Noise Damage Between Neighbors in Our Times - Rabbi Yisrael Metuf shlita

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

00:09 Speaker 2 Today we’re getting into the more practical side of noise disturbances. Last week we learned the sources and the basic principles, and perhaps came away without very clear conclusions. Now we’ll try to put things in order. We’re in the middle of a series on disturbances between neighbors. We learned about visual intrusion and about overhearing—hearing in the sense of listening to one another. Then we moved on to noise disturbances. This is the middle class on that subject: there are the basic principles, practical halacha, and noise disturbances in our times. In the next class, with Hashem’s help, we’ll discuss noise for the sake of a mitzvah. That also has many details. So what will we learn today? First, even where making noise is forbidden, what happens if it’s the sort of thing people normally do at home? Let’s give an example. We spoke about a store. A store appears in the Mishnah; you can see it here in number one: “If there is a store in a courtyard, he may object and say, ‘I cannot sleep because of all the people coming in and going out.’” A store is an example the Mishnah explicitly identifies as a problem. You can object: your customers are making noise. Why is it a problem? We saw various possibilities. The real question is what happens today. Someone wants to hold a one-time clothing sale in their home.

01:47 Speaker 3 They harm the store’s image and so on. That is the position of the Shulchan Aruch.

01:50 Speaker 2 Right, seemingly there’s no question there, because he moved in knowing that was the situation. Someone wants to open—there are many stores in homes in Ashdod. Yes. Or occasional sales. Or, for example, to open a daycare in the home. People also pass through the stairwell, create congestion in the elevators, and add a lot—add expenses as well. Now, what’s interesting is that whenever I approach these subjects involving neighbors, I’m more careful, because I saw that the Chasam Sofer writes about this explicitly. Someone asked him a question, and the rabbi asking it made a point in the course of his question that the Chasam Sofer agreed with. He said: Once we talk about the issue, all sorts of people will suddenly come forward who weren’t bothered by it before. They’ll hear that it’s being discussed and start objecting and making a fuss. So we have to be careful not to create problems. What we’re learning is more about what I need to do for the other person, and less about what I can demand of them. In fact, that is also the Alter Rebbe’s wording—we’ll see it shortly: “Be careful not to make noise.” Be careful. It’s more about what I must do. So there are things people normally do at home. There may be noise that is ostensibly forbidden, but I’m making it temporarily, not on a regular basis. Is there some leniency in that case? And third, what about the regulations? Before eleven and after eleven? On the eve of a Yom Tov? After a Yom Tov? Are these regulations fully binding on us according to halacha, or are they good practice? What is their status? Renovations are another case. When I renovate, I make a lot of noise that affects someone else. Under the regulations, renovations are forbidden from eight o’clock, unlike ordinary noise, which is forbidden only from eleven. The question is whether that binds us halachically. There are two sides to this: first, permission, and second, prohibition. In other words, until

04:09 Speaker 2 eleven I can make as much noise as I like because it’s permitted, and after eleven it’s completely forbidden. So we’ll look at sources. These things aren’t spelled out this way in the Shulchan Aruch, but there are similar cases, and we’ll look at them together. First, is noise considered damage? I’m giving a brief recap of what we said in the previous class. We said, for example, that visual intrusion is considered damage; the Sages established that it is. Overhearing—when a person isn’t deliberately listening, but there simply isn’t enough sound insulation between the homes—is not considered damage. That’s what the halachic authorities say. If you want privacy, speak quietly. Are noise disturbances considered damage or not? We saw in the Mishnah that one can object to the noise of people coming in and going out, but one cannot object to the noise of a hammer or a mill.

05:12 Speaker 4 It is damage.

05:13 Speaker 2 Exactly. So the question is, what’s the difference between them?

05:18 Speaker 4 If people hold a farbrengen, a birthday party.

05:21 Speaker 2 Exactly.

05:21 Speaker 4 Until three blessings or four. Can the second one be done too?

05:25 Speaker 2 Exactly, that’s the question. Now, with a farbrengen, the question is whether it counts as a mitzvah need. A farbrengen is something of a mitzvah need. So in the next class... What? What?

