Siman 162

The residents of an alleyway compel one another, and even the minority compel the majority [it appears to me], to make a lechi or a korah to permit carrying on Shabbat, as is written in Orach Chaim siman 362. And in an open alleyway, they compel the construction of a tzurath hapetach, as is written there in siman 363. And there is room to doubt in this time, when they make eruvin for cities with a tzurath hapetach even though they are sixteen amot wide and do not have sixty ribbo people, according to the decision of our teacher, the Rema, there—and many poskim disagree with this—whether one can say, "I will not give a portion for this because I am concerned for the poskim who forbid it." And it appears to me that nevertheless he must give his portion, as is written in siman 163 regarding the matter of a mikveh, that even one who does not need it must give; so too in this, they can say to him, "Even though you are stringent upon yourself, nevertheless for the benefit of the city you are forced to give." And he cannot say "kim li" like the poskim who forbid it, since the permission has already spread according to the decision of our teacher, the Rema, no man can say "kim li." And making an eruv is a mitzvah, as is proven in the Shas [Eruvin 68a].

But if the residents of an alleyway come to install doors for the alleyway, even one of them can object and say, "I wish to enter with my load on a level path until my entrance without hindrance, and when there are doors, there will be a hindrance for me to open them." And even if they all agree to this, the residents of the public domain or the residents of a simta can object to them, because they hinder their entry into the alleyway. And even if they wish to install the doors far inside the alleyway, they can object, because on a market day when the people are numerous and animals are numerous, they sometimes crowd one another and enter the entire alleyway, and a path that the public has taken hold of is forbidden to be ruined. And there is no distinction in this between an alleyway that is open on two sides and one that is not open [Tur]. And even if the residents of the alleyway sold the alleyway to install doors and announced that anyone who does not protest loses his right, and the residents of the public domain did not protest, even so they can protest, for the public is not like individuals and they are always considered as being in possession. However, the small alleyways that open to those alleyways that open to the public domain or to a simta are permitted to make doors for them if the residents of that alleyway all agree, and the residents of the public domain cannot protest, for the public domain residents do not crowd so much as to enter the small alleyways. And some say that even in an alleyway open to the public domain, if there is recognizable at the head of the alleyway a sort of entrance that has doorposts and is not open across its entire width, they can install doors for it, because it is recognizable that from the beginning it was made thus with the consent of the residents of the city to make doors for it, for if not so, why did they make doorposts for it? And also from among the residents of the alleyway they cannot object [it appears to me]. And it seems to me that in a place where the residents of the public domain can object, nevertheless, as long as they do not object they can act, and the beit din is not to prevent them. And although the beit din is obligated to act on behalf of the public, nevertheless, since the place belongs to the residents of the alleyway, and the residents of the public domain, when they took hold to enter it when the people are crowded on a market day, they did not do so with the permission of the owners of the alleyway, but rather such is the way of the world; therefore, it is sufficient when they themselves prevent them, but not that the beit din should plead on their behalf [and so it appears from Bava Batra 12a, and from the Rosh and Nimukei Yosef there].

The residents of an alleyway, in whose alleyway there was a neighborhood in a single courtyard containing the beit knesset and the mikveh house, and the courtyard is closed with doors while the alleyway is open to the domain of idolaters, and in another place there dwell Israelites who have a right of way through this alleyway and have long established a chazakah in this path to walk through the alleyway to the courtyard for the purpose of immersion and prayer; if the residents of the alleyway wish to install doors for the alleyway in order to be protected from the idolaters, those Israelites may protest against them so that they will not face a delay through the closing of the doors. And even though the courtyard also has doors, nevertheless, one delay is not comparable to two delays. Furthermore, even if they wish to remove the doors from the courtyard and fix them to the alleyway, they may protest, because they have already established a chazakah to walk through the alleyway without delay. Additionally, the locking of the courtyard is not comparable to the locking of the alleyway, for when the courtyard is locked, they stand until its opening within the domain of an Israelite and have no fear, whereas now they would stand in the domain of idolaters. Furthermore, in the courtyard, when they knock on the locked door, they are immediately heard from some house and it is opened for them, which is not the case in the alleyway. All this is according to the law, but if the king gave them permission to install doors, the law of the kingdom is law, for the streets and the marketplaces belong to him and he may do with them as he wishes. However, if those Israelites dwelling outside the alleyway are able to intercede with the king so that he annuls the doors, they are permitted to do so since the law is with them [Levush].

