NAHUM RAKOVER
MODERN APPLICATIONS
OF JEWISH LAW
Resolution of
Contemporary Problems According to Jewish Sources
in Israeli Courts
VOLUME TWO
THE LIBRARY OF JEWISH LAW
The Library of Jewish Law
Ministry of Justice
The Jewish Legal Heritage Society
Foundation for the Advancement
of Jewish Law
©
No part of this book may be reproduced or utilized in any form or by
any means, electronic or mechanical, or by any information storage or
retrieval system, without permission in writing from the publisher.
The Jewish Legal Heritage Society
P.O.Box 7483 Jerusalem 91074
Printed in Israel 1992
CONTENTS
Volume One
Foreword of the President of Israel
v
Preface vii
Contents in Detail
xm
Part One
JEWISH LAW IN THE STATE OF ISRAEL
Part Two
GENERAL PRINCIPLES
Part Three
SOCIAL AND ADMINISTRATIVE REGULATION 137
Part Four
REGULATION OF THE COURTS 241
Part Five
EVIDENCE 339
Part Six
PENAL LAW 421
89
Volume Two
Part Seven
TORTS 511
Part Eight
OBLIGATIONS
Part Nine
PROPERTY –
Part Ten
COMMERCIAL LAW
Part Eleven
LABOUR LAW 813
Part Twelve
INTERPRETATION 845
587
PHYSICAL AND INTELLECTUAL 699
Indices
Subject Index 947
Source Index 969
Statute Index 1001
Case Index 1005
Judge Index 1017
V
767
CONTENTS IN DETAIL
VOLUME TWO
Part Seven
TORTS
Chapter One: GENERAL
I. Consenting to Injury to Person or Property 515
2. Silence of the Victim 518
3. Causal Connection 520
4. Indirect Causation 524
5. Divine Punishment for Indirect Damages 526
6. Interspousal Actions 526
7. Agency to Commit a Wrong 528
8. Contributory Negligence 529
9. Joint and Several Liability 531
10. Absolute Liability 531
I I. Self-Help 532
12. Loss of Earning Capacity 537
13. Trespassers 539
14. Liability for Injury Inflicted by One's Property 540
Chapter Two: TOR TS
A. Negligence
I.
2.
3.
4.
5.
6.
7.
"Thou Shalt Love Thy Neighbour as Thyself' 542
Foreseeability 544
Negligent Misrepresentation 544
Invitees and Trespassers 544
Failing to Set Up Barriers 558
Placing of Obstacles 560
Medical Liability 561
vii
CONTENTS IN DETAIL~- VOLUME TWO
B. Miscellaneous
1. Trespass by Means of Uprooting Fruit Trees
2. Defamation 563
3. Bearing a Defective Child 565
4. Physical Injury by Parents and Teachers 567
5. Emotional Injury 568
6. False Witness 569
7. Extraneous Expenses 575
8. Fraud 575
9. Theft 576
10. Extortion 576
11. Torts of Neighbours 576
12. Torts by Animals 576
562
Chapter Three: BURDEN OF PROOF
l. The Goring Ox 577
2. Torts to Neighbours
577
Chapter Four: REMEDIES
I.
2.
3.
4.
5.
6.
7.
8.
9.
Mitigation of Damage 578
Restitution for Executing Erroneous Judgment 579
Restoration of Gain Procured 579
Calculation of Damages 580
Equitable Damages 581
Removing Offending Trees 584
Repayment of Extraneous Expenses 584
Seizure to Prevent Damage 584
Payment for "Shame" 585
Part Eight
OBLIGATIONS
Chapter One: RE SOL VE TO ENTER INTO CONTRACT
I. Resolve as the Basis for Contractual Undertaking 593
2. Formal Requirements 596
3. Rescission 597
Vlll
CONTENTS IN DETAIL –
VOLUME TWO
4. Asmakhta 597
5. Ostensible Contract 599
6. Extent and Validity of Obligation 600
7. Error in Law as Ground for Rescission of Gift 603
Chapter Two: UNDECLARED INTENTION OF
PARTIES
l. Undeclared Intention and Mistake in English Law
2. Notice of Resignation as "Pressure" on Employer
604
607
Chapter Three: GOOD FAITH
I. Source of Duty and Its Extent 608
2. Competition on Sale of Goodwill 615
Chapter Four: FRAUD AND DECEIT
1. Obligation to Refrain from Fraud 617
Chapter Five: DURESS
1. Definition of Duress 619
2. Notice for the Purpose of Rescission on Grounds of
"Duress" 619
3. Duress by Injured Party 632
4. "Distress" 632
Chapter Six: FORBIDDEN CONTRACT
1.
