Rabbi Yitzchok Etshalom
Talmud Torah 2:7
(intro to next Halakha: *Mavui* and *Hatzer*. In the times of
the Gemara, residences usually opened up into common courtyards -
a courtyard is a Hatzer. Several Hatzerot opened up into one
Mavui - sort of an alleyway. There are legal relationships,
liabilities and obligations between the residents of one Hatzer
towards each other, as there are between the many residents of
7. If a resident of the *mavui* wanted to teach - even a resident
of the *hatzer* - his neighbors cannot prevent him. Similarly, if
someone opens up a school next door to a teacher, in order to
attract other students or [even] to attract the first teacher's
students, [the first teacher] cannot prevent him, as it says:
*Hashem hafetz lma'an tzidqo, yagdil Torah v'ya'dir* - "God
desires His righteousness, to magnify Torah and glorify
it"(Yeshayahu [Isaiah] 42:21).
Q1: What claims might the residents of the *mavui* or *hatzer*
YE: There are, essentially, two separate but connected issues
here: *m'cha'at b'nei mavui* - "zoning"; and *yored l'umnato shel
havero* - business encroachment.
The first is clearly laid out in the Mishna in Bava Bathra (20b)
- basically, residents of a *mavui* have the right to prevent one
of their neighbors from opening up the type of business which
will bring a lot of people into the mavui - or which will create
an abundance of noise. (see MT, Hilkhot Shekhenim 6:8) If a
given profession which includes noisy work was already there,
they have foregone their right of protest regarding that
profession. On the other hand, they can, at any time, complain
because of the noise of customers entering the mavui. This
protest, which is also codified in Hilkhot Shekhenim 6:11-12,
does not apply to Torah teachers (i.e. the residents have no
right of protest that the sound of the children studying bothers
them and that they cannot sleep on its account). See answer to
Q2 below for the rationale.
See response to Q3 for discussion of the second issue, *yored
l'umnato shel havero* (business encroachment).
Q2: If these claims are normally valid claims (such as their
ability to prevent him from opening a certain kind of shop etc.),
why do they fail here? If they are not normally valid, what is R
teaching us here?
YE: As indicated, they are normally valid claims. The simplest
explanation for the exception of Torah studies is that since the
Rabbis (R. Yehoshua b. Gamla) mandated the establishment of
schools in every city, noone can protest its proximity. This may
add to our understanding of the legislative reach of this
ordinance - it doesn't just affect parents, children and public
funds, it also affects "zoning" issues. In Hilkhot Shekhenim
6:12, R seems to compare the "right" of anyone to set up school
in the mavui to the "right" of an artisan to stay put, even if
the neighbors complain about the noise of his hammering, since he
had been there for a while and they didn't protest. That
comparison is odd, unless we explain as follows: Just as you lose
your right to protest when the artisan has been working there for
a significant time, similarly you never had a right of protest
against the Torah-teaching, since that was mandated.
Q3: Why is the second teacher allowed to "set up shop" next to
the first teacher? Isn't this a violation of *hassagat g'vul*
(encroachement on another's business zone)?
JF: *Kol hamarbeh harai zeh mshubach* - "The more you learn the
better". This quote, originally from the Passover Hagadah may be
the answer to why a teacher can "open up shop" so to speak, right
next to another teacher.
YE: The actual Halakhic problem was misrepresented in the
question - the term used by the Rishonim is *yored l'umnato shel
havero* - encroaching on your fellow's business.
What is a bit strange about R's formulation is his source-text.
The Gemara (Bava Bathra 21b-22a) makes the following statement:
"R. Huna said: a resident of a mavui who sets up a mill (Rashi:
to mill and sell), and his neighbor comes and sets up a mill next
to his, by rights he can protest and prevent him from setting up,
saying 'you are hurting my livelihood'...R. Yosef said: R. Huna
agrees that in the case of a Torah teacher, he [the first
teacher] has no right of prevention, as was taught: *Kin'at
soferim tarbeh hokhmah* - (jealousy among teachers increases
R, instead of using this "competition is healthy" argument,
quotes the verse from Yeshaya 42. Perhaps his reasoning is as
If the only reason for permitting the new teacher to set up shop
were "healthy competition", that argument could be advanced for
any profession or business. Why do we only utilize it here?
Because, against the negative of business encroachment, there is
a Divine interest, if you will, in the teacher excelling. No
such interest exists (or at least, with such intensity) in any
other business. Therefore, we put aside the concern about
encroachment - which will, as in any other field, lead to
competition - because God Himself is, as it were, interested
that the practitioners of this field excel as much as possible.
Therefore, R quotes the verse which indicates God's interest in
the growth and glory of Torah. (There may even be a hint at the
beginning of the verse *l'maan tzidqo* - on behalf of His
righteousness - as if the normal terms of righteousness are
somewhat suspended or redefined here.)
Rambam, Copyright (c) 1999 Project