05:36 Speaker 4 I don’t have the mitzvah—that’s another point.

05:38 Speaker 2 Right, right. Of course, of course. So in the next class we’ll also talk about farbrengens and other similar things.

05:47 Speaker 4 Sheva Brachos.

05:48 Speaker 2 Sheva Brachos, yes. So what’s the difference between people coming and going and the hammer? Why can you object to one but not the other? Last week we saw three approaches, and now we’ll add a fourth. What are the three approaches? There is the Rambam. The Rambam says noise is always considered damage—noise at a level that disturbs people is considered damage. So why does the Mishnah distinguish between people coming and going and a hammer? It’s speaking there about someone who was already doing it and nobody objected. That’s the case it addresses, not someone who wants to start now. If he wants to start now, you can stop him, because it’s damage. But if someone was already doing it, there’s a difference between these two kinds of noise. We explained the difference: the hammer makes a consistent noise, at the same level all the time. With people coming and going, each person has a different manner and makes a different amount of noise. So he cannot say, “You didn’t object to what I was doing.” I didn’t object because the people coming were pleasant and considerate; now suddenly someone is coming who causes more of a disturbance. That’s the Rambam’s approach, and the Shulchan Aruch’s. We said that, according to this, if two neighbors are both Sephardim and follow the rulings of the Shulchan Aruch, then the Shulchan Aruch says noise is a problem one can object to. The question we’ll come to is whether our regulations can override what the Shulchan Aruch says and permit noise until eleven. Okay, we’ll discuss that at the end of the class. So that’s the approach of the Rambam and the Shulchan Aruch. At the opposite extreme is the view of several halachic authorities: the Rif, the Rashba, the Ramban, and the Ran. Several authorities say that noise isn’t considered damage at all. That’s what they say. Noise is not damage, and therefore you cannot object to the hammer.

07:50 Speaker 4 At any level?

07:51 Speaker 2 They don’t make a distinction there. Now, of course, someone asked last week about deafening noise. That’s actual damage. If the noise causes physical harm, experts can tell us what level of noise can physically damage the ears. That is damage. But noise that merely bothers you—fine, it bothers you. That’s what those authorities would say. So why does the Mishnah say you can object to all the people coming and going? Those authorities say it isn’t about the noise. It’s not because of the noise; it’s because of the congestion in the courtyard. People are coming and going. Today, that would be the elevator when children are being brought to a daycare: they occupy the elevator while you’re hurrying to work. There’s congestion, and that’s why the neighbors object, not because of the noise. That’s the view of those authorities. Now, we said this doesn’t seem to fit the Mishnah’s wording: “I cannot sleep because of all the people coming in and going out.” So the Rashba said it means, “I cannot get up and lie down”—in other words, I can’t come and go, leave and enter my home. It doesn’t refer to the noise. That’s how they explain it. Now, the third view: we said that the Rema follows this view. In effect, it’s ostensibly the ruling for Ashkenazim. I mean, according to those other authorities, noise is never a problem—it isn’t damage. But according to the Ramah, Rabbi Meir Halevi, whom the Rema cites—and from the Rema’s wording it appears that he rules like him—it depends on where the noise is, where the person makes it. Where is he making the noise with the hammer? In his own home. You can’t interfere with what he does in his own home. It’s his home; he’s allowed to do what he wants. Where is the noise from the people coming and going? Where do they pass through? The courtyard, a shared area. In a shared area, you can tell him not to do it, because they

