The Bais Ephraim Revisited

 

As I have written on numerous occasions the argument that the Bais Ephraim maintains that pirtzos esser [breaches of ten amos wide] is on a d’Oraysa level in a situation of three mechitzos, as opposed to pasei bira’os [an enclosure consisting of four two-sided posts of at least an amah wide in each direction forming the corners of a square] is hevel. Those making this argument are either menuvalim breshus haTorah, or simply am haratzim.

However, I would like to revisit this debate, due to an additional argument set forth by these yungerleit, which I feel I should address. The added argument is as follows: The Bais Ephraim would only allow three mechitzos in a situation where the mechitzos are complete without any pirtzos, as depicted by the letter bais in the second diagram of the Bais Ephraim’s teshuva. In essence those making this claim utilize the second diagram, which seems to portray three continuous mechitzos, as proof that the Bais Ephraim maintains that in a situation of three mechitzos, gaps of ten amos are on a d’Oraysa level (and hence tzuras hapesachim to close the breaches are not sufficient), as opposed to pasei bira’os, in which case pirtzos esser prohibits only me’d’rabbanan (therefore, tzuras hapesachim to close the gaps are acceptable).

Let us explore why this claim is simply another excuse to prohibit eruvin:

To begin with, in my post, Part 3: The Truth Regarding The Stamford Hill Eruv, I state that the entire teshuvah of the Bais Ephraim demonstrates that pirtzos esser in a situation of three mechitzos [not unlike pasei bira’os], is only proscribed me’d’rabbanan. In fact, the Bais Ephraim argues that the reason pasei bira’os are suitable to demarcate a reshus harabbim is because otherwise asu rabbim u’mevatlei mechitzta. According to these yungerleit, the Bais Ephraim’s argument should have been that pasei bira’os are needed because otherwise pirtzos esser would be on a d’Oraysa level.

Now that we know that the Bais Ephraim always maintains that a pirtzos esser is only proscribed me’d’rabbanan, we can explain why he used the letter bais as the diagram for three mechitzos, which seems to suggest a requirement for three continuous mechitzos without any breaches, as these yungeleit argue.

These are the diagrams as depicted in the original print of the Bais Ephraim (1818), published during his lifetime (O.C. siman 26):

The Bais Ephraim was referring to two towns whose homes formed mechitzos [mechitzos habbatim], and where the circumstances were either that the major road [derech hamelech] ran through the middle of the city or where the road ran at the edge of the city.  Hence the use of a bais and a flipped backwards bais to depict a road that bisected the middle of the town, leaving the area encompassed with pasei bira’os. Or to illustrate a city whose main road ran at the edge of the town, thus detaching the fourth wall, they employed a bais and a flipped backwards vav, which denotes three walls [without closed corners on the fourth side], and an additional wall for the fourth side. The Bais Ephraim allowed all the breaches to be closed with tzuras hapesachim in these conditions, as the breaches are only proscribed me’d’rabbanan.

These diagrams are comprised of enlarged Hebrew letters, since at the time it was difficult to insert diagrams, and so the printers resorted to using the Hebrew alphabet in lieu of actual illustrations.

The argument that the fact that the Bais Ephraim employed the letter bais to represent three mechitzos (in the second example), is proof that the mechitzos would need to be without a breach of ten amos is wrong on a few counts.

Firstly, the letter bais was only used to depict three mechitzos consisting of houses, because it was difficult to insert an actual diagram. However, it is a given that there are breaches of ten amos between the houses, as the Bais Ephraim states (Teshuvos HaBach HaChadashos, siman 3) that it was common for the pirtzos between the homes to be closed with tzuras hapesachim.

Secondly, the example given by the Bais Ephraim was that there was a major road ten amos wide, bisecting the three walls from the fourth wall. The breaches formed by the main road running through two of the towns’ mechitzos habbatim were at least ten amos wide, and nevertheless the entire area included in the omed merubeh of the four mechitzos habbatim, even the unenclosed area adjacent to the breaches, was classified as a reshus hayachid me’d’Oraysa according to the Bais Ephraim.

This is proof positive that even in a situation of three mechitzos omed merubeh al haparutz, the Bais Ephraim maintains that pirtzos esser is only a proscription me’d’rabbanan. 

The above demonstrates that those making this argument are misguided yungeleit who never learnt properly, and were never meshamesh rabbanim.

Part 6: THE TRUTH REGARDING RT. 9 AND AN ERUV IN LAKEWOOD

Rav Moshe Feinstein zt”l and an eruv in Lakewood

While, according to Rav Moshe zt”l, we would not be able to rely on the criterion of mefulash u’mechavanim, there is no doubt that he would allow that we can rely on the fundament of shishim ribo.

