Eruvin 93-95  When the Eruv comes down, שבת הואיל דהותרא הותרא , and הלכה   כדברי המיקל בערוב revisited

When it comes to Eruv Techumim, we have seen that the golden rule regarding whether the eruv is valid is that if it is valid during the period of בין השמשות at the beginning of shabbos, it is valid the whole shabbos, even if the eruv food is later lost,eaten, or destroyed .

When it comes to ערוב חצירות and the מחיצות required for them, the situation is less simple.

At the bottom of Eruvin 93a, רב הושיעא asks what happens if new inhabitants enter a courtyard on shabbos?

Do we say that seeing as they were not there for the beginning of shabbos and their lack of participation in the eruv thus never invalidated everyone else’s eruv, the eruv remains valid for the whole shabbos despite their lack of participation therein, or do we say that seeing as they cannot join the eruv on shabbos, their presence now invalidates the eruv for the rest of the shabbos ?

Rashi gives the example of two courtyards separated by a common wall, who both make their own eruvin.

The wall then falls down, and each courtyard suddenly has a whole lot of new “inhabitants” that could render their eruv invalid.

Rav Chisda suggests a proof from the Mishna which says that if a large courtyard’s boundary wall with a smaller one is breached, the inhabitants of the large courtyard invalidate the eruv of the smaller courtyard.

He assumes that this is referring to if it was breached on shabbos, and we see from this that even if an eruv was valid for part of shabbos, it can be invalidated on shabbos through “new inhabitants.”

Rabbah, however, says that this Mishna might be referring to when the breach occurred before shabbos, and Abaya notes that according to Rabbah, it MUST be referring to such a case, as Rabbah himself had told Abaya that he has asked Rav Huna who in turn asked Rav Yehuda about a related case:

This was about two courtyards that made a joint eruv by means of an opening in their shared boundary wall which became sealed during the course of the Shabbos, possibly invalidating the eruv.

Rav Yehuda answered with the principle that שבת הואיל והותרה הותרה – Once Shabbos has been permitted (at its onset), it remins permitted (even if the entrance the eruv is based on becomes closed up.)

Similary in our case, once the smaller courtyard made its own eruv and the wall separating it from the neighboring larger courtyard was standing at the onset of shabbos, the eruv remains valid even if the wall falls down, introducing “new inhabitants.”

It follows that according to Abaya, Rabbah, and Rav Yehuda, we follow the rule of שבת הואיל והותרה הותרה  , and at least according to Abaya and probably Rabbah, this is a broad principle that applies both  in cases where a wall falls down (destroying a partition) and where a gap in the wall is filled (recreating the partition.)

The Gemara then records a debate between Rav and Shmuel regarding a similar case where the boundary wall between two courtyards that both made their own עירוב חצירות  falls down on Shabbos.

Rav holds that the inhabitants of each courtyard invalid the eruv of those of the other and carrying more than 4 amos within in the area is forbidden.

Shmuel, on contrast, holds that each courtyard’s inhabitants may carry up to where the boundary wall was, based on the rule of שבת הואיל והותרה הותרה .

Although we usually follow Rav against Shmuel, seeing as the later Amoraim like Abaya and Rabbah seem to hold like Shmuel, there is a strong argument at this point that we would do so too.

However, the discussion is far from over- In the Mishna at the bottom of Eruvin 94a, there is a debate between Rabbi Yehuda and Rabbi Yossi regarding what seems like related cases.

There, a house or courtyard collapses on two sides bordering the public domain on shabbos , or the pole or beam of a מבוי  collapse on shabbos.

Rabbi Yehuda holds that even though the מחיצות  that separate them from the public domain have collapsed, we apply the rule of שבת הואיל והותרה הותרה  and carrying within them remains permitted for the duration of that Shabbos.

In contrast, Rabbi Yossi holds that the duration of Shabbos is no different to the next shabbos, and the Gemara on Eruvin 95a understands this to mean that just like carrying within them will be forbidden the next shabbos, it is also forbidden for the duration of this shabbos and we do not apply the rule of שבת הואיל והותרה הותרה .

Rabbi Chiya bar Yosef rules like Rabbi Yosi, whereas Rav Yehuda quotes Shmuel as ruling leniently like Rabbi Yehuda.

The Gemara questions whether Shmuel could really have ruled leniently in this case.

In a different context, Rav Yehuda quoted Shmuel as saying that we always follow Rabbi Yehuda’s (lenient) rulings when in comes to eruvin, which at first glance appears to be consistent with the ruling quoted here.

However, Rav Chanan of Baghdad had asked Rav Yehuda to clarify whether Shmuel would even be lenient when it comes to the post or beam of a מבוי  being removed on shabbos, and Shmuel said that the lenient rule he had mentioned applied only to Rabbi Yehuda’s lenient views regarding the eruv itself, but not regarding the מחיצות  that are required for it.

As such, when it comes to disputes regarding whether מחיצות  are valid or not, the rule of   כדברי המיקל בערוב   הלכה does not apply- in our case, Shmuel would accordingly be stringent like Rabbi Yosi and not say שבת הואיל והותרה הותרה !

Rav Anan reconciles that apparent contradiction in Shmuel’s words by distinguishing between a private domain that opens to a רשות הרבים  and one that opens to a כרמלית .

