The Kuntres: The following sources elaborate on the snifim mentioned above: The Beis Ephraim and the Avnei Neizer
The Beis Ephraim ,(סימן כ"ו) in a twenty-five page teshuvah, presenting a lengthy and formidable argument to support the custom of constructing large eiruvin states: No one has the authority to call into question this custom, which was established by the great sages of Tzarfas [France] and Ashkenaz [Germany] .. . Nevertheless, after this strong introduction, he goes on to say that the circumstances in his times in the cities of Europe afforded other snifim (mitigating factors) that would allow for a lenient ruling in this area: towards the end of the teshuva he writes:
In these countries the roads in question were never there before the King desired them, and built them, and it remains in his sole discretion to destroy [the roads] and to rebuild them as he sees fit - for his word is the supreme law [of the land] ... These roads were never given over to the public's jurisdiction ...
Rebuttal: As mentioned above, it is not so simple to say that this snif is not at all applicable today. Moreover, the Baal Hakuntres is conveniently omitting that the Bais Ephraim is only employing these snifim l’hakel in order to satisfy those poskim who do not accept the criterion of shishim ribo. This does not mitigate the fact that the Bais Ephraim relies on the fundament of shishim ribo l’chatchilah. To disagree with this point is to ignore the majority of the teshuvah where the Bais Ephraim rallies proof that it is our minhag and that the overwhelming majority of Rishonim accept the criterion of shishim ribo.
Furthermore, the Baal Hakuntres conveniently omits the Bais Ephraim’s assertion (at the conclusion of this teshuvah) that since according to the Rashba’s understanding of the Rambam a tzuras hapesach would be sufficient in a reshus harabbim, therefore, it should definitely not be proscribed. No doubt the exclusion of this important assertion of the Bais Ephraim was because it undoubtedly can be employed to allow eruvin.
The Kuntres: The Avnei Nezer (או"ח סי' רע"ג סק"ו) concurs with the Beis Ephraim that the fact that the roads of a city are entirely under the jurisdiction of the king affords us with a mitigating factor that would allow for a lenient ruling when it comes to a large eiruv. The Avnei Nezer presents this and concludes: This should suffice as a" limud zechus" for the Jews of our country, who permit carrying on Shabbos in a [large eiruv] and no one raises the slightest protest.
Rebuttal: The same can be said about the Avnei Nezer. His employment of this snif was only in order to satisfy those poskim, who do not accept the criterion of shishim ribo. Furthermore, the Baal Hakuntres failed to mention the additional approach that the Avnei Nezer employed, a sfek sfeika, in order to satisfy those poskim who do not accept the criterion of shishim ribo, He argues that me’d’Oraysa, a tzuras hapesach would suffice to reclassify a reshus harabbim as a reshus hayachid. Accordingly, since the requirement of delasos is me’d’rabbanan, we can be lenient [safek d’rabbanan l’kulla] and apply the additional heter of shishim ribo to remove the obligation of delasos. Clearly this omission was because this sfek sfeika can be employed today as much as when the Avnei Nezer penned his teshuvah.
The Kuntres: The Beis Ephraim in the end of the teshuva, elaborates on the other snif mentioned above. If the mechitzah is "breached" exclusively by wagons going through it, it is not considered to have been nullified by a rabbim.
Concerning the above, the Beis Ephraim writes:
Even though I am not completely clear on this point, I consider it, at any rate, an idea that I can combine with my other reasons to permit [such an eiruv].
Rebuttal: This is simply incorrect. The Baal Hakuntres should reread the teshuvah. The Bais Ephraim is only referring to his additional submission that even according to those poskim who do not uphold shishim ribo, nevertheless, to promulgate asu rabbim umevatlei mechitzta, a multitude of holchei regel would be required. The Bais Ephraim then posits that maybe we should not include in the multitude those who reside in the city and its environs. It is regarding this point that the Bais Ephraim mentions that, “Even though I am not completely clear on this point, [and I mentioned it] only as a first observation, I consider it, at any rate, an idea that I can combine with my additional reasons to permit [these eruvin].”
In fact, there is no doubt (from his wording) that the Bais Ephraim was certain about two of the three rationales he suggested why traffic does not nullify a tzuras hapesach, firstly since the traffic is travelling in a reshus hayachid, and secondly, because the traffic consists of pedestrians (holchei regel). Consequently, as mentioned previously, many poskim utilize this suggestion of the Bais Ephraim in order to mitigate any question if there is shishim ribo traversing the street, since vehicles would not be included in the tally.
