Shulchan Aruch: Chapter 364 - The Laws Governing a Lane that is Open on Both Ends and [a Lane] that is Constructed Like a Centipede

SECTION 364 The Laws Governing a Lane that is Open on Both Ends and [a Lane] that is Constructed Like a Centipede (1-9)

1 on both ends, but it itself is not a public domain1 – i.e., many people do not pass through [the lane and/]or [the lane] is not sixteen cubits wide,2 as explained in sec. 345[:11-12] – and similarly, [when] a lane intersects a public domain on one end and a karmelis on the other end,or even [a lane] that intersects a karmelis on both ends,3 license [to carry] is not granted via [the construction of] a lechi or a beam at both ends of the lane. Instead, it is necessary [to construct] a tzuras hapesach on one end [of the lane] and a lechi or a beam at the other [end], provided [the lane] is no more than ten cubits wide.4 [This is permitted] because a tzuras hapesach is deemed a partition in a complete sense.5 Thus, [it is as if the lane] is open only on one side and is [therefore] not considered as a lane that is open on both ends.

If, however, one end [of a lane] opens to a public domain and the other end opens to a courtyard in which an eruv was not made,6 all that is necessary is a lechi or a beam on both ends. [The rationale is that] the end [of the lane] that opens to the courtyard is not [deemed as] lacking a partition [at that end], since [fundamentally] the partitions of the courtyard [cause carrying] to be permitted, and further modification in that place is only necessary because the lane is entirely open there to a place where [carrying is] forbidden.7 [The prohibition exists, however,] only because an eruv is lacking, not because the partitions are lacking.8 Therefore, even the most minimal modification9 is sufficient.

There are authorities who maintain that a lechi and not a beam is required at the end [of the lane] that opens to the courtyard, so that [the lane] will appear to be closed, for a lechi is deemed a partition10 while a beam is not.11 (With regard to the halachah, one may follow the more lenient ruling12 [since the matter concerns] a Rabbinic decree.)

All [the above] applies when [the residents of] the courtyard do not frequently [use] this lane, for example, [the courtyard] also has an entrance to another lane. If, however, [the residents of] the courtyard frequently [use the lane], even [the construction of] a tzuras hapesach or gates are not effective in enabling [carrying] to be permitted in [the lane] if [the residents of the courtyard] do not join together in the shituf13[that permits the lane to be used by the residents of] the other courtyards that open to it.14 If [the residents of the courtyard] join together in the shituf [that permits the lane to be used], they are not obligated to make a [separate] eruv at all, as will be explained in sec. 387[:1-2].

2 All [the above] applies [with regard] to a lane. By contrast, license [to carry] in a courtyard [that is open on its side(s)] whose length does not exceed its width is granted only when a partition four [handbreadths wide] or two barriers of any width, [one on either side,15 are erected there. Similarly,] when a lane lacks one of the [fundamental] requirements [for an area to be halachically deemed] a lane,16 license [to carry] is not granted via [the convention of] a lechi or a beam. [Rather, carrying is only permitted] via the modification [necessary] for a courtyard.

The fact that [such enclosures]17 are open on both sides does not cause [carrying] to be forbidden inside them. Instead, even if [the courtyard or lane] is open to a public domain on both sides, and many people enter from one side and depart from the other it is sufficient that [these areas] be modified [in the same manner] as a courtyard is modified18 at both ends.19

3 [The following rule applies] with regard to the license [to carry] in the lanes of our [days]:20 Although [such lanes] are governed by the laws applying to a courtyard, i.e., [the convention of] a lechi or a beam is not [effective in permitting carrying within them] since houses and courtyards do not open up to [our lanes] in the required manner, nevertheless, with regard to their being open on both ends, [our lanes] are not [governed by the laws pertaining to] a courtyard, but rather [by those pertaining to] a lane [that is] open on both ends. [Hence, our lanes] require a tzuras hapesach on one end and a lechi or a beam at the other. [Merely using] the modification used for a courtyard at both ends is not sufficient. [The rationale is that the design of our lanes] more closely resembles [that of] a public domain or a karmelis than it does a courtyard. For most courtyards open up to a lane, and the lane [opens up] to a public domain or a karmelis. This is why [the Rabbis] ruled stringently [regarding the lanes of the present age that] are open at both ends and require a more [serious] modification21 than required for a courtyard, just as, for this same reason, [the Rabbis] required a more stringent modification [for such lanes] than that required for a courtyard whose length exceeds its width, as explained in sec. 363[:32].22

4 (True, a tzuras hapesach is an entirely valid partition, and if one made [an enclosure by erecting] a tzuras hapesach using four poles [with reeds or string above them], it is a private domain in a complete sense23 according to Scriptural Law, even if it is constructed in the middle of [an area that is] a public domain in a complete sense, as stated in sec. 362[:19]. Nevertheless, according to Rabbinic Law, a tzuras hapesach is not effective [in creating a partition] for an area that is a public domain in a complete sense, [i.e., one that] fulfills all the stipulations for a public domain stated in sec. 345[:11-12]. Instead,) [according to Rabbinic Law,] one who seeks to make a public domain fit to carry [articles] within it must make [actual] gates that are closed at night on either side,24 for it is the closure of the gates that cause [the public domain] to be considered as one courtyard [in which] many [people are located. In such an instance,] an eruv may be made for the entire area in the manner that will be explained in sec. 392. Afterwards, no [further] modification is necessary for the lanes [in the area].

