גריי מאטר א, הלכות שבת, הלכות הקמת עירוב א׳Gray Matter I, Laws of Shabbat, Laws of Creating an Eruv 1
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1 Defining the Four Domains
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2The construction of eruvin has generated much controversy in many Jewish communities. Our extended discussion seeks to shed light on the various opinions and practices regarding eruvin and thereby encourage mutual respect for the different practices regarding the use of eruvin today.
ג׳
3Disagreements about creating an eruv center around three primary issues: whether an area is suitable for creating an eruv, how to create the eruv, and how to rent the enclosed area in a democratic society. We will begin by discussing which areas are appropriate for creating eruvin.
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4The Four Domains
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5The Gemara (Shabbat 6a) delineates four domains (reshuyot) for the laws of Shabbat. A reshut hayachid (private domain) is surrounded by walls of a minimum height of 10 tefachim (about 40 inches),1A tefach is a handbreadth, which is between three and four inches. See Encyclopedia Talmudit 20:659. and has a minimum area of four tefachim by four tefachim. Common examples of a reshut hayachid include buildings and fenced-in yards. One is permitted to carry within a reshut hayachid on Shabbat.2However, in certain situations, it is necessary to perform sechirat reshut and eruv chatzeirot, as is explained in part four of our discussion of the laws of eruvin.
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6A reshut harabim (public domain) is an area where carrying on Shabbat is forbidden, such as a city square or a street that passes directly from one end of town to the other. It must be at least 16 amot (about 28 feet)3For summaries of the various opinions regarding the size of an amah, see Encyclopedia Talmudit (2:28-29). wide, unroofed, and with less than three walls (see Shabbat 99a).4There is some debate regarding the question of whether such a street also makes all public areas in its town into a reshut harabim. This will be discussed when we address the various cities in which this issue arose. Rav Hershel Schachter points out that a reshut harabim must not be private property (The Journal of Halacha and Contemporary Society, 5:12, based on Eruvin 59a). Some opinions maintain that 600,000 people must pass through it daily, and we will discuss this debate later. Additionally, some authorities consider any inter-city highway a reshut harabim, even if it does not meet all of the other requirements (Ramban, Eruvin 59a).5See Rav Hershel Schachter's essay in The Journal of Halacha and Contemporary Society (5:13). Rav Schachter has told this author that only a limited-access highway falls into this category. For example, Rav Schachter believes that New Jersey Route 34 (in the Matawan eruv) and Route 46 (in the Parsippany eruv) are not highways for this purpose. These roads may thus be included inside tzurot hapetach. Also see Teshuvot Bnei Banim (1:19, pp. 66-67) and Aruch Hashulchan (O.C. 345:26), both of whom rule more leniently than Rav Schachter. It should be noted that the Jerusalem eruv includes Israel's Route 1 (Jerusalem-Tel Aviv highway). See The Contemporary Eruv (p. 54 note 119), where Rav Eliezer Waldenberg is cited in defense of including Route 1 in the eruv. Carrying four amot (about six to seven feet) within a reshut harabim on Shabbat is biblically prohibited, as is carrying from a reshut hayachid into a reshut harabim and vice versa.
ז׳
7A mekom petur (literally an "exempt site") is a place within a reshut harabim whose area is less than four tefachim by four tefachim (see Mishnah Berurah 345:30). It must also be either at least three tefachim high or enclosed by walls that are three tefachim high. One may carry into or out of a reshut harabim or a reshut hayachid from a mekom petur. Common examples include narrow garbage cans and fire hydrants. It is widely accepted that a mekom petur exists only in a reshut harabim.6The Rama (O.C. 345:19) cites two opinions regarding whether or not a makom petur can also exist in a karmelit. The Mishnah Berurah (345:87) notes that most Acharonim incline to recognize the status of mekom petur only in a reshut harabim, and the Aruch Hashulchan (O.C. 345:45) rules accordingly. Also see Biur Halachah s.v. V'yeish Cholkim.
ח׳
8The fourth and final domain is a karmelit. In this domain, it is rabbinically forbidden to carry. A karmelit is essentially any place that does not fit the descriptions of the other domains. This includes the sea and all public places that do not meet the requirements of a reshut harabim.7For a brief summary of the laws concerning these four domains, see Rav Shimon Eider's Halachos of the Eruv (pp. 1-4).
