Shulchan Aruch: Chapter 365 - The Laws Governing a Lane in which an Opening was Made

SECTION 365 The Laws Governing a Lane in which an Opening was Made (1-10)

1 [The following laws apply when] one of [the walls at] the sides of a lane1 was breached, [creating an opening] to a public domain2 or a karmelis3 – even if the entire side was not breached, nor was the opening more than ten [cubits wide]:4 It is forbidden [to carry in the lane if the opening in the wall] is located less than four handbreadths from the end [of the lane] where the modification of a lechi or a beam had been made – i.e., four handbreadths of the wall of the lane did not remain standing after the end of the opening5 – and [the opening itself] was more than three handbreadths [wide], and thus the principle of lavud does not apply.6

[The reason for the prohibition is that our Sages feared that] possibly the residents of the lane would disregard the entrance to the lane [which they previously used, i.e.,] where the modification of a lechi or a beam was made, and [instead exit and enter] the [adjoining] public domain or karmelis through this [new] opening in [the wall of] the lane, [using it] as a shortcut. Were the residents of the lane to cease using [the original entrance, its status] as “the entrance to the lane” would be nullified. [As a result, the halachic significance of] the lechi or the beam there would also be nullified, for [such modifications] must be [positioned] at the entrance to the lane, and [in this instance, the original entrance] is no [longer] categorized as “the entrance to the lane.”7

When, however, a strip of the wall four handbreadths wide remains [between the new opening and the original entrance], the classification of the [original] entrance as “the entrance to the lane” is not nullified. [It is sufficient that the entrance] remains open to these four handbreadths [of space], for [these four handbreadths] are categorized as a lane. The statement that “the measure of a lane must be [a minimum of] four cubits [long]”8 applies only when one seeks to make a lane fit [to carry within] at the outset. When, by contrast, it was originally fit to carry within a lane, [the lane] is not disqualified and removed from that category unless a length of four handbreadths no longer remains.

For the above reason,9 if four handbreadths of the wall do not remain standing and one desires to erect a barrier four handbreadths wide [to enclose the space], it is not effective. The barrier must be four cubits long.10 [See fig. 79. The rationale is that] since the lane was already disqualified, [it is as if] one is [now initially] making it fit [to carry within a new lane, and a new lane requires a minimum length of four cubits].

Since [the area is still] categorized as a lane if four handbreadths [of its initial length remain from the entrance until the new opening] or [a barrier of] four cubits was erected, the lechi or the beam placed at the [original] entrance of the lane is [still] valid, and the [new] opening does not disqualify [the lechi or beam] at all, provided [the new opening] is less than ten cubits [wide.11 The rationale is that the new opening] is also deemed an entrance, and [the fact that] a lane has many entrances does not disqualify it [from halachically being regarded as a lane].

[The above applies] provided many people do not pass through this [new] opening, e.g., it opens to a place of filth or a place that is spoiled because of mud, and thus, it is uncommon for many people to pass through that opening. How much more so does this apply if remnants of the demolished wall remain,12 impeding passage [through the opening]. If, however, many people pass through [the new opening], even if the opening is only four handbreadths wide, it must be modified (through [the erection of] a tzuras hapesach, as is required for a lane open on both ends.13 [The rationale is that] this lane is [considered as] having two openings,14 [i.e., the lane runs from] this opening to the large entrance15 where the lechi or the beam were erected.) [See fig. 80.]

2 Our lanes are governed by the laws pertaining to a courtyard,16 i.e., [carrying is] not permitted via the erection of a lechi and a beam, and for a courtyard, a breach [in the wall] does not cause [carrying] to be forbidden – even though many people pass through it – unless [the breach] is wider than ten [cubits].17 Nevertheless, when many people pass through a breach in a lane [of the present era] that is more than four handbreadths wide, one should be stringent in this matter, and a modification should be made there.

Similar [laws apply to] a town surrounded by a wall. When an opening four handbreadths [wide] was made in the wall and many people pass through it, one should be stringent and make a modification there. ([This stringency applies] even when the town does not include a lane to which houses and courtyards open, as required [for a lane].18 If, by contrast, the town includes a lane to which houses and courtyards open as required, the law mandates that a modification be made to the opening in its wall or [to the wall of] the lane.)19

3 [The following rules apply when the wall of] a lane was breached in its entirety to a courtyard, [the wall of] the courtyard was [also] breached on its other side, [creating an opening] to a public domain,20 and the residents of the courtyard did not establish an eruv with [the residents of] the lane.21 It is permitted [to carry in the] courtyard, even if the opening [leading] to the public domain is aligned opposite the opening to the lane and many people enter through this opening and depart through the other. [The fact that] many people pass through does not cause [carrying] to be forbidden in a courtyard as long as the opening is not wider than ten [cubits].22

[Similarly,] the fact that [the residents of the courtyard] did not establish an eruv with [the residents] of the lane does not cause [carrying in the courtyard] to be forbidden. [The rationale is that the courtyard’s being open to] a lane does not cause [carrying in] the courtyards that open to it to be forbidden. On the contrary, it is the courtyards that cause [carrying in the lane] to be forbidden, because [the residents of the courtyard] are accustomed to walk through [the lane].