2.
3.
4.
5.
Validity 633
Exemption Clause Regarding Physical Injury
Retraction 646
Sale of Spes successionis 646
Meaning of "Public Policy" 646
Chapter Seven: FRUSTRATION
l.
Vis major
649
ix
644
CONTENTS IN DETAIL~ VOLUME TWO
Chapter Eight: REMEDIES FOR BREACH
I. Penalty Clause 650
2. Sanctions Against One Who Does Not Keep His
Word 651
3. Equitable Damages 652
4. Specific Performance in Land 652
Chapter Nine: INTERPRETATION OF DOCUMENTS
A. Modes of Interpretation
I. Usage, Language and Place 654
2.
3.
4.
5.
6.
7.
8.
Custom 654
Express Intention 654
The Holder of a Document is at a Disadvantage 654
Primacy of Affirmative Interpretation 656
Later Term Operative 656
Scribal Errors 656
Normal Terms Implied 656
B. Implied Terms
I. Power to Vary Contractual Terms to Ensure
Justice 657
2. Gift in the Wake of a Promise of Marriage 661
Chapter Ten: SPECIAL CONTRACTS
I. Dowry 662
2. Independent Contractors 663
3. Brokers 665
4. Maintenance 666
5. Medical Fees 667
Chapter Eleven: SERVITUDES
I. Privity and Debt – Shibuda deRabbi Natan 669
Chapter Twelve: GUARANTE ES
1. Asmakhta – Imperfect Resolve 670
X
CONTENTS IN DETAIL –
VOLUME TWO
2. Guarantor-Contractor 671
3. Right of Guarantor to Argue Against Execution of
Obligation 673
Chapter Thirteen: AGENCY
I. Duty to Act for Benefit of Principal 674
2. Conflict of Interests 676
3. Appointment of Agent Not Appropriate to a Passive
Act 679
4. Power of Attorney Without Express Indication of
Agent 679
5. Worker Engaged to Find Lost Property 680
6. Good Faith 681
7. Donee of Power of Attorney Does not Acquire Rights
Which the Donor does not Possess 681
Chapter Fourteen: BAILEES
Definition of Bailee Compared to English Law 683
Classification 685
3. Negligence in Bailment 686
4. The Parameters of Normal Manner of Bailment 688
5. Expenses of the Bailee of Lost Property 688
I.
2.
Chapter Fifteen: EQUITY – THE VOLUNTEER
I. Payment of Debt Without Knowledge of Debtor
2. "One Enjoys a Benefit and the Other Suffers No
Loss" 690
3. Duty to Restore Entitlement 691
4. Indemnity of Volunteer 696
5. Invitation to Dine or Lodge 697
XI
690
CONTENTS IN DETAIL –
VOLUME TWO
Part Nine
PROPERTY –
PHYSICAL AND
INTELLECTUAL
Chapter One: MODES OF ACQUISITION
1. Agav 703
2. Possession Without Cause 703
3. Acquisition by Means of Processing 705
4. Odita – False Admission by Litigant as Alternative to
Acquisition 707
5. Inability to Vest What is Not Under One's Control 709
6. Things that are not in Existence 714
7. Gifts of a Minor 715
Chapter Two: HIRE
1.
2.
3.
4.
5.
Nature 717
Sub-hire and Conditional Hiring 721
Right of Partner in Jointly Hired Property 722
Frustration by Reason of National Disaster 724
Tenancy 725
Chapter Three: PROPRIETARY RIGHTS
I. Extent in Land 727
2.
3.
4.
5.
Benefit 728
Expropriation 729
Rights to Improvements 729
Tenant Protection and Jewish Law 733
Chapter Four: SERVITUDES
I. Distinction Between Servitudes of Person and
2.
3.
4.
5.
