Damage from Visual Intrusion Through Open Windows - Rabbi Yisrael Metuf shlita

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

00:10 Speaker 2 We’ve reached the class—the hot topic, the most practical, the most hands-on. There were a lot of introductions. We talked about hezek re’iyah, harm caused by looking into someone else’s private space: what you’re not allowed to do, where you’re not allowed to look. Now for the practical questions: courtyards, balconies, windows, and doorways. Those are four types we have today. What do we do? What can we do? What’s permitted? When does consent help, and when doesn’t it? We’re actually coming back to something here. We discussed the foundations and started talking a little about courtyards and balconies, but we didn’t finish last week. We’ll finish that, and then move on to doorways and windows. And the next class, with Hashem’s help, will be even more practical: security cameras, drones. One more thing, if we have time today: my uncle asked me after the class about harm caused by hearing. Is there such a thing? We’ll talk about that too. So here you see balconies, here you see windows, and the question of whether consent or local custom helps. And to recall the reasons for the prohibition: modesty, the evil eye, and lashon hara. Those are the reasons given by the early authorities. Modesty; the evil eye, which harms the person you’re looking at; and lashon hara, meaning gossip. You look, and that later leads to lashon hara, to gossip. Now, can someone give his neighbor permission? “I agree. Put a doorway opposite my doorway, a window opposite my window. Look into my home.” Does that help? That’s the question relevant today. Why? Because we said last week that today, anyone who buys a home is essentially agreeing to the existing situation. He knows there’s a building right next to his building. He knows that’s also the norm in the area, so he agreed to the situation as it stands. Does his consent help? Is consent effective or not?

02:21 Speaker 3 I paid for it. I don’t... I can sell it too.

02:27 Speaker 2 If it’s a right that carries over when the house is sold.

02:30 Speaker 3 I chose the house, and the next person who comes to it...

02:39 Speaker 2 In principle, if someone has, for example, a pipe dripping water from his air conditioner into his neighbor’s courtyard, and he got that neighbor’s permission to do it, and then the neighbor sells his house to someone else, the buyer takes on the existing situation with all its implications.

03:00 Speaker 3 He won’t know about it until he lives there.

03:02 Speaker 2 So he might be able to tell the seller, “This sale was a mistake. A house with a dripping pipe? No, no, that’s not the kind of house I meant to buy.” But the seller might tell him, “Listen, walk around, look, see for yourself.” Now here’s the question—pay attention. There’s explicit consent: you go to someone’s home and ask him, “Do you agree to my putting in a pipe, opening a window, not putting up a partition?” Things like that. But then there’s something that isn’t exactly explicit consent: a person stays quiet for years, says nothing. Or there’s a local custom. I deliberately mentioned them this way, because each has something the other doesn’t. Sometimes custom is stronger, because it’s something binding, something everyone follows. Sometimes silence is stronger, because I personally kept quiet. Custom is what everyone around me does; I didn’t say anything myself. With silence, I was the one who kept quiet. So each has an advantage. Now, to keep this from getting complicated—and there really are some very complicated issues—for each of these, a courtyard, a window, a doorway, there’s something that helps. Consent helps with one, silence helps with another, custom helps with something else; this helps, that doesn’t. It’s a whole tangle. To keep it simple, we won’t discuss silence. It’s less relevant in practice. It happens: a private individual opens a window, his neighbor stays quiet for years, and then, if it happens to someone, he can go to a beis din—or, better yet, work it out with his neighbor. But if they can’t work it out, he should go. Since silence isn’t such a general issue, we’ll leave it out so we don’t get bogged down. We’ll talk about custom. There’s consent, and there’s custom. Now, generally speaking, when you bought a house, you agreed to its existing condition. That’s consent. We’ll see

