Letting Air Out of the Guy’s Tires

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deflated tireBy Rabbi Yair Hoffman for the Five Towns Jewish Times

You come home, it is late. Generally, in New York, when you come home late there is literally no parking within blocks of your home.

But Boruch Hashem, you are one of the lucky ones. You have a driveway. You turn onto your block and, and, what is this?? Someone is blocking your driveway.

The unmitigated Chutzpah of it all.

And then, the anger within you manifests in an intense and overwhelming desire to let air out of the offender’s tire. This will creat extraordinary difficulties for him, but the rationale behind it is that the driver would prefer air beikng let out of his tire to being towed. What is the halacha here?

THE DRIVER IS A THIEF

Before we get to the issue of the actual “deflating ”, it must be noted that parking illegally is technically considered trespassing, which is a form of actual theft.

How do we define trespassing? From the perspective of American law, trespassing is the act of illegally going onto somebody else’s property without permission, which could just be a civil law tort (allowing the owner to sue for damages), or it could be a criminal matter.

What exactly is the halachic violation? The violation is actually that of stealing. The Talmud (Bava Basra 88a) records a debate between Rabbi Yehudah and the Sages as to whether borrowing an item without permission renders a person a gazlan, a thief, or whether he simply has the status of a borrower.

Rabbi Yehudah maintains that he does not have the halachic status of a thief, while the Sages maintain that he does. The Rif and the Rambam both rule in accordance with the Sages-that he is considered a thief. Indeed, this is also the ruling of the Shulchan Aruch in four different places (C.M. 292:1, 308:7, 359:5, 363:5).

Is the “considered a thief” designation applicable in all cases? Generally speaking, borrowing an item has a value associated with it. In the case of trespassing, there may be no particular value per se in setting foot on the person’s property, or in parking improperly. While this may be the case, the Chazon Ish (B.K. 20:5) writes that the prohibition of sho’el shelo mida’as (one who borrows without permission) applies even when the item is not something that generally has a market value, and even if the value is less than that of a perutah.

How do we know that borrowing without permission also applies to being on someone’s land, or parking illegally? Maybe, it can be argued that in order to “borrow,” you have to physically take an object; here, you are just taking up space on someone’s land.

THE PROOF

The Rashbam in Bava Basra 57b discusses a case of a piece of property owned by two partners. The Rashbam writes that we are lenient and assume that one partner allows the other to place his animals on the land even without explicitly giving permission. In such a case, he would not be considered a sho’el shelo mida’as since they, in general, are partners, and would let the other do what he wants with their property. According to the Rashbam, therefore, when not dealing with two partners of a property, trespassing would be subsumed under the concept of sho’el shelo mida’as. Therefore, the one who parks in such a manner is guilty of theft.

So clearly, no one is arguing then that the person has a right to park in that manner. The question is, may we let air out of his tires, especially so close to Rosh Hashana?

BACK TO LETTING OUT AIR

The temptation to deflate an offending automobile is quite great, indeed, almost overwhelming.

Nonetheless, it seems that it is clearly forbidden.

[The reader should note, by the way, that neither this author, nor any of his family members ever deflated or were deflated. This article is strictly an exercise in halachic discovery.]
The Shulchan Aruch (CM 378:1) writes: It is forbidden to damage the property of his friend, and if he does so he must pay full damages. The Sma points out that the Shulchan Aruch mentions both a prohibition as well as a financial obligation to pay in order to highlight that both of these issues are pertinent – it is both a halachic prohibition as well as a financial issue.
The Gemorah (Bava Kamma 48a) discusses a case where a person brought his bull into the private property of another and the owner of that property damaged the bull – the owner is exempt from paying damages. Rav Pappa, however, qualifies it and says that it is only true when the owner damaged the bull without knowing about him. But if he damaged the bull knowing about it the owner of the bull may say, “Granted you have the right to throw me out, but you do not have the right to damage me.”
The statement of Rav Pappa is wholly applicable in our case. The deflating of a tire or tires in the time that it takes to refill it – is not insignificant. Let us keep in mind that the prohibition to damage another is equal, whether it is smashing his windows and slashing his tires or merely deflating his tires.

SIX POSSIBLE COUNTER ARGUMENTS

1. One might point to the Shulchan Aruch (CM 412:2) where it states, “If someone had filled and placed pitchers across the public thoroughfare in a manner that others cannot pass, even if another broke them with his hands that person is exempt from payment.” The problem is that in the Shulchan Aruch’s case, the breaking of the pitchers serves to allow access. Here, however, the deflating of the tires does not help anyone get through. So it is tantamount to just plain damaging or vandalizing.

