Part 7: Chukei Chaim: Eruvin Rebuttal

 Chukei Chaim:

עומד מרובה על הפרוץ

18. The above machlokes was stated regarding פסי ביראות, which are called “four walls” (above, 12). When it comes to a low-level wall, e.g., a lechi or kora (8), even the Chachamim agree that many people coming through nullify it. The poskim discuss whether this machlokes also applies to other halachic walls or only to פסי ביראות. [The Acharonim discuss this at great length and there are many details involved, but we will only discuss the main parts here.]

19. Four walls. The poskim explain that even if there are four walls with עומד מרובה על הפרוץ and the gaps are less than ten amos wide [even though there are gaps at the corners, so it is not like פסי ביראות], if many people walk through the gaps, the above machlokes Tannoim applies. R’ Yehuda is machmir, that the people coming through nullify the walls, and the Chachamim are meikel d’oraisa, that the people coming through do not nullify the walls (ריטב''א עירובין דף כ''ב ע''א ד''ה דרבנן, תוס' שם ע''ב ד''ה ת''ש, משכנות יעקב).

20. Some say עומד מרובה על הפרוץ is even better than פסי ביראות. With פסי ביראות, we must view it as if the walls extend to each other and close off the area – only then do the Tannoim argue. With מרובה על הפרוץ עומד, though, we do not need to view it as if it was closed since the majority of the perimeter is full wall. Accordingly, people coming through do not nullify the wall even according to R’ Yehuda (רמב''ן מלחמות כ''ב. ד''ה ר' יהודה הובא בס' גאון יעקב עירובין כ''ב: ד''ה פליגי).

Rebuttal: In fact, almost all the Rishonim, and not just the Ramban, who uphold that we follow Rav Yehudah, maintain that if we have mechitzos that are omed merubeh al ha’parutz, as opposed to shem daled mechitzos, even Rav Yehudah would agree lo asu rabbim (Raved, Rabeinu Yonasan, Rashba (who quotes the Raved), Ran, and Meiri (Eruvin 20, 22a).

Chukei Chaim: 21. Others argue and are machmir. They say the Chachamim were only meikel with פסי ביראות, which are called “four walls.” With עומד מרובה על הפרוץ, though, if there is a gap in the wall at the corners and it does not have its own status of פסי ביראות, the Chachamim agree that many people coming through nullify the wall בית אפרים סי' כ''ז עמ' רכ''ד ד''ה ועכ''פ, שו''ת מהריט''ץ סי' רנ''א).

Rebuttal: It is important to explicate that Rav Bleier is stating as fact something that some yungeleit derive from the Bais Ephraim. In reality, this is absolute shtusim. The Bais Ephraim does not make this distinction at all. On the contrary, the Bais Ephraim’s second diagram (which he expounds on at the end of the teshuvah) is clearly describing a situation of three mechitzos and not pasei bira’os. Hence, according to the Bais Ephraim there is no difference between pasei bira’os and three mechitzos omed merubeh al haparutz. The Maharit Tzahalon, as described by the Mayim Rabim, is referring to a situation where the corners of the mechitzos are not facing each other, as they were totally open from both ends. All would agree that mechitzos such as these are insufficient. However, mechitzos omed merubeh al ha’parutz, which are not joined at the corners, but face each other, would definitely be halachically sufficient.

Chukei Chaim: 22. Three walls. Some poskim hold that even when there are three walls with עומד מרובה על הפרוץ, the above machlokes applies, because three walls with עומד מרובה are akin to “שם ד' מחיצות.” According to the Chachamim, people crossing through do not contradict the classification of walls, just like they do not for פסי ביראות. The reason four “walls” are needed for פסי ביראות is because only with four walls is there a “שם ד'מחיצות.” However, עומד מרובה על הפרוץ, which are full walls, are called walls even if there are only three of them (חזו''א סי' ק''ז סק''ה).

Rebuttal: It is important to note that the Bais Ephraim would agree as well that three walls omed merubeh would suffice. This is contrary to what Rav Bleier and some yungeleit would have us believe.

Chukei Chaim: 23. What emerges is that if an eiruv is primarily based solely on a heter of walls which are עומד מרובה על הפרוץ, some opinions would say the walls are posul since many people cross through them on a public path.

Rebuttal: Even according to Rav Bleier’s erroneous understanding of the Bais Ephraim and Maharit Tzahalon, they are accordingly only two poskim who do not uphold that three mechitzos are sufficient. However, the overwhelming majority of poskim who pasken like the Chachamim maintain that three mechitzos omed merubeh are sufficient to encompass a reshus harabbim. Hence, there is no reason not to follow the majority in this situation. Even more so, Rav Bleier is incorrect regarding the Bais Ephraim and Maharit Tzahalon; both of them maintain that three mechitzos omed merubeh are halachically indistinguishable from pasei bira’os.   

Chukei Chaim: 31. Modern-day reshus horabim. Previously, we elaborated on the reshus horabim status when there are not 600,000 people in a city (Issue 316, par. 6). There is a machlokes among the poskim whether an area 16 amos wide is considered a reshus horabim d’oraisa, or whether there must also be 600,000 people. Based on this, the poskim offer a justification for people who rely on an eiruv made primarily with צורות הפתח in a reshus horabim only if there is an uncertainty whether it is truly a reshus horabim: namely, it could be we pasken like the Chachamim, and according to some poskim (above, 26), even with צורות הפתח we say people coming through do not nullify the walls, and it is kosher mid’oraisa in accordance with the Rambam’s opinion. It follows that doors are only needed mid’rabanan. If so, when we consider the additional factor that perhaps an area is not a reshus horabim d’oraisa without 600,000 people, it is only a safeik d’rabanan. Thus, carrying would be mutar with צורות הפתח alone and no doors. Nevertheless, a scrupulous person should be machmir not to rely on this (ביאה''ל שם).

