| Rabbi Moshe Rosenstein
Rabbi Moshe Rosenstein
Parshas Mishpatim is perhaps the best known parsha in the world. In this week’s parsha, the foundations of what is known as “common law” – recognized ordinances that delineate the interaction between people when it comes to their property and rights – are found for the first time in an organized fashion. All the great legal systems of the Western world to some degree or another mimic the wisdom of the Torah in its handling of monetary and damage related law. Far more than mere common sense, the halachos of monetary law outlined in the Torah, the Gemora and Shulchan Aruch are a reflection of Divine Wisdom. Abiding by the laws is not just a means to the formation of a just legal system and, in turn, a just society. It is, in addition, the fulfillment of the ratzon Hashem, the Will of G-d, in His world. The wisdom and binding nature of these laws knows no boundaries, either temporal or geographical. Whenever a “new” situation arises between two people in which money, property or damages are involved, it is incumbent upon those involved to seek the Torah’s Divine opinion on the matter. While snow blanketing the streets in Chicago and the parking spot turf wars that ensue were probably far from the minds of Moshe Rabbeinu and Chazal when they explained and codified our monetary legal system, it is our responsibility nonetheless to see if we can find rules and precedents from the preexisting laws we do have in order to apply them to this very practical and at times frustrating situation.
W hat is the Issue?
We are all familiar with what goes on following a heavy snowstorm. Residents, sometimes working for long periods of time and exerting much effort, dig out their cars from city streets. After the last clump of snow has been shoveled and the windshield and rear window cleaned, one always makes the attempt to actually extricate his car from the spot. Often times, during this process, one realizes that there are slick icy spots or packed snow that causes his tires to spin and prevent him from pulling out the car. So, more work is invested, scraping the ground of the icy spots, sometimes even salting or sanding. Once the car is in fact removed, left behind is a very convenient, clean, ice-free parking spot. There is a common practice here in Chicago that once a person has successfully cleaned the spot and removed his car, he stakes his claim to that spot by placing some sort of junky yet hardy piece of furniture in “his” new spot in order to show that this spot is now “his.” Two halachic questions arise regarding this practice: Does one in fact have a right to stake a claim to a spot in this fashion? And, even if one does have a right to place the chair in his spot, does the chair in the spot have any halachic validity? Or, perhaps, the halacha does not recognize this practice and even if it is permissible for one to place a chair there as a deterrent, perhaps one does not need to in fact be deterred and it is permissible to remove the chair and park in the spot.
As in all areas of life, it is common for people to have visceral and, at times, strong feelings about issues. This practice is certainly no exception. But it is our duty, and in fact our privilege, to subjugate ourselves to the Torah and its dictates. In this week’s Parsha Encounters we will examine three possible approaches in halacha that could determine, based on Torah law, the validity of this practice.
Approach #1 – Dina d’Malchusa Dina
There is a generally accepted rule in halacha that laws set up by the governing body in which Jews are living become halachically binding. While there is much dispute regarding exactly where and how this halacha applies, the one opinion that seems to be unanimously agreed to is that any law that is set up that governs the streets or transportation system of the land is halachically binding. Likewise, this halachic concept, referred to as “dina d’malchuso dina,” also allows for the appropriation of money or property based on civil law, even if the end result is an allocation of funds not sanctioned by halacha. If, under many circumstances, one Jew is awarded money or property at the expense of another and in a way that the halacha would not recognize, if it is the result of a civil legal process, the transfer of property or rights is binding.
