Siman 376

It has already been explained in siman 355 that the sages were lenient regarding partitions over water, such that a suspended partition permits them, and we view the partition as if it descends to the depths. We are not concerned that the water mixes beneath the partition, and we require only the recognition of a partition. Therefore, a pit or a well that is between two courtyards, and there is no doorway or window between them through which they could establish an eruv between them, or they have one and did not establish an eruv—one may not draw from it on Shabbat with vessels that remained in the house, or to bring the water into the house, for the domain of both of them rules over it. However, if they draw with vessels that remained in the courtyard and they drink the water in the courtyard, or water the animals in the courtyard and not in the stable—no rectification is required, for it has already been explained in siman 372 that courtyards are a single domain for vessels that remained within them, even if each courtyard established an eruv alone; see there.

And how shall they make a partition to permit them to bring the water into the house, and to draw it in vessels that rested in the house? They shall make a partition of ten tefachim, or it shall be above the water with only one tefach of it descending into the water and nine tefachim above the water, or it shall be entirely within the water with one tefach above the water, so that this domain will be recognizable from that domain, and the bucket will not go into the domain of his fellow. And as for the fact that the water mixes below—we are not concerned about it, as has been written. But the upper partition that is over the mouth of the pit is not effective, because it was not made for the purpose of a recognition of the water, and furthermore, we require it to be near the water and slightly within the water. And even though above in siman 355 regarding a balcony we did not require that the partition be within the water, that is because he stands above on the balcony and lowers everything through the hole straight down, and we are not concerned that the bucket will go outside the partition. This is not the case here, where he stands next to the pit and lowers the bucket—we are concerned lest the bucket go diagonally into the half of the second person. (Magen Avraham, subsection 1) Therefore, we required that there be a bit of partition within the water, so that the bucket will not go to the second side. And this one will stand here and fill from the side of his half, and that one will fill from his second half.

And this applies to a standard mechitzah. However, if they wish to place a beam four tefachim wide over the pit from above—there is no need for any mechitzah, for we say "the edge of the ceiling descends and closes," and this is effective even on dry land, as it has been explained several times that with a width of four tefachim we say "the edge of the ceiling descends and closes," but not with less than this. And in such a case, this one fills from this side of the beam and that one fills from that side, and we are not concerned lest the bucket go to the other side, for the sages estimated that the bucket does not go further than four tefachim. And as for the bucket going under the beam—it does not appear so much as the domain of his fellow, just as they were not concerned about the mixing of the water, and this is among the leniencies they granted regarding water, because it is impossible otherwise, and as I wrote in siman 355, see there.

Everything that has been explained applies when the pit is close to the two courtyards. However, if it is four tefachim distant from each courtyard—for example, if there is a small path between the two walls of the courtyards and the pit is within it—if no courtyard is open to it with a complete entrance, but rather they draw from it through windows open to it from the two courtyards, if there is a lowering of ten tefachim from the windows to the water, such that this drawing is a difficult usage, by way of a distance of four tefachim and by way of a lowering of ten tefachim—both are permitted to draw from it on Shabbat without any rectification, and they do not prohibit one another, even if the pit belongs to both of them. Since they only use it by throwing the bucket through an airspace of four tefachim, we maintain that a person does not prohibit his fellow through airspace in such cases (Gemara chapter 5, according to the system of Rashi), because this is not considered a significant usage at all, unless it is within ten. But if the courtyards are open by way of an entrance to the path—the domain of both of them rules over it, and they prohibit one another until they perform the rectification that has been explained, and it is like the law explained in the previous siman regarding a courtyard and a balcony, where when the domain of both of them rules equally—they prohibit one another, and this is according to the system of Rashi, of blessed memory, there.

