5757/1996
This week we will conclude our discussion of the laws of Eruvin. We will focus on three major areas of concern when constructing an Eruv. These are the questions of Karpef, Eruv Chatzeirot, and Schirat Reshut.
Karpef ()
A major obstacle in creating a viable community Eruv is the existence of a Karpef within an Eruv. A Karpef is an area which is at least 100 cubits by 50 cubits or 5000 square cubits ( ) which is not used for human habitation or need (see Eruvin 23 and Shulchan Aruch chapter 358). Chazal forbade us to carry within a Karpef even if it is located within a Reshut Hayachid created by (halachic walls - see previous essays) or Tzurot Hapetach. The reason for this rule is that Chazal required that the Reshut Hayachid be encompassed by or Tzurot Hapetach for the purpose of human habitation, that it be . For example, a wall built to surround an uninhabited forest cannot be considered to be built for the sake of human habitation or need.
Moreover, not only is it forbidden to carry within a Karpef, but the presence of the Karpef renders the area forbidden to carry in. The reason is that the presence of a Karpef makes the area considered not to be . The Chazon Ish (88:25) writes that the way to eliminate a Karpef problem is to encompass the Karpef with either Mechitzot or Tzurot Hapetach, thereby excluding the Karpef from the rest of the area included in the Eruv. By excluding the Karpef, the community is considered to be .
Other more lenient approaches have been offered to solve the problem of Karpefs that are situated within a community Eruv (interestingly, a suburban area is much more likely to encounter a Karpef issue than an urban Eruv). The Biur Halacha (358:9 s.v. ) cites the celebrated responsum of the Dvar Shmuel that rules that if a Karpef is situated within a city and is only a small part of the city it does not render the area forbidden to carry in. The Dvar Shmuel reasons that in such a situation , the Karpef area is negligible compared to the rest of the city and may be ignored (although the Dvar Shmuel speaks of a city surrounded by walls, his ruling applies equally to a city surrounded by Tzurat Hapetach, see Melamed Lehoil 165).
Halachic authorities have had a mixed reaction to the Dvar Shmuel. In one hand, the Chazon Ish (cited earlier) rejects the Dvar Shmuel. He sees no reason why a Karpef that exists within a city should differ in status from one inside an Eruv that exists elsewhere. The Biur Halacha expresses serious reservations about this leniency, but he seems to regard as normative the conclusion of the Chacham Zvi that in case of great need and where is impossible to construct the Eruv otherwise, the Dvar Shmuel's opinion may be followed.
Once again, this issue remains controversial and some communities rely on the Dvar Shmuel and others do not. Not surprisingly, this author was told by a number of Israeli rabbis that the practice in Israel is to follow the lenient opinion of the Dvar Shmuel, save for Bnai Brak (where the Chazon Ish resided). This is hardly surprising since in Israel, the Eruvin usually encompass entire cities and towns (the circumference of Jerusalem's Eruv, for example, is approximately 110 kilometers) and thus it is almost impossible to exclude every Karpef within Israel's growing (with God's help) cities. Hence, in keeping with the approach of the Biur Halacha, the Dvar Shmuel's lenient ruling is followed.
A compromise approach is that if the Karpef is made for the beautification of the city, it is not forbidden to carry in that Karpef. The only time a Karpef is not considered is when it does not serve a function of human habitation or use. However, if it serves an aesthetic purpose, such as a flower garden, the area is considered to be serving a human use. A number of authorities accept this approach (see Orchot Chaim -- an early twentieth century compilation of the responsa literature regarding the Orach Chaim section of the Shulchan Aruch -- chapter 358, citing the Nzirut Shimshon, and Teshuvot Melamed Lehoil 65, and Teshuvot Har Zvi, O.C.II Harrei Basadeh p.249).
Eruv Chatzeirot
Even after a proper Eruv has been constructed and the area encompassed is thereby rendered a Reshut Hayachid, it is still not permitted to carry in that area on Shabbat. Despite the fact that it is Biblically permitted to carry in a Reshut Hayachid, there is a Rabbinic requirement to make an Eruv Chatzeirot (referred to by Chazal as an Eruv) in order for it to be permissible to carry on Shabbat, if there are more than one households within the Reshut Hayachid (for exceptions to this rule, see Shulchan Aruch 382:1).
An Eruv Chatzeirot is made by having every household in the Reshut Hayachid contribute some bread and all the bread is stored in one of the houses within the Reshut Hayachid. By doing so, the halacha then views the situation as if everyone is living in the house or apartment where the Eruv is stored (see Shulchan Aruch 366:1).
