Siman 362

Previously, at the beginning of siman 358, it was explained that an enclosure that is not for a dwelling—for example, if it was enclosed and subsequently opened—it is not permitted to carry within it more than a beit satayim. Since the enclosure was not enclosed for a dwelling, it is similar to a valley when it is larger than a beit satayim. Furthermore, there are partitions in such cases that are not for the sake of a complete dwelling, and it is forbidden when it is more than a beit satayim. And thus the sages, of blessed memory, said (Eruvin 26a): "the partition of architects"—builders who make a partition for shade around them when they build in the sun—"since it is made for privacy"—to conceal oneself from the sun—"it is not a dwelling; and likewise a partition made for storage"—not to dwell there but to guard what they place there (Rashi)—it is not called a partition.

This is what the Tur and the Shulchan Aruch wrote in section 1: Any mechitzah that was not made to dwell within it, but rather for privacy, or to guard what they place within it, or to sit in it in order to guard the fields—it is a mechitzah for carrying what is within it, but it is not a mechitzah to make what is within it considered enclosed for a dwelling, if it is more than a beit satayim. Therefore, a tree whose branches hang down, if they are not three high from the ground, and their base (of the branches) at the place where they are connected to the tree is ten high (and four wide, and the same law applies if they are not four at their top but at the middle they begin to be four, and from there it is ten until the bottom)—it is considered a mechitzah, and it is permitted to carry in all of it. This is provided that he fills the air between the branches with wood or straw, (so that the wind does not move it) and he ties the branches so that the wind does not move them, for any mechitzah that cannot stand in a common wind is not a mechitzah (at all). And specifically up to a beit satayim, but more than a beit satayim—no, even if he planted it for this purpose, since it is not made to dwell within it but rather to take shelter in its shade to guard the fields. Thus far their words. And it is explained from their words that a mechitzah that cannot stand in the wind is not a mechitzah at all, and it is as if it does not exist. However, mechitzot for privacy or for guarding are complete mechitzot, and only regarding the matter of carrying in more than a beit satayim is it prohibited, for they are like that which is not enclosed for a dwelling.

The words of the Rambam in this matter are very wondrous, for he wrote in chapter 16, law 15: "Any partition that cannot stand in a common wind is not a partition. And any partition that is not made for permanence is not a partition. And any partition that is made only for modesty is not a partition. And any partition that does not have a height of ten tefachim or more is not a complete partition." Thus far his words. And behold, his version in the Gemara was "not made for permanence," meaning that it is not made to rest in it and to dwell in it, and the intent is according to our version "made for permanence." (Maggid Mishneh) But from his words it is clear that for permanence and for modesty they are not partitions at all, just as one that cannot stand in a common wind, and just as one that does not have a height of ten tefachim. (Ibid.) And this is a great wonder; for are such partitions inferior to a column ten high and four wide or a mound ten high and four wide, which certainly is not a place of dwelling, and would they because of this not be partitions?

And it is true that the wording of the Gemara implies like the Rambam, for the wording of the Gemara is as follows: "The partition of architects—is not called a partition; a partition made for resting—is not called a partition." And if it were according to the words of our teachers, that the intention concerns the matter of more than two beit sataim, what kind of wording is "is not called a partition"? Therefore, it seems to me that the Rambam explains that these partitions are only made for a short time and afterwards they demolish them, and so wrote Rashi regarding the partition of architects, and this is his wording: "Since it is for privacy and tomorrow they will demolish it" see there, and so the Rambam explains regarding a partition for resting. And according to his version "that is not made for resting" as I wrote, this is its explanation: that it is not made to remain there always but rather temporarily, and tomorrow they will demolish it and it is a temporary partition, and we require permanent partitions. Therefore, they are not similar to a pillar or a mound, for they are enduring; and therefore their law is like a partition that cannot withstand the wind, which is also temporary. And that which he wrote regarding one that is not ten high the wording "that it is not a complete partition," is because it is a partition for a karmelit when it is four wide, or for a mekom patur when it is not four wide (and so it is explained in the Maggid Mishneh).

And it appears in my humble opinion to bring a proof for the Rambam from the Yerushalmi Shabbat at the beginning of the chapter "HaBoneh" (Chapter 12, Halacha 1), which says there: "What building was there in the Mishkan? That they would place planks upon sockets." And it asks, "Was it not temporary, and why is it considered building?" And Rabbi Yose answers, since they would travel and encamp according to the Word, it is as if it were forever. And Rabbi Yose bar Bun answers, that since the Holy One, Blessed be He, promised them that He would bring them into the Land, it was as if forever; see there. Behold, even regarding the labor of building, the Yerushalmi says that anything which is temporary is not considered building, and certainly it should not have the status of a mechitzah. And even according to the Yerushalmi in "Klal Gadol" at the end of Halacha 2, where there is another version, that Rabbi Yose bar Bun rejects the words of Rabbi Yose, and says since the Holy One, Blessed be He, promised them to bring them into the Land—it is a temporary building. And it concludes, this implies a temporary building is considered building; see there, and so we ruled above in siman 313, section 1. Nevertheless, since the Yerushalmi wondered regarding the labor of building, and Rabbi Yose and Rabbi Yose disagreed about this, it follows that even if a temporary structure is considered building and one is liable on account of boneh, however, the status of a mechitzah certainly cannot be given to it, for we do not create a distant dispute. And it is possible that all the poskim would agree with the Rambam in this; however, in any event, the words of the Rambam have a complete foundation.

