Siman 375

A courtyard that has many houses and many residents in upper stories, and in front of the upper stories there is a balcony that they call a "ganak," and a ladder of steps from the courtyard to the balcony is supported against the balcony, and the residents of the upper stories exit their houses to the balcony, and from there they descend via the ladder to the courtyard, and from the courtyard they exit to the public domain—their law is like two courtyards. For it has already been explained in siman 372 that a ladder has the status of an opening, and it is like two courtyards with an opening between them. And these may establish an eruv for themselves and those for themselves as they wish, and the residents of the upper story will be forbidden to move from the balcony to the courtyard vessels that rested in the house, and certainly from their house to the courtyard. And likewise, the residents of the courtyard are forbidden to move from the courtyard to the balcony vessels that rested inside the house, and certainly from a house to the balcony. Nevertheless, if the residents of the courtyard established an eruv for themselves and the residents of the balcony did not establish an eruv at all, the residents of the balcony forbid the residents of the courtyard for another reason; since their passage is through the courtyard, and they are forbidden in their own place, and we hold later in siman 378 that a foot that is forbidden in its own place forbids in a place that is not its own, see there. But when the residents of the balcony established an eruv for themselves and the residents of the courtyard did not establish an eruv, they do not care, because the residents of the courtyard do not pass through the balcony. And if the residents of the upper stories have no passage at all through the courtyard, such as when the balcony is toward the side of the public domain and the ladder stands in the public domain, they have no connection at all with one another, and they cannot establish an eruv together, since they have no opening to the courtyard. And through a window is also impossible, for the windows in the upper stories are obviously higher than ten tefachim. (And according to Rashi, even a foot that is permitted in its own place forbids in one courtyard, and so it appears from the Rambam and the Bartenura.)

From these matters we have learned, in large cities where there is a multitude of dwellings in every courtyard, and the buildings have first, second, and third stories, and all of them have a balcony of their own, and each one exits to the courtyard by way of his balcony—that the residents of the lower dwellings may establish an eruv for themselves and the upper ones for themselves, and the courtyard will belong to the residents of the lower ones. However, if the upper ones do not establish an eruv for themselves—they will prohibit the courtyard to the lower ones, according to the law of "a foot that is prohibited in its own place." And it is good and proper that the entire courtyard establish an eruv together, or one should acquire it for them and establish an eruv on behalf of everyone, and such is the common custom and one should not change it. (And if there are dwellings that are not open to the courtyard at all but rather exit by way of a balcony to the public domain—it is impossible for them to have a part in the eruv, except that this is not common at all that they would not have an opening to one of the houses or to the courtyard.)

In a courtyard and a balcony, as has been explained, the courtyard belongs to the residents of the courtyard and the balcony belongs to the residents of the upper stories; however, they are not similar to one another in every matter. This means that regarding the balcony—everything found in the balcony belongs only to the residents of the balcony, but in the courtyard it is not so. That is to say, there are times when a high mound or a high pillar stands in the courtyard, and it belongs to the balcony and not to the residents of the courtyard. And there are those that belong to the residents of the courtyard and not to the residents of the balcony, and there are times when both are forbidden from it, as will be explained. And the reason for the matter is thus, for so our sages, of blessed memory, said (83a): A thing over which two domains have authority, and for one its use is with ease and for the other its use is with difficulty—we give it to the one whose use is with ease; and we have already mentioned this above in siman 372, section 14, see there. And according to this, regarding high objects in the courtyard, if for the residents of the courtyard its use is with ease and for the residents of the balcony with difficulty—we give it to the residents of the courtyard. And if for the residents of the balcony its use is with ease and for the residents of the courtyard with difficulty—we give it to the residents of the balcony. And if for both of them it is with ease or for both of them with difficulty—they prohibit one another, and both are forbidden to use it; and now we shall explain what is called "with ease" and what is "with difficulty."

If there is a pillar in a courtyard that is not ten tefachim high from the ground, and also the balcony is not ten tefachim high above it—behold, the usage for both of them is convenient, and they prohibit one another. And even though for the balcony the usage is by way of lowering from above to below, and in the courtyard it is by way of throwing from below to above, and it is known that it is more convenient to use by way of lowering than by way of throwing—nevertheless, this is not sufficient to prefer one over the other, and it is called convenient for both of them, and both are prohibited from bringing out there vessels that rested in the houses. However, this is when the pillar stands close to the balcony within four tefachim. But if it is distanced from it four tefachim—according to the opinion of the Tur it is not called convenient usage for the residents of the balcony, for they must use it by means of a distant reach, and it is given to the residents of the courtyard. But our teacher, the Beit Yosef, in his great book—prohibits even in such a case. And he wrote, that since the usage of the residents of the courtyard is by way of throwing, behold the residents of the balcony can also use it by throwing. Even though they are not entirely similar, for to the courtyard which is less than ten it is not called throwing at all, whereas a distance of four tefachim is called throwing, nevertheless his opinion is so. (And the Magen Avraham, subsection 1, inclines toward the opinion of the Tur; see there.)

