Question #1: A Private Area Owned Publicly?
Can a “private area” be under public ownership?
Question #2: Owning a Public Area
Is it possible to own a public area?
The 39th of the melachos of Shabbos is usually called “carrying,” although the Hebrew term hamotzi (Shabbos 73a) translates as “removing,” moving something from an enclosed to a public area. In parshas Beshalach, the Torah states: Hashem gave you the Shabbos. For this reason, He provides you with two days’ supply of bread on the sixth day. Each person should remain where he is and not leave his place on the seventh day” (Shemos 16:29).
The sentence each person should remain where he is and not leave his place means not to leave home while carrying the tools needed to gather the mann (Tosafos, Eiruvin 17b). Thus, the Torah prohibits carrying from one’s house, or any other enclosed area (halachically called a reshus hayachid), to a reshus harabim, an area established for public use. Chazal further explain that moving an item from a reshus hayachid to a reshus harabim violates Torah law even if someone did not carry it but remained in the reshus hayachid and threw it or handed it to someone else, as long as the item was transferred from a reshus hayachid to a reshus harabim (Shabbos 2a, 96a-b).
Reshus harabim to reshus hayachid
We derive from other sources that it is prohibited min haTorah to transport an item in the other direction — from a reshus harabim to a reshus hayachid — and also to carry or transport it four amos (about seven feet) or more within a reshus harabim (Shabbos 96b; Tosafos, Shabbos 2a s.v. Pashat). Since the melacha includes more than “carrying” or “removing,” a more accurate English term for this melacha is probably “transporting” or “conveying.”
The purpose of this article is to provide introductory information identifying what qualifies as a reshus hayachid and a reshus harabim min haTorah, and the names and definitions of two other jurisdictions. There are far too many details in this melacha to cover in one article, and, therefore, providing practical halacha le’maaseh will need to wait for further articles on the subject.
Germane to the min haTorah laws of carrying on Shabbos, every place in the universe falls under one of three Torah categories: reshus hayachid, an enclosed area; reshus harabim, an area meant for public thoroughfare or for public use; and makom petur, an area that does not meet the definitions of either a reshus hayachid or a reshus harabim. There is also a fourth area created by rabbinic injunction, called a carmelis, which we will discuss.
Reshus hayachid – these words literally mean a private domain. The term means an enclosed area and has nothing to do with who owns it. Min haTorah, a reshus hayachid does not need to be fully enclosed; it is sufficient if it is enclosed most of its way around by walls, or their equivalent, that are at least ten tefachim tall (approximately three feet). (There are disputes about details that we will leave for the time being.)
A reshus hayachid must be at least four tefachim (approximately fourteen inches) long by four tefachim wide. If the area is narrower than four tefachim, it is not a reshus hayachid, but a makom petur, which we will define shortly.
From the depths
The walls of a reshus hayachid need not necessarily go up – they can go down from ground level. In other words, a pit, a manhole, a sewer or a mine that is at least ten tefachim deep and four tefachim long and wide also qualifies as a reshus hayachid. Carrying from this “hole in the ground” into a reshus harabim, or from a reshus harabim into it, are violations of Torah law.
Sloping reshus hayachid
Some or all of the “walls” of a reshus hayachid can be created by the slope of a mound whose top is at least ten tefachim higher than the area around it, and the mound rises to this height within a walking distance of four amos or less, thus creating a significant angle of slope (Shabbos 100a; see Mishnah Berurah 345:5).
Once an area is categorized as a reshus hayachid, the space above it also qualifies as a reshus hayachid, regardless of the height. This is referred to by Chazal as reshus hayachid olah ad larakia (Shabbos 7a, b; Eiruvin 32b, 34b), literally, “a private domain rises to the sky.” Thus, since throwing something from a reshus harabim to a reshus hayachid is a melacha de’oraysa, tossing an item on Shabbos from a reshus harabim that lands on top of a pole in a reshus hayachid violates a Torah prohibition of carrying. This is true even if the item lands at a point hundreds of feet above the ground.
The walls enclosing a reshus hayachid are part of the reshus hayachid. Therefore, atop the walls is also part of the reshus hayachid, as well as any drawers, shelves, cracks or crevices along its inside walls, regardless as to their dimensions or height (Shulchan Aruch, Orach Chayim 345:4). The Shulchan Aruch concludes that the entire crevice, even when it penetrates the entire wall to a reshus harabim area on the opposite side, is part of the reshus hayachid. However, in one instance some later authorities disagree with the conclusion of the Shulchan Aruch. When the crevice is in the lowest ten tefachim of the reshus hayachid and it passes through the wall to the reshus harabim on the other side, the Elya Rabbah and the Gra conclude that the crevice has the halachic status of a reshus harabim, not a reshus hayachid.
