Shulchan Aruch: Chapter 355 - The Laws That Apply to a Balcony and an Outhouse

SECTION 355 The Laws That Apply to a Balcony and an Outhouse (1-17)

1 A balcony [located] above [a body of] water to which a window from a home opens1 is deemed a private domain2 even though there are no walls around [the balcony], as stated in sec. 345[:23].3 It is forbidden to draw water [and take it into the home]4 from [the body of water] via [the balcony] because the [body of] water is deemed a karmelis.5 [License is granted] only when a partition ten handbreadths high is made surrounding [the balcony] entirely and one draws water via a hole cut out in [the] middle [of the balcony].6 In such an instance, [drawing the water] is permitted because of the principle of gud achis, i.e., it is considered as if the partitions that surround [the balcony] extend downward until the [water’s] very depths. Thus, the water below [the balcony] is [considered as] surrounded by walls and [hence is considered as] a private domain.7 Alternatively, one may make partitions [only] around the hole,8 [provided] the hole is [at least] four [handbreadths] by four [handbreadths in area. It is necessary that the hole be at least this size] because a partition made around a space that is less than four [handbreadths by four handbreadths in area] is not a [valid] partition.9

There is no difference whether one makes this partition below the balcony, connected to [the balcony] from below [and] surrounding its entire perimeter; [or whether he makes this partition] below [the balcony], connected [only] to the space around the hole; or [whether he makes this partition] above [the balcony] in the [previously described] manner. [There is one] proviso: [The partition] must be made with this intent, [i.e.,] to permit the water to be drawn. If, however, [the partition] was made for another purpose, the principle of gud achis is not applied,10 for the reason to be explained.11

Once a partition [of this type] was made for [the balcony], it is also permitted to pour water from [the balcony] through [this] hole,12 even though the water that is poured [will then] flow to a space outside the [area encompassed by the virtual] partition,13 since the person does not intend that [that the water he pours] do so.14

2 Similarly, when a person is traveling on a boat15 which is [at least] ten [handbreadths] deep and four [handbreadths by four handbreadths] in area, [the boat] is deemed a private domain.16 [The person] may not draw water from [the body of] water or the river [on which the boat is traveling] unless he takes a board [measuring] four [handbreadths] by four [handbreadths], makes a hole in it, ]extends it over the water,] and draws the water through [the hole. In this instance, the person] need not make a partition around [the board or the hole]. Instead, we apply the principle of gud achis [to the board in its present state], i.e., it is considered as if the sides of the board have extended downward until the very depths,17 and thus, the water below is considered as if it is surrounded by a partition. [The rationale is that our Sages] granted greater leniency18 with regard to a boat than with regard to a balcony in a home because it is impossible to do [everything] one can do at home on a boat.

3 When does the above apply? When less than ten handbreadths of the outer walls of the boat are [exposed above] the water level. [Instead,] only the inner space of [the boat] is ten [handbreadths] deep.19 [Different laws apply] if, however, [the walls of the boat] are ten handbreadths higher than the water level, and thus, when one draws water from above [the boat’s] walls, the bucket passes through space that is more than ten handbreadths above the water. This space is located in a makom p’tur. [In such an instance,] it is not necessary to [erect] a board four [handbreadths by four handbreadths in area]. Instead, it is sufficient [to extend] a projection of even the slightest width [merely] to make a distinction so that one will not come to transfer [an object] from a private domain to a karmelis20 without it passing through the space of a makom p’tur.21 Therefore, it is not necessary to make a hole in the projection to draw [water] through it. Instead, one may draw [water] from [any place on] the entire boat, because of the distinction he [already] made by [extending a] projection from one place on the boat.22

Even the authorities who forbid transferring [an object] from a private domain to a karmelis even when [the object] is placed down in a makom p’tur in the interim,23 as stated in sec. 346[:3], would agree that, in the instance [described] here, [transferring from the sea to the boat] is permitted, [because] there is a projection of at least a minimal size that creates a distinction. [To explain:] The reason [why these authorities] prohibit[transfers from a private domain to a karmelis via a makom p’tur] is only [to create a safeguard] lest one transfer [an object from one of these domains to the other] without [the object] passing through a makom p’tur in the interim, as explained in that source. [Such a safeguard is unnecessary] in this instance, because there is a projection of at least a minimal size that creates a distinction.

(According to the authorities who permit transferring [an object] from a private domain to a karmelis when it is placed down in a makom p’tur [in the interim], but not [directly] through the empty space of a makom p’tur,24 [extending] a projection to create a distinction is not effective when [the projection] is above ten [handbreadths] high, just as it is not effective when it is below ten [handbreadths high]. Therefore, [according to these authorities,] it is necessary to first place the bucket down on the projection which is a makom p’tur. Afterwards, [the person] may lower [the bucket] into the water. [He must follow] the same [pattern] when returning [the bucket from the water].)