Rebuttal: The Rambam’s opinion needs to be expounded on. There is a machlokes haposkim whether or not the Shulchan Aruch’s requirement of delasos for a reshus harabbim is on a d’Oraysa level or only a requirement me’d’rabbanan.  However, many poskim maintain that only me’d’rabbanan is there a requirement of delasos; me’d’Oraysa, a tzuras hapesach would suffice to reclassify a reshus harabbim as a reshus hayachid (Korban Nesanel, Succos 1:34:1; Pri Megadim, Rosh Yosef, Shabbos 6b; Shulchan Aruch HaRav, O.C. 364:4; Gaon Yaakov, Eruvin 11a; Rav Chaim of Volozhin zt”l, Otzar Reb Chaim Berlin, Shu"t Nishmas Chaim, p. 1; Tzemach Tzedek, Eruvin the end of Perek 5; Aishel Avraham, siman 34); Yeshuos Malko, O.C. 21; Avnei Nezer, O.C. 273:16, 279:2, 289:2; Aruch HaShulchan, O.C. 364:1; Levush Mordechai, 4:4; Bais Av, 2:9:3, and Kaf HaChaim, O.C. 364:12). Accordingly, since the requirement of delasos is me’d’rabbanan, we can be lenient [safek d’rabbanan l’kula] and apply any additional heter to remove the obligation of delasos.

As can be discerned from this list, it’s not just “some poskim,’ who maintain that a tzuras hapesach suffices on d’Oraysa level. It is many of the Gedolei Haposkim who uphold as such. Hence, while the Mishnah Berurah states that one should be machmir, in fact it’s not just one or two poskim who uphold the Rambam’s shita. Therefore, there is no reason to argue that one should be stringent. [It is important to note that the Mishnah Berurah only states that one should be machmir regarding a tzuras hapesach, however, there is no doubt that he would allow one to rely on mechitzos l’chatchilah (see above).]

Even more so, while the Bais Ephraim (in much of his teshuvah) and the Chazon Ish maintain that a tzuras hapesach would not suffice even on a d’Oraysa level, they uphold that in order to negate a tzuras hapesach we require shishim ribo to traverse therein (see Bais Ephraim, siman 26, p. 49b, and Chazon Ish, O.C. 108:12). Consequently, since most eruvin do not have shishim ribo traversing through the tzuras hapesachim, there would be no requirement of delasos (even me’d’rabbanan). Hence, a tzuras hapesach would be sufficient according to the majority of poskim, and there is no reason for one to be stringent.

Chukei Chaim: 32. 600,000 people. But all this is only true in a city without 600,000 people. A big city which has 600,000 people gets into the machlokes among the poskim of how and where to count the 600,000 people (Issue 316, par. 17): is it specifically on that street, or is it also in the areas of the city that are used as a primary part of the city? According to most opinions, it is likely that there are reshuyos horabim d’oraisa, in which case צורות הפתח alone cannot be relied on – even if we want to rely on the Chachamim that people coming through do not nullify a wall, mid’rabanan doors are necessary, as the Shulchan Aruch rules. If so, צורות הפתח alone cannot be relied on to make eiruvim in big cities.

33. Indeed, many contemporary poskim and gedolim hold that one should not rely on or make an eiruv based on צורות הפתח alone in big cities with more than 600,000 residents, unless additional solutions can be found to add factors that would allow being meikel.

Rebuttal: The above is simply incorrect. Most poskim maintain that the criterion of shishim ribo is conditional on the street, and that the shishim ribo would need to actually traverse the street for it to be classified as a reshus harabbim. The population of the city does not play a role in the matter. Furthermore, Rav Bleier omitted the criterion of mefulash u’mechuvanim. Therefore, even in cities containing a population of shishim ribo, given that there is more than one reason why the city would not be classified as a reshus harabbim, there would be no need for delasos.

 

Chukei Chaim: 34. High-level eiruv. Some are careful that an eiruv should be based on three full walls, as is the case in many neighborhood eiruvim (Issue 316, par. 34). When this is done, people do not walk through the walls; they only walk into the area between the walls via the open side. The concept of “אתו רבים ומבטלי מחיצתא” was not stated in this case (ספר הנפלא 'הליכות עירובין' פ''ג אות ל' העומד לצאת לאור).

35. Another way to make a high-level eiruv is with real doors. This upgrades an eiruv into a high-level eiruv, as will be explained later in the series, בעזהשי"ת.

Rebuttal: There is no such thing as a high-level eruv. There is no reshus harabbim today, either because we accept the criterion of shishim ribo l’chatchilah, and that it is conditional on the rabbim traversing the street. If one does not accept this criterion, then we can rely on that the streets are not mefulash u’mechuvanim. If one does not want to accept this criterion then we can rely on the majority of poskim who maintain that once a tzuras hapesach is erected then even me’d’rabbanan there is no need for delasos, because then we can definitely rely on the criterion of shishim ribo. Moreover, we can rely on the Chazon Ish’s shita, and even more so, many areas are encompassed by at least three mechitzos, omed merubeh. To disagree with all of the above and argue that one should still be stringent is simply beyond normative halachah.