Siman 365

The Tur wrote: "A mavoi that was breached from its side, if the public passes through the place of the breach, even if it was only breached with a breach of four tefachim - it is not considered like an opening and requires rectification. And if the public does not pass through it, until a breach of ten - it does not require rectification, even if there are no remnants of the walls. And these words apply when four tefachim remain of it toward its head. But if four tefachim do not remain, even if it was only breached by three - it requires rectification; less than three - it does not require rectification; and if it was breached from its head - its breach is in four." Thus far his words.

The explanation of his words: Even though up to ten amot is considered an opening everywhere, nevertheless, it is different regarding a mavoi. This is not because it is not an opening, but for another reason: because we fear that those walking might leave the large opening, where there is the recognition of the lechi or the korah, and walk through this breach, where there is no lechi or korah, and it will result in it being like a mavoi that has no lechi or korah. For the primary permit of the lechi and the korah is because those walking through there will see the recognition, and therefore if they do not walk through there, the entire recognition is nullified. Therefore, in a breach in a mavoi from the side wall, even a breach of four tefachim is forbidden if many people walk through there, for the reason that has been explained. Therefore, if many people do not tread through it, up to ten amot does not require any rectification, as with all openings. And he wrote "even if there are no gidudim" because there are those who hold like the resolution in the Gemara (6a), that it is specifically when gidudim remain, meaning that there remains in the foundation of the wall a small height across the entire face of the breach of some tefachim in height, so that it is not possible to walk there. But when gidudim do not remain—even if many people do not walk there, for the reason that it is breached to a filthy place or a ruined place, as we fear perhaps the filth will be removed and they will begin to walk—the Tur comes to teach us that it is not so. And even if many people do not tread in it, nevertheless, this is specifically when there remains from the breach until the head of the mavoi no less than four tefachim. But if four tefachim do not remain, regardless, the breach invalidates, for behold there is no wall next to the lechi or the korah. And the reason for four tefachim is because we hold "the length of a mavoi is four amot," as written in siman 363, and this is at the beginning of a mavoi. But at the end, so that the status of a mavoi is not nullified from it, the sages, of blessed memory, said (5a) that four tefachim are sufficient. And this is what they said, that when four tefachim of the wall remain, the lechi and the korah are not nullified, for behold it is placed on a wall of the length of a mavoi which is four tefachim at its end, as has been written. But when four tefachim do not remain, it is invalid, unless the breach is less than three, which is considered lavud.

And this is all when it was breached from its side, but if it was breached from its head—meaning, for example, if the maboi was twenty amot wide and they made a partition of ten amot, and afterward they placed a lechi or a korah, for the partition does not count as a lechi as is written in siman 363, and a breach occurred in this partition—the Tur wrote that from its head, it is with four. Meaning, that if it was breached only four tefachim, it invalidates. And the words of the Tur are perplexing, for we explicitly challenge in the Gemara (6a): what difference is there between "from its head" and "from its side"? And it answers that "from its head" refers to when it was breached at a corner, for people do not make an entrance at a corner, see there; but when it is not at a corner, it is all the same. And since the Tur did not mention this, his words are perplexing. And in truth, the Rambam in chapter 17 did not mention "from its head," because it is all the same, and likewise in the Shulchan Aruch this was not mentioned.

However, in truth, the words of the Tur are correct, and so it appears in my humble opinion, for the Tur found it difficult that there is a distinction between "from its side" and "from its head," where the intent is between a corner and not a corner. Therefore, the Tur explains that the meaning of "from its side" is not the walls from the side, and "from its head" the fourth wall, which would require us to force a case such as where it was wider than ten, as has been written. Rather, the Tur explains that according to the resolution, this is the explanation: that everything refers to the side walls, for the fourth wall is open in the manner of mavoi'ot. And here the explanation is literally from the head of the side wall, meaning the head of the wall. Consequently, the opening is like a corner, as is understood, for the head of the fourth wall is anyway without a partition. If so, when the Tur says "from its head"—the intent is also literally from its head, and it is like a corner. (And see Bach and Derisha and Magen Avraham subsection 3, and each one answered with many forced resolutions, see there.)

