Eruvin 105 Intellectual honesty opposed to a philosophy of leniencies

This short daf deals with various work needed for the maintenance of the מקדש , to remove impure items from it, and how and by whom it should be done.

This is based on a debate in the concluding Mishna of the Masechta regarding how to remove a dead שרץ  (creeping creature/bug) from the Temple.

The Masechta ends, however, by focusing on a rather cryptic statement in the final Mishna by Rabbi Shimon: מקום שהתירו לך חכמים משלך נתנו לך שלא התירו לך אלא משום שבות – “The place where the sages permitted it to you, they gave you from your own, as they only permitted it because of a rabbinical prohibition.”

Whatever the meaning of this statement, we might instinctively think that it has something to do with the debate in this Mishna itself.

Yet the Gemara understands this as a flashback to two other debates that Rabbi Shimon was involved in:

  1. Although the Chachamim hold that even if one stepped one אמה outside the תחום  (shabbos zone), it is forbidden to return, Rabbi Shimon allows a leeway of up to 15 אמות  because the people who measure the תחום  do not do so precisely and leave a safety net of this distance inside the תחום.

The first part of his cryptic statement thus reads:

“That which they (according to me) permitted you, ie 15 amos, was really yours to begin with, due to the safety net made by the measurers.”

  • Although Chachamim permitted retying a string that came loose on a musical instrument required for the Temple service, due to the rule of אין שבות במקדש , Rabbi Shimon forbade it, seeing as he held that this is a biblical prohibition, and only permitted tying it with a bow.

The second part of his cryptic statement thus reads:

“They only permitted  tying a bow which is a שבות, not tying a knot which (according to me) is a biblical transgression.

Rashi and Tosfos both explain that Rabbi Shimon makes these statements here because they are connected to his ruling regarding the string of an instrument.

Tosfos adds that this discussion was interrupted by listing the other things permitted because אין שבות במקדש  (there are no rabbinical prohibitions when it comes to Temple service) and Rabbi Shimon is now returning to explain his position there.

They both explain that Rabbi Shimon is going out of his way to stress that his leniency regarding the תחום  was not due to his taking shabbos lightly and a general policy of leniency, but because he felt it was objectively the correct ruling, seeing as the safety net was intentionally placed for that reason.

In contrast, when  it comes to making  a knot, he believed that a biblical prohibition was involved and only permitted a bow, in keeping consistently with the rule of אין שבות במקדש, even though the Chachamim were lenient.

Although both Rashi and Tosfos explain the positioning of Rabbi Shimon’s “clarification” of his approach based on the recent placement of the late dispute, it seems fitting that the Maseches concludes in this way.

After all, as we have seen so many times, Eruvin is not just about the technical and specific laws of Eruvin, but also about the power of rabbinical decrees as a whole and many global rules of psak halocho.

We have seen many leniencies when it comes to rabbinic decrees, such as ספק דרבנן לקולא, אין שבות במקדש, אין גוזרין גזירה לגזירה etc , as well as many exceptions to these rules.

Rabbi Shimon, in particular, is known for many leniencies in the rules of Shabbos, among them דבר שאין מתכוין מותר, מלאכה  שאינה צריכה לגופא פטור, לית ליה מוקצה,  גגות חצירות וקרפפים רשוצ אחת הן,  כתבי קודש  etc.

However, as we discussed early in the Maseches (see post on Eruvin 7,) halacha ideally should not be about having a philosophy of leniency or stringency, but rather about searching for the objective truth.

It is so fitting that such a Masechta should end with no other than the “lenient” Rabbi Shimon clarifying his position that his leniencies do not flow from any זלזול (making light of) the laws of Shabbos, chas veshalom, but from his objective view of the truth in each case.

Just like he was lenient so often in cases where he believed the truth required leniency, he was not afraid to be stringent against consensus when he felt that the truth required it.

Although a poseik might often be required to take local circumstances or even “meta-halachik” factors into account when issuing rulings, Rabbi Shimon, forever the idealist, seems to be teaching us that the ideal derech of a poseik and Talmid Chacham, namely intellectual honesty and objectivity, must never be forgotten.

