Visual Intrusion in Today's Courtyards and Balconies - Rabbi Yisrael Metof shlita

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

00:09 Speaker 2 We’re continuing the interesting topic from last week. Last week we laid the foundations; now it’s time to build the house itself. This topic will probably take four classes. It’s no small subject. In the first class, we learned the foundations of hezek re’iyah—harm caused by looking into someone else’s space. We’ll review that briefly now: what a courtyard was, what an alleyway was, and what people did in the courtyard and in the house. The second class, today’s class, is about courtyards and balconies nowadays. What do we actually do? Why is this an issue? What is permitted, what is forbidden, and what is required in the first place? What can be waived? The third class will be about doors and windows nowadays, which is a subject of its own. And the fourth will be about security cameras and drones, which are also very common today. So let’s begin today’s class. What are we learning today? Here you can see grass, a courtyard next to another courtyard. There’s a fence between them, but it doesn’t help at all: you can see everything happening in each other’s courtyard. Then we have balconies. In this case, the balconies are right next to each other, with a partition between them, but sometimes they’re a little farther apart. Generally, in construction today, when they’re immediately adjacent, a partition is built; when they’re a little farther apart, often no partition is built. And third, what happens if there’s an agreement? Now, an agreement isn’t always explicit. Sometimes it’s tacit, and sometimes that’s simply how everyone has always done things. We’ll go through all these possibilities. I told you it’s a little complicated, but we’ll try to make it as simple as possible. First, a very brief review of what we said last week: what is the source for this whole subject of hezek re’iyah? The Torah says, “Bilaam lifted his eyes and saw Israel dwelling according to its tribes.” Interestingly, the Alter Rebbe quotes only the beginning of the verse. He doesn’t quote the continuation, where Bilaam said,

02:49 Speaker 2 “How good are your tents, Yaakov.” He quotes the beginning. What did Bilaam see? The Gemara says: “He saw that the entrances to their tents did not face one another. He said: These people are worthy of having the Shechinah rest upon them.” From this we learn that it is forbidden to harm another person by looking into his space. The Nesivos states explicitly—and there is something along these lines in the Ramban, one of the Rishonim—that this is a Torah prohibition. Looking into another person’s space is a Torah prohibition. We’ll look at the different situations later. The Alter Rebbe, too, doesn’t actually use the words “a Torah prohibition,” but he says there are prohibitions and then cites the Torah’s words. He uses the phrase “the Sages said” when presenting their interpretation of the verse. But yes, the Alter Rebbe says it is forbidden. Now, as we saw last week, to understand what happens today, we need to know what these terms meant then. Today I say “courtyard” or “balcony,” but what was called a courtyard in the past was different from what we call a courtyard today. A balcony, generally speaking, was a roof—a roof suitable for use. So what kinds of spaces did people have then? Let’s go through them quickly. There was the house, where a person lived, and there was the courtyard. We brought from Rashi and other sources that people did most of their activities in the courtyard. We saw why: the house was dark. Their houses were probably smaller than ours today, too, because they had to build a ceiling. You couldn’t make a house too spacious or the ceiling would collapse. They also didn’t have enough money or manpower to build that way. They built with stone and mud. Then there was the alleyway. I’ll show the diagram first. In brief: the alleyway, the public thoroughfare, the field, and the desert. So let’s look at the diagram we saw last week. Here is a person’s house. This is the courtyard. Here you can see a shared courtyard. There were also courtyards that weren’t shared; there was a private courtyard,

05:04 Speaker 2 and there was also a shared courtyard, with several courtyards opening onto one alleyway. In the house, people did the most private things, the things done in private, as we do at home. In the courtyard, they did most of their activities. True, those activities were less private, but that’s where they did most of them. We gave examples: laundry, eating. We saw in the Alter Rebbe’s writings that they also ate there. They had an outhouse and a water well in the courtyard. Many things were in the courtyard. As for the alleyway, here you can see one open from end to end. People no longer did private things in the alleyway. There were stalls where a person would sell his wares. An outsider could enter the alleyway freely, especially an alleyway open at both ends; that was a much more public place because people passed through it. Now, what is the reason for prohibiting hezek re’iyah in the first place? We saw that according to the Nesivos it is a Torah prohibition. By the way, earlier I said that the Alter Rebbe says “the Sages said.” That doesn’t necessarily mean that, according to the Alter Rebbe, the prohibition itself is rabbinic. Why? This is also relevant to what follows. There is the prohibition against actually looking, and there is creating a situation that could lead to looking. If I open a window in my house opposite my neighbor’s window, that doesn’t mean I’m looking at him. I could open the window and promise him that I’ll never look. The Alter Rebbe says even that is forbidden. The mere fact that one could look is also forbidden, and it is about this point that he says “the Sages said.” In other words, he may also hold that actually looking yourself is a Torah prohibition, but he doesn’t mention that. Now, what reasons are given for prohibiting hezek re’iyah? One reason is modesty. Modesty appears in the writings of the Rishonim, and it’s interesting that the Alter Rebbe also mentions modesty, but in some