05:03 Speaker 2 when it helps and when it doesn’t. But if you bought a house without a window or balcony, and now you want to open a window or add a balcony, you can’t say that anymore—the neighbor never agreed to it. The only thing you can tell him here is, “Listen, that’s the local custom.” Then we have to check whether it really is the custom, and whether custom helps. So let’s see. I won’t repeat all of this, but we saw that there are many levels of hezek re’iyah. Today we’ll set aside everything lower down on the list. We have courtyards, a window overlooking a courtyard, and courtyards facing each other. Then we have windows and doorways. We spoke about courtyards: in the past, people did many things—most of their activities—in the courtyard, but still not the kinds of private things they did inside the house. Inside the house, those activities are private. So regarding a house, the Alter Rebbe says—let’s look at it for a moment in source number six: “Therefore, one may not open a doorway opposite a doorway or a window opposite a window, so that one person will not see the other’s activities. And even if both agree, some forbid it, because it is not modest for one to see the other’s private activities all day long.” Then he brings the verse about Bilaam, and so on. In other words, consent doesn’t help either, because it isn’t modest. He can’t consent to it. You can’t waive a prohibition. If it’s forbidden, it’s forbidden. So here things get complicated. Let’s talk now about consent. For all these other things, consent helps. If it’s a garden, a roof, or courtyards, people can agree. “I agree to your opening that up; I agree that you don’t have to put up a partition”—all of that works. But when you get to a window opposite a window, or a doorway opposite a doorway, consent doesn’t help. So what difference does it make that I bought the house that way today? So what if you bought it that way? So what if they agreed? Close

07:09 Speaker 2 the window now, because you’re not allowed to have a window opposite a window. Okay, that’s how it would seem. In a moment we’ll see that a solution can be found even today.

07:21 Speaker 4 Custom, custom. If there were people who—

07:23 Speaker 2 Ah, now we’re getting to custom. The halacha we just discussed concerns consent. In this case, custom can’t be stronger than consent. There are isolated cases in halacha where custom is stronger than consent—maybe one case. In principle, someone’s explicit consent is the strongest thing. With custom, all you’re saying is that the custom suggests everyone here follows it, so presumably he agreed. But explicit consent is stronger. So if the Alter Rebbe says consent doesn’t help with a window opposite a window or a doorway opposite a doorway, custom won’t help either.

07:58 Speaker 4 It’s prohibited.

07:59 Speaker 2 There’s a prohibition here, and custom won’t help. What’s more—and we’ll see this now, in source number one—there’s a long responsum by the Rashba here. I won’t read all of it. I brought it last week too, but we didn’t have time to read it. Let’s read the beginning. It’s a very well-organized responsum. Someone asked the Rashba, “Is custom something you can rely on?” That’s how he asked it. He didn’t explain what kind of custom he meant—whether it concerned prohibitions or monetary matters. He didn’t specify anything. So the Rashba says: “You asked about custom: in what circumstances is it appropriate to rely on it?” He says: “In response, I do not know which custom you are asking about: customs concerning what is forbidden and permitted, customs concerning monetary law, or both. I will therefore have to discuss this at length with you.” And it really is a fascinating responsum. He gives something like a survey of all the areas of Torah law concerning custom, spelling out which kinds of custom help and which don’t. Toward the end of the responsum, he gets to monetary matters and mentions our subject. That’s the next passage. He tells him: “Likewise, we follow local custom even if people did not expressly agree to it.” What example does he give? “As we learned: In a place where the custom is to build with rough stone, dressed stone, half-bricks, or bricks, everything is built according to local custom; and ‘everything’ was explained to include even a partition of branches and reeds.” In other words, a partition must be put up between two courtyards. What kind of partition? That depends on the custom. If the custom is to put up a wall six tefachim thick, that’s what you do. And the Mishnah concludes, “Everything according to local custom.” The Gemara says that this includes even a partition of branches and reeds. That’s acceptable too. It all depends on the custom. “But,” says the Rashba, “nevertheless, if the custom is not to be concerned at all about hezek re’iyah between houses and courtyards, it is a mistaken custom and is not a custom.” He says that custom

10:07 Speaker 2 It could be something like the type of wall, or all sorts of rules in monetary matters. But when it comes to visual intrusion, which the Torah says constitutes damage, if people have a practice of not being particular about it, he says that is not a valid custom; it is a custom based on a mistake. Let’s go a little further. “For waiving one’s objection applies only to monetary matters, where a person is entitled to give away what is his or waive his rights to his property.” Anyone can decide, “I’ll give you a hundred shekels, I’ll give you a thousand shekels, I’ll let you damage my property.” That’s fine. But he is not entitled to breach the boundaries of Jewish practice, to act without modesty, and to cause the Shechinah to depart from the Jewish people. There are a lot of corrections down here. To cause the Shechinah to depart from the Jewish people. Then he brings the Gemara: when entrances do not face each other, they are worthy of having the Shechinah rest among them. What does that tell us? When entrances do face each other, the Shechinah departs. Can you adopt a practice that drives the Shechinah away from the Jewish people? That isn’t a valid custom. That’s not how we conduct ourselves.