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9Converting into a Reshut Hayachid
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10In order to facilitate carrying in karmeliyot and reshuyot harabim, these areas must be transformed into private domains. Since the prohibition against carrying in a karmelit is only rabbinical in nature, the rabbis made it relatively easy to change a karmelit into a reshut hayachid. Surrounding it with tzurot hapetach (doorframes) renders the karmelit an enclosed area. A tzurat hapetach consists of a horizontal wire (or pole) that passes over the tops of two vertical poles, forming the shape of a doorway.
י״א
11Rav Yehudah Halevi (Kuzari 3:51) explains why the rabbis provided a relatively simple way to remove the prohibition of carrying in a karmelit, by ruling that tzurot hapetach are sufficient to convert a karmelit into a reshut hayachid. He suggests that they made this enactment to prevent treating rabbinical restrictions with the same severity as the Torah's restrictions and to provide the Jewish people with some freedom of movement on Shabbat.
י״ב
12The conversion of a reshut harabim into a reshut hayachid is much more difficult, because the prohibition of carrying in a reshut harabim is biblical. A wall or fence must surround the reshut harabim in order to change its status.8A fence whose vertical and horizontal links are less than three tefachim apart is the halachic equivalent of a solid wall, based on the concept of lavud. This principle considers a gap of less than three tefachim to be closed off. If a reshut harabim is enclosed on all sides by doors at night, it ceases to be a reshut harabim.9While walls undoubtedly turn a reshut harabim into a reshut hayachid, it is unclear whether doors achieve the same result. The Avnei Neizer (O.C. 280) believes they do make the reshut harabim into a reshut hayachid. On the other hand, the Chazon Ish (Orach Chaim 78:1) argues that doors transform a reshut harabim into a karmelit, but all breaches still require tzurot hapetach in order to permit carrying within the enclosed area on Shabbat. The classic example of this phenomenon appears in Eruvin (22a), where the Gemara states that "had Jerusalem's doors not been locked in the evenings, the city would have been considered a reshut harabim." In a few locations in the United Sates, "doors" have been "installed" to encompass an area that might otherwise constitute a reshut harabim.10See Netivot Shabbat (Chapter 23) for a general review of the literature regarding doors that eliminate the status of reshut harabim.
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13Does a Reshut Harabim Require 600,000 People?
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14In light of the halachic differences between them, it is quite important to determine if an area is a true reshut harabim or merely a karmelit. The precise definitions of these categories have been debated since the time of the earliest Rishonim. The main point of contention is whether an area requires 600,000 people to attain the status of a reshut harabim.
ט״ו
15Rishonim
ט״ז
16The Rambam (Hilchot Shabbat 14:1) does not mention that 600,000 people must be present for an area to be considered a reshut harabim. Rashi (Eruvin 6a s.v. Reshut Harabim and Eruvin 59a s.v. Ir), however, writes that a city that does not regularly have 600,000 people is not a reshut harabim, because it has less population than the Jews' encampment in the desert. The practices and the activities of the Jewish encampment in the desert as recorded in the Torah serve as the paradigm for forbidden activities on Shabbat (see Shabbat 73b-74a). Tosafot (Eruvin 6a s.v. Keitzad) record that the Behag agrees with Rashi, whereas Rabbeinu Tam finds Rashi's opinion problematic.
י״ז
17A major problem with the opinion requiring 600,000 people for a reshut harabim is that the Gemara (Shabbat 6a) describes at length what constitutes a reshut harabim, without any explicit mention of requiring 600,000 people. Surely, the Gemara would not omit such a critical part of defining a reshut harabim. Rav Aharon Lichtenstein has told this author that he believes the opinion of Rashi and the Behag is among the most singularly difficult opinions of Rishonim in all of Halachah!