07:14 Speaker 2 halachic authorities the wording is “the modesty of women.” The Alter Rebbe writes—we’ll see it inside in a moment, but I’ll read one sentence now—“What sort of modesty is it for one person to see everything the other does all day?” He doesn’t mention women’s modesty or anything like that. He says it isn’t modest for you to see the other person all day, and that is forbidden. The word is “modesty.” What is modesty? Keeping yourself private; “walk modestly.” Whenever people think of modesty, they think of clothing. But it isn’t only clothing. A person walking down the street, shouting, doing his personal things in public—right? Someone who eats in the marketplace is disqualified from giving testimony. All these things are immodest; they aren’t considered modest behavior. A second reason given is the evil eye. That means a person looks at someone else and sees the good things he has. That could arouse jealousy and could harm the other person. Now, it’s interesting: many people say, “If you don’t worry about it, it can’t harm you.” Many say that about the evil eye. But look through the sources, and in its plain context it was said about eating things in pairs: that doing so could cause harm, and it harms someone who worries about it but not someone who doesn’t. Applying that to the evil eye is something that was added quite recently. People said it about the evil eye too, because it’s the same idea: the evil eye supposedly causes harm in a spiritual way, through someone looking. But here we see that the Alter Rebbe mentions the evil eye. He doesn’t say it’s something that only affects someone who worries about it, and so on. There is a problem when one person looks at another: he could cause him harm through the evil eye.

09:04 Speaker 3 [unclear] the evil eye.

09:05 Speaker 2 Yes, yes.

09:08 Speaker 3 It won’t harm him? That it won’t... affect him?

09:11 Speaker 2 In the plain meaning, when it says “the eye,” it means harm—that it harms him. Now, this is very interesting, and we’ll look at it now: the Alter Rebbe’s exact wording is really precise, and very beautiful. There’s seeing, and there’s looking. A person has a house and a courtyard. Now, in a person’s courtyard, you look and you see what he does there. It doesn’t present the same issue of modesty that we spoke about inside a house. That prohibition isn’t there. It isn’t a house; it’s a courtyard. What?

09:46 Speaker 3 It’s open.

09:47 Speaker 2 Yes, it doesn’t have that same issue, but there is still a standard of modesty in a courtyard, so a partition is put up. Now, why does this distinction matter for deciding the halacha between neighbors? There are two possibilities. One is that one of the people wants a partition. Say I live here in [unclear]. We discussed the halachos of a cottage in [unclear], okay? It doesn’t matter where the cottage is, or whether it’s a cottage or a villa. There are backyards. I’ve actually seen places where you can stand in one yard and look into ten yards. You can see everything; it’s all open. Now, generally speaking, if I agree to have no fence or partition between us, there’s no problem. Why? Because a person knows he has no fence. Where does he do the things he wants to keep private? Inside his house. In other words, there is no longer a question of violating the prohibition. Once I’ve agreed not to put up a partition there, I’ve already removed that issue.

10:52 Speaker 3 But if I do things there that aren’t modest...

10:55 Speaker 2 Or... still, though... that’s it.

10:58 Speaker 3 I’m looking at my children over there.

10:59 Speaker 2 Right, right. So there’s still an issue here—privacy. There’s an issue of privacy. Now, in principle, it’s enough for one of them to demand that a partition be put up between them; he can require the other to share the cost.

11:12 Speaker 3 Neither of them demands it.

11:14 Speaker 2 If neither of them demands it, then fine; they’re allowed to leave it as it is. That’s how the Alter Rebbe’s wording seems to read. They’re allowed to. Now, what happens if they both want one but don’t have the money? Let’s see. I mentioned two things here: standing and looking, and the house and courtyard. Let’s look closely at the Alter Rebbe’s wording. Number three: “It is forbidden to stand by another person’s field and gaze at it while its grain is standing, so as not to harm it with the evil eye.” This isn’t about the courtyard or the house at all; it’s about a field. But what are you doing? You’re looking at something good that belongs to someone else, with its grain standing. The prohibition doesn’t say here that you’re forbidden to see it. If I walk past and see it, there’s no problem. It’s forbidden to stand and gaze. Why? What might happen if you stand there looking? You might harm it with the evil eye. In parentheses, the Alter Rebbe adds: “And needless to say, it is forbidden to gaze at another person in circumstances where there is reason to fear that one will harm him with the evil eye.”

