Siman 83

Just as it is forbidden to recite opposite excrement, so too it is forbidden to recite opposite a beit hakise. And even if they cleared the excrement from it, since there was excrement within it—it is loathsome and remains in its state of prohibition, and we do not apply to it "and your camp shall be holy." However, regarding a new beit hakise, it was a question in the Gemara (26a) whether designation is effective for a beit hakise or not. That is to say: for in all matters we maintain "designation is not a substantial thing." Yet regarding a beit hakise, perhaps because it is a loathsome thing—we are concerned even for designation. And it is stated in the Gemara there that the doubt is only whether it is permitted to recite and pray within it. But opposite it—it is certainly permitted in a new one, as there was no excrement in it yet. And so ruled the Rambam in the third chapter, and the Rosh there, and the Tur and the Shulchan Aruch, section 2. And the opinion of the Ra'avad is that even within it is permitted since it is a rabbinic doubt, and in the entire Torah we maintain "designation is not a substantial thing." And so it implies is the opinion of the Rif. Nevertheless, we maintain the prohibition, for such is the opinion of most of the poskim. And also regarding contemplation it is forbidden. And there is one who is lenient regarding contemplation (Ateret Zekenim, and see Beit Yosef).

It is implied explicitly in the Gemara there that facing a beit hakise—it is forbidden within his full sight, just as it is facing tzoah, and behind him four amot from the place where the odor ceases. And so the Acharonim wrote. And according to this, for the opinion that will be explained that mechitzot do not avail for a beit hakise, even in a large and clean courtyard, and when there is a beit hakise at the edge of the courtyard—one may not recite any berakhah when his face is toward the beit hakise. And also closing the eyes does not avail, as I wrote at the beginning of siman 79. And similarly, night does not avail, as I wrote there. However, regarding the primary law of mechitzot, we have another way, as will be explained with the help of Heaven in section 6.

And know that there is no distinction regarding the designation of a beit hakesa, whether his intention was to designate it temporarily or forever. And likewise, a beit hakesa that he made for a temporary period—its law is like one for forever. However, this is certainly so: if he happened to go for his needs in some place, and his intention was not to make a beit hakesa there—the name "beit hakesa" is not upon it. And when they cleared the excrement—it is permitted for everything. And likewise, even an old beit hakesa that they removed from here and nullified its entire structure, and cleaned the place and leveled the dust in a manner that it is now not recognizable at all that there was a beit hakesa there—it is also permitted. For behold, even regarding tumah, a change of action is effective to nullify it from its previous tumah, and all the more so in this case (so it appears according to my humble opinion).

If one said, "This house is for a beit hakise," and said regarding another house, "and also this one"—the law of the second house is like the law of the first, and it constitutes hazmanah for a beit hakise. Opposite it—it is permitted; inside it—it is forbidden, as I wrote in section 1. And we do not say: since hazmanah itself is only a doubt, and according to the Ra'avad it is entirely permitted as I wrote there; and if so, granted that we are stringent regarding its interior, nevertheless this is regarding the first hazmanah where he mentioned "beit hakise." But the other house which he made dependent on the first and did not mention the name "beit hakise" upon it—it should be entirely permitted. We do not say so, and its law is like the first. However, if he did not say regarding the second house "and also this one" but rather "and this house," even though it is more likely to be interpreted that his intention was also such, that this house shall also be for a beit hakise—for if his intention was for another use, why did he juxtapose it to the matter of a beit hakise? Nevertheless, since it can be interpreted so with difficulty—it is a doubt whether he designated it for this or not. Therefore, one may not recite [the Shema] in it ab initio, but if he recited—he has fulfilled his obligation, because the essence of hazmanah is very lenient. (So it appears to me to interpret the sugya in Nedarim 7b, and the words of the Tur and Shulchan Aruch section 3. Examine carefully and you will find it easy.)

And know that our teacher, the Beit Yosef, wrote in section 1 that the prohibition to recite opposite a beit hakise—this is specifically when it does not have partitions. But if it has partitions, even if there is excrement within it—one may recite opposite it nearby and need not be concerned, provided that a foul odor does not reach him. Thus far his words. And many poskim agreed with him (the Levush and the Bach and the Ma'adanei Yom Tov), but they required that the partitions be ten tefachim high. However, the commentators of the Shulchan Aruch disagreed with him, and wrote that certainly all the battei hakise that were in the time of the Shas had partitions, as the Tosafot wrote in Sukkah (36b). And if so, when they said that it is prohibited opposite a beit hakise, it means even when it has partitions. And the reason for the matter: for partitions that were made for the sake of a beit hakise—their law is like the beit hakise itself. And one requires another partition outside the partitions of the beit hakise, or that the partition was made for the sake of a house, except that they supported a beit hakise against it from the other side, for then it is permitted to recite and to pray opposite this partition (Taz, and the Magen Avraham is somewhat uncertain in this, see there). And behold, even according to this view, in the railroads where they sit in the wagons, and in front of him there is a beit hakise where one of the walls of the wagon serves also for the beit hakise, it is permitted simply to pray and to recite and to bless opposite it. (For even the Taz permits in such a case, and the Magen Avraham even regarding the primary ruling of the Beit Yosef is as one who is uncertain, for he wrote: and one who is lenient should see that at any rate they should be ten high. Thus far his words, see there.)

