Siman 154

Partners who had a courtyard in partnership and the houses are designated to each one, if one of the partners brought into his house the people of another household to dwell with him together in his house, the Rambam wrote in chapter 5 of Shechenim that his fellow partner may prevent him, because he increases the traffic upon him, as he adds other people in the partnership courtyard. And even though people are not fastidious regarding the treading of feet in a courtyard, that is regarding people from the marketplace who pass through in a mere crossing; but this one who dwells permanently and has frequent walking and usage in the courtyard, people are fastidious [Sma]. And so too, one who leases his house to one homeowner and afterwards he brought with him his relatives or acquaintances to dwell with him as one permanently in his house, behold the lessor may prevent him. But if they are supported at his table, neither the partner nor the lessor can prevent him, for how can he prevent those who eat at his table from dwelling in his house, even if they were added afterwards, since his intention is not for livelihood like an inn, but rather they eat for free. And many disagree regarding a partner, since the house is his, he may fill his house with guests and residents as long as he does not add a new building. And even if they have one bathroom, the partner cannot say that they are filling the bathroom for him, for behold, they previously became subordinated to one another in this manner. Therefore, even if he divides his house into dwellings, he cannot prevent him, for behold, according to this opinion he may fill it with as many residents as he wishes, and what damage is it to the partner that he divides his house [what the Pitchei Teshuvah wrote in the name of the Dagul Mervavah is not so in the Mordechai to one who is precise there]. But two who have one house in partnership, one cannot permit others to use his portion; even though in a courtyard he cannot prevent him according to this opinion even when he fills his house with residents, nevertheless in a house people are fastidious. And even if the partner does not dwell with him in the house, nevertheless he can prevent him from bringing others into his house permanently, because they will ruin his portion of the house due to the multitude of residents [see Sma subsection 7 and subsection 8, and it requires further study]. And specifically when he increases the residents, but if the partner wishes to place another in his stead and he himself will not dwell there, the second partner cannot prevent it. And even when the second partner dwells there, it is not in his power to say "with you I can dwell but not with this one whom you seated in your stead," as in the case of a renter in siman 317, for behold, the partner can sell his portion and can also compel him to divide with the law of "god o igod" [ibid.]. And if one of the owners of the courtyard wishes to perform some craft in the courtyard, whether his fellow can protest will be explained in siman 156 with the help of Heaven.

And even according to the opinion of those who disagree with the Rambam, that in a courtyard of partners each one may settle as many residents as he wishes in his house, nevertheless, regarding opening a new doorway from his house to the courtyard, the second partner can prevent him. For none of the members of the courtyard have permission to change anything at all in the courtyard; rather, they must conduct themselves in it as it was built, or as they bought it, or as they inherited it. Even if he built an upper story on top of his house, or built another structure next to his house—in a case where he has land in the courtyard that belongs to him alone—and he built the upper story or the structure not for residences (for he has no permission even according to those who disagree to add new residents in new buildings), but rather he built them for the purpose of storehouses [Netivot HaMishpat], he may not make a doorway for them into the courtyard because he increases the traffic upon them. It becomes as if he had one neighbor and now has many neighbors, for with the increase of doorways, those entering and exiting will increase. Therefore, the partner may prevent him from opening a new doorway; rather, he should open them into his house. And even if he already had an upper story on his house and it was open to the house, he is forbidden from opening it to the courtyard. But to prevent him from building the upper story or building next to his house when he has his own land, he cannot prevent him, since he builds for himself and not to bring in new residents. And it goes without saying that if he wished to divide his house into two and is not adding a new building, that he cannot prevent him when he does not open a new doorway to the courtyard and increase residents there, as has been explained in section 1.

And not only this, but even if a door or window [Shach] of one of the partners in the courtyard was small, he cannot widen it, for his partner may say to him: "With a small door I can hide from you during my time of use in the courtyard, but I cannot hide from you with a large door, and I need to perform uses that I do not wish for you to see." And if the door was large, he may not make it into two small ones, even if their width is not more than the single door that exists now, for the partner may say to him: "With one door I can hide from you when it is locked, as it is the way of a door to be locked at times, but with two I cannot, for when one is locked the second will be open." And so too, if he had two small doors of two amot, he cannot make one door of four amot, because he can say to him: "With a small door I am able to hide from you, for the eye does not dominate as much as with a large door." But if he had a door open to the courtyard with two leaves and he wishes to make it one leaf, there is one who says that they cannot prevent him, even though it is always entirely open, which is not the case when it was two leaves; for since he does not change the doorway, he has the ability to do whatever he wishes in his building. And furthermore, for he has the ability to always open the two leaves. And some say that even from two doors of two amot each he may make one of four [Taz and Shach], for vision dominates in a small door just as in a large one. And even according to this opinion, specifically when the two doors were next to each other; but if they were distant and he wishes to close one and widen the other, he may prevent him, since he comes to open in a new place. And even to close this door and open another door in another place according to the width of the first, he can prevent him, for he can say to him: "With this door we have become accustomed to guarding ourselves from you, but not when you will be in another place." And to make a small door from a large door is certainly permitted. And if between him and his partner there is no partition at all and he wishes to make a partition with a door, he can prevent him; and even though he cannot prevent him from the partition, nevertheless he can say: "You will establish a chazakah against me with the door and I do not desire this, and it is better for me without a partition at all than with a partition with a door, for without a partition I will not do anything private, but with a partition I will, and you will look through the door and I do not desire this" [it appears to me]. And furthermore, for he has the ability to compel him to make a partition as I wrote in section 14.

From all that has been explained, we learn an a fortiori argument: that if one of the partners in a courtyard purchased a house in another courtyard, he cannot open the doorway of the other house into his partners' courtyard. This is so even if he wishes to close the doorway that was in the other courtyard, and even if he purchased permission from the owners of the courtyard to open an additional doorway from his house that is in the partnership courtyard and wishes to exchange it for the house in the other courtyard, he cannot [Netivot HaMishpat]. In what case does this apply? When opening into the courtyard itself; however, he may open it into his house that is in this courtyard, provided that he closes the doorway that he had in the other courtyard. And some say that even into his house it is forbidden, for specifically regarding an upper story or a building that is in this courtyard may he open into his house, as the courtyard was subordinated to all buildings in this courtyard, but it was not subordinated to buildings of another courtyard. And even if the residents will not be increased, they can prevent him from adding passage from a building that is not of this courtyard, even when they will walk through his house that is in the courtyard.

All that has been explained applies specifically when they purchased a courtyard in partnership and a house for each one and they agreed to dwell as it is, for then they are forbidden to change the openings and in all that has been explained; and all the more so if they inherited it thus or built it on this condition. However, if at the time they purchased it they agreed that each one may make for himself any change in his building according to his needs or according to the custom of the place, even if a long time passed and he did not do so, we do not say that he waived his right, for there is no proof of his waiver, as it is not the way of people to waive their needs. It is within the power of each one to act according to his need or according to the custom even after a long time, unless they bring proof that they later agreed with a kinyan that it should remain as it is, for then neither of them can change. And so too if they built it and stipulated at the time they built it that each one has permission to act and change as he desires, their stipulation is valid. And if they built or purchased and did not speak at all, it is within the power of each one to act according to the custom of the place; and if one comes to change from the custom of his place, his fellow may prevent him, for since they did not specify, they presumably agreed based on the custom of the place [as mentioned above; and see in the Netivot HaMishpat subsection 2].

