Chapter One of Tractate Shabbat – Lesson 36
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Table of Contents
- The Talmud’s lack of systematization, rules, and examples
- Positivism and casuistry in law, Rabbi Chaim, Torah–Mishnah–Talmud
- Maimonides and the attempt to create order
- The role of the commentators and rules as a “ladder”
- The four domains of the Sabbath and the exemplary character of the definitions
- Karmelit as a separate domain and not a “rabbinic public domain”
- Courtyards and alleyways, corrective devices, eruv, and joint eruv
- The question why additional domains are not counted: karpef and a courtyard without an eruv, and Tosafot
- The private domain in the baraita: a trench and a fence, Pnei Yehoshua and the explanation for why a “house” is not brought
- The dispute between the Vilna Gaon and Rashi in explaining “fence” and the implications of gud asik
- Sukkah, Sabbath, “since it serves as a wall,” and the question of recognizable partitions
- The number of partitions required for a private domain: Maimonides versus most of the medieval authorities (Rishonim), Magen Avraham and the Shulchan Arukh
- The Taz: being open to the public domain removes the status of private domain
- The role of the side-post / overhead beam and the correction of an alleyway: Torah-level or rabbinic
- Bi’ur Halakhah: summary of the disputes and the ruling regarding “the public passes through”
- A planned return to the topic in the next lecture
Summary
General overview
Throughout the study of carrying and transferring on the Sabbath, the definitions of the various domains remain in the background. But the claim is that the Talmud does not operate systematically through definitions and rules; rather, it works in a casuistic structure of examples and cases, because orderly definitions immediately get tangled up in exceptions, and rules do not really stand the test of reality, serving at most as a partial aid. Within that framework, the baraita of the four Sabbath domains is presented, but even there there are no definitions spelled out in completely explicit terms, only examples. From that, fundamental questions are sharpened regarding the nature of karmelit, the status of courtyards and alleyways, and the Torah-level definition of a private domain. Later, disputes among medieval authorities (Rishonim) and later authorities (Acharonim) are brought as to whether a private domain requires four partitions by Torah law, or whether three, or even two partitions plus a side-post, suffice; and what exactly is the role of alleyway and courtyard corrective devices—whether they create a Torah-level partition or merely permit what is otherwise a rabbinic prohibition. Along the way, the positions of Pnei Yehoshua, the Vilna Gaon, Magen Avraham, the Taz, and Bi’ur Halakhah are discussed, with the conclusion that the precise reading of the passage will become clear in the next lecture.
The Talmud’s lack of systematization, rules, and examples
The Talmud is presented as a system not built in a systematic way of first defining and then applying, but rather as beginning with “messy situations” and cases before basic definitions. And even when an apparently orderly baraita is brought, it gives examples and partial characteristics rather than a full definition. The claim is that this is an ideology and not a flaw, because general definitions immediately generate exceptions, whereas examples allow for a better grasp of the concept even if that grasp is more amorphous. A comparison is drawn to modern thinking, which prefers mathematical and general description, but the claim is that such descriptions are usually not “the correct description” and fail to capture nuances—similar to the way grammar rules of a language do not teach natural speech as well as learning through actual usage.
Positivism and casuistry in law, Rabbi Chaim, Torah–Mishnah–Talmud
A legal distinction is presented between a positivist approach, which imagines the legal system as deduction from general axioms, where the judge is a kind of “logical machine,” and a non-positivist casuistic approach based on precedents and analogy between cases. Rabbi Chaim Soloveitchik is presented as tending toward positivist thinking, whereas the Mishnah is presented as clearly casuistic—a collection of “cases” and disputes over cases without general formulation. The Torah is presented as consisting of very general statements from which “you can’t really derive anything,” and it is suggested that the non-systematic structure of the Talmud comes from the fact that it is built on the Mishnah, and not necessarily from a conscious decision of the editor of the Talmud—though the possibility is also raised that there was some partial awareness of this method.
Maimonides and the attempt to create order
It is said that it is no accident that Maimonides came later in order to “make order” out of the mess, but the claim is that in practice what happened was that yeshiva learning turned Maimonides himself into an object of pilpul, reconciliation of contradictions, and explanations—to the point that “they turned Maimonides into Talmud.” The claim is that when one tries to formulate bottom lines and binding rules, objections and exceptions are immediately revealed, forcing a return to a Talmud-like structure of reasons and answers. Therefore, the method of absolute summarization is bound to “fail” by its very nature.
The role of the commentators and rules as a “ladder”
The Talmud is presented as laying things out “as they are,” and the role of the commentators is to extract principles out of the confusion. But those principles are presented as a primitive description and only a partial approximation of reality, and they must be treated with “limited reliability.” The rules are described as a tool that helps one navigate, but anyone who thinks they are “the real thing” will fail because of exceptions, qualifications, and differences between passages. The rules are described as a “ladder” that one climbs in order to reach understanding and then “throws away”; the understanding is not the set of rules, but what is formed through using them and then discarding them.
The four domains of the Sabbath and the exemplary character of the definitions
The baraita is cited: “There are four domains for the Sabbath: the private domain, the public domain, karmelit, and an exempt place,” and it is said that this is an orderly formulation. But even here, the private domain is not defined through the typical structure of a house, but through examples like a trench and a fence, without details such as the number of walls or conditions of enclosure. The public domain is given through examples like “a main road, a large plaza, and open-ended alleyways,” and not through a systematic definition such as “six hundred thousand” or “roofed/not roofed.” The prohibition of carrying between private and public domain is described through the laws of liability: a sin-offering if done unintentionally, and karet and stoning if done intentionally. An exempt place is presented through the laws of a threshold, with the dispute of “others,” according to whom a threshold serves two domains.
Karmelit as a separate domain and not a “rabbinic public domain”
It is said that karmelit is unusual because it is defined rabbinically, whereas the other three domains are Torah-level. But it is emphasized that it should not be defined as a “rabbinic public domain,” because it is forbidden to transfer from karmelit to the public domain and vice versa, whereas if it were merely a rabbinic version of public domain, there would be no reason for such a prohibition beyond the law of four cubits. The claim is that precisely the mutual prohibition between karmelit and public domain proves that karmelit is an independent fourth domain, whose status is rabbinic but whose essence is not identical to public domain. A formulation is presented according to which the Sages treat karmelit “stringently in both directions”: from the standpoint of private domain they treat it as public domain, and from the standpoint of public domain they treat it as private domain.
Courtyards and alleyways, corrective devices, eruv, and joint eruv
The structure of courtyards and the alleyway is described: houses open into courtyards, and courtyards open into an alleyway enclosed on three sides and open on one side to the public domain, as opposed to an “open-ended alleyway,” which is open on both sides. The baraita says: “Courtyards of many people and alleyways that are not open-ended—if they made an eruv, they are permitted; if they did not make an eruv, they are forbidden,” and the standard explanation is described: by Torah law, a courtyard and an alleyway are private domain because they belong to a specific group and not to the public at large, but the Sages prohibited them because of their similarity to public domain. The corrective devices for courtyards and alleyways are described: in a courtyard, side-posts for the courtyard, and in an alleyway, a side-post or overhead beam, whose role is to permit carrying within the courtyard/alleyway themselves. But an eruv chatzerot and a shituf mevo’ot are still required in order to permit transferring from the houses into them, by unifying ownership through food placed in one house.
The question why additional domains are not counted: karpef and a courtyard without an eruv, and Tosafot
Tosafot’s question is brought in the name of Rabbi Shimshon of Kinon: apparently one should count five domains because of “a karpef larger than two se’ah that was not enclosed for dwelling,” where someone who throws from the public domain into it is liable, yet carrying within it is limited to four cubits. Tosafot answers that this is a “full private domain,” except that for purposes of carrying within it, it was treated like karmelit. Therefore it is already included under private domain and karmelit, and for the same reason “a courtyard without an eruv” is not counted separately. A fundamental question then arises: why is karmelit counted as an independent domain if it too seems like a combination of laws? The answer given is that there is no choice but to say that it was necessary to teach at least once that there is a domain defined by the Sages alone as a separate domain, and once that principle has been taught through karmelit, there is no point in adding more rabbinic “domains” that are merely further combinations.
The private domain in the baraita: a trench and a fence, Pnei Yehoshua and the explanation for why a “house” is not brought
The question is asked: why does the baraita open the private domain specifically with a trench ten handbreadths deep and four wide, and a fence ten high and four wide, rather than with the typical example of an area surrounded by partitions, like a house? Pnei Yehoshua is brought as explaining that the baraita presents novelties and not the obvious case. He adds that it could not have defined it as “a place enclosed by four partitions,” because in actual truth even three partitions, and even two partitions plus a side-post, make one liable if he throws into it. Therefore the baraita preferred examples in which four sides are necessarily present. It is concluded that this explanation fits well with the general claim that a general definition would immediately have produced complications.
The dispute between the Vilna Gaon and Rashi in explaining “fence” and the implications of gud asik
The Shulchan Arukh is cited as defining a private domain as a place surrounded by partitions ten handbreadths high and containing an area of four by four, and it adds examples of a trench and a mound. The discussion is what the source is, if the baraita did not explicitly mention a “house” enclosed by partitions. In the Vilna Gaon’s commentary it is said that the main source is the baraita, but that “fence” there is not understood as Rashi explains it. Thus the Vilna Gaon understands “fence” as a place enclosed around an area, whereas Rashi interpreted it as a wall or pillar four wide. Rashi is cited explaining “a full private domain” as one that has partitions on every side, and in the case of a fence/pillar one invokes gud asik in order to treat its top as enclosed on four sides.
Sukkah, Sabbath, “since it serves as a wall,” and the question of recognizable partitions
A question is raised about a sukkah, which is valid with two walls and a side-post—what is its status on the Sabbath when there is no eruv? The discussion from Tractate Sukkah 7a is cited, that “since it serves as a wall” for sukkah, it is also valid for Sabbath on the Sabbath of Sukkot. This leads to a discussion of gud asik and a possible difference between sukkah and Sabbath regarding the need for “recognizable partitions.” It is said that the topic is discussed in Rabbi Chaim and was studied in a previous lecture, without entering into its details here.
The number of partitions required for a private domain: Maimonides versus most of the medieval authorities (Rishonim), Magen Avraham and the Shulchan Arukh
A dispute among medieval authorities (Rishonim) is presented through Magen Avraham: many decisors hold that two partitions and a side-post constitute a Torah-level private domain, because the side-post counts as a partition, and the Rosh strengthens this. By contrast, Maimonides holds that three partitions are like karmelit. It is emphasized that karmelit here means that by Torah law it is an exempt place and not a private domain, and therefore according to Maimonides there is no Torah-level private domain except with four partitions. The Shulchan Arukh in section 363 is cited: “A place that has three partitions—the Sages forbade carrying in it until some correction is made on the fourth side,” and it is said that from this it is clear that the Shulchan Arukh tends not to follow Maimonides, but rather sees three partitions as a Torah-level private domain, with only the carrying prohibition being rabbinic until a correction is made.
The Taz: being open to the public domain removes the status of private domain
The Taz is brought as resolving a contradiction in the Tur between the assertion that three partitions are a Torah-level private domain and the definition of an alleyway with three partitions as a rabbinic karmelit. He proposes a distinction: when it is open to the public domain and the public presses in to enter, the public domain “spoils” its status as private domain and turns it into “sides of the public domain,” which have the status of karmelit. It is noted that the Taz finds this distinction also in the Maggid Mishneh on chapter 17, which distinguishes between being open to the public domain and being open to karmelit. It is concluded that according to this, even for approaches other than Maimonides, an alleyway open to the public domain is not a Torah-level private domain. This is presented as a novelty as against the common view that an alleyway is by Torah law a private domain.
The role of the side-post / overhead beam and the correction of an alleyway: Torah-level or rabbinic
It is said that the discussion also depends on whether we are dealing with a corrected or uncorrected alleyway, and whether the side-post / overhead beam functions as a fourth wall creating a Torah-level private domain, or whether it is only a marker that permits a rabbinic prohibition when the place is already by Torah law a private domain. A practical conceptual difference is presented: if three partitions already make a Torah-level private domain, the correction only permits what the Sages prohibited; but if they do not make a Torah-level private domain, or if openness to public domain removes that status, then the correction may be doing Torah-level work.
