Tuesday, February 21, 2006

Part 2: According to the Mishnah Berurah, May a Baal Nefesh Carry in an Eruv of Tzuras HaPesachim?

As stated in part 1 the Mishnah Berurah maintains that a Baal Nefesh should adopt the stringent position and not rely on the fact that the street does not have shishim ribo traversing it. I noted there that the Mishnah Berurah would allow a Baal Nefesh to utilize an eruv of tzuras hapesachim if the streets were not mefulash. What follows is an additional situation where the Mishnah Berurah would agree that a Baal Nefesh may utilize an eruv of tzuras hapesachim.

The Mishnah Berurah (Bi’ur Halachah, 345:23), quoting the Elya Rabah, states that even in conjunction with a tzad l’heter, a Baal Nefesh may be lenient and rely on the fact that the street does not have shishim ribo traversing it. When considering the basis for leniency there are two levels: a fundamental factor in the laws of reshus harabbim such as mefulash or mechitzos and a tzad l’heter such as using questionable mechitzos. Since the Mishnah Berurah would allow a Baal Nefesh to be lenient even when just employing a tzad l’heter, in conjunction with the fact that the street does not have shishim ribo traversing it, how much more so if we were relying on fundamental mitigating factors like the streets not being mefulash and the area being bounded by mechitzos. There is no doubt in such circumstances the the Mishnah Berurah ― and all the other poskim as well ― would agree that a Baal Nefesh could be lenient and utilize an eruv of tzuras hapesachim, since we have not met all the requirements of a reshus harabbim.