We hold that damage caused by sight is considered damage, for most people are particular when others look at their actions, their private usage, and their work, as the evil eye has power through the gaze of others. Our sages, of blessed memory, said that it is forbidden for a person to stand over the field of his fellow at the time when it stands in its stalks. Furthermore, they expounded on the verse, "And the Lord will remove from you all illness," that this refers to the evil eye. Furthermore, there are many labors and usages that require privacy, and when another looks, he prevents him from his performance. Furthermore, we hold that there is a chazakah for damage caused by sight, and regarding the measure of the chazakah there is a dispute, as I wrote at the beginning of siman 153, for some say that immediately when his fellow acted and his damage became known to him and he remained silent, it is considered an immediate waiver. And some say it requires three years and a claim. We have already explained there in section 3 that regarding the chazakah of damage caused by sight, since it is a legal doubt, the burden of proof is on the one seeking to extract from his fellow, and the damaged party is called the possessor. Therefore, there is no such chazakah without a claim nor in less than three years, but there is a chazakah for damage caused by sight. And even though there are some of the great authorities who hold that there is no chazakah at all for damage caused by sight, nevertheless, our teachers, the authors of the Shulchan Aruch, decided that there is a chazakah, and so one should rule, since he held possession for three years and with a claim.

Therefore, a person may not open a window into the courtyard of his fellow. Even if one of the partners in a courtyard sought to open a window for himself, or to add another window within his house into the courtyard, his partner may prevent him because he gazes at him through it. And if he opened it, he can compel him to close it immediately. He cannot say, "Since I have a doorway in the courtyard and I enter whenever I wish, what damage is there to you in the opening of a window?" For his partner can say to him, "Until now, when you were in your house, I did not need to hide from you, but now with the opening of a window, I am forced to hide myself even during the time you are sitting in your house, for you will look through the window." And even if he already had windows into the courtyard, nevertheless, he can prevent him from opening another window, for with a multitude of windows, more hiding is required [it appears to me]. And if the partners gave him permission to open a window or a doorway in the courtyard, he is permitted, provided that he does not open a doorway opposite the doorway of his fellow, or a window opposite the window of his fellow. And even chazakah does not avail the second party in this, and even if there are witnesses that he forgave him or gave him a deed for this, it does not avail [Sma], for it is a Torah prohibition. And thus our sages, of blessed memory, expounded on the verse, "And he saw Israel dwelling according to their tribes," that he saw that their doorways were not aligned with one another, and he said, "These are worthy that the Shekhinah should rest upon them." Therefore, chazakah, claim, and kinyan do not avail, neither regarding a doorway opposite a doorway nor a window opposite a window. And there are those who say that regarding a window opposite a window, chazakah avails, and regarding a doorway opposite a doorway, forgiveness, a deed, or a kinyan avails [ibid.], but chazakah does not avail even with a chazakah of three years [Netivot HaMishpat]. And the reason is that they hold that there is no prohibition in the matter, but rather that people are very particular about this. And regarding a window opposite a window, the particularity is not so great, therefore chazakah avails. But a doorway opposite a doorway, the particularity is extensive, and it is like the major damages that will be explained in siman 155, for which there is no chazakah. But complete forgiveness, a deed, or a kinyan avails. And even though regarding chazakah, according to the one who holds that chazakah is immediate and it is by reason of forgiveness, it does not avail, this is because we attribute this forgiveness to the reason of his silence, and certainly regarding such a major damage one does not forgive, and his silence is not proof; but complete forgiveness avails [ibid.]. And the measure of the distance between the houses where it is forbidden to open is until it will not be possible to see from his doorway or from his window into the house of his fellow.

If both of them came at the same time to open a doorway opposite a doorway or a window opposite a window, and they are unable to reach an agreement between them, and each one says, "I am compelled to open in this place and you must distance yourself and open further away," the beit din sees: if one of them does not lose anything by distancing himself from this place, and the second benefits by opening in this place, they compel the one who does not lose; for it is a general rule that when this one benefits and this one does not lose, we compel against the trait of Sodom. And if both of them would lose, they shall make a compromise between them. And if both of them would not lose, the beit din is not obligated to attend to this, and whoever opens first, his fellow must distance himself from him [it appears to me].

And how much must this one be distanced from opposite that one? A small amount, such that the beginning of the opening of this one shall be a small amount drawn away from opposite the end of the opening of that one. And even though when it is distanced slightly he can still see when he bends his head, nevertheless, since he does not see him directly through his regular usage, he cannot prevent him. For even without this, he cannot prevent him from looking entirely, since he is with him in one courtyard, and when he is in the courtyard, he can certainly see him. Therefore, if it is to another courtyard where the people of that courtyard gave him permission to open a doorway or a window, since he does not have the right of passage there constantly, he must distance it from opposite the doorway and window of his fellow until he cannot see into it at all.

If a public domain separates the houses, and it is a street where many people walk, one may open a doorway opposite a doorway and a window opposite a window, and even if the street is not wide and he can look into his fellow's house, for in any case the people of the public domain look at him and he must hide from them, and he can say to him: "I am like one of the people of the public domain who see you." Therefore, this is specifically if the top of the doorway or window is not higher than four cubits, but when their top is higher than four cubits, he can protest against him because he can say to him: "The people of the public domain will not see me when I use the upper area, but you will see me" [Shach and Netivot HaMishpat]. And there are those who say that when the bottom of the doorway or the window begins below four cubits, even though it rises higher, nevertheless he cannot protest against him, for ultimately the people of the public domain see him through the bottom part [Sma]. And likewise, one who had a small doorway to the public domain and wanted to widen it, or it was wide and he wanted to make it into two, his fellow who is opposite him on the other side cannot prevent him, and it goes without saying that the people of the public domain are unable to prevent him. And if he wants to open a doorway or window to the public domain and there is in this damage of sight to the courtyard opposite him which stands on the side of the public domain in a manner that the people of the public domain cannot see it, that owner of the courtyard opposite him can protest against him. And an alleyway that is not open on both sides, there are those who say its law is not like a public domain as many people do not walk there constantly, and there are those who say that as long as there are three houses from it and further, its law is like a public domain, for ultimately must he not be careful of them? And three are considered like many.

Even though in a public domain it is permitted to open an entrance opposite an entrance and a window opposite a window, nevertheless, to open a shop opposite the entrance or window of his fellow, his fellow can prevent him, because this is a constant, permanent damage. For the people of the public domain are passersby and do not look at him constantly, but this one sits in his shop all day and looks at him constantly. Therefore, he must distance it significantly until he cannot see into it at all. And so too, any permanent business is forbidden for him to conduct opposite the entrance or window of his fellow.

Even though we have said that above four amot a person cannot look, nevertheless, one who comes to open a window into the courtyard of his fellow—whether above four amot from the ground of his house or below, whether large or small—the owner of the courtyard may prevent him, for he says: "You will damage me by looking," and even though it is high, you will ascend a ladder and look. And so too regarding a window opposite a window, even when a public domain separates them, and even above four amot from the ground of his house, it is forbidden [Netivot HaMishpat]. And regarding a wall that is in a courtyard, one of the great Rishonim wrote that one is permitted to open above four amot, for it is not customary to stand a ladder against a courtyard wall and look into the courtyard of his fellow [ibid. in the name of the Ramban]. And he brings a proof from the fact that we do not compel building a wall in a courtyard higher than four amot, as was written in siman 157. And even though the proof is not decisive, for there, what measure would you give? Furthermore, there, when he stands on something and looks into the courtyard, will he not be seen with his body on the other side and be caught as a thief? This is not the case here, where he can peer through a hole in the window. Nevertheless, we have not found anyone who disagrees with this.

