ONE: It is freezing cold outside. Fortunately, the
heating is working at full capacity inside the shul. In walks Chezky and
opens the window wide. "There’s no air in here. I’m
suffocating!" he wheezes. His neighbours respond that since it is the
middle of winter, they have the right to keep the window closed in order
to stay warm. Who is right?
TWO: On a sweltering summer’s day, Yitzy gets on to the
bus. The air conditioning is not working, so he opens all the windows.
Suddenly, he hears a voice shouting, “Close that window. You’re creating
a draft and I’ve got a cold!” Does the other passenger have the right to
close the window?
Blood-letters had set up their “business” next to
Rav Yosef’s date palm orchard, on their own land. Ravens would come and
feast on the blood. They would then perch on Rav Yosef’s palm trees,
making a lot of noise and covering the dates with blood. Rav Yosef
demanded that they relocate their business, since he was more sensitive to
the raven’s noise than others (Tractate Bovo Basro 23a). The Shulchan
Oruch (Choshen Mishpot 155:39) rules that Rav Yosef had
the right to demand that the blood-letters move. It makes no difference
whether he is greatly disturbed by the noise or he is unable to eat the
dates even after the blood has been washed off. The fact that he is
extra-sensitive gives him the right to ask them to remove the source of
damage. The Remo adds that the same law would apply to any other
type of unbearable harm or damage. The Remo does not draw a
distinction between an average person and one who is sick or
hypersensitive. In either case, if his neighbour engages in an activity
which is harmful to him, he has the right to object. Since the neighbour
is considered to be “shooting his arrows” at him, he is obligated to
remove the source of damage (al ha’mazik l’harchik atzmo).
However, the Chazon Ish (Choshen Mishpot
22:13:11) limits the sick and sensitive person’s right of objection. If
the neighbour is merely using his apartment, etc. in the usual manner, yet
this disturbs the neighbours, they have no right to object. For example,
he may have a number of small children, who each take a turn to scream in
the middle of the night. This one is teething, another has a high fever,
the third had a bad dream. The neighbour can not demand that the parents
sedate their children or find alternative accommodation since he has no
right to stop them making normal use of their apartment.
We can therefore conclude that the normal pattern of
behaviour at any given time of year determines whether a window should be
left open or closed. During the winter, people are generally sensitive to
the cold. It is therefore usual to keep windows closed. One who has an
unusual need for fresh air has no right to demand that the window be
opened, thereby risking the health of others. Similarly, windows are
usually kept open in summer, since most people need a constant flow of
air. One who objects on the grounds that the draft exacerbates his cold is
considered to be complaining about babies crying in the middle of the
night (as in the Chazon Ish above). He has no right to interfere
with the normal living conditions of others.
What would the law be if such a discussion took place in the spring or
autumn? At these times of year there is no fixed pattern of behaviour. It
would seem that the sick and sensitive could argue that opening/closing
the window definitely harms them. Whether others have the right to
insist on their position is in doubt. We have a rule that the definite
side wins. Nevertheless, one should try to come to an agreement.