Carrying in Public and the Use of an Eruv

Iclip_image002n this week’s parsha, the Torah recounts the story of the manna, also 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 manna that remained from Friday) today, for today is Shabbos to Hashem. Today you will not find it (the manna) 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.

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’s 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 imply 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 manna (Tosafos, Eruvin 17b). The main prohibition taught here is to refrain from carrying from one’s house or any other enclosed area (halachically called reshus hayachid), to an area available for the entire Bnei Yisroel in the Desert to traverse, a reshus harabim. Chazal further explain that moving an item in any way from a reshus hayachid to a reshus harabim violates the Torah, 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 (Gemara Shabbos 96b; Tosafos, Shabbos 2a s.v. pashat). Thus, carrying into, out of, or within a reshus harabim incurs a severe Torah prohibition. For convenience sake, I will refer to portage 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 indeed cannot, and the basis for permitting 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 phenomenon. We find extensive disputes among early authorities whether one may construct an eruv in certain areas; some considering it a mitzvah to construct the eruv, whereas others contend that the very same “eruv” is causing people to sin.

AN OLD MACHLOKES

Here is an 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 offence (Shu”t HaRosh 21:8). This episode demonstrates that heated disputes over eruvin are by no means recent phenomena.

The goal of this article is not to make halachic decisions; that is the role of one’s rav. The purpose here is to explain what allows the construction of an eruv, and present some circumstances in which one authority permits carrying within a specific eruv while another forbids it.

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” (Gemara Eruvin 68a).

The commentaries note that Abayei accepted the position presented by Rabbah that one should assemble 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 factors, specifically Abayei’s commitment to Torah study, and the inappropriateness for Abayei’s Rebbe to be involved in the project. Indeed, halacha authorities derive from this Talmudic passage that it is a mitzvah to erect an eruv whenever 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 Nezer (Orach Chayim #266:4), the Levush Mordechai (Orach Chayim #4) and Rav Moshe Feinstein (Shu”t Igros Moshe, Orach Chayim 1:139:5 s.v. vilichora).

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). Exactly what is the 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 only requires that the city has 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).
(G) Some authorities add still other requirements.

Any area that does not meet the Torah’s definition of a reshus harabim, and 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, the use of a standard eruv does not permit carrying in such an area (Eruvin 6b). Nevertheless, the construction of large doors that restrict public traffic transforms the reshus harabim into an area that one can now 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 a closing door 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 the entire city or neighborhood (see Gemara 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 Bi’Inyanei Eruvin paragraph #2 forbid this.) 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 (Gemara 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 happen while constructing tzuros hapesach and how to avoid them, and some important disputes relative to their construction.

Let us review. One can permit carrying in a karmelis, but not a reshus harabim, by enclosing the area with tzuros hapesach. Therefore, a decisive factor in planning 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 the existence of tzuros hapesach does 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.

600,000 PEOPLE

An early dispute among Rishonim was whether one of the requirements of a reshus harabim is that it be accessible to 600,000 people, the number of male Jews over twenty the Torah tells us exited Egypt (see Tosafos, Eruvin 6a s.v. Keitzad). According to Rashi and the others who follow this approach, one may enclose any metropolis with a population smaller than 600,000 with tzuros hapesach to permit carrying. (Rashi in some places describes that the city has 600,000 residents, and in others describes that 600,000 people use the area constantly. The exact definition to be used is the subject of much literature, see Shu”t Mishkenos Yaakov #120 s.v. hinei harishon; and Igros Moshe, Orach Chayim 1:139:5.)

However, other early authorities contend that an area with less than 600,000 people still qualifies as a reshus harabim, providing that it fulfills the other requirements that I listed above. In their opinion, such an area cannot be enclosed with tzuros hapesach. Although many authorities hold this way, the accepted practice in Ashkenazic communities was to follow the lenient interpretation and construct eruvin. Nevertheless, the Mishnah Berurah discourages carrying in such an eruv since many Rishonim do not accept it (364:8; Bi’ur Halacha to 345:7 and to 364:2). There are different opinions whether Sefardim are at liberty to follow this lenience, although the prevalent practice today is for them to be lenient.

MODERN CITY

Most large metropolitan areas today are populated by more than 600,000 people. Some authorities still define many of our metropolitan areas as a karmelis based on the following definition: Any area less concentrated than was the Jews’ encampment in the Desert is considered a karmelis. Since this encampment approximated 50 square miles, these authorities permit an eruv anywhere that the population density is less than 600,000 people per 50 square miles (Shu”t Igros Moshe 4:87). However, other authorities consider any metropolitan area or megalopolis containing 600,000 people to be a reshus harabim regardless of its population density. Does this mean that there is no heter with which to construct an eruv in a large city? Indeed many authorities contend this way (Shu”t Mishnas Rav Aharon 1:2).

A LARGE BREACH

Nevertheless, the Chazon Ish presented a different approach to permit construction of an eruv in a contemporary large city. His approach requires an introduction.