[In the instance described above, carrying in] the lane is forbidden, because [the residents of the courtyard] did not establish an eruv with [the residents of the lane]. True, [the residents of the courtyard] are not accustomed to [passing through this lane], for [the wall between the lane and the courtyard] was only breached to it at the present time.23 Nevertheless, since [the lane] is open entirely to a place [to and from which the residents of the lane] are forbidden [to carry] without an eruv,24[carrying in] the entire [lane] becomes forbidden. This is not true of the courtyard. It is not entirely open to [the lane], since projections remain on either side, [extending] beyond the lane, because [the courtyard] is wider than [the lane].

[The above applies, when,] for example, the walls of the length of lane enter into the courtyard25 and are [at least] three handbreadths removed from the walls of the length of the courtyard. [See fig. 81.] Were this not so, the projections of the courtyard would also be effective for the lane, because they would be apparent from the outside [of the lane,26 even though they appear] even [with the end of the wall of the lane] from inside [the lane],27 as explained in sec. 360[:7. Thus, the lane] would not be deemed as open in its entirety. [In that instance, the fact that the lane opens to] the courtyard would not cause [carrying] to be forbidden inside of [the lane], even though [the residents of the courtyard] frequently pass through [the lane]. True, whenever [the residents of] a courtyard frequently pass through a lane, they cause [carrying] to be forbidden in [the lane] if they did not establish an eruv with [the residents of the lane], even though the opening to the lane did not come about because [the wall] was breached, but rather [the courtyard] opens to [the lane] with a standard entrance. Nevertheless, [in this instance,] since [the residents of] the courtyard have a means of entering the public domain without [passing through] the lane – i.e., by passing through the [new] opening [in the wall of the courtyard] that was broken through to the public domain – [the residents of the courtyard] should be compelled [not] to follow “the attributes of Sodom,”28 and [they should] not pass through the lane on Shabbos,so as not to cause [carrying] in [the lane] to be forbidden.29

4 If the residents of the courtyard established an eruv with the residents of the lane and the opening from the courtyard to the public domain or to the karmelis is not aligned opposite the opening of the lane to the courtyard, it is also permitted [to carry] in the lane.30

If, however, the openings are aligned opposite each other, it appears that the lane is open on both sides to the public domain or the karmelis opposite it.31Hence, it is necessary to make a modification and erect a tzuras hapesach near [one] opening.

[Moreover,] even when the openings are not aligned opposite each other, it is permitted [to carry] in the lane only when the opening [from the lane] to the courtyard is in the center32 of the width of the courtyard and not on its side, close to the wall of [the courtyard’s] length. [See fig. 82. The rationale is that] since the width of the courtyard extends beyond the lane on either side, it appears that the lane ends in the courtyard and does not continue to the public domain or the karmelis opposite it, and thus does not [appear to] have two openings. If, however, the opening [from the lane] to the courtyard is on the side of the courtyard and thus the wall of the length of the lane is even33 with one of the walls of the length of the courtyard [see fig. 83], it appears that it is [one] long lane [that extends] until the wall [of the width of the courtyard] opposite it; there it forms a corner and then extends to the public domain or to the karmelis. Thus, it appears as a lane that has two entrances and a corner.34

Even if the opening [of the lane] is in the center of the [courtyard’s wall, carrying in the lane] is permitted only when the courtyard is communal property. If, however, [the courtyard] is a person’s private property, there is concern that [the owner] will change his mind and build houses in his courtyard in the empty portion that extends widthwise beyond [the opening to] the lane. [In that instance,] the opening of the lane will be at the side of the courtyard,35 [and yet people] will continue to carry [in the lane] as they did originally.36

5 The laws that apply [when] an opening is made [from a lane] to a lot behind homes37 that is not larger than beis sasayim,38 or [the lot] is larger than beis sasayim but it was enclosed for the purpose of habitation,39 are the same as those that apply were [the lane] to open to a courtyard. If, however, [the lot] is larger than beis sasayim and it was not enclosed for the purpose of habitation, [the situation] is governed by the laws that apply were the opening [to lead] to a karmelis,40 and a modification is necessary in all cases.41

If the other end of the lot is open to a path that has barriers on both [of its] sides, [the path] leads to a stream, and the residents of the lane lead their animals through the lot and [along] the path to have them drink from the stream, [the residents of the lane] should [erect] a lechi at the opening to the lane that leads to the lot and a tzuras hapesach at the other end [of the lane] that leads to the public domain or the karmelis.42This lechi causes the lot to be deemed as enclosed for the purpose of habitation, for a lechi is considered a partition.43 [The rationale is that erecting the lechi] is considered as making a partition for the lot to enclose it for the sake of habitation – the intent being to make it possible to use the lot via the lane, i.e., from this opening that was made from the lane – for creating [such an] opening [encloses the lot for the purpose of] habitation, as stated in sec. 358[:6].

