Eruvin and Non-Participants

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The theory of an eruv is that it is the joining of homes and property together into a communal area. There is a problem, however, when the community includes non-observant Jews or those who do not wish to be a part of the eruv.

I. Gentiles in an Eruv

The Mishnah and Gemara (Eruvin 61b-62b) states that gentiles cannot be part of an eruv but need not be. Technically, their presence within an area does not require their participation in an eruv. However, on a rabbinic level, two or more Jewish families who live in an area shared by gentiles must rent permission from the gentiles to use their property. As it happens, my front walkway is shared with my gentile neighbors but since we are only one Jewish family, we do not have to rent permission.

Because this rental is only a rabbinic requirement added onto the generally rabbinic laws of eruvin, the requirements for rental are low. The Gemara allows a weak rental (sekhirus re’u’ah) and permits rental of even just the right of a worker to place items on the gentile owner’s property. You are also allowed to rent permission from a worker or government official who has some rights to enter the land without the knowledge or consent from the owner.

II. Renting from a Jew

Rishonim debate whether rental can also work for a Jew. The Rosh (Eruvin 6:13) rules that it works while the Rambam (Mishneh Torah, Hilkhos Eruvin 2:16) rules that it does not. The Shulchan Arukh (Orach Chaim 380:3) quotes both views and the Magen Avraham (ad loc. 6) and Mishnah Berurah (ad loc. 13) are lenient. However, acharonim debate whether, even according to the lenient view, a “weak” rental works for a Jew. Can we rent the rights from a worker or government official, or do we have to go straight to the owner? R. Chaim Na’eh (Ketzos Ha-Shulchan 105:26) is lenient but most are strict (e.g. Avnei Nezer 45:10). According to them, you must obtain the consent of the owner, or at least cannot go against his explicit refusal. What, then, if he doesn’t like the idea of the eruv and refuses to be a part of it?

R. Yehudah Leib Graubart (Chavalim Ba-Ne’imim vol. 1, Responsa no. 5) quotes R. Chaim Berlin who in turn quotes a ruling of the Atzei Almogim (391:3) that nowadays renting from the government is particularly effective. Tosafos (Bava Basra 55a sv. I’m) writes that in a place where taxes are levied based on the property, the government has a lien on the house and is considered its owner, to a degree. Therefore, the government has sufficient ownership over the town’s houses to give permission for the eruv. This would solve all problems of Jews who choose not to participate in the eruv. The government is sufficient to authorize participation.

R. Baruch Simon (Imrei Barukh on Eruvin U-Reshuyos, pp. 212-213) quotes R. Yoel Wosner who holds that the government’s right of eminent domain, to seize anyone’s property, is sufficient to consider the government an owner of the property. Therefore, as above, the government is authorized to rent out property of both Jews and gentiles for eruvin purposes.

About Gil Student

Rabbi Gil Student is the Publisher and Editor-in-Chief of TorahMusings.com, a leading website on Orthodox Jewish scholarly subjects, and the Book Editor of the Orthodox Union’s Jewish Action magazine. He writes a popular column on issues of Jewish law and thought featured in newspapers and magazines, including The Jewish Link of New Jersey, The Jewish Echo and The Vues. In the past, he has served as the President of the small Jewish publisher Yashar Books and as the Managing Editor of OU Press. Rabbi Student serves on the Executive Committee of the Rabbinical Council of America and as Director of the Halacha Commission of the Rabbinical Alliance of America. He also serves on the Editorial Board of Jewish Action magazine and the Board of OU Press. He has published five English books, the most recent titled Search Engine volume 2: Finding Meaning in Jewish Texts -- Jewish Leadership, and served as the American editor for Morasha Kehillat Yaakov: Essays in Honour of Chief Rabbi Lord Jonathan Sacks.

One comment

  1. shimon 05/27/2010 08:02 AM
    So now R’ Yoel Wosner is an expert on constitutional law (5th amd.)? Publishing this in English can be very bad for the future of Eiruvin. The Gvnmt will get sued big time.
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    Yonatan 05/27/2010 09:26 AM
    I wonder how the recent SCOTUS CT ruling about Eminent Domain affects this Halakha. It should underscore it be the expansion of the Government’s power of Eminent Domain.
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    efrex 05/27/2010 09:31 AM
    Shimon:

    I fail to see your point. Eminent domain has been a feature of US government since day zero, and one does not need to be a constitutional scholar to understand its basic features. There are two issues that I wonder about, however:

    1) Eminent domain is an extremely weak “ownership.” Doesn’t the fact that the government must provide due compensation for the property it seizes prove that it doesn’t, in fact, own the property?

