Renting the Area from the Authorities and Eruvei Chatzeiros in Multiple Unit Dwellings and Hotels
Me'd'oraysa the ownership of an area is not relevant to the prohibition of carrying on Shabbos and Yom Tov. The halachic status of an area as a reshus hayachid, reshus harabbim, or carmelis is determined me'd'oraysa solely on the basis of the nature of the enclosure - or lack thereof - surrounding it. Chazal, however, specified that not only must a reshus hayachid be enclosed but, in addition, all the residents1 in the reshus must form a symbolic unified entity. Only then is carrying therein allowed. Since this requirement is only me'd'rabbanan, Chazal were lenient and only required symbolic, not actual, unified ownership of the area in question. Depending on who the other partner/s in the area in question is/are, one or two methods must be employed in achieving the symbolic unified ownership: eruvei chatzeiros or sechiras reshus.
1. ERUVEI CHATZEIROS VS. SECHIRAS RESHUS: WHAT, WHICH, WHEN?
Eruvei chatzeiros (literally: the merging of the courtyards) works in one of the two following manners: Pieces of bread (or, preferably, matzo - it remains edible longer) are collected from every family within the eruv and placed in one of the houses within the eruv2. This act, together with the appropriate verbal formula, enables us to symbolically view all the residents of the area as if they united and all dwelt in the house in which the eruv chatzeiros, i.e., the collection of bread, is kept. If it is not feasible or convenient to collect pieces of bread from all the families in the area, one person may take his own loaf of bread and grant the other residents ownership of it by way of the halachic device of "zechiah"3. This procedure is relatively simple, and readily accessible in such common sources as the Kitzur Shulchan Aruch4. We should note that the zechiah procedure requires two people: The "mezakkeh" - the owner of the loaf who confers upon the others ownership therein; and the "zocheh" - a person who acts as the agent of those others who are acquiring ownership through the zechiah5.
If up to eighteen families reside within the area in question, each must possess a minimum of at least the size of a grogeres (a dried fig, which is approximately one third to one half the size of an egg6) in the bread of the eruvei chatzeiros. Eighteen grogeros is the maximum required shiur. No matter how many more families reside in the area, no more than eighteen grogeros are required to unify them by the eruvei chatzeiros7.
There are various opinions as to the length of time for which an eruvei chatzeiros remains in effect. The prevalent custom is that, as long as the bread used has not been eaten and remains edible, the eruvei chatzeiros is valid for up to one year8.
Sechiras reshus (literally: rental of domain) is a completely different procedure. It, too, however, is relatively simple and also clearly explained by the Kitzur Shulchan Aruch9. In sechiras reshus, the person who would like to carry in an enclosed area on Shabbos asks the residents or owners of the other dwellings in the area to rent to him the right to carry in the area in question. Since here, too, the acquisition of the right is symbolic in nature, the rent paid may be symbolic as well (I was once present at a ceremony in which the right to carry in a town wasrented from the town council for twenty years for one dollar10).
Eruvei chatzeiros is required in most cases in which an eruv includes two or more Shomer Shabbos Jewish residents. Sechiras Reshus is necessary when the eruv includes residents who are not Shomrei Shabbos - either because they are not Jewish or because they are not observant.
2. SOME APPLICATIONS L'HALACHA
Let us explore these parameters by way of two sample cases: A duplex, i.e., a building in which two families live; and a triplex, i.e., a building in which three families live.
If both resident families of a duplex are Shomrei Shabbos, eruvei chatzeiros is required to carry from common areas to private areas (and vice versa) and from one resident's private area to another resident's private area11. If, however, only one of the families is Shomer Shabbos, then that family utilizes neither eruvei chatzeiros nor sechiras reshus. Carrying on Shabbos within the enclosed area shared by the two families is allowed here without any tikkun at all. The Gemara12 tells us that the domain of a non-Shomer Shabbos resident should not prevent his fellow resident from carrying on Shabbos within the enclosed area that they share. Only the presence of fellow residents who are Shomrei Shabbos should require a tikkun - eruvei chatzeiros. Nevertheless, to discourage Shomrei Shabbos from living in such proximity to non-Jews, Chazal required the Shomer Shabbos resident to rent the right to carry from his non-Jewish fellow resident. Chazal hoped that the non-Jew would regard such a request by his neighbor as suspicious and dangerous, and deny the request. The observant neighbor would then be in the uncomfortable situation of not being able to carry on Shabbos. He would thus be induced to move away from the courtyard that he had shared with the non-Jew.
