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 Shabbat Parashat Tetzaveh| 5764P’ninat MishpatDistancing Damages - Part VIII - Noise and Commotion
Not only can one complain about monetary damages and lack of privacy, as we have seen, but he can sometimes complain about the noise and commotion which his neighbor brings into their residential area. The source is a mishna in Bava Batra (20b) that neighbors can prevent the opening of a store in their residential area with the claim that they cannot sleep because of the noise of those who come and go.
There are a few distinctions made in the gemara and poskim, which are particularly pertinent. The gemara (ibid. 21a) says that if the noise comes from schoolchildren learning Torah, then one cannot protest. This is because the mitzva of providing Torah education overrides the more mundane concerns of the neighbors. The Shulchan Aruch (Choshen Mishpat 156:3) extends this leniency (from the noise-maker’s perspective) to anyone who generates the noise through a mitzva activity. This should apply to a shul or a beit midrash. The poskim then discuss what the halacha would be in regard to “secular” pursuits, which are viewed by halacha as mitzvot. This includes a doctor’s practice (see Nedarim 41b, where we see that healing is a mitzva to the extent that one cannot demand payment freely). Some distinguish between mitzvot that have a public element and those which are private in nature (see Pitchei Choshen,V, 15:(74)). The question also arises whether just making a living, specifically when one does not have proper alternatives as to where to open a business or practice, is not enough a mitzva to receive special consideration (Pitchei Teshuva CM 156:1, in the name of the Chatam Sofer).
The mishna cites inability to sleep as the rationale for the neighbors protest. What if the noisy activity is only during hours when people are not sleeping? Part of the discussion in the poskim revolves around a historical question: in Talmudic times, were stores usually open at night? The standard approach is that sleep is but the classic complaint, but any type of disturbing commotion can be a legitimate complaint. In fact, extreme commotion in close quarters, even not during sleep time, could be cause for complaint, even against mitzva activity (see Pitchei Teshuva ibid.:2).
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