Siman 355

The sages taught in the Mishnah in Eruvin (87b): "A balcony that is above the water — one may not draw water from it on Shabbat, unless they made for it a partition ten tefachim high, whether from above or from below." And this is its explanation — for behold, seas and rivers are a karmelit, as was written in siman 345, and consequently it is forbidden to draw water from the river that passes by the wall of a house, where there is a window in the wall, and to bring the water into the house through the window, for he carries from a karmelit to a reshut hayachid. And there is a case where a balcony protrudes from the wall by the window, which is a board or a structure protruding over the surface of the water. And if it were not by a window, it would also be a karmelit (Magen Avraham, subsection 1) if it is four wide, and it would be permitted to carry from it to the water, and certainly if it is not four wide, for it would be a makom patur. However now, when it is by the window and they use it from the window — it is like the holes of a reshut hayachid, whose law is like a reshut hayachid, and it is forbidden to carry from within it to the water and from the water into it. And certainly if it is itself ten high and four wide, for it is itself a reshut hayachid. But in most cases, the balcony is not ten tefachim high, and it is not a reshut hayachid except because of the window.

And the sages said, how should one act to permit drawing water from it and bringing it into the house through the window? They commanded to make a partition ten high around the balcony, or to make a hole in the balcony four by four, for less than this is not effective, as any partition that is less than four tefachim in length and width is not called a partition. And the reason is simple, for a partition must be for a domain, and less than four is a makom patur, and it is common in the mouths of the poskim that there is no partition for less than four. Consequently, when they make such a partition ten high and four wide, it will all be a reshut hayachid, including the water corresponding to the partition, and it is permitted to carry from within it and to draw water through the balcony to the house through the window, for he is carrying from a reshut hayachid to a reshut hayachid.

And if you should ask: how can the water beneath the partition be a reshut hayachid, for any partitions that do not reach within three tefachim of the ground are considered a "partition through which kids can breach," and are not called a partition? And all the more so here, where the partition will be much higher than the water. However, in truth, regarding this matter the sages, of blessed memory, said (ibid. 86b): "It is a leniency that the sages applied to water, that a suspended partition permits," for since it is impossible to make a partition reaching the ground beneath the water, they were lenient that there need only be a partition of ten tefachim in height, even if the partition is suspended in the air. For since a karmelit is a rabbinic prohibition, they said it and they said it—they said to forbid carrying from a karmelit to a reshut hayachid, and they said to permit it by means of a suspended partition.

And this is what we learned in our Mishnah—"whether from above or from below," and Rashi explained—"actually above"—above the opening of the balcony, "and below"—below the opening of the balcony. And his reasoning is simple, for even if one makes it below, it is also far from the water, but we say "pull and bring down the partition," and we view it as if the partition reaches until the end of the water. If so, even if one makes it upon the balcony, what of it, for in such a case we can also say "pull and bring down the partition," since we have permitted a suspended partition in water. But the Rambam did not explain thus, rather "from above"—is beneath the balcony like Rashi's explanation of "below," "and below"—its explanation is below upon the water corresponding to the opening of the balcony, and we say "pull and bring up the partition" and as if the partitions rise until the balcony, and the Tur and the Shulchan Aruch wrote according to Rashi, see there.

And they wrote further, that since they made a partition—it is permitted also to pour from it, meaning to pour the waste water of the house into the hole of the balcony. And there is a greater novelty in this than in drawing water, for behold, the waste water that is poured with force, and falls into the water opposite the balcony, behold it will perforce go out further upon the surface of the water far from the location of the balcony, and nevertheless this is not like one who pours from a reshut hayachid to a karmelit, for behold he does not pour directly to the karmelit, but rather to a reshut hayachid and only through his force do they go out to the karmelit, and regarding his force in a karmelit they did not decree. (Shabbat 100b) And some wrote, that even though it is adjacent to a puddle, which is a reshut harabbim—it is permitted, since his intention is not to take out. (Magen Avraham subsection 4 and Eliyah Rabbah subsection 2 and Tosefet Shabbat subsection 4) And it is true that it implies thus from Rashi and Tosafot in Eruvin, (88a, s.v. "hatam" and Tosafot s.v. "hani") but it is not understood what it helps that his intention is not to take out, for behold it is a psik reisha. And of necessity one must say, that it is not a psik reisha, as it is possible that they will not go out. But from the words of the Rambam in chapter 15, law 15, who explained this law, it is explicitly explained like our words, for he wrote: "And just as they draw water, so they pour, for behold they are pouring onto the karmelit." Thus far his words. And the Maggid Mishneh wrote, because regarding his force in a karmelit they did not decree, and so wrote the Ritva in Eruvin there in the name of his teachers; see there.

