? The alleyway was a place for stalls, for setting up various stands. That’s what we see from various sources. A person would set out his wares in the alleyway, everything he had grown, and people would come there to buy. Apart from the marketplace, it was another place to open shops. Let’s look at one or two more quotes—two more. One is a bit long; we’ll take part of it. What’s interesting is another place we haven’t mentioned: the roof. What did they do on the roof? Yes. Now pay attention to a use that I don’t think you’d have thought of. We’ll see it in a moment. But let’s start with the courtyard and the alleyway. Quote number three is from the Alter Rebbe, in the laws of eruvin. His source is the Rashba. He writes: “Why were they stricter about a courtyard than about an alleyway?” With the alleyway, as you can see here, there’s a side post on one side and a crossbeam on the other. This is a diagram from the laws of eruvin. So they were more lenient with an alleyway, where a side post or crossbeam suffices—we won’t get into that—than with a courtyard. The Alter Rebbe says: “Why were they stricter about a courtyard than about an alleyway? Because the more a place is intended for dwelling

14:55 Speaker 2 and for private activities, the more complete its partitions must be. Therefore, courtyards, which householders customarily use more for private activities and for eating”—notice, they also ate in the courtyard. They didn’t just do all those other things there; they ate there too—“need more complete partitions, so that they have the status of a private domain to a greater extent than alleyways,” meaning the alleyway we discussed, “which are not used for private activities.” In other words, we see that even eating took place in the courtyard. Now let’s see what happened on the roof. I won’t read all of number four. It’s about someone who opened a window facing another person’s roof. The other person, on the one hand, didn’t object immediately, but on the other hand, he didn’t agree either. He didn’t tell him, “It’s fine; you can open the window facing my roof.” Now let’s look at the second passage in number four: “But from what we hear, Shimon would say to Reuven privately, day after day: ‘You know that we have been close and good neighbors until now, but some days ago you opened a window facing me, and the view onto my roof harms me.’” Here we do see that at some point he began complaining to him. He would say, “Listen, we’re good friends and all, but you opened a window that bothers me.” How does it harm him? “Because my companions and I relieve ourselves there, as the other neighbors do on their roofs.” I don’t know who would do such a thing. That was one of the uses they had for the roof back then. “And I have nowhere to shield myself from your gaze. It would be proper of you to close it up.” He says, “I can’t shield myself.” He didn’t formally object; he said, “Listen, do the decent thing and close up the window you made.” Notice what the other man answers him: “He replies: ‘It is true, as you said, that you and your companions relieve yourselves on your roof, for we do so too, each neighbor on his own roof.’” Not just

16:54 Speaker 2 you—we’re in the same boat. “But you know that there are no partitions separating the neighbors’ roofs.” That’s a mistake in the text: it doesn’t say “gardens,” it says “roofs.” “The neighbors’ roofs, and no one compels anyone else to put one up. Rather, anyone who wants privacy from his neighbor’s roof puts up a light partition on his own property, as he wishes.” Let’s read the end, just to get a sense of what life was like: “Realize, too, that in the end you will have to put one up because of all the neighbors’ roofs, and if it shields you from them, it will shield you from my window as well.” Shield yourself from them, and you’ll shield yourself from my window too. Then he explains: “I need it for light, air, and a normal breeze.” Yes, even today a window is for light and air, but back then it was a necessity. It wasn’t like today, when it’s almost a bonus. “So how can I give up something I made with my own hands during my lifetime, when there is no need to do so for these reasons, and besides, there is no harm from being seen on roofs? That is all I have to say.” We’ll get to the details later—where harm from being seen applies and where it doesn’t.

17:55 Speaker 3 So at first it was closed, and he opened it, or he opened something.

17:58 Speaker 2 Yes, right, right. He opened it. Yes, it had been closed.

18:00 Speaker 3 There hadn’t been one all those years.