Property 734
Hypothecation of Chattels 734
Charge of Debtor's Property 736
Charged and Free Property 737
Collection of Debt from Medium Quality Property 738
xii
CONTENTS IN DETAIL~ VOLUME TWO
6. Pledge not Equal in Value to Debt 739
7. Right to Redeem Land Assigned to Creditor 740
Chapter Five: CONCEALMENT OF ASSETS
1. Ostensible Assignment of Property 743
Chapter Six: MARKET OVERT
1. Purchase of Stolen Property 749
Chapter Seven: COURT SALES
1. Protection of Purchaser in Good Faith 752
2. Rescission of Sale of Orphan Property on Error in
Evaluation 753
Chapter Eight: DECEIT
1. Duty to Inform of any Defect or Claim 754
2. Deceit and Overreaching 755
Chapter Nine: PATENTS
l. Protection 758
2. Payment in Excess of Treatment and Medicaments 758
Chapter Ten: LOST PROPERTY
l. Acquisition by Presence on One's Property 759
2. Costs of a Person Guarding Lost Property 766
3. Worker Engaged to Find Lost Property 766
4. Finding Stolen Property 766
xiii
CONTENTS IN DETAIL – VOLUME TWO
Part Ten
COMMERCIAL LAW
Chapter One: PARTNERSHIP
1.
2.
3.
4.
5.
6.
7.
8.
Equal Sharing Implied 771
Sharing of "Rights" in Jointly-Owned Land 773
Option to Buy or be Bought Out 774
Sharing on Dissolution of Partnership 776
Right of Partner in Hire 779
Outgoings 779
Right to Use Property of Absent Partner 779
Right of Partner to Reimbursement of Medical
Expenses 78 l
Chapter Two: DEEDS
I. Possession of Deed as Sufficient Evidence 782
2. Holder of Deed at Disadvantage 783
3. Witnesses to Deed Presumed to have Ascertained
Ability of Party to Bind Himself 784
4. Disqualification of Deed of Debt or of Sale Not
Written in Presence of Debtor or Purchaser 786
5. Deed Replaced by New Deed 787
6. Obligation under Deed Exigible from Charged
Property 788
7. Set-Off 788
Chapter Three: INTEREST
A. A ward of Interest
I. Award of Interest for Delay in Payment after
Demand 790
B. Agreement on Interest
I.
2.
3.
4.
Guarantee Against Fall in Value of Money 794
Collection Fees 806
Negotiation Fees 806
Interest Defined 807
xiv
CONTENTS IN DETAIL –
VOLUME TWO
Chapter Four: BANKRUPTCY
I. Payment of Debts Pro rara 809
2. Majority Determination 810
Chapter Five: TRADE PRACTICES
I. Interloping 812
Part Eleven
LABOUR LAW
Chapter One: MASTER AND SERVANT
RELATIONSHIP
1. Status of Worker-Employee or Contractor 817
2. Child Employed by Parent 818
Chapter Two: CUSTOM
1. Status of Custom
819
Chapter Three: DUTIES OF EMPLOYER
I.
2.
3.
4.
5.
6.
Safety of Employee 820
Services Beyond Duty 822
Unnecessary Work 823
Employee's Benefits 824
Delay in Paying Wages 825
Obligation to Allow Employee to Resign During
Course of Employment 827
7. Groundless Dismissal 827
Chapter Four: DUTIES OF EMPLOYEE
1. Sale of Place of Employment 829
2. Articles Found During Working Hours 830
xv
CONTENTS IN DETAIL~ VOLUME TWO
Chapter Five: COMPENSATION
A. Severance Pay
1. Obligation to Pay 831
2. Obligation vis-a-vis Employed Child 833
3. Redundancy Pay as a Right of Personal Nature 835
B. Compensation to Heirs of Employee
I. Death of Employee in the Course of Work 840
2. Insurance of Employee's Family After Death 841
Part Twelve
INTERPRETATION
Chapter One: RULES OF INTERPRETATION
I.
2.
3.
4.
5.
