Siman 357

We learned in a Mishnah in Eruvin (88a): "A courtyard that is smaller than four cubits—one may not pour water into it on Shabbat, unless they made for it a pit that holds two se'ah from the hole and below, whether from the outside or from the inside. However, from the outside one must cover it, and from the inside one does not need to cover it." The explanation of the matter—for this is certainly pouring water in the courtyard, and that the water should exit to the reshut harabim is a complete prohibition, since they exit to the reshut harabim by way of his force. And specifically his force in a karmelit they did not decree, but in a reshut harabim—it is prohibited, and it is possible that it is even prohibited by the Torah, when he intends for this, or when it is necessary that they exit to the reshut harabim, for his force is considered like his body. (Tosafot Shabbat 99b, starting with "Or") And according to this, in a small courtyard adjacent to the reshut harabim, when he pours into the courtyard and the water exits to the reshut harabim—he violates a Torah prohibition, and for this they found a remedy as will be explained.

And the sages said, that every day a person pours in his house two se'ah of water for washing and for other needs, and this is the water that enters a vessel that is half a cubit by half a cubit with a height of three-fifths of a cubit. And they further said, that a courtyard that is four cubits by four cubits has enough space for this measure of water to be absorbed within it, and they will not need to go out to the public domain. And if perhaps they occasionally go out, it is an unintentional act, and does not require any rectification at all. However, a courtyard that is less than this measure—they required him to make a pit that holds this measure, so that the water will enter into it. And the pit is a private domain, not only if he makes it in the courtyard, but even if he makes it outside the courtyard adjacent to the courtyard. And the dimensions of the pit that we wrote make it a karmelit, as it is four wide and not ten high, and for this they required covering it with planks or with another thing, and it is considered like the holes of a private domain even if it is ten deep, and it is poured from a private domain to a private domain. (The Tur and the Shulchan Aruch wrote that it is a makom patur and so wrote Rashi, and see Magen Avraham and Turei Zahav subsection 1. And I do not know, for it is four wide and is a karmelit, and like our words wrote the Ritva. And the Rambam in chapter 15 wrote that the covering is so that the people of the public domain do not see it, and his intention is also to distinguish it from the public domain, as he wrote in the Commentary on the Mishnah, see there. That is to say, that if we judge it as standing in the public domain, it is a karmelit. And the Ri also wrote that it is a karmelit, and when it is covered it is judged like the holes of a private domain, and it turns out that they do not disagree, and see Beit Yosef, and what appears to my humble opinion I have written, and examine it closely).

And since he makes a hole, he may pour into the courtyard whatever he desires, and even if it was filled from the eve of Shabbat—he may pour into it. For since he has a pit, it turns out that at the time of his throwing, the water will first come to rest in the pit before they go out to the public domain, and you will never find that there is a Torah prohibition. And since it is an uncommon matter that it should be full from the eve of Shabbat—for on the eve of Shabbat he may pour them into the public domain, and even when it is full it is possible that they were absorbed in their place, and he can also pour a little in the courtyard and a little in the pit—the sages did not decree, and they permitted pouring his wastewater into the pit even though it was filled from the eve of Shabbat. (Beit Yosef in the name of the Ri). But when it does not contain two se'ah—it is forbidden to pour into it even a little, lest he pour a lot. And that which was explained that a courtyard of four by four is permitted, it is not specifically when it is square, for the same law applies if it is long and narrow, since in the area there is the calculation of four by four, behold the water is absorbed there. And they further said in the Gemara, that the courtyard and the portico join together to four cubits, so that if in one of them there are not four cubits, and only by joining them together—it is also permitted, for there is a place where the water may be absorbed. And a portico is a place that has three walls and the fourth is fully breached, and it goes together with the courtyard, and they use it there for unloading burdens. And so too two balconies that are in front of two upper stories, and upon them is soft plaster that is fit for water to be absorbed in them, if they are adjacent to one another within four handbreadths—they join together. (See Magen Avraham subsection 2 who wrote regarding the reason that if it was filled from the eve of Shabbat he may pour, since they instituted a reminder for Shabbat so that he should not forget and cast them into the public domain, it is permitted. Thus far his words. And it is very astonishing, for the Tur and the Shulchan Aruch and also the Rambam in chapter 15 ruled like Rava, that the prohibition is because the water does not finish, behold this is not because of a reminder that he should not cast into the public domain but from the essential law. And his words are taken from our teacher Yehonatan who wrote them afterwards, and previously wrote the reason we explained. And this is fine according to Rava, whom we follow, and also what the Magen Avraham wrote in subsection 1 requires further study, see there and examine it closely).

