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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.
