Part 3: Chukei Chaim: Eruvin Rebuttal

 

Chukei Chaim: Issue 316

Chukei Chaim: Criteria of a Reshus Horabim

Setting Up an Eiruv

1. We wrote previously (Issue 315, par. 33) that an eiruv cannot be made in a reshus horabim. Part of setting up an eiruv is making halachic walls around a city’s area to turn it into a reshus hayachid. Then, when an eiruv with bread belonging to everyone is made, one may carry throughout the entire area.

Rebuttal: Actually, according to many poskim, once tzuras hapesachim encompass an area classified as a reshus harabbim, it is reclassified as a reshus hayachid me’d’Oraysa, and only me’d’rabbanan is there a requirement of delasos. As the issue is no longer a matter of a d’Oraysa, we can be lenient and apply any kula to mitigate the need for delasos me’d’rabbanan. It is unfortunate that Rav Bleier omitted this important point (besides mentioning it in a later newsletter). However, most of those who seek stringencies when the matter is eruvin ignore this fact.   

Chukei Chaim: 2. The Rishonim and poskim discuss extensively what is called a reshus horabim d’oraisa; which type of reshus horabim can be turned into a reshus hayachid and which cannot; and what type of partitions can be used to turn it into a reshus hayachid. We will now cite some basic principles on the topic.

Rebuttal: As Rav Bleier’s essay is a synopsis, it is questionable why he would cite the Rishonim on the matter, if not to sow doubt in people’s minds. On issues that have been decided, we follow the Shulchan Aruch and the poskim, and not the Rishonim.

Chukei Chaim: 16 Amos

3. The issur of carrying is derived from Klal Yisroel’s encampment in the Midbar (Issue 315, par. 22). The reshus horabim between the camps, where the wagons passed through, was 16 amos wide. Thus, a street less than 16 amos wide is not a reshus horabim d’oraisa; it has the status of a karmelis (שו''ע סי' שמ''ה ס''ז ומ''ב סקח''י).

4. 16 amos. 16 amos is either 7.68 meters [about 25 ft., 2 in.] (לפי הגר"ח נאה) or 9.21 meters [about 30 ft., 3 in.] (לפי החזו"א). Here, we are machmir like Rav Chaim Naeh.

5. Includes the sidewalk. The 16 amos are measured from the wall of a building on one side of the street to the wall of a building across the street; the minimum width of 16 amos includes the sidewalk (שו''ת אגרות משה או''ח ח''ה סי' כ''ח ענף ג' אות ח). All regular city streets today are wider than 16 amos. Just to illustrate this, the narrow section of Rechov Meah Shearim in Yerushalayim is slightly under 16 amos from wall to wall. Any street wider than this is already more than 16 amos wide and has the status of a reshus horabim d’oraisa according to many opinions, as will be explained.

Rebuttal: It should be noted that as a snif l’hakel there are poskim who maintain that our streets themselves, even those that are very wide, would not meet the criterion of a reshus harabbim. There is a requirement that the entire 16 amos must be suitable for people. Since the streets are designated for cars, the streets and the sidewalks on either side of the street are not considered connected to form one contiguous 16 amos (Tikvas Zechariah, p. 40, and Divrei Yatziv, 2:172:13; see also Oim Ani Chomah, siman 63).  An additional snif l’hakel is that the space that parked cars occupy is not included in the width of the criterion of sixteen amos (Nesivos Shabbos, 3:1:2, and others).

Chukei Chaim: 600,000 People

Must There Be 600,000 People?

6. There is a machlokes among the leading Rishonim and Acharonim if, in addition to the criterion of 16 amos, an area must have 600,000 people to be called a reshus horabim. This has major ramifications for setting up eiruvim on today’s streets: if they are reshuyos horabim d’oraisa, they must be set up accordingly, e.g., with doors (below, 42) or at least three partitions (30), depending on the opinion (see below). If an area can only be a reshus horabim d’oraisa with 600,000 people, many of our streets are not reshuyos horabim d’oraisa, and it is easier to set them up with the criteria for an eiruv.

Rebuttal: Besides the fact that Rav Bleier omitted a criterion of a reshus harabbim, mefulash u’mechuvanim, he made it sound as if the criterion of shishim ribo is questionable. In fact, there is no reason whatsoever not to rely on shishim ribo, as the Bais Ephraim writes that relying on shishim ribo is not a matter of following a majority but rather that the criterion was accepted as our minhag in Tzorfas and Ashkenaz. However, since the Mishkenos Yaakov argued that the Magen Avraham and Taz  were mistaken in their opinion that the majority of Rishonim maintain that shishim ribo is a fundament of a reshus harabbim, the Bais Ephraim presented evidence that the majority of Rishonim accepted shishim ribo.

