The Laws of Creating an Eruv - Part V by Rabbi Howard Jachter

5757/1996

            After an interruption to discuss the importance of signing a halachically valid prenuptial agreement we return to our discussion of the laws of creating an Eruv.  We will finish our discussion of the laws of building a Tzurat Hapetach with a discussion of some of the major problems typically encountered when constructing a community Eruv.

 

Issues of Tzurat Hapetach

            Last week we discussed a number of the major issues involved in creating a Tzurat Hapetach.  This week we will discuss several others that often arise when building a communal Eruv.

 

An Obstruction Between the Vertical Pole and Horizontal Pole

            Acharonim debate whether an obstruction between a vertical pole and a horizontal pole invalidate a Tzurat Hapetach. The Mishna Berura 363:112 cites the Taz who rules that if a roof interrupts between the vertical pole and the horizontal pole, the Tzurat Hapetach is invalid. The reasoning seems to be that in order to view the vertical pole as if it extends all the way to the horizontal pole (the concept of   - see earlier essay), there must be no obstruction between the vertical and horizontal poles.  The Aruch Hashulchan (O.C. 363:46) and other Achronim (see Teshuvot Melamed Lehoil 1:66) disagree with the Taz and see no problem with their being objects located in the pathway between the vertical and horizontal pole.

            This question is of major importance when constructing a communal Eruv.  This is because when using utility poles to construct Tzurot Hapetach, often none of the wires which are attached to the pole travel above the pole.  As we mentioned last week a wire that passes on the side of the pole is not an acceptable Tzurat Hapetach.  The solution to this problem is to place a pole, which is at least ten Tephachim high, exactly beneath the wire in order to make a Tzurat Hapetach.  The problem is that often there are objects placed on the utility pole in between the vertical pole () and the utility wire.  Examples include utility boxes, campaign posters, and sign pointing to the nearest McDonald's (a problem I encountered in a community eruv I constructed).   Thus this dispute whether these objects disqualify the Tzurat Hapetach is particularly relevant today.

 

The Tapered Pole - The Chazon Ish

            A very common question is discussed by the Chazon Ish (71:12).  The issue is the acceptability of a pole which is wide on the bottom and is narrow at its top and a wire is attached to the part of the pole.  An argument could be made that no correction (an addition of a vertical pole) is necessary if the wire passes over above the bottom part of the pole at a point where it is at least ten tephachim above the ground.  The utility pole could be considered the "vertical pole" since the wire passes directly above the wide bottom portion of the pole.

            This is an especially relevant question today, because most utility poles are logs which are wide on the bottom and narrow on top.  Despite the possible argument that this would be an acceptable Tzurat Hapetach, the Chazon Ish rules that this is not a Kosher Tzurat Hapetach.  Since the situation has the appearance of a wire being attached to the side of the pole (   ), the Chazon Ish believes it to be unacceptable. The accepted practice is to be strict in accordance with the Chazon Ish.

            Another very important question is if a component of a Tzurat Hapetach is a situation within a "private domain" ( ), whether the Tzurat Hapetach is invalidated.  The Mishnah Berura (363:113) cites the strict ruling of the Mekor Chaim without citing a dissenting lenient opinion.

            Two possible reasons are given for this ruling.  One is simply that the Tzurat Hapetach would not be noticeable () if it is situated within a Reshut Hayachid such as a house.  Another explanation is that since halachically, the walls or fences that encompass a Reshut Hayachid extend "all the way to the heavens"   ) , see Shabbat 7a) the airspace above a Reshut Hayachid is halachically impenetrable.  An example would be a horizontal wire passing through a fenced-in backyard, which would be invalid according to this opinion.

            Other Achronim disagree with this ruling of the Mekor Chaim.  Teshuvot Chavatzelet Hasharon (I, 20) (an important authority who lived in Galicia in the early twentieth century) writes that the custom is to be lenient on this issue.  He adds that his father was exceedingly strict about halachic matters, but ruled leniently on this issue.  Rav Hershel Schachter relates that Rav Mendel Zaks (the great son-in-law of the Chafetz Chaim who served as "mashgiach ruchani" - spiritual guide- at Yeshiva University for many years) told him that the custom in Europe was to be lenient on this issue (Rav Schachter strongly urges communities to be strict about this matter).  This issue has not yet been resolved, as some communities are strict and others are lenient concerning this issue.

 

Saggy, Slanty, Zigzagging Horizontal Wires

            Poskim disagree concerning a number of issues that arise when constructing community Eruvin.

