Eruvin 89-90 The dispute over roofs and הלכה כדברי המקיל בערוב revisited

The new chapter opens with a fascinating dispute about various unusual private domains that are not primarily used for living in, but have some other, if not limited, use.

The opening Mishna starts with the view of Rabbi Meir who considers all roofs within a certain proximity to each other to be considered as if they are one large private domain, even if they are owned by different people.

We recall that even though on a biblical level, there is no problem with transferring something directly from one private domain to another, Chazal forbade transferring items between adjacent private domains owned by different people or from a private domain owned by one person to  a shared courtyard or vice versa, in the absence of an eruv chatzeiros.

This is in order that one should not become confused and think that transferring from any domain to another is permitted, thus coming to transfer things between a private and public domain and vice versa.

Rabbi Meir is of the view that this prohibition is limited to transferring from one house to that of another or one type of private domain to a different type of private domain, but that roofs (and we shall see soon, also courtyards and קרפפים  ) have limited use, are not affected by the dwellers below and do not share this concern( see Rashi ).  As such, one may transfer items  directly from one roof to another, so long as the one roof is not more than 10 tefachim below or above the other, a limitation the Gemara explains later.

The Chachamim on the other hand, do not agree with this leniency, and hold that the roofs have the same divided status as the houses underneath and one may not transfer things from one roof to another.

The third and most lenient view is that of Rabbi Shimon, who holds that so long as an item was on a roof, in a courtyard, or a קרפף on erev shabbos and not in a house, one is permitted to transfer it directly from anyone of these three types of private domain to another!  the Gemara brings the case where Rebbe said that they used to “carry” their towels and annointing oil through these kind of domains to the spring in which they would wash and back on shabbos!

Whereas I hope to focus on this view of Rabbi Shimon and whether it is authoritative in a later post, I would like to focus today on a dispute between Rav and Shmuel regarding the opinion of Chachamim, which might also be relevant to the view of Rabbi Shimon.

This debate is regarding an important principle regarding partitions, known as גוד אסיק מחיצתא  (the partition carries on upwards), the more widely applied cousin of the principle we discussed in the previous post, namely גוד אחית מחיצה  (the partition carries on downwards) and its sibling rule of  פי תקרה יורד וסותם (the edge of the ceiling continues downwards and seals.)

This rule might be what allows us to view a raised area such as a roof, higher than 10 tefachim vertically, or in a horizontal displacement of 4 amot, to be viewed as a private domain, seeing as the vertical rise below is considered to continue upwards enclosing the raised area.

The dispute centers around the status of a roof that is open to the neighbor’s roof.

According to Chachamim, it is forbidden to carry from the one roof to the other.

The Question is whether one may carry things around within the limits of the one roof itself?

This is because  being open to the neighboring roof means that it is open to a place to which items may not be transferred from it, and the rule is that any domain that is open to another domain to which items may not be transferred is itself considered similar to a כרמלית  in that one may only transfer within 4 amos even inside it.

Although each roof is viewed to be surrounded by the “rising” walls below, the area between the roofs might be viewed as open.

Whereas Shmuel holds that the boundary wall between the houses below is also consider to “rise upwards” and close the gap between the roofs, Rav is of the view that the rule of גוד אסיק  only applies where the partition below is noticeable from the top. In a case where there is no gap between the roofs, the roofs effectively hide the boundary wall below from the view of those on the roof, and the boundary wall cannot be said to rise and close the gap.

This would make a major difference as to how one can carry things on a roof according to Chachamim, and even according to Rabbi Shimon, it will also be relevant when it comes to items brought from the house to the roof on shabbos, to which his leniency does not apply.

When it comes to how to rule in this debate, we are faced by contradictory rules.

On the one hand, the halacha generally follows רב  against שמואל  except in 3 cases (see for example Shabbos 22a.) On the other hand, we also hold that הלכה כדברי המקיל בעירוב (the halacha is like the lenient opinion when it comes to eruvin,) even against a majority and against existing rules of psak (see Eruvin 46a.)

The Ritva rules that the halacha is like Rav as usual, because the rule of הלכה כדברי המקיל בעירוב  does not apply in our case.

He proves this from an earlier sugya (Eruvin 81b) which states that even though the halacha is like Rabbi Yehuda regarding Eruvin, this is only regarding the laws of the eruv itself, but when it comes to the laws of the מחיצות , the partitions required to define the status of the domains that the eruv is made for, this is not the case- it is in fact Shmuel who restricts this rule in that way.

The Ritva seems to understand that the rule that the halacha follows Rabbi Yehuda refers to his many leniencies and is an application of this rule of הלכה כדברי המקיל בערוב, and that its limitation to the laws of eruv proper and not those of the partitions, proves that its parent rule, namely הלכה כדברי המקיל בערוב  is similarly limited. This appears to be the understanding of the Yerushalmi too, which I hope to discuss in a later post.

The reason for this distinction could be that whether an eruv is valid or not affects only rabbinical laws, the validity of a partition can also determine whether an area is biblically defined as a private or public domain (or neither) and this rule can therefore not be universally applied as an extension and further leniency in the general rule of ספק דרבנן לקולא  (assuming this is indeed what it is, ואכמ”ל)

Even though the affected halacha is not always biblically, to avoid confusion, the extended leniency of eruvin is inapplicable in all cases regarding מחיצות .

Seeing as many Rishonim and poskim apply the later rule to many undecided disputes regarding eruvin, this distinction would have a massive impact when it comes to any undecided disputes regarding partitions. 

There is much to write regarding the scope of  the rule of הלכה כדברי המיקל בעירוב and whether it also applies to partitions, and this is indeed the subject of much discussion and dispute amongst the Rishonim.

Before getting to the Rishonim and Poskim, there are many sugyas relevant to the discussion, and I hope to revisit this in a few days again the next time it comes up!  

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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