In the former case, any dispute regarding the validity of the מחיצות  is effectively a dispute regarding a biblical prohibition, and being stringent is consistent with the general rule of ספק דאורייתא לחומרא.

In contrast, if only a רשות היחיד  and a כרמלית  are involved, the dispute only involves rabbinical matters, and the rule of ספק דרבנן לקולא  and its stronger “extension” of הלכה כדברי המקיל בערוב  should logically apply.

It could follow that according the conclusion of the sugya, if certain components of the מחיצות  that validate the eruv, such as a boundary wall, or the pole or beam of a מבוי, fall down on shabbos, the eruv remains valid for the duration of that shabbos, so long as  the previously enclosed area is not open to a biblically defined public domain.

This could be an extremely useful tool for many of our city eruvin which are based on the assumption that the public areas are not busy or large enough to be considered a biblically defined public domain ((רשות הרבים דאורייתא

Another huge נפקא מינה (practical ramification) could be when it comes to debates regarding the precise length of halachik measurements such as a טפח  and an אמה  which are used to measure the validity of מחיצות.

Assuming that the rule of הלכה כדברי המקיל בעירוב  applies to disputes amongst later authorities as well (which of course needs its own discussion,) then according to Rav Anan’s distinction, so long as no biblically defined public domain is involved, one might be permitted to rely on the more lenient opinions  (for example measure a לבוד  taking a טפח  as closer to 10cm rather than closer to 8cm when measuring the maximum gap between the wires of a fence.)

However, while Rav Anan has succeeded in reconciling the contradiction in Shmuel’s words, and he does seem to have the final word in this sugya, it is not a foregone conclusion that we follow Shmuel either in this particular case of שבת הואיל והותרה הותרה   or in his general rule (as understood by Rav Anan) that הלכה כדברי המיקל בערוב  applies even regarding מחיצות  when no רשות הרבים  is involved.

There are other sugyas that discuss this issue (see for example Eruvin 17a, Eruvin 70b,Eruvin 81b) which need to be put together with the various pieces on our three daf before a clearer idea of  the halacha can be seen, but we shall suffice for now to point out that Tosfos rules against Shmuel even when the previously enclosed area opens to a כרמלית  seeing as Rav rules like Rabbi Yosi. This seems to be the general consensus of other Rishonim as well, though a thorough study of their views is obviously required still, and as such, it seems that when a problem occurs on shabbos with the מחיצות , the rule of הואיל דהותרה הותרה  cannot be applied.

When the problem is created by the closure of a gap in the מחיצה  and not the lack of a מחיצה , however, Tosfos points out that even Rabbi Yosi agrees with the rule of שבת הואיל והותרה הותרה.

Whether Rav Anan’s extension of כלכה כדברי המיקל בערוב  to rabbinically required מחיצות  in other disputes where Rav does not rule against Shmuel requires further analysis, and could impact our second question regarding disputes over the sizes of the טפח  and אמה!

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

Eruvin 91-92 Rabbi Shimon’s domains and הלכה כסתם משנה

In the previous post, we mentioned the three opinions regarding how unusual types of private domains such as roofs, courtyards, and קרפפים are treated when it comes to transferring from one to the other in the absence of an eruv. I refer to them  as “unusual” seeing as their main purpose is not for dwelling in-see  first Rashi 91a )

According to Rav Yehuda, the opinions are as follows:

1. Rabbi Meir allows free direct  transfer from roof to roof, courtyard to courtyard , and קרפף to קרפף so long as the one private domain is within 10 amos height of the other , even if each domain   has different owners.

2. The Chachamim consider each roof to be under the same domain as the house below and thus forbid transferring from one to the other .

3. Rabbi Shimon allows free transfer between all 3 of these special private domain types so long as the object was in one of them before Shabbos and not in one of the houses. He also does not have the 10-amah height limitation between domains that Rabbi Meir has.

We have discussed how Rav and Shmuel debated whether two roofs not separated by a partition can be considered separate as far as carrying on one of them according to Chachamim, or bringing things from the house onto them according to Rabbi Shimon.

We discussed how Samuel’s lenient ruling might not carry weight against Rav despite the rule of הלכה כדברי המיקל בערוב because Shmuel  himself holds that this rule only applies to requirements of the eruv itself and not disputes about the status of the מחיצות needed for the eruv, something we shall hopefully follow up on soon.

In this post, we discuss whether Rabbi Shimon’s lenient ruling is accepted in halacha. 

On the one hold, we would not normally follow Rabbi Shimon against the majority view in a Mishna.

On the other hand, the rule of הלכה כדברי המיקל בעירוב might apply here, seeing as the debate is not about what is considered a valid מחיצה but rather about whether an eruv itself is required between different types of irregular  private domains ( as opposed to houses which are specifically meant to live in)

Rabbi Yochanan indeed rules leniently like Rabbi Shimon.

There is another principle of psak, often quoted by Rabbi Yochanan himself, however, which the Gemara uses to question whether Rabbi Yochanan could indeed have ruled that way.

This is the rule of הלכה כסתם משנה ( the halacha follows an anonymous Mishna .)

Wherever a view of a Tana  is recorded in the Mishna without his name being mentioned , the law follows that view.

