Mr. Marx was relaxing in his garden Sunday afternoon, savoring the remaining days of sunshine. At least he was trying to relax. From over the wall of his garden came the steady thump, thump and shouting of the local teenage boys playing basketball in the neighbor’s back yard.
Mr. Marx didn’t mind their playing ball, though the noise was disrupting to his “quiet” relaxation. However, he very much minded the frequent balls that made their way over the wall into his garden. The many failed attempts at three-point shots were a particularly sore issue.
Sometimes, the ball would land in Mr. Marx’s lap while he sat reading in the sun. Occasionally, it would land on a flowerpot or toy and break it.
At first, the boys would simply climb over the wall the retrieve their ball. “Excuse me,” they would say as they popped over the wall and landed in the Marxes’ garden. “I just have to get the ball…”
In the summer this had been non-stop. Mr. Marx finally put his foot down about this, especially since he liked to sit in his garden dressed casually. “If you need the ball, you come around the front and ask for it like a mensch,” he insisted.
Sometimes the boys wouldn’t bother and would continue playing with another ball, until it, too, made its way into Mr. Marx’s property.
Mr. Marx tried talking to the neighbor. “Could you get your kids to play elsewhere?” he said. “It’s annoying to us.” The neighbor apologized, but wasn’t particularly cooperative about stopping the boys.
Today, as Mr. Marx lay there with his eyes closed, enjoying the warmth, another ball flew over and landed right by his head.
“I’ve had enough of this!” Mr. Marx leaped up. He marched inside and got dressed. “I’m warning them that the next time the ball comes over the wall, they’re not getting it back!” he said to his wife. “I’ve told them over and over again to stop playing ball like this. They just don’t listen, and their parents don’t do anything about it.”
“I agree the neighbors are not acting properly,” said his wife, “but I’m not sure you’re allowed to do that. It is their ball.”
“Well, then what can I do?” asked Mr. Marx. “This is becoming crazy.”
“I don’t know,” replied his wife. “How about speaking with Rabbi Dayan,” she suggested. “Ask him if you can do this. Maybe you can even stop them from playing or require them to build a fence.”
Mr. Marx met with Rabbi Dayan and explained his predicament. “What can I do to alleviate this problem?” he asked. “Do I have a legal right to demand that the boys stop playing ball?”
“A person can restrain his neighbor from doing activities that damage, are a major nuisance, or to which he is particularly sensitive,” explained Rabbi Dayan. “However, ball playing does not seem to fall into these categories, even if the ball makes its way over the wall numerous times.” (C.M. 155:35-41)
“What about requiring the neighbor to construct a tall fence?” asked Mr. Marx.
“If the ball typically causes damage, it is possible to require them to do so, since a person has to take precautions not to damage another,” said Rabbi Dayan. (155:34) “However, if the ball rarely damages and the issue is primarily one of nuisance, it is not possible to require the neighbor to build a fence, although it would be proper from his end.”
“Can I threaten the boys to confiscate the ball if it falls into my garden?” asked Mr. Marx.
“You do not have a right to unilaterally confiscate the ball,” said Rabbi Dayan. “Although the ball is a nuisance to you, you cannot take it from them and have an obligation to return it, like any other lost item. In fact, the mitzvah of hashavas aveidah applies even if the person constantly loses the item a hundred times.” (267:2)
“What if I warn the parents also?” asked Mr. Marx
“If this is a recurrent issue, the parents could allow you, as an educational measure, not to return the ball,” answered Rabbi Dayan. “You can also insist that you will return the ball only to the parents.”
“What if the ball damages items in my yard?” asked Mr. Marx.
“In that case,” replied Rabbi Dayan, “you are allowed to withhold the ball until the damage is paid. This is true even nowadays that there are limitations on the beis din‘s ability to adjudicate cases of damage – torts.” (1:5)
“In any case, the boys do need to be more careful,” Rabbi Dayan concluded. “It is wrong to do something which disturbs the neighbor and is a lack of v’ahavta l’reiacha kamocha, Love your neighbor as yourself.”
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 firstname.lastname@example.org. 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 email@example.com.Rabbi Meir Orlian