web analytics
September 17, 2014 / 22 Elul, 5774
At a Glance
Judaism
Sponsored Post
Apartment 758x530 Africa-Israel at the Israel Real Estate Exhibition in New York

Africa Israel Residences, part of the Africa Israel Investments Group led by international businessman Lev Leviev, will present 7 leading projects on the The Israel Real Estate Exhibition in New York on Sep 14-15, 2014.



Public Passage


Business-Halacha-logo

Pleasantville was a quiet suburban town with large properties and curving roads that wound around them. Mr. Feder lived just behind the local shul. Since the road wound around his property, people coming to shul on Shabbos would often take a shortcut through his property to walk to shul. The treaded area of earth marked the place where people made their way weekly. The through traffic did not bother Mr. Feder, as his house was on the other end of the property. He never made a fuss about it, but had never officially sanctioned this public shortcut.

One day Mr. Feder decided to build a picket fence around his property. The plan was designed with an entrance on the side of his property adjacent to the shul, so that he could go directly there. It enclosed the remainder of the property, though, including the place where people would cut through from the street.

As the posts were being put in place, the president of the shul asked Mr. Feder: “Would you consider leaving an entrance near the street where the shortcut to the shul is?”

“No, I’d like to complete the fence,” replied Mr. Feder. “Once I’m investing in the fence I’d like to do it properly, and that side faces the street.”

“But people have been accustomed for years to cut through your property,” said the president. “For some people, circling around your property means an extra seven minutes walking along the road.”

“It’s my land; I can do what I want,” responded Mr. Feder. “I’ve been nice about it until now, but that doesn’t mean I owe the public anything.”

The following day, the shul president called Mr. Feder. “I did a little research and discovered something interesting,” he said. “The Gemara (B.B. 100a) teaches that a person may not ruin a pathway that the public possessed. This is phrased: ‘Meitzar shehecheziku bo rabim – asur l’kalkelo.’ Since you’ve allowed the public to posses the pathway for the past few years, you’re not allowed to ruin it now.”

“Who says that rule applies here?” asked Mr. Feder. “Maybe it’s only when the public officially possessed the path? I never gave people formal rights to walk through the property. At most a handful of people actually asked me whether it was OK. The rest simply walked! If anything, they were trespassing all these years, and it’s my legal right to put an end to it.”

“But you saw them do it and never protested in any way, so you acquiesced,” argued the president. “If you don’t agree to leave an entrance for the path, I’d like to bring the case before Rabbi Dayan.”

The president had Mr. Feder summoned to Rabbi Dayan’s bet din, with a claim that he be restrained from fencing the public passageway.

After a brief deliberation, Rabbi Dayan issued the ruling: “The members of the shul cannot restrain Mr. Feder from completing his fence.”

“Why is that?” asked the president.

“The law of meitzar shehecheziku bo rabim is explicit in the Gemara and codified in the Shulchan Aruch [C.M. 377:1; 417:2],” explained Rabbi Dayan, “but there are numerous limitations on the practical application of this halacha.”

“First, there is a dispute between the Rishonim on whether tacit acquiescence through silence suffices or explicit permission of the owner is required.

“Second, there is a dispute about whether it suffices that the public simply walked through or if there is need for some construction to enhance the passage.

“Third, the public through traffic must be such that the owner would normally protest the intrusion. However, if the area is not developed anyway or if the public traffic does not interfere with the owner, so that he had no reason to protest their usage of his property, their chazakah of walking is not valid if they did not do construction.

“Fourth, the fact that a group of people used the land as a shortcut does not determine them as public, unless they form a large percentage of the people for whom this passageway was relevant [Chochmas Shlomo 377:1].

“Fifth, some authorities maintain that if the owner has rights officially registered in the land authority, we do not presume mechila on his part by walking alone, if the public did not do any physical improvement to the land [Pischei Teshuvah 153:3; Maharsham I:5. III:376].

“Therefore, on account of five reasons mentioned,” concluded Rabbi Dayan, “Mr. Feder can fence his property even though it will block the passageway to the shul. He never explicitly granted this right; the public never did any physical improvement; he had no real reason to protest previously; the shortcut was used only by a select group; and his property rights are listed with the land authority.” (See Pischei Choshen, Nezikin 8:32 [79-84])

About the Author: Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to subscribe@businesshalacha.com. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail ask@businesshalacha.com.


