Story LineDividing WallRabbi Meir Orlean
Mr. Waltuch and Mr. Hauser owned adjacent properties. Relations between them were not very cordial. A tall dividing wall stood between their properties.
One day, Mr. Waltuch decided to build a garage on his property adjacent to the wall. He propped the roof beams for the garage on the wall, across its full thickness.
Mr. Hauser saw the beams lying on the wall. “What are those beams doing on my wall?” he asked Mr. Waltuch.
“I’m building a garage, and propped the roof beams on the wall,” replied Mr. Waltuch. “We jointly own the wall, so I have a right to use it. An engineer confirmed that the beams will not damage the wall.”
“I also own the wall,” said Mr. Hauser, “and I don’t permit you to place your beams on it.”
“We share the wall,” pointed out Mr. Waltuch, “so I have a right to use it.”
“If we share the wall, that means half is mine and half is yours,” said Mr. Hauser. “At most, you can prop the beams on your half of the wall, but not on my half!”
“Who says that the wall is divided half and half?” asked Mr. Waltuch. “We both own the entire wall, and are each entitled to use it fully. If you wanted to, you could have propped beams across the whole thickness.”
“In truth, I don’t think that the wall is shared property at all,” responded Mr. Hauser. “Half the wall is sitting on my property; that half is exclusively mine. Half is sitting on your property and is exclusively yours. You have no right whatsoever to use my half.”
“I suggest that we discuss the issue with Rabbi Dayan,” said Mr. Waltuch. “He can help us understand the nature of the dividing wall.”
The two came to Rabbi Dayan. “Can I utilize the full thickness of the wall?” asked Mr. Waltuch.
“The Mishnah (B.B. 2a) teaches that neighbors can require each other to build a dividing wall between their properties,” replied Rabbi Dayan. “The thickness of the wall should be split between the two properties, as well as the cost of building. The wall is jointly owned” (C.M. 157:3).
“What is the nature of the joint ownership?” asked Mr. Hauser.
“The Tur cites a seeming dispute on this issue,” replied Rabbi Dayan. “If one party wants to raise the height of the wall, at his expense, some Rishonim allow him, since each party has rights in the entire wall. The Rosh, however, maintains that the other party can object and claim that half of the thickness of the wall is his, and that he does not want his air rights diminished” (Tur and Bach, C.M. 157:26; see Ketzos 157:5,10).
“What does the Shulchan Aruch rule?” asked Mr. Waltuch.
“Shulchan Aruch (C.M. 157:9) cites both opinions, without a definitive decision,” answered Rabbi Dayan. “The Acharonim discuss who is considered in possession (muchzak) in such a case, also without clear resolution” (Ba’i Chayai, C.M. 1:91).
“The Gra links this dispute to a dispute between Rav and Shmuel in the Yerushalmi (B.M. 10:6) regarding whether the wall belongs half to each or entirely to each,” continued Rabbi Dayan.
“A practical ramification, mentioned in the Yerushalmi, is whether an item found on the wall toward one side belongs to the owner of that side, or to whichever of the partners found it. He points out that the Shulchan Aruch earlier seemingly rules that each side can use the entire wall” (Gra, 157:41; C.M. 154:26).
“Where does this leave us?” asked Mr. Hauser.
“The halachah is not conclusive, but tends toward allowing Mr. Waltuch to utilize the entire thickness,” replied Rabbi Dayan. “Regardless, the local law usually creates a common practice. In most law codes, each party owns the part of the wall sitting on his property; some places grant the right to use also the other half (easement), while others do not.”
From the BHI HotlineSlippery Cellphone
Q: I hired a driver to take me on a long trip, and at some point we stopped at a gas station. I tried to make a phone call, but my cellphone didn’t work. The driver graciously allowed me to use his phone, and while I was talking, it slipped out of my hand and broke. I thought that I am obligated to reimburse him, but my friend told me that I am not responsible for the damage. Is he correct?
