Siman 156

<b>[What neighbors are able to prevent one another from doing, and regarding one who encroaches upon the trade of his fellow, and one who brings merchandise to another city—whether the residents of the city can restrain him; and it contains 18 seifim]:</b> Just as a neighbor has the ability to restrain his neighbor from doing something in his own domain that will cause him damage, as has been explained, so too may a neighbor restrain his neighbor from making a livelihood in his house through a matter that will increase the traffic of the public in the courtyard. And some say that even in a mavoi that is not open-ended, since it is closed on three sides, its law is like a courtyard. Therefore, if one of the residents of a courtyard, or of a mavoi that is not open-ended according to the "some say," sought to make himself a physician, or a bloodletting craftsman, or a weaver of garments, or a scribe of documents, or a teacher of children in studies that are not of Torah, the residents of the courtyard or the mavoi may restrain him because he increases for them those who enter and exit. And even if they all consented to him except for one of them, that one may restrain him. And even if he already acted and established a chazakah, they may protest against him, for in this matter a chazakah is not effective, just as with smoke and a privy in siman 155. And so too, one who has a house in a courtyard of partners shall not rent it to one of these, and even if he cannot find another who will rent [Tur]. But to sell it, some say it is permitted, and afterwards let the law pierce through between them and the buyer. And the reason is that the purchaser buys absolutely, and they do not have the ability to restrain him from selling, and it is not the way to stipulate at the time of purchase and say "I am buying for this craft," but rather he buys without specification and shall do what he desires; therefore, afterwards when he has purchased, they shall restrain him from acting. But a renter must of necessity specify that he is renting for this craft, for if not so, the landlord would restrain him so that he does not damage his house and the like; and since he rents it to him for this craft, the prohibition falls upon the landlord [it appears to me]. And to a gentile it is forbidden to sell for this craft, for he will not obey the law; and even when he does not specify for this craft, since it is known that his intention is for this, it is forbidden to sell to him [it appears to me].

If one wishes to establish a shop in his courtyard to sell merchandise, they can prevent him, and even a chazakah is not effective, for they can say to him, "We are unable to sleep from the noise of those entering and exiting." And even without this, they can prevent him due to the increase of those entering and exiting, as has been explained. And if he only wishes to perform his craft in the shop and sell them in the market, they can also prevent him if there is in this craft the sound of a hammer or the sound of millstones. However, if he established a chazakah in this, they cannot protest against him and say to him, "We are unable to sleep from the sound of the hammer and the millstones," since he already established a chazakah in this and they did not protest against him. And this chazakah does not require three years and a claim, but rather it becomes a chazakah immediately by reason of waiver [Sma]. And if he established a chazakah for a craft where the noise is weak and wishes to exchange it for a craft where the noise is strong, they can protest against him according to this opinion [it appears to me]. And there are those who disagree on this and hold that only regarding the increase of those entering and exiting can they protest and a chazakah is not effective, but to perform a craft in his house and his shop, they cannot protest against him even initially, and he does not require a chazakah at all, for it is not reasonable that a person should not have the authority to perform in his house and his shop whatever craft he wishes. And specifically regarding healthy people, but if there are sick people or those of delicate constitution for whom the noise is harmful to their health, they certainly can protest, and even a chazakah is not effective, as has been explained in siman 155, section 33, see there.

And one who wishes to perform a matter of mitzvah in his courtyard, even if through this there is a multitude of those entering and exiting, they cannot protest against him, for everyone is commanded regarding the mitzvot, and all the more so they are not permitted to hinder one who wishes to perform a mitzvah. Therefore, if he wishes to teach children Torah within his house, the neighbors cannot protest against him and say to him, "We are unable to sleep from the noise of the children of the teacher's house." And the same law applies to all matters of mitzvah, they cannot protest against him, and even when he does so for payment, for in any event the mitzvah is performed [so it appears to me].