And one must ask a great question regarding the essence of this law: how do we say that the water corresponding to the balcony is a reshut hayachid, for behold, this water under the balcony is connected to the water beyond the balcony, which is a karmelit, and they literally mix with one another without any distinction between them? Behold, the water under the balcony is breached in its fullness to a karmelit—that is, the water beyond the balcony—and it is breached in its fullness to a forbidden place. And the answer to this is that this too is among the leniencies that the sages applied to water: not to be concerned with their mixing nor with the interruption of their partition, and it is sufficient that we say "lower and extend the partition," and it is as if the partition descends until the abyss. And the reason for the matter appears to me to be because even if an iron partition were made down to the ground beneath the water, it would be impossible for the water not to enter beneath it. (Rashi, Eruvin 48a, s.v. "mechitzah") And according to this, it is entirely impossible to separate between water and water so that they do not mix with one another; therefore, a partition of ten tefachim is sufficient however it may be. (And see Tosafot, Eruvin 12b, s.v. "hacha"; and this is what we learned in the Tosefta of Eruvin at the end of chapter 6: "A balcony... unless they made for it a partition of ten tefachim below the water, even though the water floats above it, etc." see there, and it disagrees with the Mishnah. However, we brought it regarding the matter of the mixing of water, that we are not concerned, and this is a foundation in all the laws of water partitions).

And for those who travel on ships they were even more lenient, for the ship is a reshut hayachid, as it is ten high and four wide, and the sea and the river are a karmelit. And if we were to tell him to make a mechitza as with a balcony, it is impossible, for he cannot do there what he does in his house, and therefore the sages said (Shabbat 100b) - that he makes a place of four and fills, meaning that he attaches to the ship from the outside a board of four by four and makes a hole in it, and fills through there. And he does not need to make mechitzot for it, but rather we say "bend the sides and pull down the mechitza," meaning that we view it as if the sides were bent into mechitzot, and also "pull down." This is the wording of the Rambam at the end of chapter fifteen: "A person may not fill water from the sea while he is inside the ship, unless he made a place of four by four extending from the ship over the sea." Thus far his words. Our teacher, the Beit Yosef, added the phrasing of "bend and pull down," see there.

In my humble opinion, this phrasing is not precise. For if we must say "bend and extend," we would require the board to be large enough in length and width to be fit for bending it on all sides ten tefachim for partitions and four by four in the middle, and it would need to be twenty-four tefachim by twenty-four tefachim—twenty tefachim for two sides regarding "bend," and four in the middle. Indeed, it is stated so in Eruvin there, regarding that of the balcony, where Rabbi Hananya ben Akavia disagrees and holds that we do not require partitions, but rather we say "bend and extend." And he says: A balcony that has four amot by four amot—one carves in it four by four and fills, see there. And four amot are twenty-four tefachim, yet here we only require a board of four tefachim by four tefachim. Indeed, none of the poskim mentioned the term "bend" in this regard, because the sages were lenient in this, and this is what we said, that the term "bend" is not precise, and it is not meant literally.

Indeed, this is the approach of the Rambam, but the Tur wrote: "And so too one who travels in a ship, he cannot fill [water] unless he makes a board of four by four [handbreadths], and surrounds it with partitions and makes a hole in it and fills through there." Thus far his words. And this is the way of Rashi and Tosafot there in Shabbat, except that Rashi did not require partitions of ten [handbreadths]. This is the wording of Rashi there: "A place of four — a space of four surrounded by small partitions, and a suspended partition permits in water." Thus far his words. It is proven from his wording that small partitions are sufficient, such that there is only a reminder of partitions. And in this manner the Ran wrote there in the name of the Gaon, and this is his wording: "That this place of four, this means that they carve around the carving like a partition, like a basket whose bottom was removed, and they fill through that hole, for we say 'pull and bring down' regarding these partitions, even though they are not ten." Thus far his words. And our teachers, the authors of the Tosafot, wrote there that it requires partitions of ten, see there, and so wrote the Rosh there, and this is the opinion of the Tur. And it is a wonder regarding our teachers, the authors of the Shulchan Aruch, that they did not bring these opinions at all, for granted that this is a rabbinic matter, nevertheless, since the majority of our teachers disagree with the Rambam, they should have ruled like them, or at the very least brought their opinion, and it requires further study.

