REGARDING:
RENTING OUT ONE'S HOUSE TO SOMEONE WHO WILL MAKE NOISE THERE
QUESTION: The Gemara states that one of the homeowners in a jointly-owned courtyard may not rent his house to a Mohel, a blood-letter, a wool-comber, or to a non-Jewish elementary school teacher, because all of these occupations will cause a significant increase in the noise level in the courtyard.
Why does the Gemara prohibit only renting out one's house for those purposes? It should also prohibit one from selling his house to anyone involved in those occupations! (RASHASH)
ANSWERS:
(a) The RASHASH answers that it is obvious that selling a house to someone who will create a significant disturbance in the courtyard is prohibited. The Gemara is teaching that even renting a house for such a purpose is prohibited, even though a rental might be only for a short time. The Gemara is teaching that even a temporary disturbance is also prohibited.
(b) The Rashash answers further that the MORDECHAI rules that it is permitted to sell a house for these purposes. The reason is because the neighbors always have the option to protest when the new owner begins to make noise in the courtyard, and they will be able to take him to Beis Din and force him to stop causing the disturbance. (According to this answer, if the buyer is not Jewish and will not agree to go to Beis Din, then it could be that the owner indeed is not allowed to sell his house to him.)
Why, though, do we not say the same thing with regard to a rental? The owner should be permitted to rent out his house to anyone he wants, and if the renter creates a disturbance, the neighbors should just bring the renter to Beis Din!
The S'MA (CM 156:8) answers that when a person buys property, he does not always intent to use it immediately for a noisy purpose. The purchaser might decide to leave it as a residential domicile for his family. Therefore, the noisy usage and the disturbance caused is not a certainty; it is not "Bari Hezeika." Hence, the owner cannot be prevented from selling it. If the buyer later decides to use the house for a noisy purpose, the neighbors can then summon him to Beis Din. In contrast, when one rents property, one usually uses it immediately for the purpose for which he rented it. Therefore, it is "Bari Hezeika," and therefore the owner is not allowed to rent out his house to someone who wants to use it for a noisy purpose. (Y. Marcus)
QUESTIONS:
1) What is the geder of a bari hezeika claim? What exactly establishes bari?
2) What principle would allow us to disallow sale to a non-Jew? Clearly not bari.
Jeff Gruen, Passaic, New Jersey
1) In this case, Bari is that the person will certainly use it for a noisy purpose. For example, I would venture that if the apartment had serious construction done to it to fit a noisy non-residential purpose, it would seem that if the person buying has been established to want it for such a reason he could be considered Bari Hezeika. Otherwise, it is indeed difficult to say that the person can be called Bari Hezeika according to the Sma, as the person might use it for a residential purpose. [According to the Aruch Hashulchan 156:1, it would seem that even in this case the sale could not be prohibited.]
2) The same principle of "Menias Hezek" -- "removing damage" that forbids from renting also forbids from selling to a Nochri (in a case where his intent is to be noisy). The only reason selling is normally protected is because the buyer can be taken to Beis Din, or that the onus has not been placed on the seller to ensure a good buyer (Aruch Hashulchan ibid.). These reasons don't apply when selling to a Nochri (won't go to Beis Din and the onus is on the seller to ensure that if the buyer is a Nochri, it is a non-damaging Nochri).
All the best,
Yaakov Montrose