A mavoi that is much wider than ten amot, and they fenced in the excess and a breach was made in it, regarding which we wrote that its law is like "from its side" — this is when the korah is not placed from wall to wall, but rather from the edge of the partition to the second wall. For then, when a breach is made in it and they walk through the breach — there is no korah there; therefore, the breach prohibits according to the measures that were explained regarding "from the side." But when the korah is placed from wall to wall, what do we care if they walk through the breach? And so too, if its validation was with a lechi — the law is like "at its side," for the lechi stands only at one edge. And when they do not walk through there — the lechi is nullified, and see what I wrote in siman 363, section 62 in the name of the Ritva. And know, that at its head, a breach of less than four tefachim never invalidates, even if four did not remain adjacent to the wall, and in this it is more lenient than "from the side." And the reason for the matter is that in this there is no concern that perhaps they will walk through here and the lechi or the korah will be nullified, for what do we care, since a mavoi whose width is less than four does not require validation, as I wrote there. (And this is the intention of the Magen Avraham in subsection 3, see there and examine carefully.)

And all this is regarding a breach in a mavoi, but regarding a breach in a chatzer—it is always ten amot, and less than ten does not disqualify at all. And so it is stated in the Gemara (5b): "What is it with a chatzer, whose breach is in ten [amot], would you say [the same] regarding a mavoi, whose breach is in four?" And the Ritva wrote the reason, because an ordinary chatzer has four partitions, they were lenient regarding its breaches up to ten. But a mavoi has only three partitions and a lechi of any size. And even though there is a chatzer that has only three partitions, and the fourth is breached in its entirety by less than ten amot, and it has only a post of four [tefachim] or two posts of any size, nevertheless even this is not similar to a mavoi, which has only one lechi, and so it is implied in Tosafot there (d.h. 'Tamar'). And according to this, in our eruvin, where we judge our cities as chatzerot, as I wrote in siman 363, their breaches are in ten. (And the Magen Avraham, subsection 4, was uncertain about this, and follows his reasoning in siman 363, subsection 27, that for stringency we judge it as a chatzer and not for leniency. And it is explained there from his words that we always require a tzurat hapetach, even in less than ten in a city that is not surrounded by a wall, for we consider it as open to a karmelit, see there. But our custom is not so, and we judge them with the law of actual chatzerot. And in less than ten, we make two posts of any size, and if so, their breach is also always in ten, and so we explained in siman 363, section 45, see there.)

The Rambam wrote in chapter 17, law 18: "If a mavoi was breached in its entirety into a courtyard, and the courtyard was breached opposite it into the public domain—behold, this is forbidden, because it is an open mavoi. But the courtyard is permitted, for a courtyard that the public traverses, entering through this one and exiting through that one—behold, it is a complete reshut hayachid." Thus far his words. This means that the mavoi was breached in its entirety, but in the courtyard there remained side-posts from here and from there, both in the wall between it and the mavoi and also in the wall between it and the public domain. Therefore, the breaches do not forbid it, such as when they are less than ten. However, regarding the mavoi, since the breaches are opposite one another, and one standing in the mavoi sees a straight opening until the public domain—the mavoi is forbidden. And if it is difficult: let the side-posts that are between it and the courtyard benefit the mavoi as well, based on the reasoning of 'visible from the outside and level from the inside.' Indeed it is so, but here we are dealing with a case where the walls of the mavoi enter into the courtyard, in a manner where everyone sees that these side-posts are not from the walls of the mavoi, but rather from the walls of the courtyard, and as these laws have been explained in siman 363, section 12, see there.

And behold, the Rambam does not distinguish between whether the residents of the courtyard made an eruv with the residents of the alleyway or did not make an eruv, and in the Gemara (7b) there are several detailed laws regarding this, and the Tur and the Shulchan Aruch in section 3 explained them. And the reason the Rambam did not explain them here is because this pertains to the laws of eruvin, whether the courtyard and the alleyway restrict one another, and in what manner they restrict. The Rambam wrote these laws separately in the laws of eruvin, and here we are dealing with the laws of mechizot. This is not the case with the Tur and the Shulchan Aruch, who wrote the laws of mechizot together with the laws of eruvin, as is clear to any student.

