Siman 371

A dwelling without owners is not called a dwelling, and it does not prohibit the residents of the courtyard. Therefore, one of the residents of the courtyard who left his house and went to another courtyard, and did not leave any person in his house—he does not prohibit the residents of the courtyard, whether he went on Shabbat or on Erev Shabbat. And there is a practical difference between Erev Shabbat and Shabbat, for on Erev Shabbat when he went—even if he returned on Shabbat he does not prohibit, because he was not present at the onset of Shabbat, which is the time of the establishment of the eruv. But when he went on Shabbat and returned on Shabbat—he prohibits, for behold he was present at the onset of Shabbat. And this which our teacher, the Beit Yosef, wrote in section 2, this is his wording: "An Israelite of this courtyard who went to spend Shabbat in another courtyard, and his intention is not to return on Shabbat, and afterwards he reconsidered on Shabbat and returned—he does not prohibit." Thus far his words. This is when he went while it was still day, and since he was not present at the onset of Shabbat—we say "since Shabbat was permitted, it remains permitted." However, when his intention was previously to return on Shabbat—certainly he prohibits, for this is not called "that he departed from there." And this is like a person who goes from his house for a few hours, does it because of this be called that he does not dwell here? And when he went on Shabbat and returned, even though at the time he went his intention was not to return—nevertheless when he returned he prohibits, for in this it is not relevant to say "since it was permitted, it remains permitted," as this only applies at the onset of Shabbat, which is the time of the acquisition of the eruv. (And the matter of "prohibits" and "does not prohibit" refers to when he did not make an eruv with the residents of the courtyard, or that there is no one here but him and one other, for when he departed only one remained, and an eruv is not required).

Even if he went to his courtyard adjacent to him, in any case, if he merely removed it from his heart and has no intention to return on Shabbat—behold, he does not prohibit for them. And the Tur wrote specifically when he went to his daughter, but when he went to his [son-in-law]—he prohibits, because it is likely that his daughter-in-law will quarrel with him and he will return to his house on the eve of Shabbat, and so it is in the Gemara (86a). And the Rambam in chapter 4 omitted it, and he holds that the halacha is not so, for the one who said it only said it regarding what the Tanna mentioned "that he went to his daughter," because it is not the way to go to his son because of his daughter-in-law, and therefore he mentioned his daughter. But when he went—he went and does not prohibit, (and this is the intention of the Maggid Mishneh, see there) and also our teacher, the Beit Yosef, did not bring this in the Shulchan Aruch, and the halacha follows the words of the one who is lenient regarding eruv.

In what case are these words said? Regarding an Israelite. But a Kuti who left his home, even if he went to be in another city on the Shabbat day—he prohibits them until they rent his domain from him, as will be explained in siman 382. And this is when he went to a nearby place within one day's journey from here, such that it is within his ability to return here. But if he went far away—he does not prohibit, even if he went several days before the Shabbat, for although it is within his ability to return and depart from his place before the Shabbat, nevertheless we only have to be concerned about the Shabbat day itself, if he is able to return to his home. (Magen Avraham, subsection 2) And it is simple that this is specifically when he left before the Shabbat. But if he left on Shabbat—there is no practical difference at all, for either way: if they rented from him on Erev Shabbat—behold they are permitted in carrying, and if they did not rent—behold they did not make an eruv on Erev Shabbat, for even if they did make an eruv—their eruv is nothing. And there are those who say that even a Kuti's law is like an Israelite, and even if he went to his neighbor in the city, if it was not his intention to return to his home on Shabbat—he does not prohibit, and they can make an eruv on Erev Shabbat. And if he changed his mind and returned to his home—behold he prohibits. (Tur) And we do not say "since it was permitted, it remains permitted," since from the beginning the eruv was not fit to be maintained for the entire Shabbat due to this concern that perhaps he will come, and it turns out that it was never permitted at all. (Tosafot 65b, s.v. "de-ata") However, as long as he has not come—the eruv is valid, and our teacher, the Rema, decided in accordance with this opinion. And there is one who says that even regarding a Kuti, if it appeared clearly that it was not his intention to return on Shabbat and he changed his mind and returned—we say "since it was permitted, it remains permitted," and that which the Tur wrote that he prohibits, and likewise below in siman 382—this is in an ordinary case. (Turei Zahav, subsection 1 and Eliyah Rabbah) But it does not appear so from the poskim, for his intention is nothing. (And so wrote the Tosefot Shabbat, subsection 7. And regarding what the Eliyah Rabbah wrote that in the Remazim the Tur wrote that he does not prohibit, in our editions it is written that he prohibits, see there.)