4 All the above applies with regard to drawing water from the sea to the boat. By contrast, there is no need for a board or a projection [to be made] in order to pour waste water or to throw bones and shells from the boat to the water even if the outer walls of the boat are less than ten handbreadths higher than the surface of the water. Instead, one may pour or throw [the waste] from the top edge of the boat’s walls. That area is deemed the space of a private domain, for as explained in sec. 345[:7], the space on top of the walls of a private domain is also deemed a private domain. [Thus,] from [the upper edge of the boat’s walls, the waste material] will descend via the boat’s sides to the sea. True, [the waste material] will not come to rest on [the boat’s] sides at all, but will immediately descend to the sea; [indeed,] that is [the person’s] intent.25 Nevertheless, since [the person] does not pour or throw [the waste materials] directly from his hand to the sea, but instead, [pours or throws them] on the wall and [then,] because of his power, they descend to the sea, [there is room for leniency. The rationale is that our Sages] did not impose prohibitive decrees in a karmelis regarding [an action that a person did not perform directly, but which came about as a result of] his power.26

If, however, [the person] does (not) desire to pour [the substances] directly on the wall,27 but rather slightly distant from it, straight into the sea, he must make a distinction with a projection28 or with a board [that measures] four [handbreadths] by four [handbreadths] that has a hole, and pour [the waste out] via the hole,29 as explained above with regard to drawing [water].

5 All the above applies when the walls of the boat are ten handbreadths high, in which instance, [the boat] is deemed a private domain.30 If, however, [the walls] are not ten [handbreadths] high, [the boat] is deemed a karmelis even though it is a k’li. [In that instance,] it is permitted to draw [water and] pour water from [the boat] to the sea in all cases without [extending] a board or a projection, because it is permitted transfer [articles] from one karmelis to another.31 The statement that a k’li is not deemed a karmelis32 was made only with regard to a k’li located in the public domain, because [a k’li located in the public domain] becomes batel to the public domain and is placed in that category. When, by contrast, [the k’li] is located in a karmelis,33 it is deemed a karmelis.

6 Therefore, [when the walls of the boat are that low,] one must be careful not to move articles inside it more than four cubits, as is the law with regard to a karmelis.34 Should the boat have a dwelling on it, it is forbidden to carry from the dwelling to the [other parts of the] boat.35

7 Similar [laws] apply with regard to small boats whose bases narrow at their hull until they are [as narrow] as the tip of a knife36 and their narrow portion is the height of three handbreadths. [As such, these boats] lack an area of four [handbreadths by four handbreadths] in their lower portions before they rise three handbreadths from their hull. It is forbidden to carry an object more than four cubits in [such a boat] even if its walls extend ten handbreadths upward from the point where its area expands to being more than four [handbreadths by four handbreadths. The rationale is that,] in its narrow place, [at its bottom, the boat] does not have any walls – for any walls made to encompass a space less than four [handbreadths by four handbreadths wide] are not considered as walls, as stated above.37 Hence, [in] the portion [of the boat] where [the area encompassed] (by the walls) became four [handbreadths by four handbreadths] or more [wide], the walls are considered as walls hanging in the air,38 which are not considered as valid walls.39 The principle of gud achis40 is not applied regarding these [walls. It is applied] only when the [walls that are hanging] were made to permit carrying in the water, as will be explained.41

If, however, [the inner space of the boat] expanded to four [handbreadths by four handbreadths] within three handbreadths [of the water], it is considered as if [the boat’s] bottom was raised until [this height], and hence, its walls are considered as valid walls.42 Similarly, if one filled the bottom [of the boat’s hollow] with reeds until the point where its area reached the required width, [the walls] are considered as valid walls (above [that point]) if they extend for ten [handbreadths] or more.

8 When two boats are [located] next to each other and there is less than four handbreadths – the [minimum] measure of a karmelis – between them,43 it is permitted to carry from one [boat] to the other.

If [the boats] belong to two different people, one may not carry from one [boat] to another unless an eruv was established between them. An eruv is only valid when [the boats] are tied to each other.44 [The rationale is that] if [the boats] are not tied together, they can drift away and separate. [Then the open space of] a karmelis will intervene between them; thus, they will not be joined domains.

