Carrying in Public and the Use of an Eruv II

Last week, I began discussing many of the background issues germane to whether one can erect an eruv to permit carrying in a city. We discovered that the Torah prohibits carrying an object from one’s house or any other enclosed area (halachically called a reshus hayachid), to an area available to the general public, a reshus harabim, or vice versa; or to carry an item four amos (about seven feet) or more within a reshus harabim. Even when there is no Torah prohibition involved in carrying the item, there may still be a rabbinic violation.

As we noted there, 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. I also mentioned that the construction of an eruv consisting of poles and wire cannot permit carrying in an area that is prohibited min haTorah. In addition, we learned that 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 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).

Some authorities add additional requirements.

We explained that an 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 rabbinic in origin, Chazal allowed a more lenient method of “enclosing” it.

At this point, let us continue our discussion.

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 left Egypt (see Tosafos, Eruvin 6a s.v. keitzad). According to Rashi and others who follow this approach, one may enclose any metropolis with a population smaller than 600,000 with tzuros hapesach to permit carrying. (In some places Rashi describes the city as having 600,000 residents, and in others describes it as having 600,000 people using the area constantly. The exact definition is the subject of much literature; see, for example, Shu”t Mishkenos Yaakov #120 s.v. hinei harishon; and Shu”t 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, if 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 in places with less than 600,000 people (see, for example, Aruch Hashulchan 345:18). Nevertheless, the Mishnah Berurah discourages carrying in such an eruv, since many Rishonim hold that an eruv in such a place is not acceptable (364:8; Bi’ur Halacha to 345:7 and to 364:2). There are different opinions as to whether Sefardim may follow this leniency, 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 the Jews’ encampment in the desert is considered a karmelis. Since this encampment covered approximately 50 square miles (or approximately 130 sq km), these authorities permit an eruv in any place where the population density is less than 600,000 people per 50 square miles (Shu”t Igros Moshe, Orach Chayim 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 (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 large contemporary 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, if 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 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 halachicwalls may be considered enclosed, despite open areas between the hedges, since each side is predominantly enclosed by either hedges or a house.

On the other hand, a breach wider than ten amos (about 17 feet, or about 5 meters) 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? If one encloses a large area with walls that run for miles but have large gaps, 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 of Brody, known as the Beis Efrayim, and Rav Yaakov of Karlin, the Mishkenos Yaakov. The Beis Efrayim contended that a breach invalidates an enclosure only because of a rabbinic prohibition and the area is considered enclosed min haTorah, whereas the Mishkenos Yaakov held that the breach renders the area as a reshus harabim min haTorah. The lengthy correspondence between these two authorities covers 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 its surrounding walls, notwithstanding their large gaps – in which case it may be possible to construct an eruv.

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 the Mishkenos Yaakov, it is impossible to construct an eruv around this area.

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 that consist predominantly of large buildings with small areas between the buildings, and streets that are much narrower than the blocks. 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, because the street is open at both ends. However, at certain points of the city, the street dead-ends into a street that is predominantly enclosed with buildings, fences, walls or something else. The result is that this section of the city can now be considered min haTorah as enclosed on three sides by virtue of the parallel buildings along both sides of the street and those at its dead end. Since, according to the Beis Efrayim, this area now qualifies as an enclosed area min haTorah, he also holds that 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 now also 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 this 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 contend, as explained above, that the gaps between the buildings invalidate the enclosure, thus leaving the area a reshus harabim, which cannot be enclosed (Shu”t Mishkenos Yaakov; Shu”t Mishnas Rav Aharon).

In conclusion, we see that a dispute among poskim over eruvin is not a 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 remove yourself from doubt.” Your rav, or your halachic authority, can guide you as to 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!

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.

Carrying Him Home

According to some commentaries, the source for some of the laws regarding the prohibition of carrying on Shabbos is in this week’s parsha. This certainly provides an excellent reason to discuss:

Carrying Him Home

Question #1: My son

“We were returning home in an area without an eruv, when my two-year old decided that he was walking no farther. Is there a halachically acceptable way for me to carry him home?”

Question #2: Public safety

“There is something dangerous lying in the street. May we remove it on Shabbos before anyone gets hurt?”

Question #3: Tefillin

“While taking a Shabbos stroll through the woods outside my town, I discovered some pairs of tefillin lying on the ground! Presumably, these were taken by thieves who broke into a shul, but subsequently abandoned them. Is there any way that I can bring these tefillin back to town?”

Answer:

All of the above questions involve carrying something on Shabbos in a place where there is no eruv. Our topic will be whether there is a halachic basis to permit carrying under these circumstances. As always, the purpose of this article is not to render decisions for our readers, but to introduce background and have the reader refer any related questions to his or her rav or posek. But first, some basic background.

What is “carrying”?

As we know, one of the 39 melachos of Shabbos is hotza’ah, which is violated by transporting an item from a reshus harabim, a public thoroughfare or open marketplace, into a reshus hayachid, an enclosed area, or, vice versa, by transporting from a reshus hayachid to a reshus harabim. The melacha also includes carrying or otherwise transporting items four amos (about seven feet) or more within a reshus harabim (Shabbos 96b; Tosafos, Shabbos 2a s.v. pashat). With reference to the laws of Shabbos, the terms reshus hayachid and reshus harabim are not determined by ownership, but by the extent to which the area is enclosed and how it is used. An area could be either publicly-owned or ownerless and still qualify as a reshus hayachid; an area owned by an individual might still qualify as a reshus harabim.

Akirah and hanacha

Violating this melacha min haTorah is defined by three steps.

(1) The first step is called akirah, literally, uprooting, which means removing the item from a place where it is at rest. The item must be at rest before the melacha is performed. “At rest” does not have to mean that it is on the ground – it could be resting on an item or piece of furniture, and, sometimes could even be “resting” in someone’s hand. Removing it from its “place of rest” qualifies as an akirah.

(2) The second step is the actual movement of the item, as described above.

(3) The final step is called hanacha, placing, which means that when the melacha activity is completed, the item is again “at rest.”

Let me use the first Mishnah of Maseches Shabbos for examples that explain these rules: One person, whom we will call “the outsider,” is standing in a reshus harabim, picks up an item that is located in the reshus harabim and passes it to someone in a reshus hayachid, “the insider.” If the outsider places the item into the hand of the insider, then the outsider has violated Shabbos – he (1) performed the akirah, (2) transported the item from a reshus harabim into a reshus hayachid and (3) performed the hanacha. Placing the item into the insider’s hand is considered hanacha, since the item is now “at rest,” and, when it reaches its resting point, it is in the reshus hayachid.

However, if the outsider merely extends his hand containing the item into the reshus hayachid, and the insider takes the item from the outsider’s hand, neither of them has performed a Torah violation of Shabbos. Although the outsider performed akirah and moved the item into the reshus hayachid (thereby performing steps 1 and 2), he did not complete the hanacha (step 3). Since the item was still in the suspended hand of the outsider, who himself was standing in a different area, it is not considered to be at rest in a reshus hayachid.

In this situation, the Mishnah explains that neither the outsider nor the insider has violated a melacha min haTorah. Nevertheless, both have violated rabbinic prohibitions, because Chazal prohibited performing akirah without hanacha and also prohibited performing hanacha without akirah. In addition, Chazal prohibited carrying something in the reshus harabim without either akirah or hanacha, and transporting something from a reshus hayachid to a reshus harabim, or vice versa, without akirah or hanacha.

Akirah and hanacha both within a reshus harabim

Similarly, the Torah’s prohibition to carry something or otherwise transport it four amos or more within a reshus harabim is only when there is both an akirah and a hanacha. If one transports it more than four amos, but did not perform both an akirah and a hanacha, the prohibition is only miderabbanan. Thus, if someone picks up an item in a reshus harabim, carries it four amos, but did not stop, and a different person removes it from his hand, neither of them has desecrated Shabbos min haTorah, although both violated rabbinic prohibitions for performing part of the melacha act.

What is a hanacha?

Here is another example of a case where no hanacha was performed. Someone picks up a bundle in a reshus harabim, places it on his shoulder, and walks with it more than four amos. At this point, he stops to adjust the bundle. The Gemara (Shabbos 5b) teaches that this is not considered a hanacha, and therefore the person has not desecrated Shabbos min haTorah.

However, if the person carrying the bundle stopped to rest, it is considered hanacha. (We will explain shortly what we mean that he “stopped to rest.”) Therefore, if he performed an akirah, carried a bundle more than four amos in a reshus harabim and then stopped to rest, he has performed a melacha, whereas if he stopped simply to rearrange his bundle and then continued on his way, he did not yet perform a melacha.