In general, an area enclosed by three or four full walls cannot be a reshus harabim (Eruvin 22a). What is the halacha if each of the three sides of an area is enclosed for most of its length – however, there are large gaps in the middle of the enclosure. For example, walls or buildings enclose most of an area – however, there are gaps in the middle of the area between the buildings where streets cross the city blocks. Does the area in the middle, surrounded on both sides by buildings and other structures, still qualify as a reshus harabim, or has it lost this status because it is mostly “enclosed”?

The basis for the question is the following: There is a general halachic principle that an area that is mostly enclosed is considered enclosed even in its breached areas (Eruvin 5b et al.). For example, a yard enclosed by hedges tall enough to qualify as halachic walls may be considered enclosed notwithstanding that there are open areas between the hedges, since each side is predominantly enclosed either by the hedges or by the house.

On the other hand, a breach longer than ten amos (about 17 feet) invalidates the area from being considered enclosed. Therefore, one may not carry within a fenced-in area that has a 20-foot opening without enclosing the opening in some way.

The issue that affects the modern city is the following: Granted that a large breach needs to be enclosed to permit carrying within the area, is this required min haTorah or only rabbinically? Let us assume that one encloses a large area with walls that run for miles, but has large gaps in this middle – is this area considered enclosed min haTorah on the basis of its walls, or is it considered open because of its gaps?

This question was debated by two great nineteenth-century authorities, Rav Efrayim Zalman Margoliyos, the Rav of Brody, the Beis Efrayim and Rav Yaakov of Karlin, the Mishkenos Yaakov. The Beis Efrayim contended that the breach is only a rabbinic prohibition, but that the area is considered enclosed min haTorah, whereas the Mishkenos Yaakov held that the breach qualifies the area as a reshus harabim min haTorah. The lengthy correspondence between the two of them covers also a host of other eruv related issues (Shu”t Beis Efrayim, Orach Chayim # 25, 26; Shu”t Mishkenos Yaakov, Orach Chayim, #120- 122).

What difference does it make whether this area is considered open min haTorah or miderabbanan, since either way one must enclose the area?

The difference is highly significant. If we follow the lenient approach, then even if the area in the middle meets all the other requirements of a reshus harabim, the Beis Efrayim contends that it loses its status as a reshus harabim because of the walls surrounding it, notwithstanding the large gaps in the walls, in which case it may be possible to construct an eruv in such a place.

On the other hand, the Mishkenos Yaakov contends that this area is considered a reshus harabim because of the gaps, and we ignore the walls. According to him it will be impossible to construct an eruv.

How one rules in this dispute between these two gedolim affects the issue of constructing an eruv in a contemporary city. Most modern cities contain city blocks which consist predominantly of large buildings with small areas between the buildings, and streets that are much narrower than the blocks. If we view these buildings as enclosures, then one can easily envision that both sides of the street are considered enclosed min haTorah according to the Beis Efrayim’s analysis. This itself does not sufficiently enclose our area. However, at certain points of the city, these two parallel streets dead end into a street that is predominantly enclosed either with buildings, fences, walls, or some other way. The result is that this section of the city can now be considered min haTorah as enclosed on three sides by virtue of the buildings paralleling both sides of the street and those on its dead end. Since this area now qualifies as an enclosed area min haTorah, the entire area is considered a reshus hayachid min haTorah.

The Chazon Ish now notes the following: Once you have established that this part of the city qualifies as a reshus hayachid min haTorah, this area is now considered completely enclosed halachically. For this reason, other city blocks that are predominantly enclosed on both sides of the street that intersect with this first area are also now considered to be enclosed areas min haTorah. As a result, a large section of most cities is considered min haTorah enclosed on at least three sides, according to his calculation. Although one cannot carry in these areas miderabbanan because of the “breaches” in their “enclosures,” they are no longer reshus harabim min haTorah and one can therefore enclose the entire area with tzuros hapesach (Chazon Ish, Orach Chayim 107:5). As a result of this calculation, the Chazon Ish concludes that many large cities today qualify as a karmelis and therefore one may construct tzuros hapesach to permit carrying there.

However, other authorities reject this calculation for a variety of reasons, some contending that the gaps between the buildings invalidate the enclosure, thus leaving the area to be considered a reshus harabim, which cannot be enclosed (Shu”t Mishkenos Yaakov; Shu”t Mishnas Rav Aharon).

In conclusion, we see that disputes among poskim over eruvin are not recent phenomena. In practice, what should an individual do? The solution proposed by Chazal for all such issues is “Aseh lecha rav, vehistaleik min hasafek,” “Choose someone to be your rav, and removes doubt from yourself.” He can guide you whether it is appropriate to carry within a certain eruv, after considering the halachic basis for the specific eruv’s construction, the level of eruv maintenance, and family factors. Never underestimate the psak and advice of your rav!

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