י״ח
18The Shulchan Aruch and its Commentaries
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19The Shulchan Aruch (Orach Chaim 345:7) cites (and presumably accepts) the view that an area is a reshut harabim even without 600,000 people, although he does cite the other view as a secondary opinion.11The Shulchan Aruch's view is somewhat unclear, as he appears to contradict himself in Orach Chaim (303:18). There he writes that no places today qualify as reshuyot harabim. Presumably, his reason is that he requires 600,000 people for a reshut harabim. Regarding the practice of Sephardic Jews today, see Yabia Omer (vol. 4, Orach Chaim 47:4) and page 7 of Rav Mordechai Eliyahu's comments to Rav Zechariah Ben-Shlomo's Hilchot Tzava. The Rama (O.C. 346:3) indicates that he accepts the requirement of 600,000.12This is inferred from the Rama's statement that in our day there are no reshuyot harabim. While logic would dictate that the Rama is writing this because he believes that only a place with 600,000 people constitutes a reshut harabim, this inference presents a certain difficulty. The Shulchan Aruch (Orach Chaim 303:18) also writes that there are no true reshuyot harabim, yet he appears to rule that 600,000 people are not required for a reshut harabim (O.C. 345:7). The Magen Avraham (345:7) points out this problem. Both the Magen Avraham (345:7) and the Taz (345:6) cite the view of the Ma'sat Binyamin (92) and the Maharshal (Yam Shel Shlomo, Beitzah 3:8), who rule that the presence of 600,000 people is not required. However, the Magen Avraham and Taz themselves disagree with these authorities and write that the majority view is that of Rashi, requiring 600,000 people. The Aruch Hashulchan (345:17) writes that the eruvin in the Jewish towns of Eastern Europe relied on this accepted leniency; otherwise, they could not have used tzurot hapetach.
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20The Mishkenot Yaakov's Criticism
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21In the early nineteenth century, the Mishkenot Yaakov (Orach Chaim 119-122) strongly criticized the construction of the Eastern European eruvin. His criticisms included the fact that their wires sagged,13Sagging wires are problematic, because a tzurat hapetach must be constructed in the same manner as people makes ordinary doorframes (ked'avdei inshei; see Eruvin 94b). We will address this at greater length in our third chapter about eruvin. and there were no places for hinges on the tzurot hapetach (as there are on true doorways).14See Eruvin 11b. Our practice is not to require a place for hinges; see Aruch Hashulchan 362:31. Most of all, tzurot hapetach were used to create the eruvin, since the towns and villages were seen as karmeliyot. He asserted that the opinions of many more Rishonim had been published since the time of the Shulchan Aruch.15See Rav Moshe Bleich's article, "The Role of Manuscripts in Halachic Decision Making" (Tradition 27:2:22-55), regarding the halachic weight of newly discovered manuscripts of Rishonim. The discovery that many of these Rishonim rejected Rashi's opinion rendered his opinion that requires 600,000 people a minority opinion, whereas it had previously been considered the majority view. He argued that even the small towns and villages of Central and Eastern Europe should now be considered reshuyot harabim.
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22Reaction to the Mishkenot Yaakov's Criticism
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23Halachic authorities expressed mixed reactions to the Mishkenot Yaakov's criticism. The Beit Efraim (26) defended the practice to rely on eruvin consisting of tzurot hapetach. The Aruch Hashulchan (362:18) wrote in the late nineteenth century that it was as if a heavenly voice proclaimed that the opinion requiring 600,000 people for a reshut harabim was [still] correct.
כ״ד
24The Mishnah Berurah16345:23 and Biur Halachah s.v. She'ein Shishim. strongly urges pious individuals (ba'alei nefesh) to be strict and refrain from carrying within an eruv that is based on the lenient opinion. However, he writes that one should not rebuke those who do rely on such eruvin. For a summary of this issue, see Rav Elimelech Lange's Hilchot Eruvin (21-28).
כ״ה
25It is interesting to note that even those who are strict and do not rely on an eruv might be permitted to ask a Jew who does use the eruv to carry for them (see Teshuvot Igrot Moshe, O.C. 1:186).17Rav Shlomo Zalman Auerbach (Teshuvot Minchat Shlomo 1:44) rules that one who embraces the strict opinion in a disputed area of Halachah need not refrain from causing others to follow their practice of relying upon the lenient view. However, he addresses a rabbinical prohibition, and he notes that this matter is subject to debate regarding biblical prohibitions. Regarding eruvin, authorities debate whether carrying in a reshut harabim enclosed by tzurot hapetach is a biblical or rabbinical prohibition; see Biur Halachah (364:2 s.v. Vehu and s.v. Ve'achar). Elsewhere (Minchat Shlomo 2:35:17), Rav Shlomo Zalman suggests that one who adopts a chumra (stringency beyond the letter of the law) can ask someone who follows the letter of the law to violate this chumra. However, if one is strict because he believes a more lenient view to be mistaken, perhaps he should refrain from asking others to violate what he considers an absolute prohibition. (Even in the latter case, Rav Shlomo Zalman does not issue a definitive ruling.) When Ashkenazic and Sephardic communities follow different opinions, Rav Shlomo Zalman implicitly compares such a situation to a chumrah, because the one who causes others to act agrees that Jews from the other community need not be stringent.