12:21 Speaker 3 The concern is that you’re looking out of envy.

12:25 Speaker 2 The way it reads here, it’s forbidden to gaze lest you harm it with the evil eye—in circumstances where there is reason for concern. In other words, when you look, who knows what you’ll feel after you’ve looked? That’s how it seems from here.

12:40 Speaker 3 Looking briefly—that isn’t necessarily gazing.

12:43 Speaker 2 It means gazing when you stand there and look. Yes, it’s a kind of sustained observation.

12:46 Speaker 3 [unclear] in the street.

12:47 Speaker 2 Right, right. In a moment we’ll see the precise wording for when he says “see.” Yes, gazing at it.

12:53 Speaker 3 Seeing [unclear] as it appears. What is that? It’s not... it’s because of [unclear]. I see that my friend has something, that he’s so successful, and I’m envious.

13:07 Speaker 2 Presumably there’s no difference whether you know him or not. A person sees it and says, “Wow, why don’t I have that?” That can happen. Now, in the parentheses he says, “And needless to say.” Why do you think it’s “needless to say” that it’s forbidden to gaze at another person in circumstances where there is reason for concern? Why is that “needless to say”?

13:24 Speaker 3 He means that, instead of the field, you’re looking at the person himself.

13:26 Speaker 2 Yes, at the person himself. At the person himself.

13:30 Speaker 3 Gazing, in their view, is a matter of envy. What does it mean to gaze? Just looking isn’t...

13:38 Speaker 2 The way it looks from the text itself...

13:39 Speaker 3 He already considers that enough.

13:40 Speaker 2 The way it looks from that first passage. Let’s look at the first passage.

13:42 Speaker 3 There was a halachah about the evil eye.

13:47 Speaker 2 Apart from here? In other places?

13:49 Speaker 3 Elsewhere.

13:49 Speaker 2 For example, not holding the weddings of two sisters on the same day or in the same week because of the evil eye? Not calling two brothers up to the Torah.

13:56 Speaker 3 Calling them up, calling them up.

13:57 Speaker 2 Yes. Yes. Now, this is in parentheses, right? With the Alter Rebbe, there are several possible reasons for putting something in parentheses. In some places it’s because he was uncertain, but here, seemingly, that isn’t the reason. He says, “And needless to say.” Rather, when he adds something that isn’t stated in the halachah, he often puts it in parentheses because it’s his own addition. So what the halachah says is about the field. He says that, needless to say, you shouldn’t gaze at the person himself. What does “in circumstances where there is reason to fear that one will harm him with the evil eye” mean? If I’m looking at him and thinking how well he’s doing.

14:30 Speaker 3 Naturally.

14:31 Speaker 2 Yes, if I look at him and think, “Ah, how nicely he’s dressed,” and so on, there’s no problem. The Alter Rebbe continues: “And even with another person’s affairs and activities, where there is no concern about harm from the evil eye.” There’s no issue of harm from the evil eye. Why? Because these are just ordinary things. He’s preparing food, sorting rice, doing all sorts of things. There’s no concern about the evil eye in that. “If he does them in his home, on his own property”—notice that everything here, every word, is precise. “If he does them in his home, on his own property.” If it’s outside, there’s no problem. Look at him; you can even stand there and watch. Watch how the fellow standing outside makes cotton candy. There’s no issue of the evil eye here, and no issue of privacy, because he’s standing outside. But here, “if he does them in his home, on his own property, it is forbidden to look without his knowledge, for perhaps he does not want people to know about his activities and affairs.”

15:35 Speaker 3 Looking like that is the opposite. It’s because of...

15:38 Speaker 2 And then what?

15:39 Speaker 3 It’s there.

15:39 Speaker 2 But where did he do it—ah, because it’s something impressive and successful?

15:43 Speaker 3 He’s earning money, you know.

15:44 Speaker 2 If you see the money someone gives him, I don’t know. I don’t think that’s what it means. I think he says here that the grain is standing. You know what? If you see the [unclear]—you see the [unclear] of people—no, here it does apply. It does apply here. No, this case isn’t exactly the same. This is about his activities, but here it’s in his home, on his own property. Here, even seeing it is the issue.

