Siman 409

One who places his eruv in a cemetery—meaning, upon a built grave which is forbidden for benefit, as is written in Yoreh Deah siman 364—it is not an eruv. For even though at the time of the acquisition of the eruv we are not concerned, as mitzvot were not given for benefit, nevertheless, since it is pleasing to him that the eruv remain thereafter, as it is a matter of food or drink, he thus benefits from it. And even though we need not be concerned with what happens after the acquisition of the eruv, nevertheless, since his intention is to acquire a residence there and it is like his home, and it is forbidden to acquire a home from items forbidden for benefit (Gemara Eruvin 31a)—consequently, this residence is void, and the eruv is void. This is according to the opinion of the Rambam in chapter 6 and our teacher, the Beit Yosef, in section 1. However, the Tur actually ruled that only for a kohen is it not an eruv, because he cannot reach the place of his residence, but for a Yisrael it is. (And that which is in the Gemara is not according to the conclusion, see there). But if he placed the eruv in a beit hapras—which is a field in which a grave was plowed and its impurity is rabbinic—even for a kohen it is an eruv, because he can enter there in a "flying tower," that is, a tower that holds forty seah and is carried upon animals, or by means of blowing, according to the law of a beit hapras where one blows and sees that there is no bone the size of a barley grain and proceeds. The kohen can also reach the eruv and take it by means of flat wooden vessels which do not contract impurity. So too, a grave in the ground is not forbidden for benefit, as is written in Yoreh Deah there; and according to those who forbid there the earth placed upon the grave, it is not an eruv. These laws are not in their place here to be explained.

In the location of the eruv he acquires residence; therefore, he and his eruv must be in one location during bein hashemashot, which is the time of the acquisition of the eruv, so that it would be possible for him to eat it there during bein hashemashot. However, in two different domains—it is not an eruv. Therefore, if he intended to reside in a reshut harabim and placed his eruv in a reshut hayachid, or intended to reside in a reshut hayachid and placed his eruv in a reshut harabim—it is not an eruv, for it is impossible for him to take it out during bein hashemashot from a reshut hayachid to a reshut harabim, or from a reshut harabim to a reshut hayachid. But if he intended to reside in a reshut hayachid or in a reshut harabim and placed his eruv in a karmelit, or if he intended to reside in a karmelit and placed his eruv in a reshut hayachid or in a reshut harabim—this is an eruv, because at the time of the acquisition of the residence and the eruv, which is bein hashemashot, it is permitted to take out and bring in from a reshut harabim or from a reshut hayachid to a karmelit, for one only makes an eruv for the sake of a mitzvah, and regarding any matter that is a shevut, they did not decree against it during bein hashemashot for the sake of a mitzvah, as was written in siman 342. And even though he could also bring the eruv from a reshut hayachid to a reshut harabim or vice versa by means of a non-Jew, which is only a shevut—nevertheless, how can we say that his home is established by means of the two meals in a matter that he cannot bring to his home by himself? For it is not the way of a home to bring one's meal by means of others; since his entire home is the meal, it is like bringing a home by means of others, and this is not his home.

If one placed it on the top of a reed or on the top of a pole that grows from the ground, which are subject to a prohibition of use on Shabbat like a tree—it is not an eruv. For even though this too is only a shevut—nevertheless, they decreed upon this even during bein hashemashot, for the reason that they are soft and easy to snap, and it is easily close to coming to a Torah prohibition, and they decreed even in a place of a mitzvah. And if they are detached from the ground and only stuck into the ground—behold, this is an eruv, for in such cases the prohibition of snapping them is not from the Torah, as I wrote in siman 336, see there. And similarly, when one places his eruv in the reshut harabbim and also his place of rest is in the reshut harabbim, but the eruv is eight amot away from his place of rest—likewise, it is not an eruv, even though he can carry it less than four amot at a time—because this too is close to coming to a Torah prohibition. (Magen Avraham, subsection 7) But less than eight amot—it is permitted, because he can carry it one time less than four amot, and the eruv will be within four amot of the place of rest, for in one time he will not stumble. And similarly, if he placed the eruv in a chest and locked it, and the key was lost while it was still day or a mound of debris fell upon it, if he can remove it without performing a Torah labor—it is an eruv. Provided that the place of rest is in the domain where the chest stands, that is to say, when the chest stands in a reshut hayachid—his place of rest must also be in a reshut hayachid or in a karmelit, and if the chest stands in the reshut harabbim and the chest is ten high and four wide—his place of rest must be on the chest or in a karmelit.