It has already been explained that there is a chazakah for damage caused by sight, and therefore one who opened a window into his fellow's courtyard and the owner of the courtyard explicitly pardoned him, or revealed his intent that he pardoned him—such as by assisting him in opening the window—or if he held it for three years and no protest was issued against him, this person has established a chazakah in the window. He cannot afterwards retract and protest against him to close it. Not only that, but when the owner of the courtyard comes to build opposite it, he must distance himself from the window, as will be explained. And even though there is a chazakah for damage caused by sight, it is only for the window itself, such that the owner of the courtyard is unable to close it or build opposite it; but nevertheless, the owner of the window is forbidden to stand and look into his fellow's courtyard, for it is forbidden to damage by sight and he would be committing a prohibition, and chazakah is not effective for this. When the owner of the courtyard catches him looking into his courtyard, he may protest against him. And perhaps you will ask: if so, why is it forbidden to open a window, since even when he has a window he is forbidden to look, what damage is there to the owner of the courtyard in the opening of a window? For certainly it is so, that it is forbidden to look, but the owner of the courtyard is unable to rely on this, that he and all the members of his household will be careful regarding this prohibition, and therefore he may protest. Furthermore, there is a practical difference so that he will be able to build up to the wall. Similarly, a person must be careful from looking into his fellow's house excessively; even if his intention is not to damage him with this sight, nevertheless they will suspect him of a prohibition since he has no reason for his looking, and all the more so when he looks intentionally, for there is a great prohibition in the matter, as was written [Sma]. And as long as he has not yet established a chazakah in the window, he can compel him to close it immediately, even if the owner of the courtyard does not need for the time being to build at its side. And if he does not yet damage him with his sight, such as where the owner of the courtyard does not yet have a house in the courtyard but is destined to damage him when he builds a house, there is in this a dispute between the Rosh and the Rashba, of blessed memory, as will be explained before us.

That which we have said, that there is a chazakah for the damage of sight, in what case does this apply? When one performs an action, such as opening a window or an entrance to the courtyard of his fellow and the like. However, without an action, such as a courtyard of partners, even if they stood for many years without a partition between them, since they automatically damage one another with sight without any action, and just as he damages his fellow, so too his fellow damages him—this has no chazakah, and they may compel one another to build a partition between them, as will be explained in siman 157. And if there are witnesses that they explicitly waived the damage of sight to one another, they cannot retract [Tur].

Behold, if one opened a window into his fellow's courtyard and established a chazakah for it properly, and the wall in which the window was located fell, he has not lost his right; when he rebuilds the wall, he may restore the window to it. This is not similar to what was written in siman 153, section 21, regarding one who had a chazakah to embed beams in a wall and it fell, where he lost his chazakah. For there, the chazakah is upon the wall, and when it fell, its lien was removed. However, a window is a chazakah upon the courtyard, as he has permission to open a window into his fellow's courtyard and to benefit from the light of the courtyard, and the courtyard has not fallen—why should he lose his chazakah [Sma]:

When one has established a chazakah in a window, the owner of the courtyard is forbidden from building opposite the window so that he does not block its light. The owner of the courtyard cannot build opposite it or from the sides unless he distances four amot from opposite it and no more, even though it still darkens it slightly, for if not so, there is no measure to the matter. Thus the sages estimated that with a distance of four amot, there remains light suitable for use. How much he must distance from the sides of the window will be explained in section 28 regarding the law of one who comes to make a courtyard next to a wall, with further details that will be explained there. However, not all windows have a chazakah. How so? If he opened the window for light, even if it was very small and very high, since he established a chazakah properly, the owner of the courtyard cannot build in front of it, for he has waived his rights regarding the light. But if it is not made for light but rather for use or so that wind may enter it: if a person's head can enter into it, even though it is higher than four amot in the wall, or if it was lower than four amot even though his head cannot enter into it, the owner of the courtyard cannot build unless he distances. But if it was small such that his head cannot enter into it and it is above four amot, the owner of the courtyard may build opposite it and from the sides, for he can say: "I only allowed it because it is small and high, and I was not particular about it and did not feel the need to protest as it has no importance at all, and not so that you should establish a chazakah in it such that I cannot build opposite it." For when it is small and high and not for light, it does not have the status of a window at all. Regarding which window is made for light, it depends on the assessment of the beit din and according to the context of the window. And some say that this matter of a window having a chazakah is specifically when it has a tzurrat hapetach—a lintel above and from the sides—and all the more so when there is also a lintel below, for without this, it is nothing more than a hole that mice bored. And such is the law regarding a doorway. And some say that everything is according to the custom of the people of the province, and such is the primary view. However, some say that in a case where it is made for light, even if it has no tzurrat hapetach at all, and even if it is less than a tefach [see Divrei Hamishpat and the Gra subsection 54].

One who had an established window and his fellow came and built opposite it or from its sides without distancing, or he closed it up, and the owner of the window knew of this and remained silent, he cannot go back and protest to open the window or to distance the building. For since he heard and remained silent, he waived his right immediately, as a person is not prone to having his light closed up before him and remaining silent unless he waives his right. And even according to the opinion that requires three years of chazakah and a claim, they admit that in this case it is a chazakah immediately due to the reason of waiver. And even according to the view of the Rambam that in all of them it is a chazakah immediately, there is also a practical difference, for in all of them it must be clarified by a beit din that he knew clearly of his damage, but here, as soon as he became aware and remained silent, it is a waiver [Acharonim]. And it appears to me from the words of the Rambam, of blessed memory, that in truth there is no difference between this chazakah and all other chazakot [for he omitted the word "immediately" that is in the Gemara Bava Batra 60a]. And in the Gemara it is in contrast to the words of Rav Chanan there regarding the opening of a window, and from this we learn for all of them; and according to the Rif it is more settled, and delve into this]. And some say that according to the opinion that requires three years and a claim in all chazakot, granted that in this case it is a chazakah immediately, nevertheless he requires a claim; for if the owner of the window has a deed or proof regarding the window, this one who closes it must claim that he purchased it or that he explicitly waived it to him, and his closing it in his presence is proof for his words. And if the owner of the window has no deed or proof other than the chazakah that he held, and the chazakah is the proof that he waived it to him previously, this one who closes it does not require another claim, only that he shall say that his chazakah was in error. And according to this opinion, the one who closes it must swear a shevuat hesset since he requires a claim [it appears to me].