Bi’ur Halakhah: summary of the disputes and the ruling regarding “the public passes through”
Bi’ur Halakhah is cited as presenting a dispute whether three partitions are called a Torah-level private domain with respect to liability for one who throws from them into the public domain, and it attributes to Maimonides the position that only four partitions, or three full partitions plus a side-post on the fourth side that counts as a partition, are considered a Torah-level private domain. Bi’ur Halakhah attributes to most decisors—including Rashi, Tosafot, the Rosh, Rashba, and Ritva—that three partitions, or two partitions plus a side-post, are a full Torah-level private domain. Bi’ur Halakhah adds that if the public domain runs between the partitions, then from the passage in Tractate Shabbat page 6 it emerges that according to everyone a side-post is ineffective to make it a private domain because “the public passes through,” and he notes that some of the medieval authorities (Rishonim) decide similarly to the Taz in the case where it is open to the public domain.
A planned return to the topic in the next lecture
At the end it is determined that the passage must be reread according to the views of Maimonides, the Tur, and the other medieval authorities (Rishonim), while taking into account the distinction between a corrected and uncorrected alleyway and between Torah-level and rabbinic status, and that this will be done in the next lecture.
Full Transcript
[Rabbi Michael Abraham] Okay, throughout our learning, already from the beginning of the year, we’ve been dealing with carrying and transferring in all kinds of forms and types on the Sabbath, and in the background, of course, there are always the definitions of the different domains between which it is forbidden to do this—from private domain to public domain, from public domain to private domain, carrying within the public domain itself. But the concepts of the various domains are really what stand behind all our discussions. And as is the way of the Talmud—and I’ve mentioned this more than once already—the Talmud is not built in a systematic way. If the Talmud were built systematically, I would expect it to begin with the definition of the domains, and then say what is forbidden and what is permitted from each one to each other one—which is really what our baraita does: it defines the domains and says what is permitted and what is forbidden. And only then it would start detailing all kinds of pathologies: he threw it here and climbed there, and the water flowed, and two forces in one person, and standing is like walking, and that which is in the air is as if it came to rest, and all the big messes. Instead, we start with the messes before we’ve actually given the basic definitions on which the whole enterprise is built. More than that: in this very baraita itself, here in our passage, when it does already do the job, there still aren’t really orderly definitions of the domains there. If you pay attention, there are no definitions there. It doesn’t say anywhere explicitly how many walls are required for a private domain. It doesn’t say exactly what the definition of public domain is—roofed or unroofed, whether six hundred thousand have to pass through it or not, whether it has to be sixteen cubits wide. There are examples of a main road and a large plaza and open-ended alleyways and things like that, but they don’t give the definition. They give examples, they give a few characteristics here and there, and move on. It seems to me that this is a very clear expression of some basic conception of the Talmud. And again, I think I spoke about this—if not now, then certainly in previous years—a basic conception of the Talmud that opposes systematization. Meaning, the Talmud is not prepared to work in a systematic way; this is an ideology. It’s not a blunder or primitive thinking, but some kind of ideology that does not believe in systematization. It doesn’t believe in systematization because the moment you offer some orderly definition, you immediately get tangled up with all kinds of exceptions. But if I give you a few examples and say: from these, learn onward—even though that’s supposedly more open and more amorphous—in the end it captures the concept you want to describe better. In legal theory there are a few terms—simply because in the passage here this is a very clear expression of that phenomenon. In the legal world they distinguish between a positivist approach and non-positivist approaches. A positivist approach is an approach that was mainly prevalent in German legal thought—though even there it has been undermined by now—but that was the stronghold of positivism. It says that as far as we’re concerned, the legal system is a set of principles, and the laws for individual cases are derived from them deductively. They are private instances of the overarching general principles, and therefore the judge is basically some kind of logical machine, a computer that derives conclusions from premises, like the structure of geometry, where there are axioms and from them we derive the propositions. That’s the positivist conception. As against that, there is a non-positivist conception—let’s call it casuistic—which is common mainly in Britain, in common law. It is basically built on precedents. There are no general laws. What there are are cases, and each new case that comes along I try to see which previous cases it resembles and which it doesn’t, and how far it resembles them and in what respect it resembles them, and on that basis I try to draw conclusions for the new case from the previous cases, without defining laws. I build on analogy rather than deduction, basically.
[Speaker B] Is Rabbi Chaim a positivist?
[Rabbi Michael Abraham] I can’t hear. Rabbi—
[Speaker B] Chaim Soloveitchik?
[Rabbi Michael Abraham] What? He belongs to the posi—?
[Speaker B] I’m asking whether Rabbi Chaim—
[Rabbi Michael Abraham] Rabbi Chaim. Rabbi Chaim tends toward positivist thinking, yes.
[Speaker C] And is this whole thing in the Talmud really intentional? Because it seems to me that if the reason is that this is somehow more correct, then sorry to say it—they get tangled up endlessly anyway. Whether or not they planned not to get tangled up, they didn’t achieve the goal.
[Rabbi Michael Abraham] You know, you always have to compare between alternatives. That’s a known fallacy. Like today in Israel, people say: look, you see, you failed, you didn’t bring peace. Nobody on the left has yet made the attempts to bring peace, so we’ll see whether over there it actually works. That’s what they say to the right. The question is whether the alternative would be better—that’s a hypothetical question, because it hasn’t been tried. If you were to try formulating the principles of the Talmud in a positivist way and show that it works better, then there would be room for that argument.
[Speaker C] But let me ask you—first of all, the Mishnah is also posi— it’s also not positivist.
[Rabbi Michael Abraham] Casuistic. What is it? Clearly casuistic. And the Torah? The Torah isn’t even that. In the Torah there are just very, very general statements—you can’t derive anything from them. The Mishnah, no—in the Mishnah there are no rules. In the Mishnah there are cases and disputes about them. That’s really casuistic, from “case.” It’s based on cases, not on rules. Nobody says what the rule is. They tell you: in such a case the law is this, in such a case the law is that. In the Talmud, for example, in passages we’ve seen, sometimes they move to the formulation of rules—like “that which is in the air is as if it came to rest,” or “walking is like standing,” which is already an attempt to define a rule.
[Speaker C] So this approach basically comes from the fact that already the Torah is not organized, and on top of that the Mishnah, and on top of that the Talmud. It’s not that whoever edited the Talmud decided that it should specifically be like this. After all, the Talmud is based on the Mishnah.
[Speaker D] I—
[Rabbi Michael Abraham] I don’t know who made the decision, and I’m not even sure it was conscious.
[Speaker C] That’s what I’m asking, because consciously it doesn’t seem to me that this is it. Because if it’s conscious and there’s some goal here not to get tangled up, then they didn’t succeed.
[Rabbi Michael Abraham] No, that’s not right, I disagree with you. Again, I’ll repeat and answer you the same answer.
[Speaker C] It’s not accidental that Maimonides later came and said: there’s a total mess here, and I’m going to create order.
[Rabbi Michael Abraham] Good—and then look what happened to Maimonides. There’s the evidence right in front of you. What happened to Maimonides? Why? After all, this is the biggest joke in the yeshiva world. Maimonides writes in his introduction that he’s writing his book in order to save us from getting tangled up in the Talmudic passages, so that we’ll know the bottom line. What do they do in yeshivot today?
[Speaker C] But that’s a decision of the yeshivot to dig into it.
[Rabbi Michael Abraham] Long and detailed pilpulim in order to reconcile contradictions in Maimonides, to explain Maimonides. They turned Maimonides into Talmud.
[Speaker C] But Maimonides didn’t compose it for yeshiva students; he wrote it for the public. And in the end, the public that has a question—
[Rabbi Michael Abraham] Chani, if there’s anyone who failed, it’s Maimonides. The greatest of failures. The man never in his life managed to do something less successful than what he did in the Mishneh Torah. It’s a colossal failure.
[Speaker C] No, I just think it’s for another reason. In the Mishneh Torah, the problem is that he didn’t bring the reasons, and he didn’t—there are no references—
[Rabbi Michael Abraham] And that’s exactly the problem.
[Speaker C] But if he had made all those notes, then from my perspective, when I want to know—
[Rabbi Michael Abraham] But if he had made all those notes, he would have written Talmud and not Mishneh Torah. That’s exactly the point. Because then he’d have to explain a reason, and then I’d challenge him with a difficulty, and then he’d say: wait, but there it’s different, and then he’d give me answers. That’s exactly the difference. When you try to give rules or bottom lines, you will fail. As for the Torah—
[Speaker B] Still—
[Speaker C] I want to say, there seems to be some logic in the madness, and the feeling is that in the Talmud there isn’t.
[Rabbi Michael Abraham] So I’m saying that the Talmud presents things as they are. The role of the commentators is to try to extract from this chaos in the Talmud some principles, and even that has to be treated with very, very limited confidence, because principles are a very primitive description of reality. Try thinking about language. I think we talked about this, I don’t remember anymore. Try thinking about language. When you try to describe the rules that govern speaking a language—the kind of thing you learn in an ulpan, grammar, right? Language. Okay? Does that really help you? Very little. There are so many exceptions, so many nuances, that you won’t be able to fit them into the rules. It’s very doubtful how much value these rules have at all, and whether it isn’t more correct to teach the way a child learns in his parents’ home, where in his environment he simply starts speaking. And after he starts speaking, he understands how the whole thing works, and he knows how to speak in all kinds of contexts he never learned. And in the end it works better than trying to attach him to some set of rules, because there he won’t understand the exceptions, he won’t understand the nuances. That’s exactly the point. Modern thought has accustomed us to think that if we have a mathematical solution or a mathematical description, that’s wonderful—it’s the perfect description. It would be the perfect description if it were the right description. The question is whether there is such a mathematically correct description, and even if there is, whether the mathematical description we arrived at is in fact the correct one. And usually it isn’t.
[Speaker B] I want to say—
[Speaker F] Rabbi, I wanted just one comment. I wanted to ask—still, all the time we see in the Talmud that it strives to define rules. Like “Rav said,” or “what is the basis of their dispute?”
[Rabbi Michael Abraham] I agree, except for the phrase “all the time.” Except for that. Except for the words “all the time.” That’s just not true. The Talmud usually doesn’t involve rules at all.
[Speaker F] “What is the reason?” “What is Rabbi Yosei’s reason?” “What is Rabbi Shimon’s reason?” “What is the reason”—that’s not—
[Rabbi Michael Abraham] But the answers they bring to “what is the reason” are almost never rules.
[Speaker F] The rules you presented earlier—sometimes they show where it’s learned from, through an interpretation—
[Rabbi Michael Abraham] From the Torah, or they bring a verse, or they bring a Mishnah or a baraita or another example. Usually the answer to “what is the reason” is not a rule.
[Speaker F] Right, but “what is the basis of their dispute,” for example—“what is the basis of their dispute”—
[Rabbi Michael Abraham] There too, look for contradictions. The answers are not always in terms of rules.
[Speaker F] Not always, I agree, not always, but many times that’s one of the points.
[Rabbi Michael Abraham] There are places where—like in grammar—
[Speaker F] Also—
[Rabbi Michael Abraham] In grammar too, we have rules.
[Speaker F] I took language and found some rules, and the rest isn’t according to rules.
[Rabbi Michael Abraham] Exactly. And the rules are some attempt to create partial order within the mess. But anyone who thinks that the rules are the real thing is going to fall flat on his face. That’s a big mistake. The rules are a partial approximation that tries to create some order within the mess, and together with those rules there is always an exception. Everything we do here in these lectures is try to show why the rules don’t contradict one another, and where this rule was said and where it wasn’t. And from the sheer number of distinctions and qualifications and exceptions to the rule, the question becomes: what remains of the rule at all?
[Speaker B] I want to add one more comment—that maybe you can say this about the Mishnah and the Talmud, but about the Torah you can’t say there is no order. You can say that we don’t understand the order.