 Let’s explore Rav Moshe’s shitos regarding the criterion of shishim ribo:

Like most poskim, Rav Moshe originally maintained (Igros Moshe, O.C. 1:109) that the criterion of shishim ribo was dependent on the street having shishim ribo traversing it. However, he later (ibid., 1:139:5) formulated his chiddush in which shishim ribo, when applied to a city, was not dependent on a street but over a twelve mil by twelve mil area [approximately 8.1 by 8.1 miles]. Rav Moshe added that the criterion of shishim ribo ovrim bo would require a sizable population living and commuting into the twelve mil by twelve mil area so that it could physically satisfy the condition of 600,000 people collectively traversing its streets. When these criteria are met, the area would be classified as a reshus harabbim and a tzuras hapesach would not be adequate; delasos at the pirtzos would be needed. However, at this time, Rav Moshe did not quantify how many people would be required to live in this twelve mil by twelve mil area.

In the first teshuvah quantifying how many people would be required to live in this twelve mil by twelve mil area, Rav Moshe stated (ibid., 4:87) that since in the past eruvin had been erected in cities with populations exceeding shishim ribo, one could not classify a city as a reshus harabbim solely on the basis of the existence of a population of 600,000. He then added that, although the actual number of inhabitants could possibly vary according to the city, Brooklyn would most likely require four to five times shishim ribo. In the final two teshuvos which followed regarding Brooklyn, we see that Rav Moshe codified his chiddush that the requirement is, "just about three million people," (ibid., 5:28:5) or, "at least five times shishim ribo," (ibid., 5:29) which could amount to even more than three million people. Consequently, in the Chicago eruv pamphlet (West Rogers Park Eruv, 1993 p. 23), it is stated that Rav Dovid Feinstein zt”l was in agreement that according to his father's shitah there must be a minimum of three million people in order for the city to be defined as a reshus harabbim.

[It’s important to note that Rav Moshe maintained the above regarding shishim ribo only as it applied to a city. However, with regard to a sratya (intercity road), Rav Moshe stated (ibid., 1:139:5, 4:87, 5:28:16) that the shishim ribo would need to traverse a particular section of the road on a daily basis to be classified as a reshus harabbim.]

As there is no 8.1 by 8.1 mile area in Lakewood encompassing a population even close to three million, no doubt Rav Moshe would allow an eruv consisting of tzuras hapesachim anywhere in Lakewood, even if it included the segment of Rt. 9 running through the city.

 

In Summation

1: The segment of Rt. 9 that runs through Lakewood, even if it would be classified as a sratya, would need to fulfil all criteria of a reshus harabbim.

2: Rt. 9 as it runs through Lakewood is not mefulash u’mechavanim m’shaar l’shaar and, therefore, is not classified as a reshus harabbim; tzuras hapesachim to close the breaches would be sufficient.

3: Additionally, Rt. 9 does not fulfill the condition of shishim ribo and, hence, would not be classified as a reshus harabbim; tzuras hapesachim to close the breaches would be sufficient.  

4: Rav Aharon Kotler zt”l would not consent to almost all eruvin in Lakewood, not just one that would encompass Rt. 9. Hence, the fact that there are many eruvin in Lakewood demonstrates that we do not follow his shitos in eruvin. Therefore, there is no specific reason according to Rav Aharon not to include Rt. 9 in an eruv.

5: Rav Moshe Feinstein zt”l would allow an eruv of tzuras hapesachim anywhere in Lakewood, even if it included the segment of Rt. 9 running through the city, since Lakewood does not fulfil his understanding of the criterion of shishim ribo. 

Part 5: THE TRUTH REGARDING RT. 9 AND AN ERUV IN LAKEWOOD

Rav Aharon Kotler zt”l and an eruv in Lakewood

Rav Aharon zt”l argued that we do not accept the criterion of shishim ribo, therefore, he reasoned that the heter to establish eruvin in pre-war Europe was the criterion of mefulash u’mechavanim.  However, Rav Aharon subsequently argued that only in very specific cases can we rely on the criterion of mefulash u’mechavanim.[14]  

Following this, we can conclude that, if we were to follow Rav Aharon’s shitos in eruvin, no city eruv — past or present, large or small (as long as it contained a street that was sixteen amos wide) — would be allowed. Thus, it is simply irrational to compel the world to follow Rav Aharon in eruvin since the minhag clearly does not follow his shitos.

Hence, it is not Rt. 9 that is the issue according to Rav Aharon’s chiddushim in eruvin. Almost all streets in Lakewood would be classified as a reshus harabbim according to Rav Aharon’s shitos, and he would be opposed to encompassing almost all of them with an eruv. The fact that Lakewood is populated with many eruvin demonstrates that even in Lakewood the minhag was/is not to follow Rav Aharon’s chiddushim on the inyan.

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[14] It is beyond the scope of this essay to explicate the possibility that Rav Aharon would admit that some of Lakewood’s roads would need to be mefulash u’mechavanim to be classified as a reshus harabbim. 

Part 4: THE TRUTH REGARDING RT. 9 AND AN ERUV IN LAKEWOOD

How the criterion of shishim ribo is calculated

The text of the Shulchan Aruch reads:

“What is a reshus harabbim? Marketplaces that are sixteen amos wide … and there are those who say [vyeish oimrim] that if they [the marketplaces] do not have 600,000 people traversing it daily [shishim ribo (sixty myriads) ovrim bo b’chol yom], they are not a reshus harabbim.”