The reason for this is because when writing down the Mishna, Rebbe chose to use this method to record a view which he considered to be authoritative and not subject to dispute 

Seeing as there is such a סתם משנה which forbids moving things from one courtyard onto the top ( roof) of the wall between it and its neighboring courtyard, against Rabbi Shimons permission to transfer things from one private domain to another so long as a house is not one of the domains involved, it should follow that we do not accept his lenient opinion.

From the question itself, it seems to follow that the Gemara assumes that this principle of הלכה כסתם משנה should override the rule of הלכה כדברי המיקל בערוב- this makes sense given the fact that Rebbe chose to record the stringent view anonymously  despite the later rule, clearly holding that the former rule does not apply .

The Gemara answers that the Mishna does not contradict Rabbi Shimon, as it could be referring to transferring things from the house VIA the courtyard to the top of the wall, which even Rabbi Shimon forbids.

As Tosfos points out, the very question of the Gemara is difficult , seeing as the rule of הלכה כסתם משנה has its limits.

If such a Mishna is followed by one which contains  dissenting opinions on the subject, the rule no longer applies, as we assume that Rebbe specifically recorded the later Mishna as a dispute in order to show that he no longer regards the anonymous Mishna as authoritative. 

This is referred to as סתם ואחר כך מחלוקת .

Seeing as the dispute between Rabbi Meir, Chachamim , and Rabbi Shimon is recorded later in the same Masechta than the סתם משנה against Rabbi Shimon, the סתם משנה should not be authoritative anymore .

The Rashba and Ritva suggest that the Gemara could indeed have answered that but preferred to answer the way it did .

Given that the answer given both went against the simple meaning of the Mishna  and Rabbi Chiya’s apparent interpretation thereof, this seems like a rather extreme approach, but perhaps making our principle of הלכה כדברי המיקל בעירוב  fit in with the סתם משנה was more important to the Gemara than interpreting it in the simplest way?

Tosfos in contrast suggests that the Gemara is not questioning Rabbi Yochanan’s support for Rabbi Shimon’s ruling regarding treating the three types of unusual private domains as one, as that is indeed סתם ואחר כך מחלוקת.

Rather the Gemara is questioning his support for Rabbi Shimon’s leniency regarding not being concerned about a 10 tefachim  difference in height between the relevant private domains as Rabbi Meir is , Something which is not explicitly permitted in our Mishna but rather deduced.

He suggests that the debate regarding this can be found in an earlier Mishna whereas the Mishna that discussed the wall between the courtyards and seems to be stringent like Rabbi Meir is both later and anonymous, making it סתם ואחר כך מחלוקות .

Whether the earlier Mishna is indeed connected to this issue or not depends on how the case under concern is interpreted, and the Ritva indeed views the two cases as completely different. 

In any case, it is seems to be concluded that we follow both leniencies  of Rabbi Shimon without compromising the rule of הלכה כסתם משנה, something which can be very useful under the correct circumstances, though the correct alignment of roofs, courtyards, and קרפפים  that Rebbe used to carry his towel to the spring is unlikely to be replicated in modern cities.

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

Eruvin 96 Woman putting on Tefillin and בל תוסיף

There is a long discussion  in this perek regarding whether the night is a time for the mitzva of wearing Tefillin, which could be connected to the question of whether Shabbos is a time for this mitzva, and the broader question of whether Tefillin is considered a positive mitzva bound by time, which woman are exempt from.

Another issue addressed here is whether the prohibition of בל תוסיף  (adding to the Torah) is transgressed when one performs a mitzva in its incorrect time, or when someone who is exempt from the mitzva fulfills it.

In searching for a Tana who holds that there is indeed a mitzva to wear Tefillin on Shabbos, the Gemara points to a Beraisa which states that Michal bas Cushi (understood as a reference to Shaul’s daughter Michal-see Rashi) put on Tefillin and the Chachamim never protested . It also states that the wife of the prophet Yona did the mitzva of עליה לרגל  (going to Yerushalayim for the festivals and bringing a special sacrifice) and the Chachamim also never protested.

The Gemara at first assumes that the fact that the Chachamim never protested against Michal for wearing Tefillin must mean that it is not a מצות עשה שהזמן גרמא  (positive mitzva bound by time.)  Otherwise, she would have been exempt, the prohibition of בל תוסיף  would have applied, and the Chachamim would have protested.

At this stage, the Gemara assumes that if someone who is not commanded to fulfill a particular mitzva performs it voluntarily, he/she has actually transgressed the prohibition of adding to the Torah

This assumption needs to be addressed. After all, there is a famous rule of גדול המצווה ועושה ממי שאינו מצווה ועושה  (one who performs a mitzva that he is commanded to fulfill is greater than one who performs it voluntarily in the absence of an obligation.)

This rule is applied (Kiddushin 31a) by Rav Yosef to explain why he would make a party if he discovered that a blind man is  liable in all mitzvos, and to highlight the huge reward for honoring parents, in the famous case of the non-Jew , דמא בן נתינא, who merited to raise a פרה אדומה   (red heifer) for performing this mitzva even though he was not commanded to do so.

It seems clear from this that one certainly receives reward for performing a mitzva that one is not commanded to fulfill, albeit not as much as that received for fulfilling a mitzva that one is commanded to perform.

Perhaps one can argue that in the case of a non-Jew, performing a mitzva voluntarily is praise-worthy seeing as non-Jews are not commanded in בל תוסיף   (the prohibition of “adding to the commandments ” is not one of their 7  mitzvos!)