09:51 Speaker 2 They disturb me in the shared area. So according to this approach, anything private inside my home is permitted, while anything in the courtyard, or that involves people passing through the courtyard, is forbidden. That is what the Rema brings. I said “ostensibly” earlier because the Rema does not always issue a ruling. Sometimes he brings an opinion and says, “And some say.” At other times he writes, “And this is the main ruling,” or, “And this is how one should rule.” If I’m not mistaken, he does not use language like that here. But in general, in books today it is customary to present this as a difference between Sephardim and Ashkenazim. In other words, according to the Sephardim, following the Mechaber, noise is a form of damage. According to the Rema, if it is inside the home, it is not. But if it is something that brings in customers—like the daycare, store, and similar things we mentioned earlier—then according to all opinions there is a problem, either because of the noise or because of the traffic it creates. Everyone agrees that an explicit Mishnah says this is a problem. That’s where things stand. That’s it. I have seen it written that even in cases where it is permitted, the caregiver or whoever is causing additional expenses will have to contribute some money toward those expenses. Now I want to add a fourth opinion, from one of the Rishonim. It’s source number two on the sheet. He says this: What is the difference between the store, where we said people come and go, and the hammer and the mill? He says that a person is accustomed to practicing his craft inside his home, and we do not prevent him from doing so because of the disturbance to someone’s sleep. I don’t prevent him—that is what “we do not prevent him” means. I don’t. He isn’t prevented by me. I don’t prevent him because of the disturbance to my sleep. But selling is something a person is more likely to do in the marketplace. He says it depends on what is customary. What is customary? Where is it customary to make the utensils? At home. So I cannot stop him and tell him not to make utensils. It is customary to do that at home. That is what he does. Where is it customary to sell? Where do people sell

12:06 Speaker 2 things? In the marketplace. Why are you selling here? Go sell in the marketplace. That is his view. This is the difference between the first and second parts of the Mishnah, between the hammer and the customers. Now, it would seem that the Meiri’s view was not adopted as the ruling. Neither the Shulchan Aruch nor the Rema wrote as he did. But one of the later halachic authorities also makes a very similar distinction—really the same idea, with a slight difference. And you could say that—the Chasam Sofer adopted this distinction as halachah, so you could say it helps make sense of many of our practices today. So let’s look at number three. The Maharalbach, Rabbi Levi ben Chaviv, says this: “If I had permission to speak on a matter discussed by these great rabbinic sages.” He is saying: “I saw that the Rambam says all noise is damaging, and the distinction is whether the person was already doing it. I saw that the Rema says it depends on where the noise is, inside the home or in the courtyard. I saw that the Ritva says noise is not damage. But if I were permitted, I would suggest a different distinction.” That is what he says. “If I had permission to speak on a matter discussed by these great rabbinic sages, I would say that the tanna himself gave the reason for this distinction in the Mishnah.” He says the tanna explained it himself. Let’s see what the Mishnah says. Let’s go back for a moment to the Mishnah in number one. It says here: “He may object and say, ‘I cannot sleep because of the sound of people coming in and going out.’ But he may make utensils, go out and sell them in the marketplace, and the other person cannot object and say to him, ‘I cannot sleep,’ etc. He makes utensils, goes out and sells them in the marketplace.” Let’s see how the Maharalbach explains this. On the third line of number three, he says: “For when he says that he cannot sleep because of the noise, the damage is not certain.” It is not really so clear that this is damage—“I cannot sleep.” It is not such a clear-cut form of damage.

14:17 Speaker 2 “Nevertheless, where we can remedy the situation, we do so.” In principle, this damage is not so clear to me, but if we can fix things so that there will be no damage, I prefer that there be no damage. So let’s see what is necessary and what isn’t. He explains right away. He says: “Therefore, he has permission to work and cut things in his home to earn his livelihood. The other person cannot object and tell him not to practice his craft in his home, since the damage is not certain, as I wrote.” I want to make the—the utensils. Where am I going to make them, if not at home? So I make them at home. Oh, does it harm you? It is not so certain that it does. That is what he says. “But he has no permission to bring people into his home to sell them utensils and the products of his work, because he can go out to the marketplace and sell them.” Like we said earlier—similar to what we said earlier. “And where we can remedy the situation, we do so.” If there is a solution, selling in the marketplace is preferable. “And the tanna himself alluded to this by elaborating and saying, ‘He makes utensils, goes out and sells them in the marketplace.’” Why did he put it in such a lengthy way? “If he did not mean this, that wording would seem superfluous.” So he learns from the language of the Mishnah itself that there is a difference between something a person needs to do there and something he does not need to do there. According to this—

15:48 Speaker 5 A home daycare.