[Rabbi Michael Abraham] Why can’t I say it? Of course I can say it.
[Speaker B] The Torah was said from the mouth of the Divine Presence; it can’t be that you would say that the Holy One, blessed be He, gave us a mess. No, that’s impossible.
[Rabbi Michael Abraham] I’m sorry to play the role of the heretic, and I claim that it’s ultra-chaotic.
[Speaker C] The first Rashi—why did it open with Genesis? If we’re talking order, let’s start with the order of the commandments, but we didn’t. We have a chumash and a quarter before we even get there—
[Speaker B] And then he explains to you why.
[Rabbi Michael Abraham] The Torah is the biggest mess of all.
[Speaker B] He explains to you precisely that there is order even though it seems to you there isn’t. Why is mess necessarily bad?
[Speaker F] Theoretically, mess isn’t bad. The Torah knows that this is how people learn better, because—
[Rabbi Michael Abraham] So it doesn’t give us rules. And more than that—much more than that—Nechama gave only a partial answer. I’m claiming—after all, Ruti is basically assuming that there is some perfect, mathematical, systematic order. I didn’t say mathematical—so then the question arises: if so, why present a mess and not give me the real order? I reject that. Who says there is even a set of rules that describes the truth? That’s one thing. Second, there’s Nechama’s answer—that’s the second answer. Even if there is such an ultimate perfect order, it’s not at all certain that the best didactic way to teach us is to present the order itself. You know, when you teach a person—this is an interesting didactic question, an interesting pedagogic question—when we teach mathematics or physics, should we start with the general law and then demonstrate it, or should we start with examples and through them try to formulate a general law? Usually, for most people, the second way is the right one and not the first. As long as you haven’t seen the examples, you don’t—
[Speaker G] understand the rule.
[Rabbi Michael Abraham] And therefore even if there is order, I say two things. First, I don’t even know whether there is a full systematic order, because who says there is a set of rules that really covers the entire matter? I’m not at all sure; that’s a very specific assumption—who says it’s true? Second, I want to claim that even if there is such an order, it’s not clear that the right way to handle the system is by means of that order rather than through examples. Because given the way we are built, the more correct way is to deal with it through examples. In legal philosophy, for example, there is the famous example of Hart. Hart talks about, say, someone who wants to prohibit bringing vehicles into a public park. That’s the example he gives. Lawyers always bring it in articles. How do you write it? So ostensibly you write the general law: no vehicles may be brought into this public garden, this public park.
[Speaker B] And then immediately—
[Rabbi Michael Abraham] You ask yourself: wait, what is a vehicle? Is a tricycle a vehicle? Is a decommissioned tank put on a pedestal as a memorial to some war—is that a vehicle? A motorcycle, a bicycle—where, how do you define it? So the alternative way—and I think this is what the hermeneutic structure of general-and-specific in the Torah does; I wrote a book about the hermeneutic methods of general and specific, and there I tried to make this claim—that the method of general and specific in the Torah basically solves Hart’s problem. And what it says is this: no vehicles may be brought into the public park, such as a car, a motorcycle, I don’t know, a tractor, whatever it may be, and anything similar. Notice how a sentence like that is structured. No vehicles may be brought in—the general term. Then general, specific, general basically tells me: look, take that general category, but of course that category needs interpretation. Take the examples and generalize to what resembles the examples in the relevant respects. Now nobody writes what the relevant respects are. I have to decide what these examples have in common and how to define the category. But that is still a more correct way, and in the end also a more accurate way, than trying to define a rule from which you can derive all the particular cases. That’s how it works. Either because there is no rule, or because we are built in a way for which working by rules is actually harder. So on the one hand, we—being used to mathematical, systematic, modern thought—are very attached to rule-based thinking, logical thinking, and I am the last person who would disparage that; I engage in it quite a bit. But—one must always be aware of the limitations of that form of thinking. And I think, I suspect, that the Talmud was aware of this. Meaning, there was something here that was done consciously too, and that the Talmud intentionally hardly formulated rules. And even when it does get to rules, the medieval authorities (Rishonim) and later authorities (Acharonim) immediately show us that these rules aren’t really rules, and here yes and there no, and the passages disagree, and this rule really applies here but not there—so forget this whole rule, in the end it only confused us. Now, that’s not true that it only confused us—it helped—but only if we took it with limited confidence. Somehow we have to dance at two weddings. To try to work with the rules, but at the same time be aware that the rules aren’t really the real thing. They’re only an aid that helps us navigate through the whole mess. And I think that’s the meaning of this messy structure that the Talmud has, okay? That it’s messy in quotation marks. In my view, it’s to the Talmud’s credit, not to its detriment. Okay, good. So that’s really just an aside—we spent too much time on it. It’s just a point that jumps out when we see this passage. Suddenly here on page 6b—6a, suddenly they remember to define for us the four domains. They start with the story: the poor man stands here and the homeowner stands there. Even there—just define it: one who carries from private domain to public domain, or from public domain to private domain, violates the labor of carrying. You won’t find a definition like that anywhere.
[Speaker C] Hanokh and Steinsaltz just both fill it in for us nicely. Fine.
[Rabbi Michael Abraham] What you’ll find is where the poor man stands and where the rich man stands, and who takes from whom and who carries out from whom, and all kinds of cases—that’s all cases. These are cases. Now, Steinsaltz and ArtScroll and the medieval authorities (Rishonim) and later authorities (Acharonim) try to generalize rules from this. But that comes at a price, because those rules do not really stand the test of reality. None of those rules is precise. There are always exceptions and it doesn’t work out, and sides of the public domain, and someone who carried this way and someone who walked and someone who flew and someone who did I don’t know what. Turned over in the air. Okay. You can’t define this through rules, and therefore the Talmud has much more confidence in trying to give you the insight, the natural feel for how this thing works correctly—what is permitted and what is forbidden. And the hope is that from this you yourself will understand what is permitted and what is forbidden. And that will come out better than trying to define rules for you. Now of course we can’t do without rules, because any thought we engage in is thought that uses rules. It tries to understand what stands behind a case, in what way it resembles or differs from another case, and then of course I need general definitions. So there’s no choice—I have to use rules in order to analyze. But all the time I need this warning note in the background: the rules I formulate here, take them with limited confidence. They themselves may turn out to be imprecise, and they may have exceptions, and here yes and there no. So I play a kind of game: I define a rule, then qualify it, add another rule, qualify that too, bring in a third rule, throw all three away, and hammer in a fourth—and in the end, somehow, understanding is formed in me. That’s the point. And the understanding is not the collection of rules I arrived at. The understanding is the understanding formed through using the rules and then throwing them away. Like Baron Munchausen’s ladder—yes, the one he used to climb out of the pit or up the tree, and then threw away. The rules are the ladder for making order out of the mess and internalizing or understanding what’s going on here. After I’ve somehow succeeded in navigating and understanding what’s happening, I throw the rules away. Leave them alone. Don’t use them. So it’s a delicate business, because yes, we do work with these rules. But always, always one must remember that these are definitions with limited reliability. And we’ll see, even here—we’ll see a little of this phenomenon. Okay. So as I said, the Talmud here brings the law of the four domains. We’ll focus mainly on the definition of private domain and public domain, because there are disputes here that are relevant in practice as well, and this is the place to clarify them—or one of the central places to clarify them. So here I’m sharing the Talmud. “The Sages taught: There are four domains for the Sabbath: private domain, public domain, karmelit, and exempt place.” Really a nice formulation—there is an orderly rule that counts the four domains. Excellent. “And what is private domain?” What would you expect now?
[Speaker B] Some defined area—
[Rabbi Michael Abraham] Enclosed by four walls, and with an area of four by four?
[Speaker B] The Talmud—
[Rabbi Michael Abraham] says no: a trench, a fence, high this—examples. What examples? Give me a definition of private domain—why examples?
[Speaker B] Those are also somewhat exceptional examples. I can’t hear. The trench is a somewhat exceptional example—why start with that?
[Rabbi Michael Abraham] Right, and we’ll comment on that too. I pointed out to you also on the source sheet—they didn’t bring the most obvious example, which would be something like a house, meaning an area of four by four surrounded by four walls. After that, say also a trench, and also a fence, and also whatever. But the most basic example, the foundational definition—you don’t bring it. Meaning, even in the place that looks most positivist in the Talmud, where they define the domains in an orderly list, even there you won’t find an orderly definition. You’ll find examples and discussions, but not really a definition in plain, explicit terms. “And so too a fence”—yes, private domain: a trench that is ten deep and four wide, and likewise a fence that is ten high and four wide—this is a full private domain. “And what is public domain? A main road and a large plaza”—that is, roads and marketplaces, say intercity roads, and plaza means marketplaces or large streets in the middle of the city where people pass—“and open-ended alleyways.” Meaning, an alleyway between two houses or two walls, but open on both sides to public domain. This is a full public domain. That is not what we usually call an alleyway. That is called an open-ended alleyway. An open-ended alleyway is public domain. What is simply called an alleyway throughout the Talmud is not this; it is a place into which courtyards open, and in a moment we’ll get to that. “And one may not carry out from this private domain to this public domain, nor bring in from this public domain to this private domain. And if he carried out or brought in unintentionally, he is liable to bring a sin-offering; if intentionally, he is punished with karet and is stoned.” Up to here, that is the summary description of public domain and private domain. “But the sea, and a valley, and a portico, and karmelit are neither like public domain nor like private domain, and one may not carry within them, and if he carried within them he is exempt.” Why exempt?
[Speaker B] Because it’s rabbinic. Because it’s rabbinic.
[Rabbi Michael Abraham] The domain of karmelit is exceptional among the four. The other three domains are domains defined by Torah law; karmelit is defined rabbinically. But notice—the baraita says that karmelit is neither like public domain nor like private domain. Why is it not? One might have said that it isn’t because it’s only rabbinic—it’s a rabbinic public domain. Right? But I asked you on the source sheet whether that is really a correct definition. The answer is no, because of the fact—
[Speaker B] that it is forbidden to bring from karmelit to public domain.
[Rabbi Michael Abraham] If a karmelit were a public domain on the rabbinic level, then what would be the problem? Then it should have been completely permitted, not even a rabbinic prohibition. So you see that it’s also incorrect to define a karmelit as a public domain on the rabbinic level; rather, it really is a separate domain. True, it’s rabbinic, but it’s not that there is a Torah-level public domain and a rabbinic public domain. No. A karmelit is not a public domain on the rabbinic level; it’s a fourth domain. And one does not carry within it, and if one did carry within it, he is exempt; and one may not take from it into the public domain. Someone asked me in one of the previous classes—I don’t remember, maybe Hani, I don’t remember anymore who it was, which woman it was—so here it says: one may not take from it into the public domain, nor from the public domain into it. Right, that was exactly my uncertainty there: is a karmelit a public domain on the rabbinic level, in which case of course you can’t take from a private domain into it because that’s a rabbinic prohibition—but on the other hand, to transfer from it into the public domain ostensibly shouldn’t be a problem. Here it says that it’s forbidden. Moving on: and one may not bring in from the private domain into it, nor from it into the private domain.
[Speaker G] Excuse me, is that forbidden on the Torah level or on the rabbinic level?
[Rabbi Michael Abraham] Rabbinically. Rabbinically. And if one took out or brought in, he is exempt. In a moment we’ll see why it’s rabbinic, because on the Torah level this is not a private domain; it’s an exempt area on the Torah level. So what’s happened here is that they defined, up to this point, the three domains—the public domain, the three domains: the public domain, the private domain, and karmelit. Later on, the portico and the—this portico is the stoa we saw, right? So that is later defined, and the threshold is basically an exempt area. Okay? The threshold. So that is the definition of the four domains. Now, indeed the accepted assumption is that karmelit is a rabbinic definition. What is its status on the Torah level? An exempt area.
[Speaker B] An exempt area.