16:08 Speaker 3 What about cotton candy? That’s commercial.

16:09 Speaker 2 No, but let’s look at the whole question. Outside there’s no problem, but in his home, on his own property...

16:16 Speaker 3 No, you’re saying it’s commercial, so you can also come...

16:21 Speaker 2 Yes, both are permitted if it’s outside. If it’s outside, both are permitted, provided there’s no issue of the evil eye. [unclear] his personal activities and how he does them in his home, on his own property. So what’s the problem? Perhaps I might...

16:33 Speaker 3 Something big, where the trees are growing.

16:35 Speaker 2 Yes, yes, that’s outside. Outside, it’s forbidden because of the evil eye. Other things are permitted outside. Where are they forbidden? Inside, in his home, on his own property. And what is forbidden here? Here, it’s not only gazing that’s forbidden. Even looking is forbidden. Why? Because perhaps he doesn’t want people to know about his activities and affairs, and with just one glance you already know what he’s doing. So it’s forbidden to look. How so? It has nothing to do with the evil eye. I don’t mind if you gaze. Now I’m going to skip a passage that we skipped last week too. I’ll come back to it in a moment. Afterward we’ll discuss what happens when two people live in the same courtyard—how do they manage? The fourth passage: “And needless to say, it is forbidden for someone else to gaze into another person’s courtyard to see his activities there.” Now, if you read this without paying attention to the words “gaze” and “see,” you won’t understand why he seems to be saying the same thing again. No: earlier he said it’s forbidden to look. “And needless to say, it is forbidden for someone else to gaze into another person’s courtyard to see his activities there, and needless to say, into his home, without his knowledge or consent.” In other words, to gaze and observe closely. Now he doesn’t—he says, “to see his activities there.” Why? Because he says, “to gaze into another person’s courtyard to see his activities there.” In other words, when he starts looking, he doesn’t yet know there are activities going on there, but he stands and gazes into the courtyard in order to see what the person is doing. Yes, so he’s doing it deliberately, and that is certainly forbidden. Okay, later we’ll continue with the rest.

18:04 Speaker 3 And looking at the maps as documents—what’s the problem with that?

18:10 Speaker 2 In principle—just seeing something—in principle, looking. So the question is this: if it’s something you can see while—soon we’ll discuss people in a public thoroughfare who pass by outside and see other people’s windows, or someone else’s courtyard without a fence. The Alter Rebbe says explicitly in section 12, in the second passage: “But if people in the public thoroughfare can see them as they walk past, there is no cause for concern.” In other words, there’s nothing to be done: he passes by, sees it, and keeps going. He doesn’t stop to observe and gaze. So that’s something difficult to avoid, but doing it deliberately is a problem. Now let’s go a little further. The third reason for the prohibition is lashon hara. That’s what the Rishonim say: lashon hara. What does lashon hara have to do with it? The idea is this prying. Gossip, lashon hara. When you look, there’s the issue of modesty in its own right; there’s the evil eye when you see something good belonging to someone else; and there’s the very fact that you see someone else’s private matters—the lack of privacy itself. That’s also connected to modesty; it’s similar.

19:22 Speaker 3 Isn’t it only about speaking?

19:23 Speaker 2 What?

19:24 Speaker 3 Isn’t it only about speaking about what you saw? Not...

19:25 Speaker 2 But that’s part of the issue.

19:27 Speaker 3 Lashon hara isn’t slander.

19:28 Speaker 2 That falls under lashon hara. But the act of looking itself is also a separate prohibition. That is where the prohibition of visual intrusion comes from. Yes, yes. Now, incidentally, the Alter Rebbe does not mention that third reason. He mentions only modesty and the evil eye. Now we want to move on to the Alter Rebbe’s ruling in practice regarding courtyards and balconies today. To understand it, we’ll first look at the different levels of visual intrusion in general, as they were in the past, and then see how to apply that today. So, as we saw last week, starting with the least severe, we have a garden. Last week we called it a field, but the term used in halachah is a garden—a place where crops grow, right? Here it’s the same idea, the same idea, but an entrance facing an entrance was more severe back then. Today it’s less severe, but back then it was more severe. Why? Because the entrance starts at floor level. Their entrances were open all day; they needed air and light. So with one entrance facing another, a person could see his neighbor all day. Now, what helps? Consent. Consent can take two forms. Maybe you spoke to each other and said, “We agree to leave it this way.” Or maybe you bought an apartment in a building, saw what the building looked like, and agreed to buy it. By agreeing to buy it, you accepted that this was the situation. So today, if I divide up the subject of visual intrusion, there are two situations, one much less severe than the other: an existing situation, and renovations or extensions. When you come to renovate and extend, you’re creating something new, and that’s much more problematic. But if it’s an existing situation and you bought the home, there is consent. Let’s examine it. Wherever consent

