There was a famous debate between the
Mishkenos Yaakov (
O.C. 120) and the
Bais Ephraim (
O.C. 26) regarding the tally of
Rishonim who
pasken whether or not
shishim ribo is a fundament of a
reshus harabbim. The
Mishkenos Yaakov sent a lengthy
teshuvah to the
Bais Ephraim arguing that the
Taz (345:6) and
Magen Avraham (345:7) are incorrect in their assumption that most
Rishonim maintain that
shishim ribo is a criterion of
reshus harabbim, since most
Rishonim uphold otherwise. The
Mishkenos Yaakov argued that there were only eight
Rishonim who maintained that
shishim ribo is a criterion of a
reshus harabbim, and that there were approximately 14 who upheld otherwise. The
Bais Ephraim replied that one cannot argue against the accepted
minhag established by the
Chachmei Tzarfas and
Ashkenaz and that he disagrees with the
Mishkenos Yaakov’s tally of
Rishonim. The
Bais Ephraim goes on to argue his case and proves that the
Taz and
Magen Avraham are correct in their belief that most
Rishonim maintain that
shishim ribo is a criterion of a
reshus harabbim.
The
Aruch HaShulchan (345:17) and the
Misnhnah Berurah (
Bi’ur Halachah 345) cite the
Mishkenos Yaakov’s count without mentioning that the
Bais Ephraim[5] disagreed with some
Rishonim on the list.
[6] The
Aruch HaShulchan adds that some of the
Rishonim whom the
Mishkenos Yaakov cited were not yet published in the times of the
Taz and
Magen Avraham, and therefore, they didn’t have the actual count of
Rishonim who
pasken against the criterion of
shishim ribo.
Therefore, I set out to count the actual number of
Gaonim and
Rishonim, including those published recently, who clearly
pasken shishim ribo is a criterion of a
reshus harabbim and those who explicitly maintain otherwise.
The following is a list of
Gaonim and
Rishonim who support
shishim ribo:
1. Bahag, (Berlin edition) p. 131.
2. Rav Amram Gaon,
Halachos Pesukos Min HaGaonim,
siman 70.
3. Sar Shalom Gaon,
Chemdah Genuzah,
siman 70 and
Sharei Teshuvah,
siman 209 (see also
Sefer Ha’itim,
ois 92).
4. The
Gaon mentioned in the
Sefer Ha’itim,
ois 206.
5. Rashi,
Eruvin 6a, 6b, 26a, 59a, 47a.
6. Tosfos,
Eruvin 6a, 26a, 59a, and
Shabbos 6b, 64b.
7. HaEshkol,
Hilchos Tzitzis ois 31.
8. HaManhig,
Hilchos Shabbos HaTzarichos ois 138.
9. Sefer HaTrumah,
ois 214, 239.
10. Semag,
Hilchos Shabbos p. 17.
11. Sefer Ha’itim,
ois 92, 206, 209.
12. Ra’avan,
Shabbos 349.
13. Piskei HaRid,
Eruvin 6a, 59a, and
Pesachim 69a.
14. Rokeach,
Hilchos Shabbos 175.
15. Ravyah,
Hilchos Eruvin 379, 391.
16. Riaz,
Eruvin Perek 1:5, 5:5.
17. HaAgudah,
Perek 5:56.
18. Rivevan,
Eruvin 6b, 59a.
19. HaAgur,
siman 537.
20. Piskei Rabeinu Mendel Kloizner (
Ramak),
Shabbos 6a.
21. Rabeinu Yerucham,
Toldot Adom V’Chavah 12:4, 12:17.
22. Or Zarua,
Hilchos Shabbos siman 16,
Eruvin 129.
23. Piskei Mahrach Or Zarua,
Eruvin Perek 2
ois 57.
24. Maharam MeRotenberg,
siman 31,
Eruvin ois 9, 10.
25. Smak,
Mitzvos Hatluyos B’Shabbos p. 296, 299.
26. Tsedah LaDerech,
Perek 42, 46.
27. Machzor Vitri,
Perek B'mah Isha,
ois 31, 32.
28. Haitur,
Hilchos Tzitzis,
Shaar 3
Shaar Adom Chelek 1.
29. Rosh,
Beitzah 24a,
Eruvin 6a (see also
Kitzur Piskei HaRosh,
Perek 1:8).
