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Ruling: [We saw last time that the situation comes under the category of hezek re’iya (damaging levels of invasion of privacy). Now we must look at the question of whether permission was given in a binding manner and/or what remedies need to be done.]
Poskim write at length about whether, to establish mechilla (relinquishing of rights) of protection from damages between neighbors, one needs three years of use without protest and the claim of explicit permission or whether a single usage without the owner’s protest suffices. We will only discuss particulars that relate to the issue at hand.
There is a machloket whether mechilla works regarding hezek re’iya. The Ramban says that the affront is so severe that mechilla does not work because the damaged person can later say: "I thought I could handle it, but it is worse than I imagined." Another reason that the mechilla might not work is that it is prohibited to look into another’s property. However, the Shulchan Aruch (Choshen Mishpat 154:7) rules that mechilla does work for hezek re’iya. On the other hand, the mechilla can only work when the mochel is aware of the extent of the damage (Ramban, Bava Batra 59; S’ma 153:3). The Netivot Hamishpat (153:3) adds that he must have experienced the matter several times without responding until beit din is convinced that he relinquished rights. Signing on building plans is certainly binding because people do so only after considering the matter carefully.
In our case, def admitted that they do not think that pl understood the significance of the planned window so that even if we accept their version that she did agree, it would be considered a mechila b’ta’ut (based on a mistake).
However, perhaps if the window is non-transparent, it should not be a problem. The Avkat Rochel (123) says that indeed such a window takes away the problem of hezek re’iya, and we do not have to be concerned that at some time in the future it will break. In general, possible future problems are not considered damage in the present. So too, as long as def make the window unable to be opened, they removed the damage, even if we can understand pl’s concern that the arrangement can be reversed.
P'ninat Mishpat (832)
Various Rabbis
315 - Buying Usurped Merchandise
316 - Misplaced Window?
317 - Partners in Practice
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Various Rabbis
Various Rabbis including those of of Yeshivat Bet El, such as Rabbi Chaim Katz, Rabbi Binyamin Bamberger and Rabbi Yitzchak Greenblat and others.
Moreshet Shaul Moreshet Shaul: A Crown and its Scepter – part II
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P'ninat Mishpat P'ninat Mishpat: Agricultural Water Rights – part II
based on ruling 84122 of the Eretz Hemdah-Gazit Rabbinical Courts
P'ninat Mishpat P'ninat Mishpat: Realtor’s Fee on Large Commercial Building – part I
(based on ruling 85031 of the Eretz Hemdah-Gazit Rabbinical Courts)
P'ninat Mishpat P'ninat Mishpat: Complaints about Contractor’s Work – part II
(based on ruling 83037.1 of the Eretz Hemdah-Gazit Rabbinical Courts)
P'ninat Mishpat P'ninat Mishpat: Undoing a Problematic Partnership – part II
based on ruling 84061 of the Eretz Hemdah-Gazit Rabbinical Courts
Rabbis in Midrash
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(based on ruling 85031 of the Eretz Hemdah-Gazit Rabbinical Courts)
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Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 263 (address at the cornerstone laying for the Yeshiva Chakla’it in Kfar Haroeh – 1938)
Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 263 (address at the cornerstone laying for the Yeshiva Chakla’it in Kfar Haroeh – 1938)
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