If [initially the boats] were tied together and their connection was severed on Shabbos, the eruv is nullified. In this instance, the principle – since [carrying between them] was permitted [at the onset of the Shabbos], it is permitted [for the entire Shabbos]45– is not applied. See sec. 362[:8].46

9 If the walls of the [two boats] are ten handbreadths above the water level from the outside,47 it is permitted to transfer articles from one [boat] to the other even if they are very distant from each other. [The rationale is that one] is transferring from one private domain to another private domain through [an intervening area] more than ten [handbreadths] high, which is a makom p’tur.48 Even if the boats belong to two [people], it is permitted [to transfer] from one to the other without an eruv according to the authorities who permit transferring an object [from one domain to another] via the empty space of a makom p’tur [since a makom p’tur is] a domain defined by Rabbinic Law, as stated in sec. 346[:4].49 It was already explained there50 that, fundamentally, the halachah follows the authorities who forbid such [a transfer].

10 When an outhouse51 is positioned over water, it is permitted to relieve oneself there [on Shabbos] by constructing a barrier that hangs down and surrounds it in the manner described with regard to a balcony.52 The principle of gud achis is applied with regard to such a barrier since it was constructed for this specific purpose – to allow [people] to relieve themselves there on Shabbos.

This principle of gud achis is not, however, applied with regard to the walls of the outhouse, since they were not constructed for that [particular] purpose, but rather for the sake of modesty.53 [The rationale is that,] according to the letter of the law, it would not be appropriate even to permit a barrier that is hanging below [the outhouse], because the principle of gud achis is not applied to barriers that are hanging more than three handbreadths above the ground since goat kids can pass under them, as explained in sec. 345[:4. True,] in this instance, [since the barrier is constructed over] water, goat kids cannot pass under it. Nevertheless, fish can pass under it.54 For this reason,55 a balcony [over land] is not considered a private domain unless a window opens up to it.56 Our Sages, however, granted leniency [with regard to domains hanging over and positioned in] water57 and applied [the principle of] gud achis, since the passage of the fish [in the water below the barrier] is not apparent. They did not, [however,] grant the leniency unless the barrier was constructed for the sake of [transferring to and from] the water.58 [The barrier creates] a distinction and a reminder that the water below is a karmelis, and it is only permitted to transfer [to and from the water] when there is a barrier. When the barrier, however, was not erected for this purpose, there is no distinction [or reminder] whatsoever.

11 If the person made a board – or even [fashioned] a thin reed – on which the excrement will fall before it falls into the water, there is no need for a barrier at all if [the reed or the board] is within three [handbreadths] of the hole,59 for then [the principle of] lavud [is applied. Thus, the board or the reed] is considered like a hole [which opens to] a private domain that is [also] deemed a private domain.60 Thus, [the person] is transferring the excrement from a private domain to another private domain, and then it falls into the water, which is a karmelis, because of his power. [This is permitted, because our Sages] did not impose a decree forbidding [an indirect transfer caused by a person’s] power in a karmelis.61The same laws apply if the outhouse is constructed in a manner where the excrement first falls on the side of the wall of the outhouse, which is a private domain, and then rolls and falls below into a karmelis. All the above [leniencies only] apply with regard to a karmelis that is outside a town, as will be explained in sec. 357[:7].62

If the reed or the board [placed above the hole in the outhouse] breaks on Shabbos, it is [still] permitted to relieve oneself there. [The rationale is that] in consideration of human dignity,63 [our Sages] did not impose a decree prohibiting [a transfer in] a karmelis, as stated in sec. 312[:4].64

12 If an outhouse projects outward from the walls of a town and the excrement falls into a ditch around the town that is larger than the space necessary to sow two seah65– in which instance, [the ditch] is [considered] a karmelis, as will be explained in sec. 358[:1] – it is not permitted [to relieve oneself] in [the outhouse] using a partition that hangs down [below the outhouse].66 [The rationale is that our Sages] only permitted [such a partition] with regard to water for the reason explained,67 but not [over] dry land. Nevertheless, it is permitted [to relieve oneself there using] a board or a reed.68 [The rationale is that an indirect transfer caused by a person’s] power is permitted in any karmelis that is not located in a town.69

According to the authorities who permit transferring from a private domain to a karmelis via the empty space of a makom p’tur,70 there is no need for a barrier at all, nor [is there a need for] a board or a reed [to relieve oneself] in any outhouse that is located ten [handbreadths] above the ground of a karmelis. [However,] it was already explained71 that, fundamentally, the halachah follows the authorities who differ [and forbid such a transfer].

There are authorities who maintain that if there already was excrement in [the ditch] in the karmelis while it was day [on Friday], it is permitted to relieve oneself upon [that excrement] in any instance, even though afterwards, [the excrement] falls to the ground of the karmelis. [The rationale is that the pile of] excrement that was there while it was day [on Friday] is deemed a makom p’tur (if it is not four [handbreadths] by four [handbreadths]) (and it is three [handbreadths] high, or even if [the pile of excrement] is not three handbreadths high, but it is four [handbreadths by four handbreadths] in area and thus people do not step or jump over it,72 but rather walk around it).73 Nevertheless, according to the explanation in sec. 345[:25] – that fundamentally, the halachah follows the opinion that the concept of a makom p’tur does not apply in a karmelis – no leniency should be taken in such an instance.

