Is privacy a legal claim? TB Baba Batra 22

Today we began Baba Batra, literally The Last Gate. Baba Kama is the First Gate and Baba Metzia is the Middle Gate. At one time all three massekhtot were one gigantic massekhet called Massekhet Nezikin, the tractate of damages. Eventually this one large tractate was divided into three tractates, each containing 10 chapters.

Baba Batra deals primarily with the laws concerning real estate and is the largest massekhet of all, containing 176 pages. Rashi’s commentary is always terse and concise and he only comments on the first three chapters. Rashbam, Rashi’s grandson, comments on the last seven chapters. Rashbam’s commentary is more like the tosefot, i.e. verbose and long. Consequently, even though there are more dappim in this massekhet, each daf is shorter than usual.

Daf TB Baba Batra 2 begins to litigate whether privacy is a legal claim or not (הֶיזֵּק רְאִיָּה שְׁמֵיהּ הֶיזֵּק אוֹ לָאו שְׁמֵיהּ הֶיזֵּק). The Mishnah describes cases about a wall in the middle of the courtyard owned by partners. One case is:  “in a place where it is customary to build a partition in the middle of a garden jointly owned by two people, and one of them wishes to build such a partition, the court obligates his neighbor to join in building the partition.” (Sefaria.org translation) The Gemara concludes this sugiya “Since they wished to divide the jointly owned courtyard, they build a proper wall in the center even against the will of one of the partners. Apparently, it may be concluded that damage caused by sight is called damage.” (Sefaria.org translation)

The Gemara brings six cases from different mishnayot and baraitot to test whether privacy is really a legal claim. In each of the cases the Gemara sees a qualitative difference in each case making one think that privacy isn’t a legal claim.

“The Gemara asks: And is damage caused by sight in fact not called damage? The Gemara provides a mnemonic for the proofs, which follow, that challenge this assumption: Garden, wall, compels, and they divide, windows, as Rav Naḥman.

1.    “The Gemara suggests: Come and hear that which the mishna teaches: And similarly with regard to a garden, in a place where it is customary to build a partition in the middle of a garden jointly owned by two people, and one of them wishes to build such a partition, the court obligates his neighbor to join in building the partition. This indicates that invading one’s privacy by looking at him while he is in his private domain is called damage.

“The Gemara answers: A garden is different with regard to the halakha governing invasion of privacy, in accordance with the statement of Rabbi Abba, as Rabbi Abba says that Rav Huna says that Rav says: It is prohibited for a person to stand in another’s field and look at his crop while the grain is standing, because he casts an evil eye upon it and thereby causes him damage, and the same is true for a garden. Since the issue in this case is damage resulting from the evil eye, no proof can be brought with regard to the matter of damage caused by sight.

2.    “The Gemara objects: But the mishna teaches: And similarly with regard to a garden, which suggests that a garden and a courtyard are governed by the same rationale. The Gemara answers: The term: And similarly, is stated not with regard to the reason for the obligation to construct a wall, but with regard to the halakha concerning non-chiseled and chiseled stones. A partition in a garden is built with the same materials used for the building of a wall in a courtyard, in accordance with regional custom 

3.    “The Gemara suggests: Come and hear a proof from a mishna (5a): In the case of a dividing wall in a jointly owned courtyard that fell, if one of the owners wishes to rebuild the wall, the court obligates the other owner to build the wall with him again up to a height of four cubits. This indicates that damage caused by sight is called damage. The Gemara rejects this proof: The case of a wall that fell is different; since a wall had already stood there, the court compels the owners to rebuild it as it was.

“The Gemara expresses its astonishment: And he who asked the question, why did he ask it at all? The mishna is clearly referring to a wall that has fallen, which means that the joint owners have already agreed in the past to build a partition between their respective portions. The Gemara answers: He who asked the question maintains that the joint owners can be compelled to build a wall even in a case where a wall had not stood there before, to prevent any invasion of privacy. And the mishna does not address the case of a wall that fell to teach that only in such a case is there an obligation to build a wall. Rather, it was necessary to teach the latter clause, which states that even in a case where there had previously been a high wall the court does not obligate him to rebuild it higher than four cubits, because once there is a wall of four cubits there is no further invasion of privacy.

4.    “The Gemara suggests: Come and hear an additional proof that damage caused by sight is called damage, from what is taught in a mishna (7b): The residents of a courtyard can compel each inhabitant of that courtyard to financially participate in the building of a gatehouse and a door to the jointly owned courtyard, so that the courtyard not be open to the eyes of those standing in the public domain. Learn from it that damage caused by sight is called damage. The Gemara answers: This is not a proof to the halakha in the case of two neighbors, as the damage of being exposed to the gaze of the general public, which has unimpeded sight of what is happening in the courtyard, is different and certainly called damage.

“The Gemara asks: And is exposure to the sight of an individual not considered damage? Come and hear a proof that it is called damage from what is taught in a mishna (11a): One divides a courtyard at the request of one of the co-owners only if its area is sufficient so that there will be in it four by four cubits for this one and four by four cubits for that one, that is, the same minimal dimensions for each of the co-owners. This means that if there is enough for this one and enough for that one, they do divide the courtyard at the request of one of the owners. What, is it not so that the courtyard must be divided with a wall that will prevent one neighbor from seeing the other? The Gemara answers: No, perhaps it is divided with a mere partition of pegs through which one can still see

5.    “The Gemara further suggests: Come and hear another proof that damage caused by sight is called damage from what is taught in a mishna (22a): One who desires to build a wall opposite the windows of a neighbor’s house must distance the wall four cubits from the windows, whether above, below, or opposite. And a baraita is taught with regard to that mishna: Concerning the requirement of a distance above, the wall must be high enough so that one cannot peer into the window and see into the window; concerning the requirement of a distance below, the wall must be low so that he will not be able to stand on top of it and see into the window; and concerning the requirement of a distance opposite, one must distance the wall from the windows so that it will not darken his neighbor’s house by blocking the light that enters the house through the window. This indicates that there is a concern about the damage caused by exposure to the gaze of others.

“The Gemara rejects this argument: The damage of being exposed to the sight of others while in one’s own house is different, as people engage in activities in their homes that they do not want others to see. By contrast, a courtyard is out in the open and it is possible that the residents are indifferent to being observed.

6.    “The Gemara challenges this distinction: Come and hear a proof, as Rav Naḥman says that Shmuel says: If one’s roof is adjacent to another’s courtyard, he must make a parapet around the roof four cubits high so that he will not be able to see into his neighbor’s courtyard. This indicates that the damage of being exposed to the eyes of others even in a courtyard is called damage. The Gemara refutes this proof: The situation is different there, as the owner of the courtyard can say to the owner of the roof: I make use of my courtyard on a regular basis. You, by contrast, do not make use of your roof on a regular basis, but only infrequently. Consequently, I do not know when you will go up to the roof, so that I can hide from you at that time and avoid coming under your gaze.” (Sefaria.org translation.

    On this issue of privacy, our daf leaves us hanging. As we continue our journey through this chapter and the rest of the massekhet, we shall be able to decide conclusive whether or not privacy is a legal claim.