Removing Oneself From Damage

Notwithstanding the unequivocal position of the mishnayot surveyed above, prohibiting the existence of hazards, the Halakhic ruling has been set according to the more lenient method of Tanaic (Mishnaic sage) Rabbi Yossi, who established that it is incumbent on the one who suffers the damage to distance himself from it.44

However, this approach was qualified by later-day Talmudic sages, who stated that in clear cases of hazards, as direct as a hit of an arrow, Rabbi Yossi concedes that the onus is on the perpetrator of the nuisance rather than the one subjected to it.45

40 Bava Batra 22:2.

41 See Glicksberg, Ph.D. Dissertation (n. 11).

42 For a list of such Takanot (legislation), see Glicksberg, Ph.D. Dissertation, pp. 348-366 (n. 11).

43 Formulators of Takanot could also update the precise distances, as determined by experts and as explained above.

44 As is clarified by the discourse in the Babylonian Talmud on Bava Batra 18b.

45 Bava Batra 25b.

In a parallel discussion regarding the distancing of a tree from a neighbor's pit, Rabbi Yossi's opinion, which stood in contradiction to the other sages, did not require the removal of the tree. The reason for this was given in a Tosefta: that "the sole purpose of having fields is for planting."46 A similar tone is found in the Jerusalem Talmud: "The world is settled with trees".47 Indeed, these sources reveal the position of the "nuisance owner," whose viewpoint was not considered by the Sages disagreeing with Rabbi Yossi.

Rabbi Yossi's point of reference, on which the Halakhic ruling is based, is that generally speaking, the legislation aims at striking a balance between different vital interests. On the one hand, the protection of the property of the one suffering from the damage, and on the other, the rights of the "owner of the nuisance," as long as the nuisances considered are not unreasonable. However, at a stage where one identifies and assesses serious hazards, the injured party is to be given legal recourse, and the authorities should enforce the removal or prevention of the nuisance.

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