Anyone who places his eruv in a location—he has four amot in the location of his eruv in addition to the two thousand amot, because he acquires a residence there so that it shall be like his home, and there is no home less than four amot. And one should not ask that if so, we should require that he place his eruv specifically in a residential house as with eruvei chatzerot, for it can be said that they did not wish to burden him in this, for if so, if he did not have a house at the end of the techum he would not have an eruv, and the entire enactment would be nullified. Therefore, since eruvei techumin is only for a matter of a mitzvah—the sages said that he can acquire a residence in any location whatsoever.

And since he has four amot, therefore the sages said (35b) that one who places his eruvei techumin at the end of the techum, and it rolled outside of four amot before bein hashemashot—it is not an eruv. And even though he could bring it within four amot during bein hashemashot and carry it one time less than four amot, as was written in section 3—nevertheless it is not effective, for if he were acquiring a place of dwelling in the location where the eruv is—he would now be standing outside the techum. Therefore the rabbis ordained that it shall not be an eruv unless the eruv is within the techum, (Tosafot ibid.) for it is impossible to make the power of the eruv greater than his own power. And if it rolled within four amot—it is an eruv. And even though one who went outside the techum—even one amah—may not enter, as was written at the beginning of siman 405—this is not a comparison, for there he has the dwelling of his house and that is like the four amot of the dwelling, and if so he has no other four amot. This is not the case in the place of his eruv, for he has the place of dwelling of four amot, and if so he is still not outside the techum. (Beit Yosef) And likewise if he did not place the eruv at the end of the techum but rather within the techum, and it rolled far away but is still within the techum, even though he intended for these specific four amot and how can we give him other four amot—this is because we are witnesses that such was his intention, that if it rolls far away—there shall be his place of dwelling, since even there it is within the techum, whereas outside the techum—his intention is not effective.

If his eruv was lost or burned, or if it was at the end of the techum and rolled outside of four amot, or if it was terumah and became impure—in all these cases, if it occurred while it was still day, it is not an eruv; and if after dark, behold it is an eruv, because the acquisition of the eruv is during bein hashemashot. And if it is a matter of doubt, it is valid, for a doubt regarding the eruv is a rabbinic doubt, and we follow the lenient path. And this is specifically when the eruv had a presumption of validity, such as one who placed it there and a doubt occurred regarding it. But if it did not have a presumption of validity, such as a doubt whether it was placed there or not, we do not say "a doubt regarding an eruv is valid," because in such instances there is a presumption for stringency—establish the person on the presumption of his home's techum, that he did not make an eruv. But when the eruv has a presumption of validity, we establish its presumption against the presumption of his home's techum, and a rabbinic doubt is judged leniently. (See Rashi 36a, s.v. "Ha'amad," and see what I wrote in siman 394). And if he made an eruv with a doubtful treifah, it is not an eruv, for we require a meal that is fit while it is still day, and this is certainly not fit due to the doubt of its treifah status. (Magen Avraham subsection 9)

All these that we have said "is not an eruv"—they have the rest of their home, and we do not say "behold, he uprooted his intention from the rest of his home." And it is similar to the law that will be explained regarding one who was coming on the way and recognized a tree or a fence and said, "my rest shall be beneath it," but was unable to arrive there at the time of the acquisition of the eruv—that he has only four amot, for the reason that he uprooted his rest from here and there it is not an eruv, as will be explained in section 14. And so too here, that he uprooted from the rest of his home and in the place of the eruv—it is not an eruv and he shall not move from his four amot. For it is not so; for there it is regarding one coming on the way, but here where he is in his home and made an eruv in a place where it is not an eruv—he has his rest in his home, for presumably it is pleasing to him to acquire in his home when his eruv is not an eruv. (Rashi 60, starting with "and he prohibited," see there; and see Magen Avraham siman 411, subsection 1)

How is the making of an eruv: If one desires to go to the end of the techum or within the techum and to remain there until dark, and his intention is to acquire a residence there - this is the essence of its commandment. And even if he did not say "my residence is in my place," but rather remained there until dark and was silent, since his intention was for residence - behold, this is an eruv. But if his intention was not for residence - it is not an eruv, unless he said "my residence is in my place." And there is no difference in this between one who left his house to acquire a residence there and went out to remain until dark at the techum, and one who was coming on the way and it became dark for him - he acquires two thousand amot without speaking. And for one coming on the way - intention is not necessary, for he automatically acquires a residence in the place where he was during bein hashemashot, for behold even one who is sleeping has a residence, as I wrote in siman 401, and all the more so one who is awake. And it appears to me that even though he walks throughout all of bein hashemashot and did not stand in one place, and it was explained in siman 397 that anything that moves - does not acquire a residence, like flowing rivers, nevertheless a person acquires a residence in his place, for behold it is within his power to stand or to sit, and we have not found in any place that one who walks shall not acquire a residence. And we say: "Since if he stood he would acquire - one who walks also acquires," just as with one who sleeps there, as we say in such cases, see there.

