The Ethics of Second-Hand Smoke

I'll be delivering a shiur on "The Ethics of Second-Hand Smoke" on Sunday evening. Gd-willing, I'll post the audio and video links when they become available, but here is the source sheet.

[Update: The audio is now available here. It wasn't as strong as I would have liked - I'll blame it on fatigue - but I think it's coherent.]

[A question: I've often wondered whether posting source sheets would interest people. I'm doing it for this topic because it's of interest to many, and because the shiur itself should be available on-line soon after I deliver it. Would on-line source sheets interest you in the future?]

Seven questions
I am not the only smoker!
It’s a public space
It’s not constant
It was always accepted
They are hyper-sensitive
Financial liability
How far must I go?

Avoid Harming Others
1. Talmud, Bava Batra 22b
Mishnah: We distance a ladder four cubits from a dovecote, to avoid allowing a predator to leap. We distance a wall four cubits from a drainpipe, to permit [the owner] to place a ladder upright.
Gemara: Shall we say that our mishnah disagrees with R’ Yosi, who said, ‘This one may dig within his space and this one may plant within his space?’
Even R’ Yosi will agree; Rav Ashi reported that when he was in Rav Kahana’s yeshiva he heard Rav Kahana declare that R’ Yosi agreed regarding one’s own arrows. Here, too, at the same moment that he places the ladder, the predator may be sitting in a hole and it may leap.
But is this not indirect causation? R’ Tuvi bar Matnah explained: This teaches that indirect causation of harm is prohibited.
Rav Yosef had date-trees, and blood-letters would come sit beneath them, and ravens would come to eat the blood. The ravens would sit in the trees and ruin the dates. Rav Yosef told the blood-letters: Remove the kor-kor from here!
Abbaye protested: This is indirect causation! Rav Yosef told him: R’ Tuvi bar Matnah said, “This teaches that indirect causation of harm is prohibited.”
But did the blood-letters not have a chazakah? Yes, but Rav Nachman cited Rabbah bar Avuha to say that there is no chazakah for harm.
But did we not learn that Rav Mari says this is specifically for smoke, and Rav Zvid says this is specifically for a latrine? Rav Yosef replied: I am of a delicate mind; for me, these are like smoke and a latrine.

2. Rambam, Mishneh Torah, Hilchot Sh’cheinim 11:5
If a person has established a practice of working with blood, corpses or similar items in a certain place, and ravens and similar creatures come for the blood and eat and disturb neighbors with their voices and chirping and with the blood in their feet as they perch in trees and dirty the fruit, then if the neighbor is a demanding person, or is ill such that the chirping harms him, or is someone whose fruit is damaged by the blood, then the vandal must cease to perform that work or must distance himself to the point that he will no longer cause harm. Harm like this is like the scent of a latrine, and similar practices for which there is no chazakah.
Similarly, if a member of a side-street or a yard becomes a blood-letter and others do not protest, such that he develops a chazakah, and people enter and depart to make purchases and they are silent, he does not have a true chazakah with this and they may always object and say that they cannot sleep from the sound of the traffic. This is an on-going harm, like smoke and dust, and the Gaonim ruled thus as well.

3. Lechem Mishneh, Mishneh Torah, Hilchot Sh’cheinim 11:5
How did he derive the idea that they cause harm with their voices and chirping? If it’s because Rav Yosef mentioned the kor-kor, which sounds like the cry of a voice, that was still insufficient; it was his delicacy of mind from the dirtying of the fruit!
Perhaps “delicacy of mind” includes someone who is ill, and harmed by the chirping, and since one could explain Rav Yosef in two ways – chirping or dirtying – therefore he wrote his explanation, as he does in some places, because both appear to him to be true as far as the law.

But isn’t it a group effort?
4. Rambam, Mishneh Torah, Hilchot Chovel uMazik 1:13
If two people harm a third as one, both are liable and they divide up the payments between them.

It is not constant
5. Shulchan Aruch Choshen Mishpat 155:37
Mechaber: When we mention smoke, that is specifically constant smoke, like bakers’ and craftsmen’s ovens. An individual’s oven for baking bread, or a stove, where the smoke does not remain for the bulk of the day – that is not constant. If one were to see it and be silent, he would then forgive it, and he could no longer protest.
Rama: Some say that one may not even complain initially for smoke that is not constant.