Less than four amos

In addition to the requirements of akirah and hanacha, one violates the melacha of carrying within a reshus harabim only when one transports the item at least four amos. Carrying an item less than four amos, called pachos mei’arba amos, in a reshus harabim does not violate Torah law. Whether this is prohibited by the Sages is the subject of a dispute among tana’im. According to the Rambam, it is permitted even miderabbanan to move an item less than four amos in a reshus harabim, whereas according to the Raavad, this is prohibited miderabbanan, except in extenuating situations.

A lenient hanacha

Until now, both akirah and hanacha have been sources of stringency, meaning that they have created a Torah prohibition, and without both of them, one does not violate the melacha of carrying min haTorah. However, there is actually a leniency that can be created by performing a hanacha. Here is the case: Someone transported an item less than four amos through a reshus harabim and then performed a hanacha, thereby completing this act of carrying. He then performs a new akirah and carries the item an additional short distance, but again less than four amos. Although, as we will soon see, it is prohibited to do this on Shabbos, there is no violation min haTorah; each time he carried the item, it was for less than four amos, since the two acts were separated by a hanacha.

Pachos pachos

What is the halacha regarding the following scenario: Reuven notices an item in a reshus harabim that he would like to move to a different location, more than four amos from where it currently is. He knows that it is prohibited min haTorah for him to pick it up, move it there, and put it down in its new location, since this constitutes akirah, moving it more than four amos, and hanacha. Instead, Reuven decides to do the following: he will pick up the item, move it less than four amos and put it down. Although he did both an akirah and a hanacha, since he moved the item less than four amos, this does not constitute a Torah violation, and, according to many rishonim, it is permitted lechatchilah. However, moving the item less than four amos does not accomplish what Reuven wants. In order to get the item to where he would like it to be, Reuven performs this process again – that is, he picks it up, moves it less than four amos, and puts it down again. This type of carrying is called pachos pachos mei’arba amos, meaning that although each time he carries the item he transports it less than four amos, he carries it this way more than one time. Reuven would like to repeat this process until he gets the item where he wants it. Is this permitted?

Indeed, Reuven’s plan will avoid desecrating a Torah prohibition of Shabbos, since he has successfully avoided performing melacha. However, Chazal prohibited someone from transporting an item this way out of concern that he may err, even once, and carry the item four amos or more and then perform the hanacha, thereby violating Shabbos min haTorah (Shabbos 153b).

However, the Gemara mentions that, under certain extraordinary circumstances, someone is permitted to transport an item in this manner. For example, someone walking through a reshus harabim discovers a pair of tefillin! He is concerned that, should he leave the tefillin where they are, they will be desecrated. The Gemara rules that, should the finder have no other option, he may transport the tefillin to a secure place via pachos pachos (Eruvin 97b). In other words, in order to avoid the desecration of the tefillin, Chazal relaxed the prohibition of carrying pachos pachos.

Babies and thorns

Similarly, the Gemara discusses this in the context of a baby who is outside of an eruv, and permits use of the heter of pachos pachos to transport him to an appropriate place.

In yet another example, the Gemara permits removing a thorn from a reshus harabim so that no one gets hurt (Shabbos 42a). Again, in an extenuating situation, Chazal permitted one to carry this way, even though it is usually not permitted.

At this point, we can address a different one of our above questions: “There is something dangerous lying in the street. May we remove it before anyone gets hurt?”

The answer is that one may remove it by carrying it less than four amos, stopping, and then repeating, as described above.

Must he sit down?

As I explained above, transporting something pachos pachos can be accomplished only when there is a proper hanacha to divide the two carrying acts into two separate halachic activities. What constitutes a proper hanacha in this instance?

There is a dispute between rishonim whether, in this instance, the person transporting the tefillin must sit down, or whether it is sufficient that he stop to rest while remaining standing.  Rashi (Avodah Zarah 70a) rules that it is sufficient for someone to stop to rest within four amos of his last stop. He does not explain how long he must rest for it to be considered a hanacha.

There are those who disagree with Rashi, contending that stopping to rest qualifies as a hanacha only when one truly wants to rest. However, when one’s goal is not to rest, but simply to avoid desecrating Shabbos, stopping of this nature while still standing does not constitute hanacha. According to this opinion, to avoid the prohibition of carrying on Shabbos, the tefillin transporter must actually sit down to qualify as having performed hanacha (Rabbeinu Yerucham, quoted by Beis Yosef, Orach Chayim 266 and 349, as explained by Magen Avraham 266:9).

How do we rule?

There is a dispute among early acharonim whether we follow Rashi or Rabbeinu Yerucham in this matter, but the majority follow Rashi’s approach that stopping to rest is adequate as a hanacha, even in this situation (Darchei Moshe, Orach Chayim 266:1; Magen Avraham 266:9; cf. Taz, Orach Chayim 266:4 who rules like Rabbeinu Yerucham).

Found tefillin

At this point, we can address one of our opening questions: “While taking a Shabbos stroll through the woods outside my town, I discovered some pairs of tefillin lying on the ground! Presumably, these were taken by thieves who broke into a shul, but subsequently abandoned them. Is there any way that I can bring these tefillin back to town?”

In this context, the Gemara rules that if one cannot safely remain with the tefillin until Shabbos ends, one may bring them back via the method of pachos pachos, meaning that one carries the tefillin for less than four amos, stops to rest, and then continues. According to Rabbeinu Yerucham, one should actually sit down when one stops to rest, whereas according to Rashi, this is unnecessary.

Karmelis

Until this point, we have been discussing the halachic rules that exist min haTorah, and we have dealt with areas that are either reshus harabim or reshus hayachid. However, there are many areas that do not qualify as either reshus harabim or reshus hayachid. A reshus harabim must be meant for public use or thoroughfare (Shabbos 6a) and must also meet other specific requirements, which I discussed in a different article. Any area that does not meet the Torah’s definition of a reshus harabim, and yet is not enclosed, is called a karmelis. Min haTorah, one may carry inside, into and from a karmelis. However, Chazal ruled that a karmelis must be treated with the stringencies of both a reshus hayachid and a reshus harabim. This means that it is forbidden to carry inside, into, or from any area that is not completely enclosed. This is the way we are familiar with observing Shabbos – one does not carry in any unenclosed area.

Nevertheless, the Gemara rules that there are exceptional situations when Chazal permitted one to carry in a karmelis. The Gemara mentions explicitly that should one find a thorn in a karmelis that might hurt someone, one can simply pick it up and remove it, since the prohibition of carrying within and out of a karmelis is only miderabbanan.

Pachos pachos in a karmelis

Is it permitted to carry pachos pachos in a karmelis? In other words, since carrying in a karmelis is, itself, prohibited only miderabbanan, and carrying pachos pachos in a reshus harabim is prohibited only miderabbanan, if we combine both of these aspects in one case, is it permitted to carry?

This question is discussed neither in the Gemara nor by most of the rishonim. Although there are several attempts to demonstrate proof one way or the other from the Gemara and the early authorities, none of the proofs is conclusive. There is a dispute among the later authorities, many contending that pachos pachos is prohibited in a karmelis (Tashbeitz 2:281; Shulchan Aruch, Orach Chayim 349:5; Gra), whereas others feel that there should be no halachic problem at all with carrying pachos pachos in a karmelis (Even Ha’ozer and Maamar Mordechai, Orach Chayim 349; Shu”t Avodas Hagershuni #104). Common practice is to prohibit carrying pachos pachos in a karmelis, following the ruling of the Shulchan Aruch.

Conclusion

Let us now examine our opening question: “We were returning home in an area without an eruv when my two-year old decided that he was walking no farther. Is there a halachically acceptable way for me to carry him home?”

According to what we have now learned, even if the area in question qualifies as a reshus harabim, if one were to pick up the child, carry him less than four amos, and then stop, this would be permitted under the circumstances. Assuming that there are two people to carry the child, there is even a better solution, one that space-constraints does not allow us to explain fully, and that is to have the two people hand the child from one to the other and back without either walking four amos at any given time. There is also another reason to be lenient in the case of a child old enough to walk, in that carrying him in a reshus harabim is not prohibited min haTorah, because of a principle called chai nosei es atzmo, which we will have to leave for a future article.

Difference of carrying

The melacha of hotza’ah, carrying, is qualitatively different from the other 38 melachos. Every other melacha results in some type of change, either physical or chemical, to the item on which the melacha is performed. In the case of carrying, the only thing being changed is the item’s location. Furthermore, the rules governing what is permitted min haTorah and what violates Torah law seem strange and arbitrary. Yet, we understand that these rules are part of our Torah shebe’al peh, and we have to study to learn how to apply them. The Navi Yirmiyohu (17:19-27) was concerned about carrying on Shabbos; it is a melacha like any other, yet people mistakenly think that it is not important. Indeed, we would not usually define transporting something as changing it functionally, which is what most melachos accomplish. Yet, this does not make the melacha of hotza’ah any less important than any other melacha.