From a simple reading of the Shulchan Aruch, it is apparent that the criterion of shishim ribo is conditional of the marketplace/street.

It was the mesorah through the ages that the criterion of shishim ribo is dependent on a single marketplace/street. The Divrei Malkiel (4:3) stated, when writing to the people erecting an eruv in the city of Odessa, which had approximately shishim ribo, that, “the minhag is to erect eruvin even in the largest of cities, and it does not concern us that they contain shishim ribo since the shishim ribo is dispersed over all its streets.”[9] [See more about this issue when we discuss Rav Moshe Feinstein’s shitos in eruvin.]

Furthermore, since the Shulchan Aruch uses the term shishim ribo ovrim bo, it implies a thoroughfare in continuous use and not merely the presence of 600,000 people in the vicinity who would have the ability to utilize the street.

The Bais Yitzchak (Y.D. siman 136:3) responded to one who suggested that the criterion of shishim ribo is not conditional on people actually traversing the road, their mere presence in the area would be sufficient, “[that] this is in opposition to most poskim including Rashi and Tosfos.” The Maharsham argued (3:188), if the criterion of shishim ribo includes even those who occasional use the street, how do we apply limits on the amount of time needed to fulfill the criterion. Clearly this is not the way the criterion of shishim ribo is calculated.[10]

Additionally, it is apparent from the Gedolie Haposkim that shishim ribo would need to traverse each section of the road to fulfil this criterion. The Rishonim and Achronim maintain that we derive the fundament of shishim ribo specifically from the number of Yidden who learnt by Moshe Rabeinu in machnah Levia.[11] Consequently, in order to fulfil the criterion of shishim ribo, we would require that 600,000 people gather over one area comparable to the way Yidden congregated in one place by Moshe Rabeinu.

In fact, many Achronim clearly maintain[12] that the criterion is only fulfilled if shishim ribo traverse through one segment of the road, and we do not included the entire length of the road in the tally.[13]

Consequently, if shishim ribo does not traverse the segment of the sratya that runs through the city, it is not classified as a reshus harabbim.  

The section of Rt. 9 that runs through Lakewood is clearly not traversed by shishim ribo; hence, it is not classified as a reshus harabbim. 

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[9] These are some of the additional poskim who clearly maintain that shishim ribo is dependent on the street: Levush, 345:7; Perishah, O.C. 325:8; Pnei Yehoshua, Shabbos 5b; Sedei Haaretz, Y.D. p. 29:3; Zera Emes, 3:34; Bais Meir, Shabbos 5b; Bais Yaakov, Eruvin 6a; Yad Dovid, Eruvin 55a; Shulchan Aruch HaRav, 363:44; Bais Ephraim, p. 46; Mishkenos Yaakov, p. 126; Chiddushi Harim, siman 4; Yeshuos Malko, siman 27; Mishnah Berurah, Shaar HaTzion, 345:25 [the Mishnah Berurah indicates this by the usage of the phrase, “derech hamavoi hamefulash,” ― it is important to note that  the Mishnah Berurah’s (345:24) primary issue is whether the shishim ribo are required to traverse the street every day of the year or whether occasional use of the street by 600,000 people would be sufficient; see also Toldos Shmuel, 3:86:10]; Minchas Elazar, 3:4; Bais Av, 2:5:2; Maharshag, 2:25; Chazon Ish, 107:6; Mahari Stief, siman 68; V’yaan Yoseph, 131:1, 155:1, 195:2; Divrei Yatziv, 173:4; Rav Shmuel Wosner zt”l, Shevet HaLevi, 6:41; Rav Yechezkel Roth zt”l, Emek HaTeshuvah 5:19, and see also the shaila to the Chacham Tzvi in siman 37.

[10] Besides for the above mentioned, Bais Yitzchak and Maharsham, the Divrei Chaim, Lekutim siman 3; Yeshuos Malko, O.C. siman 27; Sefas Emes, Shabbos, 6b; Divrei Malkiel, 4:3; Bais Av, 2:5:2:3, and Minchas Yitzchak, 8:32, all agreed that the criterion of shishim ribo is only met when 600,000 people actually traverse the street.

Those who suggest that the Bais Ephraim’s understanding of the Ritva, that the mere presence of shishim ribo in the vicinity would classify a street as a reshus harabbim, are mistaken.  The Gedolei Haposkim (mentioned above, the Maharsham, and Minchas Yitzchak) understood the Bais Ephraim otherwise. The only question regarding the Bais Ephraim’s position was whether the requirement of shishim ribo traversing the street is every day or would on most days suffice.

Furthermore, all those who claim that there are additional poskim who uphold this condition in the criterion of shishim ribo are incorrect, as all their claims are hearsay posited by the Chevrah Hilchos Issurei Eruvin (while it is beyond the scope of this essay, suffice it to say that all of their arguments have been negated).       

Finally, even according to this faulty argument, it is mindless to claim that the mere presence of 600,000 people in the vicinity of the street would classify it as servicing shishim ribo. If people from the vicinity rarely utilize the street, why should they ever be included in the tally?