A mound that is five tefachim high and one completed it to ten, such that he made upon it a partition five high—it is considered a partition for carrying and for every matter; so ruled the Tur and Shulchan Aruch section 2, and so ruled the Rambam in chapter 15, and it is an explicit Gemara in Eruvin (93b). And according to this, two courtyards, one five tefachim higher than the other, and the upper one made a partition five tefachim high—it is considered a partition for the lower one and for the upper one. (See there, for it says that according to Rav Chisda it is a partition only for the lower one, and consequently, since we hold not like Rav Chisda—it is a partition for both of them. And the Tosafot who wrote there: "And it requires further study if there is a mound in the reshut harabim five high and four wide and upon it they made a partition of five, whether one who throws from the reshut harabim into it is liable and from within it to the reshut harabim is exempt" thus far his words, this is only according to Rav Chisda and not according to the halacha, and so wrote the Ritva there, that the entire give-and-take of the Gemara regarding the upper one is not according to the conclusion of the Shas, see there and examine carefully).

A partition that stands on its own, which was not made by human hands, is a partition. Therefore, any mountain, hill, or mound is a partition, even though it was not made for the purpose of a partition, for this is not a mitzvah that requires intent. And behold, even regarding a lechi, which is an enactment of the sages, we hold that a lechi that stands on its own is valid; certainly this is so regarding a partition. And even though regarding a lechi we require that they rely upon it on the eve of Shabbat, and otherwise it is not a lechi as will be explained in siman 363, nevertheless regarding a partition even this is not required, for a lechi, because it is an enactment of the sages to permit carrying there, therefore requires reliance from the eve of Shabbat, but not so regarding a Torah partition. And certainly a partition that a non-Jew made on Shabbat is a partition, and even an Israelite who transgressed and made a partition on Shabbat—it is a partition. However, this is when he did so unintentionally—it is permitted even to carry therein; but a transgressor who did so intentionally, even though it is a partition according to the Torah and one who throws from within it to the public domain or from the public domain into it is liable, nevertheless regarding the matter of carrying, the sages penalized him such that it is forbidden to carry therein. And even another Israelite is forbidden to carry therein more than four amot, just as it is with one who cooks on Shabbat intentionally, where it is forbidden even for others to eat on Shabbat as is written at the beginning of siman 318, and so too it is here. (And the poskim did not explain this, but it is obvious that it is so).

And know, that the position of our teacher Tam in the Tosafot (Shabbat 101a, s.v. "Ki") is that sometimes even when done intentionally, it is considered a mechitzah even for the purpose of carrying within it. However, our teachers disagreed regarding his intent. The Ran, of blessed memory, explained in the chapter HaZorek that this is specifically when there was never a mechitzah here. But if there had been a mechitzah, and it was destroyed on Shabbat and he made it on Shabbat—it is a mechitzah even for carrying, even if done intentionally. But the Rosh, of blessed memory, explained there that certainly regarding a mechitzah according to Torah law, it is not permitted to carry, even if it existed previously. And only regarding rabbinic mechitzot, such as two chatzerot that have a mechitzah between them, and each chatzer made an eruv for itself and the mechitzah between them was destroyed on Shabbat, and they prohibit one another, and in this case when they erected the mechitzah on Shabbat—even if done intentionally, they return to their first state of permissibility, and each chatzer is permitted to carry within it and from it to the houses; see there.

This is the wording of the Tur: "But if done intentionally, it is a partition for stringency... and these words apply when there was no partition there initially. But if there was one there, and it was removed and then returned and made, even if intentionally—it returns to its initial permitted status. For example, two or three people who surrounded themselves with mats in a reshut hayachid, and also separated between themselves with mats and made an eruv together and permitted carrying from one to the other, and the mats were rolled up on Shabbat—they become prohibited. If they were spread out again, even if intentionally—they return to their initial permitted status." Thus far his words. And our teacher, the Beit Yosef, wrote with this same wording in the Shulchan Aruch, section 3. And it is not understood at all, for if they made an eruv together, why was it necessary to say that they also separated between themselves with mats? And our teacher, the Beit Yosef, in his great book, understood that the opinion of the Tur is like the opinion of the Ran, that even with partitions of Torah status they return to their initial permitted status, and this is his intention in the Shulchan Aruch as well, that the outer mats were rolled up and it became a reshut harabim, and afterwards they were spread out and it became a reshut hayachid; see there. And it is a great wonder, for if so, why must he depict that they made an eruv, what do we care about the eruv? And briefly, he should have said that the partitions between a reshut hayachid and a reshut harabim fell, and were subsequently re-erected.

