Eruvin 22-23 The sea as an Eruv revisited, Islands, and הוקף לדירה

In an earlier post, we discussed the debate around whether the sea may be used to close off a מבוי on one side.

On the one hand, the sea is deeper than the minimum 10 טפחים required, and at least at some point, the gradient is also sufficient, and we know from elsewhere (Shabbos 100a) that a pit filled with water is viewed as if it is empty as far as its depth is concerned.

On the other hand, there is a concern that the sea (or river) banks might accumulate שירטון (rocks and sand) to the point that the required gradient is on longer there, exposing an unfenced area between the sea and the מבוי.

We also saw that there is a dispute amongst the Rishonim as to whether we take this concern into account or not.

Today, we discuss a situation where an area is enclosed by the sea on all sides.

In such a case, there might be no concern of שירטון, as the entire area, including any banks or beaches that build up, are enclosed by the sea and thus could make up one large רשות היחיד (private domain.)

On the other hand, there might be additional reason for stringency seeing as the sea is not only being used for an area that is already enclosed by regular partitions on 2 or 3 sides, and thus probably already a רשות היחיד on a biblical level, but in place of partitions on all sides altogether!

The Gemara brings the radical ruling of Rabbi Yochanan that Eretz Yisrael is considered one large רשות היחיד at least on a biblical level (his precise words can better be paraphrased that one does not become liable to biblical punishment for carrying within it)

The Gemara first suggests that this might be because of the mountains and trenches that surround it, but notes that if this was sufficient, one could argue that Bavel (Mesopotamia) should also be one big רשות החיחד, seeing as it is enclosed by the 2 great rivers, the Euphrates and the Tigris.

The Gemara then goes further and argues that if a huge area surrounded by partitions is automatically considered one large רשות היחיד (as implied on Shabbos …) , one can argue that continents are all surrounded by the ocean, making them one large רשות היחיד as well, effectively rendering the biblical melacha of הוצאה null and void!

The truth is that the simple interpretation of Rabbi Yochanan’s statement seems absurd on its own, given that there are so many sources that imply that the melacha of הוצאה certainly applies on a biblical level in Eretz Yisrael, including Rabbi Yochanan’s own view that Yerushalayim would be a רשות הרבים if not for its doors being locked at night.

It is likely that the Gemara simply chose to ask further difficulties to highlight the further absurdity of this interpretation, rather than do so at this earlier stage (yet see Tosfos who deals with this issue.)

The Gemara thus concludes that Rabbi Yochanan is not referring to the whole of Eretz Yisrael, but only to the mountain passes in it.

It follows that there must be some limit regarding either the size or the nature of the area enclosed by partitions in order for it to be considered a רשות היחיד, and that neither Eretz Yisrael nor Bavel falls within whatever this limit is.

It is interesting that the Gemara did not mention the example of an island at all, which one could also have argued should be a רשות היחיד.

It could be that unlike a huge continent, the Gemara does not see this as such an absurd proposal, in which case we would need to find a cut-off point which defines the halachik parameters as to what is considered an island.

It is also possible, that the Gemara simply “went for the throat” as suggested above, choosing more extreme examples to highlight the absurdity of the idea, but an island would also clearly not qualify as a רשות היחיד .

In terms of the maximum size of a רשות הרבים, we have already seen that even a huge area can be closed off by complete partitions (as opposed to inferior partitions which have limitations at least on a rabbinical level) so basing the limit on size is far from straightforward.

Similarly, when it comes to purpose, we see here on daf 23b that large קרפפים are rabbinically disqualified from being considered a רשות היחיד, seeing as they were not closed off for the purpose of “living in,” but on a biblical level, this does not appear to be an issue either, and Rabbi Yochanan rules (Eruvin 67b) that one who throws from a רשות הרבים into such a קרפף is biblically liable- this forms the basis for the related sugya on our dapim (Eruvin 23b) as well.

The Rashba raises this issue and leaves it unresolved.

On the other hand, the Tosfos on our daf suggests that there is a difference between a partition made by people, which at least on a biblical level can enclose an area of any size, and a natural barrier, such as mountains or the sea, which is more limited even on a biblical level. The Meiri, though a little cryptic, seems to say a similar thing, differentiating between walls and “mountains and seas”

They too however, do not appear to define precisely what this limitation is- perhaps the main criteria would be whether the enclosed area is all ראוי לדירה (fit for human habitation,) which might exclude any islands which contain uninhabitable jungle, bush, desert or the like, but this needs further study.

The Ritva takes an entirely different approach, and quoting his Rebbe (probably Ramban,) claims that for any area to be considered a רשות הרבים even on a biblical level, one needs to רואה עצמו בתוך המחיצות (literally – see oneself inside the partitions.)

This phrase requires understanding, but the simple explanation seems to be that so long as one is able to see that he is inside a partitioned off area, (possibly even from a high vantage point, which could be possible even on very large properties) it is considered a רשות היחיד – if not, then it remains a רשות הרבים. (In truth, the Ritva points to his explanation of the sugya in sukkah 4b in the name of the Ramban which at face value does not appear to me to fit with this understanding, nor with the flow of the sugya here, but that’s for a more detailed study.)

This leaves open the possibility that according to this view, smaller islands would indeed be a רשות היחיד, at least on a biblical level, but means that larger properties without any line of site to the boundaries might not qualify, even if surrounded by man-made partitions!

These posts are intended to raise issues and stimulate further research and discussion on contemporary topics related to the daf. They are not intended as psak halacha.

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