15:49 Speaker 2 Right. Where do you run a home daycare?

15:51 Speaker 5 At home.

15:51 Speaker 2 You run it at home. According to this approach, you would be allowed to run a home daycare at home. Selling at home, though—no?

16:01 Speaker 5 That too.

16:02 Speaker 2 Now, here, I think there is a bit of an echo between the Meiri and the Maharalbach, numbers two and three. The Meiri said: Where is a person more likely to work? A person is likely to practice his craft at home. As for selling, a person is more likely to sell in the marketplace. It is more customary to sell in the marketplace. So why are you doing it at home? Do it in the marketplace. Accordingly, when people hold sales at home, I would ask: Where is it more customary to hold sales? In the marketplace, in a store. Why do it at home? Now, the Maharalbach says he can go out to the marketplace and sell. It comes out the same: he can go to the marketplace to sell. Why is he doing it at home? Now, I have seen it written that sales held at home are often called temporary sales. It is easier. Yes, we’ll see later that there is a difference between something temporary and something permanent, but let’s call them temporary sales. Why are they held at those hours, and at home? Even the regular sales held in the evening are aimed specifically at people who work and do not want to travel far at that hour. They hold them in the neighborhood, so people come by in the evening, go in, go out, and buy things. To some extent, it is customary to hold that sort of sale at home. It depends on where it is customary. Yes, in our neighborhood here it is not customary, but there are neighborhoods where it is, where many people hold sales like that at home. So perhaps that would fall under what—the Maharalbach or the Meiri is saying. If it is customary, you can do it. There is a good example that the Chasam Sofer brings in number four. He cites this Maharalbach and adopts his view as halachah. He writes that perhaps all the halachic authorities agree with him. Then he brings a case of someone who sells wine in his home, and people come, sit, and drink. Now, is it customary to do that

18:08 Speaker 2 at home or not? He argues that in his time it was customary to do it at home. That is what he says.

18:16 Speaker 6 Wine.

18:17 Speaker 2 To sell wine, to sell it. Look at how he writes this. He says: “Now, in light of the words of the Maharlbach mentioned above, it seems there are grounds to rule favorably that one should not object to people selling wine and beer in their homes and upper rooms. Why? Because it is well known that they cannot sell it in the marketplace. The main reason people come is to sit there, drink, and ease their anxieties in a wine house.” They don’t really come to drink the wine just for the taste of the wine. They come to sit and—he says here—“ease their anxieties,” as it were, by sitting in a wine house. Now, where was it customary in his time to do that? In a house; it was customary to do it at or near a house, not in the marketplace. He goes on: “It is not common for wine drinkers to drink in the streets and marketplaces.” It isn’t customary for people to drink wine and dance in the streets. Where do they do it? In people’s homes. “And since it is impossible to sell it in the marketplace, a shop is like hammering.” This isn’t “the final hammer blow” from the laws of Shabbos. It means hammering, as we discussed in the Mishnah. And according to most poskim, even from the outset, if no established right has been acquired, they cannot object. He means most poskim other than the Rambam, who, as we said, holds that noise is always an issue. But according to the other poskim, he says, if one cannot object to hammering, the same applies here: anything that is customarily done at home will be permitted. That is what emerges from the Maharlbach. So here I’ve divided it into two: the Meiri and the Maharlbach. The Meiri bases it on customary practice, and the Maharlbach on necessity. That better reflects their wording. I gave the example here of speaker boxes. So if there is a volume level at which it is customary to use them at home, then even according to the poskim who say noise is a problem, if it is customary, then apparently it would be an accepted thing to do.