Movable reshus hayachid
A reshus hayachid can be portable and can even be a storage item or vessel sitting in a reshus harabim. Thus, the standard American mailbox sitting on the street corner, which is larger than four tefachim by four tefachim and more than ten tefachim tall, is a reshus hayachid, notwithstanding its location in a public area. Garbage cans whose sides are at least ten tefachim tall and contain an area at least four tefachim by four tefachim qualify as a reshus hayachid, both inside and above it. If the garbage can is round, it must be large enough to contain a square area four tefachim on each side (Shulchan Aruch, Orach Chayim 345:6).
Thus, moving something lying on the street onto or into a mailbox, garbage can or dumpster may violate carrying on Shabbos min haTorah.
Similarly, the hood, trunk or roof of an automobile are reshuyos hayachid, since they are ten or more tefachim tall and at least four tefachim wide and long. Therefore, carrying an item from a reshus harabim and placing it atop a car or truck, or removing something from atop a car or truck and placing it in reshus harabim are violations of carrying min haTorah.
A publicly owned, private area?
At this point, we can address our opening question: Can a “private area” be under public ownership?
The answer is that it can. Germane to the rules of Shabbos, a “private area,” reshus hayachid, refers to it being enclosed, not to who owns it.
Reshus harabim, which literally means “a public domain,” refers to an area intended for public use. There are several requirements for an area to qualify as a reshus harabim, the most basic being that it must be at least sixteen amos (about twenty-eight feet) wide (Shabbos 99a), that it must be unroofed (Shabbos 5a) and that it is meant to be a public thoroughfare or for other public use, such as a marketplace (Shabbos 6a). It is not required that it be sixteen amos wide for its entire length — if there are places in which it narrows to a width of only 13 1/3 amos, it still qualifies as a reshus harabim (Shulchan Aruch, Orach Chayim 345:9).
A side street or alleyway that is less than 16 amos wide qualifies as a reshus harabim if it connects two reshus harabim areas (Shulchan Aruch, Orach Chayim 345:8). Similarly, an intra-city road leading from one city to another is a reshus harabim, even if it is less than 16 amos wide, when the cities it connects qualify as a reshuyos harabim.
Some authorities contend that a reshus harabim cannot be inside an enclosed area. However, the Be’er Heiteiv (345:7), quotingthe Rashba, andthe Baal Hama’or (Eiruvin 22a),quoting Rabbeinu Efrayim, disagree with this last opinion, contending that an area sixteen amos wide meant for public thoroughfare is a reshus harabim, even if it is enclosed by walls.
Below three tefachim
As opposed to a reshus hayachid, which includes all the area above it, a reshus harabim includes only the area near the ground. In other words, if the ground is not perfectly smooth, the three lowest tefachim of the small hills and indentations, both below and above street height, are part of the reshus harabim. An area that rises more than three tefachim above or is more than three tefachim below street height is no longer part of the reshus harabim. At times, as we will soon see, the area more than three tefachim above the reshus harabim is a makom petur.
The rishonim dispute whether an area that meets all the other requirements of a reshus harabim, but does not service 600,000 people on a regular basis, qualifies as a reshus harabim (Rashi, Eiruvin 6a and 59a; Tosafos, Eiruvin 6a s.v. Keitzad). For a reason I will explain shortly, those who require 600,000 people for the area to be a reshus harabim permit an eiruv in an area that does not have this many people even when it meets the other requirements of a reshus harabim. The established practice among Ashkenazim is to rely on this approach (Taz and Magen Avraham, Orach Chayim 345), although not all authorities accept it (Shu”t Mishkenos Yaakov #120 s.v. Hinei harishon and Biur Halacha 345:7 s.v. She’ein).
Whether Sefardim rely on this approach is disputed by later authorities (commentaries on Shulchan Aruch, Orach Chayim 345:7 and 303:18). The exact definition of what is meant that “600,000 use the area” is the subject of much literature and dispute. (Among numerous other authorities, see commentaries on the Gemara and Shulchan Aruch, Orach Chayim passages above; Shu”t Beis Efrayim, Orach Chayim #25, 26; Shu”t Igros Moshe, Orach Chayim 1:139:5; Shu”t Mishnas Aharon, Orach Chayim #6.)
Within a reshus harabim
Carrying more than four amos in a reshus harabim is forbidden and usually violates a melacha min haTorah. Carrying an item from a reshus hayachid to a reshus harabim or from a reshus harabim to a reshus hayachid also usually violates a melacha min haTorah.
Usually an area enclosed by walls does not qualify as a reshus harabim (Eiruvin 22a). What is the halacha if an area is enclosed for most of its length, but there are large gaps in the enclosure? For example, walls or buildings enclose most of an area – however, in the middle of the area there are streets that cross through city blocks. Is this area that is mostly surrounded by buildings and other structures considered a reshus harabim because of its use, or has it lost this status because it is “enclosed”?
The Beis Efrayim and the Chazon Ish (Orach Chayim 107:5) contend that this is considered an enclosed area min haTorah, notwithstanding the large breaches in its enclosure, whereas the Mishkenos Yaakov and Rav Aharon Kotler consider it to be a reshus harabim min haTorah. The lengthy correspondence on this question between the Beis Efrayim and the Mishkenos Yaakov also covers a host of other related issues (Shu”t Beis Efrayim, Orach Chayim # 25, 26; Shu”t Mishkenos Yaakov, Orach Chayim, #120-122).