The Kuntres: The Beis Ephraim also writes [earlier in the teshuva]:
My wise colleague, throughout his letter, assumes that the reason why the Poskim state that in our times we do not have a proper reshus harrabim de'oraysa is because we rely on the fact that our roads do not service 600,000. But in truth, this is not so. To the contrary, the real reason that they felt that we have no reshus harrabim is because our roads are either not 16 amos wide, or because they are not mefulash.
Rebuttal: This argument is unseemly. First of all, the main point of the Bais Ephraim is that the Rishonim make use of the criteria that pertains to their environs. Hence, the Bais Ephraim argued (earlier in this teshuvah) when a Rishon states that there is no reshus harabbim, since the roads are less than sixteen amos wide and are not mefulash, but omits the criterion of shishim ribo, it was because there were cities that contained a population of 600,000. Accordingly, these Rishonim needed to rely on other criteria, thus, nothing can be derived from the fact that a Rishon omits the criterion of shishim ribo. Therefore, it is absurd to insinuate that even the Bais Ephraim agreed it is not so simple to rely on shishim ribo, since the entire argument of the Bais Ephraim is that the fact that some Rishonim omitted the criterion of shishim ribo, does not preclude them from upholding the fundament of shishim ribo.
Furthermore, the Bais Ephraim spent a considerable part of his teshuvah arguing that it is our minhag and that most Rishonim uphold the criterion of shishim ribo. Ostensibly, the Bais Ephraim maintained that we can rely on the criterion of shishim ribo without a doubt.
Additionally, in regards to the Baal Hakuntres’s point the Bais Ephraim includes poskim who only state that there is no reshus harabbim today in his list of Rishonim that maintain shishim ribo is a criterion of a reshus harabbim, (such as: Rabbeinu Simcha, Tosfos Yeshenim, Piskei Recanati, Issur V’Heter Ha’aruch, Hagaos Issur V’Heter, Terumas Hadeshen, Mahari Veil, and Tsedah LaDerech). Apparently, the Bais Epharim understood that even when a Rishon did not specify the reason why he upheld that there is no reshus harabbim, his intention usually is because of the criterion of shishim ribo. Moreover, there is no doubt that when the Achronim state that there is no reshus harabbim today [without explicating a reason] it is expressly because they are relying on shishim ribo as a fundament of a reshus harabbim. Hence, when the poskim make a blanket statement that there is no reshus harabbim today, the most plausible reason is because of the criterion of shishim ribo.
The Kuntres: Rav Chaim Volozhiner
Rav Chaim Volozhiner made a similar remark, as recorded in a teshuva that was recently printed in Shut Nishmas Chaim from Rav Chaim Berlin: We should not wonder so greatly about the minhag as our ancestors were in Tzarfas (France), and their streets were not 16 amos wide ... [As of today] we can explain [our minhag] somewhat, that it is based on the fact, that the roads are owned by the king ... and other mitigating factors ...
Rebuttal: What the Baal Hakuntres is conveniently omitting is that Rav Chaim Volozhiner only mentioned this snif because he maintained that a sratya does not require shishim ribo to be classified as a reshus harabbim. However, as I mentioned (notes 6 and 18) most [if not all] of the roads in Lakewood are not classified as sratyas. Therefore, since Rav Chaim Volozhiner maintains that we do rely on the criterion of shishim ribo, for marketplaces and roads, we can rely on the criterion of shishim ribo even according to him (see more about Rav Chaim Volozhiner further on).
Additionally, it is important to note, that Rav Chaim Volozhiner concurs that a tzuras hapesach would reclassify a reshus harabbim as a reshus hayachid.
The Kuntres: HaRav Shlomo Dovid Kahana of Warsaw
HaRav Menashe Klein, in his sefer Mishne Halachos,(ח"ח סי' ק"ג בא"ד) records a letter, written by HaRav Shlomo Dovid Kahana, one of the leading Dayanim of pre-war Warsaw.
In my opinion, in the smaller cities, where the "King's highway" passes through from one end to the other, there is more of a concern [for chilul Shabbos] than in the larger cities. This is because the heter to rely on the opinions [that disqualify an area from being a reshus harrabim unless they carry traffic] of shishim ribo is unclear and the Mishkenos Yaakov strongly objects to this heter . .. [on the other hand,] the heter of " eino mefulash" is a clear and unanimous heter, and in the large cities one does not find roads that are mefulash at all. In our city as well, the established custom of the preceding generations has been to construct eiruvin, and not to be concerned about [viewing our roads as] reshuyos harrabim.