[11] Rabeinu Yonason, Shevuos, Mishna 1; Rivevan, Shabbos 2a; Pnei Yehoshua, Shabbos 5b; Bais Meir, Shabbos 5b; Bais Yaakov, Eruvin 6a; Bais Ephraim, the end of siman 26; and the Mishkenos Yaakov, siman 121 p. 125.

[12] Divrei Malkiel, 4:11; Bais Av, 2:5:2:3; and see also: Bais Ephraim, siman 26, p. 47a; Mishkenos Yaakov, siman 120 p. 107, and Yeshuos Malko, siman 27.

[13] It should be noted that Rav Moshe Feinstein zt”l maintained (Igros Moshe, O.C. 1:139:5, 4:87, 5:28:16), with regard to a sratya outside of the city limits, that the shishim ribo would need to traverse a particular section of the road on a daily basis to be classified as a reshus harabbim. See more about Rav Moshe’s shitos in eruvin a little further on. 

Part 3: THE TRUTH REGARDING RT. 9 AND AN ERUV IN LAKEWOOD

How do we define the criterion of mefulash u’mechavanim

The text of the Shulchan Aruch reads:

“What is a reshus harabbim? Marketplaces that … are not walled, and even if they are walled but they [the marketplaces] are open from gateway to gateway [mefulash m’shaar l’shaar], they would then be classified as a reshus harabbim ….”

The Magen Avraham (345:6; based on the Bais Yoseph) and most poskim[6]  assert that mefulash m’shaar l’shaar infers mefulash u’mechavanim m’shaar l’shaar, meaning the marketplace is aligned from gateway to gateway.

From a simple reading of the Shulchan Aruch, it is apparent that the criterion of mefulash m’shaar l’shaar is conditional of a walled marketplace and not a walled city. Consequently, the gateway that the Shulchan Aruch is referring to is the sha’ar of the marketplace and not the sha’ar of city walls.

Hence, the overwhelming majority of poskim uphold that the criterion of mefulash m’shaar l’shaar as it pertains to city roads is not conditional of a city encompassed by walls.  

The following are some of the poskim who maintain that mefulash u’mechavanim m’shaar l’shaar is not conditional of a city encompassed by walls:

The Mishnah Berurah (364:8), when describing the cities of his times, stated that there were streets that were sixteen amos wide and mefulash m’shaar l’shaar. Therefore, a Baal Nefesh should be stringent since to erect an eruv in these cities, they would need to rely on the fact that the street did not have shishim ribo traversing it. As we know that most towns in his times were not walled, we can deduce that he accepted the criterion of mefulash as not being dependent on a walled city.

The Divrei Malkiel (4:3) states that to find a street in a large city which is mefulash, open from one end of the city to the other, is unheard of, and that is why the minhag is to erect eruvin even in the largest of cities. He wrote this teshuvah regarding Odessa, a city that was not walled.

Rav Shlomo Dovid Kahane zt”l (Divrei Menachem, O.C. vol. 2, pp. 42-43), one of the main rabbanim of Warsaw before World War II, posited that the heter to erect an eruv in a large city such as Warsaw, which was not walled from the year 1877 (Encyklopedia Warszawy, 1994 p. 187), was universally accepted as the streets were not mefulashim u’mechuvanim m’shaar l’shaar. More so, he claimed, a small city would have a greater issue establishing an eruv since its streets would be mefulash. In a small city, there is usually one main street running straight through the center of the town as opposed to a large city where the streets are generally not straight from city gate to city gate. [See footnote for an additional list of poskim.[7]]

Hence, even in a city not encompassed by walls, just like all city roads, the segment of the sratya which runs through the city would need to fulfil the criterion of mefulash u’mechavanim m’shaar l’shaar to be classified as a reshus harabbim [unlike an intercity road, outside of the city limits].

The section of Rt. 9 that runs through Lakewood is clearly not precisely aligned[8] from end to end; hence, it is not classified as a reshus harabbim.

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[6] Besides for the Magen Avraham the list includes: Olas Shabbos, 345:6; Tosfos Shabbos, 345:13; Elya Rabbah, 345:13; Prei Megadim, Aishel Avraham, 345:6; Shulchan Aruch Harav, 345:11; Mishnah Berurah, 345:20, and Aruch Hashulchan, 345:15.

[7] The following is a list of some additional poskim who maintain that mefulash u’mechavanim m’shaar  l’shaar, is not conditional of a city encompassed by walls: Mayim Rabim, siman 38, p. 39b; in regards to sratyas and mavo’os hamefulashim; Pri Megadim, Aishel Avraham, 364:2, Mishbetzes Zahav, 363:18; Bais Meir, siman 363:29; Bais Ephraim, siman 26 44b; in regards to sratyas and mavo’os hamefulashim; Tzemach Tzedek, Shabbos 6a; in regards to sratyas and mavo’os hamefulashim; Mahari Asad, siman 54; Shoel U'Maishiv, 1:2:87; U'Bacharta B'Chaim, siman 117, and Maharsham, 3:188.

