Being that we are deep in the middle of the cold winter months, I would like to discuss the following shailah, which is commonplace throughout kollelim and botei midrashim throughout the world: In a certain kollel a fight broke out, some of the avreichim held that it was very cold outside and the windows need to be closed, as besides for the fact that the cold was disturbing them and they couldn’t learn properly, it was also damaging to their health as Chazal tells us: הכל בידי שמים חוץ מצנים ופחים – everything is in the hands of Hashem, besides for catching a cold. On the other hand, some other avreichim held, that they were choking inside and the windows needed to be open to let in some fresh air, and the stuffy air inside was really bothering them and disturbing their learning. The million-dollar question is, which side wins: Do we go after the majority, or do we perhaps say that since it is the winter and it is generally cold in the winter, even if just one person is cold he has a right to go against the majority and we keep the windows closed?
Cases of Damage to a Neighbor, Where the Neighbor Has a Right to Protest
The Gemara in Bava Basra (22b) and ruled in Shulchan Aruch (Choshen Mishpot 155:39) discusses the level of damage one can get away with before his neighbor has a right to protest. The Shulchan Aruch rules: If one has a job where he works a lot with blood (i.e. he is a bloodletter) or he works with neveilos [corpses] and the blood attracts ravens, and they are causing a neighbor distress due to the constant chirping, or because they have blood on their feet when they sit on the trees, and they ruin the fruit. If the neighbor is angry about this, or he is ill and the chirping bothers him, or his fruit is getting ruined, the person working with the blood must change jobs, or he should distance himself far enough away from his neighbor to avoid causing him damage. The Rema adds: The same thing is with any large act of damage that a neighbor can’t face living with, and the damaging neighbor must either stop, or distance himself.
Is a Neighbor Believed to Say He Is Suffering from His Neighbors Profession
The Aruch HaShulchan (sif 33) adds: A neighbor isn’t believed to say that he can’t cope, unless it has been clarified with beis din or experts in the area, that such a type of damage is something that most people can’t put up with. Or it has been established that the neighbor is a very sensitive person, or ill and can’t cope with such things (in such a case, even if a regular person could cope, the damaging neighbor would still have to stop).
The Opinion of the Chazon Ish – Does A Neighbor Have a Right to Protest Against a Baby Which Cries at Night
The Chazon Ish (Choshen Mishpot, Bava Basra, siman 13, end of s.k. 11) writes: If one lives in a residential building designed for living in, and one does something which is considered normal to do, however, sometimes it disturbs someone who is ill, the ill person has no right to protest, even if the ill person was there first. Based on this, if one lives in a building with someone who is ill, the ill neighbor has no right to complain about a child who cries at night, even if this causes his health to deteriorate.
The explanation for this is, if one lives in a joint residential building, he can’t complain against neighbor’s doing things that are considered normal. Even if sometimes the activities are noisy and they disturb the sick person, the fact that he agrees to live in such a building, shows that he accepts to live in a building where the neighbors do normal things, even if sometimes they disturb him. A child crying at night is a normal thing, therefore, the ill person has no right to complain, and the “noisy” neighbor doesn’t have to move.
If one is bothered about living in a residential building where people do regular things, then he should find a quiet island to live on, or at least live in his own private home.
From the Aruch HaShulchan it seems that if it has been established that one is ill, then he may have certain rights to protest, however, from the Chazon Ish it seems clear, that even if one is ill, he can’t protest against the neighbors from doing normal things.
The Opinion of the Pischei Choshen that We Follow the Majority of The People Davening/Learning in That Particular Place
Based on the above opinion of the Chazon Ish, since the majority of people in the world during the winter months need the heat to stay inside, and can catch a cold if it is too cold, we should follow the majority of people in the world, and certainly if the majority of people in the shul/beis hamerash want the window closed, they win. Seemingly, even if only a minority in this particular case want the window closed, they would win, as the normal thing during the winter months is to close the windows (unless there is a minhag in this particular place that the windows are always open).
The Pischei Choshen (Hilchos Ona’ah, Perek 15, he’orah 3 – pg. 434) writes that it would seem that we go after the majority of mispallelim (or people learning) in that particular place and we ignore what the majority of people in the world at large would do. However, from the Chazon Ish it would seem that we don’t follow the majority or minority in this particular place, rather, we go after what is considered regular, and the regular thing in the winter is to close the windows.
The Pischei Choshen adds that since we go after the majority of people in this particular place, if one is going to get ill by davening in such a place as he wants the window closed and the majority wants it open, then perhaps it would be better for him to daven at home and avoid causing pain and distress to the other mispallelim. He adds: It is obvious that if the beis haknesses is big enough to have one part with open windows and one part with closed windows, then that is what should be done, and it is better for one to forgo davening in his fixed place, then to cause others pain and distress.
The Opinion of the Shevet HaLevi Regarding Air Conditioning in a Shul During the Summer, When Some People Are Against Having It On
The Shu”t Shevet HaLevi (8:307) was asked about a certain beis haknesses where most of the members wanted to have the air conditioning on during the summer months, however, there were a few elderly and sick people who wanted it off and they couldn’t cope with the cold air being blown from the air conditioning unit.