All this is if the ship travels in depth until there does not remain from the water to the top of the side ten tefachim, which is the airspace of a karmelit. But if there remain ten tefachim, and it turns out that the bucket will travel above ten, which is a makom patur—as it has already been explained that the airspace of a karmelit does not occupy more than ten—there is no need by the letter of the law for any remedy, for he is filling from a karmelit to a reshut hayachid via a makom patur. However, above in siman 346, section 8, we explained that even when standing on a makom patur, there are those who hold that it is forbidden to move from reshut to reshut, even regarding rabbinic authorities, see there; and all the more so if he stands in the ship and moves from the sea, which is a karmelit, to the ship, which is a reshut hayachid. And this is what the sages said in Shabbat there—that he extends a projection of any size and fills, meaning that the projection serves as a mere recognition, and through this they permitted him to fill from the water to the ship via a makom patur, even not in the place of the projection. And they were lenient in this because of the hardship, for he is not in his home. And our teacher, the Beit Yosef, wrote: "He extends a projection of any size, and makes a hole in it and fills through there." Thus far his words. They took issue with him, for it is clear that it is permitted to draw water throughout the entire ship (Taz sub-section 5 and Bach, and so wrote the Magen Avraham in sub-section 4 and Eliyah Rabbah sub-section 6 and Tosefot Shabbat sub-section 7), and even if he fills the bucket and carries it over the side of the ship to the top, and it turns out that it is like placing it in a makom patur, which is a complete permission, nevertheless we require the recognition of a projection. (And this is the intention of Rashi there, and see Magen Avraham sub-section 7 and examine it closely).

And regarding wastewater—one may pour it onto the walls of the ship from the outside and they descend into the sea, for he is pouring onto the ship and it is completely permitted, and that which descends into the sea is from his force, and it has already been explained that they did not decree against his force in a karmelit. And likewise, one may throw bones and peels onto the wall of the ship from the outside, for the reason that has been explained. But to throw directly into the sea is forbidden, even by way of above ten, for it is forbidden to throw from a reshut hayachid to a karmelit by way of a makom patur. And know, that a small ship whose partitions are not ten tefachim high is like a karmelit when it is four wide, and it is permitted to carry directly from within it to the sea or to the river and from them into it, since both are a karmelit, and specifically within four amot according to the law of a karmelit, and it is simple. (See Magen Avraham, subsection 6)

Our teacher, the Rema, wrote in section 1: "Two ships adjacent to one another—it is forbidden to move [objects] from one to the other, unless they are tied to one another, or they are ten [tefachim] higher than the water. And they must establish an eruv together if they belong to two people." Thus far his words. The explanation of his words appears to me as follows: behold, in the Mishnah in Shabbat (100b) it is taught: "Ships tied to one another—one may move [objects] from one to the other. If they are not tied, even though they are fastened—one may not move [objects] from one to the other." And the Gemara concludes that this pertains to the matter of eruv, for when they are tied, an eruv is effective, and if they become detached—they are forbidden because the eruv is nullified; this is when the ships do not belong to one person. And the Rambam wrote this law regarding the matter of eruv at the end of chapter 3 of Eruvin, see there, and it implies that when they belong to one person, there is no practical difference at all in this law. (And so it is explicitly stated by Magen Avraham, subsection 9). If so, this law would not belong here at all, and for this our teacher, the Rema, came to clarify that even if they belong to one person—it is forbidden to move [objects] from one to the other if they are not tied, even though he is moving from a reshut hayachid to a reshut hayachid. And the reason is that perhaps the object will fall into the water, and he will move it from a reshut hayachid to a karmelit, and he will come to carry it. (Tosafot ibid. 101b, s.v. 'Peshita'). And also, because they are prone to move away from each other, and the airspace of a karmelit intervenes between them. (Eliyah Rabbah, subsection 9 in the name of Rabbeinu Yerucham and Olat Shabbat). And this is what our teacher, the Rema, says—'Two ships... it is forbidden to move etc.' meaning, even if they belong to one person, unless they are tied, or they are above ten [tefachim], for then he moves [objects] via a makom patur. And afterward he says that they require an eruv if they belong to two people, and the eruv is only effective when they are tied. (And if they became detached on Shabbat, whether we say 'since it was permitted, it remains permitted'—there is a dispute as the Magen Avraham wrote there, and it will be explained in siman 374 with the help of Heaven; and even when tied, there must not be four tefachim between them).