And all this is when the owner of the courtyard closed it and the owner of the window remained silent; but when the owner of the window himself closed his window, it is not considered a mechila in that he closed it for a temporary need, unless he broke the frames of the window such that it is evident that he does not wish to open it again, or that he built a complete structure in front of it and the like. And if the owner of the window says, "I closed it temporarily and it is not a mechila," and the owner of the courtyard says that he closed it and it is a mechila, the owner of the window is called the muhzak and the owner of the courtyard must bring proof. And even though in siman 153 we explained that the owner of the courtyard is called the muhzak, that is before the owner of the window established a hazaka properly, and therefore in every case of doubt he is the muhzak; but after the owner of the window established a hazaka properly and the owner of the courtyard comes to uproot his hazaka, certainly the owner of the window is called the muhzak. And therefore, if the owner of the courtyard has no proof, the owner of the window takes a shevuat hesset and stands in his hazaka. And nevertheless, when the owner of the window has no proof of the hazaka except for the hazaka alone, and the owner of the courtyard says it was by error, or even if he has proof but this one says that he purchased it from him, the owner of the courtyard is believed with a hesset as I wrote, and the owner of the window loses his hazaka. Since the owner of the window admits that the owner of the courtyard closed it in his presence and he remained silent, he damaged his own hazaka and it is like a partial admission [so it appears to me].

One who had windows in his wall below, opening into the courtyard of his fellow, and he established a chazakah in them, and his fellow comes to build in front of them and says to the owner of the windows, "I will close these windows for you and open others for you in this wall above," it is a simple matter that the owner of the windows may impede him. Even if from the perspective of changing the location of the windows he would not have the power to impede—for example, if his chazakah was only that he should have windows in this wall into the courtyard of the other, and the specific location in the wall was dependent on the owner of the courtyard, and if his wall fell and he was building another, the owner of the courtyard would have the power to change the location of the windows—nevertheless, in a case like this where the wall is standing and the owner of the courtyard wants to change the location of his windows, the owner of the windows may impede him because he says to him, "At the time you open the windows in my wall, you will shake it and damage it." And even if the owner of the courtyard says, "I will demolish the entire wall for you and rebuild it anew," and even if he says to him, "I will demolish your entire building and rebuild it anew and make windows in it above, and I will rent a house for you to dwell in until I build," he may impede him and say to him, "I do not wish to trouble myself from place to place." And that you should make this one wall new while the rest of the building remains as before is also not comfortable for me, for one new wall in an old building is not good for the building [Gemara]. And even if he only uses it for wood alone, he may impede him. Therefore, if there was no trouble at all according to the assessment of the beit din, and he does not need to vacate, he cannot impede him, and we compel against the conduct of Sodom [Tur]. But the owner of the windows who wanted to change their location, whether above or below, even if it was large and he says, "I will close it and open in another place one smaller than this," the owner of the courtyard may impede him, for he has only the place that the owner of the courtyard gives him or that it remain as before. And likewise, he cannot widen it even by any amount.

A wall that is between Reuven and Shimon, and the wall belongs to one of them, he may demolish it for his needs and say to his fellow: "After I demolish it, let us build another wall at the expense of both of us to remove ourselves from each other regarding the damage of sight," and his fellow cannot prevent him. And this is specifically when he has some need for the demolition of the wall, such as if it stands on his land and the like; for if it is not so, they compel him against the conduct of Sodom, so that the wall shall stand and he shall take half of its expenses from the second party and not demolish it [Netivot HaMishpat].

It has already been explained that in a reshut harabim one is not permitted to open a doorway opposite a doorway or a window opposite a window, except for low down in the wall because the people of the reshut harabim see anyway and there is no damage from his viewing; but higher up, in a place where the people of the reshut harabim do not see into his house, it is forbidden to open. Therefore, regarding upper stories on two sides of a reshut harabim, if the reshut harabim is not very wide such that they can see from this window to the one opposite it, it is forbidden. Therefore, if Reuven and Shimon live on two sides of a reshut harabim and both come at once to open doorways and windows in their upper stories, this one must open from the right until near the middle of his upper story, and the one opposite him shall open from the left until near the middle of his upper story, in a manner that they will not be opposite one another, and also with a slight distance as has been explained. However, if Reuven comes to open first in an upper story opposite the upper story of Shimon, and Shimon does not wish to open yet, whether Reuven can open across the whole length is a matter of dispute among the Rishonim. For our teacher Yonah wrote that he cannot open except until near the middle of his upper story, so that the remainder is left for the one opposite him, for he can say: Tomorrow when I wish to open, you will prevent me, and why should you merit the whole thing? In what way is your power greater than if we had come to open at once? But the Rosh and the Rashba disagree on this and hold that Shimon cannot prevent him, for since the reshut harabim is ownerless property, the first to open is like one who merits from ownerless property, and afterwards it will indeed be forbidden for Shimon to open so that he does not damage him with his viewing. Nevertheless, Reuven does not have a complete chazakah in this as he would if he were opening into Shimon's chatzer, for there it is forbidden for Shimon even to stand a wall opposite his window without a distance of four amot so that he does not darken it for him; but here, even if the reshut harabim is not four amot wide, Shimon is permitted to raise the wall of his upper story even though by this he darkens Reuven's windows. The reason for this is that when he opened into his chatzer and it was within Shimon's power to protest against him, and since he did not protest, Reuven established a complete chazakah, and it is forbidden for Shimon to do even in his own domain something that will cause damage to Reuven since he acted with Shimon's consent. But here, Shimon did not permit him to act, rather he was unable to protest against him; and how can he now prevent Shimon from building in his own domain with the claim that he will darken it for him? Through what did Reuven establish a chazakah over Shimon's domain? Granted, regarding the opening of windows and doorways opposite him, he can prevent him so that he does not actually damage him with his viewing, and it is similar to what will be explained in siman 155 regarding a house and an upper story belonging to two people, where the owner of the upper story preceded and made a storehouse, such that the homeowner may no longer open a cattle stall so as not to ruin his storehouse, even though he did not establish a chazakah with his consent. For the reason is that since the owner of the upper story made his storehouse permissibly, it is thereafter forbidden for any person to damage him directly. So too it is regarding the opening of windows and doorways. But to raise his wall, which does not damage him directly but rather through this his light is diminished, why should he prevent him? The Rashba wrote this principle in a Teshuva [Sma subsection 38]. And even regarding the opening of windows, Reuven only merited as long as his building stands, but when it falls he loses his right, and when Shimon precedes and opens windows or doorways, he shall merit the ownerless light, for there is no complete chazakah in this [Netivot HaMishpat]. It would then be forbidden for Reuven to open opposite him, for this is exactly like the law of the storehouse that we wrote.

Our teachers further disagreed regarding one who opens [a window] into the domain of his fellow at a time when it does not cause him damage, such as Reuven who wants to open windows into Shimon's domain, and Shimon's domain is ruined of buildings, and Reuven says, "For now you have no damage from this, and when you build, you shall then block my windows." And the opinion of the Rosh is that Shimon cannot prevent him, for "this one benefits and this one does not lose," and Reuven has no chazakah in this since Shimon cannot protest against him. And when Shimon builds, he may compel him to block them so that he does not damage him with damage of sight, and likewise he may build opposite the windows without any distancing at all. And he ruled so in practice regarding Reuven who came to open a window into Shimon's ruin, that Shimon cannot prevent him; and since he cannot protest against him, Reuven has no chazakah. Therefore, if a window is found open to a ruin, he has no chazakah unless he brings witnesses that he held a chazakah in it before it was a ruin. And therefore, it is good advice for a person who has a window open to the domain of his fellow and the place was destroyed, that he should establish witnesses that he held a chazakah in this window before the place was destroyed. And for this reason, he ruled regarding roofs covered with tiles that are not fit for use like our roofs, that the neighbor may open a window over it, and if after some time he demolishes the roof with the building and the place remains vacant and his window is found open to his courtyard, he may then block it for him. Consequently, a window open to the courtyard of his fellow in which he held a chazakah properly, and the window is at the height of the wall, and the owner of the courtyard comes to build beneath it—and he has permission to do so since the window is in a high place and he will not darken it—and he desires to make a roof of tiles over the building, and that building prevents the owner of the window from looking into the courtyard, the owner of the window may protest against him, for he may say to him: "After some time you will demolish your building and compel me to block my window, for you will say that I had no chazakah at all because it was open over your roof, and I will not be able then to find witnesses who will testify that I held a chazakah in it while I was able to look into your courtyard." And there is one who says that even according to this opinion, it is specifically regarding a small window, but a large window he can prevent him, since it is a permanent matter and it has a chazakah even if there is no damage now; but it does not imply so from the words of the Rosh, of blessed memory.