Rav Hirsch (Shemos 35:2) explains that whereas other melachos demonstrate man’s mastery over the physical world, carrying demonstrates his mastery over the social sphere. The actions that show the responsibility of the individual to the community and vice versa are often acts of hotza’ah. Thus, the prohibition to carry on Shabbos is to demonstrate man’s subordination to Hashem, in regard to his role and position in his social and national life.

 

The Basics of Techum Shabbos

Question #1: Camping sisters

“My sister’s family and ours are each spending Shavuos at nearby campsites. We were told that we could get together at a third spot between our two places for a Yom Tov barbecue. If we return on Yom Tov with the leftovers, must we keep track of who brought which food?”

Question #2: Bungalow bar mitzvah

“A friend is making a bar mitzvah in a nearby bungalow colony. How can I find out if his colony is within my techum Shabbos?”

Question #3: Eruv Techumin

“A lecturer will be speaking in the mountains not far from where I will be spending Shabbos. I was told that he will be just a bit beyond my techum Shabbos. Is there a way that I can go to hear him?”

Introduction:

In 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 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 a two-day supply of bread on the sixth day. Each person should remain where he is — no man should leave his place on the seventh day” (Shemos 16:25-29).

Staying in place

Although someone might interpret the words, Each person should remain where he is — no man should leave his place on the seventh day to mean that it is forbidden even to leave one’s home, this is not what the Torah intends. According to Rabbi Akiva (Shabbos 153b; Sotah 27b; Sanhedrin 66a), the Torah, here, is indeed prohibiting walking beyond your “place” on Shabbos, but this proscription prohibits walking only more than 2000 amos (approximately half to two-thirds of a mile*) beyond the “locale” where you are spending Shabbos. This border beyond which it is forbidden to walk is called techum Shabbos, quite literally, the Shabbos boundary. How do we determine where this boundary is, beyond which I may not walk on Shabbos?

There are some basic factors that determine the extent and boundaries of one’s techum Shabbos. The first is whether you are spending Shabbos within a residential area or not. I am going to present several options which will help explain how to determine someone’s techum Shabbos.

Our first case is someone spending Shabbos in a typical city, town or village where the houses are reasonably close together, meaning that the distance between the houses is 70 2/3 amos (about 105-120 feet*) or less. In this instance, one’s techum Shabbos is established by measuring the 2000 amos from the end of the city, town or village. The “end” of the city is determined, not by its municipal borders, but by where the houses are no longer within 70 2/3 amos of one another.

When two towns or cities are near one another, halachah will usually treat the two towns as one, provided that the houses of the two towns are within 141 1/3 amos of one another (Mishnah, Eruvin 57a). This is twice the distance of the 70 2/3 amos mentioned above. The details of the rules when and whether one combines two cities for determining techum Shabbos purposes will be left for another time.

Techum Shabbos in a bungalow colony

Until now, we have discussed the techum Shabbos of someone spending Shabbos in a city. How far is the techum Shabbos of someone spending Shabbos in a resort hotel, side-of-the-road motel, or bungalow colony?

One spending Shabbos in a bungalow colony will have a techum that is at least 2000 amos beyond the last house of the colony. If there are other houses or bungalows within 70 2/3 amos of the residences of your colony, those houses or bungalows are included within your “place.” Under certain circumstances (beyond the scope of this article), they can be included within your “place” even if the houses or bungalows are within 141 1/3 amos of one another.

If the house, hotel or motel in which one is spending Shabbos is outside a city and more than 70 2/3 amos from any other residential building, one measures the techum Shabbos from the external walls of the house.

Shabbos while hiking

Someone spending Shabbos in an open field is entitled to four amos (between 6 – 7.5 feet*) as his “place,” and the 2000 amos are measured from beyond these four amos.

Proper placement

We have now established that the definition of one’s “place” for techum Shabbos purposes depends substantively on whether one’s residence for Shabbos is indoors and on whether there are other residences nearby. We will now learn that although techum Shabbos is a boundary of 2000 amos, one usually has a greater distance in which one may walk. This is because techum Shabbos is always measured as a rectangular or square area. We take the four points that are the easternmost, the southernmost, the westernmost and the northernmost points of your “place,” and then draw an imaginery straight line that begins at 2000 amos beyond each of these points. In other words, we will measure 2000 amos east of the easternmost point and draw an imaginery north-south line at that point. We will similarly measure 2000 amos north of the northernmost point and draw there an imaginery east-west line. We repeat this for the other two directions of the compass. The result is a rectangle (or perhaps a square) whose four closest points are each 2000 amos distant from your “place.” Obviously, this means that the techum Shabbos area is significantly larger than 2000 amos beyond one’s “place.” This establishes the techum within which one is permitted to travel on Shabbos. By the way, all the rules of the laws of techum apply on Yom Tov.

Property placement

One of the interesting, and lesser-known, details of the laws of techum Shabbos is that possessions is also bound by the laws of techum Shabbos. This means that my possessions cannot be transported on Shabbos beyond the area in which I myself can walk. This halachah is not usually germane to the laws of Shabbos, since, in any instance, it is forbidden to carry on Shabbos outside of an enclosed area. The halachah is therefore more germane on Yom Tov, when one is permitted to carry. For this reason, the discussion of these laws is in mesechta Beitzah, whose subject matter is the laws of Yom Tov. This subject is one of the main points of the fifth chapter of the mesechta.

Camping sisters

At this point, we can discuss our opening question: “My sister’s family and ours are each spending Shavuos at nearby campsites. We were told that we could get together at a third spot between our two places for a Yom Tov barbecue. If we return on Yom Tov with the leftovers, must we keep track of who brought which food?”

These two families are spending Yom Tov in locations where they have different techumin, yet they are close enough that there is some overlapping area located within both of their techumin. Each family may walk on Yom Tov to this overlapping area, carrying the items necessary for the barbecue. Everyone must be careful not to walk beyond the area of his own techum. In addition, since the items used for the barbecue were owned by one or the other of the families when Yom Tov started, each item may not be removed beyond its owner’s techum until Yom Tov is over. Thus, if one sister brought the hotdogs or the paper plates, the other sister may not take those items back with her, if she will be removing them to a place beyond her sister’s techum.

Min hatorah or miderabbanan?

The rules of techumin that I have so far presented are held universally. However, there is a major dispute whether these rules are min hatorah or miderabbanan. There are three basic opinions. The tanna Rabbi Akiva, mentioned above, rules that the Torah forbade walking on Shabbos more than 2000 amos from one’s place, as we previously defined it. The Sages who disagreed with Rabbi Akiva contend that the prohibition of traveling 2000 amos is only miderabbanan. (Whether Rabbi Akiva held that techumin on Yom Tov [as opposed to Shabbos] are prohibited min hatorah or only miderabbanan is a dispute among rishonim; see Rashi, Tosafos, and Turei Even, Chagigah 17b.) However, there is a further dispute whether the Sages contend that there is no prohibition of techumin min hatorah at all, and the prohibition is always only miderabbanan, or whether the basis for the prohibition is min hatorah. According to the Talmud Yerushalmi (Eruvin 3:4), traveling more than 12 mil, which is the equivalent of 24,000 amos (approximately 6 – 8.5 miles*), is prohibited min hatorah. This last position is quoted by the Rif (end of the first chapter of Eruvin). Several rishonim rule according to this Yerushalmi (Rambam, Hilchos Shabbos 27:1 and Sefer Hamitzvos, Lo Saaseh #321; Semag (Lo Saaseh 36); Sefer Hachinuch, Mitzvah #24). On the other hand, many rishonim (e.g., Baal Hamaor, Milchemes Hashem, and Rosh, all at the end of the first chapter of Eruvin; Ramban’s notes to Sefer Hamitzvos, Lo Saaseh #321; Tosafos, Chagigah 17b s.v. Dichsiv) contend that the Bavli disagrees with this Yerushalmi and holds that the concept of techum Shabbos is completely miderabbanan, and that the halachah follows the Bavli, as it usually does.

A nice-sized place

Six miles sounds like a distance considerably more than I would walk on a Shabbos. From where did the Yerushalmi get this measurement?

The basis for this distance is the encampment of the Bnei Yisrael while in the Desert, which occupied an area that was 12 mil by 12 mil. Thus, when the Torah told each Israelite not to leave his “place,” it prohibited walking outside an area this size (Tosafos, Chagigah 17b s.v. Dichsiv). According to the Talmud Yerushalmi, no matter when and where one is spending Shabbos, one draws a square or rectangle 12 mil by 12 mil around one’s city, colony or campground and this area is considered your “place.” Beyond this area, the Torah prohibited you to walk, according to the Yerushalmi.