20:19 Speaker 2 Lately, very high volumes have become common, with people singing—usually off-key, too—singing like that everywhere... So I don’t know to what extent that has become accepted practice. But apparently, according to this view, customary practice is what determines the matter. Now, last week we asked what happens if the noise is in the middle of the night, outside normal hours. According to the Rambam, who said noise is a problem, it certainly is a problem. But what about the Ritva and the poskim who say noise is not a problem? Can you make noise freely in the middle of the night, and it’s all fine? Last week I brought two approaches. Now I want to add a third, somewhat surprising approach. Tell me what you think. I saw someone writing this, a contemporary author. The first approach, as we said last week, is that nowadays everyone is considered ill with regard to noise at home. As in the Rivash we read last week: someone said his wife was ill and the noise disturbed her, and the Rivash held that this constitutes harm. So nowadays, in the middle of the night, everyone is like someone who is ill when you disturb them. That’s one approach, which says the situation has changed from then to now. Now, a second approach—I didn’t mention this last week. They want to say the following. That same person says—I don’t remember his name. I don’t remember. He says: Take someone who lives near a train, for example, or near an airport. There’s noise at night. Yes, as far as I know, the airport is closed between two and five, but until two and from five onward there’s noise. How does he sleep at home? He gets used to it. Even though it’s loud, little by little he gets used to it. Another night, and another night, and another night—he gets used to it. This author wants to say there’s no difference between then and now, and that even back then it was permitted to make noise in the middle of the night. It depends

22:27 Speaker 2 on what kind of noise, he says. If it happens just once, then he says, “All right, so it’s a one-time thing. You won’t sleep for one night. That’s it. Is that harm? It isn’t.” And if someone starts doing it regularly, then he says, “People get used to it.” That’s what he says. It’s a bit surprising to say that. Maybe one can say it, because there’s a difference between the noise of a train or a plane, which is exactly the same each time, so the ear can get used to it and stop noticing it, and a person hammering here—sometimes he hammers at one rhythm, sometimes at another. It’s a changing noise. But perhaps we could give a similar example: installing an air conditioner. Nowadays someone installs an air conditioner close to his neighbor’s window and runs it at night. He likes to sleep with the air conditioner on. The air conditioner makes noise. Of course, of course, again, ideally all of this should be done with consent, and one should try to buy a quiet air conditioner and place it away from the neighbor’s window, and so on. But perhaps this is similar to the case he mentions—something one might be able to get used to. Again, it depends on the volume of the noise, the hours, and so on.

23:41 Speaker 7 A carpenter hammering at home.

23:45 Speaker 2 Hammering.

23:48 Speaker 7 Yes. Is it permitted or forbidden?