There are authorities25 who maintain that [the gates] need not [actually] be closed at night. [Instead,] it is sufficient that [the gates] are [merely] fit to be closed. Thus, if [the gates] are sunk in the earth [and thus unable to be closed, the earth around them] should be cleared away, and they should be adjusted so that they are fit to be closed. One should be stringent as [required by] the first opinion, even though fundamentally, the halachah follows the second opinion.

It has already been explained in sec. 345[:11-12] that there are authorities who maintain that in the present age, a public domain in a complete sense does not exist.26

5 [The law governing] a lane with a corner that is shaped like [the Hebrew letter] dalet (ד) and which is open at both of its ends to a public domain or to a karmelis, is the same as is if it were to be open to the public domain or a karmelis at its corner,27 [i.e., where its two sides intersect]: A modification must be made at [the lane’s] corner. [This is required] because the modification made to a lane that opens at both its ends must be apparent to all the residents of the lane, and [since the lane is dalet-shaped], the modification made at one end [of the lane] will not be apparent to those dwelling at the other end [of the lane. Hence,] it is necessary to make a tzuras hapesach at the corner [of the lane, where its two sides intersect,] so that the tzuras hapesach – which is the modification required for a lane that is open at both ends28 – will be visible to the people dwelling at either [end of the lane]. At each of the ends, a lechi or a beam should be [erected]. How much more so [is it effective] if a tzuras hapesach is made at each of [the lane’s] ends, and a lechi or a beam is [erected] at the corner [where the two sides of the lane intersect].

If [the lane] is made in the shape of [the Hebrew letter] ches (ח), it is necessary to make a tzuras hapesach at both corners, [i.e., at the intersecting points between the sides of the lane,]29 and a lechi or a beam [must be erected] at either end of [the lane].

After a tzuras hapesach was made at the corner [i.e., at the intersecting points between the sides of the lane, the residents of each side of the lane] may make separate eruvin. Those dwelling on one side of the tzuras hapesach may make an eruv for themselves and those dwelling on the other side [of the tzuras hapesach] may make an eruv for themselves. If those dwelling on one side [of the tzuras hapesach] made an eruv and those dwelling on the other side [of the tzuras hapesach] did not make an eruv, those [who did not make an eruv] do not cause those [who did make an eruv] to be forbidden [to carry. Instead,] those [who did not make an eruv] are forbidden [to carry] in their portion [of the lane] and those [who did make an eruv] are permitted [to carry] in their portion [of the lane],30 for a tzuras hapesach divides domains, as stated in sec. 363[:32, 38].

6 When lanes open up to each other, their openings are all governed by the laws pertaining to a lane with a corner, and a modification is necessary [at their meeting points], as explained.31 [The rationale is that] since the outer [lane] opens to a public domain or a karmelis, the lane that opens to it is considered as open to a public domain or a karmelis, for the reason explained with regard to a single lane that has a corner. This same [law] applies to a lane that opens to that lane [as well] and all [similar instances].

7 [The following laws apply to] a lane that was made like a centipede,32 i.e., a large lane with many smaller lanes opening up to it from both sides, [resembling] the insect referred to as a centipede that has a row of legs on one side [of its body] and another row of legs on the other side [of its body]. The other ends of the small lanes are open to a public domain or to a karmelis. A tzuras hapesach should be made in the place where [each of the small lanes] opens up to the large lane, because at that place, it is considered as a lane with a corner.

[The above applies] even if the lanes on one side are aligned directly with those on the other side. Thus, each [of the small lanes] and the lane aligned with it on the other side are like one lane [that is] open at both ends without any corner [dividing them. See fig. 77.] Nevertheless, each of [the small lanes] resembles a lane with a corner in relation to the larger lane, for the fact that they are open to the larger lane is similar to their being open to a public domain, because it is impossible to see the modifications made to the larger lane33 [from the smaller lane], as explained with regard to a single lane with a corner.34 Needless to say, [a tzuras hapesach] is required if the openings of the lanes on either side of the large lane are not aligned. [See fig. 78.]And needless to say, [a tzuras hapesach is required] if there are only [small] lanes on one side [of the large lane].

8 On the side of the small lanes that opens to a public domain or a karmelis, a lechi or a beam [should be erected]. With regard to the larger lane: If it is open on both ends, a tzuras hapesach should be made on one end and a lechi or a beam [should be erected] on the other.35 If it is only open on one end, [all that is necessary] is a lechi or a beam at that end.36

9 All the [above-mentioned] laws applying to a lane with a corner apply with regard to a lane to which [multiple] houses and courtyards open up to it as required.37 In contrast, the lanes of the present age that do not have houses and courtyards that open up to them as required and [hence] are governed by the laws pertaining to a courtyard,38 do not require any modification at their corners,39 just as [a modification is] not required for a courtyard with a corner.

[The reason] we rule stringently with regard to [these areas’] entrances to a public domain or a karmelis as if they were an actual lane, [is] because there, they are close to the public domain or the karmelis.40 By contrast, the corners [of these areas] are not close to the public domain. Hence, no greater stringency is required than [is required] for a courtyard.41