11:14 Speaker 5 Not because of damage to the Shechinah—because of modesty.

11:16 Speaker 2 Modesty. He mentions the windows here, actually. Yes, no, not the evil eye. Right, not the evil eye. Later he goes on to... By the way, regarding the evil eye, there’s a line in the third section—the long one, actually the second long one—beginning “that it is not a custom.” He writes, “And all the more so a garden.” Now, that “and all the more so” needs correcting. Let’s read it as “And a garden.” “And a garden or an open field, which our Mishnah makes dependent on custom.” Regarding a garden, it says explicitly that custom determines the matter. How can it? After all, there’s the evil eye, which damages his garden. The Rashba says: “The evil eye is a monetary matter.” There it isn’t about the Shechinah; it’s damage. You’re harming me through the evil eye. That can be governed by custom.

12:05 Speaker 5 He can waive that.

12:07 Speaker 2 Yes, he can waive that.

12:08 Speaker 5 Yes.

12:12 Speaker 2 Yes. Okay. Next, notice the line beginning “damage.” Here he really starts to say, “And I am inclined to say that even an explicit waiver would not help.” And notice, this isn’t about courtyards here, or windows. He wants to say, “And I am inclined to say that even an explicit waiver would not help.” But that’s why I brought the second responsum of the Ran, where, in the end, he says, “I do not rely on what I said as a practical ruling,” and a waiver does help.

12:37 Speaker 5 In courtyards?

12:38 Speaker 2 In courtyards. What?

12:40 Speaker 5 In courtyards.

12:41 Speaker 2 Oh, a courtyard has the issue of privacy. We have—

12:45 Speaker 5 Even if he’s looking through two windows.

12:47 Speaker 2 No, apparently not.

12:48 Speaker 5 Apparently not. Why?

12:50 Speaker 2 But if he doesn’t consent to your looking, then it’s a problem of modesty. If he does consent, that problem falls away. There are two ways to explain this. Last class I suggested an idea: people also used courtyards for private activities—what we call private activities—like eating, doing laundry, things like that. Now, if he doesn’t consent to your looking and you look anyway, that’s also a problem of modesty. If he does consent, then he’ll naturally be less likely to use the courtyard for private activities, or something along those lines. That’s one possible explanation.

13:19 Speaker 5 What about the Ran? Was he talking about a house or about—

13:22 Speaker 2 He started with courtyards. He was talking about courtyards.

13:24 Speaker 5 Courtyards.

13:25 Speaker 2 Yes. Now, he mentions houses and courtyards together.

13:28 Speaker 5 Why does he say custom won’t help?

13:30 Speaker 2 Custom won’t help. Now, really, really—because it’s a custom connected to modesty.

13:36 Speaker 5 It’s not modesty. What—

13:38 Speaker 2 Yes, it is connected to modesty.

13:42 Speaker 5 In the end he says—

13:42 Speaker 2 Regarding a waiver. Regarding a waiver. He says, “I am inclined to say that even an explicit waiver...” Now, he is inclined to say that, but in the end he goes back and says a waiver is fine; it works. But where? In courtyards. Okay? I hope I haven’t confused you.

13:57 Speaker 5 Not in a house.

13:57 Speaker 2 Not in a house. So what comes out of this—what?

14:01 Speaker 5 In courtyards, yes.

14:01 Speaker 2 Right. Right, right, right, right. In the end, in another responsum, he says he doesn’t rely on what he said. So what comes out is that for a garden, a roof, courtyards, or a window facing a courtyard, a waiver helps in all these cases. Yes, that is the halachah. There are some minor disagreements here and there. I deliberately kept it simple: this is what we’ve learned so far, that a waiver helps in all these cases. For a window facing a window, or an entrance facing an entrance, a waiver does not help. And we’ll see what is done today.

