Part 2: REBUTTAL TO THE LAWS OF AN ERUV

 

Section One

 

An Overview of the Pertinent Halachic Issues Regarding Citywide Eruvin

 

1 - Where one 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, Orach Chaim 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.

 

1:2A - What is a reshus hayachid – mechitzos

The Shulchan Aruch (O.C. 345:2) defines a reshus hayachid as an area that is enclosed by walls [mechitzos] which are at least ten tefachim high and encompass an area that is at the minimum four tefachim by four tefachim. An area which is ten tefachim deep or is ten tefachim high is also classified as being encompassed by mechitzos. [An alternative form of mectitzah, a tzuras hapesach will be dealt with further on; see 2:1.]

Me’d’Oraysa, if the mechitzos enclose an area on three sides, the area is classified as a reshus hayachid (Tur and Shulchan Aruch, O.C. 363:1). At the minimum, each of the three sides must be omed merubeh al haparutz [i.e. more partition than breaches] for it to be considered whole for halachic purposes (ibid., 362:9-10, 363:1).[2]

However, me’d’rabbanan, until the area is entirely enclosed, it is classified as a karmelis. Therefore, in order that the area be reclassified, me’d’rabbanan, as a reshus hayachid, we are required to rectify the fourth side of the enclosure ― and the breaches [pirtzos] in the three sides, even those which are more than ten amos wide[3] ― with a tzuras hapesach [literally: form of a doorway, comprising of two vertical posts capped by a bar or string].[4] Only then would it be permissible to carry therein.

 

1:2B - How mechitzos can be employed for citywide eruvin

Hence, any area, including those that contain the criteria of a reshus harabbim therein, which are encompassed on three sides by mechitzos omed merubeh al haparutz can be rectified with tzuras hapesachim, and there would be no requirement of delasos.[5] Additionally, many cities can utilize the omed merubeh of the mechitzos habatim that bound their streets on three sides (at the minimum).[6] Furthermore, most cities can make use of mechitzos habatim utilizing the chiddush of the Chazon Ish (see details in the footnote[7]).

---

[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 may be employed: eruvei chatzeiros or sechiras reshus.

[2] Once the walls are omed merubeh al haparutz on three sides, nearly all Rishonim and Achronim maintain that the multitudes [rabbim] do not negate the enclosure, lo asu rabbim u’mevatlei mechitzta.

The Following is a list of the majority of Rishonim who uphold lo asu rabbim u’mevatlei mechitzta: 1) Tosfos, see Bais Ephraim, p. 39b and Avnei Nezer 276:2. 2) Rabeinu Chananel, see Ravyah p. 321. 3) Rambam, Mishnayos Eruvin 2:4, Yad 17:10, 17:33 . 4) Maggid Mishnah, ibid., 5) Hagaos Maimones, ibid., Basra 9. 6) Ravyah, p. 270. 7) HaEshkol, Eruvin siman 55. 8) Sefer HaBattim, Perek 13. 9) Tosfas Yshanim, Shabbos 6b. 10) Or Zarua, Eruvin 33b. 11) Mahrach Or Zarua, Piskei Eruvin, Perek 2 ois 57. 12) Ramak, as cited in Hagaos Ashri, 20b. 13) Rabeinu Chananel Ben Shmuel, Eruvin 22a. 14) Rivevan, Eruvin 22a. 15) Rid, Tosfos Eruvin 22a, Piskei 20a. 16) Ri’az, Piskei 2:1:6. 17) Sefer HaMeoros, Eruvin 17b. 18) Baal Hamaor, see Bais Ephraim p. 39b.

The following is a (partial) list of the overwhelming majority of poskim who maintain lo asu rabbim u’mevatlei mechitzta: 1) Chacham Tzvi, siman 5, 37. 2) Knesset Yechezkal, siman 2:3. 3) Mayim Rabim, siman 34-36. 4) Maharit Tzahalon, siman 251. 5) Tosfos Shabbos, siman 363. 6) Chavas Daas, Nachlas Yaakov, Eruvin. 7) Pri Megadim, Rosh Yoseph, Shabbos 6b. 8) Even HaOzer, Eruvin 6b, 22a. 9) She’eilas Yaavetz, siman 7 and Mor U’Ketziyah, siman 363. 10) Keren Oreh, Eruvin 7a. 11) Noda B’Yehudah, O.C. Mahadura Tinyana, 42 and Teshuvah M’Ahavah, siman 112. 12) Gaon Yaakov, Eruvin 11a, 21a. 13) Michtam L’David, siman 1. 14) Shulchan Aruch HaRav, O.C. 363:42, 364:4 and Kuntres Achron, O.C. 345:2. 15) Tiferes Tzvi, siman 11. 16) Bais Ephraim, O.C. 26 (the Chevrah Hilchos Issurei Eruvin argue that the Bais Ephraim only maintains lo asu rabbim in a situation of shem daled mechitzos and not in a situation of three mechitzos; this is hevel, as the Bais Ephraim’s diagrams prove otherwise, and in due time, I will demonstrate the speciousness of their arguments). 17) HaEleph Lecha Shlomo, siman 181. 18) Aishel Avraham, siman 345. 19) Chai Adam, klal 71:15 and Nishmas Adam 71:9. 20) Chesed L’Avraham, siman 39. 21) Chasam Sofer, O.C. 89. 22) Maharham Shick, O.C. 171, 181. 23) Bais Shlomo, siman 43, 51. 24) Tzemach Tzedek, Shabbos 100a and Eruvin, the end of Perek 5. 25) Nefesh Chayah, siman 25. 26) Shaar HaZekeinim, p. 116b. 27) Chazon Nachum, siman 36. 28) Rabeinu Yosef M’Slutsk, siman 11. 29) Maharia HaLevi, siman 94. 30) Maharsham, 3:188, 9:18. 31) Yeshuos Malko, siman 21. 32) Sharei Tzion, siman 4. 33) Avnei Nezer, siman 268:4, 276:1, 279:2. 34) Harei B’samim, 5:73. 35) Imrei Yosher, siman 102 and Minchas Pitim, siman 364. 36) Kaf HaChaim, O.C. 364:12. 37) Divrei Malkiel, 3:10, 14. 38) Rav Chaim Berlin in Tikkun Shabbos Odessa, p. 28 and in Nishmas Chaim, siman 29. 39) Achiezer, 4:8. 40) Aruch HaShulchan, O.C. 364:1. 41) Even Yikrah, siman 58. 42) Chazon Ish, O.C. 74:10, 107:4.