And the difference between whether the residents of the courtyard made an eruv with the residents of the alleyway or did not make an eruv is as follows: where they did not make an eruv—the courtyard is permitted, even if the breaches are directly opposite one another, because of the side-posts. But the alleyway is forbidden, even if the breaches are not directly opposite one another, for since it is breached in its fullness to the alleyway—the residents of the alleyway forbid it, since they did not make an eruv together. And if they made an eruv and the breaches are not directly opposite one another—both are permitted, since they made an eruv together, and the breaches are not aligned directly opposite one another, such that it would be like an alleyway open to the public domain. And when they are aligned directly opposite one another—the courtyard is permitted and the alleyway is forbidden. And we prevent the residents of the alleyway from going to the courtyard, even though the eruv accustomed them to being together, so that they do not forbid it to them. (And so wrote the Magen Avraham in subsection 7 regarding when the walls of the alleyway do not enter into the courtyard, that the alleyway is also permitted, for the reason of "visible from the outside," as we prevent the residents of the courtyard from passing through there to the public domain, and they shall go through their breach, see there, and all the more so that we prevent the residents of the alleyway from going into the courtyard).

However, even if they made an eruv and these breaches are not opposite one another—nevertheless, sometimes the maboi is forbidden. Specifically, if the breach between the maboi and the chatzer is not in the middle of the wall of the chatzer, but rather from the side, meaning at the beginning of the wall. And since the wall of the maboi continues evenly with the wall of the chatzer—it appears like a long maboi, which extends until the reshut harabim opposite it, and it becomes mepulash—and is forbidden. But if the breach is in the middle of the wall of the chatzer, it is apparent to all that from the breach until the reshut harabim is not part of the maboi. However, even in such a case, if the chatzer belongs to an individual—the maboi is forbidden, because they were concerned that perhaps over time it will occur to the owner of the chatzer to build structures in the width that exceeds the maboi, and he will make the walls even with the walls of the maboi, and then the maboi will appear as mepulash to the reshut harabim. But in a chatzer of many, they were not concerned for this, because when the chatzer belongs to many, they will not allow an individual to build it to such an extent. (These laws were not found in the Rambam, and it seems to me his reason is because all these laws in the Gemara 8a are according to what was initially thought, that Rav and Shmuel disagree whether they made an eruv or whether they did not make an eruv, as is explained there. But according to the conclusion, we do not say these laws at all, for so it appears from the flow of the Gemara, see there and examine carefully.)

A mavoi that was breached into a rachavah, and the rachavah is behind the chatzer, if the rachavah is less than two se'ah, or even more than two se'ah and was enclosed for dwelling, as has been explained in siman 358—it is like a chatzer, as if it were breached into a chatzer. But if it is greater than two se'ah and was not enclosed for dwelling, it is obvious that the rachavah prohibits the mavoi as if it were breached into a karmelit. And if no gipufim remain for the mavoi, or if the breach is more than ten—they are prohibited from carrying in the mavoi until they repair the breach.

In the Gemara (24b) there is an incident involving a mavoi that was open to a rachavah that was not enclosed for habitation. And the rachavah was open to a path of vineyards, which had no dwellings, but the people of the mavoi use it. (Tosafot s.v. 'le'avid') And the rachavah had side-posts, such that the path does not prohibit it, (Machatzit HaShekel subsection 9) and the path of vineyards went until the riverbank, which was ten high, and constitutes a partition. And Rava commanded to place a lechi between the entrance of the mavoi and the entrance of the rachavah, and he permits both of them. And even though the rachavah is not enclosed for habitation, nevertheless, since it is effective for the mavoi - it is also effective for the rachavah, to make it as if enclosed for habitation, and they may carry from the mavoi to the rachavah. And in the path - it is forbidden to carry, and it does not prohibit the rachavah, because it has side-posts. And why do they not place a lechi between the path and the rachavah, for behold this path has the law of a mavoi, since the people of the mavoi use it? Because we decree on account of another path that they do not use, and they will say also that a lechi permits it, and for a general path a lechi is not effective. (See Magen Avraham subsection 9)