It is stated in Shabbat (101a): "Those small boats of Meshan" — small boats that are narrow at the bottom like the edge of a knife, one may not carry in them except within four cubits. That is to say, even if they are ten handbreadths high and their width is four at the top, since they are narrow at the bottom, their partitions are not considered partitions and their law is like a karmelit. And we only said this if there is not a width of four within less than three, meaning that until it rises three in height, there is not yet a width of four. But if there is a width of four within less than three — that until it rises three handbreadths there is a width of four there — we have no concern with it, and it is a reshut hayachid. And if he filled them with reeds and willow branches — we have no concern with it, meaning, if he placed reeds and thin willows in the narrow place inside and nullified them there, we do not pay attention to the narrowness, even if it is three handbreadths high or more, and we calculate from the wide part. And if there are ten handbreadths until the top — it is a reshut hayachid, and this is according to the commentary of Rashi. The Tosafot hesitate regarding this, for in any case, if because of the narrowness the law of reshut hayachid is nullified from it, if so, the status of karmelit should also be nullified from it, for there is no karmelit less than four, and it should be a makom patur; and the Rashba likewise raised a difficulty, see there. And the Rif, the Rambam, the Rosh, the Tur, and the Shulchan Aruch did not bring this at all; learn from this that they do not hold like Rashi but like Tosafot, that the interpretation is boats made with many hollows and filled with water, and naked people sit in them, see there, and this is not common among us, and therefore they had no need to bring them. But according to the commentary of Rashi, it is very common among us, for the small boats that stand on the banks of the rivers are made like this, very narrow at the bottom. Therefore, if they are not ten high where there is a width of four — it is a karmelit. And if they are ten high where their width is four — it is a reshut hayachid, and we do not pay attention to the narrowness. (And I wonder at the Gr"z in subsection 7 who wrote this law according to the commentary of Rashi, for the Tosafot and all the poskim disagree on this, and the halacha follows the many, especially in a rabbinic matter, see there.)

A beit hakise that stands over the water and is a reshut hayachid, and when one goes there for his needs the waste falls directly from the reshut hayachid into the karmelit, the partitions of the beit hakise itself are not effective for this matter. For even though partitions do not require being made for their specific purpose, nevertheless here, where they are not complete partitions but rather suspended ones—the sages only showed leniency regarding partitions made for the purpose of this permission. Therefore, they should make partitions of ten spans around the beit hakise for the purpose of this permission, and the water corresponding to it is also considered a reshut hayachid, and it is permitted to go there for one's needs. And if one made a board or a reed within less than three spans of the hole, so that the waste falls upon it before it falls into the water—no permission is needed, for the board is like the holes of a reshut hayachid, and that which falls from there to the water is his force, and regarding his force in a karmelit they did not decree, as I have written. And the same law applies if it is made in such a manner that the waste falls upon the wall and from there to the water—it is also permitted for the reason that has been explained. And regarding the permission of the board that we wrote, even if the board broke on Shabbat—it is permitted, because great is human dignity which overrides a rabbinic prohibition, as I have written in siman 312 regarding the carrying of stones for wiping, see there.

In ancient times, the beit kissiot protruded outside the city wall, and there was a large trench around the city greater than a beit satayim, which is a karmelit, and the waste would fall there. And behold, it is not only that those partitions of the beit kissa itself are not effective, for even in water they are not effective as I have written, but even to make hanging partitions for the sake of a beit kissa is also not effective, for a hanging partition was only permitted in water; therefore, it is forbidden to relieve oneself there on Shabbat. However, the permission of the board that we wrote is effective in this case as well, for in any karmelit they did not decree regarding his direct force. And if the beit kissa is higher than ten—some say that nothing is required, for he is moving from a reshut hayachid to a karmelit via a makom patur, and in siman 346 there is a dispute regarding this. And some say further, that if there was waste there from while it was still day—it is entirely permitted when he relieves himself upon the waste, for it is a makom patur, as the masses do not tread upon it, and even though it falls afterward into the water—it is his direct force as I have written. But in siman 345 it was explained that some hold that there is no makom patur in a karmelit, and certainly if the waste is within the partitions of the beit kissa, which is a reshut hayachid—all agree that there is no makom patur in a reshut hayachid as I have written there; therefore, this remedy is rejected.