And know, that the Tur and the Shulchan Aruch wrote, that in the rainy season even in any courtyard of any size one may pour repeatedly and is not restrained, and it is permitted to pour therein all that he desires, and so wrote the Rosh. And I do not understand these matters, for it is true that in the Gemara it is stated so, and it explains the reason—because he desires that the water be absorbed in its place, for the spoiling of his courtyard is not applicable in the rainy season, as it is entirely filthy, and regarding the concern—lest they say the pipe of so-and-so is streaming water on Shabbat, all pipes generally stream in the rainy season, see there, and this is clear according to the reason of sprinkling. But according to that which we maintain—because the water is not absorbed in less than four amot, what distinction is there between the summer months and the rainy season. And for this reason there is also a distinction, but in a different manner, as Rava says there—in the rainy season a pit holds two se'ah etc., and as Abaye concludes there. But nevertheless, a pit is required even in the rainy season, and this is the opinion of the Rambam in chapter 15, law 19.

This is the wording of the Rambam: "If the pit was less than two se'ah - one may pour into it its full capacity. If it held two se'ah - one may pour into it even sixty se'ah, and even though the water will increase and overflow from the surface of the water to the outside. In what case is this said? In the rainy season... but in the summer season, if it held two se'ah - one may only place two se'ah into it. If it was less than two se'ah - one may not pour into it at all." Thus far his words. But the Tur and the Shulchan Aruch, who did not require a hole at all during the rainy season and wrote the reason that the water is absorbed - it requires further study.

All these matters apply to courtyards adjacent to a reshut ha-rabim. However, in courtyards adjacent to a karmelit, even if they are very small, and even during the summer months—nothing is required, for he pours into the courtyard, and that which goes out to the karmelit is considered "his force" in a karmelit, and the rabbis did not decree [against this], as has been written several times. And if you should ask, if so, regarding the uka that is in a reshut ha-rabim adjacent to a courtyard, why did we need to cover it, for it is a karmelit as has been written, and if so, he should be able to pour into the courtyard and it will descend there, for "his force" in a karmelit is permitted. But this is no question; first, for there we permitted pouring into the uka itself. (And it is also possible to say, that this is what the Rambam wrote, "so that the people of the reshut ha-rabim do not see it," as has been written in section 2, and this is merely for a reminder. And the reason that the Taz wrote in subsection 5 was not clarified to me, and delve into this.)

In their days, they were accustomed to making a trench in the reshut harabim near the courtyards, and they called this a biv, and it was covered. The wastewater of the courtyards was poured there, and the water would exit through the biv to the reshut harabim or to a karmelit. Therefore, any biv that is covered for four amot along the reshut harabim, and then it is a distinct reshut for itself, and it has enough for four amot by four amot, for in this there is the measure for the absorption of the water within it, as has been explained—it is permitted to pour even at the opening of the biv, even in the summer months, even though the water exits immediately from there to the reshut harabim, since there is a place for the water to be absorbed, provided that it is not a pipe of wood which is not fit to absorb, but rather of earth. And they were even more lenient, that even if it is made of stones like a floor—they absorb and it is permitted. And it seems to me, specifically like a floor, where there is a small space between layer and layer and there the water will be finished, but a pipe of stones certainly does not absorb and is forbidden.

In what case are these matters stated? When the water was exiting into the reshut harabim. But if it was exiting into a karmelit, it is permitted in any manner to pour, even onto the opening of the pipe, and even in the summer months, for they did not decree regarding "his force" in a karmelit. And know, that according to the opinion of the Rambam there, when it exits into the reshut harabim, then even if the pipe is one hundred amot long and is made of earth, nevertheless it is forbidden to pour onto its opening in the summer months; rather, he pours outside the pipe and they descend into the pipe, for when he pours onto its opening, it appears clearly as if he is pouring into the reshut harabim, and it will also lead to suspicion. And know, that there are those who say that regarding the laws in this siman, there is no difference between a reshut harabim and a karmelit, for even though "his force" in a karmelit is permitted, nevertheless a karmelit that is within the city itself—since we maintain that we do not have a reshut harabim—is swapped for a reshut harabim itself, such as a city that is certainly a reshut harabim. Therefore, in a karmelit that is outside the city, or a courtyard that is not merged with an eruv, or where the water goes to a river like in our pipes in the large cities—it is permitted. And so too if the city is surrounded by a wall, even though it does not have an eruv, it is similar to a courtyard that is not merged with an eruv. And so too if the pipes pass through a makom patur, such as above ten tefachim, and the water goes to a karmelit—it is also permitted. And in the large cities in our days, where there are pipes beneath the ground that go from the river outside the city to every house and courtyard, which they call "provodin," and in every house the pipe is extended and made with a mechanism they call a "kran," from which they take the water and therein they pour the water—it is obvious that there is no concern in this, for the excavations beneath the ground are very high and very wide, and he is carrying from reshut hayachid to reshut hayachid, and the water goes to the river, and it is "his force" in a karmelit and is permitted. (And that which they did not decree on a ship in a karmelit that is within the city is because a ship does not travel in a reshut harabim; so wrote the Taz in subsection 9. And according to this, it works out well also regarding a balcony, and see Magen Avraham subsection 13, and there is no need for this, see there and examine it carefully).