Similarly, in the case of Rav Yosef, he might have been previously unsure whether he was obligated to keep the mitzvos or not and kept them conditionally out of doubt, and such conditional observance would not be prohibited by בל תוסיף .

It would then be possible that if a woman is definitely not obligated to put on Tefillin, doing so would involve the prohibition of בל תוסיף.

In truth though, we immediately notice another issue with the Gemara’s assumption.

If Tefillin is NOT a positive mitzva bound by time, it should follow that ALL woman are obligated to put on Tefillin, and Michal bas Shaul should have been an unusual case, which it clearly appears to have been.

It is possible that the Gemara would have dealt with these issues, but had no need to, seeing as it immediately rejects this assumption for even more obvious reasons.

It points out that the very same Beraisa that records the actions of Michal also records how Yona’s wife performed the mitzva of עליה לרגל  without rabbinic sanction.

As it is impossible to argue that עליה לרגל  is not a  מצות עשה שהזמן גרמא, it is clear that the author of the very same Beraisa holds that that when a woman performs a mitzva that she is exempt from, there is NO issue of בל תוסיף .

The Gemara thus suggests that this Beraisa expressed the view of Rabbi Yosi regarding סמיכה  (the mitzva of placing one’s hands on an animal before slaughtering it for a  sacrifice .)

He is of the view that even though women are exempt from this Mitzva, they may do so voluntarily if they wish to , clearly holding that NO בל תוסיף  is involved.

The Gemara does note though that neither Rabbi Meir nor Rabbi Yehuda (in our Mishna) agree with Rabbi Yosi and that they do not allow a woman to perform סמיכה  or to blow shofar voluntarily.

At first glance, it seems that this is because they hold that performing a mitzva that one is not obligated in involves the prohibition of בל תוסיף.

Rabbi Shimon, in contrast, agrees with Rabbi Yossi, and if the above assumption is correct, it follows that woman performing mitzvos they are exempt from are subject to a tannaic dispute where Rabbi Yossi and Rabbi Shimon permit it and Rabbi Meir and Rabbi Yehuda do not.

Now that we have seen that performing mitzvot voluntarily is subject to tannaic debate, it is  possible that the Tannaim and Amoraim who apply the rule of גדול המצווה ועושה   to a blind person and a non-Jew hold like Rabbi Yossi and Rabbi Shimon regarding women, and that this view is accepted by the סתמא דסוגיא  (main sugya) elsewhere.

Seeing as we usually rule like Rabbi Yossi, this would not be surprising.

Yet the Tosfos introduce another complication to the discussion.

They quote another Midrash according to which the Chachamim did indeed object to the actions of Michal!

They also object to Rashi’s assumption that those Tannaim who forbid women from wearing Tefillin, blowing shofar, סמיכה and certain other mitzvos do so because of בל תוסיף, seeing as we have seen elsewhere that many mitzvos may be performed even by those not obligated in them.

In particular, he brings the case where Rabbi Yehuda never voiced any disapproval about Queen Helena sitting in the sukkah(Sukkah 2b)

Instead, he suggests that there are certain specific mitzvos which Rabbi Yehuda and Rabbi Meir do not allow women to perform, each for their own reasons.

One example he gives is Shofar, because blowing shofar is rabbinically forbidden on Shabbos and Yom-Tov in the absence of an obligation, which means that women who do so are actually transgressing a rabbinical prohibition related to the laws of Yom-Tov!

Regarding Tefillin, he suggests that Tefillin require a particularly clean body, and that these authorities were concerned that women are not particular enough about this, an explanation also brought by the Rashba.

Some Rishonim (See for example Ritva) even suggest that even those Chachamim who did not protest Michal’s actions were still not unhappy about them for this reason, though given that she was a princess, it seems somewhat hard to accept that she was not at least as careful about cleanliness than the average man at the time!

This entire suggestion, however , seems like a historical and societal issue, and there is little evidence of there being a long-term decree of chazal forbidding women to wear Tefillin for this reason- As such, in today’s Western society where women certainly seem  to be as careful as men about cleanliness, perhaps more so, and where almost everyone washes more often than the average man once did, applying this reasoning seems rather far-fetched, particularly given that other Rishonim such as Rashi and the Meiri do not share this concern, and most Rishonim certainly hold that the authoritative view of Rabbi Yossi has no such concern.

As such, it seems that there is nothing wrong with women wearing Tefillin voluntarily if they so choose, and they would probably be rewarded for doing so as an אינה מצווה ועושה .

Although the Rema himself writes that one should protest against women who put on Tefillin, presumably due to the concern of גוף נקי  as per the Ritva, this ruling seems to be against against the way most Rishonim learnt the sugya, and as pointed out above, it is hard to say that the concern of גוף נקי  is applicable today, particularly for woman who are not constantly busy with babies.

However, this might only be the case if they are aware that they are not obligated and choose to do so as a רשות  (voluntary act,) the term Rabbi Yossi himself used to describe it.

If however, they claim that they are equally obligated to do so like men are, and do it out of a sense of חיוב  (obligation,)  one could argue that this might indeed involve the prohibition of בל תוסיף (see Rambam Mamrim 2/9)  who makes a similar argument against pretending or assuming that rabbinic laws are biblical.)

