Wednesday, March 22, 2006

Part 2: Misconceptions in the Los Angeles Eruv Guidebook

The LA Eruv Guidebook:
Constructing an Eruv for a Reshus HaRabim
The Shulchan Aruch cites two opinions as to how to construct an Eruv, which contains a Reshus HaRabim.
a) We need “Delasos Neulos BaLayla” The city must [be walled and] have doors, that must be closed each night.
b) We need “Delasos Reuyos Lehinael” - we do not require that the doors actually be closed every night, but rather there are doors, which are fit to be closed.

This is a fundamental error made by many yeshivaleit. The Shulchan Aruch is referring to a mavoi (see O.C. siman 364:1) that is only enclosed by two mechitzos and not a city enclosed by three walls (see The Shulchan Aruch Explained). However, if the situation was a city encompassed by three mechitzos, there would be no requirement of delasos at all since the enclosed area is fundamentally a reshus hayachid (see Part 1: Delasos – Me’d’Oraysa or Me’d’rabbanan).

The LA Eruv Guidebook:
Based on the fact that the Shulchan Aruch seems to favor the opinions that a Reshus HaRabim does not need 600,000 and a Reshus HaRabim does require “Nightly closed doors”, the Mishna Berurah asks why in the European cities, which had streets 16 amos wide, [which according to many Rishonim suffices to create a Reshus HaRabim, even without 600,000 people] was there only an Eruv of “Tzuras HaPesach” (poles and string.) Based on the Shulchan Aruch, there should at least be doors which are fit to be closed, if not actually closed. The Mishna Berurah felt it difficult to rely on the opinion which requires 600,000 for a RH”R, because most Poskim do not require this.

It is misleading to declare that the Shulchan Aruch seems to favor the opinion that we do not require shishim ribo. The overwhelming majority of the Achronim maintain that the Shulchan Aruch requires shishim ribo as a fundament of a reshus harabbim (Rama, O.C. siman 346:3; Mharit Tzhalon, siman 251; Levush, siman 364; Bach, siman 345; Taz, siman 345:6; Magen Avraham, siman 345:7; Pri Megadim, Aishel Avraham, siman 364:2, and Bais Ephraim, O.C. 26). Therefore, the Mishna Berurah states (364:8) that the minhag is to rely on shishim ribo. However, he continues that since most Rishonim maintain that shishim ribo is not a criterion of a reshus harabbim a baal nefesh should not rely on it. However, we now know that the preponderance of Rishonim maintain that shishim ribo is a criterion of a reshus harabbim and there is no reason not to rely on this criterion (see The Overwhelming Majority of Rishonim Maintain that Shishim Ribo is a Criterion of a Reshus Harabbim).

It is important to note the words of the Mishna Berurah (Bi’ur Halachah 364) that the authors of the LA Eruv Guidebook are referring to "...קשה על מנהג העולם שמסתפקין בצוה"פ בר"ה שהוא רכב י"ז אמה ומפולש משער לשער..." The author of the LA Eruv Guidebook omitted the criterion of mefulash mentioned by the Mishna Berurah and this fundament is one of the criterion we rely on today to establish eruvin in all cities (see Part 1: According to the Mishnah Berurah, May a Baal Nefesh Carry in an Eruv of Tzuras HaPesachim?). More so the Mishna Berurah would agree that even with a tzad l’heter (in conjunction with shishim ribo) an eruv of tzuras hapesachim can be erected and a baal nefesh can rely on it (see Part 2: According to the Mishnah Berurah, May a Baal Nefesh Carry in an Eruv of Tzuras HaPesachim?).

The LA Eruv Guidebook:
Therefore, the Mishna Berurah justifies building an Eruv merely with a Tzuras HaPesach in the following manner:
The dispute brought in the Shulchan Aruch regarding “closed doors” is based [according to the Maggid Mishneh] on the dispute of R’ Yehuda and Chachomim, as well as R’ Yochanan and R’ Elazar as to whether “Ossei Rabim U’Mevatlei Mechitzta,” i.e. if a Mechitzah surrounds an area and there is traffic of the Rabim going through that Mechitzah, does that “break” (negate) the enclosure or not.

The first opinion cited by the Shulchan Aruch, based on the opinion of R’ Yochanan, [“Ossei Rabim U’Mevatlei Mechitzta”], requires the doors to be closed at night, so that at certain times traffic cannot traverse the walls. Otherwise, the traversing traffic would negate the “Mechitzah”.

The second opinion cited by the Shulchan Aruch, based on the opinion of R’ Elazar, [“Lo Ossei Rabim U’Mevatlei Mechitzta”], does not require closed doors since traversing traffic do not negate the walls.

The Mishna Berurah concludes that the historical Eruvin of Tzuras Hapesach were based on deciding the Halacha in accordance with the second opinion, that “Lo Ossei Rabim etc.”.