A: Your friend may have examined the she’eilah correctly from one perspective, but ultimately, he is incorrect.
The reason you might not be responsible is because of a concept called b’alav imo. Derived from a passuk in the Torah (Shemos 22:13), b’alav imo means that if the owner of the object is working for the sho’el, the sho’el is absolved of responsibility for damage caused to the borrowed object, even if he was negligent in handling it [Shulchan Aruch, C. M. 346:1 and 291:28 regarding other custodians].
Was your circumstance considered a case of b’alav imo?
The Aruch Hashulchan (C. M. 346:15) delineates the rules of b’alav imo regarding a worker as follows: If the worker is paid by the day or hour (sechir yom), and the employer then borrows an object from him, it is considered b’alav imo even if the damage occurs while the worker is taking a break. If he was being paid by the hour to paint the employer’s home, for instance, and the damage to the object borrowed by the employer occurred while he was waiting for one coat of paint to dry before applying a second coat, it would be considered b’alav imo, since he has to resume work as soon as he can. If, however, the worker was contracted to complete a task (kablan) no matter how much time it takes — to paint the house for a fixed price, for example — he is allowed to determine his own schedule. It would then be considered b’alav imo only if the borrowing took place while he was actually working, not while he was taking a break. Since he may leave and return the next day if he so desires, his break time is his own and is not considered b’alav imo.
A wagon driver, concludes the Aruch Hashulchan, is a case of b’alav imo even if he and his passenger stop over at an inn, because he must be available to resume driving as soon as his employer is ready to continue his journey. Therefore, your case would be considered a case of b’alav imo, and you would not be obligated to pay.
[Even if this was the conclusion of this case, you would be absolved only in beis din. The Ohr Hachaim (Mishpatim 22:14) writes, however, that in order to avoid Divine retribution, a borrower should reimburse the owner of a damaged object even if he could be absolved because of b’alav imo, although this requirement might apply only if it was damaged due to negligence (see Tal Torah, Bava Metzia 97a). Accordingly, if you were negligent in allowing the phone to fall, you would be advised to pay to be yotzei din Shamayim.]
What your friend failed to consider, however, is that b’alav imo absolves a shomer only of payment, but you might be considered a mazik (person who damages someone else’s belonging). According to many Poskim, a mazik is not absolved because of b’alav imo (see Mishpat Hamazik 3:13), but others extend the exemption of b’alav imo to an unintentional mazik (Mishneh L’Melech, Hil. Ishus 21:9, and Pischei Teshuvah, C. M. 176:13).
A person who drops something is considered a mazik, and is responsible for damage caused by or to the object that fell (see Bava Metzia 118b, Rashi, s.v. Chayav). The Machaneh Ephraim (Shomrim 39) does maintain that a person is considered a mazik only if he inflicts direct damage with his body or through the force of his body (such as if he threw something), but if something slipped he could be responsible only as a shomer (which would not apply in your case, as we discussed). Most Poskim maintain, however, that a person is considered a mazik for an object that slipped out of his hands, so you would be required to pay for the phone (see Mishpat Hamazik v. 2, 12).
Money mattersTax Loopholes#438
Q: Is it halachically permissible to take advantage of tax shelters and tax loopholes (“tax avoidance”)?
A: The classic case of dina d’malchusa in the Gemara (B.K. 113a) is that of taxes. The king or government, whether Jewish or non-Jewish, is entitled to impose and collect taxes and customs tariffs, provided that the tax is collected in a standard manner, even if some groups pay more than others. A tax collector who acts according to the law acts also with halachic authority (C.M. 369:6).
Nonetheless, it is permissible to take advantage of tax shelters and tax loopholes. For example, if local people are not subject to custom tariffs, Rivash (#2) allows granting merchandise as a gift to a local person when passing customs to avoid the tariff. This is considered “avoidance of taxes” and not “tax evasion,” and is in consonance with dina d’malchusa (Pischei Choshen, Geneivah 1:).
One should consult a professional tax expert in this regard, as the details vary from place to place.