Although it is anyway prohibited to walk beyond one’s 2000 amos techum on Shabbos and Yom Tov because of the rabbinic ruling of techumin, there are some practical instances where the question of whether there is a Torah-forbidden techum of 12 mil becomes germane. For example, the Gemara (Eruvin 43a) discusses whether the prohibition of techumin applies when one is more than ten tefachim above ground level, called yesh techumin lemaalah miyud or ein techumin lemaalah miyud. An example of this case, quoted by the poskim, is a situation in which someone wants to walk quite a distance on Shabbos atop narrow stands or poles that are all more than ten tefachim above ground. If one rules that there is no law of techumin above ten tefachim, ein techumin lemaalah miyud, then it is permitted to travel this way on Shabbos, no matter how far one travels. On the other hand, if there is a law of techumin above ten tefachim, it is prohibited to travel this way.

This question is raised by the Gemara, which does not reach a definite conclusion (Eruvin 43a). Both the Shulchan Aruch and the Rema (Orach Chayim 404:1) rule that one may travel lemaalah miyud for a distance greater than 2000 amos, because one may be lenient in a doubt regarding the rabbinic prohibition of techum shabbos. However, since traveling 12 mil is prohibited min hatorah according to those authorities who rule like the Yerushalmi, one should be stringent not to travel lemaalah miyud for a distance of 12 mil or farther. The Gra, however, rules that one may disregard the opinion of the Yerushalmi and the ruling of the Rambam, because the halachah follows the Bavli that there is no prohibition of techum at all min hatorah. Since the prohibition of techumin is always miderabbanan, one may be lenient to rule that ein techumin lamaaleh miyud. There could be contemporary applications if someone ended up on an airplane when Shabbos begins (for example, because of a life-threatening emergency), whether he is permitted, upon landing, to leave the airport terminal before Shabbos ends.

How do we rule?

Regarding the dispute between Rabbi Akiva and the Sages whether the requirement of remaining within a techum of 2000 amos is min hatorah or miderabbanan, it is universally accepted that we follow the opinion of the Sages that techum Shabbos of 2000 amos is miderabbanan. A result of this ruling is that if someone needs to use comfort facilities and there are none available within his techum, he is permitted to leave his techum for this purpose, because of the rule that kovod haberiyos, human dignity, supersedes a rabbinic prohibition (Berachos 19b).

Moving my techum Shabbos

“A lecturer will be speaking in the mountains not far from where I will be spending Shabbos. I was told that he will be just a bit beyond my techum Shabbos. Is there a way that I can go to hear him?”

The answer is that one certainly can, by creating an eruv techumin. This halachic entity allows me to move the “place” from where we measure the techum Shabbos. Ordinarily, my techum Shabbos is measured from where I am when Shabbos starts. However, when I make an eruv techumin, I move my “place” to the location of the eruv. If my eruv is placed such that both locations — where I am when Shabbos begins and where the speech will be delivered — are within its techum Shabbos, I may go hear the speaker.

But be careful. Creating an eruv techumin is not only a leniency, it also creates a stringency. Since I cannot be in two different “places,” if I use an eruv techumin, I have moved my techum Shabbos, not expanded it. Although I gain in the new direction, I lose the full techum I would have had in my actual location.

In this way, eruv techumin is different from the other two types of eruvin, eruv tavshillin made when Yom Tov falls on Friday, and eruv chatzeiros, which is made so that I can carry between two adjacent, enclosed properties that are owned by different people. The other two eruvin create leniencies but carry with them no attached stringencies. For this reason, the other two eruvin can be made for someone who does not know that the eruv is being made, since it provides him with benefits and no liabilities. However, since an eruv techumin includes liabilities, one cannot make an eruv techumin for someone who does not want it or who does not know about it (Mishnah, Eruvin 81; Shulchan Aruch, Orach Chayim 414:1).

Only for a mitzvah

There is another major difference between eruv techumin and the other two types of eruvin. One may use an eruv techumin only if there is a mitzvah reason to walk where it would otherwise be outside one’s techum (Eruvin 31a, 82a; Shulchan Aruch, Orach Chayim 415:1). For example, someone who wants to hear a shiur or attend a sheva brachos may use an eruv techumin to do so. But one may not use an eruv techumin to attend a social gathering, where no mitzvah is accomplished (see Mishnah Berurah 415:5). On the other hand, one may make and use either an eruv tavshillin or an eruv chatzeiros even if there is no mitzvah reason to do so.

How do I make an eruv techumin?

To make an eruv techumin, one puts some food before Shabbos where you want your “place” for Shabbos to be. There must be enough food there so that each person who wants to use the eruv techumin could eat two meals. If one used a condiment for an eruv, one needs to have enough so that each person who wants to use the eruv would have enough condiment for two meals. One recites a brocha asher kideshanu bemitzvosav vetzivanu al mitzvas eruv, and then makes a declaration that this is his eruv to permit him to walk in this direction.

Since this food will basically be left exposed to the elements and animals, many people use a bucket of saltwater, which qualifies as an eruv techumin. Note that saltwater does not qualify for the other two types of eruv, eruv chatzeiros and eruv tavshillin.

Because there are many complicated laws about eruvin that are beyond the scope of this article, I suggest that someone who needs an eruv techumin consult with his rav or posek.

Who instituted eruv techumin?

The Gemara teaches that Shlomoh Hamelech instituted eruvin (Eruvin 21b). We find a dispute as to which type of eruv the Gemara is referring to. Rav Hai Gaon (Teshuvos Hageonim #44) explains that Shlomoh Hamelech instituted eruv techumin, whereas Rashi (Eruvin 21b) and the Rambam (Hilchos Eruvin 1:2) explain that he instituted eruv chatzeiros.

Conclusion

The Gemara teaches that the rabbinic laws are dearer to Hashem than the Torah laws. In this context, we can explain these mitzvos, created by Chazal to guarantee that the Jewish people remember the message of Shabbos.

* All measurements in this article are meant for illustration only. For exact figures, consult your rav or posek.

 

Of Umbrellas and Eruvs

umbrellasQuestion #1: Umbrellas and Eruvs

“Why can’t I use an umbrella on Yom Tov or on Shabbos within an eruv? Is it a mitzvah to get wet?”

Question #2: My Shabbos Nap

“May I shade an area for my Shabbos nap by throwing a blanket on top of some lawn chairs?”

Question #3: Cocktail Torah

“May I place a cocktail umbrella on top of a drink on Shabbos?”

Answer: The original sunscreen

The umbrella, or parasol, was invented in the eighteenth century and came into use very quickly as a simple and practical way to be protected from the rain and the harshest rays of the sun. Shortly after its invention, we already find discussion among great halachic authorities whether this “new apparatus” could be used on Yom Tov or Shabbos in a location where carrying is permitted. Before analyzing their positions, we need to discuss the laws regarding the construction of an ohel on Shabbos and Yom Tov.

Building and roofing

One of the 39 melachos, categories of work that the Torah forbids on Shabbos, is boneh, constructing (Mishnah Shabbos 73a). A subheading, or toldah, of boneh is making an ohel kavua, which translates literally as creating a permanent roof or shelter (Rambam, Hilchos Shabbos 10:13). Constructing an ohel arai, a “temporary” roof, on Shabbos or Yom Tov, was not forbidden by the Torah, but was prohibited by Chazal, our early Sages. Now we need to define:

  1. What is considered a permanent ohel that is prohibited min hatorah?
  2. How do we define a temporary ohel, so that we know what is prohibited because of a rabbinic injunction?
  3. What type of covering, if any, is permitted?

What is an ohel kavua?

Based on how the Rif (Shabbos, beginning of Chapter 20), the earliest of the great halachic codifiers, presented the topic, most respected authorities understand him to rule in the following way: Virtually anything that covers an empty area at least a tefach (about three to four inches) long, a tefach wide and a tefach high is halachically considered a permanent ohel. This “roof” does not need to be connected to the ground in any way. According to this approach, assembling such a covering is a violation of Torah law, even if the ohel is intended to exist for only a short period of time. The defining line between a permanent ohel and a “temporary” one (ohel arai), which was not prohibited by the Torah but only by the Sages, is that an ohel kavua has a “roof” that is one tefach squared, whereas an ohel arai’s “roof” is narrower than a tefach.

If the ohel is not flat on top, but peaked, yet it widens to a tefach squared within three tefachim of its peak, it is also an ohel kavua that is prohibited, min hatorah, to assemble on Shabbos. Only if it is very narrow on top and does not widen at all, or only widens at a lower point, does it qualify as an ohel arai, whose construction is prohibited only because of rabbinic injunction.

Thus, according to this opinion, throwing a blanket over a few lawn chairs so that you can crawl underneath to play or relax violates a Torah prohibition. Even those who hold that this does not violate a Torah law agree that it is prohibited because of a rabbinic injunction.