Literal Statutory Interpretation 851
Interpretation According to Ordinary Usage 853
Interpretation According to Custom 855
Narrow Interpretation of Legislative Restrictions 857
Interpretation of a Regulation According to the
Intention 859
6. Intention as Opposed to Express Language 860
7. Intentions to be Taken into Account 862
8. Adoption of Conventional Language for Documents in
Case of Contradiction 862
9. Resolution of Contradictions 862
IO. Interpretation Upholding the Document 863
11. Rectification of Scribal Errors 864
12. Interpretation According to the Context of the Passage
or from a Subsequent Passage 866
13. The Subject of a Special Statement Applies to the
General Proposition 867
14. The Negative Implying the Affirmative 867
15. Attribution of Correct Traditional Meaning 868
xvi
CONTENTS IN DETAIL – VOLUME TWO
Chapter Two: WORDS AND PHRASES
I. Dust 871
2. Appraisement 873
3. Religious Way of Life 874
4. "Other" 876
5. Violence 878
6. Supply 878
7. Credit 879
8. "Whether It Be … Or. .. " 879
9. Children or Sons 880
10. Building 881
11. Liable 882
12. Liable to Punishment 883
13. Pig's Meat 883
14. Dwelling 886
15. Rearing 887
16. Firm Resolve 887
l 7. Caused 888
18. Road 888
19. Religious Conscience 889
20. Authorization 890
21. Renunciation 891
22. "Transfer" 891
23. Distribution 892
24. Negligence 892
25. Vav Consecutive 892
26. Prostitute 894
27. "Abandon" 895
28. "Entertain" 896
29. Injury 896
30. "Applies" 897
31. Partition 900
32. Amnesty 901
33. "Non-Urban" 902
34. Suspicion 902
35. "Idiot" 903
36. Jew 904
37. "Intended" 904
38. "Dwelt" 905
39. "As One" 905
40. "Office" 906
xvii
CONTENTS IN DETAIL –
VOLUME TWO
41. "Includes" 908
42. Molestation 909
43. Possessed 910
44. Qualified Halakhic Authority 913
45. "Cooperative Settlement" 914
46. Measure 9 I5
47. "Money" 916
48. Delivery "Into His Hands" 917
49. Act of Prostitution 918
50. Distress 918
51. "Had Been Required" 919
52. Encumbered Property 919
53. Hebrew 920
54. Salaried Employee and Unemployment
Compensation 921
55. Oppression 921
56. "On Condition That" 921
57. "Redeemed" 923
58. "Turnover" 924
59. Dispersion and Distribution 924
60. Disqualified 924
6 I. "Dissolved" 924
62. Ignominy 927
63. Chose in Action 928
64. Pursued 929
65. Interest 930
66. Vehicle 930
67. Volition 931
68. Control, Domain, Public Domain 932
69. Authority 933
70. Oath 934
71. Marketing and Supply 935
72. Market 936
73. Indemnity 939
74. Resident 940
75. Good Faith 941
76. "Dependent Upon … " 941
xviii
Part Seven
TORTS
CONTENTS
Chapter One: GENERAL
Consenting to Injury to Person or Property
Silence of the Victim
Causal Connection
Indirect Causation
Divine Punishment for Indirect Damages
6. Interspousal Actions
7. Agency to Commit a Wrong
8. Contributory Negligence
9. Joint and Several Liability
IO. Absolute Liability
11. Self-Help
12. Loss of Earning Capacity
13. Trespassers
14. Liability for Injury Inflicted by One's Property
1.
2.
3.
4.
5.
515
518
520
524
526
526
528
529
531
531
532
537
539
540
Chapter Two: TORTS
A. Negligence
1.
2.
3.
4.
5.
6.
7.
"Thou Shalt Love Thy Neighbour as Thyse1r•
Foreseeability
Negligent Misrepresentation
Invitees and Trespassers
Failing to Set Up Barriers
Placing of Obstacles
Medical Liability
542
544
544
544
558
560
561
B. Miscellaneous
I. Trespass by Means of Uprooting Fruit Trees
2. Defamation
513
562
563
CONTENTS
3. Bearing a Defective Child
4. Physical Injury by Parents and Teachers
5. Emotional Injury
6. False Witness
7. Extraneous Expenses
8. Fraud
9. Theft
IO. Extortion
11. Torts of Neighbours
12. Torts by Animals
565
567
568
569
575
575
576
576
576
576
Chapter Three: BURDEN OF PROOF
1. The Goring Ox
2. Torts to Neighbours
577
577
Chapter Four: REMEDIES
I.
2.
3.
4.
5.
6.
Mitigation of Damage
Restitution for Executing Erroneous Judgment
Restoration of Gain Procured
Calculation of Damages
Equitable Damages
Removing Offending Trees
578
579
579
580
581
584
7. Repayment of Extraneous Expenses
584
8. Seizure to Prevent Damage
9. Payment for "Shame"
584
585
514
Chapter One
GENERAL
1. Consenting to Injury to Person or Property
C.A. 335/59
REHANI v. TZIDKI et al.