But the Rashba wrote that if Reuven comes to open a window facing Shimon's land in a place where he does not currently damage him with damage of sight, and Shimon claims that he will build on his own land after some time and he will damage him with sight, the law is with Shimon to prevent him, for he does not want to stand with him in legal proceedings and before a judge after some time when he comes to build. And even if Reuven wanted to write him a deed of admission that he has no chazakah and that he is obligated to close his window when he builds, we do not listen to him, for it results that Shimon would need to constantly guard the deed, and this is not the "trait of Sodom," for many people are fastidious about standing in judgment and the guarding of deeds. And such is the opinion of the Ra'avad, and to this the Rivash agreed and wrote that such is the opinion of many poskim, and such is the opinion of the Ramban and Rabbeinu Yonah. And so our teachers, the authors of the Shulchan Aruch, decided, unless in a place where there is a fixed custom in this matter, we follow the custom. However, the Ramban, of blessed memory, wrote that even though he can protest against him, nevertheless if he did not protest against him, Reuven did not acquire a chazakah in this, and it is not proof for his chazakah, for since it does not yet cause damage, he did not concern himself to protest against him, and when he builds, he shall close them. And as long as he does not build, he does not have the power to compel Reuven to close them, for in any case in this he certainly acquired a chazakah, that as long as Reuven does not have Shimon's buildings before him, Reuven does not have to close his window, for behold Shimon did not protest against him for this reason as has been written. But there are those who disagree on this and hold that if he did not protest against him, it is a complete chazakah. And even according to those who disagree, this is specifically when opening toward his fellow's domain, but when opening toward the public domain where he cannot protest, it is certainly not a complete chazakah such that he would not have the power to build opposite his window, as has been written in section 21.

And know that what we explained there regarding the dispute of our teacher Yonah with the Rashba and the Rosh, concerning the first person who comes to open a window in his upper story facing the public domain opposite his fellow—where the Ri forbids opening across from him entirely and they permit it—our teacher, the Beit Yosef, wrote it in section 14. And in section 15 he wrote: And these words apply in a place where a person is not permitted to extend joists and balconies from his upper story into the public domain; but in a place where he is permitted to extend them, the airspace in front of his upper story is not ownerless, but rather is like a courtyard of partners, and when this one opened his window facing the airspace in front of the upper story opposite it, he opened unlawfully, since the other can also extend his building into the public domain. Thus far his words. And its source is from a responsum of the Rosh which is in the Tur, section 11, and he transcribed it in Shulchan Aruch, section 16, regarding the law we wrote in section 22 concerning one who opens toward the property of his fellow when it does not currently damage him, for the opinion of the Rosh is that he may open. This is his wording: And based on these words, the Rosh ruled regarding Reuven who extended the projection of his upper story outward and opened a window in it, and ultimately Shimon, his neighbor opposite him, decided that he too would extend the projection of his upper story, and Reuven claims that he must distance his building from opposite his window so that he does not darken it, that the law is with Shimon; because since the custom of the place is that one is permitted to extend joists and balconies into the public domain, it is like a courtyard of partners, etc. Therefore, Reuven has no chazakah, and Shimon may build opposite his window. Thus far his words. And behold, his words in section 15 have no understanding at all, for what is the relevance of joists to the opening mentioned in section 14? For either way, if he did not have permission to open an opening or a window, how could our teacher Yonah disagree on this? And there are many other difficulties, and the words of the commentators on the Shulchan Aruch are forced. And what appears to me in my humble opinion is that the essence of the matter is this: that which we explained in section 21, that even though Reuven acquired the light from the public domain such that Shimon cannot open opposite him, nevertheless, to raise his wall he is permitted; and our teacher, the Beit Yosef, wrote it in section 31. Regarding this matter, the Rosh said that it is like a courtyard of partners. And this is the intent of our teacher, the Beit Yosef, in section 15 in what he wrote, "And these words apply in a place where a person is not permitted, etc." And he means to say that regarding what he wrote previously—the opinion of the Rashba and the Rosh that the first person acquired his opening from the ownerless property, and consequently Shimon must also distance his building so as not to darken it—to this he says that this is specifically when Shimon did not have permission then to build and extend joists, for Reuven acquired it for all matters, and even our teacher Yonah would not disagree on this. But in a place where Shimon also had permission then to build as much as he wished, granted that Reuven acquired the light and Shimon is forbidden to open opposite him so as not to damage him directly, nevertheless, he is permitted to build even if he darkens it, for regarding this it is like a courtyard of partners, as I wrote there the reasoning for the matter. And it is necessary to say so, for as for opening doorways and windows, it is obvious that every person has permission to do so, for that is what the street is made for; but to extend joists, there are places that prevent it. Therefore, if Shimon did not have the power then to do so, Reuven acquired the opening of his window such that even if Shimon obtained permission afterward to extend joists and build a structure, he must distance it so as not to darken it. But if he had permission even then, he does not need to distance. But to raise his wall, which he was already permitted to do, even if he darkens it by this, since in this he had permission, and as I wrote there. And our teacher, the Beit Yosef, was brief in section 15 in his wording and relied on what he wrote in section 16 [and perhaps such is the opinion of the Taz and the Gra]. And it is more likely to say that therefore our teacher, the Beit Yosef, presented this law regarding joists and balconies, for regarding the raising of a wall standing at the side of the street, it is remote that it would darken the one opposite him by this, for presumably every street is no less than four amot, and such distancing is sufficient even in a case of a complete chazakah, as I wrote. Therefore he wrote "joists and balconies," and they project into the street above, and not in all places does the government give permission to do so because they darken the street, and in this manner the buildings from the side of the street can meet the side opposite it. And these matters are according to the law and according to correct reasoning.

Reuven who had windows in his house facing the courtyard or garden of his fellow, and there was a wall between them, and the wall fell, and through this Reuven sees into the domain of his fellow, he must close his windows even though he made them with permission. Thus ruled the Rosh, for damage of sight is damage by hand, and one must distance himself even if he acted with permission. And it is not similar to what was written in section 20, that he may demolish the wall when it was his, for there they must also build a wall in partnership as was written there. And so too here, if it was a partnership wall and Reuven's desire is to build in partnership as it was previously, he certainly would have the power to compel his fellow, and he would not need to close his windows. Only if the wall was his, for example, where his fellow was not required by law to set up a wall and Reuven does not wish to build it, he must close his windows [and there is no need for what the Sma wrote in subsection 31, and perforce one must say so, and examine this]. And if there was no wall between them, but rather there was a house intervening which also belonged to Reuven, from which he would see into the domain of his fellow, and it fell, and through this he sees from another house, he does not need to close his windows, for what difference is there if he sees from this house or from another house? And there are those who disagree even regarding the law of the wall, for they hold that damage of sight is damage that occurs on its own, and since he acted with permission, the one being damaged must distance himself. And since it is a legal doubt, the owner of the window is called the possessor [it appears to me].