It is permitted to use the area under the beam and opposite the lechi, for they too are included in the mavoi. This applies when the mavoi is open to a reshut harabbim, but if it is open to a karmelit, it is forbidden. And even though a reshut harabbim is much more stringent than a karmelit, nevertheless, regarding a karmelit we say "kind found its own kind and was awakened." That is to say, between the lechayim and under the beam, which do not have the minimum measure of a karmelit—for there is no karmelit less than four, as I wrote in siman 345—it found the karmelit that is outside of it and was strengthened by it, and it too became a karmelit. But when a reshut harabbim is before it, it is impossible for them to become a reshut harabbim, for this is not of the type of a reshut harabbim, and therefore they are included in the category of the mavoi. But of the type of a karmelit, they certainly belong, for there is no treading of the masses there just like a karmelit, only that the measure is lacking. And if the beam has a width of four tefachim, even if it is open to a karmelit, it is permitted to carry under it, for we say "the edge of the ceiling descends and seals" and it is like a complete partition; but with less than four we do not say "the edge of the ceiling descends and seals," as I wrote in siman 363 section 17, and specifically when it is strong enough to support a plaster floor. (Magen Avraham subsection 10 in the name of the Rashba). And according to Rashi at the end of the chapter "Kol Gagot," we say "the edge of the ceiling" even on four sides according to Rav, for the halacha follows him. And according to the Tosafot and the Rosh, only with two partitions like a "gam" do we say "the edge of the ceiling," and not with one opposite the other, for it is like a passageway. Therefore, regarding roofs and protrusions that extend from houses to the street, we do not say "the edge of the ceiling" even if they are very wide, as I wrote at the end of siman 346. But in a porch that has three partitions and a roof, if it is only four tefachim wide, we say "the edge of the ceiling." And I saw in the name of the Maharil that even in such a case he was stringent. (Taz end of subsection 6). And it is a wondrous thing, as we explained above at the end of siman 346, see there, and there is no doubt that in such a case it is permitted.

Even though it is permitted to make use of the area under the beam, a person should not sit at the head of the mavoi with an object in his hand, lest the object roll from his hand into the reshut harabim and he bring it back to himself, since there is no distinction between him and the reshut harabim. And if it is open to a karmelit—it appears that it is permitted. However, at the entrance of a chatzer—it is permitted, whether it is open to a reshut harabim or open to a karmelit, because there is a distinction, either a strip of four handbreadths or two strips. But a lechi on one side does not constitute a distinction. Nevertheless, it appears that a tzorat hapetach constitutes a distinction, and it is permitted to sit there. And there is one who forbids even in this case, and even when open to a karmelit such as in our locales where we have no reshut harabim. (Magen Avraham, subsection 11). And the women who sit at the entrance of the mavoi with their jugs in their hands, the first time we say to them that it is forbidden to do so, and if they do not obey—we do not protest against them further, for it is better that they be unintentional transgressors and not be intentional transgressors, as we say this even regarding a matter of the Torah, as we say at the beginning of the fourth chapter (30a) of Beitzah, regarding the addition to Yom Kippur, and all the more so regarding a rabbinic prohibition. (And regarding what the Beit Yosef wrote in section 6, that it is because it is rabbinic, and the Magen Avraham questioned in subsection 12 that even in a Torah matter it is so, it can be said that according to what the Ran wrote there, the Gemara at the beginning of the twenty-third chapter of Shabbat does not hold so, see there; however, our version of the text is like in Beitzah, and furthermore, they wrote there that regarding a matter explicitly stated in the Torah we do not say "it is better etc.")

