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Do People Live in the Zoo? Part I

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Cheshvan 4, 5787
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A Lesson for the RoadShorts AreaFemale LessonParashat HashavuaSeriesLibraryPiskei Din (Hebrew)Test Yourself
Do People Live in the Zoo? By Rabbi Yirmiyohu Kaganoff Question #1: Mischecked eruv “Can the eruv fences, walls, and wires be checked religiously every week, yet the eruv is invalid?” Question #2: Shabbos in a warehouse “May one carry in a warehouse on Shabbos?” Question #3: Do people live in the zoo? What do the previous two questions have to do with the title of this article? Answer: Invalidating an eruv from inside With the direction of his rav, Yankel has joined the committee of movers and shakers working on building an eruv in his hometown. He now knows that the area in which he currently lives has the halachic status of a karmelis, an Aramaic word meaning an area in which one is not allowed to carry on Shabbos but which, depending on the circumstances, may be enclosed to permit carrying. Creating the enclosure in a halachically approved way is what one does when building an eruv. One of the benefits of his new project is that Yankel learns much about the laws of eruv. Among the laws he discovers, is a halachah with which he was not familiar – that enclosing an area does not always permit carrying. There may be an area within an eruv that precludes carrying there. Such an area is often called a karpeif, although Yankel discovers that this term is also not really accurate. As a result of his curiousity, he studies the relevant source material in the second chapter of Mesechta Eruvin, a topic that he, like most people, had never studied during his years in yeshivah. What is a karpeif? The word karpeif means an enclosure outside the city in which one stores felled wood (Rashi, Eruvin 18a). A times, the term is used in a more generic sense as an enclosed area not meant for residential use. Although min haTorah one may carry within any enclosed area, Chazal permitted carrying in a large area only when the enclosing of the area serves a residential purpose, which is called mukaf ledirah. If the enclosure was not mukaf ledirah, the area inside is considered a karmelis in which one may not carry. Yankel learned that even if an enclosure is not mukaf ledirah, one may carry there if the enclosed area is fairly small, no larger than the size of the courtyard of the mishkan, which was 50 amos (cubits) wide and 100 amos long, the size of 5000 square amos (Mishnah Eruvin 23a). An area this size is called a beis sasayim, an old farmers’ term based on how much seed one would plant there, and equals approximately 1000* square meters or 10,000-11,000 square feet. For the balance of this article, I will refer to an area larger than a beis sasayim, that is, one that contains more than 5000 square amos, as a large area, and any area smaller than this as a small area. There is another factor that must be met to permit carrying in a small area that is not enclosed for residential use – its length may not exceed twice its width by more than one amoh (Mishnah, Eruvin 23a). Why is a small karpeif permitted? Why may one carry in an area that is not mukaf ledirah when it is 5000 square amos or smaller? Was this size chosen arbitrarily? Chazal permitted carrying in a small area, even when it is not mukaf ledirah, for the following reason: Since no one was permitted to live in the courtyard of the mishkan, the curtains that surround it did not make it mukaf ledirah. This would mean that carrying within the mishkan would be under the heading of a rabbinic prohibition. Yet, this carrying was necessary on Shabbos for the regular functioning of the mishkan. Rather than treat the mishkan as an exception to the halachah, Chazal permitted carrying in any area that is this small even when it is not mukaf ledirah (see Graz, Orach Chayim 358:3). What is mukaf ledirah? The definition of what qualifies as mukaf ledirah and what does not is, at times, not obvious. The Gemara (Eruvin 22a) itself states that there are instances when an enclosed area is roofed and resembles a building, yet it is considered not mukaf ledirah, and there are places that are open-air and yet have the status of mukaf ledirah. The Mishnah (Eruvin 18a) mentions four cases that qualify as mukaf ledirah, even though (according to Rashi) there is no roof over them. They are: (1) Dir -- a corralled area that one intends to plant eventually. At the moment, it is fallow, and one is grazing one’s livestock there so that they naturally fertilize the field. (2) Sohar -- according to Rashi, an area where the townspeople graze their animals; according to the Rambam, a prison. (3) Muktzah -- a backyard area. (4) Chatzeir -- a front yard. The Ritva (Eruvin 22a) explains that the list is progressively more obvious; meaning that the first case, that of dir, is the least obvious “residential” area. Indeed, much halachic literature is devoted to explaining why an area enclosed for animals is considered residential, when, as we will soon see, areas enclosed for trees or vegetation are not. Non-residential enclosures Our next topic is to define what is considered a non-residential enclosure, eino mukaf ledirah, in which one may not carry unless it is small. The Mishnah and the Gemara teach that several different types of enclosed areas are not mukafim ledirah, such as a karpeif, fences around an orchard (Rambam, Hilchos Shabbos 16:1, based on Eruvin 25b), a vegetable patch or a grain field (Mishnah Eruvin 18a; Eruvin 23b), and this is true even when there is a hut, called a burgenin, for a watchman (Eruvin 22a). In all of these instances, the fence built around the perimeter does not serve any type of residential need. Even the watchman’s hut is not there to serve as a residence. The watchman must remain nearby, but does not choose the hut as a residence (Rashi, Eruvin 15a). (We should note that some authorities [Tosafos Shabbos, 358:1; Pri Megadim, Eishel Avraham 358:1] contend that if the watchman sleeps overnight in the hut, it is considered a residence. In their opinion, a burgenin is considered not mukaf ledirah because one uses it only in the daytime.) Mixed neighborhoods What is the halachah if an enclosure comprises both an area considered residential and an area that is not? For example, Yankel’s neighbor, Shmerel, has a large fenced-in backyard, which his family uses predominantly for barbecues and other recreation. It sounds like this area should be treated as mukaf ledirah, even if it is larger than 5000 square amos. Indeed, its proximity