Food For Thought On The Eiruv

By Yair Hoffman

There is no question that Klal Yisrael does remarkable chesed. The bikur cholim in hospitals throughout the tri-state area is truly remarkable–especially in Boro Park. There are rooms to stay in, and as much food as one would want. In this area, there is no question that Mr. Larry Gordon is absolutely correct (see this week’s “Heard in the Bagel Store: Intensive-Care Kugel”).

There is one issue, however, that could perhaps be improved.

Operation ‘Chocolate and Soda.’ Imagine a wonderful Jewish chesed organization that gives away Hershey chocolate bars, which are certified “OU-D” but not chalav Yisrael, to all visitors of Boro Park hospitals. Or imagine a Sephardic chesed organization that gives out soda throughout Pesach that has corn syrup (traditionally avoided by Ashkenazim because of the ban on kitniyos), albeit with a good Sephardic hechsher.

It has always been the practice of Jews to be as accommodating as possible to others. In the Five Towns, for example, the pizza shops are chalav Yisrael. The majority of Five Towns residents do not strictly observe chalav Yisrael. Yet there is benevolent accommodation in our communities.

The Hershey chocolate giveaway is a chesed, true. However, many people in the Boro Park hospitals do not eat Hershey’s OU dairy chocolate. Wouldn’t it be nice to perform the chesed in the best way possible, where people aren’t left out? The soda giveaway is also nice, but most of the people in a Boro Park hospital are Ashkenazic Jews. Wouldn’t the chesed be so much better if they gave away soda that all Jews could drink?

The Chanukah Lesson. During the season of Chanukah, many people ask why the Chashmonaim found it necessary to wait for pure oil. There is a halachic concept called “tumah hutrah b’tzibbur”–if needed for the tzibbur, impure oil may also be used. They could have used the impure oil as well if they were unable to find pure oil. Why didn’t they do so?

One answer that is often given is that the Chashmonaim were setting things up for the first time after a long period of disuse. In such circumstances, everyone is looking and observing. When setting up a system, one should always try to do it in the best possible manner. The Chashmonaim taught us not to settle for things that are impure, but to do mitzvos in the best possible manner. This is one of the lessons of Chanukah.

 

The Issue

Rav Moshe Feinstein, zt’l, the posek ha’dor of his generation, had ruled that Brooklyn, on account of the extensive number of people in it, is considered a reshus ha’rabbim from the Torah–a full public domain. His students claimed that the alleged mechitzos that have always surrounded Brooklyn, which proponents of the eiruv claim exist, are not valid mechitzos at all. It is not halachically possible to build an eiruv in a public domain. Any attempt to do so would be invalid.

There are others who disagree with his views and there are some who claim that even Rabbi Feinstein, zt’l, would have agreed that the Brooklyn eiruv is valid. None of his children, grandchildren, or students agree with this view, however. For many decades, the standard practice in Boro Park was that no eiruv was possible, and there was no eiruv. Eventually, some rabbis who disagreed with Rav Feinstein succeeded in erecting a Boro Park eiruv.

The people who run the chesed organization, however, do not bring the food to the Boro Park hospital before Shabbos, but actually carry it on Shabbos itself–relying on the Boro Park eiruv. The question is whether one who respects the ruling of Rav Feinstein, zt’l, on the invalidity of eiruvin in Brooklyn may eat the food that is brought on Shabbos. Also, is this case comparable to the illustrations of the chocolate and the soda mentioned above? Let us once again emphasize that the organization’s remarkable chesed is not in question here, and it is truly a model chesed organization that should be emulated.

Ma’aseh Shabbos. Some background explanation is in order.

The term “ma’aseh Shabbos” is, unfortunately, not one that is so well known, yet it is a concept with enormous halachic ramifications. Literally, it means the byproducts of Shabbos violation. If someone had chas v’shalom violated Shabbos, even by accident, by cooking, sewing, carrying, or planting, what is the halachic status of the product of the Shabbos violation? May it be used by him?

It should be known that the concept of ma’aseh Shabbos is not just limited to foods that were cooked. Rather, it is applicable in many other situations too, as well as to all 39 of the Shabbos melachos. It applies to clothing that was sewn, fires that were lit, and items that are planted. It applies to biblical prohibitions as well as to rabbinic prohibitions. And according to many poskim, it applies to items that were carried on Shabbos as well. The issue is that, while the food was in fact carried, no specific change was effected within the food itself.

The three opinions are as follows:

1. The Rashba (Shabbos 130a), the Ritvah (Eiruvin 41b), and Rabbeinu Yonah (ibid.) hold that it is permitted if no physical change took place within the food itself.
2. The Rambam (Hilchos Shabbos 6:24) and the Rosh hold it is permitted if there is no benefit to the user–for example, if the carried item was put back.
3. The Magen Avraham (on SA OC 405:9) only permits it if the violation was a d’rabbanan–but if it was a d’Oraisa and it was put back it is still forbidden even if he had no benefit.

