Carrying in Public and the Use of an Eruv

Question #1:

“Is it a mitzvah to build an eruv?”

Question #2: Public or private ownership?

“Can I own a reshus harabim?”

Question #3:

“How does a little bit of wire enclose an area? Isn’t this a
legal fiction?”

Answer:

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.

Tzuras Hapesach

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.