2. One might also make the argument based upon the Gemorah in Bava Kamma (28a) that a messenger of a Beis Din is even permitted to damage if there is no other way to save an item (See Sma 8:25). But again, the deflator does not help the situation now and, secondly, the owner of a driveway is not a Beis Din.

3. What about the driveway owner acting in a capacity to enforce halacha? There is a debate between the Nesivus and the Ktzos HaChoshen (CM Chapter 3) in regard to whether individuals can take upon themselves to stop someone from doing something wrong. The Nesivus is of the opinion that individuals do have this “Citizen’s Arrest” type of power. The Ktzos HaChoshen, however, writes that this power is unique to Beis Din.

The halacha is in accordance with the Ktzos.

4. A fourth argument can be made that if it is illegal to block a driveway, then when one parks there he is tacitly agreeing to allow himself to be damaged. The assumption is that he certainly does not wish to be considered a thief, therefore, he is an agreement that he may be deflated. The counter to this argument is that he may respond, “I never agreed to submit to this damage. I had thought that what I was doing was not so nice, but not theft.” If so, we do not have any indication that the driver was amenable to be deflated and it would still constitute damaging him.

5. Perhaps there is another angle. There is a halachic tool called an Anan Sahadi which literally means “the entire world testifies.” The Anan Sahadi is not a tool of little consequence. In theory, one can argue that there may be a legal form of acquiescence here.

How so? One could perhaps make an argument that there is an Anan Sahadi that a person would rather be deflated than be towed, and, therefore, there should not be a prohibition in deflating their car. The counter to this is that, when dealing with a religious person he will perhaps be upset, but will not tow him. The Anan Sahadi, therefore, does not really exist.

6. There is one last attempt. If we look at the driver as not just someone who is damaging now, but someone who does so continuously, then perhaps we can utilize the principle of Rav Nachman (Bava Kamma 27b) entitled, “Avid Inesh Dina d’nafshai” that a person is allowed to take action outside of court in order to prevent himself from sustaining damage. However, it is clear that the parameters of “Avid Inesh Dina d’nafshai” that a person is allowed to take action outside of court is only in terms of taking back his own item but not in causing someone damage. The Sfas Emes (Brachos 5b) states this specifically.

MORE THAN HALACHA

Deflating a car’s tire may also be illegal in New York State.

When a person destroys or damages property illegally it is not called Vandalism – in New York State it is called “Criminal Mischief.” There are four levels of Criminal Mischief in New York State. They range from the lowest level, Criminal Mischief in the 4th degree, which is a misdemeanor to Criminal Mischief in the 1st Degree, a felony.

The lowest level covers any destruction of property for vandalism with a value up to two hundred and fifty dollars. It is a separate criminal charge if someone is caught with possession of graffiti tool. Is the deflating device a graffiti tool? Regardless, this is a misdemeanor and is punishable by up to one year in jail with the possibility of probation, community service and fines.

The next level of criminal mischief is Criminal Mischief in the 3rd degree, a felony. The violator faces a minimum of a year and a day in prison. This covers destruction of property of over two hundred and fifty dollars and up to fifteen hundred dollars.

Criminal Mischief in the second degree is damage to property over $1500.00 and is a Class D felony.

The final level of Criminal mischief is Criminal mischief in the 1st degree which is a Class B felony. This occurs when property is destroyed by use of explosive. Hopefully, driveway owners are not so angered that they would resort to this level of a deterrent.

LAST ISSUE

There is one final issue. Depending upon the intention of the deflator, he could very well be violating a Torah prohibition of seeking revenge (See Rambam Hilchos Deyos 7:7). What would be the halacha if he has two intentions – one of revenge and the other of trying to prevent further parking abuse? The Mishna Brurah 38:24 cites a Magen Avrohom about a person’s double intention when performing a Mitzvah, and states that it generally follows one’s main intent.

The reader should know, however, that there are some Rabbis who disagree with the position presented here and have adopted one of the six rationales expressed above. Each person should follow the ruling of his Rav in this matter, however, this author consulted with two major Poskim who agreed with the positions set forth above. One of them was unsure, however, about the counter to explanation #4 above.
So what should and could be done? A note should be left on the car explaining that it is wrong and that the license plate was noted, and next time a tow truck may be called. If the car is blocking access, towing would be permitted according to the Shulchan Aruch. (CM412:1). According to what was discussed above, however, deflating would not be permitted.