After quoting the Rema (Choshen Mishpot 155:15) which says: “If one does an activity in a courtyard which gives a headache to the owner of the courtyard, the damager must distance himself”, he adds, nonetheless: using air conditioning in today’s day and age is considered normal usage, and most people use it, therefore, those who want to use it can’t be stopped. However, he adds, since the elderly and sick people are proper partners in the beis haknesses, they can’t be stopped from opening a window (in the summer) to avoid getting ill from the cold of the air-conditioning, even though by doing so they reduce the effectivity of the air-conditioning due to the hot air that they are allowing to enter into the beis haknesses. (See further 9:298 where the Shevet HaLevi writes regarding fans during the summer, that if one can’t cope with a fan being blown in his face, he should go and daven in a different place in the shul, where he won’t be affected by the fan.)
The Ruling of R’ Yisrael Salanter zt”l That An Individual Can Force the Majority to Close the Windows During the Winter
The poskim bring down in the name of R’ Yisrael Salanter zt”l, that if there are many people in a room, and some want the window open and some want it closed, in the summer we listen to those who want it open, and even if just 1 out of 100 people wants it open he wins. In the winter the din is the opposite, and if just 1 out of 100 people wants the window closed, he wins.
R’ Yisrael Salanter zt”l cites proof from a Mishnah in Pe’ah (4:1). The Mishnah says: “Pe’ah should be given whilst the produce is still connected the ground”. The Mishnah continues: “Even if 99 people tell the ba’al habayis [owner] to give it out, and 1 person says to leave it connected and let everyone take according to what they get, we listen to the individual”, we see that we go after the individual since he is saying the correct halachah. The Rambam (Hilchos Matnas Aniyim 2:15) rules accordingly. In Derech Emunah (s.k. 131) R’ Chaim Kanievsky zt”l quotes the Rash who brings the Toras Kohanim who says that even if the individual who wants to keep the pe’ah connected is stronger and bigger than everyone else and he is able to grab more than everyone else, we still listen to him, since what he said is the correct halachah. (I.e. Even though it is clear that his motive by telling the farmer to keep it connected is so that he can grab more and receive more than everyone else, since the ikar halachah is to keep it connected, we listen to him.)
If they wouldn’t be paying members, then it’s true that they may have no right to do this. Afterall, if you don’t pay anything towards a shul, why should you have any right to make decisions as to what goes on.
The Opinion of R’ Chaim Kanievsky zt”l That We Follow the Majority
However, R’ Chaim Kanievsky zt”l (Sha’arei Emunah on Pe’ah, pg. 234) asks on the ruling of R’ Yisrael Salanter and he says that we can’t bring any proof from pe’ah, as pe’ah is a din de’O’raisa learnt out from pasukim, therefore, even one person has a right to protest and to keep things according to the main halachah. In our case of opening/closing the windows, however, there is no din dictating what to do (there is no Maseches Opening and Closing Windows), it is just that generally in the summer it is hot and in the winter it is cold, however, if there is a reason that some people want to close the windows in the summer, or open the windows in the winter, then it is logical that we follow the majority, like most areas in halachah where we follow the majority. (In short: R’ Chaim holds that we follow the majority of people in this specific shul/kollel, and not the majority of what most people in the world would do in this situation.)
Question from Hilchos Chazon
The Shulchan Aruch (Hilchos Tefillah 53:18) regarding the halachos of appointing a chazon writes that even an individual can protest and say that he doesn’t want so and so to be the chazon, and the Mishnah Berurah (s.k. 53) adds that one can protest when it comes to other positions as well, such as the appointment of a certain talmud chocham to be a marbitz Torah. This halachah seems to imply that we do follow an individual opinion?
Practically, the Mishnah Berurah writes that this din of the Shulchan Aruch was only in earlier generations, however, nowadays, where many people get into machlokes without any rhyme or reason, and there intent is not for the sake of Heaven (l’shem Shomayim), if every individual would have a say who should be appointed, we would never be able to appoint anyone, therefore, we follow the majority opinion of those that pay tax. So practically, even regarding the halachos of appointing a chazon, we don’t follow the opinion of an individual.
See further the Shu”t Maharsham (Vol. 4, siman 143) who discusses if the minority of a tzibbur [community] can force the majority to accept the son of the previous rav to be the new rav, since on a Torah level he inherits his father’s position. The Maharsham cites proof from the Mishnah in Pe’ah which says that even if 99 say to cut the pe’ah, and 1 person says to leave it attached, we follow the 1 person who said to leave it attached, that in the case of the new rav, if the son is a suitable replacement we force the majority to listen to the minority, since the minority is acting correctly.
Conclusion
It is clear from R’ Chaim Kanievsky zt”l that only when there is a clear and established halachah, can we say that we listen to the individual opinion even if the majority is against him, however, in an area where there is no fixed halachah (such as the case of the window fight), then we follow the majority opinion. This is also clear from the Pischei Choshen.
From the words of the Chazon Ish it seems clear, that we go after what is considered normal in this situation, and we don’t necessarily go after what the majority in this particular situation hold (i.e. we follow the majority of the world at large.)
It is also accepted in the name of the Chofetz Chaim zt”l, that in the summer we listen to those who want the window open, and in the winter we listen to those who want it closed. As we saw, this is the ruling of R’ Yisrael Salanter as well.
Nonetheless, if the individual who is protesting against opening the window argues that doing so will make him ill, and the majority against him who want it open just want it open as it is more geshmak, then R’ Yisrael Salanter ruled that certainly they should listen to the individual and close it in order to save him from getting ill.
Remember many window / air-con fights can be resolved my putting on / taking off a sweater, or by simply moving seats, when this is not possible, then we must come on to what we spoke about above.
(Based on a Teshuvah written by R’ Yom Tov Sanger shlita)
