Parking On The Pavement
Chanina is on his way out of the apartment block where he lives when he finds
his path blocked once again by the neighbour's van parked on the pavement. As the
neighbour gets out of his vehicle, Chanina rebukes him for his inconsiderate parking.
The driver retorts, "Where is it written in the Torah that it is forbidden to park
on the pavement?" What should he answer this neighbour?
The Remo (Choshen Mishpot 377 – based on Bovo Kamo 28a) rules
that it is forbidden to remove or restrict a lawfully established public right of
way. The public certainly have right of way on the pavement (sidewalk). Any car
parked on the pavement restricts this right of way by narrowing the area available
for public passage. If a person parks his car in a way which forces pedestrians
– including the elderly, children and mothers with babies – to walk in the road,
thus endangering themselves, he is guilty of harming the public (a mazik).
(See Emek Hamishpot 3:63 who brings proof that whoever creates a potentially
damaging situation infringes a prohibition, in addition to his obligation
to pay compensation for any damage caused.)
May one build a sukkah in the street (on public land)? The Remo
(Orach Chayim 637:3) rules that this is prohibited, although one who sat
in such a sukkah would have fulfilled the mitzvah. The Mogen Avrohom
(Ibid. Note 3) questions the custom of some people (outside of Eretz Yisroel)
to build their sukkah in the street. Even if we were to assume that all Jews
in the world are prepared to forego their rights of passage for the duration of
Sukkos in order to enable this person to fulfil the mitzvah, the same
can not be said about non-Jews. Since they have no mitzvah, what gives us
the right to assume that they do not object to this restriction of their right of
way? He therefore concludes that such a sukkah is considered stolen, since
it stands on land stolen (taken without permission) from a non-Jew. In our case,
where the restriction of public right of way is not for known mitzvah purposes,
there is no reason to assume that the public are prepared to forego their rights.
Thus, whoever parks on the pavement, even for a short time, could be guilty of stealing
from the public. Just at that moment, a lady pushing a pram passed by and had to
walk in the road since there was insufficient space on the pavement. It would therefore
be prohibited to park on the pavement for this reason.
The Shulchan Oruch (Choshen Mishpot 417:2) rules that a person
may not allow the beams of his house (or a balcony, etc.) to protrude into the street
at a low level. The Rashbam (Bovo Basro 60a) gives the reason for
this law as concern for public safety, since it is possible that they may knock
into the protruding beams, causing injury or damage. The Rashbam adds that
"all members of the public are not present so that they can forego their rights".
What is the Rashbam trying to teach us? Let us imagine that all residents
of this street got together and agreed not to object to projecting beams. Would
such construction then become permissible? Let us go further. Imagine that all residents
of this town met and came to a similar decision. Are protruding beams no longer
illegal? The answer, says the Rashbam, is "no". Any public thoroughfare belongs
to all members of the public, even those who may only visit the town in ten
years' time! Universal consent is required to permit such irregular use. Accordingly,
even if all residents of the street were to agree to permit parking on the pavement,
it would still not be permitted. Only the city elders are empowered to allow such
unusual use (see Shulchan Oruch Harav, Nizkei Mommon, Paragraph 18).