The author can be reached at yairhoffman2@gmail.com




24 COMMENTS

  1. it must be noted that parking illegally is technically considered trespassing, which is a form of actual theft. How do we define trespassing? From the perspective of American law, trespassing is the act of illegally going onto somebody else’s property without permission, which could just be a civil law tort (allowing the owner to sue for damages), or it could be a criminal matter. What exactly is the halachic violation? The violation is actually that of stealing.

    The basis of R. Hoffman’s analysis is off the mark from the get-go. Blocking a driveway is not trespassing. Unless that is the blocker actually parked in the driveway. In that case it would be trespassing since he is physically on the person’s private property. But in the far more common case where he parked on the public street blocking the driveway, the homeowner does not own the public street in front of his driveway. Thus the person who parked there (illegally) did not trespass on the property of the homeowner.

  2. I believe a point missed is that one can counter-argue that he is not actually damaging anything. The tires can be re-inflated with no financial loss and it is only an inconvenience. (I’m not discussing the stealing of his time). Would you say deflating the tires is the same as slashing the tires or keying the side of the car? I would say not. Deflating the tires may be more similar if anything to burying someone’s car in with snow. Are those 2 the same- causing waste of time and inconvenience, yes, but I would hardly call it “damage”. Obvious difference is that when deflating tires you are tampering and actually touching the vehicle which could be the issue (stealing). Please clarify.
    One last point: Deflating the tires may actually be a bad idea anyways since when the driver does arrive, practically speaking you made it even more difficult for him/her to move the vehicle from in front of the driveway and certainly prolonging it.

  3. To Bogen: While it is true the city owns the street, the owner of the driveway has a legal easement and right of way (assuming the driveway is legal) to access his driveway which the offending parker does not.

  4. apushatayid: That is true. But R. Hoffman based his analysis on the incorrect presumption that the vehicle owner trespassed (and therefore halachicly stole) from the homeowner.

    Parking on the public street, which is public property, in a manner violating someone’s easement is not the same as trespassing or stealing, neither from a halachic nor a secular law standpoint. They are two different issues.

  5. “…when dealing with a religious person he will perhaps be upset, but will not tow him. The Anan Sahadi, therefore, does not really exist.”

    But according to the following sentence at the end of the article this counter argument becomes void and therefore Anan Sahadi should be a good reason.

    “If the car is blocking access, towing would be permitted according to the Shulchan Aruch. (CM412:1).”

  6. is their any room for minhag hamakom to play a role here? for instance would halacha be different if one was double parked/blocking a driveway/ignoring traffic signs/triple parked/passing school bus with lights flashed in boro park vs. anywhere else on the planet?

  7. In New York City, a tow truck will not move such a car unless it is ticketed. I went through the process of calling a tow company, then calling the police station house, then calling 311 and (after each of the above said to, I called 911. The car was ticketed and towed within 30 minutes.

    Was it mesirah? (1) Well most drivers in the city do not fall under this protection and (2) the blocker has access to a fairly righteous court.

  8. Why do you assume that parking illegally is “tresspassing” or “borrowing without permission”? You aren’t on the guy’s property–you’re in a zone that the city says is illegal to park in that is near his property and blocks his access.

    Have you done any research on this? If you block a driveway can you be sued for “tresspassing”?

  9. Apashutayid: He has a legal easement over the street? Is that true? Have you researched that? Can he sue the city if the city blocks it?

    And is it tresspassing to block someone’s easement? Have you done research on that?

  10. In NYC its very simple .

    1) call the local precinct and they will send out a policeman to ticket the car.
    2) once the car has a ticket on it call a tow truck company to take the car (The NYC Department of Consumer Affairs (DCA) licenses private companies that tow cars that block private driveways, I believe they will only take a car with a ticket on it. The car owner will have to pay for the tow in order to get the tow truck company to release the car. You may have to make a few calls because not every tow truck company will come to take a car that is blocking a driveway )

    I promise that if you do this the guy will never block your driveway again. Now the question to Rabbi Hoffman is is this mutar?

    for more info see http://www.nyc.gov/html/dca/html/publications/publications_towing.shtml

  11. Perhaps R’ Hoffman could respond to the comments indicating that blocking a driveway is not considered trespassing, nor does letting the air out of tires seem to be called ” causing monetary damage.:

  12. i live in brooklyn and my neigbors realy do respect me however guest who come from BoroPark to my neigbor many off them think difrent than my neigbors and somtimes steal my time and peace of mind so usaly i try to avoid but my memory is sharp and when i expierence somone who would excersize his chuzpah then i use this tool takes 5 sec to empty his air and you fully garantied for next 24 months so i respect halacha and law ,but this honestly works for me very well u buy it for $3,5 and problem is resolved http://www.autozone.com/tire-repair-and-tire-wheel/tire-valve-stem-core-remover-tool/slime-valve-core-tool/343873_0_0/

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    – See more at: http://www.theyeshivaworld.com/news/headlines-breaking-stories/341845/letting-air-out-of-the-guys-tires.html#sthash.8JGV7oLU.dpuf

  13. I don’t know about rabbi Hoffman but I’m talking NYC. Perhaps he is talking Nassau county law. Poppa, yes, driveway owner has right of way which NYC will enforce if impeded.