23:49 Speaker 2 Right. Now, according to the Rambam, if it’s disturbing noise, you can object. That’s what follows from the Rambam. According to—yes, you can object to it. He needs to ask permission. What? Right. Now, if it’s at a time when there’s noise outside anyway and people don’t really notice this noise, then it isn’t disturbing and it isn’t harm. But if it is disturbing, it doesn’t matter what time it is. If it bothers people, if it’s something that disturbs them, then according to the Rambam it will be a problem. According to the other poskim, what would the Rema say? “I’m doing this in my own home. What I do at home is none of your business.” Now, I’ll remind you again that all this is still separate from today’s regulations and the extent to which they affect us. We’ll discuss that shortly. Now, a third approach regarding noise in the middle of the night—I’ve seen quite a few authors write this. They say it was a problem even then. Even according to the lenient poskim, who say noise is not harm, they say: What did the Mishnah say? If there is a shop in a courtyard, one can object to the people entering and leaving, but one cannot object to the sound of the hammer. When does someone work with a hammer? When does someone open a shop? During the day—that’s when the shop opens. The Mishnah wasn’t talking about nighttime at all. It was obvious to the Mishnah, these authors say, that people don’t make noise in the middle of the night, so it didn’t mention it. That applies even according to the lenient opinions. That’s yet another approach. Now, regarding what we discussed earlier: what happens when something is temporary? There’s an interesting point here. It’s about something entirely different—not noise, and not voices or sounds. Dust and chaff. Someone opens a threshing floor, and particles fly off and bother people. It says that the threshing floor must be kept away from the town so that it won’t disturb the residents. The wording there is: “A permanent threshing floor must be kept away from the town.” That’s the wording. The Sma comments on this. Sma is the Sefer Meiras Einayim. He says the following—look at number five. He says: “See the Perishah and Derishah”—the Perishah and Derishah are works he wrote on the Tur—“where I proved from the wording of the Rosh, the Tur, and the author of the Shulchan Aruch that when they wrote ‘permanent,’ they meant to exclude a temporary one. When it is temporary and occasional, they did not decree that it must be kept away. This is unlike what the Maggid Mishneh argued concerning the words of the Rambam; see there, where I discussed this at length.” He says it deliberately says “a permanent threshing floor,” because the whole discussion wasn’t about harm that occurs temporarily and occasionally. Now, he wasn’t talking about noise; he wasn’t talking about our cases. But I’ve seen some contemporary poskim who want to say that, based on this, if you hold a one-time event at home—not something regular or routine—there is room to be lenient, because it is temporary and therefore would not be considered harm. Now, before we move on to the subject of regulations, I want to say one more small thing. We said last week that if your neighbor is ill, then according to everyone you need to take him into consideration and not hammer or disturb him, because that hammering harms him. What? You have to. You must. You must. You must. Yes. Now the question is: What does it mean that it harms him? What is the definition of “harms him”? Does it mean, “It bothers me; I’m ill and need more rest”? What level of harm are we talking about? So that same Maharlbach we mentioned earlier, who spoke about what is customary—what can be remedied, one remedies; what is necessary and what isn’t necessary—he presents a basic principle. What defines something as harmful? What does “harmful” mean? There was a case he dealt with, in which someone opened something. So he says the following.

25:48 Speaker 2 the threshing floor away from the town so it wouldn’t disturb the residents. The wording there is: “A permanent threshing floor must be kept away from the town.” That’s the wording. The Sma comments on this. Sma is the Sefer Meiras Einayim. He says the following—look at number five. He says: “See the Perishah and Derishah”—the Perishah and Derishah are works he wrote on the Tur—“where I proved from the wording of the Rosh, the Tur, and the author of the Shulchan Aruch that when they wrote ‘permanent,’ they meant to exclude a temporary one. When it is temporary and occasional, they did not decree that it must be kept away. This is unlike what the Maggid Mishneh argued concerning the words of the Rambam; see there, where I discussed this at length.” He says it deliberately says “a permanent threshing floor,” because the whole discussion wasn’t about harm that occurs temporarily and occasionally. Now, he wasn’t talking about noise; he wasn’t talking about our cases. But I’ve seen some contemporary poskim who want to say that, based on this, if you hold a one-time event at home—not something regular or routine—there is room to be lenient, because it is temporary and therefore would not be considered harm. Now, before we move on to the subject of regulations, I want to say one more small thing. We said last week that if your neighbor is ill, then according to everyone you need to take him into consideration and not hammer or disturb him, because that hammering harms him. What? You have to. You must. You must. You must. Yes. Now the question is: What does it mean that it harms him? What is the definition of “harms him”? Does it mean, “It bothers me; I’m ill and need more rest”? What level of harm are we talking about? So that same Maharlbach we mentioned earlier, who spoke about what is customary—what can be remedied, one remedies; what is necessary and what isn’t necessary—he presents a basic principle. What defines something as harmful? What does “harmful” mean? There was a case he dealt with, in which someone opened something. So he says the following.