[Rabbi Michael Abraham] Not a private domain, but an exempt area. Okay? Therefore, if you pay attention, let’s say in the ordinary way of thinking, if I were to take an object from a karmelit and bring it into the public domain—then if I look at this on the Torah plane, what did I do? This is not carrying out. It’s from an exempt area to the public domain, completely permitted. There is no Torah prohibition, right? Completely permitted. Looking through Torah-level glasses, I carried out from an exempt area into the public domain. Looking through rabbinic glasses, I took from public domain to public domain. Again, I did nothing. Let’s say I didn’t move it four cubits, okay? So again, I did nothing. So ostensibly, if a karmelit were a public domain on the rabbinic level, then carrying from it into the public domain should have been completely permitted, not even rabbinically forbidden.
[Speaker E] But there’s no boundary here between two public domains unless it’s four cubits. I didn’t understand. If the karmelit is called a public domain rabbinically,
[Rabbi Michael Abraham] then—
[Speaker E] then ostensibly I’m carrying into the public domain; there’s no carrying out here, only walking four cubits.
[Rabbi Michael Abraham] Exactly. That’s why I’m saying: if I didn’t move four cubits, then in effect I violated neither a Torah prohibition nor a rabbinic prohibition. It should have been completely permitted. But the baraita says that it isn’t permitted; carrying from a karmelit to the public domain is a rabbinic prohibition—exempt, but forbidden. That’s the clue that a karmelit really is a fourth domain. It’s not the same as a public domain, just on the rabbinic level. Because then there would be room to say that on the Sabbath there are only three domains: the private domain, the public domain, and the exempt area. It’s just that regarding some exempt areas, the rabbis said to treat them like the public domain—but that’s not adding a fourth kind of domain. This law of bringing from a karmelit into the public domain, carrying from a karmelit into the public domain, basically tells me that a karmelit is a fourth domain. It’s not a third domain on the rabbinic level; it’s a domain whose essence is different from the others.
[Speaker E] So then? But rabbinically, aren’t they basically changing some rules about it in relation to the public domain?
[Rabbi Michael Abraham] Why, of course they’re changing them. There is a certain domain here such that there is a prohibition both from the private domain—
[Speaker B] to it, and also from it to the public domain.
[Rabbi Michael Abraham] There’s nothing like that on the Torah level.
[Speaker B] According to the Sages, if you look at it from the direction of the private domain, you have to relate to it as a public domain, and if you look from the public domain, you have to relate to it as though it were a private domain.
[Rabbi Michael Abraham] Exactly. Rabbinically.
[Speaker B] Basically—
[Rabbi Michael Abraham] what you have here is a domain that is maybe a private domain, maybe a public domain, each side stringently. Rabbinically. And therefore it really is a fourth domain. Of course, this is still—well, in a moment we’ll see; I’ll come back to it shortly.
Later there is a discussion of courtyards and alleyways. Now here these are alleyways that are not open through from both ends, and this is what is usually called a mavoy in the language of the Talmud. What is that? So I explained to you on the page—basically, I also sent you to Wikipedia—basically we’re talking about a lane, a mavoy is a lane, which is closed on all its sides but open on one side to the public domain. Like a dead-end street. Around this dead-end street there are courtyards. Each courtyard is basically an area into which several houses open; there are doorways from several houses around the courtyard. And each such structure of a courtyard with several houses around it has an opening from the courtyard into the mavoy, into that lane. And so there are several courtyards around this lane. So the lane is called a mavoy, and each of the courtyards is a courtyard. So the houses open into the courtyards, the courtyards open into the mavoy, and the mavoy takes you to the public domain. That is the structure the Talmud is talking about. Okay? And therefore here a mavoy is a non-through mavoy. Through means open. It’s not open; it’s open on one side to the public domain, but not through on both sides. Through on both sides is a similar structure, but open on both sides to the public domain. Not a dead-end street, but a street with an exit. Okay? So when we talk about a mavoy and a courtyard, alleyway partnerships and things like that, we are talking about a non-through mavoy. With the exception of Rabbi Yehudah and what is brought later—we’ll see that.
[Speaker D] So—
[Rabbi Michael Abraham] The Talmud says as follows—the baraita, sorry. Courtyards of many people and alleyways that are not open through: if they made an eruv, they are permitted; if they did not make an eruv, they are forbidden. Now here there are two parameters, and again, just for general knowledge: with regard to the courtyard and the alleyway, it is accepted to think that their Torah-level status is private domain. Not exempt area—private domain. Both the alleyway and the courtyard. Except that there is joint ownership by several people, and also use by several people. The public at large does not pass through there, so it is not a public domain, okay? But it is a private domain because it belongs to several specific people. It’s not like a karmelit, where any person can pass through; it’s just that usually not many people pass through there. It’s not a route intended for many people, but it isn’t closed off to some people; it doesn’t belong to a specific group or to a particular person. That is karmelit. A mavoy and a courtyard are basically a private domain where the “private individual” who owns them is a collection of several people. But a specific collection.
[Speaker B] In that sense there are two kinds of private domain. Can’t hear? There are two kinds of private domain.
[Rabbi Michael Abraham] Right. It just depends who the “private individual” is. For us, for example, a dead-end street isn’t exactly a mavoy. Because a dead-end street, simply speaking, is a karmelit. Right? Because it’s basically open to anyone who wants, not only to the residents of that place. There’s some room to discuss this a bit, but let’s say that’s the simple understanding.
So now what happens with places like that? On the Torah level they are private domain. And therefore one may carry from the houses into them, and from the courtyard into the alleyway, and there is no problem; and of course also to carry four cubits within them. It is private domain in every respect. Rabbinically, however, they said there is some problem here, because all in all it does resemble the public domain. And therefore what they say is: first of all, you need to make an adjustment for courtyards and alleyways. “Adjustment” means that in a courtyard you place what are called courtyard boards—that is, you put some post there, three handbreadths wide and close to four handbreadths—sorry—and near the side of the entrance, so that the courtyard will not be entirely open to the alleyway and will have some appearance of a private domain. And in an alleyway one needs to put either a side-post or a beam. A side-post is a post standing at the side of the opening to the public domain; a beam is a horizontal beam between the two walls that reach up to the public domain. Is that clear?
Now these adjustments of the courtyard and the alleyway are adjustments that turn the courtyard and the alleyway into a private domain with respect to the question whether it is permitted to carry in them—
[Speaker B] four cubits.
[Rabbi Michael Abraham] Once you made these adjustments—that is, either a side-post or a beam for the alleyway, and courtyard boards for the courtyard—it is permitted to carry four cubits within the alleyway and within the courtyard. Without that, there is a rabbinic prohibition to carry four cubits, like a karmelit. Okay? But that is not enough. Because the Sages still forbade, even if there are courtyard and alleyway adjustments, they still forbade carrying from the houses into the courtyard and into the alleyway. Because with respect to this, it still looks like carrying from private domain to public domain. So what do you do to solve that? That is what is called alleyway partnerships and courtyard eruvin. What we have to do is take food from all the people relevant to the alleyway or to the courtyard; everyone joins in this food; we place it in one of the houses; and then it is as if all the ownerships are consolidated, and it becomes basically a place owned by one person. Then, rabbinically, it is also permitted to carry from the private domain of one of the houses into the courtyards and into the alleyway. Of course the whole problem is rabbinic, but rabbinically it is forbidden to carry unless you made alleyway partnerships or courtyard eruvin. There is, by the way, a dispute among the medieval authorities (Rishonim) whether when you made an alleyway partnership you still need to make an eruv for the courtyard, or whether the alleyway partnership also solves the problem of the courtyards. In Maimonides it sounds like no; in the other medieval authorities (Rishonim) it seems yes. But it doesn’t matter; those are really details that are less important for our purposes.
[Speaker C] So why isn’t that a domain in its own right? After all, the law here is a bit different from karmelit. So ostensibly, if we said there are four domains and karmelit is the fourth domain, and what makes it different is the laws, then here too the alleyway and the courtyard aren’t really karmelit—they’re something else.
[Speaker D] Why aren’t they really karmelit?
[Rabbi Michael Abraham] If you’re talking about after the partnership—if you’re talking about after the partnership and the eruv and the adjustment—then it’s just private domain. If you’re talking about before, then it’s like karmelit.
[Speaker C] Why like karmelit? You said you can carry within it, only taking in and out is forbidden if you enclose it.
[Rabbi Michael Abraham] Carrying within it is only if there are courtyard adjustments and alleyway adjustments, without an eruv.
[Speaker C] Right, so if I fix it without an eruv, then it’s already not like karmelit.
[Rabbi Michael Abraham] Right. So carrying within it is permitted, but carrying into it is forbidden.
[Speaker C] So that’s already like, here’s a fifth domain. And there’s also something else unique about it: unlike karmelit, which we said comes from an exempt area, here it comes from private domain. So there are two things here that are different. So why—I just saw later on with the karpef, so I’m asking myself why already here, with the alleyway and the courtyard, they didn’t define them as a domain in their own right.
[Rabbi Michael Abraham] I’ll get to that in a moment concerning that—the question that comes up regarding the karpef. I’ll comment on it. I’m not sure I have a good answer to it, but I’ll comment on it.
In any case, that’s what the Talmud says. And at the end they bring the threshold, right? That is the exempt area: a person stands on the threshold, takes from the homeowner and gives to him, takes from the poor person and gives to him, provided that he not take from the homeowner and give to the poor person, or from the poor person and give to the homeowner; and if he took and gave, all three are exempt. Others say: the threshold serves two domains. Fine, that’s a dispute about the threshold—what exactly its status is, whether it is exempt. Okay.
Basically, what you have here is four—what the baraita defines is four domains. Tosafot here on the spot, under the heading “four,” asks as follows. I blackened this on the page. “Four domains for the Sabbath”—the Rashba has a difficulty. And again, this Rashba is not the Spanish Rashba; it is the French Rashba, Rabbi Shimshon of Kinon. So he says: the Rashba has a difficulty—let it teach five domains, not four, because a karpef larger than two se’ah that was not enclosed for dwelling, if one throws from the public domain into it or vice versa, he is liable, and one may carry in it only within four cubits. So ostensibly this karpef is different from karmelit; it is different from ordinary karmelit, because this is a karmelit that originally was a private domain, not an exempt area. So he says: one can answer that this is a complete private domain, except that with respect to not carrying in it except within four cubits, they treated it like karmelit. And after all, private domain and karmelit have already been taught. And for that reason as well they did not teach a courtyard in which no eruv was made—that’s Hani’s question. A courtyard in which no eruv was made, for the same reason, was not defined as a domain, because in the end it maps onto one of the existing domains, only rabbinically.
[Speaker C] But it’s not the same thing. With a karpef, besides carrying within it, bringing in and taking out is also forbidden.
[Rabbi Michael Abraham] That’s the question. After all—
[Speaker C] its law really is the law of karmelit—
[Rabbi Michael Abraham] unlike—
[Speaker C] unlike an alleyway and a courtyard.
[Rabbi Michael Abraham] Not necessarily. For example, Tosafot says: one can answer that this is a complete private domain, except that regarding not carrying in it except within four cubits, they treated it like karmelit. From Tosafot it sounds like bringing in and taking out of it is not forbidden; only with respect to moving it four cubits is it like karmelit. That seems to be Tosafot’s view.
[Speaker C] Meaning, he says it’s not a separate domain, and he proves it from the courtyard.
[Rabbi Michael Abraham] Even though there really is something here that isn’t even karmelit. Why? Because in the end, from whichever side you look at it, you will find one of the other domains. There is no domain here whose essence is something different; it is only a combination of the existing domains. But if so, as I asked earlier, then karmelit is also like that. So why is karmelit one of the four domains? It should have been three. Because with karmelit—what did I explain earlier? I said that regarding karmelit one could have said that karmelit is a separate domain because on the one hand it is like public domain in that one may not move four cubits in it, and one may not carry into it or bring out from it. But on the other hand, from it into the public domain one also may not transfer. In that sense it is not a public domain, even rabbinically. And then ostensibly it does not resemble any of the domains. But according to what Tosafot says here, it is enough that each side of the karmelit resembles one of the domains in order not to define it as an independent domain. And that raises this question: why is karmelit considered an independent domain after all? And that knocks down the explanation I suggested earlier. Because Tosafot is basically saying that once none of the laws individually is novel—even though the combination is indeed a new combination—still, none of the laws by itself is a law we haven’t seen. If you can define something as a combination of the existing domains, then it cannot be defined as a domain in its own right. And then the question returns: so why is karmelit nevertheless considered a domain in its own right?