According to the explanation in that source – that all authorities agree that [the concept of] a makom p’tur does not apply in a private domain – when there is an outhouse located between two homes and an eruv was not established between them,74 all authorities agree that it is forbidden to relieve oneself [in that outhouse] even if there was excrement [below it] while it was still day [on Friday], except when one constructs a board or a reed [below the hole leading from the outhouse].75 In such an instance, license was granted, even though [the outhouse] was located in a town.76 [The rationale is that our Sages] did not impose a decree forbidding [an indirect transfer caused by a person’s] power in a courtyard that is not joined with an eruv, even when [the courtyard] is located in a town, as stated in sec. 357[:7].

13 All the above applies as an initial preference. After the fact, by contrast, i.e., [the homeowners] forgot and did not establish an eruv,77 it is permitted [to use the outhouse] in consideration of human dignity.78

14 Seafarers are accustomed to relieve themselves from the meshitah79into the sea. [This is permitted] since the meshitah is not ten [handbreadths] above the water.80 Even though it is four [handbreadths by four handbreadths or more] in area, [the meshitah] is only deemed a karmelis. [Hence, relieving oneself from it into the sea is considered] transferring from one karmelis to another [which is permitted].81

15 ([Our Sages] permitted the use of a partition hanging [over water]82 only when people do not pass through [the water] because of its depth, even though its depth is less than ten [handbreadths].83 When, [however,) many people walk through [a body of] water, a hanging partition does not cause [carrying] in it to be permitted (even if [the water] is ten [handbreadths] deep and even if it is located in a karmelis). [The rationale is: The fact] that many people pass through [the water]prevents the application of the principle of gud achis.84Similarly, if the water dries up, the hanging partition is no longer effective with regard to permitting [carrying] in that area. [The rationale is that] a hanging partition does not cause [carrying] to be permitted on dry land even in a deep groove, as stated [above].85

16 [The following rules apply when there are] two balconies, one on top of the other,86 whether they are situated within ten handbreadths of each other or whether there is a height of more than ten cubits between them. [If] a partition and a hole were made for the upper balcony,87 but not for the lower one, [a difficulty could arise] on Shabbos [in the following situation]: The lower balcony is not situated directly under [the upper one, but rather a slight distance away from it, and thus it is possible for] the residents of the lower [dwelling] to throw a bucket over the walls of the higher [balcony] and have it lowered through the hole [in the upper balcony], lowering [the bucket] and then pulling and lifting it up.88 [Accordingly, the residents of] both domains are forbidden to draw water [through that hole] unless they make an eruv,89 since they both share control over the hole.90 [See fig. 45.]

The above applies when [the residents of both dwellings] partner in making the partition. If, however, the [people dwelling] above make a partition [around the balcony or the hole] by themselves, [the people in] the lower dwelling do not cause [the use of the hole by those in the upper dwelling] to be forbidden even if [the people in the lower dwelling] are accustomed to also using [that hole] during the week, since they are using it in a manner not sanctioned by law.91

Similarly, if [a partition and a hole] are made for the lower [balcony], but not for the upper one, those dwelling above do not cause [the use of the hole] to be forbidden [for those dwelling below] unless [the residents of both dwellings] make [the partition] in partnership.92

If they [each] make [holes and partitions for] their [balconies], or even if [the people from both dwellings] make them in partnership (but each one only uses his own,) (in which instance, explanation is necessary [regarding the rationale given by our Sages]93 – that [the residents of the lower dwelling] need to reveal their intent)94 – [the residents of] neither [dwelling] cause the other [hole] to be forbidden.95 [It must be concluded that] they are making the partnership for another reason.96

17 All the above [restrictions] apply when [the two balconies] are only separated from each other by [a short distance],97 i.e., less than four handbreadths. If, however, [the balconies] are separated from each other by four handbreadths [or more, the residents of] both [dwellings] are permitted to draw [water] without an eruv, and the people in the [dwelling] without [the hole]do not cause the one who [made the hole] to be forbidden to use it.

[This leniency applies] whether [a hole and a partition] were made for the upper [balcony] and not for the lower one or for the lower one and not for the upper one.

[The rationale is that] since [one balcony] is separated from [the other] by a width of four handbreadths [or more], the only way [the residents of one dwelling] can make use of [the hole in the other dwelling’s balcony] is by throwing a bucket across a space that is four handbreadths wide. And a person does not cause another person to be forbidden to use his property when [the second person’s property] is [separated from the first person’s property] by a [significant] space, as will be stated is sec. 376[:3].98 [The rationale is that] using [property] by throwing [something] a distance of four handbreadths [or more] is not considered [ordinary] usage at all.99