The Talmud (Shabbat 14b) states that king Solomon made the requirement of Eruv Chatzeirot. The Gemara relates that when Solomon made this (enactment), a heavenly voice responded by acknowledging the profound wisdom of this rule. The reason for this rule, explains the Rambam (Hilchot Eruvin 1:4), is that people would otherwise become confused with the laws of carrying. For example, people would find it confusing that it is permissible to carry from one apartment to another within one building, but that it is forbidden to carry outside the apartment building (in a place where there is no Eruv). An Eruv is made to make people aware of the difference between carrying from one residence to another (into a common area such as apartment corridor or streets in an area enclosed by an Eruv) as opposed to carrying from within the Reshut Hayachid to beyond the Reshut Hayachid.
The process of the Eruv Chatzeirot is designed to educate the community about the laws of carrying. This seems to be a reason for the time-honored practice (see Rema 366:3) to store the Eruv Chatzeirot in the synagogue. Accordingly, the practice initiated by Rav Pinchas Teitz zt"l in Elizabeth, New Jersey, of prominently displaying the Eruv in a place in the synagogue where it can be seen by all the community members, is most appropriate. Another advantage to storing the Eruv in the shul, is that community members have full access to the Eruv (see Rav Moshe Shternbach, Teshuvot Vehanhagot I:250 who emphasizes the need to educate communities to be certain that everyone has access to the Eruv).
In practice, we do not require that every household in a Reshut Hayachid give some bread to one member of the community. Instead, everyone in the community is granted a portion of the Eruv by the process known as (acquiring something on behalf of another -- see Shulchan Aruch 366:15). This is accomplished by having one person hand another the Eruv (the practice is to use a box or two of Kosher for Passover Matza, see Rema 368:5) and the second person lifts the Eruv at least a Tephach (3-4 inches) with the intention of acquiring the Eruv on behalf of all (and future residents) who reside within the Reshut Hayachid.
The Bracha is recited prior to the procedure of acquiring the Eruv on behalf of the community and then the formula is recited, which explains the purpose the Eruv is intended to serve (see Shulchan Aruch 366:15).
Schirat Reshut
The procedure of Eruv Chatzeirot is effective solely for Jews who believe in the Oral Law and thus believe in the efficacy of an Eruv ( ). However, one must rent the apartments, homes, and common areas (i.e. streets, parks) from every non-Jewish and non-believing Jewish resident of the Reshut Hayachid. This procedure is known as .
This is a virtually impossible task to accomplish in a community Eruv. Fortunately, the halacha provides an alternative method to perform the (see Shulchan Aruch 391:1). The halacha permits one to rent the area from the head of the city ( ) or from one to whom he has delegated authority ( ). The Shulchan Aruch rules that not only does the head of the city have the halachic ability to rent the common areas within the Reshut Hayachid, but he may even lease the homes of the residents of the city since he has the right to quarter soldiers and/or military equipment in time of war.
Rav Hershel Schachter reports that Rav Moshe Feinstein rules that even in a democracy which forbids quartering soldiers, the duly elected mayor has the right to lease the homes of individuals for . Although some explain that the basis of this leniency is the right of eminent domain, others, including Rav Schachter, strongly question this leniency. They point out that the right of eminent domain is rarely used and difficult to apply. These authorities acknowledge that the mayor or police have the right to close the common areas of the city. According to the strict opinion, it is forbidden to carry on Shabbat (even within an Eruv) from one's home to the home of a non-Jew or non-observant Jew. One should consult with his Rabbi as to which opinion should be followed.
The Netivot Shabbat (chapter 37, footnote 93) points out that all would agree that the mayor or police do not have the right to rent out a foreign embassy located within the city. This is because international law recognizes an embassy as being part of the sovereign territory of the nation which it represents. Thus it would be forbidden to carry into a foreign embassy in Tel Aviv or Jerusalem on Shabbat.
It is important to note that it is often unclear who is the appropriate authority to lease the area from (see Mishna Berura 391:18). In order to avoid this problem, rabbis usually perform from a number of authorities, such as both the mayor and the police. A particularly interesting situation occurred when Rabbi Barry Freundel of Congregation Kesher Israel of Washington, D.C. established an Eruv for his community. Because of the ambiguous nature of municipal authority in Washington, D.C., Rabbi Freundel performed from President George Bush, Mayor Marion Berry, the head of police, and the City Council.
When expanding a community Eruv, care should be taken to ensure that the Schirat Reshut includes the expanded areas. In addition, the Schirat Reshut should not be allowed to expire. For a discussion of how long a Schirat Reshut may be made see Mishna Berura 382:48 and Netivot Shabbat chapter 37 note 20.
Conclusion
We hope that our readers have found our discussion of the laws of Eruv both informative and enlightening. It should be emphasized that we have reviewed only some of the laws of Eruvin. For further discussion of the laws of Eruvin see "Netivot Shabbat" by Rav Yaakov Yeshaya Blau, Rabbi Shimon Eider's "Halachot of the Eruv," Rabbi Elimelech Lange's "Hilchot Eruvin," Rabbi Gavriel Bechhoffer's "Construction of Eruvin in Modern Urban Areas," and Rav Schachter's essay in the Spring 1983 issue of the Journal of Halacha and Contemporary Society.