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Do People Live in the Zoo? Part II

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Cheshvan 9, 5787
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A Lesson for the RoadShorts AreaFemale LessonParashat HashavuaSeriesLibraryPiskei Din (Hebrew)Test Yourself
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 curiosity, 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. We now continue our article from where we left off last week. Trees versus veggies What is the difference between trees, which do not invalidate the eruv, and grain and vegetables, which do? Rashi (Eruvin 23b) explains that people do not live in a vegetable patch; however, people will walk through an orchard to enjoy the shade. Thus, the planting of trees does not remove the designation of mukaf ledirah from the area. As I noted in Part I of this article, the latter halachah applies only when one planted trees in an area that was already mukaf ledirah. In other words, there is a difference between enclosing the area, which requires that it is initially mukaf ledirah, and changing its status once it was mukaf ledirah. Thus, enclosing an orchard does not make it mukaf ledirah. Water sources If a body of water, such as a lake or stream, is within an enclosed area, is the area still considered mukaf ledirah? Similarly, if an area was mukaf ledirah and then became flooded; may one still carry there (Eruvin 24a-b)? On the one hand, people do not live under water, so one could argue that any area covered by water is, by definition, not suitable for human habitation. On the other hand, since mankind cannot survive without water, having a nearby water source is definitely a residential need. The halachah is that water covering the ground does not usually create a problem, but there are three factors to be considered: The quality of the water –can people use it? How large an area is covered by the water? How deep is the water? If the water is not usable and covers a large area (more than 5000 square amos) deeply, that area is not mukaf ledirah and the enclosures surrounding it do not permit one to carry there. How deep? According to most authorities, one need only be concerned when the water is ten tefachim deep, about 80 centimeters or about 2.5 feet (Shulchan Aruch, Orach Chayim 358:11). Others are more stringent and are concerned when the water is only three tefachim deep (quoted in Biur Halachah ad loc.). Water quality What is meant when we say that the water is usable? This issue is a subject of dispute among both early and late halachic authorities. There are two basic approaches, a stricter approach that defines usable water as being potable (Rashi, Eruvin 24b s.v. Dechazi), and a more lenient approach -- that water that can be used for laundry and similar uses is considered usable (Rashba, Avodas Hakodesh, Beis Nesivos 1:14:90 and 3:3:144; Ritva, Eruvin 24a). In today’s world, this dispute would seemingly have a common application. The run-off from rainstorms streams across people’s fertilized and pesticide-treated lawns, making it unsafe to drink. As a result, if the water accumulates deeply over a large area, it could invalidate the eruv. However, since the water often looks clear and may be suitable for laundry and similar use, the second approach would rule that it would not invalidate the eruv even if it is deep and covers a large area. Thus, whether this water runoff presents a halachic problem might be dependent on this dispute. How do we rule? There is an interesting curiosity that results. Two of the most respected late halachic authorities are the Aruch Hashulchan and the Mishnah Berurah. In the vast majority of cases, the Aruch Hashulchan rules more leniently than does the Mishnah Berurah. However, this is one of the instances in which the Mishnah Berurah (Shaar Hatziyun 358:81) rules more leniently, permitting carrying within an enclosed area that contains non-potable water that may be used for laundry or for animals to drink. The Aruch Hashulchan (358:23) requires that the water be potable. Water seclusion In fact, non-usable water, like any other instance of an area that is not mukaf ledirah, will only create a problem when the area covered by the water is not separated from the adjacent land area by a mechitzah. If the banks of the stream are sufficiently steep, these banks themselves serve to divide the water area from the eruv area and no further adaptation is necessary. How steep is sufficient? Does a slope that is submerged beneath the water help to segregate the non-mukaf area? This is a complicated area of halachah on which the eruv’s posek will need to rule. The city eruv At this point, let us examine our first question: “Can the eruv fences, walls, and wires be checked religiously every week, yet the eruv is invalid?” We are now equipped to answer this question. Indeed, if the area within the eruv includes a large area that is planted or contains non-usable water, that area must be cordoned off from the eruv area in a halachically acceptable fashion. This requires essentially creating some type of halachically-approved divider. Otherwise, the eruv is invalid and one may not carry there. Thus, even if an eruv’s perimeters somehow miraculously survived the onslaught of a hurricane of the magnitude of Sandy, one will still not be permitted to carry there because of the areas that are now submerged with unusable water. Planting and the city eruv Some authorities rule that planting an area is less of a problem in a city eruv than it is in within someone’s private eruv. They contend that an individual planting in a karpeif invalidates only his own wall, but not that of his city (Shu”t Dvar Shmuel #259). Those who introduces this approach, describes planting inside a city wall as, by its nature, temporary, compared to the intended permanence of the city wall, whereas his own private fences and walls are dependent on his own intentions. It may not follow that this can be compared to a modern city and its eruv. There are authorities who dispute this approach and rule that planting invalidates any type of enclosure (Maamar Mordechai 358:14; Chazon Ish, Orach Chayim 88:25.) Does an overgrown area invalidate an