Eruvin - Chapter Two

Rather than consider a courtyard as being divided into small portions belonging to each of the homeowners, we consider the entire courtyard to be the joint property of all the inhabitants. Therefore, if one of them does not participate in the eruv, it is forbidden to carry within the courtyard as a whole.

It must be emphasized that this halachah and those that follow apply only in a situation where the person establishing the eruv did not grant all other inhabitants in the city, lane, or courtyard a share, as stated in Chapter 1, Halachah 20. Today, this granting of a share is standard practice, and so it is unlikely that such situations would arise.

Eruvin 6:3, the source for this halachah, mentions only an accidental oversight. The consensus is that according to the development of the concept in the Gemara, the same rules apply regarding a willful decision.

The subordination (ביטול in Hebrew) of the ownership of one's domain is a halachic institution devised by our Sages for situations of this nature. It gives the others the formal rights of ownership. After the person has subordinated his ownership, there no longer exists a person with a share in the courtyard who is not participating in the eruv.

Rashi and Rabbenu Asher (Eruvin 79b) maintain that in addition to subordinating the ownership of his share in the courtyard, the person who did not participate in the eruv must lock the door of his home so that he will not be tempted to transgress and take articles out. He may open the door to leave, but must lock it immediately thereafter.

Rav Yosef Karo mentions this view in the Kessef Mishneh and in the Shulchan Aruch (Orach Chayim 380:1). Shulchan Aruch HaRav 380:2 states that one may rely on the Rambam's ruling.

Similarly, they may carry within the courtyard itself. The person who did not participate in the eruv may also carry within the courtyard and to and from the homes of the others, because he is considered as a guest (Shulchan Aruch, Orach Chayim 380:1).

Since the guest does not own a share of the domain, his participation or lack of participation in the eruv is of no consequence.

The Turei Zahav 380:1 explains that the Rambam's intent is that if he merely said "I subordinate my domain to all of you," one might interpret his intent as "to most of you." Therefore, it is necessary to be more specific.

Rashi (Eruvin 26b) differs and maintains that it is sufficient for the person to say, "I subordinate my domain to all of you," without explicitly mentioning each person. The Shulchan Aruch (Orach Chayim 380:1) mentions both opinions. Shulchan Aruch HaRav 380:1 and the Mishnah Berurah 380:5 state that one may rely on the more lenient view.

Although the heir would not have been able to subordinate the domain before the Sabbath began, should he consent to do so on the Sabbath itself, the eruv is acceptable. (See also Halachah 7.)

This ruling is the subject of a debate between the School of Shammai and the School of Hillel (Eruvin 6:4). The School of Shammai maintains that subordinating one's domain is comparable to a transfer of property, and therefore requires that it be performed before the commencement of the Sabbath. The School of Hillel differs, explaining that it is considered to be merely the removal of one's authority, and hence may be performed on the Sabbath itself (Eruvin 71a).

Needless to say, should one have actual guests, the fact that many guests stay in one home does not affect whether or not one is allowed to carry. When, however, we are speaking about guests merely in the halachic sense of the word, many persons are not considered the guests of one individual (Mishnah Berurah 380:18).

Since they did not participate in the eruv, they may not benefit from it. Nor can they be considered to be guests, for the halachic conception of a guest does not apply when more than one individual is involved.

There will still be two individuals who have a share in the courtyard and are not partners in the eruv. Hence, carrying in the courtyard is forbidden.

Note the Ra'avad, who questions why the Rambam does not explain, as does Eruvin 70a, the source for this halachah, that this refers to an instance when a courtyard was shared by three people, two made an eruv, but not the third. On the Sabbath, one of the two who participated in the eruv died, and one of the two remaining desired to subordinate the ownership of his domain to his colleague.

If two adjoining courtyards open up to each other and both open up to the public domain, it is forbidden to carry from one to the other unless an eruv is made. Nevertheless, even if an eruv was not made, the inhabitants of one courtyard (A) may allow the inhabitants of the other (B) to carry within courtyard (A) by subordinating their ownership of their domain. In such an instance, the inhabitants of courtyard (A) may not carry within their domain.

These principles also apply when one courtyard leads to another, which ends in a cul-de-sac. (See the Maggid Mishneh and Shulchan Aruch, Orach Chayim 381:2.)

The Maggid Mishneh and the Shulchan Aruch (Orach Chayim 381:3) explain that this refers to a situation in which a ruin lies between two houses. If an eruv is not made, the two can carry in the area of the ruin by subordinating their rights to each other.

The Magen Avraham 381:1 states that when the person subordinates the ownership of his share of the courtyard, but not his house, this restriction applies only when the person takes an article from his house to the courtyard. If he takes an article from the courtyard to his house - although he is forbidden to do so - his act does not nullify his subordination of the ownership of his property. The rationale is that since he no longer has a share in the courtyard, it can be understood that he desired to remove his property from there. Shulchan Aruch HaRav 381:1 accepts the Magen Avraham's ruling, while the Mishnah Berurah 381:3 does not.