True, [ordinarily] a lechi is not effective in causing [an area to be deemed] enclosed for the purpose of habitation.44 [Indeed,] even a tzuras hapesach and even an actual partition are not effective [in causing an area to be designated as such] if they are not larger than ten [cubits], as explained in that source.45 Nevertheless, [an exception is made] in this instance. [The rationale is that] since the lechi is effective in making it fit [to carry in] the lane, [the lechi] is also effective in causing the lot to be deemed as enclosed for the purpose of habitation and for carrying [to be permitted] inside [the lot].

It is also permitted to carry from [the lot] to the lane and from the lane to [the lot], because the lot46 does not cause [carrying] to be forbidden in the lane [even] when an eruv was not constructed, because there are no residents in a lot.47

However, it is forbidden to carry more than four cubits in the path [beyond the lot] if the edge of the stream is not ten handbreadths high, so that [the stream] would be deemed a partition [enclosing the path]. Similarly, [it is forbidden to carry more than four cubits if] the stream does not reach a depth of ten [handbreadths] within the four cubits immediately next to the path.48 [This is true] even through there are embankments that are ten [handbreadths] high on the other side of the stream, and there is less than ten cubits across the stream’s width separating the path from these embankments. Nevertheless, [the embankments] are not considered as a partition [for the path]. This is a decree,49 lest [carrying] be permitted in some other path that does not have embankments at all, for people will never imagine that [carrying] was permitted on this path because of the embankments on the other side of the stream.

When, by contrast, the stream flows close to the lane and its edge is less than ten handbreadths high and it does not reach a depth of ten [handbreadths] within the four cubits immediately next to the lane, but there are embankments that are ten [handbreadths] high on the other side of the stream, or the stream itself reaches a depth of ten [handbreadths] within the four cubits on its other side, there is reason to consider the possibility that this would be considered as the fourth wall of the lane. [The rationale is that] it is possible that the decree [mentioned previously] was only made regarding a path that people do not use all that frequently.50

When does the above apply? When there are no more than ten cubits between the edge of the lane to the place where the stream deepens or to the [stream’s] embankments.51 If, however, there are more than ten cubits between them, there is no room for question [whether the embankments can serve as an enclosure,] because they do not affect the status of the lane at all, as explained in sec. 363[:35].

6 It is permitted to use [the entire space] at the entrance of the lane opposite the lechi.52[The rationale is that] even though [the lane] is considered as closed with a partition [only] from the inside edge [of the lechi inward],53 nevertheless, [the place opposite the lechi] is deemed a makom p’tur54since it is less than four handbreadths wide.55 [See fig. 84.]

Similarly, it is permitted to make use [of the space] under a beam. True, a beam [is effective because it] serves as a distinguishing factor to the residents of the lane and it is [the] inner edge [of the beam] that creates that distinction [for the residents].56 Nevertheless, the space under [the beam] is deemed a makom p’tur since it is less than four handbreadths wide.57

When does the above apply? When the lane opens to the public domain. If, however, [the lane] opens to a karmelis, it is forbidden to make use of the space opposite a lechi or under a beam. [The rationale is that] this space, which is less than four [handbreadths wide], joins with the karmelis and is given the same status as [the karmelis] because [the principle] “an entity finds another entity of its type and [its identity] is aroused”58 [is applied], as stated in sec. 345[:25]. Even the authorities who differ in that source agree in this instance, because the space [in question] is less than three handbreadths higher [than the karmelis next to it].59

If the beam is four handbreadths wide and sturdy enough to support a ceiling,it is placed in the category of a roof and we follow the principle, “the outer edge of the roof [is considered as having] descended and closed off [the inner area].”60 [Hence,]{it is permitted} to make use of the area below [the beam] even though the lane opens to a karmelis.

7 Even though it is permitted to make use [of the space] opposite a lechi or under a beam, a person should not sit at the entrance to a lane holding an article in his hand, lest the article [fall from his hand and] roll [into] the public domain and he [may] forget and bring [the article] in [to the lane],61 because there is no distinguishing factor between [where the person is sitting] and the public domain.