18:02 Speaker 2 There hadn’t been any windows all those years, but the roofs were next to each other, and he opened a window. Yes. Later we’ll see that there’s a big difference between a window and an open area. If there are two courtyards next to each other, they affect one another. But at least someone in a courtyard knows what’s happening on the other side and knows to take care. When someone opens a window onto a courtyard, though, the person in the courtyard doesn’t know when he’s looking out the window and when he isn’t. That’s worse than one courtyard next to another. Based on everything we’ve learned, let’s look at the different degrees of harm from being seen, in terms of privacy, and we’ll see that some of them have changed today. First, the lowest level is a field. In a field there’s no harm from being seen, no invasion of privacy. By the way, what is there? There’s the evil eye. When the crop is standing in the field and someone comes and looks at it, he might cause harm through the evil eye. Now, as an aside, there’s a dispute at the beginning of Bava Basra—some of you probably know it—about whether harm from being seen is considered harm or not. Right? What does that mean? Is there grounds for a claim? Can you compel the other person to stop causing this harm? They ask the opinion that says no: if so, why does it say that a fence or wall is put up around a garden? And that opinion answers: because of the evil eye. In other words, according to that opinion, the evil eye is more serious than the privacy issue. According to that opinion, privacy isn’t a problem for which you can compel the other person to act. The evil eye is a problem.

19:46 Speaker 3 That’s harm.

19:47 Speaker 2 That’s harm. How?

19:49 Speaker 3 The evil eye.

19:50 Speaker 2 The evil eye: if you look at someone who’s successful, you might harm him by envying him and casting an eye on him. There’s actually wording in one of the halachic authorities—I think it’s the Chazon Ish—that says the eye itself simply harms the other person. And he argues that if there’s a window in between, even glass, it already blocks the... something like that.

20:19 Speaker 3 Yes, because it’s noise.

20:20 Speaker 2 It’s as if there’s a kind of—right. In a moment we’ll see a quote from the Alter Rebbe about this. Let’s look at it now. One practical halachah. Notice that in section 11, the Alter Rebbe brings both issues: the evil eye and privacy. He says, in number five: “It is forbidden to stand by another person’s field and look at it while its grain is standing, lest one harm it with the evil eye. And needless to say”—this is an addition by the Alter Rebbe; it doesn’t appear in the other halachic authorities—“it is forbidden to look at another person in a way that might harm him with the evil eye.” In other words, notice what he says. You have a field with grain standing in it. He doesn’t say you’re now going to harm it with the evil eye. He says you may not stand there looking at it, lest you harm it with the evil eye. So don’t stand there—don’t stand and gaze too much at someone else’s Tesla, at...

21:24 Speaker 3 Someone’s car.

21:25 Speaker 2 Yes, at all kinds of special, beautiful things. The Alter Rebbe adds: “Needless to say, it is forbidden to look at another person in a way that might harm him with the evil eye.” That is, if he sees someone succeeding at something or doing something well, he shouldn’t stop and gaze at him. Someone once said to me about davening—and this applies not only to davening but to all kinds of situations—that if, every time someone walks by, he stops and looks, then he starts thinking about this person this way and that person that way. Better not to look at people at all, and to be more absorbed in davening. So this isn’t just an ordinary glance. There’s no problem with simply seeing something, but standing and looking—the wording here is “to stand by another person’s field and look at it”—can already cause harm through the evil eye. Then he continues: “And even regarding another person’s business and activities, where there is no concern of harm from looking.” Harm from looking is a concept in halachah—even without the word “evil.”

22:24 Speaker 3 If he does it in his home.

22:25 Speaker 2 If he does it in his home, on his own property, it is forbidden to look without his knowledge, because perhaps he does not want people to know about his activities and business. Notice the difference in wording here.

22:34 Speaker 3 Protection of privacy.

22:35 Speaker 2 Yes, here it’s an invasion of privacy. There he wrote, “It is forbidden to stand and look.” “Look” means to gaze. Here he says that even where there is no harm from looking, if it’s in his home or on his property—on his private premises—it is forbidden even to see it without his knowledge. So even if you just happen to look. Why? Because the moment you see, you know what’s going on there. This has nothing to do with the evil eye. You know what’s happening, and that infringes on his privacy. There’s something similar in the laws of sukkah, which the Alter Rebbe brings. He writes there that when it comes to entering someone else’s sukkah without his knowledge, a person is pleased to have a mitzvah performed with his property. So if it’s permitted—

23:12 Speaker 3 [unclear] that lighting, or in a tall building—

23:18 Speaker 2 And there’s someone below. Right, so he stuck his head out. Right?

23:22 Speaker 3 He said, “in the machine.”

23:36 Speaker 2 Now let’s go on for a moment; we’ll come back to this soon. Let’s continue and look at the levels of visual intrusion, from the least severe to the most severe, and what applies today. Then we’ll come back and read the Alter Rebbe. First, the lowest level is a field. With a field there’s no infringement of privacy, but there is the evil eye. A sloped roof: someone has a roof, but it slopes. If the roof slopes, he can’t use it, so there are no activities there. A flat roof: the halachic authorities say people do use a flat roof, but not as they use a courtyard, and certainly not as they use a home. It’s a place used once in a while, like one of the uses we saw earlier. What?