And similarly, regarding alleyways that are open to the path of another city, where people travel through these alleyways to the other city, and the residents of the alleyways sought, with the consent of the residents of their city, to close them—the residents of that city who travel to it through these alleyways may prevent them. And even if they have another path, if this path is better or shorter than the second, they have the power to prevent it because they have already established a presumptive right to this path to travel to their city and from their city to this city, and a path that the public has established a presumptive right to is forbidden to be ruined. And specifically when they established a presumptive right to this path with permission [Nimukei Yosef, first chapter of Bava Batra]. And the Rambam, of blessed memory, in the fifth chapter of Laws of Neighbors, omitted this law, and I do not know why; and it is possible that he relied on what he wrote in the thirteenth chapter of Laws of Monetary Damage, that any boundary that the public has established a presumptive right to is forbidden to be ruined.

A courtyard situated between two alleys that has an opening to one alley and [the owner] sought to also open an opening to the second alley, and it is not a throughway, the residents of the second alley may prevent him because he increases the traffic upon them, as many of the residents of the first alley will be exiting and entering through the second alley. And there are those who say further that even if the residents of the second alley give him permission, the residents of the first alley can prevent him because he increases upon them the treading of the feet of the residents of the second alley who will come to them by way of his opening. And if the second alley was a throughway from two sides to the public domain or to a side-street, he may open any opening he desires at the outset, and the residents of the second alley may not prevent him; only the residents of the first have the power to prevent him if their alley is not a throughway, for in a throughway the claim of increasing traffic is not applicable since many pass through it regardless. And if there are doors to one of the alleys that they lock at night, that alley is considered as closed, because at night he increases the traffic upon them. And so too, the residents of an alley prevent one another from using an alley that is not a throughway except for things that are customary to use in such alleys; but in a throughway, it is like the public domain, and they cannot prevent them in what they do there if it is something that is done so in the public domain [it appears to me].

If he had a closed entrance, even if it was not open from side to side, he may open it at any time he wishes; since its doorposts were not breached, it stands to be opened. But if he breached its doorposts, the residents of the alleyway may prevent him, for the name of an entrance has been nullified from it. And there are those who say that this is when there are witnesses that it was originally open to the alleyway; but if he has no witnesses, even if he did not breach its doorposts, they can prevent him, for we say perhaps they compelled him to close it or he waived his right to them [Sma], for in every case of doubt the public is considered as the possessors and it is upon the individual to bring proof.

Our teacher, the Beit Yosef, wrote in section 6: If one of the residents of an alleyway desired to close his entrance and relocate it to another alleyway with the consent of the residents of that other alleyway, the residents of his original alleyway may prevent him, lest a tax be levied upon them and his portion of the tax fixed upon the residents of the alleyway be diminished. Therefore, in a place where the tax is not fixed upon the residents of the alleyway, behold, he may close his entrance whenever he desires. Thus far his words. Provided that he breaks down his doorposts that belong to this alleyway, for if not so, perhaps he will return to open it, as has been written, and increase for them the traffic of the residents of the other alleyway.

It has already been explained in siman 156, section 1 and 7, that regarding a closed alleyway, there is a dispute among the poskim whether the claim of increased foot traffic applies to the residents of that alleyway as it does in a courtyard or not. For according to the opinion of the Rambam, this claim exists, and according to the other poskim, this claim does not exist in an alleyway. Therefore, if one of the courtyards wishes to open a new entrance to the alleyway, whether the owners of the alleyway have the power to prevent him depends on this dispute. Nevertheless, even according to the other poskim that the claim of increased foot traffic does not apply in an alleyway, yet regarding usage in the alleyway, all agree that each courtyard may only use the area opposite it in the alleyway and until the end of the alleyway on the side of the public domain, because his walking and usage are frequent there. But above it, toward the inner part of the alleyway until the middle closed wall, he has no permission to use there, for his walking is not there since it is not open through. According to this, the innermost courtyard uses the entire alleyway, and the outermost one uses only opposite itself, and the other courtyards each use opposite themselves and until the edge on the side of the public domain.