And there is one who explained that the intention of the Tur is like the Rosh, that specifically with rabbinic partitions they returned to their original permitted status. And he explains that the mats are in a reshut hayachid, and even when they were rolled up, the outer partitions remained, and therefore they returned to their original permitted status (Bach). And behold, besides that which we have already questioned—why does he need the mats between them, since they made an eruv together—it is further difficult, for according to this, why does he need to lengthen his words? Could he not have illustrated briefly when a partition fell between one courtyard and another courtyard when each made an eruv for itself, and when it fell they became forbidden, and if it was re-established, they returned to their original permitted status? (The Derishah also lengthened his words to settle the words of the Tur with many forced explanations, that what he wrote "and they made an eruv together" is a dividing "vav," and he illustrated two manners, see there, and they are forced and puzzling. And the Taz in subsection 1 only rejected the words of the Bach and also the words of the Beit Yosef, who wanted to say that the intention of the Rosh is like the Ran, but the words of the Tur he did not clarify, see there. And the Magen Avraham in subsection 1 wanted to say that the Rosh and the Ran do not disagree, but rather the Rosh is dealing with a case where the partitions fell before Shabbat, for then specifically with rabbinic partitions they returned to their original permitted status, and the Ran is dealing with a case where they fell on Shabbat, for then even with Torah partitions they returned to their original permitted status, see there. And it is very puzzling, for the Rosh wrote that each made an eruv for itself based on the mats between them, and if so, they were standing at the onset of Shabbat and fell on Shabbat, see there, and regarding a Torah partition even in such a case it is forbidden, and so it is explicit in Tosafot there. And what the Magen Avraham wrote, why the Rosh does not explain that Rav Nachman stands on the latter clause of the Baraita etc., is very puzzling, for the Rosh explained his reason in this, that if so, he should have brought this of Rav Nachman on the primary Baraita that is taught in Eruvin. And the Tosefot Shabbat in subsection 8 already challenged him, and the Machatzit HaShekel lengthened his words and there is not enough in them for a resolution, see there).

And behold, regarding the law, we certainly hold stringently like the opinion of the Rosh, that only regarding rabbinic mechitzot do they return to their initial permitted status when done intentionally, for the Rambam in chapter 16 stated his words entirely without qualification, and wrote that when done intentionally it is not a mechitza regarding the matter of carrying, and such is the opinion of the Rif, and this is the opinion of Rashi in the Gemara there. And if so, it is enough for us if we are lenient regarding rabbinic mechitzot, for regarding this one may also say another permit, that since they fell on Shabbat we say "since Shabbat was permitted, it remains permitted," as is written in siman 360 section 7, see there, and regarding Torah mechitzot we certainly do not say "since it was permitted, it remains permitted," as will be explained in siman 374, but regarding rabbinic mechitzot, it would seem that even when they fell one may say since it was permitted, it remains permitted. And our teachers the Tosafists alluded to this there at the end of the chapter HaZorek (Shabbat 101a) when they brought the method of Rabbeinu Tam and like the words of the Rosh, they wrote: "And it requires investigation in the sugya of residents who arrive on Shabbat, where it says 'since Shabbat was permitted, it remains permitted.'" Thus far their words. Meaning, and if so, it is difficult according to the method of Rabbeinu Tam, why specifically when they were redeployed do they return to their initial permitted status, for even when they fell they should be permitted due to the reason of "since it was permitted, it remains permitted." And perforce one must say, that according to this method even regarding complete rabbinic mechitzot we do not say "since it was permitted, it remains permitted," and this is not according to what we hold later in siman 374, that we say regarding rabbinic mechitzot "since it was permitted, it remains permitted." (And this method holds that specifically if one made an eruv via the doorway and the doorway was closed, or via a window and the window was closed, we say "since it was permitted, it remains permitted," and not regarding a complete mechitza. And according to this, the Tur and the Shulchan Aruch who ruled later in siman 374 that we say regarding complete rabbinic mechitzot "since it was permitted, it remains permitted," it is impossible for them to uphold the words of Rabbeinu Tam according to the explanation of the Tosafists and the Rosh except when the mechitzot fell on the eve of Shabbat, and examine this closely).

It is permitted to carry throughout an entire ship, even if it is larger than a beit satayim, for it is considered enclosed for the purpose of dwelling, as it is a complete dwelling for those who cross seas and rivers. If one overturned it on its opening in order to dwell beneath it—its top also becomes a reshut hayachid, for we say "extend and rise the partition." And it appears to me, that this is specifically when the ship is not rounded at its bottom, for with a rounded object it appears that it is not applicable to say "extend and rise the partition," and if so, one may only carry four amot upon it on top, if it is larger than a beit satayim. And if one overturned it on its opening only to repair it or to coat it with pitch—one may not carry even beneath it except within four amot, if it is larger than a beit satayim, because its partitions are now nullified for the purpose of dwelling. (Eruvin 90b) For as long as it is overturned, it is set aside neither for dwelling above nor for dwelling below, and it is like a mere pillar. (Rashi ibid.) And a ship that has many rooms and many Jews, and each one dwells in a specific room—they require an eruv, and it will be explained in siman 382.

It is stated in the Gemara (Shabbat 101b): Ships tied to one another—they may establish an eruv and carry from one to the other, if they belong to two people. If they became detached—they are forbidden, because the eruv was nullified. If they were tied again, whether unintentionally or intentionally, whether under duress or through error—they return to their initial permitted status, and all agree that it is not relevant to say in this case "since it was permitted, it remains permitted," since the water intervenes between them. And it appears, specifically if they became detached on Shabbat, for then when they were tied again they return to their initial permitted status, as the eruv took effect at the onset of Shabbat. But if they became detached on a weekday and were tied on Shabbat—it is forbidden to carry from one to the other, for the eruv did not take effect at the onset of Shabbat. And even if they placed an eruv for many Shabbats, nevertheless, since at the onset of Shabbat the eruv did not take effect—it is impossible for it to take effect on Shabbat.