24:30 Speaker 4 To [unclear] things, to [unclear].

24:32 Speaker 2 No. So there are some uses for a sloped roof, but it isn’t... No, right, it isn’t a place meant for living, right? Privacy isn’t such an issue there. A flat roof gets more use. But let’s take an example—I’m curious what you’ll say. Suppose someone has a flat roof adjoining another person’s courtyard. This could be a house in Givat Shoshana in Tzfas, or in any number of places, for those who know them—

24:57 Speaker 4 People use it for [unclear] too.

25:00 Speaker 2 Yes.

25:00 Speaker 4 So that too.

25:02 Speaker 2 By “use,” I mean daily use, not something occasional—I mean daily use.

25:05 Speaker 4 That is daily use.

25:08 Speaker 2 What, does it need repairing all the time?

25:10 Speaker 4 No, no.

25:10 Speaker 2 No, but use by a person.

25:12 Speaker 4 People do use it, broadly speaking.

25:14 Speaker 2 Yes. Now picture a roof next to a courtyard. This is one person’s roof, and that is another person’s courtyard. They’re at the same level because they’re on a hillside. Who do you think has to put up the wall between them now? Both of them? One of them? What do you say? What?

25:33 Speaker 4 It isn’t a dwelling.

25:36 Speaker 2 Who needs the privacy more?

25:39 Speaker 4 The owner of the courtyard.

25:40 Speaker 2 The owner of the courtyard. So who puts up the wall?

25:42 Speaker 4 The roof.

25:43 Speaker 2 The owner of the roof. Because the one causing the harm is the one who has to put up the wall. In this case, the owner of the roof puts up the wall so he won’t infringe on the courtyard owner’s privacy. So that’s a flat roof.

25:54 Speaker 4 They don’t think the roof owner has to protect himself?

25:56 Speaker 2 So, in principle, there’s a general rule about harm between neighbors, based on a dispute between Rav Huna and Rabbi Yosei. The halachah follows Rabbi Yosei: generally, in various kinds of cases, the person who might be harmed has to take steps to protect himself. But Rabbi Yosei agrees in a case of girei dilei—something like an arrow you shoot. You can’t shoot an arrow and say the other person should protect himself. In other words, when you directly cause someone harm, Rabbi Yosei agrees that the person causing it has to take precautions. Visual intrusion is one such case. It’s direct harm that you cause another person, so you have to take care not to harm him. Sometimes our intuition suggests otherwise today, but that’s the halachah. That’s it. And sometimes there are places from which you can see into the entire house; that’s a real problem. I didn’t bring section 12 here because I don’t want to get into the details of windows, doorways and all those things. But the Alter Rebbe uses the language of prohibition. He writes that in certain cases, even if the two parties agree to it, it’s forbidden, because it’s a Torah prohibition. The next level is two courtyards. Two courtyards next to each other, both in use; as we said, each person does most of his activities in his courtyard. Each infringes on the other’s privacy by looking. They both have to build a partition together, and each can require the other to participate in building it. Now, generally speaking, this is very, very confusing. I don’t know whether we’ll remember or cover every point in this class, but there are three general possibilities when it comes to consent. Okay? There’s what the Torah forbids. If the Torah forbids it, that’s that; nothing can be done. But if the Torah doesn’t forbid it, does my agreement help? What counts as agreement? The strongest possibility is explicit agreement. For example, the two of us live next to each other. We come to each other and say, yes—

28:04 Speaker 2 Here in the Machaneh neighborhood, there are many places with nothing between them—they’re open to each other. People can see freely into each other’s courtyards.

28:10 Speaker 4 Pathways—it’s very common with pathways.

28:12 Speaker 2 Yes, right. All the courtyards are private, by the way. So we tell each other, “We agree not to put up a partition.” Okay? Two years later, someone suddenly changes his mind: “I want to put one up.” Generally speaking, he won’t be able to require the other person to build it with him. Generally speaking, we agreed, and that was that. So one possibility is explicit agreement. Another is custom: everyone has been accustomed not to put one up. That isn’t my explicit agreement; it’s what everyone has done. Does that bind everyone? That’s less certain. There are cases where it doesn’t work.

