This week’s parsha contains many of the halachos that pertain to bein adam lechaveiro [civil law]. Therefore, I would like to take this week’s opportunity to discuss some of the halachos of gezel sheinah, the prohibition to steal one’s sleep. We will discuss if there is in fact such a prohibition, and we will see that some say there is no such prohibition, and some say it is very severe and can’t be returned. Does it apply when learning Torah loudly at night? Is it a problem to phone someone late at night? What should one do if he wants to wake up to daven with netz; is he allowed to set an alarm clock which may wake up other people? May a Daf HaYomi shiur be given on the 8am-9am bus that goes from Bet Shemesh to Yerushalayim, or is this perhaps gezel sheinah? Of this and more below.
What Prohibition Does One Violate When Waking Someone Up?
Before we discuss various scenarios of gezel sheinah, let’s first try and determine which prohibition one violates when he disturbs someone else’s sleep?
Mazik [Damager]: The world likes to say: גזל שינה אין להשיב – “stealing sleep is a theft that can’t be returned.” However, in the sefer Mishpat HaShecheinim (in the introduction) they bring a letter from R’ Chaim Kanievsky zt”l where he establishes that there is no source for this and he writes that in truth disturbing one’s sleep is not considered gezel. He then says: If one regularly disturbs another person’s sleep, he can be held accountable for being a mazik and the one being disturbed has a right to stop him. (It is clear from Tosfos, 21a d.h vegardi, that one only has a right to complain if it is constant.)
Chesed: R’ Shmuel HaLevi Wosner (Shu”t Shevet HaLevi 7:224) also writes that the prohibition of gezel [theft] only applies when stealing a tangible object, and not when disturbing one’s sleep. However, disturbing one’s sleep is a lack of chesed and doing so violates the mitzvah of ואהבת לרעך כמוך – “loving your friend like yourself.” He adds that if one is a sick, then disturbing his rest is even worse, as it could be stealing his health as well.
Gezel: On the other hand, we find in the sefer Chofetz Chaim U’Po’aloi (Vol. 3, pg. 105) that the Chofetz Chaim used to say: כי המקיץ את חבירו משנתו הוי גזילה שגזל ממנו את מנוחתו, וזוהי גזילה שאין לה השבון – “Whoever wakes his companion from his sleep is stealing, because he stole his rest from him, and this is theft that has no way of being returned.”
R' Menashe Klein (Shu”t Mishneh Halachos 12:443) also writes that if one wakes up a friend it is gezel, as the idea behind gezel is that one causes pain and distress to his friend and waking up someone who is sleeping certainly violates this. R' Menashe Klein also quotes the pasuk in Mishlei (4:16): ונגזלה שנתם – “And their sleep was stolen”, which clearly highlights the idea that there is a concept of stealing sleep.
Tza’ar Ba’alei Chaim: R’ Yosef Liberman zt”l (Shu”t Mishnas Yosef 6:24; 8:35; and 10:140) writes that disturbing one’s sleep comes under the issur de’O’raisa of tza’ar ba’alei chaim, the prohibition to cause pain to living things, and it would seemingly be dependent on whether the prohibition of tza’ar ba’alei chaim applies to human beings or not.
To prove that waking up someone is considered tza’ar, R’ Yosef Liberman brings the Gemara in Kiddushin which says that Doma ben Nesina didn’t wake up his father, כדי שלא לצערו – “in order not to cause him pain”, we see from here that waking up someone is considered pain.
Ona’as Devorim: The opinion of R’ Blau zt”l (Pischei Choshen Vol. 4, Perek 15, he’orah 3) in the name of the Shu”t Keren LeDovid (Orach Chaim, siman 18) and so takes on the sefer Avnei Derech (7:11) is that it is forbidden on a Torah level to wake someone up from his sleep as it causes him pain and distress and gezel sheinah is included in the prohibition of ona’as devorim, and it is clear from the Gemara in Bava Metzia (58b) that the prohibition of ona’ah includes any act which causes someone pain. Therefore, one who wakes up a friend violates the prohibition of: ולא תונו איש את עמיתו – “not to cause another person pain” (Vayikra 25:17).