Furthermore, we can add that the Magen Avraham (345:6; based on the Bais Yoseph) and most poskim (Olas Shabbos, Tosfos Shabbos, Elya Rabbah, Prei Megadim, Shulchan Aruch Harav, Mishnah Berurah, and Aruch Hashulchan) assert that mefulash m’shaar l’shaar infers mefulash u’mechavanim m’shaar l’shaar, meaning runs straight from gateway to gateway. Therefore, since all Rishonim (and Achronim) maintain that mefulash is a fundament of a reshus harabbim even in a city that is not walled (e.g. Rashi, Eruvin, 59a; Ravyah, Eruvin, siman 379; Rokeach, siman 175; Rid, Piskei, Sukkah 43a, and the majority of Rishonim who mention the criterion of mefulash without the qualifier of city walls), and the Gedolie Haposkim uphold that mefulash infers mechavanim, hence, all city streets would need to be mefulash u’mechavanim m’shaar l’shaar to be classified as a reshus harabbim, irrespective if the city is walled or not.

[8] No one of stature argues that the criterion of mefulash u’mechavanim m’shaar l’shaar does not imply precisely aligned from end to end. The Miri clearly states (Eruvin 6a) that the fundament of mefulash u’mechavanim is understood as precisely aligned from end to end. There is no other definition of mechavanim m’shaar l’shaar but precisely straight from end to end. [In fact, even those few poskim who maintain that the criterion of mechavanim m’shaar l’shaar is conditional of a walled city never argue that mechavanim does not imply precisely aligned from end to end.]    

Part 2: THE TRUTH REGARDING RT. 9 AND AN ERUV IN LAKEWOOD

What classifies a road as a sratya

The Rishonim, when discussing the classification of a sratya as a reshus harabbim, clearly maintain that it is an intercity road, which is not included in the city.[3] Therefore, most roads running through a city are clearly not categorized as sratyas. 

However, the question arises regarding the classification of the segment of a sratya that continues through the town itself. Do we consider this section as a continuation of the intercity road, and hence, halachically, it would be comparable to a sratya that runs out of the city limits [and for it to be classified as a reshus harrabim, the segment would not need to fulfil all of its criteria]? Or, is it that since this segment is part of the city proper, its halachic classification would be equivalent to the cities mavo’os [and it would need to fulfil all criteria of a reshus harabbim to be labeled as such]?

 

Does the segment of a sratya that continues through the town itself need to fulfil all criterion of a reshus harabbim

The above issue can be resolved by perusing Rashi. In fact, regarding Yerushalayim and Mechuza, Rashi (Eruvin, 6b) upholds that any road included in these cities, even the central road that connects the intercity roads/sratya, would need to satisfy all the criteria of a reshus harabbim. Hence, the Ramban [see introduction] and the few Achronim who follow him would no doubt allow that even according to Rashi the section of a sratya running through the city would need to fulfil all criterion of a reshus harabbim.

Likewise, those Achronim , (the Bais Ephraim and Avnei Nezer), who refer to a sratya as being included in a city maintain that it would need to satisfy all criteria of a reshus harabbim.      

Hence, it is irrelevant how we classify the segment of the intercity road running through the city as it would, according to the Rishonim and Achronim, need to fulfill all criterion of a reshus harabbim. 

Moreover, the overwhelming majority of Rishonim[4] and Achronim disagree with the Ramban and maintain that there is no difference between roads inside the city and those that are outside of the city. Both would need to fulfill the criterion of shishim ribo to be classified as a reshus harabbim.

The Rama (357:3) maintains that a sratya even outside of a city requires shishim ribo to be classified as a reshus harabbim. We, Benei Ashkenaz, follow the Rama. The overwhelming majority of poskim uphold the Rama’s opinion, so there is no doubt that we rule leniently in this matter. Consequently, there is no doubt that any part of a road that could possibly be classified as a sratya would need to fulfil at least the criterion of shishim ribo to be categorized as a reshus harabbim.  

 However, as demonstrated above from Rashi, any road running through a town, even if we would label it a srtaya, would need to fulfil all criteria of a reshus harabbim including mefulash u’mechavanim[5] and shishim ribo.

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[3] Rashi, Shabbos 6a;  Rabbeinu Yonason MeLunel, Shabbos 6a; Ravyah, Eruvin siman 379; Ramban, Eruvin 59a; Semag, Asin Drabbanan 1; Riaz, Shabbos, 1:1:17; Meiri, Shabbos 6a; Ritva, Shabbos 6a; Rabeinu Yerucham, Toldot Adom V’Chavah 12:4; Ran, Shabbos, Rif pagination, daf 2a; Shitas Hamyuchos LaRan, Shabbos 6a; Ohel Moed, Shar HaSabbos 13:2; Rivash, siman 405, and Nimukei Yosef, Eruvin, Rif pagination, daf 6a.