Reuven who opened a window into a courtyard of partners, and one of them is not here, and he stipulated with the one who is here that when they divide, if his portion falls adjacent to Reuven he will not be able to protest against him—this stipulation is nothing. For it is similar to one who says, "This field, when I purchase it, shall be acquired by you," where he has not acquired it [Tur], as was written in siman 211, for a thing that is not in his possession, he can neither transfer ownership of it nor waive rights to it.

Our teacher, the Beit Yosef, wrote in section 21: One who had a window in his wall, and his fellow came and made a courtyard at its side, he cannot say to the owner of the window, "Close this window so that you do not look at me," for he has already established a chazakah in this damage. Thus far his words. And this is the wording of the Rambam in chapter 7 of Neighbors. And the explanation of the matters is that even previously the land belonged to his fellow, and the owner of the window established a complete chazakah when there were not yet buildings on the land, and afterwards he decided to make a courtyard and build a house in the manner of a courtyard. And his opinion is like the opinion of the Rashba that was explained in section 23, who holds that even in a place where there is not yet damage of sight, there is chazakah and one can protest, and if he did not protest, he established a chazakah, according to the opinion of those who disagree with the Ramban, of blessed memory [see Sma and Taz]. And all the more so if he established the chazakah at a time when the courtyard was built with houses. And it is not enough that he established a chazakah in the window such that his fellow may not close it, but even if his fellow comes to build his wall opposite the window in order to remove the damage of his sight, he must distance his wall from opposite the window four amot so that he does not darken it. And if the window was low in the wall, he compels his fellow to build opposite it at a distance of four amot and to raise the building four amot above the window, so that he does not look into the window while standing on the wall and bend his head and peer through the window. And if the window was high in the wall, and his fellow built a wall opposite the window from below, if from the top of the wall that he built until the window there was a height of four amot or more, he cannot prevent him, even though he did not distance the wall at all and the place does not require treading, as will be explained in siman 155, for he has not darkened it and does not damage him with sight. But if there remained a height of less than four amot, he compels him to diminish the wall in height so that he does not stand on the top of the wall and look into the window, or that he shall raise the wall above the window four amot and the wall shall be distant from the window four amot so that he does not darken it and does not peer and see. And all this is regarding one who builds opposite a window that is over a courtyard, but a window that goes to the public domain has no chazakah, as I wrote in section 21, and he can build opposite it even though he darkens it, and even though he cannot open a window opposite it, as I wrote there.

If one builds a wall at the side of a window, where the window is drawn from east to west and the wall is from north to south, he must distance it one tefach from the edge of the window itself. Not only must the thickness of the wall not be opposite the window, but he must also distance it one tefach from the edge of the window, for if it were next to the window, he would lean on it and look through the window. He must also raise the wall four amot above the window, for if not, he would sit on the wall and tilt his head and look; or, he must narrow the top of the wall, making it slanted and sharp at the top so that he cannot sit on it and see. One measures this tefach from the window itself and not from the frame at the side of the window. Anyone who has a chazakah on a window may subsequently make frames for it, whether from the outside or from the inside, and his fellow cannot prevent it; therefore, there is no chazakah for the frames, and if his fellow comes to build later in the place of the frame, he is able to remove them if they protrude significantly. If he built walls from both sides of the window, there must be a width of four amot between them, and the window is included in the four amot; nevertheless, neither of them may be closer to the window than one tefach [the Maggid Mishneh], if the window is wider than four amot. He may not roof over the walls unless he distances the roofing from the wall containing the window by four amot, so as not to darken it. All of this is according to the system of the Rif and the Rambam in the first chapter of Hilkhot Shekhenim and according to their version of the text in the Gemara [Bava Batra 22b]. However, according to the system of Rashi and Tosafot there, and according to their version of the text, he may build from the side even when the thickness of the wall is opposite the window, provided that he distances it from being opposite the window by the full width of the window; for as long as the thickness of the wall is opposite the window there is no concern, as the standard thickness of a wall is a small matter [Nimukei Yosef]. Nevertheless, if he does not distance it by the full width of the window, he will darken it via the shadow [ibid.] from the wall. He must raise the wall four amot above the window and also make it sloped and slanted toward the side of the windows so that it is fit neither to stand upon nor to lean upon [Rashi]. Raising it four amot alone is not sufficient, for since it is from the side and the length of the wall is toward the width of the window, he could stand at the end of the wall and bend over and peer [Tosafot]. When he makes two walls from two directions, he must distance them four amot from being opposite the window [so it appears to me to explain their opinion, and one who examines the Gemara and the Rambam there will see that it is so; and this is what the Shas said, "it is not a difficulty, here it is from one direction etc.," for according to Rashi and Tosafot in both cases the distance is from being opposite the window, and according to the Rif and the Rambam the distance is at the sides of the window; and delve into this].

And for the Rosh and the Tur there is another approach in this, that he may place the thickness of the wall opposite the window and distance it one tefach from opposite the window; and when he builds two walls, he must distance them from opposite the window in a manner that the two distances from the two walls combine to four amot, and only one tefach is he obligated to distance from each wall. He may distance one tefach from this wall and four amot minus a tefach from the second wall, or he may distance two amot from each wall [and they interpret that which is said in the Gemara, that from two sides one must distance four amot, meaning that in their combination there shall be four amot].

If one made a sloped roof near the window of his fellow and his fellow permitted him, even though there is no fixed usage upon it, he must lower it four amot from the window, for people also ascend upon it occasionally and then they will see and peer into the window; or he should raise it four amot above the window and distance it four amot from opposite the window, and in this he does not require his permission [see Sma, subsection 58].

If he opened an aperture in the ceiling of his upper story like a chimney, and from there the light enters his house, if his neighbor comes to build, he does not need to distance at all, since the light comes to him from above and not from the side.

Reuven who built a room in his house for a storehouse of wine and oil, even if he has not yet brought in the wine and oil [Sma], and he requires air for this to cool them, and his fellow comes to build a wall opposite him, Reuven may prevent him even though he distanced four amot. For since the room is prepared for a storehouse and he made it with permission, his fellow is not permitted to cause him damage with his building, as with damages that will be explained in siman 155. And this is specifically when he made it for a storehouse facing a place of hefker, for then he acquired the air that he requires from the hefker, and his fellow who built afterwards on the place of hefker must distance according to the need of his storehouse. But if the domain of his fellow preceded the building of his storehouse, he does not need to distance, as I wrote in section 21 regarding a building in the public domain opposite a window [Ktzot HaChoshen].