24:25 Speaker 2 helps, everything is fine. Now let’s see where consent helps. It helps with a garden, a sloped roof, a flat roof, and two courtyards. We explained earlier why. But what about modesty? Once you’ve consented, you use that area less, so the issue of the Torah prohibition does not arise. Consent also helps with a window facing a courtyard. We’ll soon see the wording of the Rashba. But for these two cases, consent does not help: a window facing a window, and an entrance facing an entrance. That is the straightforward understanding today. Even if you bought a home in its existing state, if there is a window opposite a window or an entrance opposite an entrance, it would seem to be a problem. There are solutions to that too. We’ll see them in the next class, G-d willing.

25:14 Speaker 4 Wait, I just have a question. Someone has a garden apartment at a distance of eight. If he closed it off, can he open it again? He bought a garden apartment. It’s all open and everyone can see in. He closed it off.

25:29 Speaker 2 All right, but after he consented—

25:30 Speaker 4 Again.

25:31 Speaker 2 Once he consented, he can’t change his mind. He consented. Now—

25:36 Speaker 4 He closed it off; he didn’t exactly consent.

25:38 Speaker 2 Oh, he closed it off as soon as he bought it.

25:39 Speaker 4 If someone bought it while it was closed off.

25:41 Speaker 2 But that’s just it. When they bought, the developer offered it in an open state. So that’s the basis on which we moved in.

25:50 Speaker 4 But I closed it off. I bought it and closed it off. You know, I didn’t do it that way. It’s mine now. I closed it off. Can I open it again?

25:58 Speaker 2 Now, what would happen if he opened it? What would he demand of them—that they close their windows?

26:03 Speaker 4 If I open it here, is that already prohibited? I’m taking down the covering, that’s all. I’m not doing anything.

26:06 Speaker 2 Is he opening up his own roof?

26:09 Speaker 4 His own. His own.

26:09 Speaker 2 No, he has no problem. There’s no problem with his own. In principle, he could say to you—let’s say you’re opening a window now, because there are places where someone suddenly opens a new window overlooking a courtyard—he could come to you and demand that you seal the window. Until now, I—

26:25 Speaker 4 I have another window overlooking the courtyard.

26:27 Speaker 2 That... okay. There are a lot of considerations here. Let’s put it this way: if there’s another window nearby, or many people can see in, then there’s no problem. But if it’s just you, opening another window is a problem, because until now you had one window and now there are two.

26:40 Speaker 4 If I closed it off—meaning, I bought it and closed it off, but I didn’t consent.

26:46 Speaker 2 Yes, but when they bought, they bought it on the understanding that they had a window. You can’t later make them close their window. What do you want after you open up the roof? What do you want from me?

26:54 Speaker 4 If someone needs to open up the roof.

26:56 Speaker 2 His own?

26:57 Speaker 4 Yes.

26:57 Speaker 2 There’s no problem. A person may do that in his own courtyard. In a home it’s different. In a courtyard it’s permitted. Now, may they look through the window and watch him? That is prohibited in every case. Even if that’s how we bought it, and even if I consented to your opening the window, as we’ll soon see, that doesn’t mean you can stand there and look at me. That’s a different matter.

27:17 Speaker 4 Surely he can; there’s consent.

27:18 Speaker 2 Consent helps for a window.

27:21 Speaker 4 Not for a window.

27:21 Speaker 2 It does help for a window.

27:23 Speaker 4 For actually looking.

27:24 Speaker 2 Not for actually looking.

27:25 Speaker 4 That’s prohibited.

27:25 Speaker 2 That’s prohibited. We’ll soon see it in the Alter Rebbe’s wording.

27:27 Speaker 4 And what if I didn’t close it off? But I understood that, because he consents, we also don’t make full use of the courtyard; he stays inside.

27:35 Speaker 2 Yes, but he still has his privacy there. Now, if he explicitly agrees that you may look at him in the courtyard, that’s fine. But agreeing that you may open a window doesn’t mean he agreed that you may look at him in the courtyard. Okay?