14:27 Speaker 5 If he’s in a courtyard, isn’t that a problem of—

14:30 Speaker 2 Right. Right. He can demand that the other person join him in building a partition. Now, regarding remaining silent, I said we’d skip that. There’s another distinction there. As for whether local custom helps, take note: with courtyards and beyond, custom does not help. With a courtyard or a window, custom does not help.

14:53 Speaker 5 A waiver.

14:53 Speaker 2 A waiver does help. So that’s where we stand. Now let’s turn to our own time, in practice. Let’s start with courtyards. Backyards of houses next to each other—even if one is some distance from the other, but the people can see into each other’s yards. What did we say about courtyards? Custom doesn’t help, but a waiver does. Now, take note: here I’m telling you what I think. Tell me what you think. This isn’t... From here on, these are conclusions drawn from what the Alter Rebbe writes. There’s a book called Mishkan Shalom. Its author, someone named Segal, gathered all the material and did really thorough, systematic work on this subject. So with courtyards, let’s think: is there an explicit waiver here, or a custom? I think there’s neither. What do I mean? I’ve just bought a house next to another house. Did I take into account that I’d have an open yard alongside another yard?

16:05 Speaker 5 On the table.

16:06 Speaker 2 I bought it—there’s a big difference. There’s a big difference between buying a house with a window facing another window, where I know that’s what I have, and buying a house with one yard next to another. Who said we won’t put a partition between them afterward? A lot of people do that. A lot of people want to. Look, you could even say—let’s talk about custom for a moment; afterward we’ll talk about explicit consent. Can you say there’s a clear, universal custom not to put partitions between courtyards? I don’t think you can. Many people put them up. People want privacy, so they put up a partition. If so, when I buy the house, I might say to myself, “I’ll buy it and put up a partition afterward.” I couldn’t put one up before I bought the house. There was no explicit waiver here. On the face of it, with courtyards, there is neither a waiver nor a custom. Based on that, let’s see where it leaves you now—the new residents living there. If both of them want to leave things as they are, without a partition, they may.

17:08 Speaker 5 I want to put up a partition.

17:09 Speaker 2 If one of them wants one, can he demand that the other share the cost?

17:15 Speaker 5 The other one.

17:15 Speaker 2 Maybe. Maybe it works that way. That needs... There’s a bit of a question here. Why? With the courtyard discussed by Chazal, the halachah is clear: one person can demand it of the other. They share the cost and build a partition. But back then, people used their courtyards for more private activities. Most of their activities took place in the courtyard. Today’s courtyard is used less than the courtyard of Chazal, so this needs to be considered. The author of Mishkan Shalom also wrestles with whether you can require the other person to contribute to building a partition, because the situation isn’t quite what it used to be. But the inclination is that you can. That is more likely the answer.

17:49 Speaker 5 What about the case where one person built three sides and the other added one more? Isn’t that because he showed what he wanted?

18:00 Speaker 2 Yes.

18:00 Speaker 5 In other words, couldn’t it be because he showed what he wanted?

18:04 Speaker 2 That case concerns an open field, fields where there is no obligation to build a partition. It’s about cases where there’s no obligation to have a partition, but nevertheless, because he built it, because he showed that he wanted it, he does have to pay.

18:16 Speaker 5 Today, when you buy a house, you’re buying a finished house. There are fences; the properties have defined boundaries.

18:25 Speaker 2 Okay.

18:30 Speaker 5 You know what’s there. There are already partitions between them.

18:33 Speaker 2 Not a partition. I’m talking now about adjoining courtyards. One person removes something, another plants trees, another puts something up... Yes, like that case. Huh? I know the boundaries, but I don’t know...

18:46 Speaker 5 What’s the issue? You know what you’re buying the house with, whether there’s a partition. Most buyers are fine with it.

18:50 Speaker 2 What will the contractor put up?

18:52 Speaker 5 He knows.

18:53 Speaker 2 I think that often the contractor sometimes puts up a high partition and sometimes a low one.

18:58 Speaker 5 You know exactly what it will be. Don’t you agree?

19:03 Speaker 2 Yes, but I don’t know that it will stay that way.

19:05 Speaker 5 What difference does that make? I don’t know what will happen either.

19:08 Speaker 2 I don’t know that we’ll live like this. It could be—

19:11 Speaker 5 You buy a house; you buy it as it is. What do you know? Exactly that. They give you something finished.