28:53 Speaker 4 What about the children, then?

28:55 Speaker 2 In principle, no. In principle, when someone buys a house, he receives it as it is, along with everything that was in place before.

29:03 Speaker 4 The one who agreed.

29:04 Speaker 2 What?

29:04 Speaker 4 The one who agreed.

29:07 Speaker 2 What is that—ah, a renter. Yes, the same idea. There are cases of brothers who divided property, or two people who bought one building. One bought this part and one bought that part, and then all kinds of disagreements arise. So we have express consent; we have a common practice that everyone followed, which doesn’t always bind everyone; and we have something less than that: he didn’t agree, it wasn’t the practice, but he remained silent. He remained silent for several years—three years, or not even three years. One person opened a window facing the other’s balcony or courtyard, and the other remained silent and said nothing. Does that mean he agreed or not? Does it make a difference whether he objected immediately or after three years? There are many, many cases like this. Disputes with neighbors can become a complete mess. There’s a case here... I don’t want to give too many details, but in one place people put their sukkahs in someone’s parking area for many, many years, and suddenly he tells them, “Guys, that’s it. Take them out.” So they say, “We’ve established a right to use it; we’ve been putting them here for years.” Does that hold up or not? Someone puts an air conditioner next to his neighbor’s place, and later the neighbor wants to install a new air conditioner and says, “Move yours.” All kinds of situations. The same question applies here: does an established right apply to visual intrusion or not? A window facing a courtyard is more serious, as we said, because the person in the courtyard doesn’t know when you’re standing at the window, so it’s especially hard for him to maintain his privacy there. A more serious level is a window facing another window. Why is that more serious? What do you think?

30:41 Speaker 4 They can see each other.

30:43 Speaker 2 They can see into the home, yes. And much more private things happen inside a home.

30:48 Speaker 4 Yes, that’s what I understand. Yes, that’s it.

30:49 Speaker 2 Or...

30:49 Speaker 4 The living room.

30:51 Speaker 2 Oh.

30:51 Speaker 4 Yes, yes.

30:51 Speaker 2 Yes, that’s where we started. And the most serious case is a doorway facing another doorway. Why do you think that’s the most serious? You can see everything. The doorway goes from bottom to top, and in those days it was open. Now, let’s take what was the most serious case then and see that today it’s the least serious. Today, in a great many—I think in all buildings—the doorways face each other. But today’s doorways are closed all the time by doors. To see into the other person’s home, your door and his door would have to be open at exactly the same time. That might not happen even once in a whole month, and even if it does, it would be for one second. There’s hardly any opportunity to see anything, so the halachic authorities today don’t—no one is stringent about this.

31:41 Speaker 4 What about the stairs?

31:41 Speaker 2 What?

31:41 Speaker 4 What about the stairs?

31:43 Speaker 2 Oh, when you pass on the stairs—

31:44 Speaker 4 And a home is open.

31:46 Speaker 2 Don’t look. Don’t deliberately look inside.

31:49 Speaker 4 It’s very hard. It’s not curiosity, right? It’s not curiosity; it’s already, uh... you know, it’s already—

31:59 Speaker 2 What?

31:59 Speaker 4 It’s automatic, because he doesn’t know to close it. It’s not that he—

32:02 Speaker 2 Right.

32:03 Speaker 4 Is looking for something.

32:04 Speaker 2 Correct, correct. And you’ll soon see that you’re not allowed to look, either. You’re not allowed to look. You happened to see something.

32:08 Speaker 4 You have to cover your eyes with your hands so you won’t see.

32:12 Speaker 2 Now, what’s interesting is that there’s a concept of maris ayin in various contexts. By maris ayin, I don’t mean that you see something. I mean that people see you and draw a conclusion. We’ll see shortly that there’s a concept like that here too: people might think you want to look into someone else’s place. So let’s return to the Alter Rebbe, section 14. We said not to look at a field when its grain is standing, because of the evil eye. The second stage: not to look into someone’s home or property, not to harm his privacy. That’s the second stage. The third stage: “And needless to say, it is forbidden...” There’s a jump here. This section repeats itself, but let’s see it. “And needless to say, it is forbidden for another person to look into his fellow’s courtyard to see his activities.” Earlier, he spoke about the home—about the lack of privacy in the home. In between, which I skipped because we’ll learn it in the next class, he spoke about two courtyards. After discussing the two courtyards, he writes: “And needless to say, it is forbidden for another person to look into his fellow’s courtyard to see his activities, and all the more so into his home, without his knowledge and consent.” Now, we asked earlier: what happens if he remains silent? He sees the person looking and says nothing. “Even if he sees him and remains silent, perhaps he is embarrassed to tell him.” So if someone sees you looking and doesn’t say anything, that doesn’t mean he agrees; he may be embarrassed. “And even if his fellow gave him permission to open a window facing his courtyard”—we said that one may not open a window facing a courtyard. What if he gave permission? “Even if his fellow gave him permission to open a window facing his courtyard,” the person might say, “You gave me permission to open a window. Presumably you agreed that I could look out from there at everything going on.” But the Alter Rebbe says: “He gave him permission only for light, but he is forbidden to stand at the window and look into his fellow’s courtyard.” That’s exactly like what you said about the window where there’s, uh, a home—