28:04 Speaker 2 Look at source number six. The third claim was that Reuven’s wife was sickly and the noise was harmful to her head. That person made the same claim as the rabbi in the case: that she was ill and it harmed her. So he says: “This, too, is not a valid claim.” And here it is not connected to our case, because throughout their lives the noise has not harmed anyone living in the courtyard, young or old, and none of them has left the courtyard because of the sound of the millstones. On the contrary, they would live there all their lives if they were allowed to. Reuven also rents a courtyard from a non-Jew, and although [unclear], the healthy people there are not harmed by the sound of the millstones at all, even if they grow old while living in the courtyard. What he is saying here is: what level of harm are we talking about when a sick person says, “I need to move because you’re disturbing me so much”? It is actually harming him. He is looking for something to do, looking for a solution. So I say: listen, if instead of his having to look for a new place to live, you can refrain from those activities, then you have to refrain. Now, what activities? We said last week that even customary uses—this is how it appears according to the Alter Rebbe—even customary uses, if they are not essential and there is someone here who is ill, you have to take him into account and not disturb him. But apparently it has to reach a certain level. I don’t agree with you about that distinction, but apparently it has to be something that really harms him, not just a minor annoyance. Okay, now, there are several examples here that we actually mentioned. There is the daycare. We said that apparently, nowadays, it is customary to run one in a home. I cannot tell him, “Go do it in the marketplace.” A daycare is run in a home. But suppose there is a particular city or country where there are only daycare centers, and people do not run

30:06 Speaker 2 daycares in their homes. If someone suddenly comes along and runs a daycare in his home, that would be different. It would be like a store. With sales held in a home, apparently it would make a difference whether the sale is occasional or ongoing. If there is a sale once every few months and people come in and out, fine; that is not considered ongoing harm. But if it is something regular, that would be a problem, unless it is customary in that area to hold regular sales in homes. And a washing machine or an air conditioner that makes noise: in principle, nowadays it is customary to install an air conditioner, and a washing machine makes a bit of noise. I don’t know—during the middle of the night that is another matter—but during the later hours of the evening. But if, for example, someone has a very old washing machine that shakes to an unusual degree, that would be different. Or if his air conditioner is too old and makes really disturbing noise, that is different. Now, what about laws and regulations? First of all, we have mentioned many times the principle of dina d’malchusa dina, that the law of the land is law. There is a major dispute about how far it applies in the Holy Land, for several reasons: because it is Eretz Yisroel, and because the government is Jewish. Some say it applies only to a non-Jewish king. Although the Rambam and the Alter Rebbe already say that dina d’malchusa dina also applies to a Jewish king, there are poskim who say that it does not apply in Eretz Yisroel. Why? Because the king’s authority comes from the fact that the land belongs to him. But Eretz Yisroel does not belong to the king; it belongs to everyone, to the tribes. Another point made by contemporary poskim is that even a Jewish king who has authority over the residents has it because he fulfills the mitzvos of the Torah and is subject to Hakadosh Boruch Hu. But when a Jewish government arises that does not act according to the Torah, it cannot be that the Torah gives it the power to act against the Torah. That is what many poskim say. But

32:11 Speaker 2 again, this is a matter of dispute: some say yes, and some say no. The question is, what about our subject? First, the Chasam Sofer says that if regulations are intended to maintain public order and do not run counter to the Torah, then dina d’malchusa dina does apply to them. That is what he says. The second question is: what happens if those regulations have become customary practice? A person buys an apartment today knowing that if he makes noise after eleven, someone will call the police on him. And before—and if his neighbor makes noise before eleven, he will not say anything to him, because he knows these regulations exist. In other words, it has already become accepted practice. The question is whether, because everyone acts this way, it is considered as though everyone has waived their claims against one another. Say there are two Sephardic neighbors, whose case is judged according to the Shulchan Aruch. The Shulchan Aruch says that noise constitutes harm. But what? They have waived their claims against each other, because that is how everyone behaves. The question is whether that waiver is effective. So we will see one source that apparently suggests it is not effective, and another source that suggests it is, and we will explain the difference. I will not go into this at length; it is a bit technical. But the Rosh, in source number seven, gives an example. Someone brings—says to another person, “Take this garment and tear it. Take this vessel and break it. Tear my clothing; break my jug.” That is what he tells him. Whether he said, “You will be exempt,” or did not say, “You will be exempt”—never mind, I will not get into those details. And then, before the person actually does it, he says, “Sorry, sorry, sorry, sorry, I take it back.” Can the other person say, “There is nothing to be done. You said it; that settles it.