As with many gezeros d'rabbanan, milsa d'lo shechicha lo gazru ba rabbanan - our Rabbis did not extend their decrees to rare cases. At the time of Chazal, solitary Jews or Jewish families rarely resided with non-Jewish neighbors. Ovdei kochavim of the time were suspected murderers. Were two families not in close enough proximity to regularly check upon each other, there would be a real fear that non-Jewish neighbors would take advantage of the isolation of a single Jewish family and murder them. Chazal, therefore, did not extend the requirement of sechiras reshus to such uncommon cases. The halacha remains that whenever a single Jewish individual or family shares the enclosed area with any number of non-Jews, no tikkun is required13.
In the case of a triplex, there are several possible configurations: a) Three Jewish families; b) Two Jewish (Shomer Shabbos) families and one non-Jewish family; c) One Jewish family and two non-Jewish families. In the first configuration only eruvei chatzeiros among the three families is required. In the second configuration we would require the two Jewish families to make an eruvei chatzeiros between themselves and to be socher reshus from the non-Jewish family as well. In the third configuration we would require no tikkun at all. The solitary Jewish family needs make neither eruvei chatzeiros nor sechiras reshus. The principles that we have just outlined are easily applied to apartment buildings and other situations where more people reside together within an enclosed area.
When one must deal with many Shomer Shabbos residents, the procedure remains relatively simple. One individual can make an eruvei chatzeiros of eighteen grogeros for unlimited amounts of people by way of zechiah. When, however, one must deal with large amounts of non-Jews or non-observant Jews, a major difficulty arises: It is not necessarily advantageous for someone to have a right rented from him, and therefore zechiah cannot work here. To be socher reshus from every non-Jewish or non-observant resident of a large apartment building, or every guest in a hotel, would be prohibitively difficult. It would be even more difficult to be socher reshus from all the inhabitants of an area surrounded by a large urban eruv! There are two distinct solutions to this problem, depending on the situation in question.
3. SECHIRAS RESHUS FROM A LANDLORD
The Rashba14 writes (free translation):
[When] large ships [are] divided into rooms that are rented to various travelers, each in his own room, if among them are two Jews in separate rooms who eat separately [who wish to carry on Shabbos], they cannot do so... for eruv and bittul15 are not effective in the presence of non-Jews.
What is their solution? They should rent the right to carry throughout the ship from its owner before he distributes the rooms among the other passengers. If they did not do sechiras reshus before the rooms were distributed to the other passengers, they cannot subsequently rent the right to carry from the ship's owner. This is because the primary authority becomes the renter [the passenger], as we have explained16. If, however, the ship's owner retains the right to place objects throughout the ship, even in the rooms rented to passengers, then the Jewish passengers only have to be socher reshus from the ship's owner, just as one may be socher reshus from the employee or agent of the owner of an area17.
The Rashba refers us back to a previous ruling:
When a non-Jew rents his property to another non-Jew, if the owner retains the right to remove the tenant whenever he wants, then sechiras reshus may be done from the owner - even if he has not removed the tenant yet. [There are two reasons why this is the halacha,] because the sechiras reshus is itself a form of removal, and because [under such circumstances] the owner is the primary authority. If, however, the owner cannot remove the tenant, then the sechiras reshus must be done from the tenant. It seems to me that if, however, the owner has some control over the property he has rented to the tenant, such as objects stored on that property, or even just the right to place objects on the property, then one may even rent the right to carry from the owner, who is then no worse than the employee or agent of the tenant.
These rulings of the Rashba are accepted l'halacha in the Shulchan Aruch18. Control of an owner over property through the placement of objects is known as "tefisas yad."
Based on the principles that we find in these passages in the Avodas HaKodesh, Reb Moshe19 rules that whenever a landlord owns objects in the tenants' apartments that the tenants may not remove without permission (refrigerators, stoves, etc.), one may be socher reshus from the landlord, and does not have to approach each individual tenant. This, in Reb Moshe's opinion, is true even if the tenant has rented the right to use the objects in question. The logic of this psak, as the Rashba explained, is that through his ownership of the objects, the owner retains some authority over the rented apartments. This enables him to do an umbrella sechiras reshus for all the properties he owns20.
This psak has more, very important, ramifications, halacha l'ma'aseh. For example, let us take a case of a Shomer Shabbos landlord who lives in the same building as his tenants. If this landlord owns and provides refrigerators to all the tenants, then according to Reb Moshe's logic, neither eruvei chatzeiros nor sechiras reshus would be necessary. All the tenants are unified with the landlord by way of the tefisas yad. Similarly, in the case of a hotel, as long as the owner of the hotel, his agent, or his employee resides in the hotel, all the guests are considered unified through tefisas yad. Neither eruvei chatzeiros nor sechiras reshus would be necessary21.
