Tuesday, October 06, 2020

Part 28: REBUTTAL TO THE LAWS OF AN ERUV

 

Section Three

 

What Follows is an Analysis and a Refutation in a Linear Fashion of the Chicago Community Kollel Publication, Encounters, December 21, 2018, Entitled City Eruvin,

 

Encounters:

The Definition of Reshus Harabim

The defining criterion of a reshus harabim is public access. A shared parking lot of a large residential building is not considered a reshus harabim since the general public is denied access to the lot (other reasons may also apply as explained below). Additionally, we derive several requirements from the structure of the Jewish encampment in the desert. For example, the Gemara proves that the public domain in the desert was sixteen amos wide. Hence we derive that a reshus harabim must be at least sixteen amos wide. Similarly, a thoroughfare that has a roofed structure above it is not considered a reshus harabim since the reshus harabim in the desert did not have a roof. The reshus harabim in the desert was regularly travelled by 600,000 individuals. While the Gemara does not mention this, one may suggest that for a thoroughfare to be considered a reshus harabim, it must be frequented by 600,000 individuals. This question is debated by the Rishonim as explained below.

Rebuttal: While we derive all the criteria of a reshus harabbim from the diglei hamidbar, the Pnei Yehoshua, Bais Meir, Bais Ephraim, and the Mishkenos Yaakov (and just about all the other Achronim) maintain that we derive the fundament of shishim ribo specifically from the number of Yidden who learnt by Moshe Rabeinu in machnah Levia. [Hence, these Achronim maintain that the criterion is conditional of the street and not the city.]

 

Encounters:

The Opinions of Rambam and Rashi

The Rambam and others are of the opinion that only the primary characteristics of a reshus harabim are derived from the Mishkan. According to this view, the traffic volume is considered incidental and is not a defining factor in a reshus harabim. This would mean most of our public roads, provided that they are wider than sixteen amos, are considered a reshus harabim. According to this opinion, making an eruv using tzuros hapesach would not be an option in any of our modern day cities.

Rebuttal: This is irrelevant since we do not pasken like the Rambam regarding the criterion of shishim ribo. Moreover, the Rambam would allow most eruvin because the streets are not mefulash u’mechavanim (see Bais Yosef) and since most city streets are encompassed by more than three mechitzos (and the Rambam maintains lo asu rabbim u’mevatlei mechitztah).

While the Mishnah Berurah, following the Mishkenos Yaakov, may have cast doubts on the criterion of shishim ribo (since he maintains that most Rishonim do not uphold the fundament), the poskim who followed him uphold the criterion (Bais Av, 2:5; Mahari Stief, siman 68; Rav Moshe zt”l, Igros Moshe, O.C. 5:24:10; Minchas Yitzchak, 2:50; Divrei Yatziv, 173:4; Minchas Shlomo, 2:36:2:6; Even Yisroel, 8:36; Tzitz Eliezer, 10:13, 13:32, 14:90, and Rav Shmuel Wosner zt”l, Shevet HaLevi, 8:97:6). Some poskim even mentioned that the Mishnah Berurah did not see the Bais Ephraim’s rebuttal of the Mishkenos Yaakov’s list of Rishonim (Toldos Shmuel, 3:81:7, 3:86:8; Bais Av, 2:5:2; Divrei Yatziv 2:173:1, and Even Yisroel, 8:36). Moreover, we now know that the tally of Rishonim who uphold the criterion is even greater than the Bais Ephraim knew of. Thus, there is no doubt that we accept the criterion of shishim ribo l’chatchilah. Furthermore, those Rishonim (as I mentioned previously regarding the Rambam) who do not support the criterion of shishim ribo would rely on the fundament of mefulash u’mechavanim, and that in many situations mechitzos can be utilized to enclose the area.

 

Encounters:

The Opinion of Rashi

According to Rashi, a reshus harabim must have that same volume of traffic as found in the midbar. Accordingly, any street that does not serve 600,000 individuals is not considered a reshus harabim. Depending on how we compute this volume, this opinion would allow an eruv in many, or perhaps all, modern day cities.

Rebuttal: The most important opinion, the Shulchan Aruch’s, clearly maintains that the criterion is conditional of the street and not the city (even Rav Moshe acknowledged that this is the pashut p’shat in the Shulchan Aruch; see Igros Moshe, O.C. 139:5). 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.

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