And one must ask regarding this: since a matter of mitzvah is permitted, why is he not permitted to be a doctor or a trusted bloodletter? For behold, healing souls is a great mitzvah. And there is one who says that since the doctor can go to the patient, there is no mitzvah in this [Taz]. Furthermore, this is not unique to Israel alone. And it appears to me that in truth, in the Gemara and in the Rambam, it is only found that a teacher of Torah is permitted, and the study of Torah is equivalent to all the mitzvot, and the envy of scribes increases wisdom; but other matters of mitzvah they can prevent. And this is the opinion of the Ramban [brought in the Beit Yosef]. And our teachers, the authors of the Shulchan Aruch, who wrote that the same applies to all matters of mitzvah—this is the opinion of the Tur. And the Tur does not read "a doctor or a craftsman," but rather "a skilled doctor," and some say that his intention is one who teaches the craft of medicine.

And that which we said, that regarding the study of Torah they cannot protest, this is specifically regarding the residents of an alleyway or the residents of a courtyard where they do not dwell together in one house. However, those who dwell in one house, and one of them wishes to teach Torah to children, they can protest against him from teaching in the house where they dwell with him, for this is certainly a burden too great to bear in one house, and they did not enter into partnership with this intent unless they stipulated so at the outset [Levush].

It was taught in a baraita [Bava Batra 21a]: The residents of an alleyway may compel one another not to settle among them a tailor, nor a tanner, nor any of the craftsmen; but one may not compel his neighbor. Rav Huna the son of Rav Yehoshua said: A resident of a city can prevent a resident of another city, but if he is subject to the head-tax here, he cannot prevent him. And a resident of an alleyway cannot prevent another resident of his own alleyway; and regarding a resident of an alleyway against a resident of another alleyway—it remains a doubt (teiku). And since it is a doubt, he cannot prevent him. And there are some of our teachers who explain that this is the meaning: when there is no craftsman among them at all, they can prevent a craftsman from entering among them because of the increase of those entering and exiting, and this is according to the opinion of "some say" in section 1, that even in an alleyway they can prevent it. But if there is already a craftsman among them, they can no longer prevent one who comes to perform this craft, since there are already people entering and exiting. And even the craftsman cannot prevent him because of the loss of his livelihood, for every person has the permission to do whatever work he desires, and the second cannot prevent him, for this one acts within his own and that one acts within his own. And it is not similar to a poor person who is turning over a cake and another comes and takes it, who is called "wicked," as will be explained in siman 237, for that is when he stands over a purchase, as is written there. And he can only prevent one from another city when he does not pay tax here [Sma and the Gra]. And this is the opinion of the Rambam, of blessed memory, who wrote in chapter 6 of Shechenim: The residents of an alleyway may compel one another not to settle among them a tailor, nor a tanner, nor any of the craftsmen. If there was one of the residents of the alleyway there who was a craftsman and they did not protest against him, or if there was a bathhouse or a shop or a mill there, and his fellow came and made another bathhouse opposite him, he cannot prevent him and say to him, "You are cutting off my life-sustenance." And even if he was from another alleyway, they cannot prevent him, since that craft already exists among them. But a stranger from another province [city] who comes to make a shop next to the shop of this one, or a bathhouse next to the bathhouse of this one, they have the right to prevent him. And if he was giving with them the portion of the king, they cannot prevent him. Thus far his words. And regarding the matter of the portion of the king, it will be explained that it is not enough that he is from this kingdom, but rather that he is also among those who bear the yoke of all the needs of that city.

And there are some of our teachers who explain that the baraita is not dealing with a case where there is no craftsman of this craft there, but rather when there are those of this craft there, and because of the loss of their livelihood they can protest so that he shall not enter that alleyway, even when the alleyway is open on both sides, for there the claim of the increase of those entering does not apply as it is like a public domain. And they can also protest to the whole city against a resident of another city because of the loss of their livelihood. And if the resident of the other city pays the taxes of this city, they cannot close the city to him; only their alleyway can they close to him because of the loss of their livelihood. And against a resident of this city, they cannot close even their own alleyway. And if the alleyway is not open on both sides, they can prevent even a resident of this city if he is not from their alleyway, because of the claim of the increase of those entering and exiting. And that which was explained in section 1 according to the first opinion, that in an alleyway the claim of the increase of those entering is not a valid claim, this refers to the residents of that same alleyway itself [the Gra, subsection 16], but the residents of the courtyard can prevent in any case. It emerges that according to this opinion there are four divisions of laws: that a resident of another city who wishes to settle in this city, anyone can prevent him in the whole city. And if he pays tax to this city, they cannot close the whole city to him if he finds a courtyard and an alleyway that wish to allow him to dwell there and perform his work, but every alleyway can prevent him even when it is open on both sides, and even one person can prevent. And one who is of the residents of this city can enter whichever alleyway he wishes of the alleyways open on both sides like our streets, if the people of the courtyard he enters allow him, and the residents of the alleyway cannot protest against him. But if it is an alleyway that is not open on both sides, they can protest against residents of another alleyway but not against residents of their own alleyway. And the people of the courtyard can protest even against the people of their own courtyard when he wishes to perform work that he had not held until now, because of the claim of the increase of those entering, as I wrote in section 1, and even one person can prevent. And in all that has been explained, there is no difference whether he comes to perform some craft or whether he comes to open a shop to sell merchandise. And this is the system of Rashi, Tosafot, the Rosh, and the Tur, and our teacher, the Rema, cited it [and as the explanation of the Gra, subsection 20, and see Sma, and examine carefully].