[4] Rav Amram Gaon, Hilchos Psukos, siman 70; Sar Shalom Gaon, Sharei Teshuvah siman 209; HaEshkol, Hilchos Tzitis, ois 31; Smak, Mitzva 282; Rosh, Beitzah, 3:2; Ritva, Shabbos 6a, and Terumas Hadeshen, siman 55, and the over twenty Rishonim who state that there is no reshus harabbim today at all, which implies that even sratyas would not be classified as such.

[5] Unlike the criterion of shishim ribo, the criterion of mefulash u’mechavanim m’shaar l’shaar has no bearing outside of the city; hence, I am only referring to the segment inside of the city proper.   

Part 1: THE TRUTH REGARDING RT. 9 AND AN ERUV IN LAKEWOOD

 

Introduction

The main argument in opposition to encompassing Rt. 9 with an eruv in Lakewood is predicated on classifying it as a sratya or intercity road. Once it is classified as a sratya, the Ramban maintains that even Rashi would deem a sratya as a reshus harabbim without fulfilling the criterion of shishim ribo/sixty myriads. Furthermore, they claim, even if we do require that a sratya fulfil the fundament of shishim ribo, no doubt the criterion is satisfied if the road just services 600,000 people. We do not require that shishim ribo actually traverse the road itself. Additionally, if Rt. 9 is classified as a sratya, they argue, we do not require that it fulfill the fundament of mefulash u’mechavanim m’shaar l’shaar/open from gateway to gateway to be classified as a reshus harabbim.[1] An additional argument bandied around regarding Rt. 9 is that Rav Aharon Kotler zt”l was opposed to including the highway in an eruv in Lakewood. As we shall see, dear friends, these arguments are without merit.  

In order to understand why these arguments are incorrect, we need to explore the halachos of reshus harabbim. 

 

What is a reshus harabbim

The Gemara (Shabbos, 6a) cites a Tosefta, which states that there are three areas [capable of being classified as] a reshus harabbim: sratya [an intercity road], platya [marketplace], and mavo’os hamefulashim [alleyways that open into the sratyas and platyas]. Our roads are usually classified as mavo’os hamefulashim, since our marketplaces are typically indoors [which are essentially a reshus hayachid], and our intercity roads are highways, which are generally not incorporated into our towns.

The Shulchan Aruch (O.C. 345:7) gives four defining conditions of what constitutes a reshus harabbim: rechovos or shevakim[2] [marketplaces/platyas] that are at least sixteen amos wide, that are not roofed [mikorim], that are open and aligned from gateway to gateway [mefulash m’shaar l’shaar], and have 600,000 people traversing them daily [shishim ribo (sixty myriads) ovrim bo b’chol yom].

According to the overwhelming majority of poskim, since all four criteria have to be realized for the area to be classified as a reshus harabbim, if even one criterion is not met, an eruv of tzuras hapesachim can be erected.

As most public roads are more than sixteen amos wide and not roofed, most citywide eruvin would be predicated on two criteria: mefulash u’mechavanim and shishim ribo.

While most roads in Lakewood are clearly classified as mavo’os hamefulashim, some argue that Rt. 9 should be categorized as a sratya, and hence, it would not need to fulfil all criteria of a reshus harabbim. In order to demonstrate the fallacy of this argument, we need to define what classifies a road as a sratya and what its halachic implications are.

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[1] According to all, a sratya outside of the city proper, would halachically not need to fulfill the criterion of mefulash u’mechavanim m’shaar l’shaar. 

[2] The Shulchan Aruch in 345:7 uses the words rechovos and shevakim, which, according to most poskim, are just alternative labels for marketplaces (see Metzudos Tzion, Shir Hashirim 3:2; Mayim Rabim, siman 38, and Bais Ephraim, siman 26 p. 44b). The Magen Avraham indicates on the word rechovos (345:5) that sratyas are included in these halachos set forth by the Shulchan Aruch. In 345:8-9 the Shulchan Aruch deals with mavo’os hamefulashim.  

Rav Moshe Feinstein Zt”l: A New Discovery, Part 2

After having read part 1 of this post, the significance of my discovery can be more readily understood. Lately 

I happened across Rav Yecheskel Grubner’s Kenesses Yecheskel (vol. 1, 2009) where he documents the proceedings of the Detroit eruv. His account validates my understanding of Rav Moshe’s shita regarding distinguishing a neighborhood that contains a population of less than shishim ribo with a tzuras hapesach.

From the above, we see that Rav Moshe was apprised of the fact that the city of Detroit proper is built up and contiguous with these two neighborhoods, and they were not delineated from Detroit proper in any way. Additionally, while Rav Moshe knew that the whole area including the two neighborhoods are part of Metropolitan Detroit, nevertheless, he allowed the establishment of these eruvin.

Furthermore, Rav Grubner included an unpublished teshuvah of Rav Moshe Stern, the Debrecener rav author of Be’er Moshe regarding the Detroit eruv.