It appears that the Rambam's intent is that by carrying, he makes it obvious that he no longer abides by his commitment to subordinate the ownership of his property. (See Shulchan Aruch HaRav, loc. cit., which states that the reason why the others are prohibited to carry is that the person's act shows that his commitment was not genuine at the outset.)

Rashi (Eruvin 61b) states that this rule applies when, after the commencement of the Sabbath, the inhabitants of the courtyard make use of the domain that was subordinated. The Tur and others differ and maintain that even if they make use of the domain before the commencement of the Sabbath, it is acceptable. The Shulchan Aruch (Orach Chayim 381:1) mentions both views, but appears to favor the Tur. Shulchan Aruch HaRav (loc. cit.) and the Mishnah Berurah (381:6) state that Rashi's view should be followed. After the fact, however, Shulchan Aruch HaRav maintains that we may rely on the Tur's ruling.

Eruvin, loc. cit., states that Rabban Gamliel related the following incident: A Sadducee was living in the same lane as his family. One Sabbath, the Sadducee consented to subordinate the ownership of his domain. Rabban Gamliel's father told him to hurry and take some of their property out to the lane, so that the Sadducee would not be able to nullify his commitment.

As mentioned in Hilchot Shabbat 16:22, a partition erected on the Sabbath itself is considered valid and establishes an area as a private domain. Nevertheless, although according to the Torah one would be allowed to carry in this domain, it is forbidden by Rabbinic law to do so unless an eruv is established. That must be done before the commencement of the Sabbath.

Accordingly, since it was forbidden to carry within this area for a portion of the Sabbath, it remains forbidden for the entire Sabbath.

The Maggid Mishneh explains that this refers to a situation in which the original owner joined in an eruv for the Sabbath in question. If the heir lived outside the courtyard and did not participate in the eruv, he causes carrying to be forbidden, because at the commencement of the Sabbath the owner of this dwelling did not participate in the eruv.

The Maggid Mishneh also clarifies that, as reflected in Chapter 4, Halachot 1 and 6, this restriction applies only when the heir comes to dwell in the house for the Sabbath. He also notes that, as stated in Halachah 2, the heir may subordinate his ownership of the domain on the Sabbath. These rulings are quoted in the Shulchan Aruch (Orach Chayim 371:4).

Since it was permitted to carry for a portion of the Sabbath, it is permitted to carry for the entire Sabbath (Maggid Mishneh).

And therefore did not join in the eruv of the courtyard.

The heir's participation in the eruv for the sake of his own home is also effective regarding the home that he inherits.

For the dwelling inherited by the heir was not included in the eruv at the commencement of the Sabbath.

Upon the death of a convert who has not fathered any children born after his conversion, his property is ownerless and is acquired by the first Jew who takes possession of it (Hilchot Zechiyah UMatanah 1:6).

Both clauses of the halachah refer to a situation in which the original Jew and the convert had made an eruv previously.

If, however, the convert's dwelling remains ownerless, the other individual may carry on the Sabbath (Mishnah Berurah 271:27).

Since the dwelling was ownerless at the commencement of the Sabbath, there is room for the supposition that one should be allowed to carry throughout the Sabbath. Nevertheless, since it was fit for another person to take possession of it at the commencement of the Sabbath, our Sages considered it to be a separate domain (Shulchan Aruch HaRav 271:4; Mishnah Berurah 271:28).

For, as stated above, once an eruv is considered effective at the beginning of the Sabbath, it remains effective throughout the Sabbath, unless the fence surrounding the domain is opened.

A gentile who accepts the observance of the seven universal laws commanded to Noah and his descendants (Hilchot Avodat Kochavim 10:6; Hilchot Melachim 8:10-11).

As reflected by Chapter 5, Halachah 16, this restriction applies only when the two Jews do not share a single dwelling themselves. It is only when they would require an eruv themselves that the presence of a gentile makes it forbidden to carry. (See Maggid Mishneh; Shulchan Aruch, Orach Chayim 382:1.)

And the Sages did not institute decrees governing uncommon situations.

See Hilchot Rotzeach UShemirat HaNefesh 12:7.

The Sages made renting the only alternative, because they knew that this would not be easily accepted by the gentiles. They hoped that the difficulty and inconvenience this would cause would prevent Jews from living together with gentiles.

The Rashba mentions, however, that if the gentile is renting property from a Jew, it is not necessary to rent the property back from him when establishing an eruv. On the contrary, it is considered an implicit condition of the rental agreement with the gentile that his ownership not prevent the Jews from establishing an eruv. This ruling is quoted by the Ramah (Orach Chayim 382:1).

The laws applying to the establishment of an eruv in a city inhabited by Jews and gentiles are discussed in Chapter 5, Halachah 23.