In addition, it could also set a precedent for “twisting” eternal aspects of halacha to fit modern social norms and values, a pandora’s box which once opened, is almost impossible to close- whereas the concern for גוף נקי  might be less relevant in modern western society, this concern is even more relevant than ever.

This might explain why most Torah authorities are anything from hesitant to strongly opposed to allowing woman to put on Tefillin en masse, and like in all far-reaching changes to our behavioral status quo, encouraging this without support from at least some of them seems at best extremely unwise.

 In addition, although we have made a compelling case to allow at least individual women who wish to perform this special mitzva to do so, at least in modern western society, it requires broad shoulders  (which I do not have)  to rule against the Rema in practise, and there are also sources from those who follow the “kabbalistic approach” that are against this for kabbalistic reasons (see Yalkut Yosef: דינים לאשה ולבת פרק ד  for a list) – I have just come as usual to learn the sugya from the primary sources and point out some of the issues involved.

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

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

Eruvin 87-88 The hanging partition,the Kinneret, and strengthening דרבנן

One of the fascinating concepts we have seen over the past view daf is the concept of a מחיצה תלויה- a hanging partition.

The generally accepted view is that any partition that  a goat could get through is not considered a partition, and as such, it needs to be at least 10 tefachim high from the ground up.

It could also start a maximum of 3 tefachim above the ground, due to the rule of לבוד.

However, a מחיצה תלויה  (hanging partition) which extends 10 tefachim or more from the roof downwards but does not reach within 3 tefachim of the ground, is invalid.

This is the view of חכמים  regarding a Sukkah, though Rabbi Yosi dissents and allows it (Sukkah 16a)

However, there is an exception to this rule, and that is when it comes to a body of water.

Sometimes, people would build houses on the sea, river, or lake shore, and they would build balconies over the lake or sea , from which they could draw water.

They might also have a water-canal passing through their property.

Of course, this presents a problem on shabbos, seeing as the water body generally has the law of a כרמלית  (open area that does not qualify as a public domain), the balcony is a רשות היחיד (private domain), and transferring from the one to the other is rabbinically prohibited.

In order to circumvent this, a method was used whereby an area in the waterbody underneath the balcony was “partitioned” in order to become part of the same רשות היחיד  as the property.

In the case of an אמת המים (canal), a partition was built over the points where it entered and exited the courtyard.

In the case of the balcony, a mechitza would hang down from the balcony surrounding that area.

Although this would be a מחיצה תלויה , which is normally invalid, the sages were lenient when it came to the need for water supply, and allowed it, in the words of the Gemara:  קל הוא שהקילו חכמים במים.

In the Mishna at the bottom of Eruvin 86b, we discussed the case of a water-cistern that lies between 2 courtyards, where the wall between the courtyards passes over the pit.

Although the wall could perhaps be a מחיצה תלויה , dividing the pit between the two courtyards and allowing each courtyard to draw water from its side, the Mishna requires a special partition to be build in or over the pit. (see Gemara there for different views.)

Rabbi Yehuda, however, allows them to rely on the border-wall itself.

The Gemara assumes that Rabbi Yehuda follows the view of Rabbi Yosi regarding Sukkah, that a מחיצה תלויה  is valid even over dry land.

Although the wall passes over the cistern, which is clearly a body of water, Rashi explains that the leniency of allowing a hanging partition  over a body of water only applies when it is clear that it was built for that purpose, which is clearly not the case with the border-wall.

As such, this is the equivalent of a hanging partition over dry land, which is why the Chachamim do not accept it.

The Gemara counters that the two cases are not comparable:

Rabbi Yehuda is lenient in the case of the pit seeing as the requirement for eruv chatzeiros is only rabbinic, but would never be lenient when it comes to a Sukkah which is a biblical requirement.

Rabbi Yossi, on the other hand was lenient when it came to Sukkah, seeing as eating outside the Sukkah is only a בטול עשה  (going against a positive command), but would never be lenient when it comes to Shabbos transgression  which is a capital offense (at least under certain circumstances.)

Either way, the normative view seems to be that a מחיצה  תלויה  is only allowed over waterbodies.

The Beraisa discusses a case where a water-canal runs between two houses and can be accessed via windows from each house.

It says that if it is less than 3 tefachim wide (or 4 according to Rabban Shimon ben Gamliel,) one may draw water from it.

The Gemara first assumes that this is referring to the width of the canal  and that whereas below this width, it is a מקום פטור  from which water may be transferred directly to the house, above this threshold it is already a כרמלית  from which water may not be transferred.

However, as Rav Dimi had quoted Rabbi Yochanan as saying that a כרמלית  cannot be less than 4 tefachim wide, the Gemara prefers not to make these words subject to a tannaic debate.

It therefore explains that the Beraisa is referring to the width of the banks of the canal between it and the overlooking window of the house.

If the bank is less than 3 tefachim (or 4 according to Rabban Shimon ben Gamliel,) it would be considered a מקום פטור  and even if the canal itself is wide enough to be a כרמלית, it would be permitted to transfer the pitcher to the canal via the banks and back once filled with water via the banks.

This implies that the Beraisa permits transferring an item from two different domains via a מקום פטור.

However, Rav Dimi has also reported Rabbi Yochanan’s view who permits transferring an item from a private domain or a public domain to a מקום פטור  or vice versa, he does not permit using the מקום פטור  as a half-way station for transferring an item from  a private domain to a public one or vice-versa.