(1961) IS PD. 159, 164, 16l
In the course of throwing stones at one another, the appellant struck the respondent in
the eye and severely injured him. The lower court ordered the appellant to pay a sum
equal to forty percent of the estimated injury.
Cohn J.: It is noteworthy that Jewish law distinguishes between physical
injury, in regard to which the consent of the injured party is of no avail, and
injury to property where such consent is effective. In any event, the consent
here was not clear and explicit. Maimonides (M. T. Hovel uMazik 5:10)
writes:
There is another difference between physical injury and injury to property.
Where one says to another, "Blind me or cut off my hand and you will be
free of liability" the other is still liable, since it is common knowledge
that no person would wish this to be done to him. Where, however, one
says to another, "Tear my clothes or break my utensils· and you will
be exempt," the other is exempt.
Rosh disagrees and holds that where the injured person expressly waives
the damages, the tortfeasor is not liable. Rosh reads Maimonides' rule
as if the injured person said "Cut off my hand or put out my eye", to
which the tortfeasor replied, "Do you say this so I should be exempt?" and
the injured party answers "Yes"; that must be considered as having been
said in astonishment, i.e., "Would I say that to you?" In such circumstances
the tortfeasor is liable (cited in Tur, Hoshen Mishpat 421:18).
SIS
PART SEVEN: TORTS
In the circumstances proved before the learned judge, as aforesaid, it
seems to me that he reached the right decision in attributing sixty percent
to the respondent and forty percent to the appellant with respect to
responsibility for the injury suffered by the respondent. At all events,
nothing was produced to convince us that he was in any way mistaken.
Here also, it is of interest to note that under Jewish law "where two injure
one another, if one caused more injury to the other than the other caused
him, he has to pay the excess of the damages, but that is only when both
began together or where after one has already injured another, the latter
immediately commenced to do injury to the former; where, however, one
of them began, the second is exempt since he is permitted to fight back
and defend himself. But this is relative; where he could defend himself by
inflicting some slight injury, but went to an excess, he is liable" (Hoshen
Mishpat 421:13).
See:
ZJM ISRAEL NAVIGATION
co.
LTD.,,. MAZIAR,
Part 1, Jewish Law in the State of
Israel, p. 28.
See:
LAGIL TRAMPOLINES AND SPORTING EQUIPMENT ISRAEL
v.
NAHMIAS
et al, Part 8,
Obligations, p. 644.
C.A. 548/ 78
SHARON et al. v. LEVI
(1981)35(1) PD. 736,754,155, 757
The Di.strict Court refused an application by the appellant for a declaration that
the respondent was the father of her daughter. Equally, it dismissed her claim for
maintenance. The appeal also involved the question of whether the respondent could
be required to take a blood test for determining paternity.
Elon J.: The court's power to direct various medical tests also arises in
the judgments of the Rabbinical courts. It is difficult to trace any special
treatment of the problem in the halakhic sources, apart from a number
of quasi-halakhic discussions (see, for example, the fairly unsophisticated
blood test ordered by R. Sa 'adiah ben Y osef… for determining paternity and
rights of inheritance, cited in Sefer haHassidim by R. Yehudah haHassid,
twelfth century Germany).
The question sometimes arises when the rabbinical court addresses the
516
GENERAL
problem of capacity to have children, and medical opinion is that the
husband should undergo examination. The various grounds given for or
against ordering medical tests do not rest generally on the invasion of
privacy but on whether certain halakhic prohibitions can be observed when
carrying out the tests. The accepted approach in the rabbinical courts is to
order an investigation when no obvious risk to health is thereby entailed.
Thus R. Eliezer Waldenberg, the President of the Jerusalem Rabbinical
Court, has held, after a detailed study (Resp. Tzitz Eliezer, Part 7, 48),
that "there is, it appears, no occasion for the husband to evade examination
ordered by the court, particularly when his refusal is to the detriment of
the woman." (See also R. Shlomo Yosef Zevin, Le'or haHalakhah (1964)
195; D. Frimer, "Determination of Paternity by Blood Tests in Israeli and
Jewish Law" 5 Jewish Law Annual (1978) 219-39.)
In Jewish law, the power of the court to direct tests is based on the
inherent power of the court to order whatever it deems necessary for a
fair and just determination of the problem before it. This is the ancillary
jurisdiction of which Lord MacDermott speaks …
Very obviously a blood test will not be conducted against the wishes
of the person to be tested and the court cannot compel it in the absence
of clear and express statutory provision. The right not to be physically
affected is one of the basic human rights in Israel and forms one of the
rights of personal freedom (H.C. 355/79 Kat/an et al. v. Prison Service
et al. (1980) 34(3) P.D., 294. That case involved the forced administration
of an enema to prisoners in order to recover the drugs they had swallowed.
