Tuesday, June 18, 2019

Part 3 - Lakewood Eruvin: The Truth

Are There Any Halachic Distinctions Between a Lakewood Community Wide Eruv and Neighborhood Eruvin

2:1 - Where we may carry on Shabbos
Min haTorah, the prohibition against carrying is from a reshus hayachid [private domain] to a reshus harabbim [public domain] and vice versa or the moving of an object four amos in a reshus harabbim.
Chazal added a prohibition against carrying in a domain known as a karmelis [an area that cannot be classified as a reshus hayachid since it does not have the required mechitzos, or as a reshus harabbim because it does not meet the necessary criteria]. Since there are similarities between a reshus harabbim and a karmelis, Chazal prohibited carrying between any two domains as well as within any domain other than a reshus hayachid itself[1] in order to prevent any inadvertent transgression of the laws of carrying in a reshus harabbim (Shabbos, 6a see Rashi ad loc. and Shulchan Aruch, O.C. 346:1).
Since the only domain in which carrying remains permissible is a reshus hayachid, our primary concern when planning the construction of an eruv is that we be able to rectify the area under consideration as a reshus hayachid.
For the purpose of this discussion, we need to explicate to what end a tzuras hapesach can be utilized. 
A tzuras hapesach[2] would reclassify a karmelis as a reshus hayachid. However, regarding a reshus harabbim, the Shulchan Aruch (O.C. 364:2) states that only delasos [doors to close the breaches] would rectify it and not a tzuras hapesach.
There is a machlokas 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, most 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.[3] Accordingly, since the requirement of delasos is me’d’rabbanan, we can be lenient [safek d’rabbanan l’kulla] and apply any additional heter to remove the obligation of delasos.[4]
However, since the Shulchan Aruch’s opinion is mired in a machlokes, and we still have to contend with the requirement of delasos me’d’rabbanan even according to the poskim who allow a tzuras hapesach for a reshus harabbim me’d’Oraysa, it is essential to establish the classification of an area ― is it or is it not a reshus harabbim? ― in order to ascertain whether or not a tzuras hapesach would suffice according to all opinions.

3:1 - What is a reshus harabbim
The Shulchan Aruch (O.C. 345:7) gives four defining conditions of what constitutes a reshus harabbim: a [street[5] or] marketplace[6] that is at least sixteen amos wide, that is not roofed [mikorim], is open and running straight from gateway to gateway [mefulash m’shaar l’shaar], and has 600,000 people traversing it daily [shishim ribo (sixty myriads) ovrim bo b’chol yom].
Since all four criteria have to be met 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.[7]
As most public roads are more than sixteen amos wide[8] and not roofed, an eruv in Lakewood would be predicated on two criteria: Mefulash u’mechavanim and shishim ribo. [9]

3:2:1 - The criterion of mefulash u’mechavanim
The text of the Shulchan Aruch reads:
“What is a reshus harabbim? A [street or] marketplace that … is not walled and even if they are walled but they [the (street or) marketplace] are open from gateway to gateway [mefulash m’shaar l’shaar], they [the (street or) marketplace] would be considered a reshus harabbim ….”
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 [street or] 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 the city walls.[10]
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.[11]]

3:2:2 - How the criterion of mefulash u’mechavanim applies to Lakewood today
Since the roads of Lakewood do not run straight from one end of the city to the other ― they are not mefulashim u’mechuvanim m’shaar l’shaar. Consequently, since the roads that are sixteen amos wide fail to meet this criterion, they cannot be deemed as a reshus harabbim, and tzuras hapesachim would suffice to enclose the area.
Following this, it is evident that there is no difference between a Lakewood community wide eruv and the neighborhood eruvin. Both can rely on the fact that the sixteen amos wide roads are not classified as a reshus harabbim since they are not mefulashim u’mechuvanim m’shaar l’shaar.