The Gemara explains that Rav Dimi’s case involved biblically forbidden transfers, and it is thus rabbinically forbidden even through a מקום פטור.

However, seeing as the canal is only a כרמלית and transferring directly from it to the private domain is only rabbinically forbidden, Rabbi Yochanan would permit doing so through a מקום פטור.

The Gemara then brings a case (that we have seen earlier)  where Rabbi Yochanan permits transferring something from one of the two adjoining courtyards to the top of the wall between, so long as it is less than 4 tefachim wide and thus considered a מקום פטור.

This is contrast to Rav who forbids doing so.

He does not, however, permit using the wall as a means of transferring from the one courtyard to the other, even though transferring from one private domain to another is only rabbinically prohibited (in the absence of an eruv!)

The Gemara concludes that that reflects Zeiri’s view, who forbids doing this even where the direct transfer is only rabbinical.

What is immediately obvious is that when it comes to using a מקום פטור  as a means of transferring from one domain to another, the Gemara is happy to suggest that Rabbi Yochanan is more lenient regarding rabbinical domains than regarding biblical ones.

Yet we have seen earlier )Eruvin 77a)  that not only does Rav not go along with this, but he is even stricter when it comes to rabbinical domains- not only does he not permit using the top of the wall (less than 4 tefachim wide) as a half-way station from one courtyard to the other, he even forbids carrying from one of the courtyards to the top of the wall itself or vice-versa, despite it being a מקום פטור which would be permitted even from a biblical private or public domain!

His reasoning was that precisely because we are dealing with rabbinical domains, we need to be extra stringent so that people do not take them lightly!

We have seen (85b) that Shmuel also followed that approach, and have also seen it in the beginning of the Maseches (see posts on Eruvin 3 and Eruvin 21)

Not withstanding the fact that that approach seems to fly in the face of the normal principle that advocates more leniency is rabbinic matters particularly regarding eruvin, Tosfos points out that Rabbi Yochanan clearly does not accept this approach even in these case, and follows the usual rule of treating rabbinical laws more leniently.

Given Rabbi Yochanan’s seniority in halachik rulings over both Rav and Shmuel, this could have major halachik ramifications wherever the idea of חכמים עשו חזוק לדבריהים  applies, and there is a need to understand the basis of these two different approaches, and whether Rabbi Yochanan’s rejection thereof is limited to this case or is a general objection to the entire concept.

If the debate is purely local, we need to understand why Rabbi Yochanan did not feel the need to “strengthen” this particular rabbinical requirement of forbidden carrying from either domain to a כרמלית   or vice versa.

If on the other hand, this is his global position, we would need to explain why he never feels the need to “strengthen” rabbinical requirements and show that his position is consistent in other places where this principle is used.

Much to think about- hopefully more on this as our journey continues…

The “sea of Teverya” (Kinneret) as well as the inhabitants of Teverya get a special mention on Eruvin 87 as well as Eruvin 88.

We learnt on Eruvin 86-87 that Rabbi Chananya ben Akavya has an extra special leniency when it came to drawing water from a water-body under a balcony.

He held that if the balcony was at least 4 by 4 amos (24 by 24 tefachim,) one could cut a hole of 4 by 4 tefachim in the middle, and the rest of the balcony would be viewed as “bent partitions”  dropping the required 10 tefachim below the balcony on all 4 sides. Then, the rule of גוד אחית מחיצתא  (the partition continues downwards as a hanging partition) kicks in , making the water below the hole a private domain!

At the bottom of Eruvin 87b, the Mishna seems to disagree with this, seeing as it requires proper partitions on or below the balcony, not imaginary bent ones.

The Gemara notes this difficulty and explains (as it has suggested earlier) that this special double leniency of Chananya ben Akavya is limited to the sea of Teverya  (the Kinneret.)

This is because it is surrounded by banks, cities, and קרפפים , making it more similar to a private domain than a כרמלית.

Rashi explains that even though it was not מוקף לדירה (surrounded for the purposes of dwelling in it) and thus still has the law of a כרמלית  , It is still different to most bodies of water and Chananya applied this leniency to make it easier for the people of Teverya.

The Gemara then notes that this was one of 3 leniencies that he made for the people of Teverya.

The other two were as follows:

1.       Normally, when one collects material from outside early in the morning while the due is still on it, the material is considered susceptible to impurity because of the due. However, if one is not happy with it being damp, but only collected it early in order to get to work on time, the material is not susceptible. Chananya took note of the fact that the people of Teverya were hard workers and allowed them to treat the material they collected  as non-susceptible !

2.       He also permitted them to dry themselves with a towel  after washing (on Yom Tov or in cold water on Shabbos- see Rashi) without worrying that they might come to squeeze the towel, apparently as they were known to be careful with such things!

It is truly to live in a time and place where we are so close to so many of the holy places mentioned in the ancient sources and that we are able to enjoy the splendor of the “Sea of Teverya” like our sages did before us!

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

Eruvin 85-86 The tenant and the rich man

The Mishna on Eruvin 85b tells us that someone who dwells in a store-room that opens to a courtyard needs to participate in the eruv chatzeiros, and if he does not do so, he forbids the courtyard to everyone else.

Rabbi Yehuda, however opines that if the owner of the courtyard has a תפיסת יד (hold) on it , it is not an issue.