According to the above, there would be no prohibition of gezel sheinah to wake up someone who doesn’t keep Torah and mitzvos, as it’s clear from the Rema (228:1) that there is no prohibition of ona’as devorim on someone who is יצא מכלל אחיך – “not considered a brother”, i.e. someone who doesn’t act like a brother, meaning, he doesn’t keep Torah and mitzvos.
Chavolah (צער דחובל): R’ Zalman Nechemia Goldberg zt”l (Kovetz Beis Aharon V’Yisrael Vol. 102) writes that if one wakes up a friend he violates the prohibition of chavolah mentioned in Bava Kama (and in this week’s parsha) and tza’ar is one of the five things that one needs to recompensate his friend for. R’ Zalman Nechemia discusses if one is perhaps even obligated to pay money to his friend if he disturbs his sleep.
Mussar: The sefer Mishpatei Choshen (pg. 239) writes that it appears to him that the concept of gezel sheinah was made up by the chachmei mussar, and from there it spread to the entire world.
Phoning People Late at Night, Playing Loud Music, Car Alarms and Levayah Cars
Considering the above, one should be careful not to phone someone late at night. Some argue that there is no harm in phoning late at night as if one doesn’t want to answer he simply won’t answer, however, this argument is heavily flawed, as it may well be one doesn’t want to answer, however, once he has anyway been disturbed then he decides to be nice and pick up the phone. Similarly, one shouldn’t play loud music at night, and one should be careful not to honk his horn late at night.
However, one is allowed to install an alarm system into his car which sounds if someone tries to break in, even though it may end up disturbing people’s sleep, as one has an obligation to do what he can to protect his property. However, one should be careful to ensure that the alarm only sounds for a limited amount of time, after which it stops. Similarly, it is permissible to announce a levayah late at night, if it will cause more people to attend the levayah. See the sefer Pischei Choshen (Hilchos Geneivah V’Ona’ah, Perek 15, he’orah 3) where he cites numerous examples of gezel sheinah.
Moving Beds Late at Night
If one lives in an apartment building, it is forbidden to move furniture etc. at night if it will disturb the sleep of the neighbors below. However, it is obvious that the upstairs neighbor can do things that are accepted as being normal, even if it will disturb, as when the downstairs neighbor moved into a building with neighbors on top, he understands that this may happen. However, when the upstairs neighbor can avoid having to move beds around late at night, by simply doing it earlier on in the day, then although it may be inconvenient for him, it is obvious that he should do it at a time which doesn’t disturb.
Similarly, if one knows that their neighbor goes for a rest in the afternoon, they should do what they can to avoid disturbing them. I.e. children should be told not to bounce balls or use their skipping ropes during these times.
Late Night Shevah Berachos
If one hosts a shevah berachos in his home, he should be careful not to make a loud noise late at night. Although some say that neighbors who live in a building live there with the understanding that occasionally such things happen, and they sort of agree and understand that when each one makes a simcha they will disturb the other one, a neighbor should still ask permission from others before hosting a simcha in their home, and they should explain that it is a one off and it won’t go on past 11 – 11:30. Some say that on rare occasions such as shevah berachos, neighbors understand that they may even go on until 12:00 (some add, that the host should notify all the guests that shir hamalos will be at 11).
Learning Torah Loudly at Night – A Reenactment of Matan Torah or Strictly Forbidden?
The Shu”t Shevet HaLevi (7:224) rules that there is no heter [special allowance] for a talmud chocham to learn Torah late at night in a Beis HaMedrash in a manner that it will disturb the neighbors, and he explains that even if one wants to learn out loud, it is possible to do so without disturbing other people.
When R’ Nissim Karelitz zt”l was asked about a neighbor hosting Shevah Berachos and another neighbor complaining, he remarked: א יך יתכן שזה מפריע מה שהשכן שמח, וזה בגדר צרות עין – “How can it be that one neighbor finds the others simcha disturbing, such a thing shows stinginess and a lack of the ability to rejoice in another person’s happiness.”