We can already answer one of the questions asked above: “May I shade an area for my Shabbos nap by throwing a blanket on top of some lawn chairs?”

According to all opinions, this is prohibited. Some opinions hold that this is prohibited min hatorah.

What is permitted?

When is it permitted to make a temporary ohel?

According to this opinion, there are two situations in which a temporary cover, roof or tent may be assembled on Shabbos or Yom Tov.

  1. When the area being covered is less than a tefach in height (see Shu’t Noda Biyehudah. Orach Chayim 2:30, s.v. Vehinei; Nimla Tal, Boneh, 15). Covering an area this low is not considered creating a “roof.”
  2. When the ohel is very narrow — less than a tefach wide — and it is attached to something to make it easier to open and close (see Shabbos 138a). Since the area being covered is less than a tefach wide, it is not considered an ohel area min hatorah. We mentioned above that covering such an area is usually still prohibited, because of a rabbinic injunction. However, when there is some form of hinge to make its opening and closing easier, or any other indication that the ohel is meant to be opened and closed frequently, Chazal permitted its use on Shabbos or Yom Tov.

In addition, if a temporary ohel exists from before Shabbos or Yom Tov, it is permitted to open and close it. It is also permitted to make the ohel wider (Eruvin 102a).

A differing approach

Not all authorities accept this approach that assembly of any “roof” over an area of a tefach squared is an ohel kavua prohibited min hatorah. Others rule that anything temporary is prohibited only because of a rabbinic injunction (Mishnah Berurah 315:34). This latter approach contends that any temporary ohel that is hinged, or has some other indication that it is meant to be opened and closed regularly, may be opened and closed on Shabbos, even when it covers an area a tefach squared. Thus, some authorities rule that one may open and close the hood of a baby carriage on Shabbos, since it is clearly meant to be closed temporarily, and it is hinged to facilitate its opening and closing (Chazon Ish, Orach Chayim 52:6). Other authorities are less lenient, requiring that opening the hood on Shabbos is permitted only when it was open the width of a tefach before Shabbos (Magen Avraham 315:4; Shu’t Igros Moshe, Orach Chayim 4:105:3; Ketzos Hashulchan 120:4).

London, 1782

One of the first internationally distinguished authorities to discuss whether one may use an umbrella on Yom Tov or Shabbos is the Noda Biyehudah, Rav Yechezkel Landau, renowned posek hador and Chief Rabbi of Prague (Shu’t Orach Chayim, 2:30). Sometime in late 1782, as the American Revolution was beginning to wind to a close, Rav Leib Hakohen, a talmid chacham in London, sent a missive to the Noda Biyehudah. Their correspondence was not about how the redcoats and their Hessian mercenaries were getting by in the western hemisphere, but about important halachic matters. Rav Hakohen wrote that he felt that one may not use an umbrella on Shabbos, but that he had sent the question to a different, unnamed posek who permitted it. Rav Hakohen was still not comfortable with the lenient approach and, therefore, wrote to the Noda Biyehudah, presenting the two reasons why the first rav had ruled leniently. (Based on his level of scholarship, we may assume that the first rav was not from the American colonies.)

The first reason to permit use of umbrellas on Shabbos and Yom Tov was this posek’s opinion that an ohel must cover a specific, defined area, and an item which is constantly being moved from place to place, such as an umbrella, does not qualify as an ohel. The permitting rabbi substantiated this position on the basis of his understanding of Rashi (Shabbos 138b s.v. ela) that an item meant only to cover a person does not qualify as an ohel for the purposes of the laws of Shabbos. This is based on the following:

The Gemara rules that a type of felt hat called a siyana may not be worn on Shabbos if its brim is a tefach wide. Rashi explains that the Gemara’s conclusion that a wide-brimmed siyana may not be worn on Shabbos is because of concern that it will be blown off, and when the wearer retrieves it he may come to carry it in a public area, thus desecrating Shabbos.

The posek questioned why Rashi did not prohibit wearing a siyana on Shabbos because of making an ohel arai on Shabbos, since the brim is a tefach wide. The posek answered that since a hat is meant only to shelter a person who moves, this does not qualify as an ohel, which he defines as something that shelters a location. He rallied further evidence substantiating the truth of this principle by noting that, regarding the laws of tumas ohel, the Mishnah mentions several items, a bird in flight, fluttering cloth, or a ship that is sailing, that are not considered an ohel because they are in motion (Ohalos 8:4).

The second reason to permit the umbrella was based on the fact that it is hinged, to ease opening and closing. The permitting rabbi held that any temporary covering cannot possibly involve a Torah prohibition — the issue with an umbrella is only whether opening and carrying it violates the rabbinic injunction of an ohel arai. Since an umbrella is hinged, he felt that there are two valid reasons to permit using an umbrella on Yom Tov and on Shabbos within an eruv, although he admitted that some of the evidence for his position might be refutable.

However, Rav Hakohen felt that the reasons to be lenient were not sufficient and therefore referred the question to the Noda Biyehudah.

First response: Prague, 1783

On the eighteenth of Shevat, 5543 (1783), the Noda Biyehudah responded to Rav Hakohen, disputing both reasons of the permitting rabbi. He pointed out that careful analysis of the sources would reach the opposite conclusion. The Noda Biyehudah explained that there are many other ways to understand what Rashi wrote, such that they do not prove that something covering only a person is not an ohel. Furthermore, most authorities disagree with Rashi and, indeed, understand that wearing a siyana is prohibited on Shabbos because of the laws of ohel.

The Noda Biyehudah reports that several years previously, when the umbrella was first introduced to Prague, he taught publicly that it is strictly forbidden to use it on Shabbos, and that the prohibition might be min hatorah. He bases his approach on the Rif’s opinion that it is forbidden, min hatorah, to create any ohel that covers an area that is a tefach squared, which will certainly forbid the use of an umbrella. The Noda Biyehudah mentions that the majority of the people of Prague do not use umbrellas on Shabbos, in accordance with his ruling. He contends that, notwithstanding the fact that other rishonim (Rosh, Shabbos 20:2) clearly dispute the Rif’s definition of ohel, the Rif’s opinion should not be disregarded. Furthermore, in this instance, the Rambam (Hilchos Shabbos 22:29) may agree with him. Thus, we have two of the three great halachic codifiers (the Rosh being the third) ruling that a roof or awning constructed for very short term use may be prohibited min hatorah, if it is more than a tefach squared. This description seems to fit an umbrella very accurately. The Noda Biyehudah concludes that, indeed, the Rosh may be the only early authority that disputes this conclusion of the Rif, and that even the Rosh would prohibit use of an umbrella on Shabbos, albeit only because of the rabbinic injunction on an ohel arai. Many other authorities accept the Noda Biyehudah’s analysis of the topic (Aruch Hashulchan, Orach Chayim 301:113; 315:12; Shu’t Sho’el Umeishiv 3:2:42).

Nineteenth century Bratislava

On the other hand, the Chasam Sofer (Shu’t Orach Chayim #72) saw the responsum of the Noda Biyehudah and took issue with his analysis of the topic. In an undated halachic essay, the Chasam Sofer, posek hador of his generation and rav of Pressburg, concludes that although he does not recommend using an umbrella on Shabbos, he is not convinced that it is prohibited, and feels that if it is, it should be only because of rabbinic injunction, and not because it violates Torah law.

The Chasam Sofer first contends that no authorities hold that any type of temporary construction is prohibited min hatorah. Thus, he disputes those who interpret that the Rif and the Rambam hold that a temporary cover may be prohibited min hatorah. Second, the Chasam Sofer contends that something movable cannot be prohibited because of boneh, since all construction in the mishkan, which is the source of the melachos of Shabbos, was not movable. Third, there is no Torah concept of ohel unless the covering has walls that reach the ground. To sustain the last position, he notes that the Rif, himself, implies that this is a defining factor of an ohel kavua.

The Chasam Sofer contends that once he has established that an umbrella cannot possibly be an ohel according to Torah law, opening or carrying it on Shabbos is not even prohibited because of rabbinic injunction, because of its hinges, which are meant to facilitate its use. The Chasam Sofer thus concludes that although he does not advise using an umbrella on Shabbos, there is no technical violation in using it. He permits asking a gentile to open an umbrella on Shabbos for one to use, implying that he sees no problem at all with carrying it afterwards (obviously within the confines of an eruv). Several prominent halachic authorities follow this approach and permit use of an umbrella on Shabbos (Beis Meir, Orach Chayim 315; Daas Torah 301:40).

A lawn umbrella

We should note that the arguments raised by the Chasam Sofer as to why an umbrella is not an ohel may not apply to a lawn umbrella. This apparatus is meant for use in a backyard or garden, to provide shade against the sun. It is often left in its open position for months on end, or even indefinitely. Several prominent authorities contend that any ohel meant to remain open for more than a week is considered permanent, which would make it a Torah prohibition to open it (Pri Megadim, Mishbetzos Zahav 315:8; Eishel Avraham 315:1; Tiferes Yisroel, Kilkeles Shabbos 34:2).

