“Is it a mitzvah to build an eruv?”
Question #2: Public or private ownership?
“Can I own a reshus harabim?”
“How does a little bit of wire enclose an area? Isn’t this a legal fiction?”
In this week’s parsha, the Torah recounts the story of the mann, including the unbecoming episode where some people attempted to gather it on Shabbos. In the words of the Torah:
And Moshe said, “Eat it [the mann that remained from Friday] today, for today is Shabbos to Hashem. Today you will not find it [the mann] in the field. Six days you shall gather it, and the Seventh Day is Shabbos – There will be none.”
And it was on the Seventh Day. Some of the people went out to gather, and they did not find any.
And Hashem said to Moshe: “For how long will you refuse to observe My commandments and My teachings? See, Hashem gave you the Shabbos. For this reason, He provides you with two-day supply of bread on the sixth day. On the Seventh Day, each person should remain where he is and not leave his place” (Shemos 16:25- 29).
Although the Torah’s words “each person should remain where he is and not leave his place” might be understood to mean that even leaving one’s home is forbidden, the context implies that one may not leave one’s home while carrying the tools needed to gather the mann (Tosafos, Eruvin 17b). The main prohibition taught here is to refrain from carrying an object from one’s house or any other enclosed area (halachically called reshus hayachid) to an area available to the general public, a reshus harabim. Chazal further explain that moving an item in any way from a reshus hayachid to a reshus harabim violates the Torah law, whether one throws it, places it, hands it to someone else, or transports it in any other way (Shabbos 2a, 96). Furthermore, we derive from other sources that one may also not transport an item from a reshus harabim to a reshus hayachid, nor may one transport it four amos (about seven feet) or more within a reshus harabim (Shabbos 96b; Tosafos, Shabbos 2a s.v. pashat). Thus, carrying into, out of, or within a reshus harabim violates a severe Torah prohibition. For the sake of convenience, I will refer to the transport of an item from one reshus to another or within a reshus harabim as “carrying,” regardless of the method of conveyance.
One should note that with reference to the melacha of carrying on Shabbos, the terms reshus hayachid and reshus harabim do not relate to the ownership of the respective areas, but are determined by the extent that the areas are enclosed and how they are used. A reshus hayachid could certainly be public property, and there are ways whereby an individual could own a reshus harabim.
Notwithstanding the Torah’s clear prohibition against carrying into, from or within a reshus harabim, we are all familiar with the concept of an eruv that permits carrying in areas that are otherwise prohibited. You might ask, how can poles and wires permit that which is otherwise prohibited min haTorah? As we will soon see, it cannot – and the basis for permitting the use of an eruv is far more complicated.
We are also aware of controversies in which one respected authority certifies a particular eruv, while others contend that it is invalid. This is by no means a recent development. We find extensive disputes among early authorities regarding whether one may construct an eruv in certain areas. Some consider it a mitzvah to construct an eruv there, whereas others contend that the very same “eruv” is causing people to sin.
An Old Machlokes
Here is one instance. In the thirteenth century, Rav Yaakov ben Rav Moshe of Alinsiya wrote a letter to the Rosh explaining why he forbade constructing an eruv in his town. In his response, the Rosh contended that Rav Yaakov’s concerns were groundless, and that he should immediately construct an eruv. Subsequent correspondence reveals that Rav Yaakov did not change his mind and still refused to erect an eruv in his town.
The Rosh severely rebuked Rav Yaakov for this recalcitrance, insisting that if Rav Yaakov persisted, he, the Rosh, would place Rav Yaakov in cherem! The Rosh further contended that Rav Yaakov had the status of a zakein mamrei, a Torah scholar who rules against the decision of the Sanhedrin, which in the time of the Beis HaMikdash constitutes a capital offense (Shu”t HaRosh 21:8). This episode demonstrates that heated disputes over eruvin are by no means recent phenomena.
Is It a Mitzvah?
Before I present the arguments for and against eruv manufacture in the modern world, we should note that all accept that it is a mitzvah to erect a kosher eruv when this is halachically and practically possible, as the following anecdote indicates.
Rabbah the son of Rav Chanan asked Abayei: “How can it be that an area in which reside two such great scholars [Abayei and Abayei’s Rebbe] is without an eruv?” Abayei answered: “What should we do? It is not respectful for my Master to be involved, I am too busy with my studies, and the rest of the people are not concerned” (Eruvin 68a).
The commentaries note that Abayei accepted the position presented by Rabbah that one should build an eruv. Abayei merely deflected the inquiry by pointing out that no one was readily available to attend to the eruv, and that its construction did not preempt other activities: Abayei’s commitment to Torah study and the kovod haTorah of his Rebbe. Indeed, halachic authorities derive from this Talmudic passage that it is a mitzvah to erect an eruv whenever it is halachically permitted (Tashbeitz 2:37, quoted verbatim by the Birkei Yosef, Orach Chayim 363:2). These rulings are echoed by such luminaries as the Chasam Sofer (Shu”t Orach Chayim #99), the Avnei Neizer (Shu”t Avnei Neizer, Orach Chayim #266:4), the Levush Mordechai (Shu”t Levush Mordechai, Orach Chayim #4) and Rav Moshe Feinstein (Shu”t Igros Moshe, Orach Chayim 1:139:5 s.v. Velichora).