A mavoi whose korot or lechayav were removed on Shabbat, even though it was permitted for part of Shabbat—it is forbidden from that point forward, and we do not say "since Shabbat was permitted, it is permitted," for we do not say this when the partitions have changed, as I wrote in siman 362, and a lechi and korah are like a partition regarding this matter. And so too the pasi of a chatzer when they were removed on Shabbat, whether it opens to a reshut harabim or to a karmelit. And some say that these words apply in a city that is not surrounded by a wall, but in a city surrounded by a wall and surrounded for a dwelling, such as if it was settled and finally surrounded—it is permitted, for since there are outer partitions, this is not considered a change in the partitions, and as I wrote there regarding the matter of the spread mats, see there, and one may rely on this to permit it. And all this is when they were fit to stand for the entire day of Shabbat, but a cause arose that they were removed or fell. But if they were not fit to stand for the entire day of Shabbat, such as if they knew that the gentiles would ruin them—it is forbidden after they fell or were removed even in such cases. And if there is a doubt whether they were removed on Shabbat or from the eve of Shabbat, in a manner that if it were on Shabbat it would be permitted—one follows the leniency in their doubt, for a doubt in rabbinic law is judged leniently.

Our teacher, the Beit Yosef, wrote in section 8: "An alleyway whose residents joined in a shituf and the crossbeam broke, that courtyard in which the eruv is placed and the courtyards open to it are permitted, but courtyards that are not open to that courtyard are forbidden." Thus far his words. The explanation of these matters is that if all the residents of the alleyway placed one eruv, and they placed it in one of the courtyards, and since the crossbeam broke the connection by way of the alleyway is nullified, and there is no connection except by way of the courtyards. Consequently, for the courtyards open to that courtyard in which the eruv is placed, the eruv is effective for them, but those that are not open are perforce severed from the eruv, and in siman 374 more will be explained regarding this. And therefore in our case, where there are cities that place the eruv in the synagogue, if the tikkun of this alleyway of the synagogue becomes damaged, the entire city is forbidden to carry from house to house and from room to room if two householders dwell in them, even though their own alleyways are according to their tikkun, since they cannot bring the eruv to them due to the damage of that alleyway. (Magen Avraham, subsection 15) And if the synagogue where the eruv is placed was closed by the government officials, and they placed their seal upon it, and there is no permission to open the seal, the eruv is nullified, and they shall make an eruv on Friday in another place. (And what the Magen Avraham wrote at the end of subsection 15, see its explanation in the Machatzit HaShekel, and in our case this is not applicable.)

Passei biraot: the sages permitted them in the Land of Israel during the time that the Beit HaMikdash existed, so that water would be available for the festival pilgrims to water their animals. And what are these passei biraot? A well standing in a reshuat ha-rabim or in a karmelit; they did not burden them to make complete mechitzot around it, but rather one stands eight pasin around it, each pas being one amah wide, and one stands two pasin at each corner attached to one another: east and south, east and north, west and south, and west and north. Between each pas and pas, it is permitted for the width to be up to thirteen amot and a third. And they were lenient in this as well, for in all other openings we did not permit more than ten, and here we permitted more, because this is only d'rabbanan. And even though "the breached area being greater than the standing area" is a Halacha L'Moshe MiSinai, and here the breached area is greater, our teachers the authors of the Tosafot already wrote at the beginning of "Osin Pasin" that whenever there are four mechitzot as here with an opening between them, they are mechitzot according to the Torah. We explained the reasoning for these matters in siman 362, section 26; see there.

And so it is explained from the words of the Rambam, chapter 17, law 33, who wrote: "One who throws from the public domain to between the strips is liable, since in every single corner there is a complete partition which has a height of ten, and has more than four by four, and the square is recognizable and visible, and everything between them becomes a private domain; and even if they were in a valley and there is no well there between them, for in every single direction there is a strip from here and a strip from here. And even if many people were treading and passing between the strips, the partitions are not nullified, and they are like courtyards that the public treads through, and one who throws into them is liable. And it is permitted to water an animal between them if there was a well between them." Thus far his words. And this is the explanation, that even though the breached area is greater than the standing area, nevertheless it is a partition according to the Torah, and therefore they permitted it for the festival pilgrims.