In addition, since a lawn umbrella is not moved from one location to another, another of the Chasam Sofer’s reasons to permit a regular umbrella does not apply. Although one of the Chasam Sofer’s reasons, that an ohel is prohibited only when its “walls” reach the ground, applies to a lawn umbrella, it is difficult to rely only on this justification to permit opening a lawn umbrella on Shabbos. Therefore, there is strong reason to prohibit opening a lawn umbrella, even by a gentile, even according to the Chasam Sofer.

The position of the Chazon Ish

A third approach to the question of whether an umbrella may be used on Shabbos and Yom Tov is presented by the Chazon Ish (Orach Chayim 52:6). Although he concludes that it is prohibited to use an umbrella on Shabbos, his ruling is based on completely different considerations. He rejects the Noda Biyehudah’s position, contending that since umbrellas are meant for temporary use and are hinged for this purpose, opening them on Shabbos is not considered creating an ohel, just as opening and closing a door on Shabbos is not prohibited as an act of construction, since both are meant to be opened and closed frequently. The Chazon Ish rejects the position that any rishonim disagree with this definition of ohel. As I mentioned above, upon this basis, the Chazon Ish permits opening and closing the hood of a baby carriage on Shabbos. However, as I noted above, most authorities do not understand the Rif’s position as the Chazon Ish does, and consequently rule that one should leave the hood open at least a tefach before Shabbos.

Notwithstanding that the Chazon Ish rejects the Noda Biyehudah’s approach to the topic, he prohibits using an umbrella on Shabbos for two other, completely different reasons. First, he suggests that opening an umbrella might be prohibited because of tikun maneh, a general prohibition of completing items, which is a subcategory of the melachah of makeh bepatish. He then rules that opening an umbrella is forbidden as a takanas chachamim established by the Torah leadership of the recent generations to reinforce the sanctity of Shabbos.

Umbrellic conclusion

As I noted above, most authorities contend that there are rishonim who prohibit min hatorah creating a temporary ohel on Shabbos, if it is a tefach wide. It is indeed widespread custom to prohibit carrying an umbrella on Yom Tov or Shabbos, either because we are concerned about the prohibition of ohel, or, perhaps, because of the reasons advocated by the Chazon Ish.

A cocktail umbrella

At this point, I would like to discuss the last of our opening questions: “May I place a cocktail umbrella on a drink on Shabbos?”

A cocktail umbrella is a tiny umbrella used to decorate a glass. Since it does not resemble an ohel in any way, opening it on Shabbos is permitted.

Conclusion

Rav Samson Raphael Hirsch (Shemos 20:10) notes that people mistakenly think that work is prohibited on Shabbos in order to provide a day of rest. This is incorrect, he points out, because the Torah does not prohibit doing avodah, which connotes hard work, but melachah, which implies purpose and accomplishment. On Shabbos, we refrain from constructing and altering the world for our own purposes. The goal of Shabbos is to emphasize Hashem’s dominion as the focus of creation by refraining from our own creative acts (Shemos 20:11). By refraining from building for one day a week, we acknowledge the true Builder of the world and all that it contains.

 

Do People Live in the Zoo, Part II

PENTACON DIGITAL CAMERALast week, I raised the following questions:

Question #1: Checking inside the eruv

“Can the eruv fences, walls, and wires be checked religiously every week, yet the eruv is invalid?”

Question #2: Shabbos in a warehouse

“May one carry in a warehouse on Shabbos?”

Question #3: Do people live in the zoo?

What do the previous two questions have to do with the title of this article?

One may carry inside such an area only when it is no larger than 5000 square amos (Mishnah Eruvin 23a), which equals approximately 1000* square meters or 10,000-11,000 square feet. For the balance of this article, I will refer to an area larger than a beis sasayim, that is, one that contains more than 5000 square amos, as a large area, and any area smaller than this as a small area. There is another factor that must be met to permit carrying in a small area that is not enclosed for residential use – its length may not exceed twice its width by more than one amoh (Mishnah, Eruvin 23a).

We will now continue our topic from where we left it last week.

Water sources

If a body of water, such as a lake or stream, is within an enclosed area, is the area still considered mukaf ledirah? Similarly, if an area was mukaf ledirah and then became flooded, may one still carry there (Eruvin 24a-b)?

On the one hand, since people do not live under water one could argue that any area covered by water is, by definition, not suitable for human habitation. On the other hand, mankind cannot survive without water; a nearby source of potable water is definitely a residential need.

The halachah is that water covering the ground does not usually create a problem, but there are three factors to be considered:

The quality of the water – can people use it?

How large an area is covered by water?

How deep is the water?

If the water is deep, not usable and covers a large area (more than 2500 square amos), that area is not mukaf ledirah, and the enclosures surrounding it do not permit one to carry there.

How deep?

According to most authorities, one need be concerned only when the water is ten tefachim deep, which is about 80 centimeters or about 2.5 feet (Shulchan Aruch, Orach Chayim 358:11). Others are more stringent and are concerned when the water is only three tefachim deep (quoted in Biur Halachah ad loc.).

Water quality

What is meant when we say that the water is usable? This issue is a subject of dispute among both early and late halachic authorities. There are two basic approaches, a stricter approach, which defines usable water as being drinkable (Rashi, Eruvin 24b s.v. Dechazi), and a more lenient approach, which rules that water suitable for laundry and similar uses is considered usable (Rashba, Avodas Hakodesh, Beis Nesivos 1:14:90 and 3:3:144; Ritva, Eruvin 24a).

In today’s world, this dispute would, seemingly, have a very common application. The run-off from rainstorms in suburbia crosses fertilized and pesticide-treated lawns. This water is definitely unsafe to drink. As a result, water accumulating to an appreciable depth over a large area could invalidate an eruv. However, when the water looks clear and is therefore suitable for laundry use, the Rashba would rule that it would not invalidate the eruv, even if it is deep and covers a large area. Thus, whether this water invalidates the eruv should be dependent on the dispute between Rashi and the Rasha.

How do we rule?

There is an interesting halachic curiousity that results here. Two of the most respected late halachic authorities are the Aruch Hashulchan and the Mishnah Berurah. In the vast majority of halachic issues, the Aruch Hashulchan rules more leniently than does the Mishnah Berurah. However, this is one of the instances in which the Mishnah Berurah (Shaar Hatziyun 358:81) rules more leniently, permitting carrying within an enclosed area that contains non-potable water that may be used for laundry or for animals to drink. The Aruch Hashulchan (358:23) requires that the water be potable.

Water seclusion

What does one do if there is an area of land covered by water in a way that it has the halachic status of a carmelis? The halachah is that, as in the instance of other areas that are not mukaf ledirah, carrying is prohibited in the adjacent residential area only when the area covered by water is not separated by a mechitzah. For example, a stream that contains unusable water runs through an area surrounded by an eruv. Does this render the entire eruv pasul?

One possible solution: To construct a tzuras hapesach that separates the prohibited area from the permitted.

A second possible solution: If the banks of the stream are sufficiently steep, these banks themselves serve to divide the water area from the eruv area and no further adaptation is necessary.

The city eruv

At this point, let us examine the first question I noted above:

“Can the eruv fences, walls, and wires be checked religiously every week, yet the eruv is invalid?”

We now are equipped to answer this question. Indeed, if the area within the eruv includes a large area that is planted or contains non-usable water, that area must be cordoned off from the eruv area in a halachically acceptable fashion. This requires essentially creating some type of halachically-approved divider. Otherwise, the eruv is invalid, and one may not carry there.

Thus, even if an eruv’s perimeters somehow, miraculously, survived the onslaught of a hurricane of the magnitude of Sandy, one will still not be permitted to carry within the eruv if there are areas of deep, unusable water that are more than ~5500 square feet.

Planting and the city eruv

Some authorities rule that planting an area is less of a problem in a city eruv than it is in someone’s private area. This is based on the reasoning, mentioned in the Gemara, that planting in a karpif invalidates an individual’s residential “wall.” However, if an entire city was enclosed, the planting of one individual cannot invalidate the enclosure. (Shu’t Dvar Shmuel #259, who introduces this approach, described planting which, by its nature is temporary, inside a city wall. It may not follow that this can be compared to a modern city and its eruv.) There are authorities who dispute this approach and rule that planting invalidates any type of enclosure (Maamar Mordechai 358:14; Chazon Ish, Orach Chayim 88:25).

Does an overgrown area invalidate an eruv?

Thus far, we have learned how planting or water can invalidate an eruv. What is the halachah if an area becomes overgrown with weeds or other shrubbery? Will this invalidate an eruv?