From this teshuvah we see that the Debrecener rav clearly agreed and understood that Rav Moshe’s shita was that one can demarcate a neighborhood from a large contiguous built up city even though it’s under the rubric of a metropolis. Furthermore, the Debrecener rav maintained that not only was it permissible to establish an eruv in these cities, it was even a mitzvah. [This teshuvah confirms the well known fact that the Debrecener rav’s objection to the Brooklyn eruvin was for hashkafic and not halachic reasons. Since there is no difference halachically between Brooklyn and Detroit, the only reason why the Debrecener rav would have objected to a Brooklyn eruv was because of a matter of hashkafah. It is a known fact that those who fought the establishment of the Brooklyn eruvin used all means to negate them. Because the Debrecener rav and the Pupa rav (and others) did not believe that there were any halachic issues, they were told that there were problematic hashkafic issues in these communities which an eruv could exacerbate. There is a corroborating letter from Rav Yaakov Yitzchak Neiman zt”l from Montreal (Agurah B’Ohalecha, vol. 2 siman 56) stating that his rebbe, the Pupa Rav zt”l, only objected to the Brooklyn eruvin on hashkafic grounds which do not pertain to us today. Moreover, the Debrecener rav clearly maintained that Brooklyn is a karmelis (Be’er Moshe, 1:40), which proves that the matter was not halachic.]

In summation, there is no doubt that had Rav Moshe known that the populations of both Boro Park and Flatbush was much less than shishim ribo, he would have allowed a tzuras hapesach to distinguish them from their respective neighborhoods because no one would have mistaken them as a reshus harabbim. Furthermore, those who claim that Rav Moshe’s shitos would negate eruvin in other cities such as London are simply incorrect. If Detroit can establish an eruv because a tzuras hapesach can demarcate a neighborhood therein no doubt Rav Moshe would allow the same for London.

A few more points that need to be expounded on:

1) There are people who attempt to rationalize why Rav Moshe allowed an eruv to be erected in Queens. For example, some claim that Queens is not conceptualized from a halachic perspective as one city while others allege that Queens was not incorporated into the city as a whole unit, but rather as a set of disparate neighborhoods. Therefore, they argue, the population of Queens is considered divided and each neighborhood is independent of the other, which is why Rav Moshe allowed an eruv to be erected there.

These assumptions are an excuse after the fact. Rav Moshe never said that Queens is not conceptualized as one, only that Kew Garden Hills is a small neighborhood in Queens (ibid., 4:86 and Addendum to O.C. 4:89). Rav Moshe never said that Brooklyn is conceptualized as one, only that Boro Park and Flatbush individually contain shishim ribo, and therefore, an eruv can’t be erected (ibid., 5:28:5 and Addendum to O.C. 4:89). Additionally, Kew Gardens Hills is part of Queens just as Boro Park and Flatbush are part of Brooklyn, as can be seen on any map of the area. Every neighborhood in Queens is built up to the adjoining neighborhood and forms one contiguous borough just as all neighborhoods do in Brooklyn.

Moreover, as mentioned above, according to Rav Moshe, it makes no difference whether or not Queens is considered as one city since Rav Moshe’s main thesis is that we look at an area of twelve mil by twelve mil and not how the boroughs are conceptualized. If the twelve mil by twelve mil area contains a population of three million, an eruv cannot be erected in any part it (ibid., 1:139:5, 4:87-88). Kew Garden Hills is part of the twelve mil by twelve mil area of Queens just as Boro Park and Flatbush are part of the twelve mil by twelve mil area of Brooklyn. If the population of Queens doesn’t meet the requirement of Rav Moshe’s chiddush to be classified as a reshus harabbim, neither does the population of Brooklyn.

In any case, this discussion is beside the point. Rav Moshe declared that both the Boro Park and Flatbush neighborhoods independently contain shishim ribo without including the population of Brooklyn. Evidently, Rav Moshe did consider the neighborhoods in Brooklyn as distinct entities, and nevertheless, he objected to an eruv therein because their populations were greater than shishim ribo (ibid., 5:28:5 and Addendum to O.C. 4:89).

2) Some argue that the above rationalizations (see number 1) of why Rav Moshe allowed an eruv for Kew Garden Hills comes from reputable sources, so why shouldn’t we accept their oral explanations? Furthermore, they claim that those who disagree with these oral explanations of why Rav Moshe allowed an eruv in a neighborhood in Queens are undermining his teshuvos because this is the only reason why he could have allowed an eruv there as opposed to Brooklyn. Consequently, they are denigrating Rav Moshe’s kavod by undermining his position.

I reiterate, these arguments are excuses post facto. Rav Moshe clearly set forth his chiddushim in eruvin in his teshuvos. To argue that we should accept what someone claims Rav Moshe verbally expressed when it contradicts what he had clearly written is dangerous to advocate. If so, maybe Rav Moshe verbally discounted all of his teshuvos and none of them are reliable, chas v’shalom (see also Noda B’Yehudah, Tinyana, Y.D. 29-30).

Moreover, all these purported, “oral explanations,” differentiating between Brooklyn and Queens were clearly fabricated in order to justify why Rav Moshe allowed an eruv in Queens but not in Brooklyn. However, those people generating these fictitious accounts did not fully study all the pertinent teshuvos in Igros Moshe and didn’t realize that their excuses contradict his written words. In essence, these people are arguing that we should believe that Rav Moshe did not know his own shitos in eruvin. I would rather believe that these claims were created after the fact by people who do not know Rav Moshe’s shitos. In any case, there is no need to rely on hearsay since Rav Moshe indicated in his teshuvos why he allowed an eruv in a neighborhood in Queens — because he allowed the neighborhood to be delineated with a tzuras hapesach.

