Shulchan Aruch: Chapter 357 - The Laws That Apply to a Courtyard That Is Less than Four Cubits [by Four Cubits] and to a Gutter

SECTION 357 The Laws That Apply to a Courtyard That Is Less than Four Cubits [by Four Cubits] and to a Gutter (1-8)

1 When a courtyard [that measures] less than four cubits by four cubits is located next to a public domain,1 water should not be poured into [the courtyard] on Shabbos [from one’s home]2during the summer.3 [The rationale is that] since [the total area of the courtyard] is less than four cubits [by four cubits], the two seah4 of water that a person normally uses daily will not be absorbed5 in [the courtyard and it will subsequently flow into the public domain]. Hence, it is as if [the person] poured the water [directly] into the public domain.6

True, there is no Scriptural prohibition against pouring the water [into] a courtyard [when it will then flow into the public domain on its own] (as long as [the water] is not poured directly close to the public domain, but rather slightly distant from it in a manner that [the water] will flow into the public domain as a matter of course and not as a result of the force of the person pouring it. Instead, [the person’s] pouring will merely serve as the [initial] cause.) Nevertheless, doing so is forbidden by Rabbinic Law (in all cases). [This is] a decree [imposed] lest one pour [water] directly into the public domain (or pour it in [a portion of] the courtyard [that is] right next to the public domain).

Therefore, [for one to be permitted to pour his water into such a courtyard,] it is necessary [for him] to make a cavity whose hollow can contain two seah,7so that the water he uses [on Shabbos] could be contained in it. Thus, [when the person pours water into the courtyard], it will not be as if he is pouring it into the public domain.

[License is granted] whether [the person] makes [the cavity] in the courtyard or in the public domain in immediate proximity to the courtyard. If, however, [one] makes [a hole] outside [the courtyard], he must cover it with boards. [The rationale is that] if [the hole] remains open, there are times when mire or mud will [collect] in it and [thus] it will not be ten [handbreadths] deep. [Hence, the hole] will be deemed a karmelis.8 When, however, [the area] is covered and opens to a private domain,9 it is considered as a hole [directly] off a private domain, which is also deemed a private domain.10

2 Once one makes a cavity [that can contain] two seah, he is permitted to pour as much [water] as he desires into it and/or [into] the courtyard,11 even a kor12 or two kor.13 [This leniency applies] even if the cavity was [already] full on Friday.14 [The rationale is that] since the Sages ordained that [a specific act15 be performed to ensure] the person [remembers] the Shabbos so that he will not forget and pour [the water directly] into the public domain, there is no reason for concern if [after the person adhered to their instructions, the water] flows into the public domain as a matter of course.16

([The person] should, however, take care not to pour the water out into [a place in the courtyard that is] in direct proximity to the public domain and distant from the cavity in a manner that the flow [of the water] into the public domain actually comes about directly as a result of the power of his pouring.17 This would constitute a Scriptural prohibition, like one who rolls an object from a private domain to a public domain.)

If, however, [the cavity] is not [capable of] containing two seah, [the person] may not pour even a small amount into it. [This is] a decree [instituted] lest one pour a large amount [of water] into [the cavity, i.e.,] more than it can contain.18

3 All of the above applies during the summer, when a person is careful that his courtyard [not become] soiled and he desires that the water flow out of it. Thus, when [the water] flows out, his intent is fulfilled. Hence, there is reason [to institute] a decree lest he pour [water] out [into the public domain]. In the rainy season, by contrast, when a person is not bothered by his courtyard [becoming] soiled19 and he does not [necessarily] intend for the water to flow out of it, there is no concern [that he will pour water out into the public domain. The person] may, [therefore,] pour as much water as he desires [into his courtyard] even if [his courtyard] is very small. ([This license is granted] even if [the person] pours [the water] in direct proximity to the public domain, as long as it is not inevitable20 that [the water] will immediately flow into the public domain as a direct result of his pouring.)

4 [One might ask:] Why are we not concerned with the impression that might be created, i.e., that one who sees water flowing out of the drains in the earth of [a person’s] courtyard on Shabbos will say that [the person] poured [the water] into the public domain (or in his courtyard in direct proximity to where [the water] will flow out to the public domain with the intent that it flow out to the public domain)? [The rationale is that] in the rainy season, the drains [naturally] gush with rain water and an observer will say that [the water gushing forth] is from [the] rain. Even when it is not raining [at that moment], one will say that [the water] is from the collection of past rains that are now flowing out.

5 If the area of the courtyard is [equal to] four [cubits] by four [cubits] – even if it is not square, but rather, long and narrow, e.g., eight cubits by two [cubits] – it is permitted to pour as much [water] as one desires into [the courtyard],21 even in the summer. [The rationale is that there is no reason] to impose a restrictive decree [against pouring] into this courtyard the two seah that a person is accustomed to use each day, because [this quantity of water] is fit to be absorbed in [the courtyard itself]. If so, when [one] pours [water] there, he is not pouring it with the intent that it flow outside [to the public domain]. Even if it comes to pass that [the water] does flow out [of the courtyard to the public domain], that was not his intent, and his intent was not fulfilled if [the water] flowed out [of the courtyard to the public domain. There is also no reason] to impose a restrictive decree lest [one intentionally] pour [the water] out to the public domain.