Rashi explains that this means that if the owner uses some of the space inside the storeroom to store his own things, it is considered still to be his רשות (domain.)

The Gemara  here seems to understands this to be part of  a general rule that when the owner retains usage of the house, he can also be part of the eruv in place of the tenant.

The Gemara gives the example of a very wealthy man, Bunias, who owned courtyards and allowed others to stay in them on condition that he could keep some of his property in them.

Rashi seems to understand that he used to “lend” the houses to them, whereas the Ritva understands that he sometimes “lent” and sometimes rented them to people.

As a rental ostensibly confers a higher degree of quasi ownership than a loaned house where no money is paid, this could be very significant regarding whether some level of קנין  is required here or whether simply דירה  (long-term dwelling) is sufficient to make the inhabitant the deciding factor regarding eruvin. (See Meiri who relates this to the debate whether עירוב משום דירה או משום קנין  .)

While the possibility that a long-term inhabitant might be considered the quasi owner regarding eruvin even if he does not pay for his stay certainly seems to be assumed by Rashi, short-term guests in hotels or visitors that stay in their own cottages in one’s courtyard could well  have a different law, but see our post on Eruvin 65.

The Beraisa proceeds to tell how when Bunias arrived, Rebbe himself would tell everyone to make space for the man of “100 portions.”

When another wealthy man arrived, however, he told them to make space for the man of “200 portions.”

Rashi explains that Rebbe thought the second person was even wealthier and thus honored him according to his level of wealth!

רבי ישמעאל ברבי יוסי pointed out to Rebbe that Bunias was actually wealthier than the second person, and his father owned 1000 boats at sea and 1000 cities on land!

Rebbe responded that when רבי ישמעאל ברבי יוסי next went to visit Bunias’ father, he should tell him to send his son in fancier clothes next time (so he will know how wealthy he is and honor him accordingly [see Rashi])

The Gemara proceeds to tell us how not only Rebbe, but also Rabbi Akiva were particular about honoring the wealthy.

For those of us who are naturally put off by the idea of the wealthy in a community being giving some of the top honors, and the common practise of auctioning off the best honors to the highest bigger, it might seem difficult to accept how such great Tannaim seemed to go along with this approach?

Surely  a person should be given honors based on merit, rather than on the size of his wallet?

Surely the road to community leadership should not bypass the less fortunate?

We discussed in our post on Daf 49 that although the Torah takes social responsibilities very seriously, enforces charity and tithes, and certainly does not accept a libertarian “laizze faire” approach to economics, it also has total respect for individual property rights and for the right to generate personal wealth.

We also noted that according to one view, the entire institution of allowing one to send a messenger with bread for eruv techumin rather than having to go there oneself was to make it easier for the wealthy, and that the Torah actually treats the wealthy with great respect.

This case serves as a prime example of this  honor shown to wealthy people.

Yet by the end of the sugya, it becomes clear that this honor is not unconditional, and that it is not a contradiction to the merit based approach that the Torah is famous for(for example a learned Mamzer takes priority over an ignorant priest!)

In explaining Rabbi Akiva’s great honor for the wealthy, the Gemara brings a passuk (Tehillim 61/):

“ישב עולם לפני אלהים חסד ואמת מן ינצרהו”- read midrashically as “The world shall endure in front of Elokim,  kindness and truth will guard it”

The Gemara applies this passuk to a wealthy person and says- When will the world sit forever in front of Hashem (endure?)  When kindness and truth guard it (when the wealthy use their money to perform acts of kindness and truth.)

The Torah’s true attitude to wealth is that it was given to the wealthy in order to help the less fortunate, and that when they do this, they are actually sustaining and building the world, something very worthy of honor!

It is thus fitting that someone like Bunias should be used as an example of a wealthy man honored by Rebbe, given that he used to “lend” his properties to people, at least sometimes free of charge, to live in!

Whether a less generous wealthy man loses this right to honor completely, or should still be honored given his potential, or in the hope of encouraging him to fulfill his purpose, is of course subject to discussion, but it seems that Chazal had little tolerance for wealthy misers who refused to give some of their wealth to others, and in this regard  ממשכנין על הצדקה- we take collateral from people in order to force them to give tzedakah, sometimes in very large sums(B.B. 8b)

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

Eruvin 82   Nature walks on Shabbos and אין מערבין אלא לדבר מצוה

This is one of those daf where there are so many different topics to choose from, (including some we have started dealing with already in previous posts,)  that having to choose one for the purposes of this post is particularly frustrating.

From gambling and אסמכתא  , to the role of קטן, disputes, ברירה  revisited, דעת בערוב, the food used for the eruv, Talmudic measurements, and more, this is no “one-sugya” daf.

Yet I decided to focus on the ruling of Rav Yosef that an eruv techumim may only be made for the sake of a mitzva.

He derives this from the Mishna on this daf which discussed how a person can make an eruv techumim on behalf of other people in his town.

He places the barrel containing the eruv in the chosen place and states that the eruv is  for all inhabitants of his city that want to go to a mourner’s house or בית המשתה  (place of drinking, sometimes used to refer to wedding feast.)

Noting that both examples given are for the purposes of mitzvos (comforting mourners and making the bride and groom happy,) Rav Yosef deduced that it is only for the purposes of a mitzva that an eruv can be made.