The late authorities debate whether only a planted area invalidates an eruv, or even an area that becomes overgrown on its own. I leave this question for the local eruv committee to discuss with its halachic authorities.

Do people live in the zoo?

The preceding discussion about mukad ledirah serves as an introduction to understanding the question, “Do people live in the zoo?” a practical question that was raised as early as the eighteenth century. The author of a series of scholarly Torah works, the Ohr Chodosh, Rabbi Elazar ben Elazar, sent a halachic inquiry to his mechutan, the Noda Biyehudah, Rav Yechezkel Landau, the chief rabbi of Prague. Where the Ohr Chodosh was then rav, in Cologne, there was a menagerie of wild animals within the area that they wanted to include within the town’s eruv. Based on his analysis of the dfference between the cases that are considered mukaf ledirah and those that are not, the Ohr Chodosh wanted to permit the zoo area as mukaf ledirah. He begins his analysis with the question:

Why is a vegetable garden or wood storage area considered non-residential, and yet an area in which animals are penned (a dir) is treated as residential?

The Ohr Chodosh, himself, felt that the dwelling of an animal is considered a residential use, and that this is true even regarding the dwellings of wild animals. Therefore, if someone builds a zoo with enclosures for the tigers, lions, bears and other species, each enclosure has the status of mukaf ledirah and can be more than a beis sasayim without prohibiting carrying.

A different scholar, identified in the responsum simply as Rabbi Nissan, disagreed with the Ohr Chodosh, contending that animal pens are considered mukaf ledirah only when they include a hut or other type of residence where the shepherd lives. He notes that Rabbeinu Yonasan, the major commentary on the Rif on Eruvin, mentions this distinction. The Ohr Chodosh retorted that he found this restriction, that a dir is considered mukaf ledirah only when it contains a residence of sorts for the shepherd, in no other halachic source, and therefore concluded that Rabbeinu Yonasan’s ruling is a minority opinion. The Ohr Chodosh contended that most authorities would accept his analysis.

On Rosh Chodesh Nisan 5548 (1788), the Noda Biyehudah answered the letter of the Ohr Chodosh, siding with Rabbi Nissan. Although the Noda Biyehudah agrees that the other authorities may not accept Rabbeinu Yonasan’s requirement of a guard hut, the key difference between a dir and a vegetable patch is that a dir requires a human presence, whereas a vegetable patch does not require a human presence. The Noda Biyehudah contends that an enclosure for wild animals will not be considered mukaf ledirah, and will be prohibited if the area is more than a beis sasayim, since people do not dwell among wild animals.

In his responsum, the Noda Biyehudah does not discuss what is the exact difference between a dir and a ginah, but other authorities do. The Tosafos Shabbos explains the difference to be that a dir is used by people at night, whereas a ginah is used only during the daytime. The Biur Halachah explains the dissimilarity in a different way, contending that a dir is adjacent to the house, and includes milking and other uses that are domestic. Therefore, its use is incorporated with the use of the residence.

Roofed

From the case of burgenin and some others, it appears that even a roofed area can be considered not mukaf ledirah. This is the opinion of most halachic authorities, although one major authority feels that burgenin is an exception, and that most roofed areas can be considered mukaf ledirah.

Based on this discussion, one can ask whether a warehouse, larger than a beis sasayim, that does not contain any type of residence, is considered mukaf ledirah. The use of a warehouse is not domestic and therefore could be conceived as not mukaf ledirah.

This question involved a dispute between the Mishnah Berurah and the Chazon Ish. The Mishnah Berurah holds that since a warehouse is a strongly constructed building, it qualifies as mukaf ledirah, regardless as to why it was constructed and how it is currently used. The Chazon Ish challenges this position, insisting that unless a structure includes some place to be used for sleeping, it is not considered mukaf ledirah, unless it meets one of the categories that the Mishnah or Gemara qualify as mukaf ledirah.

The dispute between the Mishnah Berurah and the Chazon Ish should affect only the status of the warehouse itself, and that only if it is larger than a beis sasayim. However, since a warehouse is completely enclosed its status will not prohibit an adjacent area. Thus, the area within the eruv surrounding the warehouse will remain unaffected by its status.

Shuls, batei medrash and bathhouses

The Aruch Hashulchan notes that shuls, batei medrash and bathhouses are all buildings whose purpose is not for residential purpose. One is not permitted to use a shul or a beis medrash for personal use, and a bathhouse is also not used for typical residential use. The Aruch Hashulchan therefore concludes that all of these areas do not qualify as mukaf ledirah, unless they include some type of residence for the building’s caretaker.

Conclusion

Rav Samson Raphael Hirsch (Shemos 20:10) notes that people mistakenly think that work is prohibited on Shabbos in order to provide a day of rest. This is incorrect, he points out, because the Torah does not prohibit doing avodah, which connotes hard work, but melachah, which implies purpose and accomplishment. Certainly no more calories are expended when carrying from a reshus hayachid to a reshus harabim than when carrying a heavier item a greater distance within a reshus hayachid; yet, the first activity desecrates Shabbos and the second is permitted.

The goal of Shabbos is to emphasize Hashem’s rule as the focus of creation by refraining from our own creative acts (Rav Samson Raphael Hirsch Commentary to Shemos 20:11). Creating a beautiful Shabbos entails much planning and organization, realizing that preparation for Shabbos includes studying all the melachos of Shabbos. This helps us have a greater appreciation of Shabbos, and to get the maximum joy out of this special day.

* The measurements used in this article are meant only for rough calculation.

 

Do People Live in the Zoo?

PENTACON DIGITAL CAMERAQuestion #1: Checking inside the eruv

“Can the eruv fences, walls, and wires be checked religiously every week, yet the eruv is invalid?”

Question #2: Shabbos in a warehouse

“May one carry in a warehouse on Shabbos?”

Question #3: Do people live in the zoo?

What do the previous two questions have to do with the title of this article?

Answer: Invalidating an eruv from inside

With the direction of his rav, Yankel has joined the committee of makers and shakers working on building an eruv in his hometown. He now knows that the area in which he currently lives has the halachic status of a karmelis, an Aramaic word meaning an area in which one may not carry, but which can be enclosed to permit carrying. Creating the enclosure in a halachically approved way is what one does when building an eruv.

One of the benefits of his new project is that Yankel learns much about the laws of eruv. Among the laws he discovers is an entire area of halachah with which he was not familiar – that enclosing an area does not always permit carrying. Often, there is an area within the eruv that precludes carrying there. These areas are often called karpif, although Yankel discovers that this term is also not really accurate. As a result of his curiosity, he studies the relevant source material in the second chapter of Mesechta Eruvin, a topic that he, like most people, had never studied during his years in yeshivah.

What is a karpif?

Although min hatorah one may carry within any enclosed area, Chazal permitted carrying in a large area only when the enclosing of the area serves a residential purpose, which is called mukaf ledirah. If the enclosure was not mukaf ledirah, the area inside is also considered a karmelis in which one may not carry.

Technically, the word karpif means an enclosure outside the city in which one stores felled wood (Rashi, Eruvin 18a). However, the term is generally used to mean an enclosed area that is not mukaf ledirah.

Yankel learned that if an enclosure does not serve a residential purpose, one may carry within it only when it encloses an area that is no larger than the size of the courtyard of the mishkan, which was 50 amos (cubits) wide and 100 amos long, the size of 5000 square amos (Mishnah Eruvin 23a). An area this size is called a beis sasayim, an old farmers’ term based on how much seed they would plant there, and equals approximately 1000* square meters or 10,000-11,000 square feet. For the balance of this article, I will refer to an area larger than a beis sasayim, that is, one that contains more than 5000 square amos, as a large area, and any area smaller than this as a small area.

There is another factor that must be met to permit carrying in a small area that is not enclosed for residential use – its length may not exceed twice its width by more than one amoh (Mishnah, Eruvin 23a).

Why is a small karpif permitted?

Why may one carry in an area that is not mukaf ledirah when it is 5000 square amos or smaller? Was this size chosen arbitrarily?

Chazal permitted carrying in a small area, even when it is not mukaf ledirah, for the following reason: Since no one is permitted to live in the courtyard of the mishkan, the curtains that surround it do not make it mukaf ledirah. This would mean that carrying within the mishkan would be under the heading of a rabbinic prohibition. Yet this carrying was necessary on Shabbos for the regular functioning of the mishkan. Rather than treat the mishkan as an exception to the halachah, Chazal permitted carrying in any area that is this small, even when it is not mukaf ledirah (see Graz, Orach Chayim 358:3).

What is mukaf ledirah?