27:47 Speaker 4 If he agreed—if I’m looking outside, I’m looking at the view, I like the view, but if I’m on my balcony facing the courtyard, may I sit on my balcony?

27:56 Speaker 2 You’re looking outside and happen to see it along the way. That’s actually section 13. We read it last week. So let’s now read the end of section 11, and then section 13. The end of section 11: “And even if he sees him”—the second line of the fourth paragraph—“and remains silent, perhaps he is embarrassed to say anything.” In other words, he sees you looking through the window and doesn’t say a word. Elsewhere, the Rosh says that in neighborly relations, silence is generally considered a waiver. There are various kinds of silence that count as a waiver. But here, where privacy is concerned, a person may be embarrassed. So he stays silent because he’s embarrassed to say, “Why are you looking at me?” “And even if his neighbor gave him permission to open a window facing his courtyard, he gave it only for the sake of light.” But he may not stand at the window and look into his neighbor’s courtyard. He gave you permission to open the window so you’d have light in your home, not so you could look in. But if he actually agrees that you may look at him, and it’s in the courtyard rather than the home, then apparently there’s no problem. Because there’s not only the issue of privacy; there’s privacy and there’s modesty. We’ll see in a moment. Now let’s move to section 13. Let’s see what happens if someone is looking at the view, not at the courtyard. We spoke about this last week: the example of a bus stop. Someone sits at the stop with balconies across from him. So let’s see. The Alter Rebbe says here in section 13: “Some say that a person must take care not to stand opposite the entrance to his neighbor’s home or courtyard and look inside, even with a passing glance, when he has no intention whatsoever of looking in to learn about his neighbor’s affairs. Rather, he should turn his face away when standing opposite the entrance to his neighbor’s home or courtyard, so that his neighbor will not suspect him of intending to look in to learn about his affairs, and he will not be regarded as a thief.” You’re standing there. Why are you loo—why are you standing there? Apparently you want to

29:55 Speaker 2 see me. In other words, not only is it prohibited to look at another person, or to see him, but even creating the impression that I’m looking at him is prohibited.

30:06 Speaker 5 Where do you see here that he wants to look?

30:08 Speaker 2 What?

30:09 Speaker 5 That he’s thinking of stealing.

30:11 Speaker 2 I don’t think so.

30:12 Speaker 5 I don’t know what.

30:12 Speaker 2 No, “regarded as a thief.”

30:14 Speaker 5 One who wants to look.

30:16 Speaker 2 To know his affairs. He is treated like a thief—that is an expression for someone doing something without permission. And why? Because he has no explanation for why he is looking. He has no explanation for why he is looking, no excuse. A “claim” here really means an excuse. He cannot say, “Oh, I wanted to…” Now, someone standing on his balcony looking at the view has an explanation, and it is also true: he is looking at the view. So if there are balconies across from him, too, there would seem to be no problem. Someone standing at a bus stop on Shabbos, looking in the direction the bus comes from, can say, “I was looking to see whether the bus was coming.” There may be a balcony opposite him as well. But if he is facing a direction where he has nothing to look at, there is the problem that people will suspect him. Now he might say, “Wait, people in the public thoroughfare pass by there too, and they see you. What do you want from me?” So he says, “Even people in the public thoroughfare are not permitted to stand and look.” They cannot stop, turn around, and look. They pass by. “But if they merely catch a brief glimpse as they walk, there is no concern.” Now, earlier we said that a person has privacy in his home, and it is forbidden to see into that private space. Not just to look—even seeing is already a problem. Here, though, we are talking about someone with a doorway or window that passersby can see through, and nevertheless he tells you, “Don’t stand and look,” because they do not stand and look either; they only catch a glimpse. But seeing alone would seem to be a problem. So perhaps someone could say, “That’s it, your privacy is already compromised. People can see you. End of story. Let me look too.” But he says no. He says, “I can take precautions against that, and I must be discreet in activities where even a brief glimpse would be uncomfortable for me.” He knows people can see him,

32:11 Speaker 2 so he… I’ll give an example: taking off his clothes. Right? After all, Siman 2 of the Shulchan Aruch says to do that under the blanket, but let’s speak theoretically. He will not do that, because he knows people can see him. But other things, where it does not bother him if someone walking past catches a glimpse, he will not refrain from doing. You, however, standing there and looking, would bother him. That is why you may not stand and look, and people in the public thoroughfare may not stand and look either.