34:14 Speaker 2 Downstairs. Today, to a certain extent, when someone buys a home, he has essentially accepted the existing layout of the building. So how far does that go? Does consent help? We’ll see later. Where there is no prohibition, consent does help. Of all the levels we went through here—perhaps I’ll tell you now, and we’ll discuss it more later—at the top two levels, or more precisely at the very top level, there is a prohibition. At the second level too, we’ll look at the Alter Rebbe’s wording. But it’s only at the top two levels that there is a prohibition. All the rest are not prohibitions.

34:49 Speaker 4 Even if there’s consent?

34:50 Speaker 2 No. What?

34:51 Speaker 4 Even if there’s consent?

34:52 Speaker 2 It comes out that even if there’s consent. Why is there a prohibition only at the top two levels? Because they involve looking into the home. It’s forbidden to look into a home, or to make an opening facing another opening, or a window facing another window. Now, an opening facing another opening isn’t so relevant today, as we said. A window facing another window does seemingly remain relevant today, and we need to see how that problem is resolved nowadays.

35:11 Speaker 4 What about a home that also serves as a store, for gatherings, right?

35:17 Speaker 2 You mean privacy in a store and in...?

35:21 Speaker 4 Yes.

35:21 Speaker 2 No, so it’s the other way around. There’s a case, for example, of a store opposite a home. It says that if there are two ground-floor premises with openings, with a street between them, then they can make openings facing each other—windows facing windows, I mean doorways facing doorways. Why? Because he can say, “There’s a street here; everyone passing by can see you.” But he may not open a store with its entrance facing the other person’s entrance. Why? Because he sits in the store all day watching him. That’s worse. But the other way around, a store itself isn’t subject to visual intrusion in that sense.

35:57 Speaker 4 No, but it’s also that—

35:59 Speaker 2 No, I don’t... No, I don’t recall visual intrusion applying there at all.

36:01 Speaker 4 They don’t do such a thing everywhere.

36:03 Speaker 2 Yes. Now, that’s it. As for the prohibition, it would seem that consent doesn’t help, and we’ll address in the next class what we do today. From a window facing a courtyard on down, it would seem not to be a question of prohibition. It’s more a matter of disturbing the other person. It depends on him: if he agrees, it’s fine. So today, when you buy a ground-floor home with a courtyard, a garden apartment, you agree to everyone having windows above your courtyard or facing it. But do you agree to their looking in? No. The Gemara says that even if he agreed to the window being opened, that doesn’t mean the person may stand there and look in. Another example today: balconies.

36:45 Speaker 4 Balconies.

36:46 Speaker 2 Balconies next to each other. You can see everything. What do you think? Where does a balcony fit in the list we gave? It’s similar to... Huh?

36:57 Speaker 4 It’s not in a courtyard.

36:59 Speaker 2 It’s very similar to a courtyard. Very similar to a courtyard. And I don’t want to get too far into the details of how.

37:07 Speaker 4 You mean that people don’t agree to it, even if I don’t...

37:09 Speaker 2 Yes.

37:09 Speaker 4 So is that two courtyards, or a window facing a courtyard?

37:13 Speaker 2 If it’s a window facing a balcony, that’s a window facing a courtyard. If it’s a balcony next to a balcony, that’s a courtyard facing a courtyard.

37:21 Speaker 4 You live on the balcony too.

37:23 Speaker 2 Yes, it’s very similar to a courtyard in those days. What?

37:25 Speaker 4 That’s how they built the building, and so on.

37:27 Speaker 2 Oh, oh. The fact that they built the building that way and you bought an apartment there—does that count as consent?