However, it would seem that we still require doors that are, at least, fit to be closed? The Mishna Berurah declares that according to the second opinion, the requirement of “doors fit to close” is not a Torah requirement, rather a Rabbinical requirement. Therefore, the Tzuras Hapesach fulfills the Torah requirement of Reshus HaYachid, thereby eliminating any possible Torah violation of carrying. Since the necessity of doors is only a Rabbinical requirement, one may then rely on the opinion that it is not, in fact, a Reshus HaRabim unless there are 600,000 in the city, thereby averting the Rabbinical requirement of doors.

Notwithstanding the Mishna Berurah’s distinction between the two opinions of the Shulchan Aruch, the overwhelming majority of Achronim who maintain lo asu rabbim u’mevatlei mechitzta (see The Overwhelming Majority of Achronim Maintain Lo Asu Rabbim U’Mevatlei Mechitzta) do not agree to this distinction. The majority of Achronim uphold that both opinions of the Shulchan Aruch maintain lo asu rabbim. Besides for those Achronim who maintain that we pasken lo asu rabbim and would therefore advocate that both opinions in the Shulchan Aruch agree that we pasken lo asu rabbim, these are some of the Achronim who say so explicitly: Rosh Yosef, Shabbos 6b; Even HaOzer, Eruvin 6a, 22a; Shulchan Aruch HaRav, siman 363:42, 364:4; Bais Ephraim, O.C. 26; Avnei Nezer, O.C. 268:4, 276:1, and Chazon Ish, siman 107:4.

Additionally, it is important to note that the majority of Achronim maintain that delasos is only a rabbinical requirement (see Part 1: Delasos – Me’d’Oraysa or Me’d’rabbanan).

The LA Eruv Guidebook:
There are two points in the Mishna Berurah which are novel:
a) A perusal of the Poskim throughout the generations seems to show that historically the Eruvin were predicated upon relying on the opinion that we require 600,000 people for a RH”R. The Mishna Berurah, after concluding that most Rishonim do not require a population of 600,000 to qualify as a Reshus HaRabim, finds it difficult to rely on that opinion and rather relies on the opinion of Rav Elazar.
b) The assumption that if one holds that “Lo Ossei Rabim etc.”, a Tzuras Hapesach Eruv suffices MiDeoraysa, is clearly a dispute among the Rishonim. From the Rambam it seems that a Tzuras Hapesach does not work MiDeoraysa, although he holds that “Lo Ossei Rabim etc.” [The Tzemach Tzedek proves that according to the Rambam a Tzuras Hapesach would not suffice MiDeoraysa from the wording of the Rambam, which states that a “Lechi” (pole), “Korah” (beam), or Tzuras Hapesach do not work in a Reshus HaRabim. Since a Lechi or a Korah clearly do not work MiDeoraysa (a Korah is merely a reminder, not an actual Halachic partition, and a Lechi clearly does not suffice as stated in the Gemorah Eruvin), the simple understanding of the Rambam would be that Tzuras HaPesach is in the same category, and does not work MiDeorasya.

The author is correct that the Mishna Berurah’s reluctance to rely on shishim ribo is a novel initiative but he fails to note that the Mishna Berurah only suggests that a baal nefesh should not depend on the criteria of shishim ribo (since he realized that the minhag is to rely on it).

The requirement of delasos (me’d’Oraysa or me’d’rabbanan) according to those Rishonim, who pasken lo asu rabbim, is actually a machlokas of the Achronim (see Part 1: Delasos – Me’d’Oraysa or Me’d’rabbanan). Most Achronim maintain even according to the Rambam the obligation of delasos to enclose a reshus harabbim is only on a rabbinical level. Additionally, this is all irrelevant since even those Achronim who maintain that delasos are a Biblical obligation require that we meet all the criteria of a reshus harabbim before we are compelled to erect delasos.

[Most importantly what the author fails to mention is that according to the Rishonim and Achronim who pasken lo asu rabbim with mechitzos there is no requirement of delasos at all. Only in an area encompassed by tzuras hapesachim that includes a reshus harabbim is there a need for delasos (see Part 1: Delasos – Me’d’Oraysa or Me’d’rabbanan).]

The LA Eruv Guidebook:
In a city where there are 600,000 people, the conventionally accepted lenient basis of historical Eruvin (lack of 600,000) would obviously not apply. Likewise, the rationale of the M”B also will not apply and doors (at least, fit to be closed) are required to close all the major intersections [which is not feasible].

This is rewriting history. There were cities that contained more then 600,000 people and nevertheless had established eruvin (see Historical Overview of City Eruvin). It is obvious that all were of the opinion that shishim ribo is not conditional of a city but only of a street (see The Requirement of Shishim Ribo: Is It Conditional on a City or a Street).

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