In fact, we can add to the Bais Ephraim’s tally of Rishonim, since we know today of many more Rishonim who accepted the criterion of shishim ribo [more than seventy accept the criterion while only thirteen clearly do not]. Hence, we accept the fundament either because this is the minhag or because the overwhelming majority of Rishonim [and all of those from Tzorfas and Ashkenaz, and at least four Geonim] upheld the criterion l’chatchilah.   

Chukei Chaim: 7. Many Rishonim hold that we only learn from the encampment in the Midbar that a reshus horabim must have 16 amos, not that it needs 600,000 people. Thus, any street that is 16 amos wide has the status of a reshus horabim d’oraisa even if less than 600,000 people pass through (רמב''ם, ר''ת, רמב''ן, רשב''א, ריטב''א בשם רוב ראשונים, מגיד משנה, ר''ן, הג' מרדכי, רשב''ם, יראים, ריב''ש, מאירי הובאו בבאיה''ל ד''ה שאין).

8. Many other Rishonim hold that without 600,000 people passing through, an area is not a reshus horabim, even if it is 16 amos wide, as this is also learned from the encampment in the Midbar, where there were 600,000 people (בשם הבה''ג, רש''י, סמ''ג, סמ''ק, ספה''ת, רוקח, רבינו מאיר, תוס', רא''ש, או''ז טור, רבינו ירוחם הובאו בביאה''ל שם). They only take into account the number of people that is explicitly mentioned in the posuk (מ''ב סקכ''ג).

Rebuttal: The list of Rishonim that Rav Bleier is citing is from the Mishnah Berurah. However, as mentioned above, this list has been superseded.  

Chukei Chaim: 9. Most streets in the world today are wider than 16 amos but do not have 600,000 people, other than major streets in big cities. Thus, the above machlokes is relevant to most streets in the world. The machmir opinion (7) is that they are reshuyos horabim d’oraisa, while the meikel opinion (8) is that they have the status of a karmelis. The practical difference is what type of partition may be used to turn them into a reshus hayachid, as will be explained.

Rebuttal: Yet again Rav Bleier omitted the criterion of mefulash u’mechuvanim. Additionally, who says that the machmir opinion would not agree that with a tzuras hapesach the area is classified as a reshus hayachid me’d’Oryasa, and that only me’d’rabbanan would we require delasos?         

Chukei Chaim: 10. Often, the above machlokes is not explicitly mentioned by the poskim, but is expressed through various phrases, e.g., “We do not have a true reshus horabim,” or “We do not have a reshus horabim d’oraisa,” or “All reshuyos are like a karmelis.” The intent of all these statements is that the criterion of 600,000 people is also required for an area to be a reshus horabim d’oraisa, and since most streets do not have 600,000 people, they have the status of a karmelis.

Rebuttal: While it is true that when most of the Rishonim and Achronim declare that currently we do not have a reshus harabbim they are referring to the criterion of shishim ribo, some of the poskim are denoting that there is no reshus harabbim because of another criterion. The Ravyah (siman 391) and Ritva (Shabbos 64b) both state that we do not currently have a reshus harabbim because the streets do not fulfil the criterion of mefulash u’mechuvanim. Hence, Rav Bleier’s omission of the criterion of mefulash u’mechuvanim is inexcusable.

Chukei Chaim: Mechaber’s Opinion

11. Machmir. The Mechaber first writes without quoting any name [“סתם”] that even without 600,000 people, any area that is 16 amos wide is a reshus horabim d’oraisa. Then he cites a “יש אומרים” that is meikel and requires 600,000 people (שו''ע סי' שמ''ה ס''ז). Following the rule in the Mechaber’s words that when there is a “סתם” followed by a “יש,” the halacha follows the סתם (הרמ''ע מפאנו סי' צז, כנה"ג או''ח שי''ח בהג' הטור, ש''ך יו''ד פד סקי''ב ועוד), many hold that the Mechaber agrees to the machmir opinion (כנה"ג, ברכי יוסף סק''ב, תוספת שבת, א''ר, מאמר מרדכי, נהר שלום, הובאו בשעה"צ סקכ''ב, שו''ת תורה לשמה סי' קי''ד, מ''ב סקכ''ג).