    2) IIRC, many eruvin are constructed around property “rented” from the local police. The police are not the ones responsible for implementing eminent domain, and their access to private property is extremely curtailed by law. Do they really have sufficient “ownership” of others’ property?

    I’m sure that R’ Simon and others address these points, but I’m not in a position to look up the sources right now.
    ———
    shimon 05/27/2010 09:49 AM in reply to efrex
    efrex,

    your two points excactly describe some of my main problems with R’ Wosner theory. That is what I’m talking about.

    Now, just for the sake of argument, imagine that someone (not jewish or religion friendly) would get hold of a document stating that the US government is renting out private property for religious reasons.
    ———
    Michael_Rogovin 05/27/2010 11:31 AM
    One problem with renting from the govt is which official to rent from. I once assisted the expansion of several eruvin in Queens, NY as an official with the Queens Borough President’s Office. The Eruv Committee came to us because we were sympathetic and convenient (it was easy to get a proclamation from us that for $1 we would grant permission. Except that we had no legal authority under the City Charter to do that. In fact, it is not clear to me who under the charter would or what steps would have to be taken. The rabbis involved did not understand that the authority of secular officials described in source texts does not comport at all with modern governments and particularly the unique set up in NYC, nor did they seem to care. To this day I wonder if the eruvs in Queens and elsewhere are actually valid since the government permission may be invalid as a matter of US law. Or maybe I should not bring this up…
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    hirhurim 05/27/2010 12:01 PM in reply to efrex
    Because they have some sort of right to enter, the police can rent out that right which is sufficient for an eruv.
    ———
    hirhurim 05/27/2010 12:04 PM in reply to Michael_Rogovin
    I think it’s pretty clear that you can rent from anyone with even a limited position.
    ———
    efrex 05/27/2010 02:16 PM in reply to hirhurim
    So it seems; as you pointed out, this is a d’rabanan on top of a d’rabanan: a minimalist position certainly seems appropriate.
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    JS 05/27/2010 04:06 PM in reply to hirhurim
    Mishna Brura in 391:18 says that even the most minor gov’t official would work for this purpose. But then he says from the Chayei Adam that it would still have to be someone who has the authority to enter the house without permission (even if only under limited circumstances). His example is that this rental does work with the police (“פאליצי”א”) as you say in your previous comment, but not with the army (even the chief of the army) if the army doesn’t have the power to enter private property.

    I would think that the Queens Borough President’s Office does not have this authority, so according to this Chayai Adam renting from them would not work.

    By the way, I know this halacha since it was in Tuesday’s mishna brura yomis (http://www.dafdigest.org/mby/). (I thought I should plug that program now since it has allowed me to finally have an intelligent comment for Hirhurim.)
    ———
    Joe Socher 05/27/2010 04:31 PM in reply to hirhurim
    But does it matter that police do not have the legal authority to assign/rent/sell that right to anyone else? We are not dealing with some medieval local official who can do anything he wants within his limited domain, but a modern police department governed by all sorts rules and regulations limiting its authority.
    ———
    JS 05/27/2010 07:32 PM
    The mechaber (siman 385) says that Tzedokim are considered Jews with respect to whether rental works for them, even though they are mechalel shabbos. But a Yisroel who is mchalel shabbos bfarhesya is considered a non-Jew. The Mishna Brura says the difference is that the Tzedoki’s Chillul Shabbos is only because of Minhag Avosav Byodov.

    However, the Mishna Brura says that many poskim disagree and say even a Tzedoki has the halacha of a non-Jew for this purpose if he’s mechalel shabbos bfarhesya.