Therefore, five chatzerot that open into a mavoi that is not open-ended, all of them use the area with the outermost one, and the outermost one uses its own area but not with any other, and the second one uses its own area and with the outermost one but does not use with the rest, and the innermost one uses its own area and with all of them and no other uses with it. Therefore, if one of the middle ones built a bench opposite the entrance of its chatzer and blocked it, the outermost one cannot object, but all the inner ones may object against it because it increases the path for them, as they will need to go around the bench. And in such an increase of the path, all agree that they can object [Taz], for it narrows the path for him and increases the path for him by way of going around the bench. And so too, the owner of the second chatzer from the outermost one who opened a second entrance from his chatzer to the mavoi between himself and the outermost one, the outermost one does not object against him, for it only has the right to use from its entrance and outward. But if he opened it between himself and the third one, the third and all the inner ones object against him, because he only has the right to use the mavoi from his first chatzer entrance and outward. And such is the law for all of them, because through a new entrance the usage will be opposite the entrance, and since he has no permission to use there, he has no permission to open an entrance there. And even if his chatzer extends inward from the entrance, nevertheless he cannot open another entrance because he increases the path for them by the increase of entrances. However, this is only according to the Rambam, of blessed memory, who holds there is a claim of increasing the path even in a mavoi, and it also appears from his words that the owner of the chatzer cannot use from the entrance and inward even though his chatzer extends further than the entrance. And the Ramban, of blessed memory, also holds this [Darkhei Moshe]. And according to this, it is simple that he cannot open another entrance. But the Rosh and the Tur disagree on this and hold that he is permitted to open another entrance opposite the entire chatzer, whether toward the outside or toward the inside, for he can use opposite the entire chatzer even further than the entrance, and there is no claim of increasing the path in a mavoi. And according to this, he can also protest against one who comes to block opposite his chatzer, such as if his neighbor who dwells opposite him on the other side and whose entrance extends inward from the entrance of this one, he cannot block even though the blockage will be inward from the entrance of this one, for since he has permission to use there, the one opposite him cannot object to his usage. And behold, if he wishes to open another entrance, he has the right according to this opinion, and how can they block it, for perhaps tomorrow he will wish to open another entrance, unless he has the power to block based on some condition that was between them previously. [And our teacher, the Rema, in the Hagah at the end of the siman who wrote "and some say that his entire chatzer that is opposite his chatzer etc. and therefore he can protest etc." holds that whoever forbids opening an entrance also forbids the usage, and so he follows in his first Hagah in this section, and it requires further study regarding the opinion of the Rema in the Tur section 14 and 15, see there. And the first Hagah must also refer to an entrance and not to a bench as the Gra wrote, and the difficulty of the Taz is resolved, and it is one Hagah but it was interrupted because of the places in the synagogue, and look closely into it].

And just as we said that the inner resident can protest against the outer resident regarding the placement of a bench because it crowds him and increases his path, so too is the law regarding places in the beit din. Our teacher, the Rema, wrote that therefore a wealthy person who has many places, and the members of the synagogue come to add benches in the vacant places in order to increase charity and so that many will come to pray, or if individuals want to sit in the middle of the path, the wealthy person can protest with the claim that it crowds his path or increases his path. However, if there is a custom in the city, they follow it, and the members of the synagogue can enact a regulation that anyone who has a place that he does not need must rent it out at a rate that appears appropriate to them. Thus far his words. And if they want to build themselves another beit knesset, or individuals who come to build themselves a beit knesset, others cannot protest against them, and one who protests is worthy of rebuke for preventing the public from performing a mitzvah, as is written in Yoreh Deah siman 334. However, if they see that a stumbling block will arise in the city through the building of a beit knesset for themselves, they can protest against them, for this is not a mitzvah and it is a mitzvah that comes through a transgression [see Magen Avraham siman 154]. And this matter depends on the assessment of the beit din. And one may not use the beit knesset except for customary matters; therefore, if those sitting in the west want to raise their places on a platform above the others, the others can protest. But to raise them slightly so that they may feast their eyes, in a manner where they do not appear elevated—for this is "one benefits and the other loses nothing"—they cannot protest against them. And see in siman 171.

There are some of the great authorities who questioned the claim of increased crowding and narrowing of the path in a synagogue, for it is not similar to an alleyway or a courtyard, as the synagogue is made for the purpose of everyone praying in it. And what shall those do who do not have seats? For they must necessarily set up tables or small benches as is customary. And they wrote that our teacher, the Rema, only spoke of a case where they are able to rent seats along the walls and the like; but if they have no seats at all, they may stand in the middle of the synagogue opposite the seats, and the claims of the seat owners regarding increased crowding and narrowing of the path are no claim at all. And so it appears primary for the law, unless there is a fixed custom there in this matter that they may prevent it, for then we follow the custom; but by the law, they cannot protest.