30. Hagahos Ashri,
Eruvin 6b, 20b.
31. Sefer HaNeyar,
Hilchos Eruvin p. 51.
32. Hagahos Maimonios,
Eruvin Perek 5:2, 5:4.
33. Mordechai,
Shabbos 64b, 100a.
34. Orchos Chaim,
Hilchos Shabbos ois 284.
35. Tur,
O.C. 345, 364, 392.
The following is a list of
Rishonim who oppose the criterion of
shishim ribo:
[7]
1. Rambam,
Hilchos Shabbos 14:1.
[8] 2. Ramban,
Shabbos, 57a, and
Eruvin 59a.
[9] 3. Rashba,
Teshuvos HaRashba siman 722.
[10] 4. Ritva, 59a.
[11] 5. Magid Mishnah,
Shabbos 14:1.
[12] 6. Ran,
Shabbos Perek 6,
Chidushim Eruvin 6a.
7. Meiri,
Bais HaBechirah Shabbos 57a, and
Eruvin 6b, and
Chidushim Eruvin 6b.
8. Hashlama,
Eruvin 6a.
9. Sefer HaMeoros,
Eruvin 6a.
10. Rivash,
siman 405.
11. Hagahos Mordechai,
Shabbos Perek 6.
[13]
Therefore, since the overwhelming majority of
Rishonim and several
Gaonim maintain that
shishim ribo is a criterion of
reshus harabbim, there is no doubt that the
Mishkenos Yaakov and the
Misnhnah Berurah would agree that
shishim ribo is an accepted fundament that all can rely on.
_____________________________
[1] וכבר כתב התוס' (חולין מד ע"א ד"ה כדי תפיסת היד) שדברי הבה"ג הם דברי קבלה ויש לסמוך עליהם, וכן כתב הרא"ש בשם הראב"ד (ברכות פ"ד אות יד), ובש"ך (יו"ד סי' כה ס"ק ב) וז"ל וכמה מצינו שהתוס' וכל הפוסקים חששו לדברי בה"ג אפילו היכא דלא מסתברא טעמיה, אפילו להקל, מפני שכל דבריו דברי קבלה".
[2] Some refer to this MS as the
Behag Aspamia [Spain] which is mentioned in the
Rishonim (
MiKadmoniyos HaYehudim, p. 399-402). This, however, is probably incorrect as has been detailed by Rav Ezriel Hildesheimer (
Behag,
Yerushalayim, vol. 1 p. 22-24).
[3] Rav Kasher cites a fifth
Gaon mentioned in the
Eshkol in
Hilchos Eruvin (
ois 64). However, this passage is only in Rav Auerbach’s edition of the
Eshkol which has been proven to be a forgery so I omitted it.
In the anti-
eruv kuntres Kerem Beyavnah (number 5) Rav Chaim Dov-Ber Gulevsky wrote a rambling screed against
shitas Rashi. One of his objectives was to negate the fact that even prior to
Rashi there were
Gaonim who upheld that
shishim ribo is a criterion of a
reshus harabbim. Rav Gulevsky’s most absurd claim (pp. 265-266) is that since the Berlin edition of the
Behag which contains the passage regarding
shishim ribo was published by
Maskilim (
Chevrah Meketzei Nerdamim), we cannot rely on the wording in this edition of the
Behag. The absolute futility of this argument is indicative as to how far the anti-
eruv group would go to negate city
eruvin (I guess that his argument is that even though Rav Esriel Hildesheimer was the editor of this edition, nevertheless, the publishers were not trustworthy). First of all, the
Sefer Ha’itim (ois 208) quotes this passage from the
Behag and it is very similar to the Berlin edition. Second of all, I have included a facsimile of the manuscript containing this passage that the Berlin edition was based on, and clearly there was no redacting whatsoever. The only one who can be accused of redacting would be the author of the article.
[4] There is much uncertainty regarding the author of this quote רב יהודה ריש כלא דמנהר פקוד מבוצרה. Shmuel Poznanski writes (
JQR, N.S. vol. 3 number 3, p. 403) that this is not the same רב יהודאי גאון that the
Behag/
Halachos Pesukos was based on (see
Nachman Danzig,
Mavo LeSefer Halachos Pesukos,
Perek 5, n59, n62).