It is important to stress that for tefisas yad to suffice, the landlord or his employee must reside in the building. If the landlord lives off the premises, then eruvei chatzeiros and/or sechiras reshus is still necessary. One may, however, still make a single umbrella sechiras reshus through the landlord. In these cases additional measures are necessary because the reshuyos to be unified must all be considered consolidated in one of the residences on the premises. This symbolism requires that the person who facilitates this unification reside within the area or on the premises that are being unified22.
4. SECHIRAS RESHUS IN PUBLIC AND URBAN AREAS
The various types of tikkunim that we have examined are applicable when dealing with privately owned properties: buildings, yards, and the like. Let us say, however, for example, that one wants to make an eruv with one's neighbor who lives across the street23. Their respective reshuyos may be unified through eruvei chatzeiros; any non-Jew's property in their eruv may be included by way of sechiras reshus; but what about the street itself? A public thoroughfare does not belong to any particular person - from whom is one socher reshus24?
In the same vein, when an eruv encompasses a large area which includes many houses and buildings, it is next to impossible to be socher reshus from every homeowner or landlord in the area. How can we do sechiras reshus in such situations?
Although we have posed these two problems together, the solution to the first problem is far less complex. Where sechiras reshus must be done on a public area such as a street, one goes to a person that can control access to the street and is socher reshus from that person, his agent, or his employee. Prevalent practice is to contract the sechiras reshus from the police who have the authority to manipulate traffic on the streets. It is preferable to go to a commissioner or another high ranking official who has actual jurisdiction over the streets in question. One may, however, also approach a regular officer - who falls into the category of an agent or employeeof the higher official25. I have heard in the past of eruv committees being socher reshus from officials such as the Borough Presidents of New York City26. Some Rabbanim have questioned this practice, since these officials are probably not empowered to authorize street closings.
This sechiras reshus is effective for the problem of public areas (streets, parks, etc.). But what about the second problem, the myriad distinct private reshuyos for which an umbrella sechiras reshus must be made? Ironically, in totalitarian countries, where the authorities can enter houses and place objects or soldiers therein at will, the solution is simple: The right of entry and placement is tefisas yad, enabling one to effectively contract an umbrella sechiras reshus with the authorities for the entire area within an eruv. In most democratic countries, however, the government may not enter a private residence at will. They surely cannot store objects or quarter soldiers on the premises except under extraordinary circumstances. What, then, enables us to contract an umbrella sechiras reshus in such situations?
The Chazon Ish27 seems to hold that the police's right of entry is a sufficient measure of control to contract from them an umbrella sechiras reshus: "...Because they are considered like employees that possess authority in the entire area for the government's needs." This right is considered tantamount to the police having borrowed space in each resident's dwelling28. Whether one relies on this ruling of the Chazon Ish or not, we should note that the issue of private residences does not affect the heter to carry in the streets of the city, concerning which the control of the authorities is complete. One would then be allowed to carry from and into the houses of all the Shomrei Shabbos included in the eruv (permitted by way of the eruvei chatzeiros), and throughout all the public areas within the city29. If one wants to carry into buildings or yards within which non-Jews live, he may personally contract sechiras reshus with the people involved.
1. Vacant dwellings need not be included in the eruvei chatzeiros or sechiras reshus. Only current residents must participate.
2. Shulchan Aruch, Orach Chaim 366:1.
3. ibid., 366:9.
4. 94:6-7.
5. Those now acquiring ownership need not actively appoint the zocheh as their agent. The operative principle is zachin l'adam shelo b'fanav. Where it is advantageous for a person to acquire an object, his explicit consent to the acquisition is not necessary (Kiddushin 42a).
6. Shulchan Aruch, Orach Chaim 368:3.
7. ibid.
8. ibid., 368:5.
9. 94:18-23.
10. See Nesivos Shabbos 37:28 and footnotes 95-99 for further information on the length of time for which a sechiras reshus is valid. We should emphasize that this section of the kuntres is not a comprehensive analysis of the intricacies of sechiras reshus for urban areas! See also Yesodei Yeshurun, Ma'areches Lamed Tes Melachos vol. 2, pp. 314-315.
11. See Shemiras Shabbos K'Hilchasa 17:11-12.
12. Eruvin 62a; Shulchan Aruch, Orach Chaim, 382:1 and Biur Halacha, ibid., d.h. Az Hanochri. A potential ramification of this halacha applies if one has the misfortune to land in an airport (in Chutz La'Aretz) after Shabbos has begun. If, as often happens, one can walk within an uninterrupted enclosed area from the airplane, through the terminal, to an attached hotel, one may carry one's luggage the entire way. These areas might be regarded as separate domains. Since, however, their status is one of exclusive non-Jewish ownership, no tikkun is necessary to carry from one area to another.