One of the partners who wishes to raise the shared wall between them higher than four amot at his own expense, even if it darkens the courtyard slightly, nevertheless his fellow cannot prevent him. For whatever one does to prevent hezek re'iyah, even beyond what is strictly necessary, the partner does not have the power to stop him. And regarding the slight darkening, there is no claim, since the light comes from above, as was written in section 31. In siman 157 it will be explained that there are those who disagree on the grounds that the second partner can say, "I wish to use half the thickness of my wall," and above four amot it is impossible to use it easily. Therefore, if he wishes to raise only half the thickness of the wall, according to everyone the second partner cannot prevent him [Sma]. And there it will be explained that he must pay the second partner for what the wall is diminished due to its weight. And if the wall is thin such that there is no use for it above, he also cannot prevent him [it appears to me].

One who was damaging his fellow with damage of sight, and when he saw that his fellow was summoning him to beit din, he transferred the place and the building to his minor son, we do not say we shall wait until he grows up; rather, we remove the damage immediately. For since he acted improperly, we pay no heed to the deception he performed in a situation where he damages others. But if it truly belongs to the minor, we do not adjudicate until he grows up, for perhaps he has evidence that his predecessors or donors established a chazakah in this. And if he preceded and sold it to a non-Jew, we compel the seller to remove his damage, just as we compel even without damage of sight, as I wrote in siman 175.

One who has windows overlooking the courtyard of his fellow and has a chazakah, even if they were closed for several years because the owner of the windows himself closed them, as long as his pitzim—which are the lintels above and from the sides—were not broken, if he desired to return and open them, he has the right to do so, for the name of windows is still upon them, and the fact that he closed them was because he did not need them, but not that he waived his chazakah to him, unless there are witnesses or a deed that he waived this chazakah. However, if the owner of the courtyard closed them, it has already been explained in section 17 that when he knew of this and remained silent, he lost his chazakah immediately.

Reuven who acquired ownerless ruins and built houses and upper stories in them with windows and doorways, and Shimon came and also acquired from the ownerless property and built houses and upper stories opposite him, and it turns out that Shimon is damaged by Reuven through the damage of sight and sues him to remove his damage, there is nothing in his words. Since Reuven acquired from the ownerless property, and not only that, but if Shimon comes to also damage him with the damage of sight, such as if he wants to open a window to his courtyard or opposite his courtyard, he may prevent him. And likewise, he is not permitted to build in front of his windows unless he distances four amot from opposite them. And if the first one made a storehouse of wine and oil, the second is obligated to distance further, as I wrote in section 32, since he acquired from the ownerless property.

Two brothers who divided a courtyard of their own accord and not in beit din, where one took the courtyard and the other took the house, and at the time of the appraisal they only appraised the building and the wood against the courtyard and did not appraise the airspace and the light entering the building: if it was an ordinary house that does not have excessive light, the owner of the courtyard cannot say, "close your windows," because the light of the house was not in the appraisal and since the courtyard is mine I may close them; for it is revealed to all that a house without light is worth nothing, and it is as if they appraised the airspace and the light. However, if the building's light was greater than the manner of houses, such as an exedra, if the owner of the courtyard desired to build a wall at the end of his portion, he may build; and even though through this he will darken the great light, nevertheless, since they did not appraise the light, he may do so, and he need not leave him more light than ordinary houses. And the same law applies if he had more windows than are necessary for an ordinary house: he may build in front of them when he leaves windows according to ordinary houses. However, as long as he has not built in front of them, he cannot say to him, "close your extra windows," even though he has damage of sight. And some say that in a place where the light is greater than in all houses, he may also compel him to close the excessive light since he has damage of sight, and such is the primary view [ibid. subsection 26]. And even according to the opinion of the Ramban in section 23, this can be said. And if they appraised the general superiority of the house against the courtyard and not the details of the building and the wood, it is as if they explicitly appraised the airspace [ibid.]. And so too if a beit din performed the appraisal, presumably they acted properly and appraised the airspace and the light [the Gra].

Reuven who sold or gave as one the house to Shimon and the courtyard to Levi, and he had windows open from the house to the courtyard: if the owner of the courtyard desired to build in front of them or to close them, he has the authority to do so according to the opinion of the "there are those who say" in the previous section. And it appears to me that this is specifically when there is light in the house without these windows, but if there is no light without them, he does not have the authority to close them or to build in front of them. And there is one who says that even in such a case he may close them, and his proof is from the fact that the Tur did not explain this explicitly. And I wonder how it is possible to say so, for a house without light does not have the name of a "house" upon it, as in the previous section, and the Tur relied on what he explained previously [this law is in the Tur siman 139 and the previous is siman 137]. And the same law applies if he sold or gave the courtyard and reserved the house for himself, that the owner of the courtyard is permitted to build in front of them or to close them, for we establish that a seller or giver sells and gives with a generous eye and did not reserve for himself anything from the courtyard, and therefore he may close the extra light [it appears to me]. And there are those who say that regarding light and air we do not say "generous eye," and we are witnesses that he reserved for himself all the light and air, and therefore the owner of the courtyard cannot build unless he distances four amot and all the distances in height and depth as has been explained. And so too if he sold the house and reserved the courtyard for himself, there are those who say that he cannot close its windows or build in front of them even when there is light for the house without them [it appears to me], because he sells with a generous eye. And there are those who disagree, that regarding the damage of viewing we do not say "generous eye." And if he sold them to two people one after the other, it is like one who sold and reserved for himself, for to the first one he sold every right that he himself possessed [Sma]. And two who bought from one and divided, or two who bought from two, or from two brothers who divided, will be explained in siman 173 with the help of Heaven. And if Reuven sold to Shimon a house open to a ruin belonging to Reuven, even according to those who disagree, he may not close them or build in front of them even though the ruin is standing to be built upon; since now it does not damage him, he certainly acquired it [ibid.]. And all this is regarding extra windows, but regarding essential windows such that without them no light would remain in the house as in ordinary houses, certainly in every case of sale the owner of the courtyard does not have the power to close them, not like the one who disagrees in this, and as I have written. And when the owner of the courtyard comes to build in front of them, he must distance himself according to the law as has been explained [so it appears to me].

Reuven has a house next to a gentile and opened a window overlooking the roof of the gentile, and after a long time when Reuven had established a chazakah, the gentile sold his house to an Israelite. In their laws, there is no law of chazakah at all in this matter; rather, when the homeowner wishes to open a window to a courtyard that is not his, he has the permission to do so, and the owner of the courtyard does not have the permission to block it. Conversely, when the owner of the courtyard wishes to build in front of the window, he may build adjacent to it even if this person held his window for several years. Now, the buyer wishes to raise his house in a manner that blocks the window of the Israelite; he is forbidden from doing so. Even though the buyer comes with the power of the gentile, nevertheless, he is forbidden from blocking it, according to the law of an Israelite with an Israelite. And even though regarding chazakot we maintain that one who comes by way of a gentile is like him, as written in siman 194, this is to his disadvantage, as there and in siman 149; however, for his advantage, it is not so. And even though in siman 45 and in siman 66 it was explained that he has the power of the gentile even for his benefit, this is specifically regarding money and documents [as in Bekhorot 11b], but regarding hezek re'iyah, which is a matter of prohibition, or when he has merited his view such that there is a prohibition to block it, he does not follow after him. And some say that there is no distinction in this, for all of this is a monetary matter, and he has all the power of the gentile; and since the gentile was able to build in front of them, he too is permitted to do so. Without building, he is forbidden from blocking them, for even the gentile did not have this power in their laws, as I wrote. And so, an Israelite who comes by way of a gentile's power has all the power of the gentile. And so ruled the Rosh, of blessed memory, and his teacher the Maharam of Rothenburg, and so our teacher, the Rema, decided [and so ruled the Maharshal]. And all the more so in a place where there is dina d'malkhuta, for we follow it when he buys from the gentile. The buyer must be careful to take possession of the land before giving the money into the hand of the seller, for if he gives the money first, the seller is immediately removed and it is like ownerless property, and the second Israelite acquires these windows before the buyer takes possession of the land, and automatically he has acquired the airspace such that the buyer cannot build opposite him. The reason for this law will be explained, with the help of Heaven, in siman 194; see there.

