The Laws of Creating an Eruv - Part I by Rabbi Chaim Jachter


                Parshat Breishit is the first source of our observance of Shabbat.  Hence, this week is appropriate to begin our discussion of the laws of creating an Eruv.  Unfortunately the construction of Eruvin has created much controversy in many communities.  It is our hope that our extended discussion of this topic will shed light on various opinions and practices regarding Eruvin and thereby encourage mutual respect for the varying practices regarding reliance on Eruvin constructed in towns and cities.

                There are three primary areas in which creating an Eruv is a source of disagreement.  The first is whether an area is suitable for creating an Eruv.  The second is precisely how to create the Eruv, and the third area of disagreement is how שכירת רשות (renting the area enclosed by the Eruv) is conducted in a democratic society.  This week we will begin by discussing what areas are appropriate for creating an Eruv.


The Four Domains

                The Gemara (Shabbat 6a) delineates the four major categories of areas regarding Shabbat.  A Reshut Hayachid (private domain) is surrounded by walls of a minimum height of ten handbreaths (tephachim, approximately forty inches) and has a minimum area of four tephachim by four tephachim.  Generally speaking, one is permitted to carry within a Reshut Hayachid on Shabbat.

There are two areas where carrying on Shabbat is forbidden.  The first is a Reshut Harabim (public domain).  It is Biblically forbidden to carry in a Reshut Harabim on Shabbat.  The second category is a Karmelit, which is an area in which it is Rabbinically forbidden to carry.  The third is a Reshut Hayachid, a private domain.

                The fourth area, a Makom Petur, is an area within a Reshut Harabim, which is at least three tephachim high and whose area is less than four tephachim by four tephachim (see Mishna Brura 543:03).  A Makom Petur is a neutral area from which it is permissible to carry into a Reshut Harabim or Reshut Hayachid.


Converting a Reshut Harabim or Karmelit into a Reshut Hayachid

                A major difference between a Karmelit and a Reshut Harabim is the way they are converted into a Reshut Hayachid.  It is relatively easy to change a Karmelit into a Reshut Hayachid.  One may surround a Karmelit with "Tzurot Hapetach" (doorframes) and it becomes a "Reshut Hayachid."  A "Tzurat Hapetach" consists of a wire strung on the top of two poles.  In a future section of our discussion of the laws of Eruvin, we will, God willing, discuss the details regarding how to construct a "Tzurat Hapetach."

                It is much more difficult to convert a Reshut Harabim into a Reshut Hayachid.  Either the Reshut Harabim must be surrounded by a wall or a fence to change it into a Reshut Hayachid (a fence whose links are less than three tephachim (לבוד) apart is the halachic equivalent of a solid wall - many of the Jewish communities in Judea and Samaria are surrounded by security fences which also make these towns into a halachic private domain).  If a Reshut Harabim is enclosed one all sides by doors in the evening, it is no longer a Reshut Harabim (Chatam Sofer, Teshuvot 88, believes it becomes a Reshut Hayachid, whereas the Chazon Ish, Orach Chaim 87:1 argues that it becomes a Karmelit).  The classic example of this phenomenon is found in Eruvin 22a, where the Gemara stated "had Jerusalem's doors not been locked in the evenings, the city would be considered a Reshut Harabim."  In a few locations in the United Sates (including the Upper West Side of Manhattan) "doors" have been "installed" to encompass an area that may possibly be considered a Reshut Harabim.  See Tzitz Eliezer 41:09 for a discussion of the type of doors erected in the city of Amsterdam.  See Netivot Shabbat (a contemporary work which throughly reviews the laws of Eruvin) chapter 32 for a general review of the literature regarding דלתות, doors that eliminate the status of Reshut Harabim.


Rabbi Yehuda Halevi's Explanation

                Rabbi Yehuda Halevi (the great Jewish philosopher and great poet of the eleventh century) explains why only a Tzurat Hapetach is necessary in order to convert a Karmelit into a Reshut Hayachid (Kuzari 3:15).  He explains that since carrying in a Karmelit is only a rabbinic prohibition, the Rabbis provided a relatively simple way to remove this  prohibition.  The Rabbis made this enactment, Rabbi Yehuda Halevi explains, "to prevent treating rabbinic restictions with the same stricteness as the Torah restrictions and to provide the Jewish people some liberty in moving about."


The Difference Between a Reshut Harabim and Karmelit

                What emerges from our discussion is that it is of enormous importance to determine whether an area is defined as a Reshut Harabim or a Karmelit.  The precise definitions of these categories has been debated since the earliest Rishonim to the present day.  A central issue is whether the presence of 006,000 people in an area is necessary to define that area as a Reshut Harabim.  Some Rishonim indeed believe that an area must have 006,000 people present in order to constitute a Reshut Harabim.  They reason that since the practices and the activities of the Jewish encampment in the desert as recorded in the Torah is the paradigm for forbidden activities on Shabbat the following argument can be made.  Just as the prohibition of carrying in the desert (which of course was a Biblical prohibition) applied in an area where at least 006,000 were present, so too an area is considered to be Reshut Harabim (in which there is a Biblical prohibition to carry) only if 006,000 people are present within it.  We will now review the varying opinions regarding this question.



