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Beit Midrash Series P'ninat Mishpat

part I

Chapter 96

The Status Home Expansion

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The interplay between the laws of the Torah and those of the civil government can be ground for tension and disagreement due to their differences. We will concentrate on municipal regulations in regard to people’s rights to build, specifically, the law that neighbors must agree to the building expansion even when the building plan does not violate any halachic limitations.
P'ninat Mishpat (576)
Various Rabbis
95 - How Do We Judge These Days?
96 - The Status Home Expansion
97 - The Status Regarding Home Expansion
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The gemara (Bava Batra 8b) says that the people of a city can set rules for measures and price rates and enforce their regulations by means of penalty. The Mordechai (ad loc. 480) brings two opinions as to the source of this authority of the tuvei ha’ir (municipal leaders). The Maharam (accepted by the Rama, Choshen Mishpat 2:1) says that they possess the Beit Hadin Hagadol’s status that enables confiscating property when the matter is necessary for migdar milta (to fix a situation). However, Rabbeinu Tam says that migdar milta applies only to religious matters and that the tuvei ha’ir can only takes steps to enforce that which the people have already agreed upon.
There is also a machloket whether it is necessary for the regulations to be approved by an adam chashuv (important person) who is appointed to oversee the needs of the city’s people when they adversely impact on part of the population. The Rivash (399) says that this is unnecessary, but the Tashbetz (Chut Hameshulash 15), Rama (CM 231:28), and Shach (ad loc. 4) require such an approval. The Tashbetz adds that it is insufficient for the adam chashuv to be a talmid chacham; the main criterion is that he be appointed to oversee the population’s needs.
Based on the aforementioned, it is logical to accept municipal regulations as publicly approved decisions. In a time and place where there are usually not talmidei chachamim with official responsibility to oversee the public’s needs, there is logic to say that there is not a need for an adam chasuv’s approval, which is necessary only when there is an appropriate person to give it.
Some Rishonim integrate the element of the laws of the kingdom and local practice as halachic factors, beyond the element of the need to follow local regulations and the matter of dina d’malchuta. The Rashba (Shut I, 1032) says that if one opens a window to the public domain in a manner that is locally permitted, his neighbor on the other side of the street cannot make him close it. This is because the former is viewed as opening to the public domain as the king wants, which a neighbor cannot stop even if we would normally view it as an infringement on the neighbor’s privacy. The Rosh (Shut 99:6) says that in a place where the practice is to have beams extend from the houses out in the direction of the public domain, we do not say that the airspace before the house is hefker (free for all to claim).
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