[5] The
poskim have already called attention to the fact that the
Mishnah Berurah had obviously not seen the
Bais Ephraim (
Toldos Shmuel, 3:81:7, 3:86:8;
Bais Av, 2:5:2;
Divrei Yatziv, 2:173:1, and
Even Yisroel, 8:36). We can add that this is evident from the
Mishnah Berurah himself since he states that he did not possess the
sefer Bais Ephraim (
Bi’ur Halachah, 208:9, s.v.
Eino M’Vorech).
[6] However, the
Misnhnah Berurah obviously didn’t agree with three of the
Rishonim on the
Mishkenos Yaakov’s list – the
Rif,
Riaz and
Ra’avin – since he omitted them from his own list.
[7] The
Bais Ephraim and the
Mishkenos Yaakov had a major debate regarding some
Rishonim, and in my opinion, the
Bais Ephraim is correct (see
Minchah Areivah,
siman 7, for a full treatment of this subject). Therefore, I am not listing those
Rishonim whose opinion is a matter of disagreement. [For example, since
Rabeinu Tam did not state that he disagrees with
shitas Rashi only that he had a question regarding the criterion it is not proof that he opposed it. Moreover, there is evidence from other statements of
Rabeinu Tam that he supported the criterion. However, if a
Rishon states that
shitas Rashi is not a central criterion, I added him to the list of those opposing the fundament of
shishim ribo even if I have an argument that would demonstrate that the
Rishon supported the criterion.] This is the reason why I did not count some of the
Rishonim listed in the
Bi’ur Halachah, 345:7, which just follows the
Mishkenos Yaakov. However, I will add to the list the
Rishonim who oppose the criterion but were only published at a later date than the
Bi’ur Halachah.
I should mention that while
Rabeinu Peretz in his
chidushim (
Eruvin 6a) states that we do not follow the criterion of
shishim ribo in
Rabeinu Peretz’s hagahos on the
Smak (where he always articulates when he disagrees), he does not argue when the
Smak supports the criterion of
shishim ribo. Additionally, there is a passage cited in the
Hagahos Ashri (
Eruvin Perek 1,
siman 8) from the
Hagahos Smak that supports
shishim ribo. Therefore, it is possible that
Rabeinu Peretz does not disagree with shitas
Rashi in his
chidushim, but only that he has difficulties with it (just like the
Bais Ephraim argues regarding
Rabeinu Tam). Consequentially, I do not include
Rabeinu Peretz as opposing the criterion of
shishim ribo.
[8] One of the
klalim in the
Rambam is that he only set forth issues in the
Yad that were clearly delineated in
Shas (see
Bais Yosef,
Y.D. 196:2;
Mishneh L’Melech,
Ma’aseh haKorbanos, 18;
Prei Chadash,
Y.D. 83:7;
Bach,
Y.D. 48:8; see also
Sedei Chemed,
Klalei HaPoskim, 3:5, 5:23). As some of the
Rishonim who argue against the criterion of
shishim ribo state, there is no mention of the fundament in
Shas (see
Shishim Ribo – A Mystery Solved). I would therefore suggest that this would be the underlying rationale why the
Rambam did not mention the criterion of
shishim ribo and that its omission is not proof that he did not subscribe to this fundament of a
reshus harabbim. Nevertheless, the fact is there are
Rishonim who maintain that the
Rambam opposed the criterion of
shishim ribo because of the fact that he failed to mention it (
Ritva,
Eruvin 59a,
Magid Mishnah,
Shabbos 14:1 and
Rivash,
siman 405). However, I should add that the
Maharashdam (
O.C. siman 4),
Divrei Yirmiyahu (
Hilchos Shabbos,
Perek 14) and the
Chasam Sofer (
Chidushim Shabbos, 87a) do presume that the
Rambam accepts
shishim ribo as a criterion.
[9] The
Bais Ephraim notes that the
Ramban in
Eruvin (59a) admits that the criterion of
shishim ribo is mentioned in the
Behag, and hence the
Ramban declares that it is “
taluy b’elanos gedolos.” Consequently, when the
Ramban finds difficulty with the criterion of
shishim ribo, it only proves that he would rather not rely on it. However, he agrees it has deep seated support because of the
Behag, and that is why the world relies on the criterion.