19:16 Speaker 2 But because many people move in and put up a partition right away, it’s as though the decision is left to the people living there. So there was no explicit consent here. “I agree to live here without a partition”—there was no such agreement, on the face of it.

19:29 Speaker 5 To look, and they won’t understand.

19:31 Speaker 2 If he can require the other person to do it, then that makes a practical difference. He can require the other person to put up a partition. Now, apparently there’s another practical difference. The Alter Rebbe writes—we read this last week—what happens if they both want a partition but don’t have the money? What does the Alter Rebbe say? First of all, they can take money from tzedakah to pay for it. And if they can’t take from tzedakah, they should be as careful as possible not to look at each other. In other words, they have to use the space in a somewhat inconvenient way, being very, very careful not to look at each other. Now, what happens if someone agreed to let you go without a partition? Apparently, in that case you don’t have to do that. True, the Alter Rebbe says he agreed to let you open a window. He didn’t agree to let you stand there and stare. Fine, that’s true, but I don’t have to keep turning my back every time I walk around my own house so I won’t accidentally see him. He allowed me to open a window. I use my home normally.

20:26 Speaker 5 Like you said here, the fact that someone—

20:28 Speaker 2 Right. The Maharsha also mentions this. There’s seeing, and there’s looking intently. So in principle, if he hasn’t agreed, even seeing is forbidden. But if he has already agreed, seeing is permitted, because it’s hard to avoid seeing. Looking intently, though, observing him—that’s already forbidden.

20:47 Speaker 5 What do you mean by [unclear]? All the public areas, all the spaces, all the courtyards are together; there’s no courtyard—

20:55 Speaker 2 A shared courtyard is shared. There’s nothing to debate about that. So, regarding courtyards, apparently there’s neither a waiver nor an established custom, and therefore one can seemingly demand a partition. I said there’s a little room to discuss it, but apparently one can. Now, just as an aside, I started—I mentioned this at the end of the last class: If it stood for several years without a partition, would we say that an established right was created? That there was agreement, and so on? That isn’t considered agreement, because there was no particular moment when I did something—like if I opened a window and the other person kept quiet, I could say, “Look, the fact that you kept quiet is evidence.” But here, it was simply like that. We put it off, put it off, put it off. After five years I say, “It’s time to put up a partition.”

21:42 Speaker 5 There’s no situation where he filled it in on his own. It’s supposed to be—

21:46 Speaker 2 The situation changed.

21:47 Speaker 5 The situation at home changed. I have children, I have grandchildren, I have daughters. I have daughters.

21:52 Speaker 2 Yes. If there was an agreement, there was an agreement, and then there’s nothing to be done. There was an agreement.

22:00 Speaker 5 The homeowner.

22:02 Speaker 2 What?

22:03 Speaker 5 Someone in the home; other people live there. But I can decide if I’ve decided about—

22:09 Speaker 2 The homeowner—the homeowner who owns the property. By the way, the Rosh says something very interesting. He says, “The demand to put up a partition stems from the harm caused by being seen, but at this point it’s like a financial arrangement between us: I can demand that you put up a partition. Now, once I waive that right, it’s as though I’ve waived a monetary claim. I’ve waived my right to require you to put up a partition.”

22:34 Speaker 5 If it’s a hundred thousand—

22:35 Speaker 2 That’s it, then; it’s settled. I can’t change my mind afterward. I want to think this through. By the way, some discuss this question: Wait, now you’re putting up a partition, but until now I had a view. You’re blocking my view. Apparently, that isn’t a valid claim. Balconies. On the one hand, balconies are similar to the rooftops of old. A rooftop was an elevated place. A sloped roof wasn’t used, but a flat roof was used a little, and it was an elevated place. And here’s something interesting: What do you think—adjacent roofs or roofs farther apart—which need a partition more? Adjacent or farther apart? What do you think? What?

23:26 Speaker 5 Adjacent.

23:27 Speaker 2 What?

23:28 Speaker 5 Adjacent.

