Shulchan Aruch: Chapter 376 - [The Laws Pertaining to] a Cistern and a Well Between Two Courtyards

SECTION 376 [The Laws Pertaining to] a Cistern and a Well Between Two Courtyards (1-4)

1 When there is a cistern between two courtyards, but [these courtyards] do not share an entrance or a window that would enable [their residents] to establish an eruv together,1 or they do share [an entrance or window], but [the residents] did not establish an eruv, [the residents of] neither [courtyard] may draw water from [the cistern] on Shabbos.2[The rationale is that the cistern] is within both their domains.3 [As long as the residents of both courtyards do not establish a common eruv, license to use the cistern is only granted] when they erect a partition ten handbreadths above the water to make a distinction and a separation between the domain of [one courtyard] and that of the other. With regard to this partition, we apply the principle of gud achis and [consider the partition as extending] downward to the bottom of the cistern, as explained in sec. 355[:1. See fig. 97. Such a partition is acceptable] because it creates a distinction [between the courtyards] and thus reminds [the residents of the prohibition] against carrying from [one] courtyard to [another] courtyard in instances4 aside from filling water [from a cistern]. For it is only with regard to water that [our Sages] ruled leniently and applied [the principle of] gud achis [to a suspended partition]5 for the reason explained in that source.6 [If,] by contrast, the wall [between] the courtyards passes over the cistern, it is not deemed a divider [with regard to the water], because it does not create a distinction [in relation to the water] at all, since it was not erected for this purpose.7

If the partition was entirely8 within the water, a handbreadth of it must extend above the water9 so that the distinction between [the courtyards] will be evident. And if [the partition] is entirely10 above the water, a handbreadth of it must be submerged in the water to prevent the bucket from moving about [beneath the partition] and water being drawn from the domain of the other [courtyard]. True, even [in this instance], the bucket will pass under the partition to the domain of [the other courtyard],11 but that is of no consequence, for our Sages showed leniency with regard to water, and did not require a complete partition to separate entirely between one [courtyard’s] water and the other’s. All that is necessary is that [the partition] give the impression that [the water of the different courtyards] is separated, so that it not appear that one is drawing [water] from the other’s domain. [Instead it should appear] that each one is drawing water from his own domain.

Similarly, if a beam four handbreadths wide was placed over the surface of the cistern, [the residents of] one [courtyard] may draw water from this side [of the beam] and [the residents of] the other [courtyard may draw water] from the other side [of the beam].12 [The rationale is that our Sages] ruled leniently with regard to water and applied the principle that, “the edge of the roof 13 [is considered to have] descended and [created a partition] that encloses”14 [the space] on both sides15 [of the beam]. Thus, it is as if “the edge of the roof” forms a partition that descends until the bottom of the cistern. In this instance, there is no concern that it will appear that [one] is drawing water from the domain of [the other courtyard], because our Sages estimated that a bucket will not drift more than four handbreadths. Thus, one will not be drawing water from the other side of the beam, which is the domain [of the other courtyard]. True, [the person] will be drawing water from under the beam, which is a domain shared by both [courtyards. Nevertheless,] this is of no consequence, for our Sages ruled leniently with regard to water and were not concerned [with this,] as long as [the person] would not be drawing water [with] a bucket from the other side [of the beam, in which instance] it will be obvious that he is drawing water from the domain of the other [courtyard]. It is not that obvious, by contrast, that the domain of the other [courtyard] extends under the beam. Thus, it is not apparent that [the person] is drawing water from the domain of [the other courtyard].

Similarly, our Sages ruled leniently with regard to water, and were not concerned by the fact that the water intermingles and flows from one side of the partition or the beam to the other side, and [that a person from one courtyard] will draw [water that originated in the domain of the other courtyard].

All the above [restrictions] apply with regard to drawing water and bringing it into a home, or even using [water that was drawn on Shabbos] in the courtyard, but drawing it [from the cistern] with a bucket that was located in a home at the commencement of the Shabbos. If, however, [the bucket] was located in the courtyard at the commencement of the Shabbos, it is not necessary to make any modification to the cistern to [enable] water to be drawn from it for [use in] the courtyards. [The rationale is that] all the courtyards [of a town] are considered as one domain [with regard] to the articles that were located in them at the commencement of the Shabbos, even though an eruv was not established, as stated in sec. 372[:1].

2 [The following rules apply] if the cistern is not close to either of the two of the courtyards [and] instead, is four handbreadths removed from both of them:16 For example, there is a narrow path between the walls of the two courtyards, and the cistern was located in the middle [of this path]. If neither of the courtyards are open to [the path] via a proper entrance, but [rather the residents of both courtyards] draw [water] from [the cistern] through windows that open to it from both courtyards, [the residents of] both [courtyards] are permitted to draw water from [the cistern] on Shabbos [when] there is [a difference of at least] ten handbreadths [in height] from the windows [of the homes in both courtyards] to the water.