[Speaker B] But still, karmelit is because of the rabbis and not on the Torah level.
[Rabbi Michael Abraham] There’s no escape except to say that karmelit, beyond the uniqueness in it as a combination, the whole story is a rabbinic combination. And they had to define at least one of the domains as an independent domain in order to teach us that there is such a thing as a domain that is one of the three Torah-level domains, but is defined that way only rabbinically. Once they defined this regarding karmelit, there was no point now in adding the karpef or the courtyard without an eruv as a fifth domain, because that too is only another rabbinic definition, another combination, but still a rabbinic combination of those domains. But once, yes, they had to tell us that there are domains that the rabbis made into one of the domains, or a combination of the Torah-level domains, but only rabbinically—and therefore karmelit entered in, and all the others did not. That is the only possibility I can find to explain, according to this Tosafot, why karmelit is indeed defined as an independent domain. Okay. Moving on.
Now the Talmud goes into the definition of private domain—when the baraita goes into defining private domain, so I return—this is the section I blackened now; it is a passage from the baraita. It brings two situations: either a ditch that is ten deep and four wide. Because what does “ten deep” mean? That the walls around it are ten handbreadths high, right? And its area has to be four by four. And likewise a fence that is ten high and four wide—which according to Rashi’s explanation is like what? A pillar.
[Speaker B] Right.
[Rabbi Michael Abraham] A fence is a wall that is ten high and four wide; that is private domain. Or it is a pillar or a mound or something like that which is basically the opposite of a ditch, right? A mirror image of a ditch. So these two examples are not the classic examples of private domain. Precisely the two examples they brought, which are complete private domain, are not the examples I would have expected. The examples I would have expected are first of all something like a house: such an area with four walls around it. True, a roof isn’t necessary. A house usually has a roof, but private domain does not require a roof. That is one of the differences between private domain on the Sabbath and a sukkah, where in many contexts we compare them to one another. But one of the prominent differences is that in a sukkah, the roofing is basically the main thing that defines it, whereas in private domain there is no requirement at all for a roof. The requirement is only partitions. So in that respect—but beyond the question of the roof, the ditch also has no roof—beyond the question of the roof, why didn’t they bring the classic, most typical private domain?
[Speaker B] Pnei Yehoshua explains it. Right. So Pnei Yehoshua claims that they brought only the novel cases here. Can you hear? That here they brought only the novel cases. Right.
[Rabbi Michael Abraham] That basically the simple thing is: private domain is basically a house. Now they wanted to tell you that these two also are complete private domain, meaning this is private domain in every respect, even though it is only an abstraction of the concept of a house. Because here I see, in a somewhat abstract way, an area of four by four with four walls around it. It’s not like a house in the full sense, but if you look at it on the abstract theoretical level, you basically see that all the required parameters are present, and therefore these too are complete private domain.
[Speaker C] But he gives another reason too. Okay. Pnei Yehoshua, from what we saw—he says that if he had brought the four walls, then wait a second, what about three, and what about two and a side-post? There it’s already a dispute, and it isn’t clear whether yes or no, complete or not complete—where complete means both on the Torah level and on the rabbinic level.
[Rabbi Michael Abraham] Right. That’s the second paragraph in Pnei Yehoshua: “And it further seems to me that he could not teach ‘a place surrounded by four partitions,’ because in truth even with three partitions it is private domain for making one liable if he throws from the public domain into it. And even with two partitions and a side-post, we hold in Eruvin that one who throws into it is liable.” Okay, and that brings us into the discussion we’ll get to in a moment, about what the Torah-level definition of private domain really is—how many partitions are needed. And basically what he says here is that if they had said “a place surrounded by four partitions,” that wouldn’t be a good definition. Because maybe three are enough as well, or two and a side-post. Therefore they did not want to bring that example, only the ditch and the mound. Because with a ditch and a mound there is no possibility of having only three walls and not four. By the physical definition itself there are four walls. Even though in principle—
[Speaker C] That’s exactly why not to bring the rule but to bring the examples. Exactly like at the beginning of the class. If they had brought the rule, then we would already have had a problem. Better to bring the examples and learn the rules from them.
[Rabbi Michael Abraham] Right. All of this is basically different expressions of the introduction I gave here. You see that when we try to define, suddenly we see that these definitions don’t really manage to hold. Why is it four domains and not five and not three? What is defined as a domain and what isn’t? You begin to get tangled up in it. Therefore there is really a reservation in general about broad definitions.
Now we’ll return to this point in a moment, because for example according to Maimonides, ordinary private domain is four walls, and three walls or two and a side-post is not private domain on the Torah level—contrary to what Pnei Yehoshua assumes here. Okay? So according to Maimonides, of course, Pnei Yehoshua’s second explanation does not work. Only the first explanation.
[Speaker C] I didn’t see that Maimonides says it isn’t private domain on the Torah level. He says it’s karmelit.
[Rabbi Michael Abraham] I referred you to Magen Avraham. Maimonides says it in chapter 14, but I referred you to Magen Avraham and to Biur Halakhah, where they bring it.
[Speaker C] Maimonides says that three walls are not private domain. Can I ask one question for a moment? We had a discussion in havruta about sukkah. After all, for a sukkah, two walls and a side-post are enough. So what happens with a sukkah on the Sabbath in a place where there is no eruv? Ostensibly—
[Rabbi Michael Abraham] That’s a Talmudic passage in tractate Sukkah 7a. The Talmud says that if you are on the Sabbath of Sukkot, then—
[Speaker D] Since it serves as—
[Speaker C] a wall, once it’s a sukkah—
[Rabbi Michael Abraham] you have “since it serves as”—
[Speaker D] a wall valid for sukkah, it is also valid for the Sabbath.
[Rabbi Michael Abraham] Because it is valid for sukkah, that also makes it a private domain.
[Speaker C] I understand—because of the special definition of sukkah.
[Rabbi Michael Abraham] Yes, because—
[Speaker C] that’s very, very—
[Rabbi Michael Abraham] interesting—what the logic of that “since” is—but we discussed that when we learned sukkah.
[Speaker E] But—
[Speaker C] Yes, but the question is, because I was very surprised, because I never thought there was a problem with a sukkah that has three walls, meaning on the Sabbath; obviously you can be there.
[Rabbi Michael Abraham] No, I didn’t understand. What do you mean there’s a problem that it’s not private domain?
[Speaker C] Not that there is a problem—I didn’t think there was a problem. I was very surprised when I read Pnei Yehoshua saying that rabbinically it’s forbidden, so I asked myself, then what do we do on Sukkot? It doesn’t make sense, because we know that on Sukkot, even on the Sabbath, you can be in a sukkah with three walls.
[Speaker E] So we remain with the definition—
[Rabbi Michael Abraham] of sukkah. But again, I don’t really understand what counts as “the problem.” This is considered a private domain. I don’t know what “problem” or “not a problem” means.
[Speaker E] Because we read that three walls, or two walls and a side-post, are not private domain, and it is forbidden to carry in them four by four, and then the issue came up: but a sukkah is private domain, so we can.
[Rabbi Michael Abraham] Right. On the Sabbath of Sukkot—only on the Sabbath of Sukkot—it also has the law of private domain.
[Speaker B] Maybe it’s because of the roof, the roofing?
[Rabbi Michael Abraham] No, no. It has nothing to do with the roof, but with the definition of sukkah.
[Speaker E] Wait—since this thing is a sukkah,
[Rabbi Michael Abraham] then it is also considered private domain on the Sabbath of Sukkot. The following Sabbath, no longer.
[Speaker E] But another question: if it’s not a sukkah for the Sukkot festival, and it’s not the Sabbath of Sukkot, then that’s it? So then no. Then it’s public domain or karmelit, and it’s forbidden to carry there four by four.
[Rabbi Michael Abraham] Then it is not private domain. What is it? Exempt area, karmelit—it depends how you define it.
[Speaker C] Isn’t there a legal extension upward if there is roofing?
[Rabbi Michael Abraham] What? I didn’t understand.
[Speaker C] A sukkah that has roofing—we have a legal extension downward.
[Rabbi Michael Abraham] That is a question—extension upward—it’s a hard question. I referred you to Rabbi Chaim, who talks about it a bit. We won’t get into it here. In any case, let’s move on for a moment.
So the Shulchan Arukh, in section 345, paragraph 2: “What is private domain? A place surrounded by partitions ten handbreadths high”—that is the classic private domain not brought in the baraita—“and containing four by four handbreadths or more; and likewise a ditch, and likewise a mound.” Those are the two examples brought in the baraita, right?
[Speaker B] Four by four is—what? Four by four, the area between the partitions.
[Rabbi Michael Abraham] Yes, yes. So I’m saying: the first example the Shulchan Arukh brings is the ordinary example—it’s a house, okay? And after that he brings the ditch and the mound, which are the two examples brought in the baraita. So he does indeed bring three examples here, and the commentators note: where does the Shulchan Arukh get this from? After all, in the baraita the first example is not mentioned. And they apparently began discussing whether the Shulchan Arukh understood the baraita differently from Rashi or not. In my view, that is not—it really isn’t a precise inference that is at all reasonable.
[Speaker B] He learned it differently, he learned it differently.
[Rabbi Michael Abraham] Not that he necessarily learned it differently.
[Speaker B] Rashi understood—
[Rabbi Michael Abraham] differently, because he—
[Speaker B] understood that it was talking about a pillar, and he understood—
[Rabbi Michael Abraham] It may be that he learned exactly like Rashi. The Shulchan Arukh is a book of Jewish law, not a book of Talmudic interpretation. And in halakhah, when you want to define what private domain is, then you also bring the regular example and after that the two examples from the baraita.
[Speaker C] The Shulchan Arukh is not a commentator on the Talmud.
[Rabbi Michael Abraham] He comes—
[Speaker C] to teach me Jewish law, and when you come to teach Jewish law—
[Rabbi Michael Abraham] there is a lot of logic in bringing all three examples, including the ordinary example. If you want to summarize the topic, summarize it properly. Therefore these inferences in the Shulchan Arukh really do not seem convincing to me.
But why does he bring a mound and a fence? Do you hear? A mound is not a fence. Why does he bring a mound and not a fence? No, a mound is like a fence. Fine—there are many examples in the Talmud. We won’t get into the whole matter. A mound means an elevated place with partitions around it, and with a height and area of four by four—which includes the fence, the pillar, and whatever else you like, okay? Because otherwise he would have had to bring a very long list here. There’s no point. He brings the principal structures, okay? So I think the inference from the Shulchan Arukh is really not an inference.
In the Biur HaGra—I referred you to the Biur HaGra, I blackened it here—“a place, a place surrounded”—yes, this is on the Shulchan Arukh. Simply in several places, and its main source—where is the main source for this? In the baraita there. “Fence,” not like Rashi’s explanation there. Ah, now we have a discussion, a discussion.
[Speaker E] Okay.
[Rabbi Michael Abraham] What—I didn’t understand.
[Speaker E] Yes, I’m saying that just now we had a discussion what Rashi meant and what—what is “place”?
[Rabbi Michael Abraham] No, “place” is a word taken from the Shulchan Arukh. It simply indicates what this comment is referring to.
[Speaker E] Yes, that’s what Hani said, yes.
[Rabbi Michael Abraham] What does it mean? “The place”—that is the section in the Shulchan Arukh that talks about an area surrounded by partitions. So the Gra says: where did the Shulchan Arukh get that this too is private domain? After all, in the baraita it says only mound and ditch. So he says: it’s in several places. But then he adds: and its main source, the main place, is our baraita. Where? In our baraita it’s not mentioned. So he says: no, it is mentioned. What is written there, “fence,” in our baraita, the Shulchan Arukh understood as this case of a house surrounded by four walls; and that is not like Rashi’s explanation of “fence.”