23:29 Speaker 2 Do adjacent roofs need one more, or do roofs farther apart need one more? The Rema says that if they’re adjacent—people didn’t use rooftops all that much either; they only used them occasionally—then when I go up to my roof, I notice if someone is next to me. I’ll know not to use it while someone is there, so there isn’t much of a problem. But if the roofs are farther apart, I could go up to my roof without noticing that he’s there. Then he’ll see me, and I’ll have a problem of privacy, of harm caused by being seen. That’s why he says that adjacent roofs specifically don’t need a partition, while roofs farther apart do. The Mechaber, the Shulchan Aruch, says neither needs one, because rooftops aren’t used that much. In any case, there’s a discussion there about exactly how to do it and who puts up the partition, since the roofs are far apart—half and half, half and half. It’s quite complicated. Now, apparently this is similar to a balcony today. On the other hand, a balcony today is used more than rooftops were then, because they barely used their rooftops. Today’s balcony is even more like the courtyards of old. A balcony is almost part of the home. So it depends; there are different kinds. I showed you that with the diagram. If a balcony is too exposed, it’s like an open courtyard. People don’t use a space like that very much. And by the way, we didn’t mention this about courtyards either: If a courtyard is so open that everyone walking down the street can see the whole thing, obviously you can’t tell your neighbor, “Put up a partition between us.” Everyone can see in; the place is completely open. So with balconies, if it’s that sort of balcony, again, everyone can see you, and there’s nothing to discuss. If it’s a more private balcony, then apparently it’s like the courtyards of old, where there is a problem of harm caused by being seen. But—

25:19 Speaker 2 Here’s where agreement comes in. Here’s where agreement comes in, because with balconies that face each other from a distance, apparently there is such a thing—most people don’t put up partitions and the like. Some do, yes? I’m not saying no one does. But I think it’s much less common than with adjacent courtyards, where many people put up a partition between them. With balconies, you bought the home; this is its balcony, facing that balcony. If you want privacy, find some way to shield yourself. Apparently. What’s different? Here you see someone coming to add a new balcony. When he comes to add the balcony, you can no longer say, “That’s how you bought the place.” No, I didn’t buy it that way. You’re adding a new balcony. Until now I had a balcony here and I had privacy there. Suddenly you come along, add a balcony next to me, and take away all my privacy. In that situation, he can simply prevent him from doing it, unless he builds it in a way that prevents the problem of being seen.

26:25 Speaker 6 Someone wants to build a balcony at his own expense; it goes there from the first floor up to the third. Of course.

26:34 Speaker 2 Apparently. They say that in Bnei Brak, if you want to close your window, you ask the other person, “Could you pull your nose back in? I want to close the window.”

26:42 Speaker 6 Can he prevent him from building the balcony?

26:45 Speaker 2 What? What?

26:46 Speaker 6 Can he prevent him from building—

26:47 Speaker 2 If there’s no issue of being seen, then again it depends on who owns the space. Today everything is regulated. There are places in Jerusalem and Bnei Brak where everyone builds outward here and there without permits. In that situation, if it really is space that belongs to the whole building, for example—the airspace belongs to the whole building—then you can prevent it. By the way, as an aside, this whole discussion of what I can and can’t prevent is about someone doing something within his own property. He’s in his own home, opening a window or adding a balcony within his own property. There are rules about what one can prevent and what one can’t. But if someone does something in space shared by everyone—for example, what would be an example? As you said, adding a balcony over shared space. Or next class we’ll discuss cameras, security cameras, things like that. He installs a camera in the stairwell. Once you enter shared space, even with the smallest objection, a person can tell you, “I don’t agree to your doing these things on my property,” unless there’s an established custom, and so on. But if it’s my property—only if refusing would be an instance of acting like the people of Sodom is there a rule that we can compel someone not to act that way. They tell you, “What do you care? The person wants to put something here; what do you care?” But if it bothers me, I can certainly say, “I don’t want you doing something on my property that bothers me.” So everything we’re saying here is about someone doing something on his own property. Then there are rules about how far the other person can prevent him and how far he can’t.

28:25 Speaker 6 But it’s a public area; we established that it isn’t mine alone.

28:28 Speaker 2 Right, it isn’t mine alone. So if it’s something everyone customarily uses that way... In a stairwell. In an ordinary stairwell, if it bothers someone to see another person putting out a cabinet, a table, a chair, or a lamp—doing all sorts of things on the stairs—that’s a shared space. If he can explain why it bothers him, he can object. I’m going to—an explanation, because...