But the Rambam, of blessed memory, wrote in chapter 3, law 23: "A well that is in the middle of a path between two walls of courtyards, even though it is distant four tefachim from this wall and four tefachim from that wall—both may draw from it and do not need to extend projections over it, for a person does not prohibit his fellow via airspace" thus far his words, and so wrote our teacher, the Beit Yosef, in section 2. And the Maggid Mishneh explained that the Rambam also intends that the entrance is not open to there, but rather they use it via windows, and so wrote our teacher, the Rema, there on the words of our teacher, the Beit Yosef, which are like the words of the Rambam. However, the Rambam took the case of "even though it is distant from this wall four tefachim etc.," and it is explained that certainly less than four tefachim, and it is called "via airspace"—via airspace ten deep or ten high. And even though in the courtyard and balcony of the previous siman they prohibit one another in height and in lowering ten—a courtyard is different because it is a permanent usage, which is not the case with drawing water from a pit or in a ruin, as will be explained that there too there is no permanent usage. (Taz subsection 2) And furthermore, in an actual courtyard they certainly prohibit even via airspace, for behold, even regarding this well, the permission is only when it stands in a path. But if it stood between the courtyards, half in this courtyard and half in the second courtyard—they would prohibit one another. And only when it stands in a path which is a domain unto itself and its usage is via airspace—they do not prohibit one another. And furthermore, it is called "via airspace" when the usage is only via drawing like a well, or via throwing like a ruin as will be explained. But in a courtyard and balcony, even when ten tefachim high—is it that they cannot use it by carrying to and fro? Behold, they are not forced to use it specifically via throwing.

However, regarding that which the Rambam wrote, "even though it is separated by four tefachim" - it is not understood, for it implies that with less than four there is more of a permission. And yet, on the contrary, with a separation of four it is more uncomfortable to use than when it is not separated by four, for for this reason according to the method of Rashi the permission is specifically only when separated by four, as has been written. And it must be said that this is the reason: that when it is within four of the courtyards, where it certainly belongs to the domain of the courtyards - it is obvious that one cannot forbid the other via the air regarding something that is his. Rather, even separated by four, where it is not as his own, and if so, why should they not forbid one another? And it comes to teach us that even in such cases, one does not forbid his fellow. (Machatzit HaShekel, subsection 4). And with less than four it is possible that even if they are open with actual entrances - they are permitted for the reason that has been explained. (Magen Avraham, subsection 4, and there is no need to emend it, and see Machatzit HaShekel). And one of the great authorities did not bring the method of the Rambam at all, only the method of Rashi alone. (The HaGra"z, section 2).

It appears to me that if this pit is close to one within four cubits and to the second more than four, or exactly four—we give it to the one who is close, according to the principle that was explained in the previous siman, that a matter which for this one its use is easy and for that one it is difficult—we give it to the one for whom its use is easy. And so too here, for the one who is distant, his use is by throwing and distance, whereas for the one who is close, it is only by throwing alone; and this is exactly like the law we explained in the previous siman, section 5, regarding a courtyard and a balcony, see there. Furthermore, it appears to me that this is specifically when the pit belongs to both of them. But if it belongs only to one—we give it to him in any case. And even if on a weekday he permits him to draw from it, nevertheless, on Shabbat he can forbid him, for it stands to reason that because he does him a favor on a weekday, he should not incur a loss through this on Shabbat. (And a proof for this is from the laws of eruv that were explained in siman 370, section 15, see there.)

It is stated in the Gemara (85a): Two houses and three ruins between them, and ordinarily there is no open doorway from a house to a ruin, because there is no complete usage there, but rather they use it by way of windows—each one is permitted to use the one next to him by way of throwing through windows, and his fellow does not prohibit him, because the usage is more convenient for him than for his fellow who is far from it. (Rashi) And the middle one is permitted to both of them, for they can only use it by way of throwing, and with a distance of air space where the outer one intervenes for each, and a person does not prohibit his fellow by way of air space in such inferior usage, as has been written in section 4. And this is when the middle one stands between the two outer ones. But when it stands without the intervention of the outer ones, such as when they stand like a segol, and it turns out that the middle one is also adjacent to the houses, as it stands opposite the two like three heads of a jar—each one is permitted in the ruin next to him, and the third one which is close to the two courtyards is prohibited to both of them, for both of them use it only by way of lowering, and they prohibit one another. And even though regarding a pit we permitted in such a case, this is because in a pit there is only one usage, drawing water. But in a ruin there are many usages, and they prohibit one another. (Rashi ibid. s.v. 've-emtza'i') And the Baal HaMaor wrote the reason, that since it stands alone adjacent to the public domain, we fear perhaps something will fall into the public domain and he will come to bring it; see there. And the Tur wrote that these ruins, even if they belong to other owners, do not prohibit, since they do not dwell in them, and a dwelling without owners is not called a dwelling. And a bathroom that is between two houses that did not make an eruv together—they prohibit one another, since the domain of both of them has authority over it, and the laws of a bathroom were explained above in siman 355.