This deduction could be questioned for a few reasons:

i.                     Perhaps the Mishna is only mentioning the most common reasons someone would walk that far on shabbos ( אורחא דמילתא ) but does not intend to exclude דבר הרשות  (voluntary or non-mitzva related purposes.)

ii.                   Perhaps the permission to make the eruv on behalf on everyone in the city is limited to דבר מצוה  (matters of a mitzva) but making an eruv for one’s own purposes is allowed even לדבר הרשות?

iii.                 Perhaps this limitation only applies to when one uses food for one’s eruv, but if one is מערב ברגל (makes the eruv by being at the site of eruv just before shabbos,) it may be done even for דבר הרשות.

Whereas the Gemara acknowledges the first point and admits that Rav Papa’s deduction is indeed a חדוש, it does not question his ruling, and he appears to have the final word on the matter.

The second two points are not mentioned at all in the Gemara. While I have not seen any of the Rishonim mentioning the second point, there is indeed a strongly represented view amongst them that makes the distinction raised in the third case (see  among others Rabbenu Yonatan on the Rif, Meiri)

While it seems from this daf that the matter is settled, there are various other sources that show that it is far from simple.

For example, back on Eruvin 31, we saw a debate between Rabbi Yehuda and Chachamim regarding whether one may place the eruv food on a grave- this could be  because one is not allowed to benefit from a grave and the eruv might be considered  benefit seeing as it allows one to walk further than one could without it.

During the שקלא ותריא  (flow of the sugya,) Rava suggested that the debate is dependent on whether one is allowed to make an eruv techumim for something other than a mitzva.

If one is only allowed to do so for a mitzva, then seeing as מצוות לאו להנאות נתנו (mitzvos were not given to derive benefit from,) the eruv is not considered a benefit, and it is fine. This could be the view of Rabbi Yehuda who allows placing the eruv on a grave.

In contrast, Rava explains that the Chachamim hold that one may make an eruv techumin even for דבר רשות, and that the eruv is thus considered a forbidden benefit from the grave.

It could then follow that seeing as Rava was later than Rav Yosef  (הלכה כבתראי אבל צ”ע אם נאמר כלל  זה אפילו בתלמיד נגד רבו ) , and according to him, the chachomim allowed making an eruv for a non-mitzva purpose, this could indeed be the halacha.

Further support for this could be derived from the  Mishna (Pesachim  49a. )  It rules that if someone forgot to burn his chametz on erev pesach and was on his way to make an eruv techumim for a דבר רשות  (voluntary matter,) he needs to go back and burn the chometz, and  simply doing בטול  (nullification) in his heart is not sufficient. This seems to clearly indicate that it is permitted to make an eruv techumim for a דבר רשות.

Although none other than the Or Zarua (brought by  הגאות אשרי עירובין פרק 8 אות 1)  rules leniently and permits this, he appears to be virtually alone.  Virtually all other Rishonim understand that seeing as the Gemara went out of its way to explain the dispute earlier in Eruvin even according to Rav Yosef in a way that all Tannaim agree with him, and that the final word on our daf went to Rav Yosef with no mention of any dispute, the halacha is indeed like Rav Yosef (see for example Rif, Rosh, Rambam Eruvin 6/17, Meiri)

 The above-quoted  Mishna in Pesachim will thus need to be dealt with separately, and hopefully we shall have opportunity to do so when we get there!

Several important questions remain, are discussed in the Rishonim and Poskim, but time does not allow us to go into them in this post. Among them:

1.       What is considered a mitzva regarding this rule? Does even a rabbinical mitzva count, or something that involves a קיום  (implementation) of a  mitzva if done but is not obligatory, or a mitzva that can be fulfilled in a different way?

2.        Is the above definition unique to eruv techumim, or applicable to anything that is permitted for the sake of a mitzva (for example nullifying certain types of vows or a שבות דשבות  on shabbos?)

3.       If one made an eruv techumim for a forbidden purpose, does it work בדיעבד?

4.       If one made an eruv techumim for a mitzva, may it be used for a non-mitzva related purpose as well?

5.       What about community needs and other urgent needs? Do they also have the law of a דבר מצוה  as far as this rule is concerned?

One common practical ramification of this discussion relates to taking pleasurable nature-walks outside the techum on Shabbos .

 Is the “oneg shabbos” involved in the walk enough to be considered a mitzva purpose, or could we argue that “oneg shabbos” is only a rabbinical mitzva or/and could be fulfilled in so many different ways that it does not qualify?

If such a walk does qualify, is it also considered enough of a mitzva to allow one to ask a non-Jew to perform any rabbinically forbidden task to make it possible, safe or more enjoyable (such as carrying water through a כרמלית,) under the rule of שבות דשבות לדבר מצוה?

Although most Rishonim do not seem to list this as an example of a דבר מצוה, in a response on the topic, the תרומת הדשן (responsa number 77) seems to permit it, and this is indeed the ruling of the Rema (O.C. 416/1.)

As far as the later question is concerned, given the huge amount of disagreement regarding the heter for a שבות דשבות  altogether (see posts on the subject on Eruvin 66-68,) it might be a  little more complex, but if people are already going on such a walk in hot weather and water is a necessity, there certainly seems to be room for leniency in allowing a non-Jew to bring water along or meet one along the route, so long as all other halachik requirements are fulfilled, and it is done in consultation with an expert in the laws of shabbos.

UThese 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