The definition of what qualifies as mukaf ledirah and what does not is, at times, not obvious. The Gemara (Eruvin 22a) itself states that there are instances when an enclosed area is roofed and resembles a building, yet it is considered not mukaf ledirah, and there are places that are open-air and yet have the status of mukaf ledirah. The Mishnah (Eruvin 18a) mentions four cases that qualify as mukaf ledirah, even though (according to Rashi) there is no roof over them. They are:

(1) Dir — a corralled area that one intends to plant eventually. At the moment, it is fallow, and one is grazing one’s livestock there, so that they naturally fertilize the field.

(2) Sohar, which is, according to Rashi, an area where the townspeople graze their animals, and, according to the Rambam, a prison.

(3) Muktzah — a backyard area.

(4) Chatzeir, a front yard.

The Ritva (Eruvin 22a) explains that the list is progressively more obvious; meaning that the first case, that of dir, is the least obvious “residential” area. Indeed, much halachic literature is devoted to explaining why an area enclosed for animals is considered residential, when, as we will soon see, areas enclosed for trees or vegetation are not.

Non-residential enclosures

Our next objective is to define what is considered a non-residential enclosure, eino mukaf ledirah, in which one may not carry unless it is small, as defined above. The Mishnah and the Gemara teach that several different types of enclosed areas are not mukafim ledirah. As I mentioned above, one of these is a karpif, an enclosure outside the city in which one stores felled wood (Rashi, Eruvin 18a). Similarly, a fenced-in orchard (Rambam, Hilchos Shabbos 16:1, based on Eruvin 25b), a vegetable patch or a grain field (Mishnah Eruvin 18a; Eruvin 23b) are not mukaf ledirah, even when they contain huts, called burgenin, for the watchmen (Eruvin 22a). In all of these instances, the fence built around the perimeter does not serve a residential need. Even the watchman’s hut is there not to serve as a residence, but to allow the watchman to remain nearby (Rashi, Eruvin 15a). (We should note that some authorities [Tosafos Shabbos, 358:1; Pri Megadim, Eishel Avraham 358:1] contend that if the watchman sleeps overnight in the hut, it is considered a residence. In their opinion, a burgenin is considered not mukaf ledirah because one uses it only in the daytime.)

We need to understand exactly why certain uses are considered residential, and others are not. However, prior to explaining these ideas, we need to clarify another aspect of this discussion.

Mixed neighborhoods

What is the halachah if an enclosure comprises both an area considered residential and an area that is not? For example, Yankel’s neighbor, Shmerel, has a large fenced-in backyard, which his family uses predominantly for barbecues and other recreation. It sounds as if this area should be treated as mukaf ledirah, even if it is larger than 5000 square amos. Indeed, its proximity to the house and its use would make this backyard mukaf ledirah.

However, this yard also includes a section planted with various spices and vegetables. As we learned above, a planted area is not mukaf ledirah. Do we consider the entire yard mukaf ledirah or not? May Shmerel’s family carry in the backyard? In the course of Yankel’s studying the laws of Eruvin, he discovered that carrying in his neighbor’s fenced-in yard might be prohibited!

A breached eruvNifratz bemilu’oh

To answer these questions, we need to explain a principle, called nifratz bemilu’oh, literally, breached in its entirety. Whenever an area in which one would otherwise be permitted to carry is open to an area where carrying is forbidden, the halachic result is that one may not carry in the otherwise permitted area (see Eruvin 25b). Thus, if it is prohibited to carry in the planted area, and the recreational part of Shmerel’s yard is nifratz bemilu’oh to the planted area, one cannot carry in any part of Shmerel’s yard (Shulchan Aruch, Orach Chayim 358:10). As we will soon see, this law has major ramifications for city eruvin also.

What is called “breached?”

Our next question, germane both to Shmerel’s yard and to our city eruv, is: How big a breach prohibits carrying?

There are two ways that a breach forbids carrying. One is when it is greater than ten amos, approximately seventeen feet or five meters. The other way is when the breach is smaller than ten amos but it comprises an entire side of the otherwise-permitted mukaf ledirah area. For example, if an otherwise-permitted rectangularly-shaped area is mukaf ledirah on three of its sides, but the remaining unwalled side opens to an area in which carrying is forbidden, even if the unwalled side is less than 10 amos wide one may not carry in the mukaf ledirah area.

In terms of Shmerel’s yard, this means that if the recreational part is not isolated from the garden, and the garden is large enough to prohibit carrying, the entire yard is prohibited. The same concept is true in a city eruv, as we will soon see.

How large a garden?

Before we can issue a ruling regarding Shmerel’s garden, we need one more piece of information. How large a garden will prohibit carrying?

The Gemara (Eruvin 23b-24a) states that if a planted area is larger than 5000 square amos, one may not carry in any part of the backyard. Even when the planted area is smaller than 5000 square amos, if the planted part is larger than the rest of the yard and the entire yard is larger than 5000 square amos, one may not carry in any part of it.

Healing a breach

Yankel and Shmerel measure the vegetable garden and the yard and discover that, lo and behold, one may not carry in Shmerel’s yard. Is there any way to fix the above problem to permit carrying within the recreational part of the yard?

Yes, there are at least two ways that one can do this. The first is to separate the recreational area from the planted area, and the second is to subdivide the planted area until it is small enough not to create a halachic issue. There are several ways of implementing either of these methods, but discussing them is beyond the scope of this article.

A flower garden

What is the halachah if Shmerel’s garden consists of a flower garden, rather than a vegetable patch? Does his flower garden invalidate the area for carrying, just as the vegetable garden did?

The halachic issue here is the following: People do not live in vegetable patches, but they do enjoy looking and smelling pretty and fragrant flowers. Is this a sufficient reason to consider a flower garden mukaf ledirah?

This matter is a subject of dispute, with different authorities on, shall we say, different sides of the fence. Although most authorities rule that a flower garden does not present a problem (see also Meiri, Eruvin 24a), the Divrei Chayim of Sanz (Shu’t Divrei Chayim, Orach Chayim 2:28) and the Sha’ul Umeishiv (Shu’t 3:131) were among the authorities who ruled that a flower garden will prohibit an eruv. Someone with a similar shaylah should refer it to his own rav or posek.

Fair lawn

As I mentioned above, the Gemara rules that a large, planted area for vegetables or grains will invalidate the eruv. Several halachic authorities say that a grass cover does not invalidate an eruv, since people relax by sitting or lying on the grass. However, can this logic apply when someone does not permit anyone to walk across their expensively tended lawn? This phenomenon, not uncommon in a modern suburban setting, implies that the contemporary lawn of this nature may not be considered mukaf ledirah and can therefore create a problem, if it is larger than a beis sasayim. I leave this question for the eruv movers and shakers to discuss with their posek.

Fenced first

Another halachic factor is that mukaf ledirah requires that the enclosure must have been constructed initially for residential use. This is called pasach u’le’besof hukaf, literally, he opened the entrance first and then afterwards enclosed the area (Eruvin 24a). However, if the area was enclosed when it did not yet have a residential use, providing it with a residential purpose later will not render the area one in which carrying is permitted.

For example, if Shmerel had originally decided to fence in his large yard because he wanted to plant vegetables, and only later decided to use it for domestic purposes, one may not carry in the yard, since its enclosure was originally not for domestic use. (There are ways to rectify such a situation, but this is a topic that we need to leave for a different time.)

Bitul mechitzos

We have yet to discuss another related question: What is the halachah if an area was originally mukaf ledirah, and then someone planted within the mukaf ledirah area? Does this now render the area a karmelis and prohibit carrying? As an example, let us imagine the following scenario: When Shmerel built the fence around his yard, his intention was for residential purposes, and it therefore had a status of mukaf ledirah. At this point, one could carry in the yard. Later, Shmerel decided to plant a large vegetable garden in the yard. Do we say that the yard remains permitted?

The halachah is that planting grain or vegetables invalidates the enclosure, and it is prohibited to carry in his yard.

However, there is an interesting halachah here. Not all planting invalidates the external walls. For example, the Gemara (Eruvin 23b) states explicitly that if one plants a large area of trees, one may continue carrying in the area. This ruling is very interesting, especially in light of the fact that a fence surrounding an orchard is not considered mukaf ledirah.

Trees versus veggies

What is the different between trees, which do not invalidate the eruv, and grain and vegetables, which do?

Rashi (Eruvin 23b) explains that people do not live in a vegetable patch; however, people will walk through an orchard to enjoy the shade. Thus, the planting of trees does not remove the designation of mukaf ledirah from the area.

As I noted above, the latter halachah applies only when one planted trees in an area that was already mukaf ledirah. In other words, there is a difference between enclosing the area, which requires that it initially is mukaf ledirah, and changing its status once it was mukaf ledirah. Enclosing an orchard is not considered mukaf ledirah.

We will continue this article next week…

* The measurements used in this article are meant only for rough calculation.

 

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!