Our teacher, the Rema, wrote that there are those who say it is not called "giving tax" by merely giving the king's portion, but rather until he gives his tax to the governor of this city which belongs to their border. Thus far his words. And he shall bear all the needs of the city. And if he did not give tax until now and comes to engage in his craft and give tax, there are those who say that regarding his craft they can prevent him until he rents a house for himself and becomes like the people of the city, and when the people of the city do not protest against him, for if not so, they could protest even against his dwelling in their city, as will be explained [Sma]. And there is no difference in all that has been explained between a talmid chacham and another, for there is no difference except regarding peddlers, as will be explained. And there are those who say that if the people of the city need his Torah, they cannot protest against him from practicing a craft or a shop even if there is another talmid chacham in the city, for "envy of scribes increases wisdom." And a talmid chacham who brings merchandise to a city, they are obligated to prevent every person from selling until he sells his own so that he will not tarry and be idled from his study. However, if there are others who sell this merchandise such that there is no profit in this for the talmid chacham by preventing many of Israel from selling, it is permitted for every person to sell. And see Yoreh Deah siman 243.

Peddlers who travel through the towns with perfumes and other small items required by the daughters of Israel, the people of the town cannot prevent them, for it was an enactment of Ezra that they should travel with their merchandise everywhere so that these items would be available to the daughters of Israel. Therefore, this applies specifically to perfume peddlers and the like, but regarding other merchandise, there is no distinction between a peddler and anyone else. And even perfume peddlers are not permitted to establish themselves in the town permanently except with the consent of the people of the town, for no person has permission to dwell in another town except with the consent of the people of the town. But if he is a talmid chacham, he may establish himself with his merchandise in any place he desires. Similarly, teachers of children have the same law as a talmid chacham, and the teachers of the town cannot prevent other teachers from teaching children in their town, for "the envy of scribes increases wisdom." And even when they take tuition fees, they cannot prevent them [it appears to me].

The merchants who bring their merchandise to sell within the towns, the shopkeepers of the town may prevent them from selling piece by piece in the manner of shopkeepers, but rather they must sell in bulk to the shopkeepers in the manner of merchants. And if they came on the market day, which is like a fair that is not frequently found [it appears to me], they do not prevent them from selling piece by piece even to the townspeople [Sma]. And specifically that they sell in the market, but they may not carry merchandise to the houses of individuals even on the market day. And if they have loans or credit in the town, they may sell for their sustenance even not on the market day until they collect their money. And so too if they are indebted to others of the townspeople, they may do so until they earn enough for their debt and pay and go on their way [see Sma subsection 21]. And so too regarding interest loans to idolaters, they may protest against them, for this is like any other trade. But if they come on the market day and lend to the people of the towns who gather there to come to the market, they cannot protest against them; but they shall not lend to the people of their town even on the market day, because the profit of a loan is for the future and is not similar to merchandise. And if they have loans in the town, they may lend until they earn enough for their sustenance so that they may collect their debts.