By contrast, it is permitted [to sit holding an article] at the opening of a courtyard, whether it opens to a public domain or to a karmelis, because in this instance there is a distinguishing factor.62 This law also applies with regard to the opening of a lane that was modified with a tzuras hapesach. Nevertheless, [as a precaution,] since the tzuras hapesach [commonly] employed [consists of a thin reed or a string serving as the lintel] and [that reed or string] is [positioned] far above the ground [and is not readily seen], one should be stringent even with regard to [the opening of a courtyard that] leads to a karmelis.63

8 Women who sit at the entrances to a lane holding pitchers should not be admonished,64 because they will certainly not heed [the warning] and “it is preferable that they [transgress] unknowingly than knowingly.”65

9 When the lechi or the beam of a lane fell on Shabbos, it is forbidden [to carry in the lane] from that time onward.66 Even though [carrying] had already been permitted for a portion of the Shabbos, we do not apply the principle that since [carrying] was permitted [at the onset of] the Shabbos, it is permitted [for the entire Shabbos].67 [The reason for the stringency is that the lane] is open to the public domain or a karmelis,68 as explained in sec. 362[:7].69

By contrast, if the modification for a lane70 fell on Shabbos in a city that is surrounded by a wall, [carrying remains] permitted for this entire Shabbos. [The rationale is that] the [city’s] wall intervenes between its [confines] and the public domain or the karmelis that is outside the city. The entire city is a private domain in a complete sense according to Scriptural Law; it is only that it is lacking an eruv, for the dwellings of the non-Jews nullify the eruv made by the Jews when the modification that separates between [the dwellings of the Jews and those of the non-Jews] fell.71 In such a situation, we apply the principle, “since [carrying] was permitted [at the onset of] the Shabbos, it was permitted [for the entire Shabbos],” as explained in the above source.

If there is a doubt when [the modification] fell – [did it fall] on Shabbos72 or while it was still day [on Friday]73 – [even then] leniency is granted, since [the matter concerns] a question of Rabbinic Law.74

All the above applies when the modification was [made in a durable manner and it was] fit to stand over the course of the entire Shabbos. When, however, [the modification] was likely to be taken down on Shabbos, as is the case where there are non-Jews who might ruin [the modification] on Friday night and it is almost a certainty that they will ruin [the modification], it is forbidden [to carry] after [the modification] was torn down.

10 [The halachic convention through which the residents] of all the courtyards [that lead to] a lane join together in one eruv is called shitufei mevo’os. If the beam [over the entrance to the lane] breaks, it is forbidden to carry from the lane to the courtyards [that lead to it] and from the courtyards to the lane.75 [Nevertheless,] it is permitted to carry in the courtyard in which [the bread76 used for] the shituf is deposited,77 as well as in the courtyards that open to it, and from one of these courtyards to another. Although each of [these courtyards] has many residents and they did not establish another eruv [joining them together] aside from the shituf, they may rely on the shituf in place of an eruv, as explained in sec. 387[:1].78

However, it is forbidden [to carry in] the courtyards that do not open up to the courtyard in which [the bread used for] the shituf is deposited, even if they are positioned alongside [that courtyard] and merely do not have an entrance or a window79 that is within ten handbreadths [of the ground, which leads to the courtyard where the shituf was placed. The rationale is that the bread used for] the shituf is not deposited in [these courtyards], nor may [their residents] bring [the bread] to them via the lane, since the beam broke.80

[The above rules apply] when the beam was broken while it was still day [on Friday]. If, however, it was broken on Shabbos, we apply the principle: “since [carrying] was permitted [at the onset of] the Shabbos, it was permitted [for the entire Shabbos].”81

In an instance where it is forbidden [to carry in these courtyards],82 it is forbidden to carry inside [their confines] even from room to room in one house, when [only] one person lives alone in each room,83 as will be explained in sec. 370[:5].84 Warnings must be issued regarding this matter in places where there is neither a lechi nor a beam.

(Similarly, [in a situation where a modification permitting carrying in the lane leading to the synagogue does not exist,]85 warnings must be issued that [when establishing the eruv] on [the day before] Pesach,86 the [matzah used for] the eruv for the courtyards should not be deposited in the synagogue unless there are two houses in the courtyard of the synagogue, or in the courtyard next to the synagogue, and [the residents of these houses] could bring the [matzah used for] the eruv to them through an entrance or through a window on Shabbos.)87

Even in those places that have a lechi, a beam, or a tzuras hapesach in the lane leading to the synagogue, [a difficulty can arise] if that modification becomes broken. If [the modification] is broken during the week,88 it is forbidden [to carry] in all the lanes even if they have a modification at their [entrances,] unless it is possible to bring the [food used for] the eruv from the synagogue to their confines.