One may make a mechitzah with any object, and even with vessels and even with food items (Tur). And even if the mechitzah is composed of many vessels, such as placing saddles one on top of another and the like, provided that it is not a mechitzah that is moved by the wind, such as from thin sheets. And in the Gemara (Eruvin 86b), we find that they made a mechitzah with sheets; it must be said that either they were thick so that the wind does not sway them, or that they tied them with pegs as will be explained below in siman 630 regarding the walls of a sukkah. And there it is explained that ab initio it is not proper to do so, lest the knots become untied and he will not be aware of it, see there. And one may make a mechitzah of straw and of stubble and of grass, and the animal may eat, and we are not concerned that the height of the mechitzah will be diminished from ten tefachim, for it is not capable of eating that much. But he may not place it into a basket to feed it, for perhaps he will give so much until the height is diminished from ten tefachim (so it is explained from the Mishnah and Gemara Eruvin 79a, see there).

One should doubt whether a partition of snow, frost, or ice is effective during the winter days. It would seem at first glance that it is not effective, as we say in Bava Batra (20a) that they do not diminish a window regarding the matter of an opening of a tefach that brings impurity, because since they melt on their own, they do not diminish the opening of a tefach, see there; and all the more so that the status of a partition does not apply to this, and they are like mere water. However, there is no proof from this, for regarding the closing of an opening of a tefach, one requires permanent nullification, as the Rambam wrote at the beginning of the fifteenth chapter of the laws of impurity of the dead, that we require something that is not typically removed. But regarding partitions, it is sufficient for its time, like the partitions in a caravan, and for its time, snow is a durable thing in the winter. And even though in section 4 we wrote that according to the opinion of the Rambam a temporary partition is not effective—this refers to an hour or a day. But for several days, it is certainly effective, and snow in the winter days lasts for many days. Furthermore, one cannot bring proof from Bava Batra there, which says there that a partition of grease—meaning from a fatty substance—is not effective, see there. This is because in the heat of the sun it will melt immediately, which is not the case with snow in the winter. And some proof can be brought that it is a partition from what the Mordechai wrote in the chapter "Covering the Blood" in the name of a Gaon, that one may cover with snow, as it is written, "For He says to the snow, 'Become earth,'" behold, he compares snow to earth. And although our teacher, the Beit Yosef, rejected this in Yoreh Deah siman 28 in his great book, this is because regarding covering one requires dust, see there. Nevertheless, there is a hint to the matter that snow is similar to earth. And even though regarding a mikveh snow is like water, as is explained in chapter 7 (mishnah 1) of Mikvaot, this is when one casts it into the water and it melts, see there; and also in Niddah (17a) we say that snow is not a liquid until one intends for it to be a liquid, see there, and as long as he has not intended so, it is like all other things, and why should it not be fit for a partition. And for the law, it requires further study.

It is stated in Bava Batra (20b) that one may not make a partition with fat, but with salt one may make a partition. And this refers to Sedomite salt, which is to say that which is drawn from the sea, which is hard. But Astrakhan salt, which is soft salt—one may not make a partition from it, except for beneath the beam in a mavoi, as the beam stabilizes it so that it does not scatter; see there. And there is no proof from this regarding snow that it is not a partition, for behold, snow is certainly softer than salt, as the reason for salt is not because of its softness but because it is small pieces and scatters, as Rashi wrote there. But snow in the winter days lies well and will not scatter. And I wonder at the Rambam in chapter 16 and at the Tur and Shulchan Aruch, that they did not bring the law of fat nor the law of salt, and it requires further study.

It has already been explained in siman 360 that one may make a mechitzah of warp without woof, such as a mechitzah of reeds with a distance of less than three tefachim between each one, for it is considered lavud; and similarly of woof without warp, such as with three ropes stretched across their width, the first less than three tefachim near the ground, the second less than three tefachim near the first, and the third less than three tefachim near the second. The ropes themselves must be more than a tefach in their thickness, so that together there will be ten tefachim. This was permitted for an individual up to a beit satayim, and not specifically on a journey, for the same law applies even in a city, as they are complete mechitzot; however, more than a beit satayim was only permitted for a caravan, as was written there. It is also permitted to make a mechitzah from living creatures, provided they are bound so that they do not move here and there and do not flee. If there is a space between its legs of more than three tefachim, one must fence it, or from its belly there must not be three tefachim to the ground. One must also see that even if it falls, its height will be ten tefachim. And that which we said, "that it must be bound," the same law applies if he can tie it, as was written in siman 630 regarding the wall of a sukkah. (Magen Avraham, subsection 8) And even though without binding it will move itself, we are not concerned for this, and it is not similar to the swaying of tree branches which is not a mechitzah, for there the wind sways them and it is a mechitzah that cannot stand in the wind, but that which it moves of its own will—we have no concern with it (ibid.).

It is also permitted to make a partition from people, but there is a condition for this: that the people who serve as the partition do not know that a partition is being made with them. And even if one of them knows, it is forbidden; and thus our Sages, of blessed memory, said in Eruvin (44b) that we require that it be without knowledge, see there. And the reason was not clearly explained, as some say it is because if they know, it becomes a partition made on Shabbat, and when they do not know, it is like an unintentional act. (Beit Yosef in the name of the Ri). And this is not understood, for if so, how is it permitted for the one who makes the partition with them to do so? (Taz subsection 3). Rather, one must certainly say that there is no prohibition of making a partition regarding them, for behold, nothing was done; and if so, why do we care if they also know of this? And some say that the reason is so that they should not come to be lenient regarding the prohibition of Shabbat. (Ibid. in the name of the Rashba). And this too is not understood, for if so, how does this one act who intends for them to be for the sake of a partition? And it appears to me that the intention of the poskim in their reason is this: that when the subjects of the partition know of this, they will certainly stand exactly even with one another and be careful not to move themselves, and it has the appearance of a partition and is forbidden. But when they do not know, they walk or stand naturally as is the way of people, and the partition is not recognizable at all—and it is permitted.