Rebuttal: As mentioned previously, the criterion of mefulash u’mechavanim is not a snif l’hakel, but only a fundament of a reshus harabbim. It is peculiar that the Baal Hakuntres cites Rav Shlomo Dovid Kahane who posited that in large cities we can rely on the criterion of mefulash even more so than shishim ribo, since it is a unanimous heter. Clearly Rav Shlomo Dovid Kahane is not classifying the criterion of mefulash as merely a snif l’hakel.
The Kuntres: [It is worth noting, that the eiruv in Warsaw is often cited as a primary "proof" that the minhag was to be lenient in the matter of - constructing large eiruvin, based on the opinion that only roads that service 600,000 is a reshus harrabim. It is clear from this teshuva, written by a leading Dayan in Warsaw, that this is not the case.]
Rebuttal: Apparently, the Baal Hakuntres does not grasp what he wrote. It is those who oppose eruvin in large cities ̶ because they contend that the criterion of shishim ribo is conditional of a city ̶ who try to make the argument that Warsaw’s population was not an issue. Those poskim who support large city eruvin would rely on the criterion of mefulash as well.
Rav Moshe argued that Warsaw does not pose a problem to his shitos in shishim ribo since the city did not contain a population of three million (Igros Moshe, O.C. 5:28:5). Rav Moshe Bick, and Rav Yisroel Belsky (Shulchan Halevi, siman 11 note 5) declared that Warsaw’s population of shishim ribo was split between the two sides of the Vistula River, hence there was no shishim ribo on either side (this is obviously incorrect, and excuses after the fact, since there were over a million people on the Warsaw side of the river; the other side was referred to as Praga). Ostensibly, those poskim who only relied on the criterion of shishim ribo needed to grapple with the population of Warsaw. [In fact, there were additional cities containing a population greater (or at least they were under the impression that it was greater) than shishim ribo that established eruvin, such as Lodz and Odessa (and so these poskim would need to contend with this fact, as well).]
In any case, in regards to the Baal Hakuntres’s point, those who support eruvin in large cities could rely on the criterion of shishim ribo as the Divrei Malkiel stated (4:3) 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.”
The Kuntres: Maran Rosh HaYeshivah Reb Aharon Kotler
The Rosh Yeshivah Reb Aaron Kotler, discusses the issue of contemporary large eiruvin, and the basis for the lenient practice of the pre-war European communities, in Shut Mishnas Reb Aharon, siman 6.
The Rosh Yeshivah zatzal, notes that according to the Mislinah Berurah, most Rishonim do not require a reshus harrabim to carry shishim ribo; thus, it is unlikely that the practice of the pre-war Gedolim was based on their reliance on the minority opinions. The Rosh Yeshivah, is therefore of the opinion that the lenient position of the pre-war Gedolirn was based on the fact that in their times their roads did not fall under the description of "mefulash mi'sha'ar le'shaar." In our times, however, the Rosh Yeshivah explains, many of our streets indeed qualify as mefulash mi'sha'ar le'shaar. According to his opinion, there is no minhag to construct eiruvin in today's cities. On the contrary "There is very great reason to say that we are dealing with a reshus harrabim de'oraysa".
The Rosh Yeshivah' s teshuva was written regarding an eiruv in Manhattan, but according to his explanations of the halachos and the pre-war minhag, the same would apply to today's Lakewood-many of Lakewood's streets would be classified as mefulash me'sha'ar le'sha'ar, and would have the status of a reshus harrabim de'oraysa.
Rebuttal: Rav Aharon zt”l argued that we do not accept the criterion of shishim ribo as set forth by the Mishkenos Yaakov and the Mishnah Berurah, and, therefore, he reasoned that the heter (l’chatchilah) 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. [It is beyond the scope of this essay to explicate that there is a possibility that Rav Aharon would admit that some of Lakewood roads would need to be mefulash u’mechavanim to be classified as a reshus harabbim (as even the Baal Hakuntres seems to be insinuating).]
Following this, we can only conclude that there is no difference between a community wide eruv and neighborhood eruvin, Rav Aharon would have objected to them all.
The Baal Hakuntres is suggesting that Rav Aharon maintained that the eruvin in pre-war Europe relied on the criterion of mefulash m’shaar l’shaar, but currently, we cannot depend on the criterion since our streets qualify as mefulash m’shaar l’shaar. This diyuk is an invention of the Baal Hakuntres. In fact, Rav Aharon’s understanding of the criterion mefulash m’shaar l’shaar would not have allowed the eruvin in pre-war Europe, as well [beside for which he would require delasos at the pirtzos]. Consequently, 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 his shitos in eruvin since the minhag clearly does not follow him.
However, as mentioned previously (Section One, 4), the principal issue regarding Rav Aharon that needs to be addressed is that he never finished this teshuvah.