eruv? Thus far we have learned how planting or water can invalidate an eruv. What is the halachah if an area becomes overgrown with weeds or other shrubbery? Will this invalidate an eruv? The late authorities debate whether only a planted area invalidates an eruv, or even an area that becomes overgrown on its own. I leave this question for the local eruv committee to discuss with its halachic authorities. Do people live in the zoo? Part I of this article and Part II up this point serve as an introduction to understanding the question, “Do people live in the zoo?” -- a practical question that was raised as early as the eighteenth century. The Ohr Chodosh, Rabbi Elazar ben Elazar, author of a series of scholarly Torah works sent a halachic inquiry to his mechutan, the Noda Biyehudah, Rav Yechezkel Landau, the chief rabbi of Prague. Where the Ohr Chodosh was then rav, in Cologne, there was a menagerie of wild animals within the area that they wanted to include within the town’s eruv. Based on his analysis of the difference between the cases that are considered mukaf ledirah and those that are not, the Ohr Chodosh wanted to permit the zoo area as mukaf ledirah. He begins his analysis with the question: Why are vegetable gardens and wood storage areas considered non-residential, and yet areas in which animals are penned are treated as residential? The Ohr Chodosh himself felt that the dwelling of an animal is considered a residential use, and that this is true even regarding the dwellings of wild animals. Therefore, if someone builds a zoo with enclosures for the tigers, lions, bears and all other species, each enclosure has the status of mukaf ledirah and can be more than a beis sasayim without prohibiting carrying. A different scholar, identified in the responsum simply as Rabbi Nissan, disagreed with the Ohr Chodosh, contending that animal pens are considered mukaf ledirah only when they include a hut or other type of residence where the shepherd lives. He notes that Rabbeinu Yonasan, the primary commentary to the Rif on Eruvin, mentions this distinction. The Ohr Chodosh retorted that he found this factor, that a dir is considered mukaf ledirah only when it contains a residence of sorts for the shepherd, in no other halachic source, and therefore concluded that Rabbeinu Yonasan’s ruling is a minority opinion. The Ohr Chodosh contended that the majority would accept his analysis. On Rosh Chodesh Nisan 5548 (1788), the Noda Biyehudah answered the letter of the Ohr Chodosh, siding with Rabbi Nissan. Although the Noda Biyehudah agrees that the other authorities may not accept Rabbeinu Yonasan’s requirement of a guard hut, the key difference between a dir and a vegetable patch is that a dir requires a human presence even according to those who do not accept that there must be a building for this purpose, whereas a vegetable patch does not require a human presence. The Noda Biyehudah contends that an enclosure for wild animals will not be considered mukaf ledirah, and will be prohibited if the area is more than a beis sasayim, since people do not dwell among wild animals. In his responsum, the Noda Biyehudah does not discuss what is the exact difference between a dir and a ginah, but other authorities do. The Tosafos Shabbos explains the difference to be that a dir is used by people at night, whereas a ginah is used only during the daytime. The Biur Halachah explains the dissimilarity in a different way, contending that a dir is adjacent to the house, and includes milking and other uses that are domestic. Therefore, its use is incorporated with the use of the residence. Roofed From the case of burgenin and some others, it appears that even a roofed area can be considered not mukaf ledirah. This is the opinion of most halachic authorities, although one major authority feels that burgenin is an exception and that most roofed areas can be considered mukaf ledirah. Based on this discussion, the question is whether a warehouse storing merchandise that does not contain any type of residence is considered mukaf ledirah. The use here is not domestic and therefore could be conceived as not mukaf ledirah. This question involved a dispute between the Mishnah Berurah and the Chazon Ish. The Mishnah Berurah holds that since a warehouse is a strongly constructed building, it qualifies as mukaf. The Chazon Ish challenges this position, contending that unless there is some place in the structure to be used for sleeping, it is not considered mukaf ledirah. In general, the presence of a warehouse should not affect the halachic status of an eruv, even according to the Chazon Ish, since a warehouse is completely enclosed and not nifratz bemilu’oh (see Part I), and therefore will not prohibit an adjacent area. Shuls, batei medrash and bathhouses The Aruch Hashulchan notes that shuls, batei medrash and bathhouses are all buildings whose purpose is not for residential purpose. One is not permitted to use a shul or a beis medrash for personal use and a bathhouse is also not used for typical residential use. He therefore concludes that all of these areas so not qualify as mukaf ledirah unless they include some type of residence for the building’s caretaker. Conclusion Rav Samson Raphael Hirsch (Shemos 20:10) notes that people mistakenly think that work is prohibited on Shabbos in order to provide a day of rest. This is incorrect, he points out, because the Torah does not prohibit doing avodah, which connotes hard work, but melachah, which implies purpose and accomplishment. Certainly, no more calories are expended when carrying from a reshus hayachid to a reshus harabim than when carrying a heavier item a greater distance within a reshus hayachid, yet the first activity desecrates Shabbos and the second is permitted. The goal of Shabbos is to emphasize Hashem’s rule as the focus of creation by refraining from our own creative acts (Rav Samson Raphael Hirsch Commentary to Shemos 20:11). Creating a beautiful Shabbos entails much planning and organization, and realizing that preparation for Shabbos includes studying all the melachos of Shabbos. This helps us to appreciate Shabbos more andto get the maximum joy out of this special day.
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