הדרן עליך מסכת עירובין והדרון עליך

Its been an incredible journey, and we will miss you, as we temporarily move on to exciting new territory with Maseches Pesachim, Hashem willing, truly inspired and looking forward to the next round!

Eruvin 97-98 and 103 שבות במקדש וכתבי קודש

Eruvin 97-98 and 103  שבות במקדש וכתבי קודש

One of the main themes in the later part of this concluding chapter of Eruvin is the rule that אין שבות במקדש – there are no rabbinical prohibitions of Shabbos in the Temple.

For example, one may

  1. use a bolt that is attached to the door but drags on the floor to lock a door  (Eruvin 102a)
  2. return the bottom hinge of a door to its place (Eruvin 102b)
  3. put a bandage back on (Eruvin 102b)
  4. retie the string of a musical instrument that broke (according to those who permit מכשירי מצוה  ( see Gemara Eruvin 102b-103a)
  5. Cut a lesion off the hands of a kohain with one’s hand (Eruvin 103b)
  6. Scatter salt on the ramp (Eruvin 104a)
  7. Draw water from certain pits (Eruvin 104a)

When required for Temple service, even though they all involve rabbinic prohibitions and are not permitted elsewhere.

This leniency is limited to rabbinically forbidden actions that are needed for the Temple service, and do not apply to actions done for personal benefit, even if they are performed in the Temple.

Although, due to our many sins, we do not have a Temple today, this rule might not be completely irrelevant in our times, at least according to certain views.

The Gemara (Eruvin 93a) discusses the converse of the above-mentioned case, namely whether a שבות  needed for the Temple service may be performed outside the Temple.

For example, may one cut off a lesion from a kohain outside the Temple to make him fit for the service inside the  Temple?

Rav Yosef claims that this would not be permitted!

Yet Rav Safra brings an earlier Mishna (Eruvin 97b)  to dispute this claim.

We have learnt that if one was reading from a holy scroll on the איסקופה (threshold of his house), assumed at this point to be a private domain, and the scroll rolled to the ground of the public domain below, so long as one is still holding it in one’s hand, one may roll it up again.

This is because it has not yet “rested” in the public domain, being still in his hand, and although there would normally still be a rabbinic prohibition against doing so in case it falls from his hand and he comes to bring it in from a public domain, a biblical prohibition, when it comes to כתבי קודש  (holy books), this שבות  does not apply.

Rav Safra  amazingly assumes that the sanctity of holy books has the same law as the Temple service, due to their sanctity (see Rashi on Eruvin 93) and attempts to derive from here that in the face of such concerns, the rule of אין שבות במקדש  extends to outside the Temple too.

According to this interpretation of the rule, it does not refer to the geographic location where the שבות  is concerned but rather to its purpose- There is no שבות  when it comes to matters of sanctity!

In fact, the Gemara (Eruvin 98a) actually first explains that this lenient ruling is based on the view of Rabbi Shimon that כל דבר שהוא משום שבות אינו עומד בפני כתבי הקודש- “anything rabbinically forbidden regarding shabbos does not stand in the face of holy writings.”

However, Rav Safra’s proof is rejected (Eruvin 93a) based on the Gemara’s conclusion (Eruvin 98a) that the mishna was dealing with an איסקופה כרמלית  , not one that is a private domain.

Seeing as bringing it back into this כרמלית  from theרשות הרבים  would only be rabbinically prohibited, one is permitted לכתחילה  to roll it back so long as it is still in one’s hands without being concerned that it will  fall from his hands- this is in keeping with a general rule of אין גוזרין גזירה לגזירה (see Tosfos Eruvin 98 ד”ה “אלא”  who discusses this in more detail.)

As such, there is no proof from this Mishna that one may perform a שבות  needed for the מקדש  (or sanctity) outside the מקדש  .

However, while the Gemara rejects Rav Safra’s proof that such a שבות  may be performed even outside the מקדש, it does not seem to question his analogy between Temple service and holy writing (though see Tosfos haRosh Eruvin 93a ד”ה “ולאו” .)