[The rationale is that in this instance,] it is [equally] difficult for [the residents of both courtyards] to [make] use [of the cistern17 and draw water from it. Hence, the residents of both courtyards] do not cause each other to be forbidden to use [the cistern], even when it is owned by both of them in partnership. [The rationale is that the residents of both courtyards] only make use of [the cistern] by throwing the bucket over a space of [at least] four handbreadths, and a person does not cause another person to be forbidden to use open space when he must [pass an object] a distance [at least] four handbreadths wide, because this is not considered as [ordinary] usage at all, and it does not serve as sufficient cause for the other person to be forbidden [to use the space], unless it is within ten [handbreadths of the height of the first domain]. See sec. 375[:2].

If, however, both courtyards open18 to the path [leading to the cistern, the cistern] is considered [to be] shared by both domains; it resembles a jointly owned courtyard, and [the residents of both courtyards] are forbidden [to use] it unless they establish an eruv [together. See fig. 98.]

When does the above19 apply? When the path is a private domain.20 If, however, [the path] is a karmelis, i.e., [the path] is open to a karmelis at both ends, it is forbidden to draw [water] from [the cistern] even if it is [much more than] four handbreadths removed from the walls of the courtyards. The only exception is when one surrounds [the cistern] with a wall ten [handbreadths] high, as explained in sec. 354[:1. See fig. 99.]21

3 [The following laws apply when there are] two courtyards with three ruins22 – that are unoccupied by their owners23 – situated between them, and [the ruins] are surrounded by walls on all sides and thus are private domains in a complete sense, except that [the walls] are breached [providing an opening from each of the ruins] to each [of the other ruins].24 ([The walls around the ruins are] either breached completely25 or over a span of more than ten cubits),26 and each of the courtyards has windows that open to the adjacent ruin: [The residents of] each [courtyard] are permitted to make use of [the ruin] next to [that courtyard] via the window, by lowering [objects] or throwing [them into the domain of that ruin. The rationale is that] since there is no way for [the residents of either courtyard] to use [the adjacent ruin] in a complete sense during the week – for [none of the ruins] have an [ordinary] entrance open to it, only a window, [the fact that] the partition [separating each ruin from the other ruins] is breached does not cause [its use] to be forbidden.27

Thus, [the residents of the courtyards] are permitted to use the entire area [of the ruin adjoining their courtyard. The presence of the residents of the other courtyard] does not cause [the residents of the first courtyard] to be forbidden [to use the ruin adjacent to their courtyard].28

True, [the residents of the other courtyard] also make use of [this ruin] during the week, for they throw objects [from their windows] through the space of the ruins through [all] the breaches, until [they reach] the ruin [that adjoins the first courtyard]. Nevertheless, since [the residents of the second courtyard] can only make use [of the ruin that adjoins the first courtyard] by throwing an object over a space that is four handbreadths or more wide, their [use of the ruin is not significant enough] to cause [the residents of the first courtyard] to be forbidden [to use the ruin. Instead, use of that ruin] is given to [the residents of the courtyard] who can use it most easily, i.e., by lowering articles next to the window [that opens up to the ruin from their courtyard. Accordingly, the residents of the other courtyard] are forbidden to make use of [that ruin] on Shabbos by throwing objects through the open spaces [of the ruins. The rationale is that, were the residents of the non-adjacent courtyard to be permitted to do so,] they would cause [the residents of] the other, [adjacent courtyard] to be forbidden to use it.29

[The residents of] both [courtyards], however, are permitted to use the middle ruin on Shabbos even though they did not establish an eruv together. [The rationale is that the middle ruin] is distant from both of [the courtyards], and [the residents of] both [courtyards] can make use of it only by throwing an object through an open space of [at least] four handbreadths wide. [Hence, the residents of the two courtyards] do not cause each other to be forbidden [to use] it.30

[Different laws apply] if the three [ruins] are [all] close to the homes [in the courtyards]: For example, the middle [ruin] is aligned with the other two [in a triangular form] like the three legs of a container.31 [See fig. 100. In that instance, the residents of] each [of the courtyards] are permitted to use the ruin that is [exclusively] next to it, but [the residents of both] are both forbidden to use the third [ruin] that is close to both [courtyards] since [the residents of] both of them can use [the ruin] easily by lowering [objects] to a place near their window. [Hence, the residents of both courtyards] cause each other to be forbidden to use [the third ruin].

Even though these ruins have owners, the residents of the adjoining courtyards are permitted to use them. [The fact that the ruins have] owners does not cause others to be forbidden [to make use of them. The rationale is that] the owners do not dwell [in the ruins], and a dwelling without a resident32 does not cause [another person] to be forbidden [to use it], as stated in sec. 371[:1].

4 [The following laws apply when there is] a latrine between two houses and [the residents of] both [houses] relieve themselves in [the latrine] from their respective houses, or even if the latrine is located between two courtyards and [the residents of] both [of them] relieve themselves in [the latrine] from their respective courtyards. If [the latrine] is jointly owned by [the residents of] both [homes or courtyards],33 and [the residents] did not establish an eruv together, as an initial preference,34 they are forbidden to relieve themselves in [this latrine] on Shabbos. [The rationale is that the latrine] is like a courtyard belonging to [the residents of both homes or courtyards], and the waste products are comparable to articles located in a house at the commencement of the Shabbos that are forbidden to be taken out even from one courtyard to another unless [the residents] establish an eruv together or make a modification35 [that allows them to transfer the articles to that area].