[Speaker B] What did Rashi say?
[Speaker C] What’s the difference?
[Rabbi Michael Abraham] Rashi is talking about the wall, where the area of the wall itself is four by four. And the Gra understands that what is written here, “fence,” means that there are four fences around an area of four by four.
[Speaker B] Right, so they didn’t understand it in exactly the same way.
[Rabbi Michael Abraham] So it is not like Rashi.
[Speaker B] Right. Rashi is the area, and this—
[Speaker C] Wow, I didn’t understand that at all.
[Speaker B] The Gra—and this is area—the Gra means the top surface of the wall.
[Speaker E] On that we said “surrounded,” Hani.
[Rabbi Michael Abraham] Exactly.
[Speaker B] The Gra—
[Rabbi Michael Abraham] understood that when it says in the baraita “a fence, four by four,” it means the area is four by four and surrounded by fences.
[Speaker B] Meaning a house.
[Rabbi Michael Abraham] Not “a fence”—not that the width of—
[Speaker B] the fence is four.
[Rabbi Michael Abraham] Okay? And then of course one could ask: then where did the Shulchan Arukh get “mound”? Because then it would say “fence and ditch.” According to the Gra, mound does not appear in the baraita.
[Speaker B] But I’ll tell you why. Because according to the wording here, yes, “a fence that is ten high and four wide,” “wide” also relates to the fence and not to the area.
[Rabbi Michael Abraham] Fine, but the Gra learned—I agree with you; that’s why Rashi interpreted it that way—but the Gra did not learn it that way. The Gra learned that “fence” means a fence that encloses an area of four by four. “Fence” means, let’s put it in our language, an enclosure—an enclosed place whose area is four by four. Fine. So then the Gra basically understands that the two examples appearing in the baraita are an enclosed place and a ditch. Right?
[Speaker B] A ditch is also basically an enclosed place. Yes, but unlike a pillar. Not unlike a pillar, because it goes downward.
[Rabbi Michael Abraham] But according to the Gra, a mound does not appear in the baraita, right? So there is room to ask: if the Shulchan Arukh took it from the baraita, then why does he insert a mound here? And if you’re already saying that he inserts examples here that are not from the baraita, then why change Rashi’s interpretation? Stay with Rashi’s interpretation and say that what he inserted is the ordinary example, and he interprets ditch and mound in the baraita like Rashi.
[Speaker C] But you could say he took the mound from somewhere else. What? He took the mound from somewhere else, not from here.
[Rabbi Michael Abraham] From somewhere else, but I’m saying: if you already agree that the Shulchan Arukh took examples here that are not from the baraita, like the mound, then why do I care? Let me stay with Rashi’s interpretation and say that the first example in the Shulchan Arukh he took from somewhere else. Because the plain meaning of the baraita is like Rashi, not like the Gra.
[Speaker B] But according to the Gra’s interpretation, the ditch and the regular house, the area of the regular fence, have something in common that the pillar does not have, because the pillar is not enclosed.
[Speaker E] It has no external enclosure.
[Rabbi Michael Abraham] The pillar is not externally enclosed, but it is enclosed.
[Speaker E] It is enclosed from the inner part and downward.
[Speaker B] From it downward, but not from it upward.
[Rabbi Michael Abraham] It’s enclosed. It’s still enclosed. It’s enclosed in a different way.
[Speaker B] But when you sit on top of it, you are not enclosed when you sit on top of the pillar. I didn’t understand. If you sit on top of the pillar, you are not enclosed.
[Rabbi Michael Abraham] You see that you are enclosed. You are enclosed, but you don’t see it. Here of course this brings us into the discussion of legal extension upward. And therefore I referred you to Rabbi Chaim. Again, there’s no need to get into all of it. We discussed it in lesson twenty-six.
But Rabbi Chaim basically wants to claim that a private domain surrounded by partitions—after all, private domain rises up to the sky. Right. And if it is surrounded by partitions, then the partitions by legal extension upward rise up to the sky. But he raises there the possibility that perhaps if you are talking about a mound or a fence the way Rashi explains in our passage, then indeed above it this will be private domain, but it does not rise to the sky. It is private domain only on the top surface of the mound.
[Speaker E] Why? Because it’s the area itself—because it’s the area itself in essence.
[Rabbi Michael Abraham] It is not a partition that pulls them upward, and therefore there the law of legal extension upward is not said, and the private domain there does not rise to the sky.
[Speaker B] And then if he stands and throws something into the public domain, there is no problem with that.
[Rabbi Michael Abraham] Okay, because it passes through an exempt area perhaps. This already begins whole discussions. Fine—again, I don’t want to get into all of that. I only want to say that in light of this Rabbi Chaim, one could say that when it says, “and this is complete private domain”—
[Speaker E] Wait, I have a question.
[Rabbi Michael Abraham] Wait one second, one second. I want to say that private domain—this is private domain—according to the Gra, the two examples brought in the baraita are both private domain with walls around them. Right? Then what it says here, “and this is complete private domain,” means this is ordinary private domain that rises to the sky. Whereas the mound brought in the baraita is not complete private domain. Why? Because it does not rise to the sky. It is not ordinary private domain.
[Speaker B] Meaning the word “complete” comes to teach us that there are other things that do not rise to the sky.
[Rabbi Michael Abraham] Classic private domain, about which it is said that it rises to the sky, is only those two examples. But of course you can say that only according to the Gra.
[Speaker G] So how far does it rise?
[Rabbi Michael Abraham] Only over the surface area. But—
[Speaker G] But in tractate Sukkah we learned that you can place a sukkah on a pillar without walls.
[Rabbi Michael Abraham] I didn’t understand.
[Speaker G] There was such a case, that you can build a sukkah on a pillar without walls.
[Rabbi Michael Abraham] There is a question whether you need visible partitions or not visible partitions, whether we say legal extension upward or not, and there Rabbi Chaim is dealing precisely with that, with the relation between sukkah and the Sabbath. There is a difference between sukkah and the Sabbath.
[Speaker G] But if it’s not, then it could be—
[Rabbi Michael Abraham] that on the Sabbath you need visible partitions; therefore on the Sabbath there is no legal extension upward. Once there is no legal extension upward, it does not rise to the sky. In sukkah, where visible partitions are not required, it is built on legal extension upward.
[Speaker E] There is a whole discussion there—
[Rabbi Michael Abraham] there in Rabbi Chaim.
[Speaker E] I have a question. In what case did we say that above ten handbreadths it becomes public domain or an exempt area?
[Rabbi Michael Abraham] Right. We said that with the public domain, the airspace over the public domain above ten handbreadths—anything above ten handbreadths is called an exempt area.
[Speaker E] But—
[Rabbi Michael Abraham] In private domain, no matter how high above it, all the way to the sky, it is private domain.
[Speaker E] Okay, so with throwing—if I throw, and I don’t have a case here of “something passing through the air is considered as though it came to rest,” when I throw above ten handbreadths in the public domain—
[Rabbi Michael Abraham] When you throw above ten handbreadths, then it passes through an exempt area when it is above the public domain. Okay? And then indeed the question arises: for the one who holds that something passing through the air is considered as though it came to rest, why— and we discussed this—why is that not considered as though it came to rest in an exempt area, and then passed on to the public domain? Someone who throws from private domain to public domain should ostensibly be exempt according to Rabbi Akiva. Because if something passing through the air is considered as though it came to rest, then it “came to rest” above, in the exempt area, and then lands in the public domain.
[Speaker B] And if you throw over a ditch, then it’s private domain. Right.
[Rabbi Michael Abraham] Okay.
[Speaker C] But according to Rashi, there is legal extension upward in the wall, essentially. Right.
[Rabbi Michael Abraham] And according to the Gra, there isn’t.
[Speaker C] Right. They both interpret the baraita differently.
[Speaker G] If you go according to this interpretation that above it is not private domain—you don’t have to interpret it that way otherwise.
[Rabbi Michael Abraham] Look at Rashi. Come on—Rashi says it explicitly. Look at Rashi under the heading “this teaches us, complete,” do you see? “Meaning: this one, whose count of partitions is complete, having partitions on every side, such as a ditch and likewise a fence—both are complete private domain.” Why? “Because we say from the four sides, by legal extension upward, the face of the partition rises over its top. And it turns out that its top is enclosed on four sides and its space is four.” Rashi explicitly explains that such a pillar that is private domain has legal extension upward of four walls around it. Fine. Rabbi Chaim discusses Maimonides’ view; in Rashi it is certainly not like that.
Okay, let’s continue. The Gra himself refers us to paragraph 3 in the Shulchan Arukh. So before that: “The walls surrounding the private domain—the tops of them are private domain, even if they are not four wide.” This is basically the case of a mound. Sorry, this is not the case of a mound; it is the ordinary case of four walls around an area. And notice that the Shulchan Arukh adds that on top of the walls themselves it is also private domain, even though the area of the wall itself—the wall’s top surface—is not four by four. Why? So the Mishnah Berurah there explains that because these walls serve as walls for the area inside—
[Speaker B] so—
[Rabbi Michael Abraham] the area on top of the wall also, in effect, joins and is considered private domain, even though it itself is not four by four. That somewhat implies that the wall I am talking about is only the outer part of the wall, not the entire wall. Right? Because the top of the wall itself is considered part of the area enclosed by the walls.
[Speaker B] That’s what I’m saying.
[Rabbi Michael Abraham] From here it follows quite simply that the area of the wall itself can definitely join to the four by four of the interior area. Right. It does not have to be a net four by four excluding the wall, because clearly the wall itself is also considered part of the area. And then it follows that the partition—but then that means there is legal extension upward.
[Speaker C] No, not necessarily.
[Rabbi Michael Abraham] Wait—
[Speaker B] But—
[Speaker C] If the partition is only the external side, then how is the upper part of the wall actually inside the private domain? Because I see the external walls; the external side of the partition rises upward.
[Rabbi Michael Abraham] No, no—even without that. It is enough that there is a wall with an external side of ten handbreadths relative to the public domain. It doesn’t matter that I myself am on the upper part; still, there is a barrier between me and the public domain ten handbreadths high, so even without legal extension upward there is room to say this is private domain.
[Speaker B] But if the wall itself—if its outer wall is considered, joins—
[Rabbi Michael Abraham] the interior area, considered—
[Speaker B] private domain—then why, when the wall falls between two neighbors, are both of them liable?
[Rabbi Michael Abraham] What does that have to do with it?
[Speaker B] It’s connected, because if it’s a private domain up to the outer wall, then all of it belongs to him, to that individual.
[Rabbi Michael Abraham] Which individual? They could be partners in it. What does that have to do with it? Ownership in the sense of monetary law has nothing to do with the question of whether this is a private domain or not. It’s a private domain for the laws of the Sabbath, but the owners of it are both of them together. Okay, so that’s just a side note. Moving on. Now the Magen Avraham writes as follows: “It appears from the words of the halakhic decisors that when there are two partitions and a side-post, it is a private domain on the Torah level, as stated in Eruvin 12, that a side-post is משום מחיצה”—meaning, because of a partition—as we also had in the Pnei Yehoshua. And so too the Rosh wrote in the first chapter of Sukkah on that passage in Sukkah that we discussed, and see section 363, etc. “And Maimonides’ view is that three partitions are a karmelit; see there.” Meaning, he brings a dispute among the medieval authorities. Maimonides’ position is that four partitions are required for a private domain on the Torah level. If you don’t have four partitions—three partitions, or two and a side-post—that is not a private domain on the Torah level.
[Speaker C] But you really can’t understand that from this sentence without seeing Maimonides’ original wording, because if Maimonides says it’s a karmelit, then on the Torah level it’s a private domain.
[Rabbi Michael Abraham] No, on the Torah level it’s an exempt area. A karmelit is always something that on the Torah level is an exempt area. Okay. So therefore it’s clear that on the Torah level it is not a private domain until it has four walls. The other medieval authorities, against Maimonides, hold no: two and a handbreadth, or three, is a private domain on the Torah level. What requires four walls is only rabbinic, but on the Torah level it’s a private domain even without that. So this is a dispute among the medieval authorities.