As such, should we conclude from other sources, as Rav Safra continues to attempt to do and Abaya seems to concede, that שבות דמקדש  may be performed even outside the מקדש, it might follow that holy writings may be recovered outside the מקדש  as well, so long as no biblical transgression is transgressed.

However, not only does Rava (Eruvin 93b)  seem to conclude that we have no proof that a שבות במקדש  may be performed outside the Mikdash, the conclusion of the Gemara on Eruvin 98 seems to be clear that we do not follow Rabbi Shimon’s leniency regarding כתבי קודש .

As such, it seems that there is no blanket rule that one may perform a rabbinical prohibition for the sake of holy writings on Shabbos, and on the contrary, the default rule seems to be that it is forbidden in cases where there is a concern of coming to a biblical prohibition.

Yet as Tosfos (Eruvin 93a) points out, the Gemara (Eruvin 97a) permits bringing in Tefillin that one finds in the public domain and are in danger of desecration, 4 amos at a time, something normally rabbinically forbidden.

He concludes that there are indeed times when   שבות  might be permitted for the sake of holy writings, such as in that case where they are in danger of actual desecration.

Tosfos haRosh goes further and suggests that when holy writings are in danger of desecration in the street, it is the equivalent of שבות במקדש במקדש  – a שבות  regarding the מקדש  INSIDE the מקדש, a rather abstract concept that requires further analysis.

In our case, however, it might not be dignified for the holy writings to be left in the public domain, but they are not in danger of actual desecration.

Although only Rabbi Shimon permits a שבות  in the latter case, everyone seems to agree that it is permitted in the former, an application of the rule of אין שבות במקדש  even in our day- Holy books are evidently the closest thing we have to a Temple!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 101-102 bolting the door, minhag, and the new Rav in town

In our earlier post on Eruvin 74-75, we discussed the situation where a community had received a lenient ruling which it followed and was later given a more stringent ruling by a new authority.

We noted the ruling of the Rema that a new Rav may indeed repeal the lenient ruling of a previous Rav, and that this might also apply to repealing an earlier stringent ruling.

The later might be more problematic, given the general rule (Pesachim 51a ) that דברים המותרים ואחרים נהגו בהם אסור אי אתה רשאי להתירן לפניהם  – things that are permitted but others were accustomed to forbid, one is not permitted to permit in front of them.

If this is the case for a stringency that a community took on by itself, how much more so should it be the case for something which they took on because of a ruling from their previous Rav!

In our Misha at the bottom of Eruvin 101, there is an explicit reference to a similar situation where Rabbis repealed existing lenient or stringent practices, though it is not clear whether the original practise was based on an earlier ruling of a Torah scholar, or simply developed over time.

The mishna continues to discuss actions that might resemble the מלאכה  of building on shabbos, including inserting a bolt whose one head is large enough to use to pound food (and thus considered a useful vessel already ) into a door in order to lock it (I have followed Rashi’s explanation here for the sake of brevity but this is a complex discussion in the Rishonim in its own right.)

The  Gemara later makes clear that if the bolt is already permanently connected to the door and is easily moved without the rope breaking (see Rashi and other Rishonim who give different explanations) even Rabbi Eliezer permits locking the door with it, as doing so no longer resembles building.

In contrast, if it was already connected to the door, but cannot be moved without the rope breaking (once again following Rashi’s explanation) , Rabbi Eliezer forbids doing so, seeing as it is not properly connected already, whereas Rabbi Yossi permits, seeing as it already has the features of a useful כלי and doing so does not resemble building.

The Ritva explains that this is because a person does not usually permanently set aside a useful כלי  as a bolt and it is clear to all that this is only a temporary fix and not an act of building .

Fascinatingly, both Rabbi Eliezer and Rabbi Yossi bring support for their view from an incident in the shul in Teverya.

Rabbi Eliezer reported that the original custom in that shul was to lock the door with such a bolt, and when Rabban Gamliel and the elders came, they forbade it.

In contrast, Rabbi Yossi accounts that the original custom had been not to do so, and that when Rabban Gamliel and the elders came, they permitted it!

