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August 2, 2015 / 17 Av, 5775
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Eruvin: Dissenters And Protesters

In order to carry from one’s home into the street (even when the area is enclosed by a properly constructed eruv), the eruvin ceremony must be performed. This ceremony involves the placing of food in one designated home on behalf of all Sabbath observers in the enclosed area. In order for the eruvin ceremony to be valid, however, it must be performed on behalf of all owners of streets and homes in the enclosed area.

Because non-Jews and others who do not observe the Sabbath are not eligible to participate in the eruvin ceremony, the eruv committee must enter into a nominal lease by which the non-Sabbath observant owners lease their streets and homes to the Sabbath observers to enable the latter to conduct a valid eruvin ceremony. This rental procedure is known as sechirat reshut. No written instrument and only token rent is required for sechirat reshut.

Sechirat reshut of streets and other public areas is entered into with those authorities and their agents that control them or exercise jurisdiction over them, such as mayors, borough presidents or even police officers. It is, however, impractical to effect sechirat reshut with each non-Sabbath observant homeowner in the enclosed area. The solution of the Chazon Ish and others, is once again, to rent such private homes from the governmental and municipal authorities that exercise jurisdiction over them.

This solution is based on the halachic principle of right of entry or tefisat yad. The halacha recognizes the right of the authority to rent out the property over which it has a right of entry. The power of the government or the municipality to expropriate private property in times of war or to build roads, or the right of police, fire or sanitation officials under certain circumstances to enter private homes without owners’ consent, are a few examples of right to entry upon which the halacha relies for the purpose of sechirat reshut.

What about those who refuse to participate in sechirat reshut or in the eruvin ceremony and protest it in principle? For example, some Sabbath observers object to an eruv because they believe it to be invalid and wish to prevent others from mistakenly relying on it. Can the property of such protesters be included in the private domain brought about by the eruvin ceremony? If it cannot, the eruvin ceremony is invalid and no carrying will be permitted by anybody from homes to streets or vice versa, in the enclosed area.

The late Rav Menachem Kasher, in his treatise on the Manhattan eruv, suggests the eruv protesters can be ignored and thus have no power to invalidate the eruv for use by others who wish to rely on it. Rav Kasher cites several reasons for his opinion. First, even if the protesters are correct in considering a particular eruv invalid, this should not prevent others, who are unaware of the situation, from using it in good faith. “Better that they violate unintentionally than deliberately” is a halachic principle that applies to certain rabbinic enactments, including the prohibition of carrying in a karmelit.

Accordingly, argues Rav Kasher, the protester bestows no benefit on others but simply spoils for the sake of spoiling. Such conduct is called “Ethics of Sodom” and can be legally ignored.

Moreover, Rav Kasher argues that once the authority has rented the area, it is irrelevant whether the individual resident condones the use to which it is put. In his treatise Rav Kasher describes his visit to Rav Moshe Feinstein, a prominent opponent of the Manhattan eruv. After attentively listening to Rav Kasher’s arguments in favor of the Manhattan eruv, Rav Moshe did not object to its use by those who wish to use it though he still preferred not to use it himself.

About the Author: Raphael Grunfeld’s book, “Ner Eyal on Seder Moed” (distributed by Mesorah) is available at OU.org and your local Jewish bookstore. His new book, “Ner Eyal on Seder Nashim & Nezikin,” will be available shortly.


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