And even if he did not inform them that he is now making a mechitzah from them, if it is likely that they will sense this—for example, if this man once made a mechitzah from them and they subsequently became aware of it—it is forbidden for him to make a mechitzah with them another time, even if he did not inform them, for it is likely that when they see him among them they will understand this. And whether another person is permitted to make a mechitzah with them is a matter of doubt (Beit Yosef), but with other people, even he may do so, for they will not sense it. And know, that if at first they did not know of this, and this person who intends for this walks among them, even though they subsequently sensed it—there is no concern, since the beginning of the act was without their knowledge. And that which we forbid to him with these people another time is because there they will sense it immediately at the beginning.

Our teacher, the Beit Yosef, wrote in section 7: "There is one who says that the person who wishes to use this partition should not station them, but rather another should station them without his knowledge." Thus far his words. This is the opinion of the Rambam at the end of chapter 16, see there, and there is no clear reason for this. The Rashba, of blessed memory, disagrees with him, for so it implies in the Gemara there: "A person may make his fellow a wall so that he may drink, eat, and sleep," see there. The Rambam would interpret that the "making" is by means of another. His reason appears to be that when he himself makes it, they will notice immediately, but when another makes it, and he comes afterward as if from the side to use it, they will not notice as much. Our teacher, the Rema, wrote that one should not make partitions of human beings except in a time of need and in a case of pressing necessity. And if one forgot an object in a reshut harabbim, it is preferable to lead children there so they may bring the object without a partition, rather than making a partition of human beings so that an adult may bring it. Thus far his words. That is to say, the children should intend for their own benefit, that they see an object and pick it up and bring it to the house, for if they act with their father's intent it is forbidden, as written in siman 334 and siman 343, see there.

However, I have a question regarding the essence of the matter, for since the people are not permitted to know that they are for the purpose of a mechitzah, and they are walking in their innocence, and it is known that a person's leg does not have a width of three tefachim, and from leg to leg is a stride of half an amah, which is three tefachim, and the height of the leg is certainly three tefachim or more, if so, how is it a mechitzah, for it is an invalid mechitzah. Our teacher, the Beit Yosef, wrote in section 5: "And even with people who stand next to one another at less than three [tefachim], and even when they are walking—they are considered a mechitzah, and between them is a reshut hayachid." Thus far his words. And it is a wonder, when they are walking, how are they considered a mechitzah. And it must be said, for example, that there are many rows of people, one behind the other, and it turns out that the legs of the second row are opposite the space between the legs of the first row, and in such a manner it is possible that there will not be three tefachim between one and the other. (See Magen Avraham, subsection 9, and it requires further study why he was not awakened to this, for what he wrote at the end of his words "and here we are dealing with legs that are bound etc."—refers to an animal, as the Machatzit HaShekel wrote, for regarding a person it is impossible, as they must not know, and also they are walking as he wrote, and examine this closely).

It is a halacha given to Moses at Sinai regarding all partitions—that where the breached portion is equal to the standing portion, it is permitted, and where the breached portion is greater than the standing portion, it is forbidden (Eruvin 16b). And this matter requires clarification, for behold, a gap of less than three tefachim is not included in this, since it is considered as lavud—it is as if it is entirely standing and is completely permitted. Similarly, a gap that is more than ten amot is completely forbidden, even if the standing portion is greater than the breached portion, for this is like a breakthrough. But this matter applies from three tefachim up to ten amot, and that is, for example, if the length of the partition is thirty amot, and there are various breaches in them. If all the breaches do not exceed fifteen amot—it is permitted, even though the standing portion is composed of lavud gaps of less than three tefachim each. And if it was more than fifteen amot—it is forbidden. And this is only regarding breaches without openings that have a tzurath hapetach, as will be explained, for if there are openings in them with a tzurath hapetach, which is doorposts from the sides and a lintel from above—they are not considered within the category of breaches, even if they do not have doors in them, as will be explained with the help of Heaven.

And there is a doubt when the partitions are on two sides, or from three, or from four directions, whether we consider the standing part and the breached part in each partition individually, or whether we consider them in total. And this is, for example, where in the east the breached part is greater than the standing part, and in the north the standing part is greater than the breached part. And if we consider them in total—the breached part would not be greater than the standing part, what is the law of these partitions. However, from the language of the Mishnah (15b): "A caravan that camped in a valley and they surrounded it... and let there not be breaches greater than the structure," see there, behold it deals with an enclosure of four directions, and it says that in total the breached part shall not be greater, for if not so, it should have said 'and let there not be in each wall breaches etc.' And so too in the Gemara (16b) where it says there: "These walls in which one increased the openings and windows—it is permitted, provided that there shall be etc." Behold, it also considers the walls in total. And also from the perspective of logic it is so, for since the Holy One, Blessed be He, said to Moshe at Sinai that the breached part shall not be greater, certainly He said it regarding the total enclosure, for what reason would you see fit to separate side from side, for is it not all one thing, and so it appears primary. (And Rashi, of blessed memory, explained "'breached like the standing'—the entire enclosure is made so." Thus far his words. And it can be said that this is his intent, that we calculate according to the entire enclosure. For it cannot be said that it refers to each wall individually, for behold according to Rav Huna who forbids breached like the standing, even in one wall it is all forbidden, rather certainly it is as I have written, and we will bring further proof in section 29 and in siman 363 section 17).