[Speaker B] This—
[Speaker E] It’s very interesting, because what body defined it? I mean, it’s very interesting because after all only the rabbis defined this matter of three partitions, or two and a handbreadth, or two and a side-post.
[Rabbi Michael Abraham] No, that’s what those medieval authorities are claiming: that’s not correct. That’s exactly the novelty. Those medieval authorities argue that two partitions and a handbreadth, or three partitions, is already a private domain on the Torah level.
[Speaker E] But is that written on the Torah level? Does it say three?
[Rabbi Michael Abraham] What do you mean, “written”? It’s not written in the Torah, but that’s exactly—
[Speaker E] That’s what I’m saying, somebody defined it.
[Rabbi Michael Abraham] Doesn’t matter. It’s still defined as Torah law. Very often the sages are the ones who define what the Torah law is. Okay, so… in terms of its force, it’s Torah law.
[Speaker E] Okay, but they always learn the point from some verse.
[Rabbi Michael Abraham] No, not necessarily. The whole concept of a private domain doesn’t appear in the Torah at all, so what—regardless of the number of partitions. Okay? So… these are all rabbinic definitions, but it’s still defined as Torah law. Meaning, it works like this: according to Maimonides, basically only four walls—only four walls make it a private domain on the Torah level. Two and a handbreadth or three is an exempt area. Then the sages come and are stringent, and say that if there are two and a handbreadth or three, rabbinically we are stringent about it and treat that too as a private domain, but that’s only rabbinic.
[Speaker B] That’s Maimonides.
[Rabbi Michael Abraham] The other medieval authorities say the opposite: two and a handbreadth or three is on the Torah level a private domain. Then the sages come and are lenient… or, what do you mean lenient—they basically say that from our rabbinic perspective only four walls are a full, complete private domain. All right? Yes. So this is a dispute between Maimonides and the other medieval authorities. Let me bring you back to the Pnei Yehoshua. The Pnei Yehoshua assumed the view of the other medieval authorities, and therefore when he…
[Speaker C] Wait, wait—but I see three views here in what he brought. One view says that only four partitions are Torah-level. The second view says that both three and two plus a handbreadth—the Rosh—say that that’s Torah-level. And the third view is Maimonides’, that three is a karmelit, meaning that on the Torah level three is an exempt area.
[Rabbi Michael Abraham] That’s not a third view, that’s the first view. The first view says four walls are a private domain on the Torah level. What about three? An exempt area. Okay? But rabbinically it’s treated as a karmelit. It’s not another view; that is Maimonides’ view. When you say that three partitions are a karmelit, what you said here is that on the Torah level it’s an exempt area and not a private domain—
[Speaker D] And therefore that’s Maimonides’ view.
[Rabbi Michael Abraham] Okay? So the claim is basically that there is a dispute among the medieval authorities on the Torah-law plane. On the Torah-law plane, does a private domain require four walls—that’s Maimonides—or are two and a handbreadth or three enough—that’s the other medieval authorities. What happens rabbinically? Then it works the other way around. According to the other medieval authorities, rabbinically four walls are a full, complete private domain. According to Maimonides, two and a handbreadth is rabbinically treated stringently as a private domain as well, even though on the Torah level it is not a private domain. Okay. Now in section 363 the Shulchan Arukh writes as follows: “A place that has three partitions—the sages forbade carrying in it until one makes some correction on the fourth side.” So what is the Torah-level status of these three partitions before the sages forbade carrying there? It was permitted to carry there. Why was it permitted?
[Speaker B] An exempt area?
[Rabbi Michael Abraham] Because it’s an exempt area, or because it’s a private domain? A private domain. You could say that—
[Speaker B] You could say that,
[Rabbi Michael Abraham] but it seems a bit that the intention is private domain. Because basically, “a place of three partitions, the sages forbade carrying in it”—that’s not the law of a karmelit. If it were the law of a karmelit there’d be no need to say anything. What does it mean, “the sages forbade carrying in it”? It’s a karmelit. It seems it’s not a karmelit; it’s a private domain, but the sages forbade carrying in it even though it is a private domain, until one makes some correction on the fourth side. It appears from the Shulchan Arukh here that he does not follow Maimonides. A place with three partitions is a private domain; it’s just that rabbinically they still forbade carrying there. If he makes some correction on the fourth side, then now there are four partitions here, and then the sages too permit carrying there. Indeed the Taz writes there as follows: “A place that has three partitions”—in the Tur it is written here that it is a full private domain by Torah law, as we said. And the Beit Yosef raised a difficulty. Beit Yosef is the Shulchan Arukh’s commentary on the Tur, right? So he says: but in section 345 the Tur wrote that alleyways with three partitions and no side-post or crossbeam on the fourth side are a karmelit rabbinically.
[Speaker C] What’s the difficulty? A karmelit should be an exempt area on the Torah level, no?
[Rabbi Michael Abraham] A karmelit on the Torah level is an exempt area, and here the Tur writes that on the Torah level it’s a private domain. Now this isn’t such a strong difficulty, because one could have said it’s like a karpef. It really is a karmelit, but it’s a karmelit that on the Torah level is a private domain and not an exempt area, because after all there is such an example—a karpef, for instance, is such an example. But the assumption of the medieval and later authorities is generally that only a karpef is that example. So whenever you say of any other example that it’s a karmelit, the implication is that on the Torah level it was an exempt area, except for a karpef. So in principle, in the Tur, it would have been possible to resolve this by saying that the Tur sees the alleyway also like a karpef: on the Torah level it’s a private domain, but the sages forbade carrying in it like a karmelit until one makes a correction on the fourth side. But the Beit Yosef did not understand it that way, and therefore he challenges the Tur. Understand that if the Beit Yosef challenges the Tur in that way, then when I read his own words in the Shulchan Arukh I also need to read them that way, right? When the Beit Yosef—the Shulchan Arukh—writes, “A place that has three partitions, the sages forbade carrying in it,” what does that mean?
[Speaker E] That it—
[Speaker B] is a karmelit.
[Speaker D] That it is a karmelit.
[Rabbi Michael Abraham] No—that it is not a karmelit. “The sages forbade carrying in it” implies that without this it is a private domain.
[Speaker D] Yes, even though it’s a private—
[Rabbi Michael Abraham] domain. Otherwise you wouldn’t need to say “the sages forbade carrying in it”; it’s a karmelit, obviously. No, okay. So in the Shulchan Arukh it specifically seems, as I said earlier, that a place of three partitions is not like Maimonides. Three partitions is a private domain, and the sages forbade carrying there until one makes a correction on the fourth wall. The Shulchan Arukh himself is of the approach that something that is originally a karmelit is an exempt area, not a private domain. All right? So in any case, that’s what the Taz says. The Taz brings that the Beit Yosef raises the question and answered—I’m going back here to the Taz, yes?—and answered: “When it says here ‘a full private domain,’ it is not for the purpose of making one liable if he throws into it from the public domain, but to permit carrying within it,” etc. “Rather, that is the Torah-level law of a karmelit.” And that is forced, because it says here “a full private domain”; that’s not a karmelit, it’s a private domain. Just a private domain in which it is forbidden to carry. When he says that this is the Torah-level law of a karmelit, he means to say that it’s not really a private domain; rather the intent is that it is not a public domain. That’s what it means—not that it is a private domain, but that it is not a public domain. So what is it? A karmelit. But that’s forced. The Taz himself resolves it differently: “And in my humble opinion it seems to be explained that in section 345 it speaks of a case where the fourth side opens to the public domain,” for that is what he wrote there: “and the corner-areas adjacent to the public domain, such as alleyways that have three partitions,” etc. And this alleyway—sometimes the public presses through it to enter there, when there are many people in the public domain, as stated in the Talmud in the first chapter of Shabbat. Therefore, even though in itself it is a full private domain, nevertheless the public domain deprives it of being a private domain; rather it is nullified to the public domain and is called the sides of the public domain, and it is a karmelit.” What is he saying?
[Speaker B] He’s basically saying this: it was a private domain, but because the public pushes into it, they strip it of its status as a private domain.
[Rabbi Michael Abraham] He resolves the question on the Tur differently than the Beit Yosef. Really what the Tur writes—that three walls are a private domain—means a private domain, not merely that it isn’t a public domain. Three walls are a private domain on the Torah level, against Maimonides. So why in our passage does it say that an alleyway is not a private domain? Because an alleyway indeed has three walls, but the fourth opening is open to the public domain. He says: if there are three walls but the area is openly breached to the public domain, then it is no longer a private domain. That strips it of the name private domain. And therefore it basically gets the status of a karmelit. What?
[Speaker C] But in the Talmud the alleyway is not brought at all as a karmelit.
[Rabbi Michael Abraham] What do you mean?
[Speaker C] In the baraita here the alleyway is not brought as a karmelit. It’s brought as a place that we said was previously a private domain. The source of karmelit is an exempt area.
[Rabbi Michael Abraham] Right, but the rabbis established that it is forbidden to carry there, right? So he asks: why is carrying forbidden? After all, seemingly it is a private domain, and a private domain doesn’t become a karmelit; only an exempt area becomes a karmelit. So he says no: because this private domain is open to the public domain, it is basically an exempt area that becomes a karmelit. Meaning, he defines an alleyway differently. He says—
[Speaker C] that an alleyway is not a private domain but an exempt area. A different definition.
[Rabbi Michael Abraham] An exempt area that becomes a karmelit. Three ordinary walls not open to the public domain are a complete private domain on the Torah level. But if on the fourth side it is open to the public domain—not just to some ordinary place—then those three walls do not define a private domain. So what is it? Basically it is an exempt area. The public domain cancels the status of private domain from it, turning it into an exempt area that rabbinically is of course treated as a karmelit.
[Speaker B] Meaning, fundamentally it is a private domain, but because the public uses it and presses into it, it becomes—
[Rabbi Michael Abraham] It removes from it the title of private domain. Now it doesn’t become fully a public domain; it’s like the sides of the public domain. So then what is its status? On the Torah level it is an exempt area, and rabbinically it is a karmelit.
[Speaker G] And what if it’s a full private domain?
[Rabbi Michael Abraham] I can’t hear.
[Speaker C] So that’s basically like Maimonides.
[Rabbi Michael Abraham] No, it’s not like Maimonides—on the contrary. He wants to explain that the Tur is not like Maimonides. The Tur basically says that three walls are a full private domain, unlike Maimonides. Only here specifically, since it’s open to the public domain, it comes out as an exempt area. He’s trying to gain that the Tur should not come out like Maimonides—quite the opposite. Because here specifically the Tur agrees with Maimonides. Why? Because here those three walls are open to the public domain. But that does not mean that ordinary three walls are not a private domain. In that sense the Tur is against Maimonides.
[Speaker G] And if I have a private domain with three walls that’s open to the public domain?
[Rabbi Michael Abraham] Then it’s not—then it’s not a private domain. And that’s an alleyway.
[Speaker G] And according to Maimonides it’s not a private domain, yes.
[Rabbi Michael Abraham] Three walls, yes—but not for the same reason.
[Speaker D] No—
[Speaker G] But the claim about an alleyway that has three walls and is open to the public domain is that it is a full private domain; it’s only because it’s open to the public domain that it becomes a karmelit.
[Rabbi Michael Abraham] An exempt area.
[Speaker G] An exempt area. But if I have a full private domain—right—it’s not an alleyway that has an entrance to… then it’s not a private domain.
[Rabbi Michael Abraham] No. But he says that within the Tur’s view, where he does not follow Maimonides, ordinary three walls that are not open to the public domain—just three walls in a field—that is a full private domain. And in that he disagrees with Maimonides. But there’s no difficulty from here. Why? Because here, when he says it’s a karmelit, that’s because here it’s open to the public domain. When it’s open to the public domain, I too say it’s not a private domain, says the Tur.
[Speaker G] But he says that only about an alleyway, no?