28:53 Speaker 6 It’s an eyesore; there are cabinets there.

28:54 Speaker 2 Yes, it’s an unpleasant feeling, things like that. So he can prevent it. If it’s really a place, a neighborhood where everyone does it, then if that’s the custom, that’s something else. Those are the ways people use this space.

29:08 Speaker 6 Usually all the residents are already there.

29:13 Speaker 2 Now, regarding windows and doorways. There are doorways here. It isn’t exactly one doorway facing another, but it could be: if this one were open and that one were open, they would see each other. We said that one doorway facing another is the most serious case. Neither waiving the right, nor custom, nor anything else helps. Today, I think many homes have one doorway facing another. Even the buildings are relatively close together. We already mentioned this in the previous class—no, the one before that—that nowadays, a doorway facing another doorway, which used to be the most serious case, has become the least serious, because today doors are generally closed. If they’re closed, for there to be a loss of privacy through being seen, both my door and your door would have to be open, and then I would see you. Besides, who does private things near the entrance to their home? Today there’s an entryway. In short, the poskim say that nowadays there’s no problem with one doorway facing another. Whether you bought it that way or didn’t buy it that way, there’s no issue of loss of privacy through being seen.

30:19 Speaker 6 First, there used to be a lot of people going down.

30:20 Speaker 2 Oh, that’s about hearing. That’s about hearing. I said we’d talk about it if there was time; we’ll see. In short, doorways are no problem nowadays. By the way, when is there a problem? We spoke about one balcony facing another. There are situations where your balcony faces the other person’s balcony, and you can see not only the balcony but his entire home. You can see his living room. How?

30:45 Speaker 6 An entrance to the living room.

30:46 Speaker 2 Yes. In that situation, I haven’t found any solution. It would seem to be exactly a case where one person sees into the other person’s home. As the Alter Rebbe says, “so that one should not see what the other does all day.” And if the balcony door is usually open, then what solution do we have? Agreement doesn’t help. Even if you say there was explicit agreement—he went to his home, asked him, and the other person agreed—it would seem that something has to be done so that the person on the balcony cannot see what the other does all day. It’s prohibited. That’s what the Alter Rebbe says. Now, regarding windows. This may be the most complicated subject, because we said that with windows, waiving the right doesn’t help and custom doesn’t help, yet many homes today have one window facing another. So I’ll mention two grounds for leniency given by earlier poskim, and then we’ll see how they might apply today. There’s the Maharitatz, who lived in Tzfas. He says that, in principle, under the law, one window facing another is a problem even at a great distance. The Rashba uses the expression “even forty amos.” The Maggid Mishneh says that as long as one can see the other, it’s a problem. Even at a great distance, one window facing another is a problem. The Maharitatz, who lived in Tzfas, says, “Custom can help in a situation where they are this far apart.” When people say custom doesn’t help, that’s when the windows are relatively close to each other. When they’re this far apart, custom helps. He concludes there, “We have not heard of anyone in the city of Tzfas complaining about loss of privacy through being seen from a great distance”—at a very great distance, or words to that effect. So that’s one ground for leniency: when the windows are very far apart, custom helps. Another ground for leniency—he doesn’t say, he doesn’t say exactly. Another is the Tosafos Yom Tov. He writes about the question of one window

32:52 Speaker 2 facing another. He discusses what counts as one window facing another: what if they’re at an angle? He says that, under the law, they don’t necessarily have to face each other directly. Even at an angle, if you can stand there and see the other person, that too is prohibited under the law. But he concludes: all that is the halachah. In practice, though, “go out and see what the people do”—look at the custom, and so on. And he brings support for this. I won’t go into the example he gives here, but it’s an example of one person agreeing to something for the other because he wants the other to agree to the same thing for him. Each agrees for the other. Now, it seems that if he had meant windows directly facing each other, what would it mean that they agree? So what if they agree? Agreement doesn’t help, according to some of the Rishonim, and the Alter Rebbe rules that way. You could say that perhaps he ruled like other poskim, but it’s fairly straightforward in halachah that agreement doesn’t help. It’s easier to say he meant windows that don’t directly face each other and are some distance apart. So it’s true that under the law that’s also prohibited, but custom helps because they don’t face each other directly. According to this, we have two grounds for leniency: either the window is far from the other person’s window, or the window doesn’t directly face it. From this—what? Right. Right, right. What is the Alter Rebbe’s wording? “A doorway opposite a doorway, a window opposite a window.” Right, aligned. So it could be that the Alter Rebbe is lenient about windows that aren’t aligned at all. From this, it would seem possible to derive a leniency for all the windows we have today. What is the issue here? The Alter Rebbe says it isn’t modest for one person to see the other’s private activities all day. Why were the Maharitatz and Tosafos Yom Tov lenient in cases where the windows aren’t