When the breached is equal to the standing—even opposite the breached is permitted, and when the breached is greater than the standing—even opposite the standing is forbidden. And that which we learned in a baraita in the Gemara (16a), that there are times when opposite the breached is forbidden and opposite the standing is permitted, see there—this is regarding kilayim and not regarding Shabbat, and so it is explicitly stated in the Yerushalmi (Chapter 1, Halacha 8). It is further explained in the Yerushalmi there, that the standing should not be opposite the standing and the breached opposite the breached, but rather the breached opposite the standing and the standing opposite the breached. Meaning, in the wall opposite it, if there will be a breach opposite the breach in this wall—it appears as a pass-through, and therefore one must place the standing of the western wall opposite the breached of the eastern wall, and the breached opposite the standing, and so too in the north and south. In our Shas this was not mentioned, and similarly the poskim did not mention this, and nevertheless certainly such is the halacha, since there is no contradiction from our Shas. There is further a dispute there, that when there is standing greater than the breached, and according to us breached equal to standing, and there is not in one place in the standing ten tefachim together—that there is one who forbids, since there is no significant standing in one place. And the conclusion there, Rabbi Yose bar Bun in the name of Rav, nevertheless since the standing is greater than the breached—it is permitted, see there, and according to us in breached equal to standing it is so. (And the Yerushalmi maintains specifically standing greater, but in our Shas the halacha was decided that breached equal to standing is permitted).

And one must ask a great question regarding this: how can we say that it is a halacha le-Moshe mi-Sinai that where the breached part is greater than the standing part it is forbidden by the Torah? For the strips of the cisterns had a breached part greater than the standing part, as the standing part was two amot on each side, and the opening was thirteen and a third amot, and yet the strips of the cisterns are a reshut ha-yachid by the Torah, for one who throws into the space between the strips of the cisterns is liable (20a). And in the Gemara we say (11a): "What of more than ten... would you say of a breached part greater than the standing part, for you permitted it regarding the strips of the cisterns, etc." However, our teachers the authors of the Tosafot at the beginning of "Osin Passin" addressed this, and wrote in this wording: "One makes four corner-pieces; and that which was said above, that thus the Merciful One taught Moses, 'do not breach the majority,' that is specifically where there are not four partitions as there are here, for since there is on each side an amah from here and an amah from here—it is considered an opening." Thus far their words. And the Ritva, in the sugya of "breached like the standing," added to explain, and this is his wording: "For since he set up strips an amah wide—it is considered as complete partitions by the Torah, similar to the matter where we say regarding a ceiling, 'it descends and closes'; whereas here we are dealing with something made of many breaches." See there.

And we have learned from the words of our teachers, that whenever there are four partitions and between them is an opening, even if the opening is many times larger—this is not included in "breach exceeds the standing," but rather this is an opening, for according to the Torah there is no measure for an opening. For that which we forbid an opening greater than ten—this is not from the Torah, and behold, in the strips of the cisterns it was more than ten, but rather it is rabbinic. And the law from Sinai regarding "breach exceeds the standing"—this is when it is not in the form of an opening but rather mere breaches, but the rabbis did not distinguish in this, and regarding this the Gemara said that in the strips of the cisterns we permitted "breach exceeds the standing." That is to say, the rabbinic prohibition we permitted in the strips of the cisterns. And so it is implied in the Yerushalmi at the beginning of "One makes strips," which says there: "Because the breach exceeds the standing, he makes corner-pieces, but not simple ones," that is to say, that with simple ones "breach exceeds" is forbidden by Torah law, because they are mere breaches, but with corner-pieces, behold it is like an opening. And it further says there: "Rabbi Yose said, because in every other place 'standing exceeds the breach' and here you were lenient for him, that 'breach exceeds the standing' should be allowed, you were stringent for him in another matter, for in every other place he makes a strip of four tefachim and here he makes a strip of six tefachim." Thus far his words. (The strip of four is in a courtyard as written in siman 363).

The Tur and the Shulchan Aruch wrote in section 9 that if the breached part is equal to the standing part, it is permitted, whether in the vertical or in the horizontal. And this is in the Gemara (16b). Now, the explanation of vertical is simple, as has been explained, for the intention is not regarding less than three, as that is like being completely closed, but rather the intention is regarding more than three. Now, how do we depict this in the horizontal? For according to the ropes that were explained, every rope less than three is not "breached equal to standing," but rather entirely standing, as it is considered lavud. (Rashi) And the Shas depicted it, for example, where one brought a mat that was seven and a bit, and carved out three in it and left four and a bit in it. That is to say, he left four complete units at the top of the mat and a bit at the bottom, (ibid.) and he stood the mat with the complete units at the top, and the bit at the bottom within less than three adjacent to the ground. And there is from this bit until the four complete units a breach of three tefachim, and the standing part of the four complete units is greater than the three breached units. (And sometimes they say "the air from this side and the air from that side comes and nullifies it," and this matter will be explained in siman 363; and see Magen Avraham sub-section 16).

It has already been explained that a breach of more than ten—prohibits the entire enclosure, whether in a courtyard or in a mavoi. And the sages based this on the entrance of the Heikhal which is called an "entrance," as it is written: "And he shall slaughter it at the entrance of the Tent of Meeting," and it was ten cubits wide. And if the status of an entrance applied to more than ten—they would have made it more than ten. (Beginning of Eruvin, see there) And it is explained there in the Mishnah that if the entrance has a tzurath hapetach—it is permitted even much more than ten, and it will be explained before us what a tzurath hapetach is. However, in what manner the tzurath hapetach permits, whether even when the breached part is greater or specifically when the standing part is greater than the breached part, there are different opinions on this, and the Rambam in chapter 16, law 16, requires specifically that the standing part be greater, and the Tur disagrees with him, as we will explain with the help of Heaven.