I mentioned before that the construction of an eruv of poles and wire cannot permit carrying that is prohibited min haTorah. If this is true, upon what basis do we permit the construction of an eruv? To answer this question, we need to understand that not every open area is a reshus harabim – quite the contrary, a reshus harabim must meet very specific and complex requirements, including:
(A) It must be unroofed (Shabbos 5a).
(B) It must be meant for public use or thoroughfare (Shabbos 6a).
(C) It must be at least sixteen amos (about twenty-eight feet) wide (Shabbos 99a).
(D) According to most authorities, it cannot be inside an enclosed area (cf., however, Be’er Heiteiv 345:7, quoting Rashba; and Baal HaMaor, Eruvin 22a,quoting Rabbeinu Efrayim). The exact definition of an “enclosed area” is the subject of a major dispute that I will discuss.
(E) According to many authorities, it must be used by at least 600,000 people daily (Rashi, Eruvin 59a, but see Rashi ad loc. 6a where he requires only that the city have this many residents). This is derived from the Torah’s description of carrying into the encampment in the Desert, which we know was populated by 600,000 people.
(F) Many authorities require that it be a through street, or a gathering area that connects to a through street (Rashi, Eruvin 6a).
Some authorities add additional requirements.
Any area that does not meet the Torah’s definition of a reshus harabim yet is not enclosed is called a karmelis. One may not carry into, from or within a karmelis, following the same basic rules that prohibit carrying into a reshus harabim. However, since the prohibition not to carry in a karmelis is only rabbinic in origin, Chazal allowed a more lenient method of “enclosing” it.
Can One “Enclose” a Reshus Harabim?
As I mentioned earlier, carrying within a true reshus harabim is prohibited min haTorah – for this reason, a standard eruv does not permit carrying in such an area (Eruvin 6b). Nevertheless, large doors that restrict public traffic transform the reshus harabim into an area that one can enclose with an eruv. According to some authorities, the existence of these doors and occasionally closing them is sufficient for the area to lose its reshus harabim status. (Rashi, Eruvin 6b; however, cf. Rabbeinu Efrayim, quoted by Baal HaMaor, Eruvin 22a).
Please Close the Door!
There are some frum neighborhoods in Eretz Yisroel where a thoroughfare to a neighborhood or town is closed on Shabbos with doors, in order to allow an eruv to be constructed around the area. However, this approach is not practical in most places where people desire to construct an eruv.
So what does one do if one cannot close the area with doors?
This depends on the following issue: Does the area that one wants to enclose meet the requirements of a reshus harabim min haTorah, or is it only a karmelis? If the area is a reshus harabim min haTorah and one cannot occasionally close the area with doors, then there is no way to permit carrying in this area. One should abandon the idea of constructing an eruv around this city or neighborhood (see Eruvin 6a; Shulchan Aruch Orach Chayim 364:2). Depending on the circumstances, one may still be able to enclose smaller areas within the city.
However, if the area one wants to enclose does not qualify as a reshus harabim, then most authorities rule that one may enclose the area by using a tzuras hapesach (plural, tzuros hapesach) – literally, “the form of a doorway.”(However, note that Shu”t Mishkenos Yaakov #120 s.v. Amnom and Shu”t Mishnas Rav Aharon #6 s.v. Kuntrus Be’Inyanei Eruvin paragraph #2 both forbid using a tzuras hapesach in many places that other poskim permit.)
A tzuras hapesach consists of two vertical side posts and a horizontal “lintel” that passes directly over them, thus vaguely resembling a doorway. According to halacha, a tzuras hapesach successfully encloses a karmelis area, but it cannot permit carrying in a true reshus harabim (Eruvin 6a). Using tzuros hapesach is the least expensive and most discreet way to construct an eruv. In a future article, I hope to explain some common problems that can occur while constructing tzuros hapesach and how to avoid them, and some important disputes relating to their construction.
Let us review. Carrying can be permitted in a karmelis, but not a reshus harabim, by enclosing the area with tzuros hapesach. Therefore, a decisive factor as to whether one can construct an eruv is whether the area is halachically a karmelis or a reshus harabim. If the area qualifies as a karmelis, then an eruv consisting of tzuros hapesach permits one to carry; if it is a reshus harabim, then tzuros hapesach do not. The issues concerning the definition of a reshus harabim form the basis of most controversies as to whether a specific eruv is kosher or not.
I will continue this article next week, bli neder.