And in my humble opinion, it appears that the words of our teacher, the Beit Yosef, are correct. For even according to what the Tosafot wrote, that they had partitions, nevertheless it is explicitly proven at the beginning of Tamid (27b) that they did not have a door to be opened. For we say there: Rav Safra was sitting in the beit hakise. Rabbi Abba came and cleared his throat at him... and Rashi explained that it did not have a door to be opened. Rather, this was the custom: a person who wished to enter there would clear his throat, and if a person was there, he would clear his throat in response... Thus far his words. And this explanation is necessary: for a beit hakise that had a door in it was called a "beit hakise of honor," as we learned in the Mishnah at the beginning of Tamid that so it was in the Beit HaMikdash. This is the wording of the Mishnah: And a fire was there, and a beit hakise of honor. And this was its honor: if he found it locked—he knows that a person is there. Open—it is known that no person is there. See there. And therefore, there are those among us who call a beit hakise a "beit hakavod," because there is a door there. But a plain "beit hakise" did not have a door in it, and therefore they correctly said in the Gemara at the end of the third chapter of Berakhot that it is forbidden to recite against it, meaning against the opening, because there the tzoah is visible. But such as ours—it is certainly a complete partition.

Furthermore, there are clear proofs that there are beit kisoat that have no partitions at all. For we say at the end of Berakhot: Rabbi Akiva said: Once I followed Rabbi Yehoshua into the beit kisoat, and I learned from him three things: that one does not relieve oneself east and west but north and south… see there. And this is certain, that if Rabbi Yehoshua had been sitting in a beit kisoat of partitions—he would not have been able to see. For it is obvious that he was not with him within the partitions. Furthermore: that if it were within complete partitions, behold, he could see the place of the seat even when he is not there, as in ours, for of necessity one must sit only in one direction. Rather, it is certain that it was without partitions, and he was able to sit on whichever side he wished. And Rabbi Akiva stood behind him and saw how he sat. And also one cannot say that they were within partitions without a doorway, for if so, even in such a case the place of sitting is recognizable as to which side. Furthermore: that if so, Rabbi Akiva would have needed to stand opposite his face, and it is obvious that he would not have done so. Rather, it is certain that he stood behind him, and also regarding this they said to him: To such an extent have you emboldened your face against your teacher? And he replied that it is Torah, and I need to learn, see there.

And even according to the wording of the Tosafot that there were partitions there, and let us say they were from all four sides, it can be said that they were low partitions slightly above the place of the seat. And the essence of the matter is this: for certainly there are partitions for the beit hakise itself, and these are the partitions of the place of the seat which are like the excrement itself. But the partitions built around the place of the seat—their law is like the partitions of a house regarding the matter of "facing it." And the law that was explained regarding one who says "this house is for a beit hakise" applies also regarding the interior of the house. And furthermore I ask: for even the dissenters admit in this, that when they make a partition before the partition of the beit hakise—it is effective. And if so, these partitions also are like they are before the partition of the beit hakise, for the primary partitions of the beit hakise are the partitions of the place of the seat. Therefore it appears in my humble opinion that one is able to rely on the words of our teacher, the Beit Yosef, and the poskim who agreed with his words, that a beit hakise which has partitions around its four sides, one may recite facing the partitions when the foul odor does not reach him. (And with what we have explained, all the proofs of the Taz and the Magen Avraham are removed, see there well. And be precise and you will find it simple.)

Our teacher, the Beit Yosef, wrote in section 4: A beit hakise that is in a pit, and its opening is at a distance of four amot from the cavity, and it is made on an incline in a manner that the excrement rolls and falls immediately to a distance, and likewise the urine descends immediately to the cavity—it is considered as closed and it is permitted to recite in it. If there is no foul odor in it, and also they do not urinate in it outside of the cavity, but if they sometimes urinate in them—it is forbidden to meditate in them on words of Torah, all the more so to recite Kriyat Shema. Thus far his words. Nevertheless, opposite it is permitted according to the law of urine. (Taz subsection 2. And see Taz subsection 1, for it is obvious to him that there are partitions here. And there is no proof, see there. And examine closely and you will find it easy.)

He further wrote in section 5: People who have a perforated bench and relieve themselves upon it—it is permitted to recite Kiriath Shema facing it, since the excrement is not on the perforation, and also the graf is not beneath the perforation. Furthermore: the perforation is always covered with a board. Thus far his words. And there are those who disagree on this, and hold that this bench has the status of a complete beit hakise, and one is obligated to remove it or cover it all around. And so too in houses that contain small chairs for the needs of children, if their excrement is forbidden according to what has been explained in siman 81—these chairs also have the status of a beit hakise, and one must remove them or cover them (Magen Avraham subsection 5). And so one should instruct.

The Rambam wrote at the beginning of the third chapter: One may not recite [the Shema] in a bathhouse, nor in a bathroom even if there is no excrement in it, nor in a cemetery, nor beside the deceased itself… and anyone who recited in a place where one may not recite – must return and recite. Thus far his words. And the Ra'avad disagrees regarding "recited beside the deceased," see there. Our teacher, the Beit Yosef, above at the end of siman 71, ruled like the Rambam, and wrote the reason that the sages penalized him, see there.