This is the wording of the Rambam: "If this breach had the form of a doorway, even though it is more than ten—it does not invalidate the partition, provided that the breached part is not greater than the standing part." Thus far his words. For the Rambam holds that more than ten with the form of a doorway is like less than ten without the form of a doorway, and just as with partitions where the breaches are less than ten it must be that the breached part is equal to the standing part, so too with more than ten by means of the form of a doorway. And one should not ask regarding the fourth wall of an alleyway, where a lechi or a korah is sufficient, for there a partition is not required at all. But one should ask, for in a through-alleyway we maintain that on one side there is a form of a doorway and on the other side a lechi or a korah, and the Rambam himself ruled so at the beginning of chapter 17, yet according to him the form of a doorway is not effective when the breached part is greater, and here in the third wall it is entirely breached, so how is the form of a doorway effective there? However, according to what we explained in section 23, that we calculate from all sides together—it works out well, for from all of them together the breached part is equal to the standing part, and no more.

But the opinion of the Tosafot, the Rashba, the Rosh, and the Tur is that if there is a tzurat hapetach—even if the breached area is greater on all four sides—it is effective. This is the wording of the Tur: "For even if one only fixed four poles on the four sides and made a tzurat hapetach upon them—it is permitted. And these words apply to a courtyard or an alleyway where there are dwellings, but in a valley where one comes to make an enclosure to carry within it—it is not effective. And specifically when all four sides are by means of a tzurat hapetach—in this case we say it is not effective in a valley. But if the enclosure was properly made, except that it has breaches greater than ten—a tzurat hapetach is effective for it, even if the breached area is greater." Thus far his words. And the reason for the matter is that according to the Torah it is effective even in a valley, but because there are no dwellings or partitions there and it appears like a reshut harabim or a karmelit, the sages therefore prohibited it. But when there is an enclosure properly made, it does not appear like a reshut harabim or a karmelit. And according to the Rambam, it is simple that it is effective even in a valley, since the breached area is not greater. And for the halacha, we certainly hold according to the opinion of the majority of the poskim, and so it is explained from the words of our teacher, the Beit Yosef, in section 10, who cited the opinion of the Rambam as a singular opinion; see there.

What is the form of a tzurath hapethach? A reed from here ten tefachim high, and a reed from here ten tefachim high, and a reed above them. And it is not specifically a reed above them, but even a rope or a rush. And so it is found in the Yerushalmi: "A reed from here and a reed from here and a rush above them," see there. And it is not necessary that the reeds from here and there touch the upper reed, and even if there are several amot between them—it is permitted, and it is only necessary that they be exactly aligned with the upper reed. And it is stated in the Gemara (11b): A tzurath hapethach that one made from the side—he has done nothing. This is the wording of the Tur and the Shulchan Aruch in section 11: And if he attached the upper reed to the two reeds, or to one of them from the side—it is not effective, because it is not similar to a doorway where the lintel is placed upon the two doorposts. (Beit Yosef) Therefore, automatically, when they do not touch the upper one, they must be careful that they are exactly beneath it. And if they are not exactly beneath it—it is "from the side," and he must stand other reeds aligned with it. And it is proper to remove the invalid reed because of those who see, (Magen Avraham subsection 20) and if he did not remove it—there is no invalidity in this. And know, that when they are distant—even a tiny bit is invalid, and it is simple. (The Rif and the Rambam did not write this law, because they explain a different interpretation of "from the side," see there. However, regarding this it is possible they do not disagree. (Beit Yosef) And the Tur wrote that we require the "recognition of a hinge," for so the Rosh ruled, and according to this all of our tzurath hapethach are invalid, but all the poskim and also the Rif and the Rambam did not write this, and also in the Shulchan Aruch this was not cited. And it is clear, that even though Reish Lakish says so, nevertheless afterwards it is stated in the Gemara there: "Rav Achi found the students of Rav Ashi, he said to them, did the Master say anything regarding tzurath hapethach? They said to him, he said nothing at all." And its explanation is, that he does not require the recognition of a hinge, and the Rosh himself wrote so. And also in the Yerushalmi there is a dispute regarding this, and the conclusion is that one does not require the recognition of a hinge, see there carefully. And in my humble opinion it seems, that whoever requires the recognition of a hinge—automatically it is not sufficient with a reed as is understood, and therefore those who say a reed from here etc., automatically they do not hold of the recognition of a hinge, and with this the Yerushalmi there will be explained, and also the sugya of our Gemara, and delve into it).

