Siman 367

It is stated in the Gemara (Eruvin 80a): If one of the residents of a mavoi who is accustomed to join in the shituf with the residents of the mavoi did not join—meaning, he does not want to join—the residents of the mavoi enter into his house and take his shituf from him against his will. And automatically, the same law applies to one of the residents of a chatzer who is accustomed to join in the eruv with the residents of the chatzer and does not want to—the residents of the chatzer come and take his eruv from him against his will. Tosafot (s.v. 'ragil') and the Rosh wrote that, in any event, we require the consent of his wife, as they said there: "A man's wife may set the eruv without his knowledge," and "without his knowledge" means even when he protested against her. But without the knowledge of his wife—it certainly is not effective. And their reasoning is: how can a man's eruv be effective against his will, since the primary reason for the eruv is that it is as if they all dwell there, and behold, he does not want to dwell there. But when the consent of his wife is present in this, or one of the members of the household as will be explained—behold, there is one from this house who dwells there. And we are not concerned with the fact that he does not want to, since in any event this house is included in the eruv with a person from there.

But the Rif and the Rambam do not interpret it so, and this is the wording of the Rambam at the beginning of chapter 5 of Eruvin: "One of the residents of the alleyway who is accustomed to join in the shituf with the residents of the alleyway and did not join—the residents of the alleyway come into his house and take from him the shituf against his will. And one of the residents of the alleyway who does not want to join at all with the residents of the alleyway—they compel him to join with them." Thus far his words. And its explanation is this: when he is accustomed—they may take for themselves from his property his portion of the shituf. But when he is not accustomed—they cannot do so themselves, but rather they compel him by way of a beit din to give a portion. (Maggid Mishneh) And the second law is from the Yerushalmi, (end of chapter 7) so wrote the Maggid Mishneh and our teacher, the Beit Yosef, in the Shulchan Aruch at the end of section 11.

I am astonished, for in the Yerushalmi it is explicitly stated to the contrary. This is the wording of the Yerushalmi: (ibid. and at the end of the first chapter of Bava Batra) "One may establish an eruv for a person against his will." And in Bava Batra (Chapter 1, Halacha 7) the wording is: "One who does not wish to establish an eruv—they enter his house and establish an eruv for him against his will." And it asks a challenge from a Baraita, that this is specifically when he does not explicitly refuse, but if he refuses—they do not take against his will. And it answers, that this "refusal" means that he is a Sadducee and does not acknowledge the eruv. But when he refuses out of stinginess—they take against his will, see there, for the version in Bava Batra is corrected and in Eruvin there is a printing error. And behold, from this Yerushalmi there is clear proof for the approach of the Rif and the Rambam, that the consent of his wife is not required, for in the Yerushalmi this is not mentioned at all. However, in any event, we learn that the coercion is not by the authority of a beit din, but rather that they themselves take it. (And the Pnei Moshe there in the Mareh HaPanim wishes to explain this intention in the Rambam at the end of his superfluous words, that his intention is specifically when he does not want to, because he is narrow-minded. But if he is a Sadducee—it is not an eruv, see there. And I am astonished, for the main point is missing, and what is he coming to teach us?)

Therefore, it seems to me that the intent of the Rambam is as follows: because the language of the Gemara implies that specifically when he was accustomed to participating they take from him against his will, but if he was not accustomed—no. And there are those who possess a version of the Gemara that explicitly says "accustomed—yes, not accustomed—no," but the Rambam did not possess this version (as written in the Kesef Mishneh, see there). And so it is proven from that which it supports him from a baraita, that they compel him to make a lechi and a korah for an alleyway, see there, and here he is not accustomed. And so in the Yerushalmi it says plainly, "they make an eruv for a person against his will," and it does not say specifically "accustomed." And the logic is also thus: since he prohibits them, what difference does it make to me if he is accustomed or if he is not accustomed? And the resolution of the Gemara regarding the support from lechi and korah is merely a mere rejection, as is the way of the Gemara. And the proof is that in the Yerushalmi it also brought proof from the baraita of lechi and korah and did not reject it. Therefore, in truth, the Rambam ruled that there is no difference between one who is accustomed and one who is not accustomed, and that which it says "accustomed" is not precise, but rather it speaks of the common occurrence. And this is what the Rambam teaches us: after he transcribed the law of the Gemara regarding one who is accustomed, he says that also one of the residents of the alleyway who does not want to participate at all, even though he was not accustomed—the residents of the alleyway also compel him. And regarding this, it is not applicable to say "they enter his house and take," for this is good for one time when he is stubborn, but not forever. Therefore, they compel him with some types of compulsion until he consistently gives a portion in the shituf. And if they wish to enter his house every time to take—they may do so, and who shall protest against them? And all this is in an alleyway where he prohibits them, such as where he has no opening to another alleyway; and this law the Rambam explained further on, and in such cases he is of the opinion that they do not compel even one who is accustomed, as is explained from his words there, see there.