The practice of putting chairs in parking spots presents an interesting application of this halacha. There is certainly no law on the books that states that one has a right to claim a parking spot on a public street as his own. In fact, there probably exist ordinances that prohibit the placing of barriers on city-owned streets in order to protect a parking spot. However, when it comes to the practice of the chairs in the snow, the city has recently made quite clear that it is not going to enforce this ordinance and, on the contrary, the mayor has said that this is a long-standing Chicago tradition and, unless it gets “out of hand,” it will continue unhindered. It has been argued that the city’s practice of “turning a blind eye” to this custom can be considered a de facto “signing into unwritten law” that this is a city-sanctioned practice. Even though it is clear that the city would never ticket someone for removing someone else’s chair and taking a spot that was not “his,” the fact that it is well known that this is allowed to go on makes it as if it is anaccepted law. 1 Therefore, according to this approach, it would be completely permissible according to halacha to put out a chair to hold a spot. In addition, it would be halachically forbidden to remove a chair and usurp another person’s spot. One could disagree with this rationale, however, and posit that the halacha only recognizes established laws and not “law-sanctioned” established practices. In fact, on these grounds, there are poskim who question the halachic validity of such an approach. 2
Approach #2 – Establishing the Rules of a Partnership
Another possible approach to this matter is to suggest that all inhabitants of a city are, in fact shutfim, or partners, in the use of the city streets. Since any tax-paying member has the same rights and responsibilities as any other regarding the use of the streets, perhaps the entire populace can be viewed as a large partnership with joint use of the streets. Following this line of reasoning, just as in halacha we find that the rules and parameters of a partnership are determined to a large extent by what the prevailing common practice is in the land of the partnership, 3 one could assert that since this practice is widely done, it is as if the “rules” of partnership allow and provide for this practice to have real standing. 4 Some have suggested that this line of reasoning halachically permits one to put out a chair. In addition, since the “rules of the partnership” dictate that a specific person has exclusive rights to a spot that he cleared, it could actually be gezel d’Oraysa, Torah-prohibited theft, for one to take someone else’s spot. 5
Again, one could argue that the inhabitants of a city are not necessarily considered “shutfim,” and therefore are not subject to the same halachic parameters.
Approach #3 – Excessive Exertion
There is a totally different approach to this topic that may, perhaps, be relevant. There is a halacha in the Gemora 6 and Shulchan Aruch 7 that states that an ani, a poor person, who climbs an ownerless tree in order to shake down olives from the branches, has exclusive rights to those olives, even though he never made a formal acquisition to actually “own” them. The halacha states that if an ani is on the tree knocking down olives and another person comes along and takes them, it is gezel midivreihem, theft d’Rabanan. This is commonly referred to as the halacha of “ani haminakeif b’rosh hazayis.” This halacha seems somewhat peculiar at first. For there is another well known halacha, that of “ani hamihapeich bicharara” that would seem to contradict ani haminakeif. The Gemora 8 rules that if a person is making an attempt to acquire something and someone else steps in to take it before the first person succeeded in getting it, the interloper is a rasha. The Shulchan Aruch, however, rules that this is only the case if the type of item in question is available to all in other places as well. If, however, the item is a “metziya,” something that is out of the ordinary and not available elsewhere, this ruling does not apply and it is completely permissible to “snatch up” something that another person was investing time or effort into getting. 9 This would indeed seem to contradict the previously mentioned halacha of ani haminakeif. Why in one case is it permissible and in the other, theft?
Many Acharonim deal with this question. Several, among them the Chasam Sofer, 10 answer that the difference is in the amount of effort expended on acquiring the item. When it comes to ani hamihapeich, there is only nominal effort expended. Thus, Chazal did not feel the need to institute a special decree calling it theft to take what someone else was intent on getting. However, in the case of ani haminakeif, a considerable amount of energy and effort were expended in order to climb up and shake the tree. Therefore Chazal ruled that to profit off the effort of another person is gezel. While the exact amount of effort needed in order to qualify is not discussed explicitly, and indeed some Acharonim rule that the effort had to have been such that the ani was actually risking his life in the process, 11 it seems that whatever is deemed to be a significant effort in the eyes of Beis Din would qualify. 12
Based on this rule, it could certainly be argued that when one exerts significant effort in clearing a spot and making it available for easy parking, he has exclusive rights to the use of the spot he has made available. For another person to come and use this spot to the detriment of the one who cleared it could be gezel midivreihem. 13 In truth, this would prohibit taking someone else’s spot even if they did not put out a chair, unless he is not particular and does not mind if others use the spot he cleared.