32:42 Speaker 6 But that is—

32:42 Speaker 2 The question is, what does he mean? Earlier he said, “to look into his fellow’s courtyard to see his affairs.” What does “see his affairs” mean? Interesting—perhaps I had not noticed that precise wording, because earlier the Alter Rebbe said, “his affairs, his fellow’s affairs.” What does “his affairs” mean? Does it mean things the person himself is doing? Perhaps we can learn this from the laws of sukkah. Regarding a sukkah, it says that because a person is pleased for a mitzvah to be done with his property, one may enter someone else’s sukkah and eat there. But what does it say? Only if the owner is not there. Why? Because perhaps he does not want the other person to see his affairs. What follows from that? If the owner is not there, there is no problem. Perhaps we can learn from this. Now, what about courtyards and balconies today? What does the Alter Rebbe say about courtyards? As I have said many times, in the section of Choshen Mishpat that he composed, the Alter Rebbe avoids anything involving cases to be decided in beis din. He deals only with what is permitted and what is forbidden. Now, regarding courtyards, we said there are two separate matters. There is what you may or may not do. Beyond that, one person can demand of the other, “Build a wall between us.” That demand is already a monetary matter, a case for beis din. Take him to beis din, bring a claim against him, and tell him, “Build a wall.” You are not supposed to go to beis din; you are supposed to work it out yourselves. Nobody asked you to come to beis din. If you want to go to beis din, that means there is already a dispute and you cannot work it out. So the Alter Rebbe did not write his work for that. He wrote it for one person who wants to know, “What may I do, and what may I not do?” Or for two people, but they too are asking what is permitted and what is forbidden. Notice that regarding a

34:25 Speaker 2 courtyard, he chooses one law. There is an entire siman in the Shulchan Aruch about courtyards, with all sorts of details. The Alter Rebbe picks out one law. Everything we discussed before and after this is in the Shulchan Aruch. The prohibition against looking itself appears in the laws of damages, not in the laws concerning neighbors. When you look, you cause harm. Looking itself falls under the laws of damages. Courtyards, windows, and doorways appear in the laws concerning neighbors. What does the Alter Rebbe do? He brings the laws of damages: one may not stand and look, because it is forbidden. What does he take from the laws concerning neighbors? Only the prohibitions. So let’s see what he wrote about a courtyard. “Therefore,” in the third se’if, “if two people live in one courtyard and are poor, and cannot afford to build a wall in the middle of the courtyard to divide it in two…” Now notice: it is not that they do not want to.

35:20 Speaker 6 They do not have the money.

35:20 Speaker 2 They do not have the money. They would like to put up a partition. Both of them would like to put up a partition, but they do not have the money. Now notice where they get the funding: “…to divide it in two, so that neither one looks at his fellow’s affairs while he uses the courtyard. If they can obtain charity funds to make a simple partition between them, they do so.” Notice that there is a prohibition here, and a mitzvah to prevent its violation, because they use that space. It is not that they have a house large enough for everything. They do want to use the courtyard, and when each sees the other, there is a prohibition involved. Now, they cannot help it; they have no money. So if they can obtain charity funds, they take them to prevent this violation. Seemingly, nowadays a person would be permitted to use maaser money for this. If it is a courtyard used for relatively private activities—and, incidentally, sitting down to eat is simply one of those private activities; that seems to follow from a note of his somewhere. Eating is a private activity. So if it is that kind of courtyard, it would seem possible to use maaser money to fund the partition.

36:30 Speaker 7 Only if they do not want to.

36:31 Speaker 2 If they do not want to, yes, of course. Yes.

36:35 Speaker 7 It is not just a partition. If he builds a balcony overlooking his neighbor, he can see in. He can set up the table in any [unclear], so that is called [unclear].

36:43 Speaker 2 Let’s see. Right, we will move on to balconies now. At the moment we are discussing a courtyard; next we will move on to balconies. Now, “If not”—if they have no means to do it. There is no charity fund in that place, no way to obtain the money. They must take every possible care not to look at one another’s activities in the courtyard. Once the other person has not given you his consent, you have to be careful. But I think the Alter Rebbe may, perhaps, resolve something here. The source for this entire prohibition is the Yad Ramah. The Yad Ramah discusses the prohibition. The Alter Rebbe cites it in se’if 12 concerning a doorway opposite a doorway and a window opposite a window. Now he uses the language of prohibition not only for a doorway, but also for a courtyard. On the other hand, when there is consent, he says only about a doorway opposite a doorway that consent does not help, because it cannot help. Consent cannot permit something forbidden. He does not say that about a courtyard. Why? If it is forbidden, consent should not help. From the Alter Rebbe’s wording here, though, we can understand the distinction he is making. Once they have not given each other consent, they use the area for private activities. So there is a prohibition, and they must take care not to look at one another’s activities in the courtyard. In that situation it is considered forbidden. But consent does help, because consent will lead them not to use the courtyard for those activities. That simply seems to be the explanation. Now let’s read two lines from se’if 12, and then we will move on to the practical halacha. Se’if 12: “Therefore, it is forbidden to make a doorway opposite a doorway or a window opposite a window, so that one person does not see into his fellow’s space. And even if both consent, some forbid it, because it is not modest for one to see into the other’s space all day,” and so on. That is what we quoted at the beginning of the class, what we learn from Bilam. Okay? So the Alter Rebbe’s wording is “some forbid it.” In most places where the Alter Rebbe