And behold, this is the essence of the eruv, namely, an eruv by foot. However, the sages were lenient for one who does not wish to exert himself and wait for darkness there, that he may go while it is still day or send a messenger and place there food for two meals, each and every person according to his food. And in this too they followed a leniency, for ordinary people require two average meals which are approximately six eggs of bread, and even if he is a glutton—an average amount is sufficient for him. However, if he is ill and does not require that much for two meals—less is sufficient for him. And it is not specifically from bread, for the same law applies to anything with which one may form a shitufi mevaot. And even one who swore not to derive benefit from a loaf—one may establish an eruv for him with it, for one only establishes an eruv for a matter of a mitzvah, and mitzvot were not given for benefit. (Magen Avraham, subsection 12) And if it is a condiment—it is sufficient with the amount of condiment that is eaten with two meals.

And for such an eruv, a verbal declaration is specifically required, since it is not at his place of dwelling. He should say at the time he places the eruv: 'With this eruv it shall be permitted to walk tomorrow two thousand amot from this place of my eruv,' and he performs the blessing as will be explained at the end of siman 415, and he returns and sleeps in his house. And they measure his techum for him from the place of his eruv, for we view it as if he dwells there, for we are witnesses that if he had a place to dwell there, he would dwell there. (Gemara 73a) And for this reason, students who eat in the houses of the homeowners, whose houses are in the field, and they go and sleep in the house of their teacher—even though regarding eruvin the place of bread is primary, nevertheless, for the students they measure the techum from the house of their teacher which is the place of their sleeping, for the reason that we are witnesses that if they were to bring them their food there, it would be more pleasing to them, for in the house of their teacher was their primary dwelling. (ibid.)

And if he wishes, he may send the eruv by means of a messenger, and the messenger shall say at the time of placing the eruv: "With this eruv, so-and-so shall be permitted to walk tomorrow two thousand amot from the location of the eruv." And he shall recite the blessing, for a person's messenger is like himself. Provided that the messenger is not a deaf-mute, an insane person, or a minor, who are not fit for agency, and also do not possess the legal capacity to acquire a dwelling place. And it is not similar to eruvei chatzerot, which is collected even by means of a minor, as is written in siman 366, for there, speech and intent are not required, which is not the case regarding techumin. And likewise, one should not appoint as a messenger one who does not believe in eruv or a non-Jew, and if he appointed one of any of these—it is not an eruv; even if he stands from afar and sees that they placed the eruv—it is nothing.

And this is when he makes them agents to place the eruv. But if he appointed one man to receive it from them as an eruv and place it on his behalf, and they are not agents except to deliver the eruv to the man—we do not care, and in such a case he may send it even by means of a trained animal, such as an elephant or a monkey. However, even regarding this they do not have credibility, and one must stand at a distance and see that they delivered it into his hand. And even though in a rabbinic matter they have credibility, nevertheless regarding eruvei techumin, which has a basis in the Torah, they were not given credibility; and furthermore, the matter is burdensome and we fear they will not fulfill their agency. But one who promised him to place the eruv is trusted, and there is no need to see if he fulfilled it, for there is a presumption that an agent performs his agency. And even though in Torah matters there are those who hold that one may not rely on this presumption, nevertheless in rabbinic matters we certainly rely on this presumption. And in a matter where the other person could stumble, even in Torah matters we say this presumption, as we explained in Choshen Mishpat siman 182 section 7. (And see Magen Avraham subsection 17) And so too, many who joined together in eruvei techumin may all send by means of one person who shall establish the eruv for all of them.