The Tur and the Shulchan Aruch wrote in section 3: "A person from the market who had a house in a courtyard and died, and left his domain to one of the residents of the courtyard, if he died while it was still day—the one who acquires it does not forbid [the residents from carrying], for the eruv that he made for his own house also permits what he inherited. And if he died after it grew dark—he forbids, even though the one who acquired it made an eruv with them—it does not avail for what he inherited afterward on Shabbat." Thus far their words. The explanation of the matter is that this person from the market who had a house in this courtyard used to eat in this house, and the reason he is called 'a person from the market' is because he did not dwell there permanently, but only to eat; and according to this, when he did not make an eruv with them—he forbade them. Therefore, when he died on Shabbat, even though one of the residents of the courtyard inherited from him—nevertheless, his eruv that he gave on the eve of Shabbat does not avail for what he inherited on Shabbat. But when he died while it was still day, even though this heir had already given his portion in the eruv—nevertheless, when the time for the acquisition of the eruv arrived, this house was also included in his portion. But if this person from the market did not eat here, and did not forbid them, even if he died on Shabbat—he does not forbid, for 'since it was permitted, it remains permitted.' And the same law applies if one of the residents of the courtyard who did not make an eruv died, except that the common way of the matter is that a resident of the courtyard presumably gave his eruv, and if so, it is always permitted. This is not so for the person from the market; even though he is obligated in the eruv—nevertheless, sometimes he forgets this, since he is not frequently in the courtyard. (And this is the intention of the Magen Avraham in subsection 4 and the Taz in subsection 3). And from this we have learned that if five dwell in one courtyard and four made an eruv and one did not make an eruv and died on Shabbat—they are permitted to carry, and we do not say that the eruv did not take effect at the onset of Shabbat because of this one who did not make an eruv, and how can it take effect in the middle of Shabbat. For it is not so, as the eruv takes effect at the onset of Shabbat, and these four become as those who dwell together, and there is only one who forbids them, and since he died, his prohibition is nullified. And the proof for this is that this one who did not make an eruv can nullify his domain to them, as will be explained in siman 380, and of what avail is the nullification of domain after the eruv did not take effect? Rather, it is certain that the eruv takes effect, as I have written.

One of the residents of the courtyard who died on Shabbat and did not leave members of the household in his house, if he had made an eruv, even if one from the market inherited it and entered to dwell in it on Shabbat—he does not prohibit, even though he did not make an eruv at all in this courtyard, for "since it was permitted, it remains permitted," as even if a resident of the courtyard should inherit it—this reason must also be stated, for by virtue of his eruv it is not effective, since he inherited on Shabbat and the eruv he made yesterday did not take effect upon this. And if the decedent did not make an eruv, and one from the market inherited it, as long as he did not come to dwell in it—he does not prohibit, but if he came to dwell in it on Shabbat—he prohibits, for in this case "since it was permitted, it remains permitted" is not applicable, as it was not permitted at all at the onset of Shabbat. And if one of the residents of the courtyard inherited it—he prohibits even though he did not enter to dwell in it, for since he dwells in the courtyard—he prohibits the residents of the courtyard on account of this house, for which he did not provide a portion in the eruv from the eve of Shabbat. And this is specifically when the heir was not dwelling together with the decedent, but if he was dwelling with the decedent and gave his portion in the eruv from the eve of Shabbat—behold, this house is automatically included in the eruv, for all those dwelling in one house do not all need to give a portion in the eruv. And if the decedent died while it was still day, and one from the market inherited it and entered to dwell in it on Shabbat—behold, this one prohibits. If he did not enter to dwell in it—he does not prohibit. And if one of the residents of the courtyard inherited it—it is permitted, for when he gives a portion in the eruv, this house is also included, since he inherited it while it was still day, and see in siman 381, that an heir can renounce rights.

An Israelite and a convert who were dwelling in a courtyard and made an eruv together, and the convert died while it was still day, and another Israelite took possession of his property and dwells there, even if he did not enter until it grew dark—this one prohibits him. And we do not say: "Since the Shabbat was permitted, it remains permitted," for even though when he entered it after it grew dark, it was permitted at the onset of Shabbat according to the law of a dwelling without owners; nevertheless, we do not say so, since it was fit for him to enter it on Shabbat. And it is not similar to one who left his house, for there he left with the intent not to return; but here, on the contrary, at every single moment he is prepared to enter it. Furthermore, even if he took possession of it on Shabbat and entered there to dwell—we also do not say "since it was permitted, it remains permitted"; because it was fit while it was still day to acquire it, and the permission was not clear, but rather remained pending. But if he died on Shabbat—the one who takes possession does not prohibit even if he entered there, for at the onset of Shabbat it was permitted due to the eruv of the convert, and we say "since it was permitted, it remains permitted." However, he can nullify the domain when he died while it was still day, like any other heir in general. And if the convert did not make an eruv—it has been explained in the previous laws that there is no difference in this between a convert and another, as is understood.

One of the residents of a courtyard who is a gosses at the onset of the Shabbat—behold, he prohibits [carrying] as long as he has not died, for a gosses is like a living person in all regards. Therefore, they should grant him acquisition of the bread while it is still day, and establish the eruv on his behalf. Nevertheless, if he dies on Shabbat and one of the residents of the courtyard inherits from him—behold, this prohibits, and we do not say "since it was permitted, it remains permitted," for the eruv was not fit to be sustained for the entire Shabbat, since he was certainly destined to die on Shabbat, given that he was a gosses while it was still day. Therefore, when one of the residents of the courtyard or someone from the street inherits it and enters to dwell in it on Shabbat—behold, this prohibits. And all that was explained previously, that it was permitted based on the eruv placed on the eve of Shabbat—this is when he was not a gosses while it was still day but rather a sick person, for most sick people are for life, and the eruv was fit to be sustained for the entire Shabbat, and we say "since it was permitted, it remains permitted." And a minor prohibits the residents of the courtyard when he has a house and did not join the eruv, even if he cannot eat a kezayit. And a guest does not prohibit until thirty days, as I wrote at the end of siman 370, see there.