Such physical invasion is indeed more grievous than that of a blood test,
since it is accompanied by an act which debases human respect, but a blood
test too, though it does not entail any shameful act, is still an invasion of
a person's body and of his freedom. It is a fundamental human right
that this not be done by compulsion and without consent. Thus it has been
held that a person suspected of an offence is not to be given a blood test
except of his own free will ( Cr.A. 184/62 Peretz v. Attorney-General (1963)
17 P.D. 2014). So also my learned friend decided on the application on
motion, that the appellant is not to be compelled to undergo examination.
As expressed in Jewish law, this basic right is instructive. "If one smites
his neighbour inflicting less than the value of a perutah in damage", (i.e.
causing him no damage – a "perutah" was the smallest denomination of
currency) he is liable to flogging (Sanhedrin 85a; M. T Hovel uMazik 5:3).
Even when the person so struck has consented, no legal force attaches
to his consent (Baba Kamma 92a; Hoshen Mishpat 420:1 et seq.) Why
may one then let the blood of another even if that is medically necessary?
According to the Amara R. Matna (Sanhedrin 84b), it is not because
the sick person has consented, implicitly or expressly- such consent has
517
PART SEVEN: TORTS
no effect – but because of the verse, "Thou shalt love thy neighbour as
thyselr' (Lev. 19:18). "A Jew was only warned against doing something
to others that he would not desire to be done to himself" (Rashi
Sanhedrin 84b). Nahmanides also wrote in his Torat haAdam (ed. Chavel
(1964), vol. 2, 42) in the same vein. See also M. Elon, ''Halakhah and
Modern Medicine" 4 Mo/ad (1971) 228, 232 …
It is in fact a basic right of one against whom paternity is claimed that
no tissue test be made-although it is a standard blood test like all other
blood tests of this type and presents no danger to his health – without
his consent…. There is, however, the fundamental right of every person to
know who his father is, so as not to be one who knows his mother but
not his father (M. Kiddushin 4:2), and whose mother silences him whenever
he asks about his father (Kiddushin 70a). When these two basic rights
confront each other, we think-as long as the Knesset has not said otherwise
-that the right of the presumptive father takes precedence over the right of
the minor and he will not be compelled or ordered to undergo examination.
But that does not mean that we will not draw the logical conclusion from
his "suppressing" the decisive evidence at his disposal-and his disposal
alone -to demonstrate whether or not he is the father. The conclusion
to be drawn from his refusal to be examined is necessitated by reason
and reality and is common to most legal systems. As a court, which
is the "parent" of minors, we are required to do so in order to preserve
that minor's basic right to know who is the father that bore him and who
is the parent-in addition to his mother-who will support him.
2. Silence of the Victim
H.C. 182/75
TADIR LTD. v. MAYOR OF PETAH TIKVAH
(1976) JO(I) P.D. 311,312,314
Kister J.: On 6 May 1975, this Court issued an order nisi against the
respondent requiring him to give reason why he should not grant the
petitioner a licence under the Licensing of Businesses Law, 1968, for
carrying on the business of preparing concrete in the industrial zone
of Kiryat Aryeh in Petah Tikvah, or alternatively, why he should not
518
GENERAL
within fifteen days inform the petitioner in writing what he requires it to
do in order to grant it the licence …
We are well aware that the renewal of a licence is involved and that a
local authority may be required to extend a licence which it was originally
not prepared to grant. But that is only when no damage or at least no
appreciable damage will ensue from operating the plant, but not so in
cases such as ours where the factory constitutes a nuisance or is injurious
to the health of people in the vicinity by reason of the dust created. I have
no need to dwell on other nuisances and mischief created by the petitioner's
undertaking. In the instance of such damage no right will be available to
the petitioner because of earlier licences. Already in Talmudic times it
was emphasised that in the case of a nuisance created by dust it will
be useless for the owner of a plant to argue that those living nearby
saw and kept silent and thereby waived the damage. This rule derives from
what is set out in Baba Batra 23a and is also so decided by Maimonides,
M. T. Shekhenim I I :4:
Where all the preventive measures mentioned above are not effected and
a neighbou