There is a major misunderstanding regarding whom the Mishnah Berurah follows, the Chachamim and Rav Elazar [lo asu rabbim u’mevatlei mechitzta] or Rav Yehudah [asu rabbim u’mevatlei mechitzta] and Rav Yochanan [delasos neulos].  There are those who argue that the Biur Halachah, 364:2, is proof that the Mishnah Berurah’s opinion is in accordance with Rav Yehudah, since he argues that most poskim do not accept the Rambam who follows Rav Elazar who maintains lo asu rabbim of a tzuras hapesach on a d’Oraysa level. Hence, the Mishnah Berurah maintains that a tzuras hapesach is not sufficient to encompass a reshus harabbim on a d’Oraysa level; only delasos would be effective, as set forth be Rav Yochanan.

This is incorrect. The fact is the Mishnah Berurah in Shaar HaTziyun siman 363:94 maintains that we pasken lo asu rabbim u’mevatlei mechitzta even in a situation of mechitzos b’y’dai shomayim [natural walls, whose efficacy is halachically inferior than mechitzos b’y’dai adam, man-made walls] (see also Biur Halachah, ibid., 36). It follows that the Mishnah Berurah in 363:156 argues that it is halachically sufficient if a mechitzah consisting of a tel hamislaket [a slope with an adequate halachic gradient] encompasses an entire city and does not mention that a Baal Nefesh should be stringent because there may be roads that are wider than 16 amos [hence, the Mishnah Berurah must be relying on lo asu rabbim of the tel hamislaket].

Why then does the Mishnah Berurah in the Biur Halachah, 364:2, accept Rav Yochanan who requires delasos me’d’Oraysa? Subsequent to what I argue above [that the Mishnah Berurah upholds lo asu rabbim u’mevatlei mechitzta], there is no doubt that the Mishnah Berurah is only following those poskim who maintain that Rav Yochanan can also be in agreement with the Chachamim, and they would in certain situations ― such as in an area which is encompassed by tzuras hapesachim or only two mechitzos ― require delasos [actually, this is the Bais Ephraim’s and Chazon Ish’s argument, and in fact, both the Ravyah (p. 270, 276) and Eshkol (siman 64-65) quote Rav Yochanan yet pasken like the Chachamim which buttress’s the Bais Ephraim’s and Chazon Ish’s assertion]. This is further evident from the fact that the Mishnah Berurah (Biur Halachah, 364:2) only affirms that the Rif and the Rosh follow Rav Yochanan regarding delasos neulos but does not articulate that they accept Rav Yehudah l’halachah.

In short, the Mishnah Berurah maintains lo asu rabbim in accordance with the Chachamim and in a situation of three mechitzos would not require delasos even me’d’rabbanan. However, if an area is encompassed by tzuras hapesachim or only two mechitzos, he would require delasos me’d’Oraysa pursuant to Rav Yochanan [however, it should be noted that many poskim maintain that a tzuras hapesach would be sufficient me’d’Oraysa; see 2:1]. This follows why the Mishnah Berurah [according to his understanding] asserted that it is only the Rambam who maintains lo asu rabbim on a d’Oraysa level even in a situation of tzuras hapesachim encompassing an area. However, many poskim who follow the Chachamim, would require delasos in accordance with Rav Yochanan, when only tzuras hapesachim are being used to encompass a reshus harabbim.

