PART 3: THE TRUTH REGARDING THE STAMFORD HILL ERUV

Their argument: But the Mishnah Berurah argues that most poskim uphold asu rabbim u’mevatlei mechitzta, so according to most poskim the mechitzos would not classify an area that includes a rabbim as a reshus hayachid.   

Our argument: First of all, the fact is the overwhelming majority of poskim maintain lo asu rabbim u’mevatlei mechitzta.^[17] Second of all, the Mishnah Berurah says no such thing. The Mishnah Berurah is arguing that the majority of poskim uphold asu rabbim of a tzuras hapesach, but in a situation of mechitzos he clearly maintains lo asu rabbim.^[18]      

Their argument: But the world follows the Bais Ephraim who maintains that in a situation of three mechitzos, as opposed to pasei bira’os [an enclosure consisting of four two-sided posts of at least an amah wide in each direction forming the corners of a square], pirtzos esser is on a d’Oraysa level.

Our argument: Where do you have the chutzpah to create new chumros in the name of the Bais Ephraim. The Bais Ephraim does not make this distinction; you invented this argument in order to negate eruvin at all cost, and it illuminates your desperation.^[19] The ability to use mechitzos should have satisfied even the most stringent, but you have to find an issue even when utilizing them. 

The Bais Ephraim clearly maintains lo asu rabbim u’mevatlei mechitzta even of three mechitzos as can be determined from his diagrams in the beginning of siman 26 and his explanation of the diagram at the end of the teshuvah. While there are some questions as to how he explains certain issues (see footnote for more details^[20]), this cannot change the fact that the Bais Ephraim’s second diagram clearly says otherwise.

As to pirtzos esser being on a d’Oraysa level in a situation of three mechitzos, the entire teshuvah of the Bais Ephraim demonstrates otherwise. In essence, they are arguing that only in a situation of pasei bira’os to delimit a reshus harabbim would the Bais Ephraim allow pirtzos esser. However, in a situation of omed merubeh of three mechitzos, the Bais Ephraim maintains that pirtzos esser is on a d’Oraysa level and turzas hapesachim would not suffice. This is simply hevel. In fact, the Bais Ephraim argues that the reason pasei bira’os are suitable to demarcate a reshus harabbim is, because otherwise asu rabbim u’mevatlei mechitzta. According to these yungerleit, the Bais Ephraim’s argument should have been that pasei bira’os are needed because otherwise pirtzos esser would be on a d’Oraysa level (I realize that this is a very complicated inyan, and I hope to write about this at length in the future). It’s about time these yungerleit stop inventing new objections to our eruvin.  

Their argument: But we still want to be machmir according to every shitos yachidos.

Our argument: This is absurd. Are you machmir according to every shitos yachidos regarding any other issue? Why is it when the issue is eruvin we need to follow all shitos yachidos?

Of course, it is always possible to cite shitos yachidos to prohibit everything; however, ruling according to shitos yachidos is not the correct approach in halachah. [The Chasam Sofer writes (Yoreh De'ah 37) that if we were to collect all the shitos ha’ossrim we would not be able to eat bread or drink water.]

Even more so regarding hilchos eruvin, since all criteria have to be met for the area to be classified as a reshus harabbim, even if we were to employ a shitas yachid regarding reshus harabbim that would then disqualify the eruv based on only one criterion, the other conditions would not be met and an eruv would be permissible l’chatchilah. Consequently, to invalidate an eruv, one would have to selectively choose from disparate shitos yachidos ― which in many cases are contradictory ― and that is clearly an unjustifiable approach to halachah. The reality is that if someone learns hilchos eruvin with an open mind, he would realize that since it is almost impossible to meet all the criteria of a reshus harabbim, creating an eruv l’chatchilah is a real possibility.

Moreover, even if one would allege that according to some Achronim (and contrary to the overwhelming majority of poskim) the above fundaments would not allow an eruv, nevertheless, they would have to agree that each issue is still at the very minimum a safek. Consequentially, we are left with a sfek sfek sfeika, and we would therefore go l’kula even if the matter was a d’Oraysa. Lest one think that sfek sfeika is not utilized in these situations, one should peruse the Yeshuos Malko (O.C. siman 21); Avnei Nezer (O.C. 273:16, 279:2), and Levush Mordechai (4:4).

Therefore, there is no reason whatsoever not to include additional neighborhoods in the eruv. It is simply midas S’dom to punish the rest of the community. 

---

^[17] 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.

^[18] 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 note 14]. 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.