[10] I would argue that there is no proof from the
Rashba’s teshuvah (
siman 722) that he opposed the criterion of
shishim ribo (since even if one supported the criterion of
shishim ribo there are scenarios where a
sratya and a
platya are classified as a
reshus harabbim even without
shishim ribo traversing therein). However, there are
Rishonim who argue that the
Rashba did not support the criterion (
Magid Mishnah,
Shabbos 14:1 and
Rivash,
siman 405). I should mention, though, that the
Taz (345:6) questioned what the
Rashba actually maintained.
[11] It is important to note that the
Ritva in
Shabbos 6a, and
Eruvin 6a, 22a, refers to and expounds on
shitas Rashi without arguing at all. Only in
Eruvin 59a does he express that most
Gaonim do not accept the criterion of
shishim ribo.
Professor Yisrael M. Ta-Shma (
Halachah, Minhag, U’Metzius BeAshkenaz: 1000-1350, p. 144) argues that the fact that the
Ritva writes that the majority of
Gaonim do not support
shishim ribo is proof that most
Gaonim disagreed with the
Behag. However, besides for the probability that when the
Ritva mentions
Gaonim he is referring to the
Ramban and in this case possibly the
Rashbah (see Mosad Rav Kook edition of the
Ritva,
Eruvin 59a, n286; 67b, n411 and
Torah Shelemah, vol. 15, p. 174), I believe that his assumption is totally incorrect. The fact is that we do not know of even one
Gaon who stated that he was opposed to the criterion of
shishim ribo. This follows why the
Magid Mishnah (
Shabbos 14:1) states that there are some
Gaonim and
Achronim (he is referring to the
Achronim of his era which we classify today as
Rishonim) who uphold the criterion of
shishim ribo but then only cites
Rishonim and does not mention any
Gaonim who oppose the criterion. This leads me to believe that the
Magid Mishnah and the
Ritva did not know of any
Gaonim who opposed the criterion of
shishim ribo. [What we do know and even Professor Ta-Shma admitted to was that there are, besides for the
Behag, an additional three
Gaonim who subscribe to the criterion of
shishim ribo (Rav Amram, Sar Shalom, and the unnamed
Gaon mentioned in the
Sefer Ha’itim).] Moreover, it is doubtful that the
Ritva was referring to the period that we refer to today as
Gaonim since this demarcation was established at a later date (
Torah Shelemah, vol. 15, p. 174). The term
Gaonim at that time included the period that we now refer to as [the early]
Rishonim. I believe that Professor Ta-Shma got this all wrong.
Additionally, Professor Ta-Shma is probably incorrect that since all the
Gaonim who upheld the fundament of
shishim ribo were from Sura, the
Gaonim from Pumbedisa did not accept the criterion. In fact, [Mar] Rav Paltoi Gaon was from Pumbedisa, and he states (
Halachos Pesukos Min HaGaonim,
siman 144) that there is no
reshus harabbim today at all. [While one can argue that Rav Paltoi Gaon meant that there is no
reshus harabbim today because the streets were not sixteen
amos wide, it is improbable that this is what he was referring to. Even though the
Kol Bo (
siman 31) states that there is no
reshus harabbim today because the streets were not sixteen
amos wide, and the
Ritva (
Eruvin 59a) also declares that there are no streets in his country which are sixteen
amos wide, the
Ramban (
Shabbos 57a), however clearly states that there were streets that were sixteen
amos wide in his times. Moreover, from the
Ritva’s words we can derive that this was only a local phenomenon. Additionally, the areas where the overwhelming majority of
Gaonim and
Rishonim resided clearly contained roads that were wider than sixteen
amos since they had to rely on the criterion of
shishim ribo. Consequentially, when a
Gaon or
Rishon states that today there is no
reshus harabbim, we would have to assume he is not referring to the streets being less than sixteen
amos wide but only that they do not meet the criterion of
shishim ribo.]
[12] I should mention that the
Taz (345:6) questioned what the
Magid Mishnah actually maintained. However, I think that from the words of the
Magid Mishnah it is clear that he does not support the criterion of
shishim ribo at all.
[13] There is some uncertainty as to who is the author of this passage which was signed simply as Eliezer. The
Bais Ephraim proves that it is not Rav Eliezer of Metz. It probably was Rav Eliezer of Lundresh.