 

Saggy Wires - Mishkenot Yaakov and Rav Zvi Pesach Frank

            The Shulchan Aruch (O.C. 362:11) records the Talmud's (Eruvin 11b) requirement that the vertical poles be sufficiently strong that they could theoretically support a door (the thin strip of molding used in many Eruvin today meet the requirement according to most rabbis by virtue of the fact that they are attached to the utility pole - see Sha'ar Hatziyon 363:22).  The Shulchan Aruch adds that the horizontal wire connecting the vertical poles do not have to be strong.  It is satisfactory even if it is made from a very light material (').  The question is, though, is it permissible to be so light that it sways in the wind.

            The mishna Berura (362:66) presents two opinions in this regard.  The focus of the argument is whether the horizontal wire has to be sufficiently sturdy that it can withstand "conventional" winds (  ).  The rules that for a "Halachic" wall () to be valid it must be sturdy enough to withstand ordinary winds.  The same rule applies to a Tzurat Hapetach.  The question, however, is "Does it apply only to the vertical poles or even to the horizontal poles?"  The Aruch Hashulchan (362:37) rules leniently on this question and the Chazon Ish (71:10) rules strictly.  Common practice appears to accept the lenient approach.

            A related question is whether the horizontal wire is permitted to sag.  The Teshuvot Mishkenot Yaakov (cited by Sha'ar Hatziyon 362:56) and Chazon Ish (71:10) rule strictly that a sagging wire disqualifies a Tzurat Hapetach.  There are two problems associated with a sagging wire.  First, if the wire sags it probably sways in the wind, which is problematic according to some authorities.  Second, since people do not generally construct door frames with a sagging lintel (horizontal bar), it may not be a Kosher Tzurat Hapetach, as a Tzurat Hapetach should be constructed in a manner that replicates the way people construct door frames (see our discussion in last week's Kol Torah).  Interestingly, Rav Yoseph Dov Soloveitchik zt"l recalled (see Nefesh Harav p.170) that when as a child he visited his grandfather Rav Chaim Soloveitchik in Brisk, he went with the dayan (Rabbinic judge) of Brisk to check the community Eruv.  During that trip, the dayan made sure to tighten all the horizontal wires so that they did not sag, in conforming with the strict ruling of the Mishkenot Yaakov. 

            Despite these rulings, the practice of most communities of most communities in Europe is reported to have been lenient in this regard.  Indeed, Rav Zvi Pesach Frank (Teshuvot Har Zvi 2:18:8)  rules leniently in this issue.  In addition, the Aruch Hashulchan does not cite this strict ruling of the Mishkenot Yaakov.

            Practically speaking, this issue also remains controversial, some communities rely on the lenient opinions and others follow the strict opinion.  Some communities follow a compromise approach (see Rabbi Shimon Eder's Halachot of the Eruv p.24), that the horizontal wire may sag up to three Tephachim (approximately 9-12 inches).  The amount of three tephachim is an application of the concept of "levud," that a gap of less than three tephachim can be ignored.  For example, a chain link fence is viewed by the Halacha as a solid wall if the gaps between the links are less than three tephachim.

 

Slanty Wires

            The Mishna Berura (362:60) rules that if the "horizontal" wire is slanty, the Tzurat Hapetach is nonetheless kosher.  He cites in Sha'ar Hatziyun (362:46) that the opinion of Rav Akiva Eiger that if the wire is exceedingly slanty (  ), this disqualifies the Tzurat Hapetach.  The reasoning of Rav Akiva Eiger that door frames are not normally erected with the lintel being at an exceedingly great slant.  A frequently cited ruling is that of Rav Aharon Kotler zt"l (the founding Rosh Yeshiva of the Lakewood Yeshiva) that if the slant is less than 45 degrees, the Tzurat Hapetach is acceptable even according to Rav Akiva Eiger.

 

Zigzagging Wires

            Another issue that is often debated is how straight the horizontal wire must be.  The debate hinges to a great extent on what extent a Tzurat Hapetach must replicate a real door frame.  For a discussion of this issue see Rav Mordechai Willig, Beit Yitzchak 25:99.

 

Conclusion

            We have reviewed some of the major issues concerning how to build a Tzurat Hapetach.  It is hoped that the reader has grown to appreciate that in order to create a proper Tzurat Hapetach one must study and pay attention to detail.  Next week we will conclude our discussion of the laws of Eruv with a discussion of the issue of "Karpef," "Eruv Chatzeirot," and "Schirat Reshut."

The Laws of Creating an Eruv - Part VI by Rabbi Howard Jachter

The Role of Lawyers in Beit Din - Part II by Rabbi Chaim Jachter