The Be'ur Halachah 382 states that the Rambam's wording implies that the sequence is significant. First, the gentile's property must be rented, and then the eruv established. If the sequence is reversed, the eruv is not effective. Nevertheless, in conclusion, he writes that with regard to practice, an eruv is acceptable even if the order was reversed.

Sha'ar HaTziyun 382:31 emphasizes that it is not necessary for the individual to act as an agent for the rest of the Jews living in the courtyard. Even if he rents the gentile's property on his own initiative alone, it is sufficient.

When quoting this law, the Shulchan Aruch (Orach Chayim 382:17) mentions another instance when the same ruling applies: when the two Jews share the outer courtyard and the gentile lives in the inner courtyard alone. Since the gentile must pass through the outer courtyard, he is considered to have a share in it that must be rented.

Hence, it is necessary for the Jews to rent it, as reflected in the previous two halachot.

In this instance, either the Jew is living alone in the inner courtyard or he alone is sharing it with the gentile (in which case carrying would be permitted, as stated in Halachah 9).

Although making business agreements including rentals is normally forbidden on the Sabbath (Hilchot Shabbat 23:12).

Regarding business agreements among Jews, a monetary value worth less than a prutah is insignificant. From Eruvin 62a, it would appear that the rationale for this ruling is that regarding business agreements among gentiles, a monetary value worth less than a prutah is significant. (See Hilchot Melachim 9:9.)

The Rambam's wording, however, suggests a second rationale - that since the agreement is more of a Rabbinic requirement than a business arrangement, an agreement which does not comply entirely with contractual law is also acceptable. The Or Sameach explains that the concept stated by the Rambam is necessary. Otherwise, the rental agreement would not be strong enough to have bearing on halachic questions involving a Jew.

Based on Eruvin 80a, the Maggid Mishneh maintains that it is possible to rent the gentile's domain from his wife even though he himself refuses to agree to such an arrangement.

Eruvin 63b-64a mentions that a gentile once refused to rent out his property, and the Rabbis were able to secure permission to carry in the courtyard through such an arrangement.

Since neither had rented the gentile's property before the commencement of the Sabbath, it was impossible for them to establish an eruv (Halachah 9). As stated in Chapter 1, Halachah 21, an eruv must be established before the commencement of the Sabbath. Hence, in this instance, the only alternative is for one to subordinate the ownership of his domain to the other.

More specifically, the person to whom the domain was subordinated may carry. The person who himself subordinated the domain may not carry unless his colleague subordinates his domain to him, as stated in Halachah 5. Nevertheless, what is significant about this halachah is that it shows that although carrying was forbidden in the courtyard at the commencement of the Sabbath, it may be permitted later on.

This halachah is based on an actual incident that occurred concerning Resh Lakish and his student, Rabbi Chanina, when they were on a journey (Eruvin 65b).

If, however, the original owner retains the right to store some of his goods on the property or use it in any way, we may rent it from him (Shulchan Aruch, Orach Chayim 382:18).

Even if the tenant is present, the property may be rented from the original owner (Mishnah Berurah 382:62).

I.e., since the Jews established an eruv via the windows, it is possible to suppose that all the Jews would be considered to be a single entity. This, in turn, would cause them to be allowed to carry, as stated in Halachah 9. Nevertheless, the Rabbis did not allow for this leniency.

See Hilchot Avodat Kochavim 2:4 and Hilchot Shabbat 30:15. As mentioned in Iggerot Moshe, Vol. III, Responsa 12, 21, and 22 (see also Be'ur Halachah 385), there are certain leniencies regarding the status of a person who publicly violates the Sabbath laws at present. Nevertheless, the overall attitude must still be one of stringency.

It must, however, be emphasized that the offspring of such Jews have a full portion in their Jewish heritage. Instead of shunning them, we must make every effort to draw them close to their spiritual roots. (See Hilchot Mamrim 3:3.)

Sefer HaKovetz and the Tzafenat Paneach state that, in contrast to a rental from a gentile, the rental fee must be equal at least to the value of a prutah. Nevertheless, the Rambam's wording does not indicate such a ruling.

At present, the eruvim established in most modern communities include many Jews whose conduct does not, as yet, reflect complete observance of the Sabbath laws. These eruvim are acceptable, because, as is explained at the conclusion of Chapter 5, they are established with the consent of the local government, which acts on behalf of all the inhabitants of the city and grants the Jewish community permission to establish an eruv.

See Hilchot Teshuvah 3:8 and the Rambam's Commentary on the Mishnah (Avot 1:3), which explain that Tzadok and Boethus were talented students of Antigonus of Socho. Disillusioned with their master's teachers, they started splinter groups with the intent of swaying the people from the observance of the mitzvot. When they saw the people's loyalty, they adopted a new tactic, claiming that only the Written Law was divine in origin; the Oral Law, they maintained, was a human invention.