It’s fascinating that those promoting these contradictory statements as an excuse for an eruv in Queens have the temerity to claim that those promoting an eruv in Brooklyn are denigrating Rav Moshe’s kovod. In fact, they are making Rav Moshe look as if he did not know his own teshuvos. Clearly, they are the ones who are denigrating Rav Moshe’s kavod. Don’t they see the irony in the situation? In their campaign to argue against Brooklyn eruvin, they are quick to make claims in Rav Moshe’s name even if they contradict his teshuvos. Contrast that with the rabbanim supporting the eruv who spent a considerable amount of time studying Rav Moshe’s teshuvos and investigating the mechitzos in order to satisfy Rav Moshe’s shitos in eruvin. So who is more respectful of Rav Moshe’s kavod — the proponents of eruvin who study every word he wrote or those objecting to eruvin whose arguments contradict his teshuvos?

3) There are those who tried to argue that Rav Moshe mentioned in this teshuvah the highways in Queens because he was making use of the mechitzos that bounded them.

This is a total fabrication, as Rav Moshe never refers to mechitzos in any teshuvah concerning Kew Gardens Hills (ibid., 4:86 and Addendum to O.C. 4:89). Nor does anyone else mention mechitzos regarding Kew Gardens Hills (see Minchas Chein, siman 24 and Minchas Asher, 1:51-52, 2:56-57, 2:59). More so, since Brooklyn is encircled with mechitzos as well, why should it be any different than Kew Gardens Hills? If mechitzos are adequate for a Kew Gardens Hills eruv, so too would they be sufficient for Boro Park and Flatbush.

4) Some try to debase my above clarification of Rav Moshe’s shitos claiming that it’s not possible that Rav Moshe allowed a tzuras hapesach to demarcate an area containing less than shishim ribo in Kew Garden Hills because a reshus harabbim cannot be delineated with a tzuras hapesach.

They are mistaken. Rav Moshe is not the only one to maintain as such. There are Rishonim and Achronim who posit that a tzuras hapesach can demarcate an area containing less than shishim ribo (see Tosfos Rid, Eruvin 22a; Or Zarua, Eruvin 22a; Rav Yonasan Stief zt”l in Mahari Stief, siman 68; Rav Chaim Michoel Dov Weissmandel zt”l in Toras Chemed, p. 93, and Rav Elya Meir Bloch zt”l in Kol Tzvi number 7).

5) It’s important to note that, in the end, Rav Moshe objected to a Brooklyn eruv not because of his gezeirah but because he was led to believe that while Brooklyn’s population is actually somewhat less than three million there were over a million people who came into Brooklyn to work and visit (see the teshuvah below). Thus, the total population of Brooklyn would be much greater than three million, and the prohibition to establish one is no longer a matter of a gezeirah, but of a d’Oraysa.

שו"ת אגרות משה אורח חיים חלק ד סימן פח

אבל עתה נודענו במפה שניתן מהעיריה (הסיטי) ונמצא שכל ברוקלין הוא רק י"ב מיל על י"ב וקצת יותר ודרים שם בקביעות קרוב לשלשה מיליאן ועוברים ושבים ממקומות אחרים למסחר ולהתראות עם קרובים ולעבודה קבועה קרוב למליאן שא"כ יש ממש יותר הרבה מס' ריבוא ברחובות שודאי בהי"ב מיל על י"ב מיל יש ג"כ יותר מס' ריבוא, ולהשוות בריבוע הוא בהכנסת מקצת מנהעטן שנכנס שם האיסט סייד שהוא גם וואל סטריט וסיטי האל והסביבה שהוא עוד איזה מיליאנים, אבל כיון שמופסק בהנהר אין לצרף זה לברוקלין ולכן נחשב כמעט כל ברוקלין שג"כ איכא הרבה יותר מס' ריבוא וא"כ הוא רה"ר דאורייתא דודאי אין לתקן עירובין מדינא

However, this is obviously incorrect. The number of people who actually commute into the borough to work is approximately 235,000 people (NYC Department of City Planning, Table CTPP P-6, 2003); thus, the total falls far short of the required three million. Had Rav Moshe known these facts, he would concur that Brooklyn does not have the status of a reshus harabbim of shishim ribo.

6) Finally, it’s important to note that Rav Moshe’s gezeirah was not thought of as a reason in and of itself to negate eruvin. Both Brooklyn and Chicago have a population of approximately 2.5 million people over a twelve mil by twelve mil area. Despite this number of people, Rav Dovid Feinstein shlita agreed that, according to his father, an eruv could be established in Chicago (West Rogers Park Eruv, 1993 p. 23). This gezeirah was not considered a serious enough issue to impede the construction of an eruv in Chicago and should not interfere with an eruv in Brooklyn either.