34:49 Speaker 2 close together or aren’t aligned? Because there’s a difference. We discussed the difference between seeing and looking. If they’re really close, like the close, aligned windows you see here—both close and directly opposite each other—then as you move around your home, you simply see. You don’t have to look closely in order to see. So in that case, you see what the other person does all day. But if the window is far away or isn’t aligned, you have to stand there and look in order to see. So you say, “I won’t stand there and look.” As for the window itself, fine—the custom is to regard that as acceptable. So custom can help in such a situation. According to this, today, windows often—most of the time—have shutters, curtains, and things like that. In that situation, it’s true that sometimes people open the shutters and everything, but it would seem that this isn’t a case of one person seeing what the other does all day. It isn’t that my doorway is open—my window is open, his is open, and I see him all day. Sometimes his is closed; sometimes mine is closed. That already reduces the concern somewhat, and perhaps custom can help here. Just as custom helped in those cases, perhaps one can say that custom helps here too. And the Shevet Halevi wrote about this. He wrote that one can find grounds for leniency and so on, but he says that an individual should be careful, if he has such a situation, to keep the shutters and curtains closed as much as possible, so that no loss of privacy through being seen arises. But we won’t come along and say, “Seal up the window, because it’s prohibited.” Since the concern is reduced—because often one window or the other is closed—it would seem possible to be lenient in this matter. There is room for that. So when windows are close or aligned, one should ideally close the shutter or curtain. But if they are offset,

36:49 Speaker 2 meaning [unclear], or far apart, then one can be lenient based on custom. Now let’s finish with the subject of loss of privacy through being heard. What happens if, for example, there are two courtyards and they put up a partition between them, and then one says to the other, “The partition you made doesn’t help. You hear everything I say when I talk in the courtyard”? Or, for example, someone expands his home, as the law permits him to do, and the other person says, “You’re coming closer to me; you’ll hear what I say.” Can he really make that claim? Notice number four here. The Meiri, one of the Rishonim, says: “Once the loss of privacy through being seen has been removed, we follow the custom.” In other words, how do you remove that problem? How thick must the partition be? That depends on the custom. “Even with the flimsiest partition,” even a very thin one. If that’s the custom, you can follow it, “and we are not concerned about loss of privacy through being heard at all.” That is, sound passes plainly from one side to the other because the partition is so thin. Why? “Because people ordinarily take care with what they say.” That’s interesting—do people really ordinarily take care with what they say? He simply means that someone who cares about not being overheard takes care. More fundamentally, you have the option of being careful. If I have no partition and there’s one window facing another, what can I do? I have to shut up the house; he sees me. But if the issue is hearing, speak quietly and he won’t hear you. Number five, and we’ll finish with this. “Nor is it a valid claim that they can hear one another.” The Ra’am, one of the later authorities, writes this. “For we do not find loss of privacy through being heard anywhere in the Talmud, and there is no reason to distinguish between courtyards and houses,” and so on. There too, the case involved a house where someone claimed he could hear the other person. He says we don’t find a concern about being heard in the Talmud. I’ll just say parenthetically that people infer from the Meiri that this applies only where one can avoid being overheard. But

38:55 Speaker 2 If it’s a situation where the person can’t avoid it—for example, someone plants a listening device at someone else’s place—then aside from the issue of “Do not go about as a talebearer” and everything else, there is apparently also a problem of auditory intrusion, because the person can’t avoid it. He doesn’t even know a device has been planted there. In a case like that, there would be a problem of auditory intrusion. So that will be the next class, with Hashem’s help. We’ll talk about listening devices, security cameras, drones—when you can install them, where you can fly them, and so on.