    So, according to the Mishna Brura, a “weak” rental would work for the non-observant neighbors.
    ———
    Charlie Hall 05/27/2010 11:48 PM in reply to Joe Socher
    I’ve been asking that question for a long time and every rabbi basically tells me, “Trust me, it works.”
    ———
    Charlie Hall 05/27/2010 11:48 PM in reply to JS
    Not having anything intelligent to say does not stop most of us ;).
    ———
    Charlie Hall 05/27/2010 11:50 PM in reply to Yonatan
    It merely reaffirmed the status quo: The government has the right to take your property and give it to someone else. Governments have been doing this for 200 years. It just has to pay you for the property.
    ———
    AviB 05/28/2010 12:28 AM
    FWIW, the Boro of Queens Eruv Proclamation grants the Committee “rights to the public domain” as a “matter of public interest” (signed by Donald Manes, A’H).
    I leave it to those more learned than I to determine the legal basis and halachic implications of this.

    IIRC, R. Moshe’s teshuva on the Queens eruv does not discuss this issue. I wonder why not.
    ———
    Michael_Rogovin 05/28/2010 10:54 AM in reply to AviB
    (Also in reply to hirhurim)

    I can’t comment on the halachic principle directly, but as noted by others above, I presume that the halacha assumes that a minor government official has some capacity to act on behalf of the government to authorize property rights to areas of the public domain. The Queens Borough President has no such authority under the laws of the city and state of New York. It is true, however, that from the city’s perspective it is not giving up anything legally and therefore does not object to the action by the BP and will defend the action in court, but in doing so it will have to state that the BP does not do what the proclamation claims the BP is doing — it is ceremonial and has no legal meaning whatsoever. Of course, this is from a secular legal perspective. We have two differing legal systems overlapping, with different standards.

    I guess my query is whether for halachic purposes an official (Jewish or not) with no authority to make unilateral decisions over the use of the public domain or to create any secular property right has the unilateral authority to create a halachic property right. I take it that the Queens Vaad (and others) rule that this is the case. The corollary is why the borough president and not some other official (council member, Transportation Commissioner, County Clerk, etc)? At what point does one say that an elected official with a primary role that is increasingly ceremonial and ombudsman-like has halachic authority to act?
    ———
    MiMedinat HaYam 06/02/2010 07:02 PM in reply to Michael_Rogovin
    there is some sort of official city regulation re granting eruvim (must provide liability ins to indemnify city, etc). of course, dated a couple of years ago, etc so not applicable to queens situation (originally). i saw it on http://www.nyc.gov i believe.

    also, i think that the halachic rule is a minor city official can grant the permission, even a policeman. whatever that means.

    also, as i recall the way it was worded, (and knowing how nyc works) the city will ignore a failure such as not providing liability ins, etc, dependent on the particular politician presenting the issue to the transportation dept.

    and if you dont like the boro prez (who has tremendous influemnce, if not outright power, esp in the old board of estimate days) how can you like the transportation commissioner (who may be some liberal senator’s wife, who may or may not do things to appease religious people in a redefined religious matter). dont forget, bloomberg opposed suspending alernate side on purim, and they’re very angry about that they wree overruled by the city council.
    ———
    Michael_Rogovin 06/03/2010 11:29 AM
    On the eruvs that I worked on, the city has limited involvement. DOT only comes into play if street lights are used and possibly if you cross a street. Con Ed comes into play when its poles (also used by Time Warner/Cablevision and Verizon) are used, but the city is not a party (ConEd was given a right to put almost any wire on its poles). The city comes in mostly on the proclamation and that is invariably done by the Borough President (though the Mayor or Council could also do it I suppose). The DOT commissioner never does this. The only body that could presumably have authority to grant a private property right to public space would be the Franchise and Concession Review Commission, which is majority controlled by the Mayor (I used to serve on it as a BP rep). But I am not certain that even the FCRC has the authority unless it could be characterized as a franchise.

    As for alternate side parking on Purim (also tied to 2 muslim holidays), I agree with the Mayor, it was unnecessary. The suspension for other days was originally because (1) it was a municipal holiday and street cleaning was not done and (2) days when Jews could not move their cars due to the 2 day holiday. Since then it has become a matter of ethnic pride – ‘MY holiday should get recognized too.’ The so called “need” on purim due to shalch manot delivery and seudot are exaggerated or due only to excessive (imho) deliveries which are certainly not religious mandates. I think that govt should accommodate religious practices, but need not suspend normal operations for spurious reasons. I fully expect to get flamed for this but that is why people read this, no?

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