If you don't see your comment after publishing it, refresh the page.

Our comments section is intended for meaningful responses and debates in a civilized manner. We ask that you respect the fact that we are a religious Jewish website and avoid inappropriate language at all cost.

If you promote any foreign religions, gods or messiahs, lies about Israel, anti-Semitism, or advocate violence (except against terrorists), your permission to comment may be revoked.

No Responses to “Public Passage”

Comments are closed.

SocialTwist Tell-a-Friend

Current Top Story
PLO / PA / Fatah leader Mahmoud Abbas.
PA Unity Government Not Unified
Latest Judaism Stories
Jonah and the Whale (2012) 23 x 23, bronze relief by Lynda Caspe.

Jonah objected to God accepting repentance based on ulterior motives and likely for short duration.

15th century Book of the Torah

This week’s parsha offers a new covenant; a covenant that speaks to national life unlike any other

Leff-091214

All Jews are inherently righteous and that is why we all have a portion in the World to Come.

Grunfeld-Raphael-logo

If mourning is incompatible with Yom Tov, why is it not incompatible with Shabbat?

Since it is a Rabbinic prohibition we may follow the more lenient opinion.

How can the Torah expect me today, thousands of years after the mitzvahs were given, to view each mitzvah as if I’m fulfilling it for the first time?

Torah isn’t a theological treatise or a metaphysical system but a series of stories linked over time

In contrast to her Eicha-like lamentations of the previous hour or more, however, my youngest was now grinning from ear-to-ear.

An Astonishing Miracle
‘Why Bring the Infants to Hakhel?’
(Chagigah 3a)

Question: I recently loaned money to a friend who has been able to repay only part of it. This was an interest-free loan. We exchanged a signed IOU, not a proper shtar with witnesses, since I have always trusted her integrity and only wanted a document that confirms what was loaned and what was repaid. Now that shemittah is approaching, what should I do? Should I forgive the loan? And if my friend is not able to repay it, may I deduct the unpaid money from my ma’aser requirement?

Name Withheld

e are in a time of serious crisis and must go beyond our present levels of chesed.

According to Ibn Ezra, the Torah was stressing through this covenant that hypocrisy was forbidden.

“Tony said that the code in most places in the U.S. is at least 36 inches for a residential guardrail,” replied Mr. Braun. “Some make it higher, 42, or even 52 inches for high porches. What is the required height according to halacha?”

Simcha is total; sahs is God’s joy in protecting us even when we are most vulnerable.

Not only do we accept You as our King, it is our greatest desire that the name of Your Kingdom be spread throughout the entire universe.

More Articles from Rabbi Meir Orlian
Business-Halacha-logo

“Tony said that the code in most places in the U.S. is at least 36 inches for a residential guardrail,” replied Mr. Braun. “Some make it higher, 42, or even 52 inches for high porches. What is the required height according to halacha?”

Business-Halacha-logo

“The Torah states in Parshat Ki-Teitzei: ‘If you build a new house, you shall make a fence for your roof. I think it’s your responsibility.”

On Friday afternoon, Dov called Kalman. “Please make sure to return the keys for the car on Motzaei Shabbos,” he said. “We have a bris on Sunday morning and we’re all going. We also need the roof luggage bag.”

“We’re leining now, and shouldn’t be talking,” Mr. Silver gently quieted his son. “At the Shabbos table we can discuss it at length.”

“Guess what?” Benzion exclaimed when he returned home. “I just won an identical Mishnah Berurah in the avos u’banim raffle.”

“Do I have to repay the loan?” he asked. “Does Yosef have to reimburse me? What if doesn’t have that sum, does he owe me in the future?”

When Yoram got home that evening, he went over to Effy: “My day camp is looking for extra supervision for an overnight trip,” he said. “Would you like to come? They’re paying $250 for the trip.”

“I’ll make you a deal,” he said. “If you pay monthly – it’s $4,500; if you pay six months up front – I’ll give it to you for $4,200.”

Printed from: http://www.jewishpress.com/judaism/halacha-hashkafa/public-passage/2013/05/01/

Scan this QR code to visit this page online: