Yankel lives on the ground floor. He wishes to install
window bars in order to prevent his children falling out – and to stop
burglars from getting in. Berel, his upstairs neighbour, objects, arguing
that the window bars will act as a ladder for potential burglars. Can he
prevent Yankel from installing window bars?
Reuven and Shimon live next to each other. The fence
around Reuven’s house is broken, allowing thieves easy access to Shimon’s
house, since there is only a very low fence between their gardens. Shimon
demands that Reuven either repairs the fence or sells the house to a more
responsible owner. The Remo (Choshen Mishpot 155:44) quotes
two opinions concerning this case. According to one opinion, Shimon has
the right to force Reuven to repair the fence. Failure to do so will make
him liable for any resultant loss. According to the other opinion, he can
not be forced to repair the fence and is also not responsible for any
resultant loss, since he is not “shooting arrows” at his neighbour’s
property. The Bach wishes to side with the first opinion, comparing
this case to that of the vineyard owner who did not repair his fence. On
the other side of the fence was a wheat field, which would become
forbidden if the open gap allowed it to mix with the vine (kilayim
– a forbidden mixture). In Tractate Bovo Basro (2a) we are
informed that if the owner of the vineyard fails to repair the fence, he
will be liable to pay for the resultant loss of the forbidden wheat crop.
The Shach (Note 22) argues that one can not compare the two cases.
It is clear that failure to repair the fence between vine and wheat fields
will result in the crop becoming forbidden. That is the reason why the
negligent vine owner is liable to pay for his neighbour’s loss. However,
if the broken fence may just attract thieves, can we then say that the
neighbour will definitely be harmed? The Nesivos (Note 22)
also sides with the second opinion, but for a different reason. He argues
that when the vine owner leaves an open gap between the vine and the wheat
field, it is like shooting arrows at the neighbours wheat. The offending
vines are already in position, ready to cause damage. However, even when
the fence is left open for thieves to penetrate, there are no thieves
actually being sent by the negligent neighbour. He is therefore not liable
for any ensuing loss. According to this second opinion, Berel certainly
has no right to prevent Yankel from installing window bars. There are no
burglars being sent as the bars are installed. Furthermore, since nowadays
it is common for people to install window bars to prevent children from
falling out and burglars getting in, we can not classify Yankel as being
negligent in following this practice. If Berel is worried about burglars
gaining access to his property, he should also have bars installed.
Obviously, if Yankel can install vertical bars, which do not act as a
ladder, he must do so.
There is a further reason why Berel can not object to
window bars being installed. When putting up a ladder, one must keep it at
a distance from the neighbour’s birdhouse. A wild animal might jump from
the ladder and attack the birds (Choshen Mishpot 155:16).
However, writes the Chazon Ish (Bovo Basro 14:10), if the
wild animals would gain access by means of the permanent staircase leading
to his upstairs apartment, the birdhouse owner could not object. Since
this is the standard means by which people reach their home there is no
responsibility for any resultant damage. Only when an unusual activity is
being performed do we expect him to take account of potential harmful
results. Nowadays, it is standard procedure to install window bars in
one’s apartment. Therefore, Berel’s objection is invalid.