[1] Me’d’rabbanan, even after determining that a halachically enclosed area is a reshus hayachid, the ability to carry therein is contingent on the residents forming a unified entity or eruvei chatzeiros. Since this requirement is me’d’rabbanan, Chazal were lenient and only necessitated a symbolic unified ownership. Depending on who joins this symbolic partnership, one or two methods must be employed: eruvei chatzeiros or sechiras reshus.
[2] There are those who claim that the term eruv refers to eruvei chatzeiros and not to a tzuras hapesach. However, the Gemara (Eruvin, 6a) calls a tzuras hapesach an eruv; see also the Piskei Rid (Shabbos 6a) for further proof that the term eruv applies to both the physical construct and the brachah.
[3] See Korban Nesanel (Succos 1:34:1); Pri Megadim (Rosh Yosef, Shabbos 6b); Shulchan Aruch HaRav (O.C. 364:4); Rav Chaim Volozhiner (Otzar Reb Chaim Berlin, Shu"t Nishmas Chaim, p. 1); Tzemach Tzedek (Eruvin the end of Perek 5); Aishel Avraham (siman 345); Gaon Yaakov (Eruvin 11a); Yeshuos Malko (O.C. 21); Avnei Nezer (O.C. 273:16, 279:2, 289:2); Aruch HaShulchan (O.C. 364:1); Livush Mordechai (4:4); Bais Av (2:9:3), and Kaf HaChaim (O.C. 364:12).
While the Bais Ephraim and the Chazon Ish maintain that a tzuras hapesach would not suffice 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).
[4] Avnei Nezer (O.C. siman 273:16, 279:2, 289:2); Kanah V’Kanamon (5:56); Livush Mordechai (4:4), and Bais Av (2:9:3).
[5] The Shulchan Aruch uses the words rechovos and shevakim, which according to most poskim are just alternative labels for marketplaces. 
[6] The Gemara (Shabbos, 6a) cites a Tosefta, which states that there are three inherent reshus harabbim’s: 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 that are generally not incorporated into our towns.
The Rishonim, when discussing the classification of a sratya as a reshus harabbim, clearly maintain that it is an intercity road (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).
While Rashi may at times (Eruvin, 7a) label a sratya as a road that is traversed by the multitudes [as opposed to an intercity road], he clearly maintained that a sratya is an intercity road when he identified a sratya as an inherent reshus harabbim (Shabbos, 6a). Furthermore, the fact is the preponderance of Rishonim (see the above list) state clearly that only an intercity road is labeled as a sratya. Moreover, when the Rivash emphatically declared (siman 405) that a sratya is not included in the city limits, he cites Rashi in Shabbos as proof that it is only an intercity road. No doubt, the Rivash knew of the Rashi in Eruvin; nevertheless, he only cited what Rashi identified as a sratya in Shabbos [i.e. an intercity road]. In any case, Rashi upholds that any road included in a city, even the road that connects the intercity roads [which maybe are classified as sratyas], would need to satisfy all the criteria of a reshus harabbim in order to be characterize as such (see Eruvin, 6b, Rashi ad loc. regarding Yerushalayim and Mechuza). Consequentially, it is irrelevant if Rashi at times does not define a sratya as being outside of the city limits. Likewise, those Achronim (the Bais Ephraim and Avnei Nezer), who refer to a sratya as being included in a city [they clearly are referring to the main road of the city that connects the intercity roads], maintain that it would need to satisfy all criteria of a reshus harabbim (besides for maybe Rav Chaim Volozhiner).      
Following the above, when the Baal Hakuntres argues (see HaDoreshes Masa'as Shabbos, vol. 2, p. 12), that those thoroughfares in the city proper, which are used as a route of travel around town [and not as a local street that is used exclusively for access to the residences that exist on that street], are not classified as mavo’os hamefulashim, but only as sratyas, he is simply incorrect. To argue that those streets in the city limits that do not connect intercity roads are classified as sratyas is in opposition to the Rishonim as I mentioned above [they can only be classified as mavo’os hamefulashim as there is simply is no other classification that fits].  While there may be halachic distinctions regarding a mavo mefulash that is utilized exclusively for access to the residences that exist on that street (see later Section Two, note 1), and those which are used as a route of travel around town, they are both classified as mavo’os hamefulashim. Therefore, even a street that is used as a route of travel around town would need to be mefulash on both ends to a reshus harabbim, a sratya and/or platya in order to be classified as a reshus harabbim. All these diyukim are specious and are diametrically in opposition to the opinion of the overwhelming majority of Rishonim who maintain that a sratya is only an intercity road. 
[7] This is the opinion of the overwhelming majority of poskim [that only when all the criterion of a reshus harabbim are met is there a requirement of delasos], including, Levush (345); Magen Avraham (363:40); Tosfos Shabbos (364:4); Shulchan Aruch HaRav (O.C. 364:4); Rav Chaim Volozhiner (Shu"t Nishmas Chaim, p. 1); Bais Ephraim (O.C. 26), and Mishnah Berurah (364:5).
[8] It is important to note, that many neighborhood eruvin contain public roads that are more than sixteen amos wide.
[9]  Since there are no mechitzos to make use of which, notwithstanding the possibility of a reshus harabbim contained therein, would classify the area as a reshus hayachid.
[10] The criterion of mefulash is derived from the diglei hamidbar. Hence, according to all Rishonim and Achronim, mavo’os hamefulashim  ̶  and some would argue that all categories of domains encompassed in a city including platyas  ̶  would be required to extend on both ends through the city limits to satisfy the fundament of mefulash
There are three issues that need to be explored:
1) According to some poskim, it would be sufficient for a mavo hamefulash to be classified as a reshus harabbim even if it would connect to a karmelis outside of the city limits. However, the majority of Rishonim and Achronim would not deem this domain as a reshus harabbim if it would not join up with a reshus harabbim/sratya on both ends [or according to some poskim, it would be sufficient that a mavo mefulash, would terminate with a platya on one end]. 
2) It is patently clear from the Rishonim [since they argue that Yerushalayim was open upon its length and width, and was mefulash u’mechavanim m’shaar l’shaar, e.g. Ritva, Eruvin 22a], that only the entryways to the commencement and conclusion of the mavo’os/roads are categorized as the gateways [she’arim], and the intersecting roads do not establish additional gateways to the street. Hence, the criterion of mefulash u’mechavanim m’shaar l’shaar is conditional on the road being literally straight from end to end through the city limits [e.g. it is not sufficient that each segment of a street between intersections is mefulash].  
3) According to some Rishonim and Achronim, platyas, as opposed to mavo’os hamefulashim, would need to be mefulash only if they are lined with more than two mechitzos [this is irrelevant today, either because our platyas are indoors or because they are encompassed on at least three sides by mechitzos habatim]. Nevertheless, most Rishonim and Achronim do not make this distinction, and irrespective if they are encompassed by mechitzos, all domains included in a city would need to be mefulash to be classified as a reshus harabbim.        
[11] 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 p. 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 the following: 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 running 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.  

No comments:

Series 2 - Part 8.1: Commentary on Eruvin Shiurim by Rabbi Shraga Kallus

The Shiur - Series 2 - 8.1: The Rebuttal - Series 2 - 8.1: ______________________________________ The Shiur - Series 2 - ...