37:32 Speaker 4 No, you sort of agree to it.

37:34 Speaker 2 You agree. Now, you agree to the layout being that way, but you don’t agree to someone looking in.

37:42 Speaker 4 It really is uncomfortable.

37:44 Speaker 2 Yes. Now, regarding common practice, a courtyard and a roof are the same when it comes to express consent. But when it comes to common practice, they’re different. So what happens if someone moves into a home and later builds a balcony, and now the balcony overlooks someone else’s place? Seemingly, consent doesn’t apply here. I never agreed to your building a balcony. But with the situation as it is now, let’s ask: is it the common practice here for everyone to build balconies? I don’t want to complicate one class with all the rules. Here it makes a difference whether it’s a roof—whether we define the balcony as a roof or as a courtyard. Okay, I’ll go into detail in the next class.

38:29 Speaker 4 A roof is...

38:30 Speaker 2 What are you trying to say—that many more people can see in? Okay, that’s the most common basis for permitting it today. In any such place where many people can see in, the whole concept of visual intrusion no longer applies. As we said earlier regarding a public thoroughfare, if it’s on the ground floor and people can see you from every direction, you already take care not to stand in front of the window while doing private things. So, consequently, with any window today that can be seen from several places, the whole issue of visual intrusion no longer applies.

39:01 Speaker 4 I have the right to stand there.

39:02 Speaker 2 That’s it. But standing and looking—never. Now, seemingly, what happens if he agrees to let you stand and look? There would seem to be a difference between a house and a courtyard. With a courtyard, it’s only an intrusion on his privacy, so if he agrees, that’s his right. But with a house, it’s already a matter of tznius; it’s already forbidden. I say “seemingly” because the wording in halachah is about placing one doorway opposite another: even if he agrees, you’re not allowed to do it. Seemingly, the same applies to looking. Now, what I said earlier about appearances—people thinking you’re looking. Let’s see that. I think there’s a good example here involving Yigal Horowitz [unclear]. I’ll tell you in a moment. Some say that a person must be careful not to stand opposite the entrance to another person’s house or courtyard and look inside, even for a brief glance, when he has no intention whatsoever of looking to find out about the other person’s affairs. Rather, when standing opposite the entrance to his house or courtyard, he should turn his face away, so that the other person won’t suspect him of trying to look in and find out about his affairs, and he won’t be regarded as a thief, since he has no explanation for why he’s looking.

40:24 Speaker 4 Tell me, is a camera also... A camera covering the courtyard, the courtyard itself, not the gate, the—

40:29 Speaker 2 Right, a camera is a good example. It’s a major invasion of privacy. A person can look, and there are many din Torah cases about this today. Putting up a camera. Right. The issue of elevators. Yesterday we had a residents’ meeting in our building; they want to put a camera in the elevator. That’s a lack of privacy. Now, just the example I gave you: sometimes I find myself standing at a bus stop in Gal Ori [unclear]. You’re standing at the stop, and opposite you there’s a storefront window, a building full of balconies. You’re bored; you might glance over at a window. Now, in general, the way it appears, you should stand with your face turned a little away from the building. Because if it looks like you’re looking, people might suspect that you want to see what’s going on there. But if, for example, someone is looking in the direction the bus comes from, and there’s also someone’s courtyard there, perhaps even a balcony and so on, then he has an explanation for why he’s looking. What are we saying here? Huh? People can give him the benefit of the doubt: he’s watching for the bus. But when there’s no reason at all for you to look in that direction, then even if you don’t intend to look and see, it’s forbidden because of appearances. Now he’ll say, “Wait, people walk through the public thoroughfare.” We said that people walk through the public thoroughfare and can see you. So why are you complaining about me? The Gemara says—yes, in parentheses—“Even people in the public thoroughfare are not permitted to stand and look. But if they catch a brief glimpse as they walk past, there is no concern.” We have no problem with their seeing him like that. Why? Because he can’t avoid that, and he has to conduct his private affairs modestly if even a brief glimpse of them would bother him. People can’t walk through the public thoroughfare without catching a glimpse. Yes. Yes, yes, yes. Right. They can’t avoid it. They can try to be careful, but they can’t avoid it

42:36 Speaker 2 completely. So the person using his home knows in advance to take precautions and not engage in private activities where they can be seen. But there are things that are less private, yet it bothers him if someone focuses on him. That’s why the person who stands there and looks can’t do that—not as it’s worded here in the text. What did you ask? You already, you already.