And if the balcony has ten tefachim from the pillar until the balcony, and for the residents of the courtyard there are not ten—it is given to the residents of the courtyard, even if it stands adjacent to the balcony. And if it is ten tefachim high for the residents of the courtyard, and from the balcony there are not ten tefachim, and it stands within four of the balcony—it is given to the residents of the balcony, because for them its use is easy and for the residents of the courtyard it is difficult. But if it was four tefachim distant from the balcony—both are forbidden in it, for behold both must use it by means of throwing. And therefore both are forbidden to bring out onto it vessels that rested in the house until they make an eruv. And if for the courtyard it is ten high and also from the balcony ten—for both of them their use is difficult, and they are forbidden. But when it is four tefachim distant from the balcony, and it turns out that for the balcony there are two disadvantages, a height of ten and a distance of four—it is given to the residents of the courtyard. (Taz subsection 2 and so it is implied from Magen Avraham) And if there is a pit ten deep in the courtyard, such that now if it is also fenced ten tefachim in height—the use for the residents of the courtyard is by throwing and by lowering, for behold they must lift above the fence and lower it into the pit. And for the balcony—it is by lowering alone, the Rosh wrote (Chapter 8, Siman 3) that it is given to the balcony. And even though he did not write this explicitly, nevertheless it is proven so from his words. And in the Gemara it does not appear so, and so wrote the Hagahot Ashri there—and it must be said that also the opinion of the Rosh is so, and he did not see fit to explain, see there. (For he wrote only that the halacha is like Rav regarding lowering and throwing, and did not see fit to explain that the same law applies to both together for one. And the Magen Avraham understood that the Rosh does not hold so, and it is impossible to say so, see there and examine carefully) (And the Rambam in Chapter 4 was very brief in this, see there)

Our teacher, the Beit Yosef, wrote in section 3: "If there was a partition of four tefachim in front of the balcony—the balcony does not prohibit the residents of the courtyard, because it is divided from them." Thus far his words. And the reason is that since he made a partition in front of the balcony, he revealed his intent that he has removed himself from the courtyard (Taz, subsection 3). And this is from the Rambam, chapter 4, law 16, see there; and in the Tur this was not mentioned. And in truth, I do not understand what its relevance is to these laws, for in the Gemara (60a) this was mentioned regarding a different matter, when the balcony itself is not ten tefachim high from the courtyard, and they prohibit one another. And regarding this they said, that if they made a partition of four tefachim, they have removed themselves from here, and they do not prohibit the residents of the courtyard, and the residents of the courtyard may make an eruv for themselves, see there. But here we are dealing with a case where the balcony is much higher than the courtyard, and they do not prohibit one another at all, and why is a partition of four needed and what would it avail, for even without this they have removed themselves from here. And it must be said that the Rambam maintains that here too the partition is effective to permit to the residents of the courtyard everything found in the courtyard, even that which is of convenient use for the balcony. (And it is clear that for this reason the Tur did not write this law.)

Projections in a courtyard that extend from the walls: anything that is below ten tefachim is considered part of the courtyard, and the residents of the courtyard are permitted to use it, but not the residents of the balcony. And anything that is within the upper ten tefachim adjacent to the upper stories—the people of the upper story use it, but not the residents of the courtyard. Regarding that which remains between after the lower ten until the beginning of the upper ten, those projections that extend there—both are forbidden in them, and they may not use them with vessels that were in the houses at the onset of Shabbat, unless they made an eruv together.

It is stated in the Gemara (60a): The people of a courtyard and the people of a balcony—where the balcony is within ten tefachim of the courtyard, but they made a fence around it ten tefachim high and left an opening up to ten amot—nevertheless, they cannot divide the eruv and must make an eruv together. And if not, they prohibit one another, since it is within ten tefachim. For it is like one of the houses of the courtyard that has an opening to the courtyard—it thus prevents the eruv. However, if they made a partition of four tefachim at a height of ten before the opening, they have revealed their intention that they have removed themselves from here, and the people of the courtyard may make an eruv for themselves. And I am surprised at the poskim who omitted this law, and it seems that specifically here a partition of four is effective, but for a house in a courtyard it is not effective; see below, siman 392.