Their argument: But the criterion of mefulash u’mechavanim m’shaar l’shaar is conditional only of a walled city.
Our argument: 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 marketplace and not a walled city. Hence, the
gateway that the Shulchan Aruch is referring to is the sha’ar of
the marketplace and not the sha’ar of city walls. Consequently, there is
no doubt that the Shulchan Aruch maintains that the criterion of mefulash
is never conditional of city walls. Even more so, regarding our mavo’os/roads,[9] irrespective if the city is
walled or not, it would need to fulfil the criterion of mefulash m’shaar
l’shaar to be classified as a reshus harabbim.[10]
The Mishnah Berurah
(364:8), when describing the cities of his times, stated that there were
streets that were sixteen amos wide
and mefulash u’mechuvanim m’shaar l’shaar.
Therefore, a Baal Nefesh should be
stringent since in order to erect an eruv
in these cities, they would have needed 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 u’mechuvanim 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 unwalled 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]]
Hence, the Shulchan Aruch, and 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.[12]
Their argument: But we do not maintain that mefulash
necessarily infers that a road needs to be aligned from gateway to
gateway.
Our argument: The Magen Avraham (345:6; based
on the Bais Yoseph) and most poskim[13] assert that mefulash m’shaar l’shaar
infers mefulash u’mechavanim m’shaar l’shaar, meaning the marketplace is
aligned from gateway to gateway.[14]
Their argument: But, shouldn’t we be machmir,
even according to one posek.
Our argument: So, in conclusion of our debate
regarding your opposition to our reliance on the criterion of mefulash
u’mechavanim, you are arguing that we need to follow shitos yachidos.
We do not need to agree with your chumros. However, even if we are machmir,
once we erect tzuras hapesachim the majority of poskim maintain
that it would reclassify me’d’Oraysa a reshus harabbim as a reshus
hayachid.[15]
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.[16] Hence, even if one would be machmir,
once tzuras hapesachim are established no doubt me’d’rabbanan one
can rely on the above criteria.
Their argument: But we still want to be machmir,
according to even one posek.
Our argument: So, in conclusion of this argument,
you are opposing our reliance on the fact that many poskim maintain that
a tzuras hapesach would reclassify me’d’Oraysa a reshus
harabbim as a reshus hayachid, because you are arguing that we need
to follow shitos yachidos. We do not need to agree with your chumros.
However, if you still want to be machmir we have mechitzos to
rely on, in which case the area would be designated as a reshus hayachid.
[9]
According to the
overwhelming majority of poskim, in order to classify mavaos as a
reshus harabbim it would need to fulfill the criterion of mefulash
m’shaar l’shaar even if the road is not lined with any walls. However, an
argument can be made that a platya would only need to fulfill the
criterion of mefulash m’shaar l’shaar if it would be lined with (at the
minimum) two walls.
[10]
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,
Ritva, Eruvin 22a; Or Zarua, Hilchos Eruvin siman
129, and Meiri, Eruvin 6a, 20a], 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 [e.g. it is not sufficient that each segment
of a street between intersections is mefulash]. 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.
[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
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,
Pri 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 runs 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 Gedolei 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.
[12]
While Rav Aharon
Kotler zt”l and Rav Moshe Feinstein zt”l maintain that the
criterion of mefulash u’mechavanim m’shaar l’shaar is conditional only
of a walled city, as we just demonstrated, they are in fact disagreeing with
the overwhelming majority of the Gedolei Haposkim, hence, one cannot
require the world to follow their chiddushim.
[13]
Besides the Magen
Avraham the list includes: Olas Shabbos, 345:6; Tosfos Shabbos,
345:13; Elya Rabbah, 345:13; Prei Megadim, Aishel Avraham,
345:6; Shulchan Aruch Harav, 345:11; Mishnah Berurah, 345:20, and
Aruch Hashulchan, 345:15.
[14]
No one of stature
argues that the criterion of mefulash u’mechavanim m’shaar l’shaar does
not imply precisely aligned from end to end. The Meiri clearly states (Eruvin
6a) that the fundament of mefulash u’mechavanim is understood as
precisely aligned from end to end. There is no other definition of mechavanim
m’shaar l’shaar but precisely straight from end to end. [In fact, even
those few poskim who maintain that the criterion of mechavanim
m’shaar l’shaar is conditional of a walled city never argue that mechavanim
does not imply precisely aligned from end to end.]
[15] See Korban Nesanel (Succos
1:34:1); Pri Megadim (Rosh Yosef, Shabbos 6b); Shulchan
Aruch HaRav (O.C. 364:4); Gaon Yaakov (Eruvin 11a);
Rav Chaim of Volozhin (Otzar Reb Chaim Berlin, Shu"t Nishmas
Chaim, p. 1); Tzemach Tzedek (Eruvin the end of Perek
5); Aishel Avraham (siman 345); 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).
[Moreover, the Bais Ephraim at the conclusion of his teshuvah (siman
26) clearly maintains that we should erect tzuras hapesachim, and to
then obstruct an eruv using the argument that he would oppose the use of
tzuras hapesachim is a perversion of his opinion.]
[16] 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).
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