13. Although the halacha of a Mechalel Shabbos is like that of a non-Jew in many aspects of Hilchos Eruvin, sechiras reshus may be required where a solitary Shomer Shabbos lives with one or more Mechalelei Shabbos. See Nesivos Shabbos 36:24-27 and footnotes 89-97.
14. Avodas HaKodesh (in Rabbi C. G. Tzimbalist's edition, Tel Aviv, 1978, vol. 2, p. 152), Beis Nesivos 4:8.
15. Literally: nullification, a third manner of unifying reshuyos hayachid. Where eruvei chatzeiros was not made before Shabbos began, one or more of the other Jewish residents of the enclosed area may nullify their domains in favor of one of the residents on Shabbos. That resident and members of his household may then carry throughout the area, but the others may not. This is obviously not a very advantageous means of unification, and is therefore rarely used. The halachos of bittul are to be found in Shulchan Aruch, Orach Chaim 380-381.
16. Avodas HaKodesh, ibid., p. 69, 4:3.
17. See Avodas Avoda, Tosefes Biur 4:28.
18. Orach Chaim 382:18,19. See the Mishna Berura there nos. 60-64 and nos. 75-77.
19. Igros Moshe, Orach Chaim 1:141.
20. It should be noted that other Poskim, most notably the Kovner Rav, She'eilos U'Teshuvos Dvar Avraham 3:30 (who is not sure whether objects rented to the tenant still manifest the owner's control), the Chazon Ish, Orach Chaim, Hilchos Eruvin 92 (who assumes without question that rented objects do not manifest the owner's control), and the Chelkas Ya'akov 1:207 are not in agreement with Reb Moshe on this point. In fact, Reb Moshe has to differ with a Mishna Berura in order to make his point. Nevertheless, Reb Moshe's logic and evidence is very strong in this regard. Reb Moshe writes that objects of the type provided in our times by the landlord to the tenant are not completely at the disposal of the tenant. The tenant, for example, is not free to remove those objects from the premises without permission. Such restrictions that show the landlord's control constitute proper tefisas yad. It is possible that the Chazon Ish would accept this approach as well. The case discussed by the Chazon Ish is one in which the tenants may have had the right to reject and remove the objects in question.
21. Even those Poskim who disagree with Reb Moshe and do not consider objects that the tenant or guest makes use of sufficient tefisas yad entertain the possibility that where the hotel management retains the right to switch the guests' room, that itself is sufficient control. Sechiras reshus and eruvei chatzeiros would not be required. See Nesivos Shabbos 34:7 and footnote 25. See also Mishna Berura, Orach Chaim 370:33 and Biur Halacha, ibid., d.h. Einam Osrim. If the owner can evict the tenant any time he pleases, everyone agrees that no tikkun is required.
22. Additional halachos of tefisas yad are to be found in Shulchan Aruch, Orach Chaim 370:2and Nesivos Shabbos 27:12-16. It should be noted that the landlord's objects in the tenant's residence must be of a type that cannot be removed on Shabbos, either because they are muktzeh or because they are so heavy that they are not normally moved. Furthermore, the right to place objects in the tenant's residence is insufficient. Actual objects must be in place in order to utilize the tikkun of tefisas yad. I have heard that Reb Moshe did not require that the landlord or his employee reside in the building or complex in order that tefisas yad should suffice. He held that, halachically, the landlord is considered to reside in all the complex's apartments. I have been unable, however, to verify that shemu'a.
23. An important note: Neighbors who would like to make an eruv between their properties must have a halachically valid opening between their properties. For example, if two neighbors want to make an eruv that encompasses two yards separated by a fence, there must be an opening in that fence in order for them to make an eruv together. That opening must be within the area encompassed by their eruv. The fact that they can pass things over the fence to each other is not enough of a connection. There is an exception to this rule. Keilim sheshavsu bechatzeir - objects that were in a yard from before Shabbos - may be passed to another yard (or to a roof, but not to the street - a carmelis) without eruvei chatzeiros. See Shulchan Aruch, Orach Chaim 372:1,4. If there is a proper opening, and an eruv is made, the neighbors may then also pass objects that were inside their respective houses to each other over the fence as well (Mishna Berura, ibid., no. 29).
