Question:
May a person prevent a neighbor from smoking outside their joint courtyard?
Short Answer:
Yes. According to many contemporary poskim, the person may even prevent the neighbor from smoking in his (i.e., the neighbor’s) own house if the smoke reaches the person and he is bothered by the smoke.
Explanation:
I. Background
The Mishnah (Bava Basra 23a) states distances by which one must distance his dovecote from other people’s fields. The Mishnah, however, concludes by noting that if the dovecote was already located near your neighbor’s fields when you purchased the dovecote, the dovecote may remain near the neighbor’s fields. Since there is a chazakah for the dovecote, it may remain.
The Gemara (ibid.) questions this ruling of chazakah. Since the dovecote causes damage (to the neighbor’s field), the fact that there is a chazakah should be irrelevant, as we have a principle that chazakos don’t matter by damages. The Gemara answers that the principle that “chazakos don’t matter by damages” is limited to chazakos regarding smoke and/or bathrooms. In other words, the fact that a person always had the smoke or the bathroom (which causes damage to the neighbor) is not a defense, and the person must remove/stop these things from damaging the neighbor.
II. Smoke Contours
The Shulchan Aruch (Choshen Mishpat 155:35-36) codifies this Gemara by noting that only certain types of damages, including smoke, have no chazakah. The Rama (Choshen Mishpat 155:36) adds that there is no chazakah for these damages even if the smoke preceded the neighbor.
The Shulchan Aruch (Choshen Mishpat 155:37) and Rama (ibid.) elaborate on the contours of this smoky exception. First, there is only no chazakah by smoke where the smoke is frequent (“rov” of the day) like a baker’s oven. For non-frequent smoke, like a personal oven, the Shulchan Aruch holds that the neighbor may protest, but once he does not for three years, then there can be a chazakah. The Rama disagrees. A neighbor may never protest non-frequent smoke. Second, even by frequent smoke, there is only no chazakah where the smoke damages the neighbor himself. Simply damaging the walls of his house is insufficient (although the neighbor may even protest in such a case; he just may not protest after doing nothing for three years).
III. Modern-Day Smoking
Based on the above, many of the contemporary poskim discuss whether a person may prevent his neighbor from smoking, and whether it matters if the smoking is on the neighbor’s private property or in the public courtyard.
For example, in 1981, Rav Moshe Feinstein zt”l (Igros Moshe, Choshen Mishpat 2:18) discussed smoking in the beis midrash where some learners claim that it bothers them and that it is damaging their health. Without even mentioning our Gemara, Rav Moshe discusses a Gemara a few lines earlier (Bava Basra 23a) where Rav Yosef forbade bloodletters to draw blood on their own property, as it was causing ravens to pick up the blood, which was causing either noise damage or food damage (by dropping blood on the fruits) to Rav Yosef. Thus, Rav Moshe proves that any type of act (even noise-making) on one’s own property may be prevented if it causes damage to a neighbor, even if the neighbor is overly sensitive. Surely smoking, he writes, which is hurtful to the smelling learner who is NOT overly sensitive, is forbidden in the beis midrash. In fact, it would be forbidden even if the smoker was smoking in his own house and causing damage to his neighbor via the smoke.
Moreover, Rav Ovadiah Yosef zt”l (Mei’ein Omer, Vol. 10, p. 341) addresses a similar question: whether talmidim may smoke inside a dorm room where the smoke bothers talmidim in other dorm rooms. After noting that perhaps the Rama (above) would permit it because the smoke is not frequent, Rav Ovadiah, like Rav Moshe, cites the Gemara of Rav Yosef to prove that even the Rama would agree that a neighbor who is overly sensitive may always protest disturbances emanating from his neighbor’s property. Rav Ovadiah then cites Rav Moshe.
Similarly, the Pischei Choshen (N’zikin 13:19, n. 44) writes that a person may prevent his neighbor from smoking, even in the neighbor’s own house or in a joint courtyard. This is true regardless of whether the smoke actually is dangerous to the neighbor; if it bothers the neighbor, he may prevent it. See also Divrei B’nayahu (33:76), Sheivet HaLevi (10:295:7), and Mishneh Halachos (9:161).
Interestingly, the T’shuvos V’Hanhagos (1:159) cites Rav Yosef Shalom Elyashiv as suggesting that one may not forbid another from smoking in the beis midrash, as we see in Y’vamos (72a) that “shomer p’sa’im Hashem” applies even to doing a dangerous act that affects others, such as giving a bris milah on a day thought to be dangerous based on the temperature. The T’shuvos V’Hanhagos rejects the comparison, as in the case of the bris milah, the facts on the ground prove that it is fine to do the milah, as no child ever died. By contrast, smoking is clearly dangerous. He thus rules that it is forbidden to smoke in the beis midrash, and, in fact, writes that the door to his own beis midrash has a sign forbidding smoking.
Rabbi Ephraim Glatt, Esq. is the Associate Rabbi at the Young Israel of Kew Gardens Hills, and he is a Partner at McGrail & Bensinger LLP, specializing in commercial litigation. Questions? Comments? Email This email address is being protected from spambots. You need JavaScript enabled to view it..