Therefore, even if [one] wishes to [pour] more than two seah [of water] into [the courtyard, the Sages] did not impose a restrictive decree, because this is an uncommon situation. Similarly, even if [the courtyard] was filled with water on Friday, since this is also an uncommon situation, [the Sages] did not desire to impose a restrictive decree for this reason alone, because there would be no reason to impose a decree [in an ordinary situation, i.e.,] with regard to the two seah [of water] that would [normally] be absorbed within [the courtyard]. (Nevertheless, one must be careful not to pour [the water] in immediate proximity to the public domain, as explained.)22

6 [When there is] a courtyard and an exedra23 where neither one alone [has an area of] four cubits [by four cubits], but together [they reach that size], they are considered as a combined entity of four cubits [by four cubits] with regard to the license of pouring out [water] there.24 The same law applies to two balconies in front of two lofts, [when the balconies have] a large ceiling on them in which the water could be absorbed. [Although] neither one of [the balconies] alone [has an area of] four cubits [by four cubits], they are considered as a combined entity and as one balcony, provided that they are within four handbreadths of each other, and thus it is easy for [a person on] one [balcony] to make use of the other.

7 All the above applies to a courtyard next to the public domain. If, however, [the courtyard] is [located] next to a karmelis, it is not necessary for it to have a cavity [dug in it]. Even if [the courtyard] is very small, it is not necessary for it to have a cavity [dug in it, and] it is permitted to pour out as much [water] as one desires there, even in the summer and even if one intends for [the water to] flow out [into the karmelis. The rationale is that:] As long as one does not pour the water directly into the karmelis or in direct proximity to the karmelis,25but rather, [the water flows] into the karmelis as a result of [the person’s] power, [the act is permitted, and our Sages] did not impose a [restrictive] decree [against the effects of one’s] power in a karmelis, as stated in sec. 355[:4].

There are, [however,] authorities who maintain that there is no difference between a public domain and a karmelis in this context. [Our Sages’] statement that a [restrictive] decree was not imposed [against the effects of one’s] power in a karmelis applies only to seas and rivers,26 which will not be confused with an area that is a public domain [in a complete sense. Similarly, this statement] even [applies] regarding a karmelis on dry land, [but] which is outside a town.27 [Such a karmelis] also will not be confused with a public domain in a complete sense, for it is uncommon for so many people to be found outside a town that there will be [sufficient] human traffic to constitute a public domain in a complete sense. In contrast, a karmelis [located] within a town can be confused with a public domain in a complete sense. This applies even in the present era, when there are authorities who maintain that a public domain in a complete sense does not exist because 600,000 people do not pass through [the domain].28 Nevertheless, such confusion can arise in a large city where there are 600,000 [people who indeed do pass through its streets].29

True, license was granted [to pour waste water] through a hole in a balcony above water even though, as a result of [the person’s] power, the waste water flows outside the partition that is around the balcony, as stated in sec. 355[:1. However, that license was only granted] because the person did not have that intent [in mind],30 as stated in that source. In this instance, by contrast, when a person pours water into a courtyard that is not four cubits [by four cubits in area] in the summer, he intends that [the water] flow outside the courtyard so [the courtyard] does not become soiled. Fundamentally, the halachah follows this opinion [and, hence, stringency is required].

All authorities agree that a [restrictive] decree [against the effects of] one’s power was not imposed when [two] courtyards [are adjacent, but] an eruv was not established between them.31 It is permitted to pour [water] into one courtyard with the intent that it flow into the other, even though an eruv was not established between them. A walled city in which an eruv was not established is governed by the same laws as [two adjacent] courtyards for which an eruv was not established. [The rationale is that the city] is [after all, surrounded by] partitions; it merely lacks an eruv.

8 [The following laws apply to] a gutter,32 i.e., a ditch made for waste water to flow from a courtyard to a public domain that extends along a goodly portion of [the length of] the public domain. If [the gutter] is covered in the four cubits of the public domain that are [directly] adjacent to a courtyard, and [the gutter] is also [at least] four cubits wide,33 it is even permitted to pour water into the opening of the gutter [located] in the courtyard in direct proximity to the public domain, and [it is] even [permitted to do so] in the summer. [One is allowed to pour] the water even though it flows immediately from his hand to the public domain outside the four cubits [of the gutter] that are covered. [The rationale is that] the four [cubit] by four [cubit portion of] the covered gutter that is in the public domain is comparable to apertures [in the wall of] a private domain. Thus, [this portion of the gutter is] governed by the same laws as a courtyard that is four [cubits] by four [cubits], into which it is permitted to pour [water] even in the summer. [The rationale is that the] four [cubits] by four [cubits] of the gutter are fit to absorb two seah of water, just as the courtyard does. [This leniency applies] provided the gutter duct is not made of wood, which is not fit to absorb the water. If, however, [the gutter] is made like a stone floor, it is fit to absorb [the water] and [one] is permitted [to pour water into it].

All the above applies to [pouring water into] a public domain. In a karmelis, by contrast, it is permitted [to pour water] even when [using] a wooden duct, according to the first opinion [mentioned above].34 Although fundamentally, the halachah does not [follow the opinion of these authorities], it is possible to rely on their words and rule leniently with regard to [pouring water into] a [half-] pipe that flows into a karmelis from a point ten [handbreadths above the ground]. It is permitted to pour water into [such a pipe] even with the intent that it descend [and flow] into a karmelis. [The rationale is that the water] passes through the open space of a makom p’tur,35 and there are authorities who permit [such a transfer] in a karmelis,36 as stated in sec. 346[:4].37