^[19] Besides the Bais Ephraim, 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) Keren Oreh, Eruvin 19b. 10) Nefesh Chayah, Tikkun Eruvin (Barnov), p. 30. 11) Tiferes Tzvi, siman 11. 12) Tikkun Eruvin Krakow, teshuvah 1. 13) Avnei Nezer, O.C. 265:13, 265:25, 276:1, 279:3. 14) Toras Chesed, see beginning of the sefer Emek Yehoshua Achron. 15) Melamed Leho’il, siman 68. 16) Aruch HaShulchan, O.C. 362:26. 17) Chavatzelet HaSharon, O.C. 19. 18) Chazon Ish, O.C. 107:5-8 [The Chazon Ish ultimately (see the end of 112:5 in the letters) cites Rabeinu Yonasan that me’d’Oraysa there is no shiur pirtzah in a situation of shem daled mechitzos, as well as omed merubeh]. 19) Achiezer, 4:8. 20) Igros Moshe, O.C. 2:89-90. The above poskim do not make any distinction between mechitzos consisting of omed merubeh al haparutz or of pasei bira’os.

^[20] I can rebut all arguments of these yungerleit, however, these are complicated sygyos and would require many pages to disprove them in a lucid fashion. While it is beyond the scope of this article, I will refute a few of their arguments here, albeit abstrusely. I believe the following will demonstrate to those who know the inyan that either they are menuvalim breshus haTorah, or that they simply are am haratzim.     

We contend that when the Bais Ephraim in siman 27 argues that the walls of Yerushalayim were not classified as pasei bira’os since they were breached in their corners, he was affirming as well that the walls were parutz merubeh. Hence, the Bais Ephraim was positing that the situation in Yerushalayim was that both, there was no pasei bira’os and no omed merubeh al haparutz. However, these yungerleit argue that the Bais Epharaim cites Tosfos in Bava Metzia who maintains that there were only a few breaches in the mechitzos in Yerushalayim, and nevertheless it was classified as a reshus harabbim. Accordingly, this demonstrates, they argue, that the Bais Epharaim maintains that in a situation of omed merubeh al haparutz with no pasei bira’os, pirtzos esser is me’d’Oraysa. Their arguments demonstrate that they made up their mind and are not interested in the emes. Clearly the Bais Ephraim is not following Tosfos’ submission regarding Yerushalayim’s reality. The Bais Ephraim suggested that in Yerushalayim they rectified the breaches with tzuras hapesachim (which was sufficient according to the Chachamim to allow carrying for kodashim but not for Shabbos), while Tosfos clearly is not proposing that they rectified Yerushalayim with tzuras hapesachim (because Tosfos, here is following Rav Yehudah). [The Bais Ephraim is countering the Zera Emes’s argument on the Mishnah Lemelech.] Therefore, since the Bais Ephriam is not following Tosfos here, he could have posited that there was no pasei bira’os and no omed merubeh al haparutz in Yerushalayim, and hence it was classified as a reshus harabbim.

An additional proof that these yungerleit cite to buttress their argument that the Bais Epharaim maintains in a situation of omed merubeh of three mechitzos, we say that pirtzos esser is on a d’Oraysa level, is from his citing on p. 53b (siman 27) of the Ritva. The Bais Ephraim proposes that when the Ritva suggests (Eruvin 22a) that Yerushalayim was omed merubeh al haparutz (prior to its walls being breached, and thus it was a reshus hayachid), that its corners where intact as well. Hence, they argue that the Bais Ephraim must be adding that the corners where intact because he maintains that only with pasei bira’os would he allow a pirtzos esser. What they are misunderstanding is that the Bais Ephraim is only proposing that the corners where intact with the addition of omed merubeh al haparutz in Yerushalayim, was because the Ritva states that the mechitzos in Yerushalayim comprised of more than just pasei bira’os, since it had the benefit of shem daled mechitzos. Hence, the Bais Ephraim is positing that according to the Ritva Yerushalayim had the added benefit of omed merubeh al haparutz with its closed corners to form shem daled mechitzos. However, the Bais Ephraim is not suggesting that even though an area [which includes a rabbim] is enclosed by mechitzos omed merubeh al haparutz, since the mechitzos are lacking pasei bira’os [closed corners], it is classified as a reshus harabbim.

Furthermore, this entire argument of the yungerleit demonstrates a lack of understanding of the Bais Ephraim’s proof that all pirtzos are me’d’rabbanan. It is not possible that the Ritva and the Bais Ephraim derive from pasei bira’os that pirtzos esser or a pirtzah more than thirteen and one-third amos is only d’rabbanan, since only a pirtzah of thirteen and one-third amos is permitted in a situation of pasei bira’os. Following this, there is no doubt that the Ritva understood there is no size pirtzah, which negates any form of a mechitzah me’d’Oraysa. When the Ritva made his declaration (Eruvin 17b) that there is no size pirtza that would negate pasei bira’os, he chose a situation of pasei bira’os, and not of three mechitzos, because he wanted to demonstrate that even though pasei bira’os are parutz merubeh al haomed they are not inferior to mechitzos (since the corners are closed). Now that we recognize that pasei bira’os are not inferior, they are not negated by any size pirtzah just as we would say with mechitzos, which are omed merubeh al haparutz.

All the other proofs they cite from the Bais Ephraim (including the Avnei Nezer) demonstrates either a lack of understanding of the inayn or a purposeful misconstruing of the subject.