38:38 Speaker 2 brings different opinions, he states a ruling. There are places like this one where he says “some forbid it,” and clearly his intent is to forbid it. He does not tell you the permissive opinion; he brings only the opinion that forbids it. Now let’s come back to this. If there is consent—as we said, consent is effective for courtyards—then nowadays, if two people live next to each other, in cottages, villas, or any such homes, and agree not to put up a partition, that is fine.

39:12 Speaker 7 Why does it say here that they must take care to…?

39:15 Speaker 2 No, then they understand. If they agreed with each other, they understand not to use it that way. Now, actually standing and looking—that’s a very important point. I’m glad you brought it up. Being careful not to see and not standing and looking are two different things. If I’m like those neighbors who didn’t agree with each other but had no choice, then they need, so to speak, to use the space with their backs turned. They need to make an effort not to look, because there was no agreement. But notice the wording. You can see it very clearly in the Alter Rebbe’s wording. Earlier, he said it is forbidden to stand and look, and even if someone agreed to let you open a window, you may not stand and look. That means actively looking. So if I received consent, I can use my space freely. I don’t have to put something up here so that I won’t see. I can use it freely, but I must not deliberately look. I must not take the initiative to look. But if I didn’t receive consent, I need to be careful and make an effort not to see. That’s also the wording: “be careful not to look.” Why does it say “not to look” here? Because apparently, there’s nothing you can do about seeing. Seeing is—and seeing is more harmful inside a home. In a courtyard it also causes harm to privacy, but in terms of modesty, it’s more harmful inside a home, because people do things at home that they would find it difficult for others to see. In a courtyard, they do fewer such things. Deliberately looking, though, is another matter. So here, consent is effective. Today, explicit consent is effective. The same applies when people buy apartments in a building with balconies next to each other. That too is a kind of consent, because I bought the apartment knowing there was a balcony. I took into account that if I wanted a partition of some sort, I would have to put one up myself, or I would know not to do private things there and would do them inside. So that is

41:10 Speaker 2 a kind of consent, and therefore it works. Now, what happens if there was no consent? I see we’re already running out of time. Shall we cover one more point and continue next week? If there was only silence, silence is generally taken as agreement. But notice that one case has dropped off the list here. Earlier, everything was permitted except for a window and an opening. Suddenly, one case has dropped off: two courtyards. Why? Does anyone have an idea? With two courtyards, silence is not enough.

41:43 Speaker 8 But he made an opening here. He was afraid that—he’s afraid the other person will say to him, “Why are you looking?” even when he isn’t looking from the window into the courtyard. So he was afraid of something. Maybe that too—

41:50 Speaker 2 He’s embarrassed. Embarrassed.

41:52 Speaker 8 So he should tell him.

41:53 Speaker 2 Okay, embarrassment would seem to apply to the looking itself. But why—people aren’t embarrassed to say, “Come on, put up a partition. Why aren’t you putting up a partition?” There are three reasons given in halachah. We’ll give one reason and end with that today. There was never a particular moment when something happened here. We live here. As is the Jewish custom, we put things off—we put everything off. It could be that both of them want to put up a partition, but another Pesach goes by, then the next Pesach, Shavuos is a few weeks away, then a few more Shavuos holidays go by, and time passes. There was no particular moment. If I open a window—notice that a window facing a courtyard is worse, yet silence is effective. Why? I opened the window, and at that moment he should have said to me, “Hey, why are you—why are you opening it?” He was silent; he agreed. There is a dispute about whether it takes three years or [unclear]. But here, silence is supposed to help. With two courtyards, though, there was no moment when a concrete action took place, so it doesn’t help. Silence doesn’t help in this situation.