                The Rambam (Hilchot Shabbat 41:1) makes no mention of the requirement that 006,000 people need be present in order to constitute a Reshut Harabim.  He does, however, mention as a criterion, that the street be at least sixteen Amot (approximately 82 feet) wide (see Shabbat 69b and 99a).  Rashi, however, (Eruvin 95a s.v. עיר) writes that a city that does not have 006,000 people that enter it regularly is not considered a Reshut Harabim because it is dissimilar to the Israelite's encampment in the desert."  Tosafot (Eruvin 6a s.v. כיצד) record that the Behag was of this opinion as well.  In addition, from the fact that Tosfot here do not disagree with Rashi and the Behag seems to indicate that Tosfot subscribes to this view as well.

                This opinion continued to be debated throughout the period of the Rishonim.  A major problem with the "006,000 people opinion" is that the Gemara (Shabbat 6a) describes at some length what constitutes a Reshut Harabim and yet does not explicitly mention of the requirement for the presence of 006,000 in either the Babylonian or Jerusalem Talmud.  The only basis for this opinion is the argument that an activity is considered Biblically prohibited only if it is similar to the way that act was performed in the Tabernacle (see Shabbat 37b-47a).  The Rishonim debate whether the presence of 006,000 people is requiredin order for an area to be considered similar to the conditions in the Tabernacle.

Shulchan Aruch and Commentaries

                The Shulchan Aruch (Orach Chaim 543:7) cites the view that does not require the presence of 006,000 people as the primary view and the opinion that requires 006,000 as the secondary view.  This seems to indicate that the Shulchan Aruch accepts the view that does not require the presence of 006,000 people, to be normative.  The Rema does not add a comment to the codification of the Shulchan Aruch but elsewhere (643:3) indicates that the "006,00 people opinion" is considered to be normative.

                Both the Magen Avraham (543:7) and the Taz (543:6) cite the views of two great authorities the Maasat Binyamin (29) and Maharshal (Yam Shel Shlomo Beitza no. 08) who rule that the presence of 006,000 people is not required.  However, both the Magen Avraham and Taz disagree with these authorities and write that the majority of authorities side with Rashi and Behag that the "006,000 people position" is correct.  The Taz rules that the "006,000 people position" is the generally accepted position as well.  On this basis, the Aruch Hashulchan (543:71) writes, were all the Eruvs of the towns and villages of Jewish Eastern Europe built.  These Eruvs consisted of Tzurat Hapetach and presumed that only cities in which more than 006,000 people resided required more than Tzurot Hapetach to create a Reshut Hayachid.


The Mishkenot Yaakov's Criticism

                However, in the early nineteenth century the Teshuvot Mishkenot Yaakov (Orach Chaim 021-221) strongly criticized the practice of Eastern European Jewry to rely on their Eruvin.  He was critical of the ways the Eruvs were constructed (e.g. the wires sagged, there were no place for hinges on the Tzurot Hapetach (see Eruvin 11b) our practice is that a place for hinges are not required, see Aruch Hashulchan 263:13).  Most of all, he was critical of the fact that Tzurot Hapetach was relied upon to create an Eruv.  He asserted that many Rishonim had been printed since the time of the Shulchan Aruch was written and  that these Rishonim tipped the balance of majority opinion in favor of those who reject the 006,000  opinion.  He then strongly argued that the towns and villages of Central and Eastern Europe should be considered Reshut Harabim.


Reaction to the Mishkenot Yaakov's Criticism

                Reaction among halachic authorities was mixed to the Mishkenot Yaakov's criticism.  His cousin, the author of Teshuvot Beit Ephraim (number 62) defended the practice to rely on the Eruvin consisting of Tzurot Hapetach.  The Aruch Hashulchan (263:81) in the late nineteenth century writes that it is as if a heavenly voice proclaimed that the "006,000 people opinion" is correct.  The Mishna Berura (543:32 and Biur Halacha s.v. וי"א) strongly urges pious individuals (בעל נפש) to be strict and not to carry within an Eruv that is based on the "006,000 people opinion."  However, he writes that one should not rebuke those who are lenient and rely on the "006,000 people opinion."  For a summary of this issue see Rabbi Elimelech Lange (Hilchot Eruvin 12-82).

                Next week we will discuss the question of creating an Eruv consisting of Tzurot Hapetach in cites with a population larger than 006,000 people.   

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