Ab initio, when one appoints a messenger, he must say to him: "Go and establish an eruv for me toward the east or toward the west," according to his desire. For if he says it to him without specification, how would the messenger know toward which direction he wishes to establish the eruv? Nevertheless, if an individual or many said to one person, "Go and establish an eruv for us," without specification, and he went and established an eruv toward one of the directions—his eruv is a valid eruv, for we say that such was their intention, that toward whichever side he establishes the eruv it is pleasing to them, and afterward it will be revealed toward which side he will establish the eruv, and the matter is clarified retroactively that they desired this side; for we maintain that there is berirah in matters of rabbinic law, and techumin are rabbinic. And it is obvious that if they said to him, "Establish the eruv to the east," and he established it toward another side—it is not a valid eruv. And even regarding the quality of the eruv, when the messenger deviated—it is not a valid eruv, such as if he said to him: "Establish the eruv for me with dates"—and he established it for him with dried figs, "with dried figs"—and he established it for him with dates. If he said to him: "Place my eruv in a tower"—and he placed it in a dovecote, "in a dovecote"—and he placed it in a tower, "in a house"—and he placed it in an attic, "in an attic"—and he placed it in a house—it is not a valid eruv, even if the messenger established the eruv for him from his own property. But if he said: "Establish an eruv for me" without specification, and he established it for him whether with dried figs, whether with dates, whether in a dovecote, whether in a tower, whether in a house, whether in an attic—his eruv is a valid eruv, even if he established the eruv from the property of those who requested the eruv.

One who was coming on the way and saw a tree or a fence from a distance and he recognizes them, and they are at the end of two thousand amot from the place where he currently stands, and he fears that he will not arrive there during bein hashemashot, which is the time of the acquisition of the eruv, and therefore he says there in the place where he is: "My shvittah shall be under such-and-such a tree at its trunk," "under such-and-such a fence on its eastern side," and the like, whereby he specified the place—he has acquired shvittah there, and he has from there two thousand amot in every direction, and this is also among the leniencies they applied to eruv. Nevertheless, we require that by some manner of walking it would be within his power to arrive there during bein hashemashot, such as if he were to run very fast; therefore, even though by walking in his usual manner he would not arrive there—we do not care, and we view him as if he were standing there during bein hashemashot. But if in any manner he is unable to arrive there during bein hashemashot—this is not an eruv, for how can he acquire shvittah there when it is not within his power to arrive there at the time of the acquisition of the shvittah. And in such a case, he has not acquired shvittah at all, and he has only four amot in the place where he will be during bein hashemashot, for he has uprooted his shvittah from here and he did not acquire it there. And it is not similar to one who sat in his house, for if he did not acquire an eruv he has the techum of his house, as I wrote the reason in section 7; see there.

And this is also when he specified his place of rest at its base, as has been explained. But if he did not specify his place of rest, for example, if he said: 'My place of rest shall be under the tree' or 'under the fence,' and the entire tree and the fence do not stand within two thousand cubits from the place where he is—he has not acquired a place of rest, for perhaps he intended for a place that is beyond the two thousand cubits; therefore, he may not move from his place and has only four cubits, as has been explained. And if the entire tree and the fence stand within two thousand cubits, but he did not designate his specific place of rest, as he said 'my place of rest shall be under it'—he has four thousand cubits from his place toward the side of the tree and the fence, and he shall deduct from this the span of the tree and the fence. For example, if their area was twenty cubits—he has four thousand cubits less twenty because of the doubt, for we do not know at which place he intended to acquire the place of rest, and perhaps he intended at their beginning, and it turns out that the boundary will reach until twenty cubits less.

The Rambam has another opinion in this matter, that one who acquires a shvut at a distant location and did not specify the location of the shvut, even if it is entirely within two thousand cubits—he has not acquired a shvut there, but rather in the place where he is standing during bein hashemashot. And so too in his opinion, if one said "my shvut shall be in such-and-such a place" and he is further than two thousand cubits from that place—he acquires a shvut in his current location, as one who sits in his home.

Therefore, one who says, "My shvitat is under such-and-such a tree," if there are eight amot beneath it, he has not acquired shvitat, because we do not know which four amot he intended. But with less than this, there is the middle amah, in which, in any case, his shvitat resides, and thus a portion of his place is recognizable—and he has acquired the eruv. Therefore, in such a case, he must intend to acquire shvitat at its trunk or in the four amot to its north or to its south and the like, and such is the opinion of the Rif, of blessed memory. And if two were walking on the way, and one recognizes the place of shvitat and one does not recognize it, the one who does not recognize it entrusts his shvitat to the one who recognizes it, meaning that he relies upon him, and the one who recognizes it says, "Our shvitat is in such-and-such a place." And this leniency to say "My shvitat is in such-and-such a place" even without bread—they only applied this leniency to one coming on the way, but not to one who is sitting in his house, for one who sits in his house must either go and sit during bein hashemashot in the place where he wishes to acquire shvitat, or he must send bread there, as has been explained.