Chukei Chaim:
עומד מרובה על הפרוץ
18. The above machlokes was stated
regarding פסי ביראות,
which are called “four walls” (above, 12). When it comes to a low-level wall,
e.g., a lechi or kora (8), even the Chachamim agree that many people coming
through nullify it. The poskim discuss whether this machlokes also applies to
other halachic walls or only to פסי ביראות.
[The Acharonim discuss this at great length and there are many details
involved, but we will only discuss the main parts here.]
19. Four walls. The poskim explain that even if there are four walls
with עומד מרובה על הפרוץ
and the gaps are less than ten amos wide [even though there are gaps at the
corners, so it is not like פסי ביראות],
if many people walk through the gaps, the above machlokes Tannoim applies. R’
Yehuda is machmir, that the people coming through nullify the walls, and the
Chachamim are meikel d’oraisa, that the people coming through do not nullify
the walls (ריטב''א עירובין דף כ''ב ע''א ד''ה דרבנן, תוס' שם ע''ב ד''ה ת''ש, משכנות יעקב).
20. Some say עומד מרובה על הפרוץ is even better than פסי ביראות. With פסי ביראות,
we must view it as if the walls extend to each other and close off the area –
only then do the Tannoim argue. With מרובה על הפרוץ עומד,
though, we do not need to view it as if it was closed since the majority of the
perimeter is full wall. Accordingly, people coming through do not nullify the
wall even according to R’ Yehuda (רמב''ן מלחמות כ''ב. ד''ה ר' יהודה הובא בס' גאון יעקב עירובין כ''ב: ד''ה פליגי).
Rebuttal:
In fact, almost
all the Rishonim, and not just the Ramban, who uphold that we
follow Rav Yehudah, maintain that if we have mechitzos that are omed
merubeh al ha’parutz, as opposed to shem daled mechitzos, even Rav
Yehudah would agree lo asu rabbim (Raved, Rabeinu Yonasan,
Rashba (who quotes the Raved), Ran, and Meiri (Eruvin
20, 22a).
Chukei Chaim: 21. Others argue and are machmir.
They say the Chachamim were only meikel with פסי ביראות, which are called “four walls.” With עומד מרובה על הפרוץ, though, if there is a gap in the wall at
the corners and it does not have its own status of פסי ביראות, the Chachamim agree that many people
coming through nullify the wall בית אפרים סי' כ''ז עמ' רכ''ד ד''ה ועכ''פ, שו''ת מהריט''ץ סי' רנ''א).
Rebuttal:
It is important
to explicate that Rav Bleier is stating as fact something that some yungeleit
derive from the Bais Ephraim. In reality, this is absolute shtusim.
The Bais Ephraim does not make this distinction at all. On the contrary,
the Bais Ephraim’s second diagram (which he expounds on at the end of
the teshuvah) is clearly describing a situation of three mechitzos
and not pasei bira’os. Hence, according to the Bais Ephraim there
is no difference between pasei bira’os and three mechitzos omed
merubeh al haparutz. The Maharit Tzahalon, as described by the Mayim Rabim,
is referring to a situation where the corners of the mechitzos are not
facing each other, as they were totally open from both ends. All would agree
that mechitzos such as these are insufficient. However, mechitzos
omed merubeh al ha’parutz, which are not joined at the corners, but face
each other, would definitely be halachically sufficient.
Chukei Chaim: 22. Three walls. Some poskim hold that even when there are three walls
with עומד מרובה על הפרוץ,
the above machlokes applies, because three walls with עומד מרובה are akin to “שם ד' מחיצות.”
According to the Chachamim, people crossing through do not contradict the
classification of walls, just like they do not for פסי ביראות. The reason four “walls” are needed for פסי ביראות is because only with four walls is there a
“שם ד'מחיצות.” However, עומד מרובה על הפרוץ, which are full walls, are called walls
even if there are only three of them (חזו''א סי' ק''ז סק''ה).
Rebuttal:
It is important
to note that the Bais Ephraim would agree as well that three walls
omed merubeh would suffice. This is contrary to what Rav Bleier and some yungeleit
would have us believe.
Chukei Chaim: 23. What emerges is that if an eiruv
is primarily based solely on a heter of walls which are עומד מרובה על הפרוץ, some opinions would say the walls are
posul since many people cross through them on a public path.
Rebuttal:
Even according to
Rav Bleier’s erroneous understanding of the Bais Ephraim and Maharit
Tzahalon, they are accordingly only two poskim who do not uphold
that three mechitzos are sufficient. However, the overwhelming majority
of poskim who pasken like the Chachamim maintain
that three mechitzos omed merubeh are sufficient to encompass a reshus
harabbim. Hence, there is no reason not to follow the majority in this
situation. Even more so, Rav Bleier is incorrect regarding the Bais Ephraim
and Maharit Tzahalon; both of them maintain that three mechitzos omed
merubeh are halachically indistinguishable from pasei bira’os.
Chukei Chaim: 31. Modern-day reshus horabim. Previously, we elaborated on the reshus
horabim status when there are not 600,000 people in a city (Issue 316, par. 6).