If there was in one of the corners, or in each of the four corners, a large stone, or a tree, or a mound that rises ten handbreadths within four cubits, or a bundle of reeds, we view all of these: if one were to divide it and there would be a cubit in this direction and a cubit in that direction at a height of ten—it is judged as a corner that has two strips. Similarly, a partition of reeds, where there are not three handbreadths between each reed, and one stood them for a cubit in this direction and a cubit in that direction—it is also valid. And it is permitted to bring the strips close to the well, provided that the head and most of the body of a cow are inside while it drinks, and how much is that—two cubits, for if its head and most of its body are not inside, we fear lest one be drawn after his animal with the vessel in his hand to water it, and bring it out into the public domain or a karmelit. And it is permitted to distance them as much as one desires, provided that there is no breach of more than thirteen cubits and a third, and this is considered as enclosed for habitation. And if it should be more—one must set up double-posts in the middle to diminish the open space, so that it should not be more than this measure. (Mishnah of Osin Passin, see there). And it can be more than two beit se'ah, since it is considered enclosed for habitation (ibid.).

This measure that we required, which is two amot, is even for a camel whose neck is long. And so too the opposite: when there is no measure—it is forbidden to water even a kid that entirely enters within one amah, for the sages did not differentiate, and all the enactments of the sages are thus. And so it is stated there in the Yerushalmi. And likewise, there is no distinction in its watering between whether he holds the vessel without the cow, or whether he holds both of them, or whether he does not hold them at all—it was not permitted with less than this measure, and everything is for the reason that "the sages did not differentiate." And the opposite regarding this measure—he may do as he wishes, even to hold the vessel and not the cow, for although it is able to go out backward—nevertheless, we are not concerned that he will move the vessel after it.

And it has already been explained that this was only permitted in the Land of Israel during the time of the Temple, and only for those ascending for the festivals alone, and only to water the animals; however, a person may descend into it and drink. But if the well is very wide, such that a person cannot descend into it—he may draw and drink between the strips. And it was only permitted for a well of living water and of the public, but a cistern of the public and a well of an individual—it was not permitted, unless there are partitions all around ten tefachim high, and with an opening as in all partitions. And so too in other lands, a person shall descend to the cistern and drink, and if he draws to the outside—he requires partitions and an opening as in all partitions.

One who draws water for his animal between the strips — he draws and places it in a vessel before it, or holds it in his hand as has been explained. And if there was a trough standing in the public domain, and the head of the trough enters between the strips, and the trough itself is ten high and four wide such that it is a private domain, it is forbidden for him to draw in a vessel and place it on the head of the trough or to hold it in his hand, for we fear perhaps he will see that the head standing in the public domain has become damaged, and he will go there with the bucket, and carry out from the private domain to the public domain. And even though in such a case he is not liable, since the initial lifting was not for that purpose, nevertheless we fear that afterward he will set the bucket down in the public domain, and after he repairs the trough he will bring it in from the public domain to the private domain. (Gemara 20b) Rather, he should fill the vessel and pour the water into the trough. And even if he wishes to water it from the vessel and not hold the vessel in his hand — it appears from there that it is forbidden, and so it is explained from Rashi there, and from the Rambam there, law 32, see there. (And also from Tosafot there, starting with the words "Amar," even though they wrote that he should not fill etc. "and hold it in his hand" is not literal, for they concluded "rather he pours it before it," see there).

The Rambam wrote (ibid.): "A courtyard whose one end enters between the pasin—it is permitted to carry from within it to between the pasin, and from between the pasin into it. If there were two courtyards—they are forbidden until they form an eruv." Thus far his words. That is to say, if there is an opening between them, and so it is in the Gemara (21a). And there is reason to doubt whether the carrying is only what is necessary for the watering of the animal, or since they permitted it for the sake of the animal—it becomes like a complete reshut hayachid, and it is permitted to carry everything. And from the words of the Ritva there it is implied, that since it was permitted for the need of the animals of those ascending for the festivals—it was then permitted for all animals, see there; nevertheless, he did not clarify this matter, and it requires further study.

If the water dried up on Shabbat—it is forbidden to carry between the strips, for they were not considered a mechitzah except for the sake of the water, and we do not say "since it was permitted—it remains permitted," for we only say this regarding complete mechitzot. (Tosafot 20a, s.v. "Mechitzah") And if the water arrived on Shabbat—it is permitted to carry between them, for behold, any mechitzah that is made on Shabbat is called a mechitzah, and here it was made in a permitted manner, as the water arrived on its own.