[3] Nearly all poskim maintain that pirtzos esser [a breach of ten amos] is only proscribed me’d’rabbanan; hence, a tzuras hapesach would suffice to close the breach: 1) Mabit in Kiryat Sefer, Shabbos Perek 16. 2) Pnei Yehoshua, Shabbos 6a.  3) Markeves HaMishna, Shabbos, 14:1.  4) Pri Megadim, Mishbetzes Zahav, 363:1. 5) Bais Meir, siman 364. 6) Shulchan Aruch HaRav, O.C. 345:11. 7) Zera Emes, Eruvin 17. 8) Rabeinu Yosef M’Slutsk, O.C. 11. 9) Bais Ephraim, O.C. 26-27 (the Chevrah Hilchos Issurei Eruvin argue that the Bais Epharim upholds pirtzos esser is d’Oraysa in a situation of three mechitzos as opposed to pasei bira’os; this is hevel, and in due time, I will demonstrate the speciousness of their arguments). 10) Keren Oreh, Eruvin 19b. 11) Nefesh Chayah, Tikkun Eruvin (Barnov), p. 30. 12) Tiferes Tzvi, siman 11. 13) Tikkun Eruvin Krakow, teshuvah 1. 14) Avnei Nezer, O.C. 265:13, 265:25, 276:1, 279:3. 15) Toras Chesed, see beginning of the sefer Emek Yehoshua Achron. 16) Melamud Leho’il, siman 68. 17) Aruch HaShulchan, O.C. 362:26. 18) Chavatzelet HaSharon, O.C. 19. 19) Chazon Ish, O.C. 107:5-8. 20) Achiezer, 4:8. 21) Igros Moshe, O.C. 2:89-90.

None of the Rishonim state explicitly that a pirtzos esser is a matter of a d’Oraysa – Rav Aharon Kotler zt"l and others extrapolate from some Rishonim as such. However, the fact is four Rishonim state unequivocally that pirtzos esser (and more) is only d’rabbanan (Hashlama, Eruvin 5a; Tosafos Rabeinu Peretz, Eruvin 22a; Tosafos HaRosh, Eruvin 17b, and HaEshkol, p. 167).

[Additionally, it’s difficult to understand Rav Aharon’s (Mishnas Rav Aharon, 6:2) argument that Rabeinu Chananel (101a) maintains pirtzos esser is a matter of a d'Oraysa. Since Rabeinu Chananel is referring to Yerushalayim which had shem daled mechitzos, consequently, according to R’ Yehudah, the pirtzah would have to be at the minimum 13 1/3 amos. Why would Rabeinu Chananel only go according to R’ Meir (even more so, the Yerushalmi states this part of the Mishna is according to R’ Yehudah)? Moreover, according to the way the Meiri (11b) understands Rabeinu Chananel we see that he maintains pirtzos esser is d’rabbanan. (See Divrei Yechezkel, siman 5:13 for an alternative explanation of this Rabeinu Chananel).]

[4] It is important to note that the tzuras hapesach can be utilized, me’d’rabbanan, to encircle a smaller section of the area enclosed by the mechitzos instead of closing the fourth side of the mechitzos themselves since the tzuras hapesach is being erected in a reshus hayachid d’Oraysa.

[5] 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 zt”l (Shu"t Nishmas Chaim, p. 1); Bais Ephraim (O.C. 26), and Mishnah Berurah (364:5).

[6] L’kol hadeios, batim are no different than mechitzos; see for instance: Mabit (1:48); Magen Avraham (358:5); Ginas V'radin (klal 3:22); Mayim Rabim (siman 38), and the Bais Ephraim (Teshuvos HaBach HaChadashos, siman 3, p. 258). Furthermore, the following poskim explicitly state that batim qualify as mechitzos even when encompassing a reshus harabbim: Shulchan Aruch HaRav (O.C. 363, Kuntres Achron 1); Bais Ephraim (siman 26, p. 37b, 49a); Bais Shlomo (siman 51); Nefesh Chayah (siman 30), and Mahari Stief (siman 68).

[7] The Chazon Ish argues: Since, me’d’Oraysa, a break in an enclosure that is omed merubeh does not negate the enclosure, when a street which continues through a city ends, either with houses or a dead end, the whole length of that street flanked by mechitzos habatim on both sides and its dead end would be considered omed merubeh on three sides, and me’d’Oraysa, a reshus hayachid. As a result, the intersections of that street, which were pirtzos, would halachically be termed k’omed dami, closed. Consequently, all streets that run perpendicular through this street ― which now has three mechitzos and halachically closed intersections ― would in turn be encompassed by three mechitzos themselves, their own mechitzos habatim on both sides of the street and a third wall, the omed of the intersection. This creates a spiraling effect throughout the entire city. The Chazon Ish concludes that there rarely would be in large cities a reshus harabbim because we would always find one street that is enclosed by three walls.

The halachic distinction between the Chazon Ish’s chiddush and the above mentioned poskim (see note 6) is as follows: According to these poskim in order that the street/area be classified as a reshus hayachid, we would need, at the minimum, for the mechitzos habatim to enclose the street on three sides. However, according to the Chazon Ish, as long as one street in a city is encompassed by three mechitzos, all the intersecting streets which are only lined with two mechitzos would be classified as halachically enclosed by three mechitzos, as well. Given that today in most cities all the streets are enclosed on all [and not just two] sides by mechitzos habatim, there is no need to only rely on the Chazon Ish’s chiddush since we can also rely on all of the above mentioned poskim.