6. Siftei Kohen to Choshen Mishpat 155:19
The Mechaber appears to me to be correct, for the Rama wrote in Darkei Moshe, “Terumat haDeshen (Piskim uKtavim 137) rules thus from the Mordechai and Hagahot Maymoniyot and Hagahot Ashri, and it appears that so we should rule, for Terumat haDeshen was later and is a sage upon whom one may depend. This is against the Beit Yosef’s position that one could reject their view before that of Rav Moshe haKohen, who was a well-known authority.”
Had he examined the rulings of Terumat haDeshen himself, he would not have written this; this ruling was not even clear to Terumat haDeshen himself. Regarding this lesson he drew from the Mordechai and Hagahot Maymoniyot and Hagahot Ashri, he concluded, “Still, I would not call you mistaken in your ruling, since you found explicit corroboration in the rulings of Gaonim, and you already know that I do not normally analyze closely when we find explicit rulings of the Gaonim.” It appears that this is why the Beit Yosef ruled with Rav Moshe haKohen.
Also…

No one ever protested before
7. Tosafot, Bava Batra 23a בקוטרא
It appears to the R”I that this lack of a chazakah is specifically the smoke of a kiln, which is great and which causes great harm, as seen in Bava Kama 82b, “One may not establish kilns in Yerushalayim. Why? Because of the smoke.” Also, it was specific to their latrines, which were above ground and smelled more; ours are covered, and so a chazakah would be possible.

8. Rambam, Mishneh Torah, Hilchot Sh’cheinim 11:6-7
6: If a person develops a chazakah engaging in a type of harm for which a chazakah is possible, such as opening a window or diverting a stream or failing to distance himself properly from others, and he claims, “You told me to do this,” or, “You forgave it to me after you saw this or after the harm was noticeable, and you were silent and did not protest,” and the victim says, “Now I see it, and I didn’t know before,” or “When I saw it I did protest, and you said you would distance yourself or halt, and you pushed me off from day to the next so that you could establish your chazakah,” in all such cases the burden of proof is with the victim. In the absence of proof, the vandal should swear an oath of contradiction, and be exempt.
7: If a person develops a chazakah engaging in a type of harm for which a chazakah is not possible, such as smoke or a latrine or similar items, and the vandal claims that he contracted with the victim to permit it, the burden of proof is with the vandal to demonstrate that there had been an agreement. In the absence of proof, the victim should swear an oath of contradiction that there had been no contract, and the vandal will remove his harm.

Changing policies in mid-stream
9. Responsa of Rashba 3:162
I am inclined toward the view of Rabbeinu Yaakov, that all of these types of harm are harms to the body, and one may say, “I thought I could bear it, but I cannot bear it.” So appears to me from the mishnah about a store in a yard, and from Rav Yosef’s case… However, most of the sages of Israel, and my masters, did not agree… and therefore, in practice I say that one who has already opened his window or brought his smoke or latrine nearby would not be obligated to stop them up or remove them.

10. Netivot haMishpat Chiddushim Choshen Mishpat 156:7
“They are ill” – It appears that if one was healthy and then became ill, chazakah would not be effective. Being ill makes the harm like smoke or a latrine.

Abnormal sensitivities
11. Talmud, Pesachim 113b
We have learned, “Three people’s lives are not life: Merciful people, angry people and people of delicate minds.”
Rav Yosef said: All of these apply to me.

12. Shulchan Aruch Choshen Mishpat 155:41
If it is known that a plaintiff cannot bear something, then there is no applicable chazakah even if others could bear it.

Financial Liability
13. Ketzot haChoshen Choshen Mishpat 1:7
Regarding actual monetary liability, even though we do not adjudicate a case today because it is rare or because there is no loss of money involved, still, one must pay in order to satisfy Heaven. One who does not pay is a thief. But regarding fines, satisfying Heaven is irrelevant, for fines depend on the court finding a person guilty…

14. How far must a smoker go?
Shulchan Aruch Choshen Mishpat 155:20
Rama: Regarding all harmful agents where the required distance has not been clarified, one must distance to the point that experts say no harm will be caused.


A few websites with key sources on halachot of smoking
References in my HaMakor
The RCA's Paper on Smoking
The Jewish Observer