Our teacher, the Beit Yosef, wrote in section 19: Reuven had a house next to the courtyard of a gentile and opened windows facing it, for such is their law, and now the gentile sold his courtyard to Shimon, and Shimon says to Reuven, "Close your windows," the law is with him; and even if Reuven claimed that he purchased the right from the gentile, thus far his words, unless he has a deed from the gentile [Levush], for it is a claim without a chazakah since in their laws there is no chazakah for this. And even though our teacher, the Beit Yosef, holds like the first opinion in the previous section that it is forbidden for the buyer to raise his house and darken it, it is different there because the roof intervenes and the first Israelite did not damage the gentile with his sight; therefore, even though the Israelite did not have a chazakah against the gentile in their laws, nevertheless, since he held it for several years and even now he does not damage the buyer, it is forbidden for the buyer to damage him and darken it. This is not the case here, where his window is open to the courtyard of the buyer and damages him with sight, and he has no chazakah for this; the buyer can certainly compel him to close his window so that he does not damage him with his sight [Sma]. And some say that here it deals with a case where the courtyard of the gentile was prior, and there it deals with a case where the window of the Israelite was prior [the Gra]. According to this, there is no difference whether the roof intervenes or does not intervene; rather, if the Israelite was prior, he acquired rights even in a window open to the courtyard, and when the gentile was prior, the buyer acquired rights even to raise his roof. Our teacher, the Rema, wrote on this ruling: And it has already been explained nearby that there are those who disagree, thus far his words. And this is the "some say" that we wrote in the previous section. The explanation of the matter is that just as there we give the buyer the power of the gentile who sold to him, that he may build in front of the window, so too here we give the first Israelite the power of the gentile, such that he could not close the window for him according to their laws, as I wrote in the previous section, for he also comes from the power of the gentile in this detail; but certainly if he wants to build in front of it and darken its light, he is permitted [so it appears in my humble opinion, and the wonderment of the Shach and the Taz is settled, see there].

Our teacher, the Rema, wrote in section 18: And all this refers to a case where it is known that the courtyard of the akkum existed prior to these windows; but if it is a matter of doubt whether the windows were prior and he established a chazakah in ownerless property, the buyer who comes to close them up must bring proof, and a chazakah is not effective against an akkum or one who comes by his power unless he established a chazakah in it after he purchased it from the akkum. Thus far his words. [And according to the explanation of the Gra in the previous section, his words apply only to the previous section and not to what he wrote in section 39, and so wrote the Gra in subsection 84 and rearranged his words, see there; but what he wrote, that even if the windows were prior and he established a chazakah in ownerless property he may build against it, thus far his words, this requires great study, for this applies only in a public domain and not in ownerless property, as I wrote in section 36, and so wrote the Sma in subsection 50].

Reuven who had a house and a courtyard next to a gentile, and the gentile opened windows into the courtyard of Reuven, and Shimon purchased the house from the gentile, and Reuven came to block the windows by showing a deed where the gentile wrote to him that Reuven has the ability to block them, and Shimon says that the house he purchased previously belonged to an Israelite who established a chazakah in the windows before selling it to the gentile: if the gentile was required to block them according to their laws, or if it is written in the deed that Reuven showed that he has no chazakah in the windows because they were made unlawfully or as a request, Shimon who comes by the power of the gentile is no better than him. However, if the gentile was not required to block them and also did not admit that his windows have no chazakah, but only wrote "I will block them when you wish" and obligated himself in that which he was not obligated by law, and Reuven did not have the ability to compel him according to the deed by their laws to block them, Shimon also does not need to block them; for the primary ruling is that the purchaser has all the rights of the gentile from whom he purchased, as was written in section 39 according to the first opinion there. And if the gentile was obligated by their laws to block them, Shimon is also obligated to block them. And a gentile who established a chazakah in windows, it is not a chazakah, and one may build in front of them since by their laws they cannot protest against building in front of them; if so, the chazakah is nothing. But to block the windows themselves he cannot, for even by their laws the law is so, as was written there.

An Israelite who had a window open to the courtyard of a gentile and closed it from the outside but left it open toward the inside, and after some time the gentile sold his courtyard to an Israelite, and that Israelite built a wall and the corner of his wall happened to block the window, and the owner of the window claimed, "I closed it because of the gentile so that he would not see into my house, and now I wish to open it," he cannot go back and open it. For since he closed it from the outside and left the remaining wall entirely toward the inside, he revealed his intent that he uprooted it from being used for its light and made it like a window that a person makes inside his house. And furthermore, the buyer can say, "I found this window closed; how am I to know that it was open and you closed it of your own will? Perhaps the gentile closed it," and it becomes a chazakah immediately, as has been written, that regarding the closing of a window, it is a chazakah immediately. Thus wrote the Tur in the name of a Gaon who ruled accordingly. And even though there is no chazakah against a gentile, nevertheless, since he found it closed, this one has a chazakah. And conversely, the owner of the window has neither a current chazakah, since it is closed, nor a prior chazakah, since there is no chazakah against a gentile. However, according to the "there are those who say" in section 39, even without these reasons he may build in front of it, just as the gentile had this power according to their laws. However, if it is not known that the courtyard of the gentile was prior, these reasons are necessary even according to the "there are those who say," as I wrote in section 41 [it appears to me]. And there is one who explained that in this case the doorposts were not recognizable [Sma], but it does not imply this, for behold, on the inside it remained as it was [Taz]. However, if the doorposts are recognizable, it is difficult for the first reason, for behold, as long as the doorposts are recognizable, it is as if it is open. And it appears to me that certainly if it were closed from both sides, the first reason would not suffice; only that here he closed it from the outside and on the inside the space of the entire window remained and he used it there like a chest, and this is the "revealed his intent" that the Gaon says, meaning that since he did so, he revealed his intent that he made it for use and not to provide light.

One of the great authorities wrote that specifically the damage of sight is forbidden, but the prevention of sight is not forbidden. For example, if two people have houses open to the public domain and one extended the projection of his upper story outward, such that through this the other will not be able to see into the distance as he could until now, but he does not darken it for him, he cannot object to him [Knesset HaGedolah]. And it is likewise in other matters similar to this, and these are words of reason.

Just as it is forbidden to build a wall in front of the window of one's fellow, so too it is forbidden to plant a tree near it, for if the branches grow they will darken it. If he planted it and the branches grew, he may prune them even if it produces fruit, and there is no prohibition of bal tashchit in this when he does so for a need, as the Rambam wrote in the sixth chapter of Melakhim that the Torah only prohibited it by way of destruction. And know that the damage of sight from a window applies even when there is colored glass in the window, for nevertheless, one looks through the glass.