Siman 351

The Tur and the Shulchan Aruch wrote: "A person may not stand in the reshut harabbim and join his hand to a mazchila, which is a long pipe placed along the length of the roof within three tefachim adjacent to the roof, to receive water from it, because since it is within three adjacent to the roof, it is considered like the roof. And it is forbidden—whether it is above ten or below ten. But it is permitted to catch from the air, even if his hand is within three of the mazchila. If a mazchila was protruding three from the roof, and likewise a standard pipe that protrudes three, he may join his hand to it and receive the water. And this is provided that they do not have four by four, and they are below ten. But if they have four by four, or even if they do not have four by four and they are above ten—it is forbidden." Thus far their words. The explanation of the matters is as follows:

For behold, the large gutter is placed along the wall adjacent to the roof, across the entire length of the roof, and it is adjacent to the roof by less than three tefachim, and its law is like that of the roof, and it is a reshut hayachid. And if one receives water from it—it is like one who carries out from a reshut hayachid to a reshut harabim or to a karmelit, in a place where there is no reshut harabim. And there is no difference whether the gutter is above ten or below ten, since the entire law of a roof applies to it; if so, even below ten it is a reshut hayachid. And this is when he actually joins his hand to the gutter and catches the water, but if he does not join his hand to it, but rather catches the water from the air—behold, he is not catching from a reshut hayachid but rather from the air, and if it is above ten—the air is a mekom patur, and if it is below ten—it is a reshut harabim, and he moves from a reshut harabim to a reshut harabim within four amot. And even when catching within three of the gutter, we do not say "anything less than three is considered as joined," and it would be like catching from the gutter itself, for in any event he is not carrying out from the actual reshut hayachid, and there is no liability for carrying out except when one actually carries out from a reshut hayachid. (Taz, subsection 1) And some forbid within less than three, and they hold that it is like catching from the roof itself. (Ibid. in the name of the Ri) And there is no difference in this regarding how large the gutter is, for regarding taking from it—it is forbidden even if it is less than ten high and four wide, since it has the law of the roof, and from the air it is permitted—even at a height of ten and a width of four. And so too the water dripping from the roof itself—it is permitted to catch it from the air, whether he catches it above ten or whether he catches it below ten, for the air that is above ten is a mekom patur, and that which is below is a reshut harabim or a karmelit. (The Gra"z) And only within less than three adjacent to the roof is it forbidden, according to the "some who forbid." (And the opinion of the "some who forbid" was not brought in the Tur and Shulchan Aruch, see there).

And this is all when the gutter is close to the roof within three [tefachim]. But if it is separated three tefachim from the roof, and similarly a pipe that extends three tefachim separated from the roof—the law of a roof does not apply to them at all, and they are considered as a domain unto themselves. Therefore, if they do not have four by four [tefachim]—it is a makom patur, and one may join his hand to it and take the water. But when they have four by four—it is a karmelit, and it is forbidden to receive from it if what is before him is a reshut harabim, but when what is before him is a karmelit, it is permitted. However, when is it permitted when it does not have four by four? When it is below ten [tefachim], but above ten—it is forbidden, for even though above ten is also a makom patur, nevertheless, above ten we decree lest it also have a width of four and one will carry from it to a reshut harabim, for then he would be carrying from a reshut hayachid to a reshut harabim. And it is possible that regarding a karmelit they did not decree in such a case, as it is like a decree upon a decree, and it requires further study, and one must deliberate on this.

And one should not ask: behold, even if it were ten high and four wide, it would not be a reshut hayachid because it is in the air, and it would be a "partition through which kids can pass"; for it can be said that since it is secondary to the roof, even though it is three distant—nevertheless, it is considered like the holes of a reshut hayachid, which are like a reshut hayachid. And regarding the holes of a reshut hayachid, "kids can pass" is not applicable, since it is secondary to the reshut hayachid, as I wrote in siman 345. And know that all this is according to the approach of Rashi and Tosafot and their version of the text in Eruvin (99b), see there; but the Rif and the Rambam in chapter 15, law 3, have a different version of the text, as will be explained with the help of Heaven.

This is the wording of the Rambam: "A person may stand in the reshut harabim and catch from the air the water that flows from a pipe or from a wall and drink, provided that he does not touch the pipe or the wall and catch from upon them. And if he touched—if the place he touched was above ten [tefachim] within three [tefachim] adjacent to the roof—this is forbidden, for he is found to be removing from upon the roof, which is a reshut hayachid. And similarly, if the pipe was four by four [tefachim], whether the pipe was within ten or whether it was above ten, and he caught water from it—this is forbidden. And why is he not liable? Because the water did not rest, but rather it is flowing and moving." Thus far his words. And it is found that the Rambam disagrees with the position of Rashi and Tosafot in three laws: The first—that according to the Rambam, one does not find a Torah prohibition in any manner, because the water does not rest. And the second—that below ten he may catch, even within three adjacent to the roof. And the third—that when it does not have four by four, even above ten he may catch. (Beit Yosef) And I wonder at our teacher, the Beit Yosef, that he did not bring his words at all in the Shulchan Aruch, and perhaps in our case where there is no reshut harabim, we can rely on the position of the Rif and the Rambam and fulfill all opinions, regarding our pipes that go across the width and length of the wall adjacent to the roof and the wall, which are attached to the roof and to the wall, but at its end a protrusion emerges. If the protrusion is three [tefachim] long—it is permitted to place his hand near it to receive the rainwater, and if it is not three long—he shall not place his hand except far from it, and his hand shall be in the air opposite the mouth of the pipe, and it will descend to his hand from the pipe to the air and from the air to his hand.