34:01 Speaker 2 I am breaking it now”? Or can he say, “I said it, but now I have changed my mind”? The Rosh says that he can certainly change his mind. You cannot say, “You waived your claim.” Why? Because the damage has not happened yet. He waived his claim, but the damage has not happened. If I have already broken it, there is nothing to be done; it is too late. But before I break it, he can change his mind. Accordingly, he says, if one person waived his claim against another and said, “You can look freely into my courtyard. Don’t build a partition; look into my courtyard as much as you like,” in principle he can change his mind and say, “Until now I agreed; now I no longer do,” because the future harm has not yet happened. It is a new instance of harm. By that reasoning, apparently, even if everyone agreed: I moved into the apartment, bought it, and knew people made noise until eleven. I agreed, true, but from now on I do not agree. Apparently. But there is another source. That is number eight. We will finish with this source, and it also appears as a halachic ruling in the Alter Rebbe’s writings. What happens if a person runs pipes beneath a public thoroughfare? He is building a house—today everything is organized, but let us say this is a slightly earlier period—and he wants to install drainage. He digs under the street and runs the drain there. How is he allowed to do that? That street belongs to the people who use the public thoroughfare. Did they agree to let him dig underneath it and run drainage pipes or water pipes and all those things there? The Rosh was asked how this is permitted. The rabbi asking the question adds: even if people waived their claims, that cannot be enough. There are hundreds of people; you cannot get everyone together to waive their claims for you. It is impossible. So the Rosh says this. First he presents it as a problem, and then he says: “Nevertheless,

36:03 Speaker 2 it has now become customary everywhere, in every city, to make all the city’s drains as hollow channels beneath the ground of the public thoroughfare, [unclear]. And all the homeowners cover them, and no one refrains from doing so. Everyone has become accustomed to it, to the point that the very settlement of cities relies on them.” He is saying that now everyone does it; everyone digs underneath. How does that help? Let us skip ahead a little. In the line—in the passage—at the end of the passage: “It is as though everyone waives their claims and consents to it, and they have treated one who would not otherwise acquire the right, and one who would not otherwise be permitted, as though he had acquired the right and was permitted.” Let us continue; he goes on to say more. He says—I am telling you—yes, he puts it more explicitly there: once everyone does this, you want the other person to be able to do it. Why? Because when you or your son needs to, you will also do it. So when something is done by everyone, it is as though everyone has waived their claims against one another. Now, perhaps I could come and say, “Fine, until now I waived my claim, but as the Rosh said, I have changed my mind. I am changing my mind now.” But here it is different. Say you make a deal with someone: “I will forgive this debt of yours, and you will forgive this debt of mine,” or two reciprocal commitments. You cannot say, after he has done his part, “Oh, you make me a cup of tea now, and tomorrow I will make you a cup of tea.” He makes you the cup of tea, and you say, “I have changed my mind, and we never made a formal kinyan. I have changed my mind.” It does not work that way; there is something reciprocal here. He agreed because you agreed. He did his part, and you cannot suddenly change your mind now. In the future, when you want to dig a channel under the street, they will not be able to stop you, because everyone waived their claims.

37:56 Speaker 2 One another. So how can you now come and stop your neighbor? Down the road, who knows whether that neighbor will still be there, but you have a right and he doesn’t? Once everyone here waives their claims against one another, it becomes a right shared by everyone. That, it would seem, explains why it’s no longer possible to object. By that reasoning, the rules accepted today—that eleven o’clock is the cutoff, that you can make noise before eleven but not afterward—would also apply. When someone buys a home knowing that this is the accepted practice, he can’t later come along and object. That doesn’t mean I shouldn’t be considerate. If I know, for example, that there are babies who go to sleep early, perhaps that’s similar to the case of a sick person, and I should take that into account and not make noise. It also depends on whether that’s something I know for certain. If I just want to play music at full volume and I know there are sleeping babies next door, I should refrain. But let’s say I want to hold an event or do something else that makes noise. Then it would seem that we are bound by those rules, because everyone has accepted them; they’ve become the established practice, and people have waived their claims against one another. That’s how it seems, at least.