12. Meikel. However, some poskim infer from multiple statements of the Mechaber elsewhere that he is meikel like the יש אומרים (מג''א סק''ז, ט''ז סק''ו, מהריט''ץ, שו''ת מים רבים).

Rebuttal: The following is a list of some additional poskim who maintain that notwithstanding the Shulchan Aruch referring to the criterion of shishim ribo as yesh omrim, nevertheless the Bais Yoseph accepts shishim ribo as a fundament of a reshus harabbim: Yad Aharon (345:2); Pachad Yitzchak (Erech Reshus Harabbim); Erech HaShulchan (345:2); Pri Megadim (Aishel Avraham, 345:7, Mishbetzes Zahav, 345:6); Tosfos Chadashim (Shabbos, Perek 11:1); Zera Emes (3:41); Sedeh Haaretz (Chelek 3, p. 29), and Maharsha Alfandari (O.C., siman 9).

Chukei Chaim: Rama’s Opinion

13. The Rama writes, “All of our domains are karmelis” (רמ''א סי' שמ''ו ס''ג), implying he sides with the meikel opinion (based on 10 above).

Rebuttal: Moreover, the Rema indicated in siman 357:11 that we do not have a reshus harabbim. Hence, there is no doubt that the Rema accepted shishim ribo as a fundament of a reshus harabbim. Consequently, Bnei Ashkenaz, who follow the Rema, certainly accept the criterion as a fundament of a reshus harabbim, l’chatchilah. 

Chukei Chaim: In Practice

14. Meikel. Many Acharonim write that we do not have a true reshus horabim today [outside of big cities], and that there is already a widespread minhag to be meikel (מג"א, ט''ז שם, חיי אדם כלל מ''ט סי''ג, שו''ע הרב סי' י''א, סי' ש''נ קו''א סק''א, שו''ת חכם צבי סי' ה', שו''ת בית אפרים או''ח  סי' כ''ו באריכות, ישועות יעקב סק''ב, שו''ת שבות יעקב ח''ג סוף סי' כ''ח, שו''ת מהרש''ם ח''א סי' קס''ב).

15. Machmir. In contrast, the Mechaber implies in some places that he is machmir, and some Acharonim also side with the machmir opinion (שו''ת משכנות יעקב סי' קכ''א).

Rebuttal: As mentioned above, there is no doubt that we accept the criterion of shishim ribo, l’chatchilah, and that the criterion is conditional on the street. Hence, even large cities do not contain a reshus harabbim of shishim ribo.

Chukei Chaim: 16. “בעל נפש יחמיר.” The Mishna Berura concludes that we do not have the power to object to those who rely on the meikel opinion, but any scrupulous person [בעל נפש] should be personally machmir (מ''ב סי' שמ''ה סקכ''ג). Certainly anyone with yiras Shomayim should be personally machmir, as nowadays there are also reshuyos horabim d’oraisa (ביאה''ל סוד''ה שאין). This is how mori v'rabi the Gaavad of Yerushalayim would answer people who asked him if it was mutar to carry within the high-level Eidah Chareidis eiruv in Yerushalayim: even after the eiruv was set up properly according to halacha, we always have the rule that a scrupulous person should be machmir and that’s what he did himself.

Rebuttal: The Mishkenos Yaakov’s/Mishnah Berurah’s list of Rishonim has been superseded, and the Rema accepts the criterion of shishim ribo as well. Hence, there is no doubt that even a Baal Nefesh can rely on the criterion of shishim ribo l’chatchilah. It is hard to believe that the Gaavad would say that one cannot rely on the criterion of shishim ribo, l’chatchilah. Moreover, the fact is that the eruv in Yerushalyim does not only rely on the criterion of shishim ribo, it relies on the criterion of mefulash u’mechuvanim, and the Chazon Ish’s shita as well (Orach Dovid, ois 188, Kinyan Torah, 4:40, and Even Yisroel, 8:36). The argument that a Baal Nefesh should be stringent is only regarding the criterion of shishim ribo, and not mefulash or the Chazon Ish’s shita. Hence it is difficult to believe Rav Bleier’s statement that the Gaavad declared that one should be stringent in Yerushalayim. Statements made in the name of the poskim have no credibility, especially when the issue is eruvin, if they are not published in their own teshuvos (see later what Rav Yisroel Yaakov Fisher had to say to those who sought chumros regarding eruvin in Yerushalayim).