One could argue with this line of reasoning based on two fundamental points – whether or not the effort expended in fact is sufficient to compare it to ani haminakeif, and, perhaps more significantly, if one could even apply the rule of ani haminakeif to public property. The case of ani haminakeif in the Gemora and halacha is clearly regarding items that are completely ownerless. Perhaps the fact that the streets are owned by the city or the public, renders exclusive use of them to be illegal and not similar to the case in the Gemora. 14 One could counter, however, that since the city actually does condone this practice (as in 1 above), the common practice and the city’s approval do give rights to an individual as if the street were in fact “ownerless.”
Irrespective of the various halachic approaches to this phenomenon, there are two very clear rulings that all poskim consulted on this issue concurred with: 15
1 – It is mutar to put out a chair. It is certainly permissible, and one’s halachic right, to put out a chair to protect his parking spot. The common practice that sanctions this is certainly enough to make it permissible for anyone to do.
2 – One may not remove another’s chair. It is certainly wrong (“not mentchlich”) to usurp another person’s spot, regardless of whether or not it is halachically prohibited to do so. In addition, it can create a great chilul Hashem for a Jew not to comply with this practice. 16 [Not to be overlooked, as mentioned above, according to some, it is indeed halachically prohibited as well.]
There still remain a few gray areas regarding these halachos. For instance, for how long may one keep a chair in his spot? What if no effort was exerted at all and one simply pulled his SUV out of a spot? Does that allow him to claim it as well? What if effort was expended, but only to dig out one’s car and not to actually “create” a parking spot? Does one have the right to claim the spot of another car that was dug out, left and is not going to return? What if the spot that was cleared out is in front of another person’s home? These are among the more difficult shailos that arise from this practice. As in all areas of halacha, if one has questions regarding what the proper course of action is, a shailoh should be posed to a Rav.
1 This is the opinion of a one of the foremost poskim in America today (in a faxed teshuva specifically addressing this topic). Permission was not requested from this poseik to print his name.
2 This is the opinion of Rav Shmuel Fuerst, shlit”a. As for Rav Fuerst’s final ruling on this matter, please see below.
3 Many poskim discuss this matter. For a ruling in Shulchan Aruch that is very similar to this scenario, see Choshen Mishpat 161, 1.
4 As above in approach #1, if it were not for the fact that the city sanctioned this practice, this would not necessarily be relevant. But since the mayor and city officials play the role of apitropus (overseer) of the property of the partnership and can accept or reject most practices, the fact that they accept this practice allows for it to have halachic meaning as well.
5 This was the opinion of an Av Beis Din in New Jersey. Please see note #1.
6 Gittin 59b
7 Choshen Mishpat 273:16 and 371:5
8 Kiddushin 59b
9 See Shulchan Aruch and Rema CH”M 237:1.
10 Teshuvos CH”M 79. See also Maharik 132.
11 Teshuvos Maharshal 36 and Chavos Yair 42.
12 See Chasam Sofer ibid.
13 This is the opinion of the poskim mentioned above in notes 1 and 5.
14 This is the opinion of Rav Shmuel Fuerst, shlit”a as well as a prominent Dayan in New York.
15 The following is the opinion of Rav Dovid Zucker shlit”a and Rav Shmuel Fuerst, in addition to all other poskim consulted.
16 At the strong urging and behest of Rav Fuerst we will add here another common issue regarding the streets. If, while doing carpool, one needs to wait for a child to come out to the car, it is forbidden to wait in the street in such a way that causes other cars to wait. If the delay to other cars is anything longer than that required to simply drop off or pick up a waiting child, one must either pull to the side of the road or, indeed, circle around the block so as to not keep other cars waiting. It is gezel harabim and a great chilul Hashem when other cars are held up for carpool cars and vans.