The Shulchan Aruch (Choshen Mishpot 356:3) rules that one may teach Torah to children in his house and the neighbors can’t protest “that the noise of the teacher and children is disturbing their sleep”, however, the Shevet HaLevi writes that our case is not comparable as with children there is no other option, however, a talmud chocham can learn out loud without needing to raise his voice too much and disturbing others.
On the other hand, the Shu”t Mishneh Halachos (Vol. 14, siman 200) writes: Talmiday chachomim who are learning in a beis hamedrash like they normally do, even if they make a loud noise like the noise of the Torah being given on Har Sinai there is nothing wrong (obviously we aren’t talking about people who do it with intent to disturb). He then adds, even if a talmud chocham learns loudly in his house at night and it disturbs the neighbors there is still no prohibition, and on the contrary, there is a mitzvah and obligation, like Chazal say in Eruvin (18b): “Any house from which the sounds of Torah can be heard from at night won’t be destroyed” – and Rashi explains this is specifically at night where the sound of learning can be heard from the distance, we see that merely learning without people being able to hear from far away is not enough, and it must be loud enough so that people can hear it from the distance. See the Teshuvah inside for further proofs, and he adds that one should do this and hopefully others will learn and copy him.
We can add, that R’ Chaim Kanievsky zt”l once related that there was a story with a bochur who was learning loudly at 11pm on the balcony of the yeshivah, and one of the neighbors came to shout at him and the bochur closed the door of the balcony to lock him out, and continued learning. When the Chazon Ish heard about this episode he said, “It is good what you did, as it is forbidden to disturb one’s learning” (and obviously the bochur was learning better outside on the balcony). (Ma’aseh Ish, Vol. 4, pg. 74)
However, the above story is not a rayah to the Mishneh Halachos as it took place in a yeshivah, and a yeshivah is different, as in a yeshivah there is more of a heter to learn out loud. Once the neighbors came to complain that the noise of the learning in the yeshivah of Tiferes Tzion was disturbing them, and the Chazon Ish told them, “soon there will come a time where every second building in Bnei Brak will be a yeshivah or a beis haknesses” (Ma’aseh Ish, Vol. 7, pg. 98, however, see Derech Sicha Vol. 2, pg. 341 who doesn’t seem to agree to this).
It’s also important to add, that the Chazon Ish said, that if a bochur is learning in the beis hamedrash late at night, and it is disturbing other bochurim from sleeping, the bochur should learn quietly (cited in Sha’arei Hora’ah, Kovetz 3, pg. 218).
See also the Pischei Choshen (Vol. 4, pg. 427) who writes that whenever there is an option to do something in a manner that doesn’t disturb the neighbors one should do it in that manner. And he adds that there is room to differentiate between disturbing neighbors and disturbing yeshivah bochurim.
An Interesting Gezel Sheinah Din Torah
R’ Rafoel Cohen, mechaber of Kesav Emes (Vol. 3, pg. 381) relates an incident about himself. He writes that in his early years as an avreich, he would learn at home with a chavrusa, and sometimes they would get into heated arguments and raise their voices. One of the neighbors who was also a talmud chocham came and complained that the noise was disturbing him and demanded that they learn quietly without raising their voices.
The Kesav Emes argued back that there is an obliagtion to learn Torah at night, “and any house that Torah can’t be heard from at night, will be consumed by fire etc.” (he also added various other sources), therefore he can’t be stopped. The neighbor was not convinced by his words, and took him to a din Torah with one of the poskei hador.
When the neigbour presented his complaint to the Dayan and claimed that his neighbor was causing gezel sheinah, the Dayan replied in amazement, "I don't understand! Are you disturbed by the sound of Torah?! Why should it be disturbing you?! You should be happy and content that while you sleep the sounds of Torah learning pass through the beams of your house, and he added in a reproachful tone, "Even in the city of the Torah, a Ben Torah comes to sue his fellow for learning Torah in his own house"?!
What The Netziv Had to Say About Sleeping Under A Noisy Beis HaMedrash
In the great fire that broke out in Volozin in 5646, many houses went up in flames, including yeshivah buildings and the homes of many of the rabbonim involved in the yeshivah. The yeshivah administration set about building new houses in place of the old ones, and during the construction, which took a considerable amount of time, the Netziv was forced to live in the rooms below the main beis hamedrash of the yeshivah where over three hundred bochurim sat and learnt, וקול התורה בקע והדהד מתוכו ברמה - and the sound of the Torah burst forth and echoed from it very highly.