24. Although the streets are not residences, if they are included in an eruv they must be rented from the proper authorities. See She'eilos U'Teshuvos Chavos Yair 135, cited briefly in Sha'arei Teshuva, Orach Chaim 391:1. Sidewalks, however, may not be fall into the same category as streets. Some Rabbanim hold that where the sidewalks are either legally owned by the residents; the residents have rights to limited use of the sidewalks; or the residents bear responsibility for the maintenance of the sidewalk, that these are sufficient forms of control. Sechiras reshus from the authorities would not be required in such cases.
25. Shulchan Aruch, Orach Chaim 391:1; Chazon Ish, Orach Chaim 82:9. The Chazon Ish writes that the logic behind this halacha is not that the municipal authorities are akin to landlords. Rather, their authority to control the areas in question is similar to tefisas yad. They are therefore, in effect, the agents and employees of whomever the true halachic owner might be - here, the citizenry of the city.
26. See Nesivos Shabbos 37:27, footnote 93. In Israel it is preferable to be socher reshus from a police officer, who represents a national level of authority, than from the mayor, who represents only a municipal level of authority. The Nesivos Shabbos also notes that certain areas, such as embassies of foreign nations, are not subject to any form of the host country's jurisdiction. Therefore, no umbrella sechiras reshus will be effective for these areas. See also Mishna Berura 391:18 and Hilchos Eruvin 8:21 footnote 208, that renting from the police is preferable to renting from the army.
27. ibid., 82:9. The quotation that follows is from that siman. I am indebted to Rabbi Shraga Rothbart for noting that my original phrasing here was inaccurate. See also Yesodei Yeshurun, ibid., pp. 310-313.
28. The Chazon Ish there, however, has other difficulties with the procedure of urban umbrella sechiras reshus. See also 82:34, and Nesivos Shabbos, ibid., footnote 94.
29. See Nesivos Shabbos 37:27 and footnotes 93-94 based on the Rama in Shulchan Aruch, Orach Chaim 391:1. Unlike karpeifos (see above, Part 1, Section 7), the private yards and open spaces belonging to non-Jews and Mechalelei Shabbos do not prohibit others from carrying in the streets and other areas, even if they are not surrounded by fences. See Shulchan Aruch, ibid., 382:3, the Mishna Berura there no. 19; and Nesivos Shabbos 36:7. A non-Jew's ownership only prevents Jews from carrying in the specific area under his control - for which sechiras reshus is then necessary. Adjacent areas in which carrying is allowed through eruvei chatzeiros or sechiras reshus are not affected.
The Gemara1 relates that Shlomo HaMelech enacted the decree requiring eruvin to allow carrying on Shabbos. Rabbi Tzadok HaKohen of Lublin2 draws a parallel between this accomplishment and Shlomo HaMelech's major accomplishment - building the Beis HaMikdosh. The Beis HaMikdosh was intended to create a set, defined and permanent space in which Hashem's spiritual light would be perceived. In a larger sense, all of Messeches Eruvin is intended for that purpose - to encompass reshus harabbim in reshus hayachid. In a sense, an eruv elevates the area it encloses. Viewed from that perspective, the construction of an eruv implies a great responsibility, similar to the awesome responsibility involved in binyan Beis HaMikdosh.
The Maharal3 says that the focal Meleches Shabbos is Hotza'a, the prohibition on carrying. It follows that the utmost caution must be exercised in any attempt to allow carrying on Shabbos.
We therefore reiterate: Our purpose in this work was not to paskin halacha l'ma'aseh. Our intent was to familiarize contemporary Shomrei Shabbos with some of the many intricate details involved in Hilchos Eruvin.
Many sources stress the advisability and importance of building eruvin wherever possible4. Many Poskim exhibit a very positive attitude toward eruvin. The positive attitude in theory does not, however, always translate into a positive attitude in practice. The reasons for this inconsistency should be somewhat clarified by our discussions. The possible pitfalls involved in the construction of even small eruvin are great and many. The nature of Hilchos Eruvin is such that not only must Poskim who are well versed in the halachos always be consulted, but that they also must be brought for on-site inspections of the area and the eruv before, during, and after construction. Only thus can the theoretical positive attitude be translated into practice. Then Oneg Shabbos will not be enhanced at a cost of diminished Shemiras Shabbos.
NOTES:
1. Eruvin 21b.
2. Dover Tzedek siman 4 (3a).
3. Chiddushei Gur Aryeh, beginning of Messeches Shabbos.
4. See, for example, Shemiras Shabbos K'Hilchasa 17:21; Halachos of the Eruv, "BeMakom Hakdama;" and Yesodei Yeshurun, Ma'areches Lamed Tes Melachos vol. 2, p. 237 and p. 312.
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Converted by Andrew Scriven