Owning a Public Area
At this point, we can address the second of our opening questions: Is it possible to own a public area? If the question is whether privately owned property can qualify as reshus harabim (i.e., it has the physical properties that define a reshus harabim for hilchos Shabbos), the answer is “yes.”
This is an area into, within and from which there is no prohibition of carrying on Shabbos at all. In other words, it is 100% permitted to transport an item from a reshus harabim to or from a makom petur on Shabbos, or to or from a reshus hayachid from a makom petur. But before getting excited that we can now circumvent the violation of carrying on Shabbos, we must note that it is forbidden to use a makom petur as a transit point to move something from a reshus hayachid to a reshus harabim, or vice versa. In other words, if an item started Shabbos in a reshus hayachid and was moved to a makom petur, it cannot then be moved to a reshus harabim. Similarly, an item that started Shabbos in a reshus harabim and moved to a makom petur cannot be moved afterward to a reshus hayachid.
A makom petur is an area less than four tefachim wide that is at least three tefachim high or is enclosed within “walls” that are this high. A telephone pole or a street sign qualify as a makom petur since they are more than three tefachim tall and less than four tefachim wide, as does a British or Israeli mailbox, which are significantly smaller than American mailboxes.
An area enclosed between parallel walls that are within four tefachim of one another is a makom petur, regardless of the length of the area. Similarly, a ditch or furrow narrower than four tefachim whose sides are three tefachim deep is a makom petur, even though it may be many miles long (Shulchan Aruch, Orach Chayim 345:19).
I noted above that it is permitted to transport an item on Shabbos from either a reshus harabim or a reshus hayachid to or from a makom petur. However, before attempting to do this, be aware that within a reshus hayachid, there is never a halacha of makom petur. Once an area qualifies as a reshus hayachid, everything inside and above it is also a reshus hayachid. More importantly, the rishonim dispute whether a makom petur exists within the area called a carmelis (which I will explain in the next paragraph). Those who hold that an area that would otherwise be a makom petur, but is inside a carmelis, has the status of a carmelis, will not permit moving an item from a reshus harabim or a reshus hayachid to or from it (Rema, Orach Chayim 345:19). Both the Rema and most acharonim rule according to the more stringent opinion, which severely limits the heter of a makom petur (Mishnah Berurah 345:87; however, see Biur Halacha 345:19 s.v. Veyeish).
Now that we have clarified the three areas that exist under Torah law, I need to explain a fourth area called a carmelis. A carmelis is a domain created by Chazal that has the stringencies of both a reshus hayachid and a reshus harabim. Thus, it is prohibited to carry to or from a carmelis to a reshus harabim (because a carmelis has the stringency of a reshus hayachid), to or from a carmelis to a reshus hayachid, or for a distance of four amos or more within a carmelis (because it has the stringency of a reshus harabim).
What areas qualify as a carmelis? Any surface area that does not meet the Torah’s definition of a reshus harabim, and yet is not enclosed, qualifies as a carmelis. This includes fields, forests and other uninhabited areas, bodies of water, beaches, hills, etc. (Shulchan Aruch, Orach Chayim 345:14). Another example: I mentioned above that any covered area is not a reshus harabim. Thus, the lower level of a bridge, such as the George Washington Bridge, and all tunnels are not reshuyos harabim, notwithstanding that they may be sixteen amos wide, made for public thoroughfare and have 600,000 people travel on them daily (see Shulchan Aruch, Orach Chayim 345:7 and 14). Each of these areas qualifies as a carmelis, and carrying to, from and in them is prohibited, but only because of a rabbinic injunction. Most of these areas are a makom petur min haTorah, although some are a reshus hayachid min haTorah.
There are numerous practical halachic differences that result from the fact that the prohibition to carry in these areas is only miderabbanan. Because of space considerations, we will leave most of this discussion for future articles.
Perhaps the most significant difference between a reshus harabim and a carmelis is that, in accepted practice, an eiruv permits carrying only in an area in which there is no violation to carry min haTorah (Eiruvin 6a-b). For this reason, before attempting to build an eiruv, a decision must be reached whether the area is halachically a carmelis, in which case it is possible to construct an eiruv, or a reshus harabim min haTorah, in which case it cannot.
Rav Samson Raphael Hirsch (Shemos 20:10) notes that people mistakenly think that work is prohibited on Shabbos so that it should be a day of rest. He points out that the Torah did not prohibit doing avodah, which connotes hard work, but melacha, which implies purpose and accomplishment. Thus, even transporting items accomplishes something, notwithstanding that the object moved is not physically changed in the process. The goal of Shabbos is to allow Hashem’s rule to be the focus of creation by withdrawing from our own creative acts (Shemos 20:11). By refraining from melacha for one day a week, we demonstrate Who created the world and authorized us to control it.