A certain person asked the Netziv: “Rabbi, how can you rest or sleep, when the noise of learning is constantly heard above your head?” The Netziv replied: “When you pass by a flour mill and hear the noise, you may wonder how the owner sleeps at night, it would seem that with such noise he shouldn’t be able to cope for even one hour during the day. However, the truth is that the greater the noise, the better his sleep, he hears every movement of the wheels with great pleasure, and on the contrary, when the wheels of the mill are standing and not working, the owner cannot fall asleep, the silence does not give him rest! (The more noise he hears, the more money he is making, therefore, the better he is able to rest. For the Netziv, Torah was the same). (Cited in Marbitzei Torah U’Mussar, Vol. 1, pg. 20)
Late Night Taxis
If one orders a taxi to come late at night, or early in the morning, he should stand outside waiting for the taxi to avoid the driver having to beep and cause unnecessary noise and disturbance for the neighbors.
Setting An Alarm Clock to Help One Wake Up for Netz, and Waking People Up When Washing Netilas Yodayim Early in the Morning
The Shu”t Mishnas Yosef (13:354) has a Teshuvah where he was asked about whether one is allowed to set an alarm clock to ring early in the morning to help wake him up for netz, or if perhaps doing so is gezel sheinah?
The Mishnas Yosef shows that gezel sheinah is an issur and although one doesn’t steal any tangible item, it is still forbidden.
He then says that he was once asked about washing netilas yodayim next to the bed if it will disturb one’s wife, and he responded to the person who asked the shailah that he should lift up the bowl close to his bed and wash his hands gently in a way that it won’t disturb anyone. He concludes that the same thing is regarding an alarm clock, one should place the alarm clock near his bed and turn it off as soon as it rings, and one should daven to Hashem for siyata dishmayah that his getting up at netz should disturb anyone.
Is Giving a Daf HaYomi Shiur from 8am – 9am on the Bet Shemesh to Yerushalayim Bus Considered Gezel Sheinah?
The Mishnas Yosef (8:35) was asked if it’s okay to give a Daf HaYomi shiur from 8am – 9am on a bus that travels between Bet Shemesh and Yerushalayim and to be mezakeh [benefit] the rabbim [public] with Torah, or if perhaps doing so is considered gezel sheinah. If someone protests, can we say he is like someone who complains about being cold in the summer (i.e. and we ignore him), or must we listen to him?
The Mishnas Yosef starts his Teshuvah by showing that there is an issur known as gezel sheinah, however, he writes that there is a difference between waking up someone who is already sleeping and doing something which stops someone from falling asleep. He also writes that perhaps we can argue that the morning is not a time for sleeping, however, it is not such a good argument as if people have disturbed nights, it is very common to sleep a bit in the morning. However, those that need to catch up with sleep can block their ears with ear plugs and block out the noise.
He also writes that talmud Torah d’rabbim is very special, and a Daf HaYomi shiur on the bus is definitely considered talmud Torah d’rabbim.
The Mishnas Yosef concludes: In America it is very common for shiurim to take place on the buses, and therefore doing such a thing is certainly a good thing to do, however, it should be done in a sensible manner and those who want to hear the shiur should gather towards the front, and those that want to sleep should sit towards the back and use ear plugs, and shalom al Yisrael.
A Question to Keep Things Exciting
The Mishnah in Sanhedrin (71b) teaches: שינה ויין לרשעים – הנאה להם והנאה לעולם לצדיקים – רע להם ורע לעולם – “Sleep and wine for wicked people – is good for them and good for the world, for righteous people – it is bad for them and bad for the world.” Considering this Mishnah, surely there should be no such thing as gezel sheinah, as if one is a wicked person, we should let him sleep as it’s good for him and the world, and if one is tzadik we should wake him up, as leaving him to sleep is bad for him and bad for the world? Tzorich iyun, please let us know what you think about this question.