And since there is no exempt place within a private domain, therefore a lavatory standing between two houses belonging to two people who did not establish an eruv together—it is forbidden to relieve oneself there, as its law is like a karmelit, and one must perform there the rectification of the board that has been explained, for then if the waste falls upon the ground, it is his force in a karmelit and is permitted, for a courtyard that is not joined by an eruv is no better than a karmelit. And all this is specifically ab initio, but ex post facto—it is permitted to relieve oneself there, for great is human dignity, as I have written. And those who travel on ships are accustomed to perform their needs from the oar to the sea or to the river, for since the oar is not ten handbreadths high, even though it is four wide—it is nothing other than a karmelit, and he is carrying from a karmelit to a karmelit, and we hold that it is permitted to carry from this type of karmelit to another type of karmelit, unlike the Yerushalmi in chapter 11 of Shabbat, and as I have written in siman 346, section 9; see there.

Our teacher, the Beit Yosef, wrote in section 4: "Water that is not ten tefachim deep—it does not have the law of water to permit pouring into it by means of a suspended partition, and all the more so if the water dried up, even though it had been ten deep there." Thus far his words. The great Acharonim disagree with him based on the words of the Tosafot in Shabbat (100b, s.v. 'oseh'), where it is explained that it is effective; see there. (Bach and Magen Avraham, subsection 16). And in my humble opinion, the words of our teacher, the Beit Yosef, are correct, for the Tosafot only wrote regarding a river or the sea, for there it is certainly effective even in a place that is not ten deep, as it is impossible to separate one from the other, and behold, it will immediately be ten deep in the manner of rivers and seas. But our teacher, the Beit Yosef, intended his words for a mere marsh, for since there are not ten here, why should we permit a suspended partition, for is he not able to stand it until the ground, which is not the case in seas and rivers. (And with this, the proof of the Magen Avraham from that case of a ledge is also removed; see there and examine carefully).

Two balconies from which they draw water—if they are one above the other, even if they are very high from one another, if they are exactly aligned one against the other, in a manner that the residents of the upper one cannot draw water unless the bucket enters through the lower one, if both made partitions of ten tefachim—behold both are a reshut hayachid, and they ascend to the firmament according to the law of a reshut hayachid, and both are forbidden to draw water unless they made an eruv, for each one prohibits the other. The lower one prohibits the upper one, for behold its domain ascends to the firmament, and enters into the domain of the upper one. And the upper one prohibits it, since it has use through it against its will, for it has control there. Therefore, if they are shifted from one another by the width of the wall more than four tefachim—they have no business with one another, and each one uses his own. And even though the upper one draws through the lower one, nevertheless since the use is by means of throwing the bucket through an airspace of four tefachim, which is use by means of difficulty, and in airspace a person does not prohibit his fellow through an airspace of four tefachim, because it is not a convenient use, and it is not considered as having control of a domain in the lower one, and the lower one certainly has no connection with the upper one.

And if they are drawn away from each other slightly, such that there is not a continuation of four tefachim, there is no practical difference in the height of one from the other, whether there are ten tefachim from this one to that one or not. If each one made a mechitzah for himself—one does not prohibit the other, since each one can use his own without that of his fellow. Therefore, even if he uses that of his fellow it is nothing, for even on a weekday he can protest against him, and all the more so on Shabbat, and therefore even if he does not protest we have no concern with it. And that which we were required to give in the previous section, the reason that a person does not prohibit his fellow via the air, is merely as a preference, and it is not necessary for this; for whenever each one made for himself, and they are not literally one beneath the other, they have no connection to one another when each one made for himself.

But if they made a mechitzah in the upper one in partnership, and in the lower one they did not make one at all—both are forbidden to fill through the hole in it until they make an eruv, since the mechitzah belongs to both of them, and they are within the span of four tefachim of one another, which forbids through such an airspace. And even though in height, the upper one is higher than the lower one by ten tefachim, and the lower one must use it there by means of throwing upward and lowering downward as is understood, and it is not such a convenient usage, nevertheless it forbids as will be explained in siman 375, for only through an airspace of four tefachim it does not forbid, but by means of throwing and lowering it forbids.

And in the lower one—it is obvious that they are forbidden, since it has no partitions. And all the more so if they made a partition for the lower one from that which belongs to both of them, over which the domain of the upper one also has authority, for his use is only by way of lowering, which is a convenient use. And this is when they made it in the lower one and not in the upper one; but if they also made it in the upper one, even when both balconies were made from a partnership, nevertheless, since each one has a place to use his own—he does not have the power to forbid his fellow. And that which they made in partnership was not in order that he should forbid him, but rather to ease the expense, for they do it more cheaply for two than for one, and each one uses his own. And all the more so if each one made his own, for they have no connection to one another, as I have written (all this is from the Levush, see there).