[Rabbi Michael Abraham] No. According to the Taz, no. According to the Taz, anything open to the public domain, even if it has three walls, will not be a private domain. An alleyway in particular. He says: “And I found this distinction in the Maggid Mishneh, chapter 17.” The Maggid Mishneh on Maimonides already says this. The Maggid Mishneh is one of the medieval authorities, so he leans on him. And this is his wording: “There are those who distinguish between open to the public domain and open to a karmelit.” End quote. All right? So he found this distinction already in the Maggid Mishneh. But still, his whole goal is to say that the Tur is not like Maimonides, that he disagrees with Maimonides.
[Speaker G] But again, he’s talking about an alleyway, not just about—
[Rabbi Michael Abraham] He’s talking about an alleyway because the contradiction he raised on the Tur came from an alleyway. But his answer explains that this is a general rule, not specifically about an alleyway.
[Speaker G] But you could understand that even in an alleyway there’s something unique, more than an ordinary private domain enclosed by three walls, because many people pass through it and not just one person—an alleyway.
[Rabbi Michael Abraham] So what? But it’s a private domain on the Torah level.
[Speaker G] The many people—there’s some kind of overlap with the public domain, as opposed to a private domain that’s open to a domain that’s just mine, let’s say, that I built.
[Rabbi Michael Abraham] Opening to the public domain removes from it the title of private domain. That has nothing to do with an alleyway. The question was from an alleyway, but once he gave the answer, the answer wasn’t said only about an alleyway.
[Speaker C] But the accepted view is that an alleyway is on the Torah level indeed a private domain. That’s the accepted view; that’s how you opened the lesson.
[Rabbi Michael Abraham] Right. Correct, that is the accepted view. And the Taz argues no. Fine? Now, the whole idea that an alleyway is a private domain is built on the fact that an alleyway has three walls. According to Maimonides, that doesn’t even get off the ground, regardless of whether it is open to the public domain, because three walls are not enough to define a private domain on the Torah level. Therefore according to Maimonides you can’t say that at all about an alleyway. An alleyway is not a private domain on the Torah level. The Taz says: even according to the Tur, an alleyway is not a private domain on the Torah level, because it is open to the public domain. But from the Taz more than that emerges: even ordinary three walls that are open to the public domain apparently would not be a private domain. In Maimonides that’s obvious; he says it even according to the Tur. What that basically means is that according to Maimonides the accepted conception regarding an alleyway is incorrect: an alleyway is not a private domain. According to the Taz, even in the views that disagree with Maimonides, the Tur’s view, there too an alleyway is not a private domain on the Torah level. And that’s a big novelty. What is usually accepted is that an alleyway is a private domain on the Torah level. But I’m saying that in Maimonides that cannot be, and the Taz says that even in the Tur it isn’t so. Okay? At the end we’ll get to our passage, and in our passage we’ll really have to read it according to the Tur, and according to Maimonides, and according to the other medieval authorities. Now of course this will depend somewhat on the question of what sort of alleyway we’re talking about. Are we talking about a corrected alleyway or an uncorrected alleyway? If we’re talking about a corrected alleyway—
[Speaker E] that’s already a different story; corrected means private—
[Speaker G] domain, no?
[Rabbi Michael Abraham] Exactly. There it could be that already on the Torah level it is a private domain. The correction does real work.
[Speaker G] If it’s corrected and open to the public domain?
[Rabbi Michael Abraham] It’s open to the public domain with a correction or without a correction.
[Speaker B] Wait, and if it has a correction, then according to Maimonides what? That doesn’t count?
[Rabbi Michael Abraham] That’s the question. Does this correction do only rabbinic work, or does this correction also do Torah-level work? That’s the question. It could be that after they make the correction, then even on the Torah-law plane, according to Maimonides, it counts as four walls and is on the Torah level a private domain. And everything I’m saying, that it is not a private domain, is without the correction.
[Speaker E] But on the Torah level I don’t have a problem, because they accept the matter of three walls.
[Speaker D] No, three and a side-post.
[Speaker E] Three—no, three. No, Maimonides doesn’t. Maimonides doesn’t, but on the Torah level they do accept that three walls are a private domain.
[Rabbi Michael Abraham] Unless it is open—unless it is open to the public domain, in which case not. So in short, what I want to argue is this: all these introductions will basically bring us back in the end to our passage. Because in our passage we’ll have to read it according to each of the views, and we’ll have to see what the status of an alleyway is on the Torah level and what the status of an alleyway is rabbinically. But each of those questions—on the Torah level and rabbinically—we need to ask with respect to an uncorrected alleyway and a corrected alleyway—
[Speaker D] yes, corrected.
[Rabbi Michael Abraham] Because it could be that a corrected alleyway is considered a private domain on the Torah level, and then the common assumption is fine. Because the common assumption is that an alleyway on the Torah level is a private domain, and only rabbinically were they stringent. But according to Maimonides that can’t be, because on the Torah level an alleyway cannot be a private domain because it doesn’t have three walls. Right—but if it is corrected, then it could be that on the Torah level it too is a private domain. And everything Maimonides would say—that an alleyway is not a private domain—would refer to an uncorrected alleyway, because it has only three walls. Meaning, if he sees the correction as a fourth wall, then it’s fine.
[Speaker G] And how exactly does the correction—doesn’t the correction really make it a fourth wall?
[Rabbi Michael Abraham] What do you mean “really”? That’s our discussion. I don’t know what the truth is; we’re discussing it now.
[Speaker G] No—what function does the correction serve?
[Rabbi Michael Abraham] That’s what we’re discussing.
[Speaker G] If it makes it a wall, then it makes it—
[Rabbi Michael Abraham] some sort of—that’s what we’re discussing.
[Speaker E] No, but the whole significance of the correction is to turn it into a private domain, no? Right. Fine, so there’s your answer, isn’t it?
[Rabbi Michael Abraham] No, that’s one possible answer. You could say that the correction adds a fourth wall, and thereby it becomes a private domain on the Torah level, and that’s why carrying is permitted. And you could say no: really it was already a private domain beforehand; there was just a rabbinic prohibition on carrying even though it was a private domain. The correction removes that rabbinic prohibition. Okay, there’s a practical difference between those. Does the correction do Torah-level work, or does it only come to solve a rabbinic problem? How far did you get on the page?
[Speaker D] We still haven’t gotten back into the passage itself.
[Speaker E] I can’t hear. Last question—no, we still didn’t solve the last two questions, we didn’t get there.
[Speaker C] We still haven’t, like, gone back over the passage again through Maimonides’ eyes, basically.
[Rabbi Michael Abraham] Let’s look at the Biur Halakhah for a moment. Come on—
[Speaker G] But if the correction solves a rabbinic problem, could it be not because it’s another wall?
[Rabbi Michael Abraham] Yes, obviously. You don’t need another wall, because really even three walls are a private domain. It’s just that, despite this being a private domain, as I explained earlier, the sages nevertheless forbade carrying there because it resembles the public domain. If you make a correction, then they permit it.
[Speaker G] So the correction—what? It’s just a symbol?
[Rabbi Michael Abraham] It’s some kind of, yes—it’s like a wall, a fourth wall, but only rabbinically.
[Speaker D] Then it’s some sort of fence to warn us. What? It’s some sort of safeguard to warn us; it’s not that it’s needed for the definition of the walls.
[Rabbi Michael Abraham] Right—the idea behind it is that it’s like a fourth wall.
[Speaker D] Yes, but it reminds us; it’s not like Maimonides says, that without it these won’t count as walls.
[Rabbi Michael Abraham] Right. Now I’ll say more than that: according to the Taz, even in the Tur’s view you can say that this correction is a fourth wall. Because true, according to the Tur three walls are a private domain, but that is only if it is not open to the public domain. But if it is open to the public domain, then on the Torah level it is no longer a private domain. And if so, then even in the Tur’s view, which disagrees with Maimonides, the correction of this side-post actually turns it into a private domain on the Torah level, and doesn’t merely permit a rabbinic prohibition.
[Speaker D] But that’s only in an alleyway; it’s not in a public domain that has three walls.
[Rabbi Michael Abraham] No, in principle according to this it should come out that way in every domain, not only in an alleyway. It is said regarding an alleyway because in an alleyway it’s common.
[Speaker D] Because it’s according to—
[Rabbi Michael Abraham] the Tur, according to the Taz on the Tur, it basically comes out that any three walls, if they are open to the public domain, are not a private domain. Then it comes out that the correction which permits carrying is actually doing Torah-level work, not only rabbinic work, even in the views that disagree with Maimonides. In Maimonides’ view that’s obvious, but in the views that disagree with Maimonides, according to the Taz it’s also so. Without the Taz, then not. Without the Taz, it comes out that three walls are a private domain. Are you with me? Yes, yes. So that’s why I’m making all these introductions, because in the very end we have to go back and read our passage. Let’s look at the Biur Halakhah, and with that we’ll finish: “The sages forbade”—and as to whether it is called a private domain on the Torah level, to make one liable for throwing from it into the public domain, there is a dispute among the medieval authorities. For according to Maimonides, chapter 14, it is not called a private domain on the Torah level except with four partitions, or at least with three complete partitions and a side-post on the fourth wall, for that is considered like a partition.” Again, what is he writing? That the side-post on the fourth wall, according to Maimonides, does Torah-level work, not rabbinic work. “And so too the view of Rav Hananel is evident in his commentary on page 12. However, according to most decisors—that is, Rashi in Eruvin, and Tosafot in several places, and the Rosh, and the Rashba in Avodat HaKodesh, and the Ritva in three places—with three partitions or with two partitions and a side-post, it is a full private domain on the Torah level.” And then what? Then in an alleyway the side-post placed on the fourth wall does not do Torah-level work, because on the Torah level it is a private domain even without it; it only comes to permit a rabbinic prohibition. And here I qualify that and say: but according to the Taz, even in the Tur’s view, which disagrees with Maimonides, the fourth side-post does Torah-level work. Okay? That isn’t mentioned in the Biur Halakhah because he isn’t addressing the Taz; he’s addressing the medieval authorities. But basically according to the Taz it comes out that even according to those who disagree with Maimonides, the side-post does Torah-level work. “And know that according to this view there is no practical difference whether the two partitions were in the form of a gamma.” Do you know what “in the form of a gamma” means? No. It means the shape of a reish. The two partitions are at a ninety-degree angle to each other, or the two partitions are opposite one another, meaning parallel—even in that case it is called a private domain on the Torah level, since it has an additional side-post. “However, if the public domain passes between the partitions, it is evident in Shabbat 6, in our passage, that according to everyone the side-post is not effective there to make it a private domain, since the public passes between the partitions.” Of course, according to the Rabbis; according to Rabbi Yehudah yes—he’s talking about the law as we rule, like the Rabbis. Okay? “And see in Eruvin,” etc., “where it seems at first glance opposite to what we have said,” etc. “And know further that there are some of the medieval authorities who strike a compromise between the views, and it is brought in the Taz that where this alleyway or courtyard opens to the public domain, since sometimes the public presses through it and enters inside, they do not have the Torah-level status of a private domain. And with this the passage in Eruvin 94 is resolved,” etc. “And see in the Ritva and in the Maggid, chapter 17 of the laws of the Sabbath”—that is the Maggid Mishneh that the Taz brought. So that is the full picture. There are medieval authorities who disagree with Maimonides and say that three walls are a private domain even if it is open to the public domain, and according to their view the fourth side-post does only rabbinic work—it permits a rabbinic prohibition. According to Maimonides, and according to the Taz also in the medieval authorities who make a compromise and say that when the three walls are open to the public domain it is not a private domain, then the fourth side-post does Torah-level work, not rabbinic work. Okay? And now we need to get to reading our passage; that we’ll do in the next lesson.
[Speaker B] Thank you very much, thank you very much.
[Speaker E] Wait, now I checked what “in the form of a gamma” means—it’s just gamma, I didn’t know.
[Rabbi Michael Abraham] Gamma, Greek gamma, the letter itself, the shape.
[Speaker E] Thanks, have a good holiday,
[Rabbi Michael Abraham] goodbye.