to the house and its use would make this backyard mukaf ledirah. However, this yard also includes a section planted with various spices and vegetables. As we learned above, a planted area is not mukaf ledirah. Do we consider the entire yard mukaf ledirah or not? May Shmerel’s family carry in the backyard? In the course of Yankel’s studying the laws of Eruvin, he discovered that carrying in his neighbor’s fenced-in yard might be prohibited! A breached eruv -- Nifratz bemilu’oh To answer these questions, we need to explain a principle called nifratz bemilu’oh, literally, breached in its entirety. Whenever an area in which one would otherwise be permitted to carry is open to an area where carrying is forbidden, the halachic result is that one may not carry in the otherwise permitted area (see Eruvin 25b). Thus, if it is prohibited to carry in the planted area, and the recreational part of Shmerel’s yard is nifratz bemilu’oh to the planted area, one cannot carry in any part of Shmerel’s yard (Shulchan Aruch, Orach Chayim 358:10). As we will soon see, this law has major ramifications also for city eruvin. What is called breached? Our next question, germane both to Shmerel’s yard and to our city eruv, is: How big a breach prohibits carrying? There are two ways that a breach forbids carrying. One is when it is greater than ten amos, approximately seventeen feet or five meters. The other way is when the breach is smaller than ten amos but it comprises an entire side of the otherwise-permitted mukaf ledirah area. For example, if an otherwise-permitted rectangularly-shaped area is enclosed on three of its sides, and the remaining unwalled side opens to an area in which carrying is forbidden, one may not carry in the mukaf ledirah area either. In terms of Shmerel’s yard, this means that if the recreational part is not isolated from the garden, and the garden is large enough to prohibit carrying, the entire yard is prohibited. The same concept is true in a city eruv, as we will soon see. How large a garden? Before we can issue a ruling regarding Shmerel’s garden, we need one more piece of information. How large a garden will prohibit carrying? The Gemara (Eruvin 23b-24a) states that if a planted area is larger than 5000 square amos, one may not carry in any part of the backyard. If the planted part is larger than the rest of the yard and the entire yard is larger than 5000 square amos, then even when the planted area is smaller than 5000 square amos, one may not carry in any part of the yard. Healing a breach Yankel and Shmerel measure the vegetable garden and the yard and discover that, lo and behold, one may not carry in Shmerel’s yard. Is there any way to fix the above problem to permit carrying within the recreational part of the yard? Yes, there are at least two ways how one may do this. The first is to separate the recreational area from the planted area, and the second is to subdivide the planted area until it is small enough not to create a halachic issue. There details of how to do either of these are beyond the scope of this article. A flower garden What is the halachah if Shmerel’s garden consists of a flower garden, rather than a vegetable patch? Does his flower garden invalidate the area for carrying just as the vegetable garden did? The halachic issue here is the following: People do not live in vegetable patches, but they do enjoy looking at and smelling pretty and fragrant flowers. Is this a sufficient reason to consider the entire yard mukaf ledirah? This matter is a subject of dispute, with different authorities on, shall we say, different sides of the fence. Although most authorities permitted this situation (see also Meiri, Eruvin 24a), the Divrei Chayim of Sanz (Shu”t Divrei Chayim, Orach Chayim 2:28) and the Sho’eil Umeishiv (Shu”t 3:131) were among the authorities who ruled that a flower garden will prohibit relying on an eruv to carry. Someone with a similar shaylah should refer it to his own rav or posek. Fair lawn As I mentioned above, the Gemara rules that a large planted area for vegetables or grains will invalidate the eruv. Several halachic authorities say that a grass cover does not invalidate an eruv since people relax by sitting or lying on the grass. However, can this logic apply when someone does not permit anyone to walk across their expensively tended lawn? A contemporary lawn of this nature, which is not uncommon in a modern suburban setting, may not be considered mukaf ledirah and can therefore create a problem if it is larger than a beis sasayim. I leave this question for the eruv movers and shakers to discuss with their posek. Fenced first Another halachic factor is that mukaf ledirah requires that the enclosure must have been constructed initially for residential use. This is called pasach u’le’besof hukaf, literally, he opened the entrance first and then afterwards enclosed the area (Eruvin 24a). However, if the area was enclosed when it did not yet have a residential use, providing it with a residential purpose later will not render the area one in which one may carry. For example, if Shmerel had originally decided to fence in his large yard because he wanted to plant vegetables, and only later decided to use it for domestic purposes, one may not carry in the yard, since its enclosure was originally not for domestic use. (There are ways to rectify this situation, but we need to leave this topic for a different time.) Bitul mechitzos We have as yet to discuss another related question: What is the halachah if an area was originally mukaf ledirah, and then someone planted within the mukaf ledirah area? Does this now render the area into a karmelis and prohibit carrying? As an example, let us make the following assumption: When Shmerel built the fence around his yard, his intention was for residential purposes and it therefore had a status of mukaf ledirah. At this point, one may carry in the yard. Later, Shmerel decided to plant a large vegetable garden in the yard. Do we say that the yard remains permitted? The halachah is that planting grain or vegetables invalidates the enclosure and it is prohibited to carry in his yard. However, there is an interesting halachah here. Not all planting invalidates the external walls. For example, the Gemara (Eruvin 23b) states explicitly that if one plants a large area of trees, one may continue carrying in the area. This ruling is very interesting, especially in light of the fact that a fence surrounding an orchard is not considered mukaf ledirah. This topic will be continued next week. * The measurements used in this article are only for rough calculation.
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