There is a machlokes among the poskim whether an area 16 amos wide is
considered a reshus horabim d’oraisa, or whether there must also be 600,000
people. Based on this, the poskim offer a justification for people who rely on
an eiruv made primarily with צורות הפתח
in a reshus horabim only if there is an uncertainty whether it is truly a
reshus horabim: namely, it could be we pasken like the Chachamim, and according
to some poskim (above, 26), even with צורות הפתח
we say people coming through do not nullify the walls, and it is kosher
mid’oraisa in accordance with the Rambam’s opinion. It follows that doors are
only needed mid’rabanan. If so, when we consider the additional factor that
perhaps an area is not a reshus horabim d’oraisa without 600,000 people, it is
only a safeik d’rabanan. Thus, carrying would be mutar with צורות הפתח alone and no doors. Nevertheless, a
scrupulous person should be machmir not to rely on this (ביאה''ל שם).
Rebuttal:
The Rambam’s
opinion needs to be expounded on. There is a machlokes haposkim whether
or not the Shulchan Aruch’s requirement of delasos for a reshus
harabbim is on a d’Oraysa level or only a requirement me’d’rabbanan. However, many poskim maintain that
only me’d’rabbanan is there a requirement of delasos; me’d’Oraysa,
a tzuras hapesach would suffice to reclassify a reshus harabbim
as a reshus hayachid (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
zt”l, Otzar Reb Chaim Berlin, Shu"t Nishmas Chaim, p.
1; Tzemach Tzedek, Eruvin the end of Perek 5; Aishel
Avraham, siman 34); Yeshuos Malko, O.C. 21; Avnei
Nezer, O.C. 273:16, 279:2, 289:2; Aruch HaShulchan, O.C.
364:1; Levush Mordechai, 4:4; Bais Av, 2:9:3, and Kaf HaChaim,
O.C. 364:12). Accordingly, since the requirement of delasos is me’d’rabbanan,
we can be lenient [safek d’rabbanan l’kula] and apply any additional heter
to remove the obligation of delasos.
As can be
discerned from this list, it’s not just “some poskim,’ who maintain that
a tzuras hapesach suffices on d’Oraysa level. It is many of the
Gedolei Haposkim who uphold as such. Hence, while the Mishnah Berurah states
that one should be machmir, in fact it’s not just one or two poskim
who uphold the Rambam’s shita. Therefore, there is no reason to argue
that one should be stringent. [It is important to note that the Mishnah
Berurah only states that one should be machmir regarding a tzuras
hapesach, however, there is no doubt that he would allow one to rely on mechitzos
l’chatchilah (see above).]
Even more so,
while the Bais Ephraim (in much of his teshuvah) and the Chazon
Ish maintain that a tzuras hapesach would not suffice even 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).
Hence, a tzuras hapesach would be sufficient according to the majority
of poskim, and there is no reason for one to be stringent.
Chukei Chaim: 32. 600,000 people. But all this is only true in a city without 600,000
people. A big city which has 600,000 people gets into the machlokes among the
poskim of how and where to count the 600,000 people (Issue 316, par. 17): is it
specifically on that street, or is it also in the areas of the city that are
used as a primary part of the city? According to most opinions, it is likely
that there are reshuyos horabim d’oraisa, in which case צורות הפתח alone cannot be relied on – even if we
want to rely on the Chachamim that people coming through do not nullify a wall,
mid’rabanan doors are necessary, as the Shulchan Aruch rules. If so, צורות הפתח alone cannot be relied on to make eiruvim
in big cities.
33. Indeed, many contemporary poskim
and gedolim hold that one should not rely on or make an eiruv based on צורות הפתח alone in big cities with more than 600,000
residents, unless additional solutions can be found to add factors that would
allow being meikel.
Rebuttal:
The above is
simply incorrect. Most poskim maintain that the criterion of shishim
ribo is conditional on the street, and that the shishim ribo would
need to actually traverse the street for it to be classified as a reshus
harabbim. The population of the city does not play a role in the matter.
Furthermore, Rav Bleier omitted the criterion of mefulash u’mechuvanim.
Therefore, even in cities containing a population of shishim ribo, given
that there is more than one reason why the city would not be classified as a
reshus harabbim, there would be no need for delasos.
Chukei Chaim: 34. High-level eiruv. Some are careful that an eiruv should be based on
three full walls, as is the case in many neighborhood eiruvim (Issue 316, par.
34). When this is done, people do not walk through the walls; they only walk
into the area between the walls via the open side. The concept of “אתו רבים ומבטלי מחיצתא” was not stated in this case (ספר הנפלא 'הליכות עירובין' פ''ג אות ל' העומד לצאת לאור).
35. Another way to make a high-level
eiruv is with real doors. This upgrades an eiruv into a high-level eiruv, as
will be explained later in the series, בעזהשי"ת.
Rebuttal:
There is no such
thing as a high-level eruv. There is no reshus harabbim today,
either because we accept the criterion of shishim ribo l’chatchilah, and
that it is conditional on the rabbim traversing the street. If one does
not accept this criterion, then we can rely on that the streets are not mefulash
u’mechuvanim. If one does not want to accept this criterion then we can
rely on the majority of poskim who maintain that once a tzuras hapesach is
erected then even me’d’rabbanan there is no need for delasos,
because then we can definitely rely on the criterion of shishim ribo.
Moreover, we can rely on the Chazon Ish’s shita, and even more so, many
areas are encompassed by at least three mechitzos, omed merubeh.
To disagree with all of the above and argue that one should still be stringent
is simply beyond normative halachah.
