Indirect Nuisances And The Ability To Enforce The Measure Of Piety

The Babylonian Talmud discusses indirect nuisances, which although damaged a person's body or property, but in an indirect manner. The Talmudic discourse brings the opinion of Rabbi Yosef, that while one does not have to compensate another for

38 The discussion in the Babylonian Talmud states that in cases of serious hazards such as the stench from lavatories or smoke, Chazaka does not hold.

39 The style in the Mishnayot, which lay down not only prohibitions but also a proactive suggestion for a way of life for both sides by ways of distancing hazards, rather than prohibiting them entirely, can be understood as aiming at minimizing, but not preventing, damage. However, there are also cases where the sages totally and unequivocally prohibited the existence of hazards. Thus, for example, the Mishnah forbids the grazing of sheep and did not suffice with the distancing of the grazing areas from places of inhabitance or by allocating areas for this purpose. "It is not right to breed small cattle in the land of Israel" (Bava Kama 7:7).

creating a nuisance, it is prohibited to indirectly cause damage (gerama),40 and one should prevent the creation even of an indirect nuisance.

Elsewhere, this author claimed that quite possibly some modern-day nuisances would be too indirect to be included even under Rabbi Yosef's prohibition of indirect damages. However, there exists an additional halakhic level, which is referred to as "beyond the letter of the law" (lifnim mishurat hadin), or the "measure of piety" (midat chassidut), and at times, the Sages applied to the nuisance owner to be more stringent with himself than required, and the decisors of each generation were even given the authority to impose such measures.41

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