It is a simple matter that if the reed which is on top of them rests upon the reed from here and from there, even though the reeds from here and from there protrude much further above the reed that is on top of them—for example, if he carved into the reeds and placed the upper reed within the carving from here and from there—what do we care that they protrude further upward. And there are those who err to say that this too is called "from the side," based on the wording of Rashi who wrote: "From the side—that he stretched the vine in its middle from this to that and not from its top," thus far his words, for the interpretation is that even though they are placed in the middle of their width, nevertheless it is invalid, because they are not placed truly on top. And it is an error, and in Rashi the intention is: in its middle from the side, for it is automatically so, for when he places it on the top of this one and that one it is not "from the side," and when he places it in its middle it is "from the side." And certainly if he carves in the middle of the width and places the upper reed there, it is kosher, but Rashi is not speaking of this, and so is the wording of the Hagahat Ashri who wrote: "And not that it be inserted between both of them in their middle," thus far his words. That is to say, that he inserted them from the side in their middle. (And there are those who hang themselves on the wording of the Taz, subsection 4, who wrote that if the rope is wrapped at the upper edge from its side and nothing of the reed protrudes above the rope, it is kosher, thus far his words. And on the contrary, the Taz is more lenient, for at the very upper edge even from the side it is kosher. And in his opinion, the invalidity of "from the side" is only when the side reeds protrude above the reed that is on top of them, as the Tosefot Shabbat wrote in subsection 29, and he disagreed with him that we are not so lenient, for any "from the side" even at the upper edge is invalid, see there, and the Eliyah Rabbah in subsection 16 agreed with his words, see there. But this is certainly like what they do in our regions, where the upper reed is of iron wire which they call "draht," which they wrap around the reeds until it is inserted in the middle of the width of the reeds, and it is truly in the middle of the width, for we do not care that the reeds protrude above).

It is a simple matter that even though the side posts do not need to touch the reed that is above them, as has been written, this refers to height. However, regarding the length—the upper reed must extend until it is opposite the posts from here and from there. And if it is distant even on one side by three tefachim—it is pasul. Also, the side posts must stand one opposite the other, and further laws regarding this will be explained in the next siman with the help of Heaven.

There is no concern if one upright is taller than the upright opposite it, even by a great deal, provided that each upright is not less than ten tefachim. It is necessary that the uprights on the sides be strong enough to support a door, yet we do not require that they be able to support a heavy door, but rather even any door whatsoever, even one of straw or of reeds. However, for the upright that is on top of them—any size whatsoever suffices, and even one of papyrus is effective, as has been written.

It is a simple matter that the openings of gates and our houses are complete tzurati petach, for there are side-posts from here and from there and a lintel above them. And even if it is a rounded arch, if there is in its legs—that is, before it begins to curve—ten tefachim in height with a width of four, it is permitted by reason of tzurat petach. And if it is because the straight upper lintel after the curve does not touch these sides that are before the curve—behold, we maintain that it does not need to touch, as has been written.

I have seen one of the great authorities who wrote that the side reeds of a tzurat hapetach must not be distant from the walls by three tefachim. (Tevu'ot Shor at the end in Bechor Shor). And there is one who wrote that on one side it must be so, but on the second side it can be distant from the wall. (Sha'arei Teshuvah in siman 363, subsection 12 in the name of the Beit Ephraim). And these are wondering matters, for a tzurat hapetach is exactly like a wall, and therefore it is valid even on four sides, as has been explained; and what do I care if one wall is distant from its fellow by any amount, as it is like a breach, which is permitted up to ten amot. And furthermore, there is clear proof, for our teacher Yehonatan wrote regarding one who distanced the lechi from the wall by three tefachim—it is invalid, because the air from this side and that side comes and nullifies it, (the Magen Avraham brought it in siman 363, subsection 5) and regarding a tzurat hapetach this is not applicable. And furthermore, what connection does the tzurat hapetach have to the wall, for even in a valley a tzurat hapetach is valid. And furthermore, if it should enter your mind that even a tzurat hapetach has the law of a lechi, that it should not be distant from the wall by three tefachim, why specifically did the Shas (14b) inform us regarding a lechi? Let it inform us regarding a tzurat hapetach, and all the more so regarding a lechi. And certainly the second law mentioned there, "if he raised it from the ground three," applies also to a tzurat hapetach, for even with a complete partition it is invalid, as it is a partition that kids can break through, but not regarding distancing the tzurat hapetach from the wall, for this is like distancing a wall from a wall, which up to ten is like an entrance. And even though a lechi is also on account of a partition, nevertheless it is a light partition, and therefore it is invalid in more than ten, and in a through-way, and in a courtyard. This is not the case with a tzurat hapetach, for it is a complete partition in all laws of the Torah, whether for Shabbat or for kilayim. Therefore, it appears in my humble opinion that there is no concern in this. (And the proof that the Tevu'ot Shor brought from Tosafot 11a, starting with "Ipcha," where Rabbeinu Tam asked why we need the height of a tzurat hapetach, for with one reed it is valid on account of a lechi, see there, and he asked that there is a practical difference when it is distant three tefachim from the wall, see there. And I wonder, for in truth the Tosafot answer in this manner in a place where a lechi is not effective, such as in a through-way, etc., see there, and why is this answer stronger than that answer? And also the Tosefet Shabbat in siman 363, subsection 10 rejected this, see there).

The Mordechai wrote in the first chapter that for a tzurat hapetach, it is sufficient with a reed above it, provided that it is not removed by the wind. Thus far his words. And he did not write that it should not sway in the wind, for this is impossible, since it is thin and at a height, the wind certainly sways it a bit. And it is not similar to a mechitzah that is moved by the wind like tree branches, for there they sway completely and have no stability at all. But here the swaying is slight, and nevertheless it remains in its place, since it is tied at the two ends. Rather, his intention was that it should not fall completely in the wind, for then it is not a mechitzah, even if there is no wind. And the Rokeach wrote that regarding the reeds from here and from there, if one does not have reeds, one may make them with ropes, and so wrote the Kol Bo (Beit Yosef). And it seems to me that this is specifically when one attaches the ropes with nails to the walls, for if not so, they will certainly sway much in the wind, and it is not a mechitzah.