It emerges that the approach of the Rif and the Rambam is entirely opposite to the approach of the Tosafot and the Rosh. For according to the Tosafot and the Rosh, they themselves cannot take, even when he is accustomed and it is forbidden to them, except with the consent of his wife or one of the members of the household. But according to the Rif and the Rambam, even when he is not accustomed, if it is only forbidden to them—they may take on their own, or according to the opinion of the Maggid Mishneh and our teacher, the Beit Yosef—by means of a beit din. And when it is not forbidden to them, it is the reverse: the Tosafot and the Rosh are for leniency, for in their opinion, when he is accustomed, even when it is not forbidden, they may take by means of his wife. But according to the Rif and the Rambam, when it is not forbidden at all—not at all, for even when he is accustomed they cannot compel him, since according to their words there is no advantage to being accustomed at all, as is explained from the Rambam and from the Yerushalmi that we cited.

And so too regarding the law of a wife, the opinion of the Rambam is distinct from the words of the Tosafot and the Rosh, for according to their words the law is thus: a man's wife may establish an eruv for him without his knowledge, and even if he protests against her not to establish an eruv, and even if he is not accustomed to establish an eruv with them. And these words apply when he restricts them, such as when the house is only open to that courtyard. But if it is open to two courtyards, in one he is accustomed to exit and enter constantly, such that he restricts them, and in one he is not accustomed to exit and enter. Therefore, in the one where he is accustomed and restricts—she establishes an eruv without his knowledge, even if he is not accustomed to establish an eruv with them. And in that one where he is not accustomed to exit and enter as well, even though he does not restrict, if he is accustomed to establish an eruv with them—she establishes an eruv without his knowledge. But if he does not restrict, and also is not accustomed to establish an eruv with them—she does not establish an eruv without his knowledge. And this is when he protests against her, but as long as he has not explicitly protested against her, even if he is not accustomed to establish an eruv with them and does not restrict—she establishes an eruv without his knowledge, for presumably it is pleasing to him.

And according to the opinion of the Rambam, a wife has no power at all when he protests against her, and only as long as he does not protest—in this, the hand of a wife is like the hand of her husband, according to the words of the Tosafot and the Rosh. But when he protests against her—they have no permission to give even in a case where he forbids and is accustomed, but rather they themselves take from him against his will. This is the wording of the Rambam there: "A man's wife may establish an eruv for him without his knowledge, provided that he does not forbid his neighbors. But if he forbids—she may not establish an eruv for him nor a shituf for him except with his knowledge. How does he forbid—for example, if he said 'I will not establish an eruv with you' or 'I will not establish a shituf with you'" Thus far his words. Behold, it is explicit that according to the Rambam, the power of his wife is lesser than their power, for their power is greater than her power, because she has no permission to act against the will of her husband, while according to the Tosafot and the Rosh, it is the opposite.

And even according to the opinion of the Tosafot and the Rosh, she only has permission to give his portion in the eruv or in the shituf. However, she cannot grant possession from his property to others without his knowledge, even when he did not protest against her. And it appears to me, that if he is always accustomed to granting possession to others—she too may do so presumably, when he did not protest against her, and likewise from her sustenance she may grant possession. (Magen Avraham, subsection 1)

And so too, if the husband and wife are not in the city, if the house is open only to this chatzer and prohibits it—the members of the household may make an eruv without his knowledge. And so too, even if it was open to two chatzerot, and he is accustomed to one—they may give his portion in the eruv. But if he is not accustomed and does not prohibit—they have no permission to give without the knowledge of the owners, and in this they are inferior to a wife. And in any case, the members of the chatzer have no permission to take against his will, according to the Tosafot and the Rosh. Our teacher, the Rema, wrote: "One who is not accustomed to make an eruv and made an eruv with the members of the chatzer, and retracted his eruv—it is necessary to return and grant possession. But if he is accustomed to make an eruv—it is an eruv against his will" thus far his words, meaning when he retracted before the Shabbat. And it appears to me that this is even according to the Tosafot and the Rosh an eruv against his will, when he is accustomed to make an eruv, since he already handed over the eruv, and such is his intention. And that is where he handed it over for many Shabbats and afterward he retracted, and automatically the eruv was nullified, for they did not acquire it for themselves but for an eruv, and with his retraction it is nullified. (And from Magen Avraham subsection 5 it appears that he understood that he still needs to give the eruv, and because of this he raised a difficulty from the Rosh at the beginning of chapter Hadar, which is the source of this law, against that of the Rosh in chapter Challon, which are the preceding laws, see there; but this does not approach that, as I have written. And also what he wrote in subsection 4 regarding that of the members of the chatzer according to the method of the "some say" who is the Rambam, that the same law applies to his wife, see there. And this too is astonishing, for in the Rambam it is explicit that his wife is not so, as I have written, and examine carefully).