Some say that the fact that the people of the city can protest against the people of another city selling merchandise is specifically when there is no loss to the buyers, such as when they sell like the rest of the people of the city and their merchandise is found in the shops of the city and their merchandise is not better than the merchandise in the shops in the city. But if they give it cheaper or the merchandise is better, the sellers of the city cannot protest. And specifically when it is possible to sell cheaply and the shopkeepers of the city are raising the price, but if the shopkeepers sell at the price that ought to be, but these who come desire to lower the price, they are not permitted and are rebuked for ruining the ways of commerce [it appears to me]. And if they bring a type of merchandise that is not found with the shopkeepers of the city, certainly they do not protest against them even if they do not lower the price and it is not so good. Our teacher, the Rema, wrote: People of a city who fled to a settlement due to fear of danger, the people of the settlement cannot prevent them from earning according to the measure of their livelihood until the wrath passes, and according to the small amount of their business that they conduct, they shall bear the burden with the community; and if they belong to the taxes of the city, they cannot prevent them. Thus far his words. And it appears that in lending they cannot engage when they do not belong to the taxes of the city for the reason explained in the previous section. And one who comes from another city to engage in merchandise in this city, certainly the people of the city can prevent him as has been explained, but they have no authority to force him after he engaged in his commerce to give tax according to their will; rather, they say to him before he engages: either give such and such, and if you do not want to, we will prevent you from engaging in our city. And people of another city who come to dwell in the city and do not earn there, the people of the city cannot protest against them; even though through them the price becomes expensive, nevertheless, since they do not engage in business such that they could say to them "you are cutting off our livelihood," the high price is not a claim.

Regarding that which has been explained, that the people of a city can prevent the people of another city from settling in their city to practice any craft or trade when they were not previously associated with the taxes of this city, our teachers disagreed concerning one who comes to settle and desires from now on to bear all the burdens of the city and all its needs, whether the people of the city can prevent them according to the law of the Gemara. For some say they can prevent it because the chazakat yishuv of the city belongs to the inhabitants of the city and they can prevent others, and this is the opinion of Rashi, of blessed memory, and many of the Rishonim. And some say that what they said in the Gemara that we brought in section 6, that they can prevent it when he is not associated with the karga in the city, this is when he does not desire to enter into the yoke of the city; but when he desires to enter into all the taxes and all the needs, they cannot prevent him, for by what means did the inhabitants of the city acquire the chazakat yishuv of the city? And this is the opinion of Rabbeinu Tam and the Rosh, of blessed memory. And that which we explained in section 8 is according to the first opinion. However, even according to the latter opinion, from the enactment of the earliest of the early ones who decreed regarding chazakat yishuv, and the reason was because in their days the settlement of Israel was very precarious and the wild nations exiled them from place to place, and with the increase of the settlement of Israel, the confusions increased and the troubles intensified, and therefore they decreed thus, as the Maharik wrote in shoresh 191. This is not the case now, when the exalted government allows the children of Israel to settle in any place they wish; this enactment is not applicable at all. And from this one must understand how to instruct and to judge in every single country according to the matter, even according to the latter opinion.

And this is what our teacher, the Rema, wrote in section 7: that all this only deals with when others come to engage in business in the city who do not dwell there, and therefore they can protest against them even though they want to pay tax, since they were not subject to the tax until now. But if they want to dwell in that place and pay tax and be like one of the residents of the city, some say that they have permission, for a person can dwell in any place he wishes, and the first ones did not acquire the city through chazaka. And some disagree and say that they can protest against them, particularly in this time when they dwell under the gentiles and there is a concern that if the residents increase, it will lead to harm from the gentiles; therefore, one who comes to dwell is like a pursuer. And according to everyone, if the residents of the city are able to close the door and protest against those coming to dwell by means of some prevention, they have permission. And there are places that are accustomed to making a regulation of chezkat yishuv, and then they can compel them, though not by the letter of the law. And they can decree not to buy or sell with those who come to dwell without their permission. And if there is a rav in the city, he can decree against the one coming to dwell if he is his student. And some say that the regulation of chezkat yishuv does not apply to a talmid chacham, for he can dwell in any place he wishes. And if they permitted one for a time and gave him permission to dwell, we do not say that it was entirely permitted, and they can remove him afterward. Thus far his words. And from this you see that in our days, in the days of merciful kings, this law does not apply at all. He further wrote that one whom they came to remove from the city because he does not have chezkat yishuv, they cannot remove him until he collects his debts, and he can earn during that time enough for his livelihood. Thus far his words. And he must contribute to the taxes of the city according to the value of his business, as was written in section 11.