The Chayei Adam (klal 9; see Nishmas Adam) states that in carrying, where there is nothing changed within the item itself, one would be permitted to utilize the byproduct of Shabbos violation. However, the Biur Halachah (siman 318) states that when it comes to a Torah prohibition, one must be stringent just like in regard to cooking.

Rav Feinstein’s view, as understood currently by his family and students, is that it is a Torah prohibition to carry within a Brooklyn eiruv.

Background and Reasons. The Talmud (Kesubos 34a, Chulin 15a, and Bava Kamma 71a) records a debate between the Tannaim as to the parameters of the prohibition. The two categories under discussion are:

1. when Shabbos was violated by accident, b’shogeg;
2. when it was violated intentionally, b’meizid.

Two of the three views are found below:

• Rabbi Meir is of the opinion that when Shabbos is violated unintentionally, b’shogeg, there is no prohibition placed on what was cooked or made. However, when Shabbos is violated on purpose, b’meizid, one may not benefit from that which was done until motzaei Shabbos, Saturday night.
• Rabbi Yehuda is of the opinion that one may never benefit from a Shabbos violation on Shabbos itself and one must wait until motzaei Shabbos even if it was done unintentionally, b’shogeg. If it was done on purpose, however, the person who did it can never use it. It is forbidden forever.

 

Final Halachah

According to which opinion do the Rishonim rule?

The Rambam, Rif, and Shulchan Aruch rule like Rabbi Yehuda. For the Shabbos violator, the ma’aseh Shabbos is forbidden forever, and for everyone else it only becomes permitted on Saturday night.

Tosfos and the Vilna Gaon, however, rule more leniently. They rule like Rabbi Meir, who permits everything on Saturday night and does not forbid it at all if it was done b’shogeg. None of the Rishonim rule in accordance with Rabbi Yochanan HaSandlar, however.

How does the Mishnah Berurah, who is generally considered the final arbiter of halachah, rule? He rules (318:7) that when it is l’tzorech, when necessary, one may rely upon the Vilna Gaon when the Shabbos was violated b’shogeg. What about when it was violated on purpose? The Mishnah Berurah does not state that one can rely on the Vilna Gaon’s opinion in such a case. The clear indication is that in cases of intentional Shabbos violation, the Mishnah Berurah rules stringently.

In this case, those who are carrying are of the opinion that the carrying is permitted. Under such circumstances, many poskim view that if your own poskim think that the other view is in error, their labor is considered b’shogeg to you.

Definition of L’tzorech. The Mishnah Berurah does not define for us what the exact parameters of l’tzorech are. Elsewhere, the Mishnah Berurah (325:60) tells us that regarding amirah l’akum the parameters of “l’tzorech” are if one will not have hot food on Shabbos. One would have thought that the same definition would apply here. However, both Rav Elyashiv, zt’l, and Rav Shlomo Zalman Auerbach, zt’l, ruled more stringently (see Meor HaShabbos Vol. I 18:17). They rule that l’tzorech means not having food at all.

This author brought the issue before Rav Dovid Feinstein, shlita, and Rav Shmuel Fuerst, shlita, this week. Both said that Rav Moshe Feinstein’s view was that “l’tzorech” would mean even if one will not have hot food on Shabbos, even though he may have other food. This is contrary to the view cited in the aforementioned Meor HaShabbos. This does not necessarily mean that one may eat of the food that is carried. This is because one can always make arrangements prior to Shabbos to have hot food in a home of a neighbor where one would not have to resort to carrying.

Definition of B’shogeg. There are three types of Shabbos errors that would be considered b’shogeg:

• If one thought that it was permissible to do this action.
• If one followed the ruling of a rabbi, even though it turned out to be incorrect (see Magen Avraham 318:3).
• If one forgot that it was Shabbos (See Mishnah Berurah 318:6).

Opening a Door with a Key That Was Carried. As an interesting aside, what is the halachah if a Jew had carried a key on Shabbos where there was no eiruv? Rav Moshe Feinstein (IM OC II #71) forbids entering the door under such circumstances. Rav Elyashiv, zt’l, permits it (cited in his son-in-law’s work, Mlachim Umnayich p. 525). Rav Elyashiv’s rationale is that in this case it is viewed not as a positive action of benefit but rather as the removal of an impediment. The lock is blocking entry into the walled-off area.

Yet the Mishnah Berurah (518:45) forbids use of items found in a bin that was opened up in violation of the laws of Shabbos–indicating that he is in agreement with Rav Moshe.

 

Conclusions

If there is a need and one could not have made arrangements beforehand, then the carrying would be considered b’shogeg and it would be permitted to rely on the view of Rav Meir. Otherwise, we would follow the view of Rabbi Yehuda and not eat of the carried food.

This author had approached the hospital as well as the organization to try to arrange that all the food be brought before Shabbos so that everyone can be accommodated–even those who follow the traditional view of Rav Moshe Feinstein’s position. Many poskim, rabbanim, and lay leaders are surprised that no such accommodation has been made. If anyone is in a position to influence matters, it would be appreciated by many thousands of religious Jews. v

The author can be reached at Yairhoffman2@gmail.com.