    The best counter to a blocked driveway I have ever seen is where driveway owner double parked next to the blocking car. The driveway blocker had to knock on doors to find out if anyone knew the owner of the car that had the chutzpah to block him in. When the homeowner identified himself he excused blocking him in because he couldn’t get into his blocked driveway but rationalized it was only for a few minutes. The blocker wasn’t happy but really had nothing to say except sheepishly ask if he could get out.

  14. What about if someone double parks in front of you and doesn’t at the very least leave a cell# on their dashboard?

    I had that one Motzei Shabbos in Brooklyn.

    I waited and waited, honked and honked. Finally got disgusted and had to drive around by going up on the sidewalk down the block.

    I went back to the SUV and let out the air from two tires, cause one tire he’ll have a spare for, not two spares.

    Oh, I also left him a note so he knows I did it and shouldn’t think that the two “flats: were done by mischievous local teenagers but to give him a lesson in selfishness!

    Don’t know the Halacha, but it felt good and would most definitely do it again!

  15. Yes, I believe R’ Hoffman has founded his arguments incorrectly.

    Right of way through someone else’s field to get to your own, to reach your house, or right of way through a private khatser, these are dealt with in a lot of places in the Gemara. Epic fail.

    Sorry, I shudder to think that people might be mislead here. People presenting things as halakha, who are really essentially having fun twisting thumb in air, exercising their pipul capabilities.

    Now please. I would think, the halakhot as we learn them are written for a situation in which you have a halakhic Beit Din around the corner. Man up and tell us what to do in our times! In the meantime, let out enough air from each time for it to be obvious to a sober person, that the air has been let from their tires, so if they drive like that, its their choice. They can then call someone to come fill their tires. I say this all until someone serious can Pasken for us. And I mean posken, not have fun showing off, or thrusting thumb in air.

    I had someone park in my driveway, which was even access to a house behind mine. So I blocked the person and after screaming at them (fellow “religious” Jew), taking them to task for the casual les affair approach, treating others property as ones own, I demanded 20 shekels to move my vehicle.

    My neighbor arrived while this was going on, and told me don’t worry he will just park on the lower road. He missed the entire point, typical Israeli.

  16. The biggest chutzpa is when homeowners WITH their own (not shared) driveway, park their cars on the street on a daily/nightly basis, thereby hogging the few precious spots from those who rent or don’t have a driveway! They are most inconsiderate. It is THEIR tires that should be slashed.

  17. #16, didn’t it ever occur to you that the driveway owner is parked on the street because some inconsiderate jerk blocked his driveway and he couldn’t get in?
    My my, and you recommend slashing their tires for this? I suggest that you don’t look for parking and drive immediately to an anger management course.

  18. Letting the air out of someones tires? I can’t imagine that. Then again – blocking someone else’s driveway is pretty tactless too. My answer – move to Cleveland Heights – you can have your own driveway- and street parking – it’s quiet – people are nice – they will greet you and want to help you for nothing in return. You’ll pay $150,000.00 for a very nice house – and your life will be great.

  19. To rabbi if you are saying that he is a thief on the property so what is the case of zeh neheneh vzeh lo chosar assuming he is not renting the driveway and now he will loose on the rent possibly. There are so many other reasons that you may not park or block a driveway that is not yours. if it is stealing then if an emergency arises and the halocha is you may not steal to save a life a Hatzolah member would not be allowed to save a life by parking in someone’s driveway but since the city allowed blocking a driveway to save a life and by blocking a driveway the homeowner would not have the use of the spot for his car so maybe it is not called “chosar” also in Brooklyn a sheared driveways the owner himself may not by law park there! Surprisingly check the deed it is only for going into and out of garage. Please ck the facts so we don’t have people reading this as a psak halocha!

  20. #18 galicianer:

    I said on a daily/nightly basis.
    Wow, I see I hit a raw nerve with you. You must be one of those inconsiderate arrogant Sch—-s who couldn’t care less about your less fortunate neighbors and lehachas parks in the street because you want your driveway empty.

  21. “The question is, may we let air out of his tires, especially so close to Rosh Hashana?”
    Really?
    There’s a difference which part of the year you’re in whether to do aveiros or not?