Our teacher, the Rema, wrote that there are those who say that this which was explained—that he only needs to give tax according to his business dealings—this applies when they do not want to permit him residency; but if they want to permit him residency entirely, he must give tax like one of the city residents immediately, or he shall go on his way. And there is one who disagrees on this. Thus far his words. And the reasoning of those who disagree is that they hold like the "there are those who disagree" in section 12, that if his desire is to be like the people of the city regarding the payment of all taxes, even without this they do not have the power to prevent it, and this is not dependent on their will [the Gra].

Our teacher, the Rema, wrote: The early ones were accustomed that if one traveled from the city for twelve months and revealed his intention that his intention is not to return, he has lost his chazakah. But if he did not reveal his intention in this matter, he has not lost his chazakah until three years. And if he revealed that his intention is to return, he has not lost his chazakah even in three years. And there are those who say that even in an unspecified case, he has not lost his chazakah. Thus far his words. And he wrote further: The residents of a city who had a chazakat yishuv, if they despaired once from the city and afterwards some of them returned and endeavored for the settlement, others have nothing against them. Thus far his words. And this is all according to the first opinion in section 12, or according to the second opinion in a place where there is a takkanah regarding chazakat yishuv, as I have written.

Even though in this time it is not the custom to practice the chazakat yishuv in the cities, nevertheless, in the villages it exists even in this time, and it is from an enactment of the ancients. One who encroaches upon a boundary violates "Cursed is he who moves his neighbor's boundary," and is called a wicked person, and let the snake of the sages bite him, for which there is no cure. Especially since it is visible to the eye that through the pressure and crowding where one person pushes his fellow by coming to encroach upon a boundary, he is like a pursuer, and through this there are many obstacles and a desecration of the Name of Heaven and a desecration of the honor of Israel; and it is no less than marufia, which will be explained nearby.

Reuven who dwells in a settlement and claims a chazakah accompanied by a legal claim, his chazakah is a valid chazakah, and he may protest against Shimon who comes to dwell there. And even if Shimon brings witnesses or documents that many years prior this chazakah was his, since Reuven claims "you sold it" or "you gave it to me" and he held possession for three years, his chazakah is a valid chazakah. This chazakah is no worse than a chazakah of lands, and Shimon should have made a protest. And if Shimon brings witnesses and claims that he was afraid to protest because Reuven is a violent man, and he clarifies that such is the case, his chazakah is not a valid chazakah. And if Reuven is a violent man but his sons are not violent men, his sons have a chazakah, for the son of a robber has a chazakah, as is written in siman 149. And it is the custom that when the place is vacant for three years, he loses his chazakah, and every place follows its custom. And so we judge regarding a chazakah of a settlement as we do regarding a chazakah of land regarding other matters; so wrote our teacher, the Rema.

Our teacher, the Rema, wrote that there are places where they adjudicate the law of Ma'arufia, which is that one who has business with one of the wealthy individuals or the ministers, it is forbidden for another to descend into his livelihood and to engage with that wealthy individual; and there are places where they do not so adjudicate. The reason for the dispute is according to what will be explained in siman 237 regarding a poor person turning over a cake and another came and took it, who is called "wicked." For the first opinion holds that this is also included in "a poor person turning over a cake," since all the business of the wealthy individual was done through him and it is like the conclusion of a purchase. The second opinion holds that it is not comparable to this, for that only applies to a specific matter where one stands over the purchase to buy a certain object or a certain land [so it appears to me, and see the Gra subsection 28]. And he wrote further that even an Israelite who performed work for a wealthy individual or a lord or other people and is accustomed to it, it is forbidden for another Israelite to enter there and to cheapen the work; and if he desired to do so, they rebuke him. However, if he transgressed and did so, they do not remove it from his hand, and it will be further explained in siman 237. And two people who dwell together and one wants to cheapen [the price], his fellow cannot protest against him since his fellow did not establish a chazakah more than he did, and so too in all similar cases. The general rule of the matter is that every man of Israel must be careful not to encroach upon the boundary of his fellow even in a slight matter, and one who encroaches upon a boundary will not see good, either he or his offspring; and one who is careful in this merits for himself and for his offspring. And more of the laws of such chazakot will be explained at the end of siman 175.