Although they do not appear bothered at all by the fact that according to Rabbi Eliezer, Rabban Gamliel and the elders forbade something against the existing custom to permit it, Tosfos are bothered by how according to Rabbi Yossi, they permitted something against the existing custom to forbid it.

This is because , as mentioned above, we have learnt (Pesachim 51a) that if something is permitted but others have treated it as forbidden, it is forbidden to permit it in front of them.

Seeing as the member of that shul were long accustomed to prohibiting this, how could Rabban Gamliel and the elders come and permit it?

Their answer could have  far-reaching ramifications for the authority of minhagim in general, and we shall hopefully get the chance soon again in Pesachim to discuss this issue in more detail.

For our purposes, we shall note that Tosfos distinguishes between a custom which people took on because they mistakenly believed something was actually forbidden, and a custom which people took on as an extra chumra despite knowing that it was actually permitted.

In the former case, their minhag was taken on due to error, and one may certainly permit it to them.

In the later case, no error was involved, and one may not later permit it.

Tosfos understands that according to Rabbi Yosi, the members of the shul refrained from locking the door with such a bolt because they mistakenly believed it was forbidden, and Rabban Gamliel and the elders were well within their rights to correct their error and permit it!

What is still unclear is what the reason was for their initial error? Was it simply ignorance on their part, or was it because another Rabbi had mistakenly (at least in the view of the later Rabbi) told them that it was forbidden (as Rabbi Eliezer indeed held?)

If the later is true, it would solve our original problem of how a new Rabbi can permit something forbidden by the previous Rabbi if in his view, the previous Rabbi was wrong.

It is also possible, however, that seeing as the community was doing the right thing by following their Rabbi at the time, their stringent practise cannot be seen as an error, and in such a case, the new Rabbi may not permit it.

The role of rabbinic authority in the acceptance of minhagim is itself worthy of much discussion, and as mentioned, I hope to continue this when we reach the relevant sugya in Pesachim, Hashem willing!

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 100 Running on grass on Shabbos

This is one of those daf that are  filled with an array of different colorful topics not directly related to Eruvin per se, spanning from other shabbos laws to advice regarding marital intimacy.

One of them is the prohibition of climbing or making use of trees on Shabbos and Yom-Tov.

The Gemara also brings a Beraisa that says that one may not even walk on grass on Shabbos, apparently in case one uproots it while walking.

This supports a ruling to that effect of Rami bar Aba in the name of Rav Assi, who bases this on the passuk )Mishlei 19/2)  “ואץ ברגלים חוטא”- one who is “אץ” with his legs is a sinner.

Rashi explains that this implies that walking can be considered a sin and doing so on grass on shabbos is precisely such a case.

The Gemara brings another Beraisa that rules to the contrary that walking on grass on shabbos is permitted.

The Gemara gives several options to reconcile these two Beraisa’s:

  1. The stringent  Beraisa is talking about walking on moist grass, which Rashi explains is forbidden, whereas the other is talking about walking on dry grass which Rashi explains is considered as if it has already been uprooted. Perhaps this is because dry grass  does not grow, is no longer deriving much nourishment from the grounded and detaching it might thus not fall under the מלאכה  of קוצר (harvesting) which includes detaching anything from the place where it grows.
  2. The one Beraisa is talking about during the dry season, and the other is talking about during the wet season.
  3. The stringent  Beraisa is talking about someone who is not wearing shoes. Rashi explains that the grass gets stuck around his toes and is easily torn.
  4. The stringent Beraisa is talking about one is who wearing shoes with nails in the bottom which cause grass to be torn .
  5. The stringent Beraisa is talking about walking on long grass which is more easily uprooted.

Though there appear to be some differences in the גירסא  (wording) of the above distinctions, they seem to be conclusively rendered mute by the Gemara that concludes that “today” that we follow Rabbi Shimon who holds that דבר שאין מתכוין מותר, it is permitted under all the above circumstances.

We have discussed multiple times in our posts on Maseches Shabbos the rule of דבר שאין מתכוין- when an otherwise permitted action might result in an unintended  secondary forbidden action.

Although Rabbi Yehuda and the Amora Rav forbid such an action, Rabbi Shimon and the Amora Shmuel permit it, and many Amoraim rule accordingly, including the later authority Rabbah- one of the only 3 times he supports a leniency of Shmuel against a stringency of Rav.

In our case, one wishes to perform the ostensibly permitted action of walking on grass, and there is a concern that while doing so, one will unintentionally transgress a second forbidden action of uprooting the grass

As we also know from various places, when the secondary forbidden action is inevitable, it is known as פסיק רישיה  and even Rabbi Shimon forbids the otherwise permitted action .

As such, it should follow from our Gemara’s application of Rabbi Shimon’s leniency to walking over grass in all these different circumstances that it does not consider uprooting the grass to be an inevitable result even when the shoes have nails in them or where the grass is long! (Alternatively, this could serve as a proof for the view of the ערוך who permits פסיק רישיה דלא ניחה but that is for a different discussion!)

If so, it seems that Rami bar Aba and Rav Assi who applied the passuk in Mishlei to this act, in line with the stringent Beraisa, must have held like Rabbi Yehuda and his view and accompanying דרשה  from the passuk is rejected together with the stringent Beraisa.

A very practical question involves whether this lenient ruling applies to running on grass as well.

On the one hand, the pressure exerted by running on the grass is certainly greater than that exerted by walking, both because of the speed as well as the different mechanism of running.

On the other hand, it is certainly not clear that running on short grass with regular shoes is more likely to uproot the grass than running on long grass with nailed shoes, and if the later is not considered פסיק רישיה, the former might not be either.

In addition, if there was a distinction between walking and running, one would expect the Gemara to make that distinction- it would be a perfect way to reconcile the two Beraisa’s!

One might counter that running is already forbidden on Shabbos as a weekday activity (see Shabbos 113a) but running  to learn, shul  or for the sake of another  mitzva is permitted (see Brachos 6b and Rif’s girsa there) , as is running for עונג שבת   (סמ”ק רפא) , so that argument seems rather mute.

If it was indeed פסיק רישיה  to run on grass on the way to shul, for example, one would expect the Gemara to say so at some point.

The Biur Halacha (O.C. 336/3) however, brings the סמ”ג  (לאוין סה) , who quotes the Yere’im as bringing our Gemara as a proof that one should not walk on grass on shabbos where it is impossible not to uproot it while walking!

He quotes others who questioned these words of the סמ”ג  based on the seemingly obvious fact that the Gemara rejected the view that forbids walking on grass because we follow Rabbi Shimon, implying that it does not consider it to be פסיק רישיה  under any circumstances- after all, this is how most of the Rishonim seem to have learnt the sugya!

He suggests that the סמ”ג  and יראים were bothered by the fact that the Gemara rejected all the distinctions made to reconcile the stringent Beraita with the lenient one, because we follow Rabbi Shimon, but did not reject the derasha of Rabbi Assi that started the discussion.

They therefore assume that Rabbi Asi’s derasha is still upheld and he must be referring to running on tall grass, which is considered to be  פסיק רישיה.

Based on this reasoning, he cautions in  the Mishna Berura (O.C. 336/25)  against running on long grass on Shabbos.

This seems to be quite a chumra, given that it is based on a distinction not made by the Gemara, as well as a novel interpretation of a סמ”ג  and יראים  that we do not see in most of the Rishonim (see Aruch haShulchan 336/21 who indeed rejects this stringency for these reasons,) but it opens the door to the possibility that under certain circumstances, there is a distinction between running and walking, and even when running is permitted on shabbos, for a mitzva or oneg shabbos, it might be problematic where uprooting the grass appears closer to inevitable.

Would the Mishna Berura extend that stringency to other types of running that might be closer to פסיק רישיה  such as running on regular grass without shoes or with nail-studded shoes?

Seeing as his ruling is already novel, and he never mentioned such obvious possibilities, it seems that even if we follow his stringency, we should apply the rule of אין בו אלא חדושו (we do not extend a novelty beyond what is stated,) unless it is clear to us under certain circumstances that there is a case of פסיק רישיה.

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 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