Halacha
הלכה א
אַרְבַע רְשׁוּיוֹת לְשַׁבָּת. רְשׁוּת הַיָּחִיד וּרְשׁוּת הָרַבִּים וְכַרְמְלִית וּמְקוֹם פְּטוֹר. אֵי זוֹ הִיא רְשׁוּת הָרַבִּים מִדְבָּרוֹת וַעֲיָרוֹת וּשְׁוָקִים וּדְרָכִים הַמְפֻלָּשִׁין לָהֶן. וּבִלְבַד שֶׁיִּהְיֶה רֹחַב הַדֶּרֶךְ שֵׁשׁ עֶשְׂרֵה אַמָּה וְלֹא יִהְיֶה עָלָיו תִּקְרָה. וְאֵי זוֹ רְשׁוּת הַיָּחִיד תֵּל שֶׁגָּבוֹהַּ עֲשָׂרָה טְפָחִים וְרָחָב אַרְבָּעָה טְפָחִים עַל אַרְבָּעָה טְפָחִים אוֹ יֶתֶר עַל כֵּן. וְכֵן חָרִיץ שֶׁהוּא עָמֹק עֲשָׂרָה וְרָחָב אַרְבָּעָה עַל אַרְבָּעָה אוֹ יֶתֶר עַל כֵּן. וְכֵן מָקוֹם שֶׁהוּא מֻקָּף אַרְבַּע מְחִצּוֹת גָּבְהָן עֲשָׂרָה וּבֵינֵיהֶן אַרְבָּעָה עַל אַרְבָּעָה אוֹ יֶתֶר עַל כֵּן אֲפִלּוּ יֵשׁ בּוֹ כַּמָּה מִילִין אִם הֻקַּף לְדִירָה כְּגוֹן מְדִינָה הַמֻּקֶּפֶת חוֹמָה שֶׁדַּלְתוֹתֶיהָ נִנְעָלוֹת בַּלַּיְלָה וּמְבוֹאוֹת שֶׁיֵּשׁ לָהֶן שְׁלֹשָׁה כְּתָלִים וְלֶחִי בְּרוּחַ רְבִיעִית. וְכֵן חָצֵר וְדִיר וְסַהַר שֶׁהֻקְּפוּ לְדִירָה כֻּלָּן רְשׁוּת הַיָּחִיד גְּמוּרָה הֵן:
כסף משנה
1.
There are four domains1An ancient commentary on the Mishneh Torah from Egypt emphasizes that the word רשות, translated as "domain," means "authority." Thus, in the context of space, a "private domain" would refer to a place that is controlled by a single authority, and a "public domain" to a place that is not controlled by such an authority. See Hilchot Eiruvin 1:4-5. [referred to by our Sages with regard to transferring objects on the Sabbath]: a private domain,2In his Commentary on the Mishnah (Shabbat 1:1), the Rambam describes a private domain as "a place that is not traversed by many people." a public domain,3In his Commentary on the Mishnah (loc. cit.), the Rambam describes a public domain as "a place traversed by many people." a carmelit,4In his Commentary on the Mishnah (loc. cit.), the Rambam explains the meaning of this term: ארמלית is the Aramaic for "widow" and the prefix כ means "like." Thus, the term means "like a widow" - i.e., neither an unmarried maiden nor a married woman. Similarly, since a carmelit is not a place traversed by many people (Shulchan Aruch, Orach Chayim 345:14), it is not classified as a public domain. Nevertheless, it is not set off from the public sufficiently to meet the criteria of a private domain.(Others, based on the Jerusalem Talmud, define carmelit as having its root in the word carmel, which means "partially ripe grain." The intent is also similar, an intermediate state. Note also the interpretation of Rashi mentioned below.)
The restrictions against carrying in a carmelit are Rabbinic in origin. According to the Torah, all the places defined as a carmelit are considered as a makom patur (or in certain unique instances, a private domain). and a makom patur.5This term literally means "a place with no liability." It refers to a place that is neither a public domain, nor a private domain. The forbidden labor of transferring objects was derived from the Sanctuary and involved carrying from the private domain to the public domain or vice versa. Accordingly, one is not held liable for carrying to, from, or within any place that does not meet the criteria of these categories.
What constitutes a public domain?6Significantly, the Rambam does not mention that a public domain must have 600,000 people passing through it. Rashi (Eruvin 6a) mentions this opinion, and it was accepted by the Ashkenazic authorities after him. The rationale for this ruling is that all the forbidden labors - and particularly, the labor of transferring - are derived from the construction of the Sanctuary. The public domain in that time was the encampment of the Jewish people in which 600,000 lived.
The Shulchan Aruch (Orach Chayim 345:7) mentions this view, but does not accept it. Nevertheless, Shulchan Aruch HaRav 345:11 and the Mishnah Berurah 345:23 write that it has already become public custom to accept the view that there is no possibility of a public domain in the present age. These texts do suggest that a God-fearing person should act stringently and should not rely on this leniency.
(It also must be noted that in many major cities today - e.g., New York, London, Paris - there are 600,000 people walking through a particular area. Hence, in a metropolis of this size, there are definitely places which could be categorized as public domains.) Deserts,7This statement has raised many questions among the commentaries based on Shabbat 6b, which appears to imply that a desert was considered a public domain only when the Jews were encamped there. At the present time, a desert is considered as a carmelit and not as a public domain (Maggid Mishneh).
The Kessef Mishneh attempts to resolve these difficulties by quoting a responsum of the Rambam's son, Rabbenu Avraham. Rabbenu Avraham explains that the deserts his father refers to are those wastelands that are frequently used as caravan routes. These are traversed by many merchants and are not under the control of any authority. Hence, these can surely be referred to as a public domain.
When defining a public domain and a carmelit in his Shulchan Aruch (Orach Chayim 345:7, 14), Rabbi Yosef Karo does not mention a desert at all. (See also the Bayit Chadash, Orach Chayim 345.) forests,8With regard to this particular as well, the Maggid Mishneh raises a question, noting that many authorities consider forests a carmelit. Indeed, Rashi (Shabbat 3b) interprets the meaning of the term carmelit as referring to a "wood."
The Kessef Mishneh also attempts to resolve this objection, explaining that the intent is a forest with paths that many people enter to collect wood. Thus, it refers to a place used by the public and not under the authority of a single owner. marketplaces, and the thoroughfares leading to them, provided that the thoroughfares are sixteen cubits wide9Shabbat 99a derives the necessity for the thoroughfares to be sixteen cubits wide from the way in which the boards of the Sanctuary were transferred. There were two wagons that traveled side by side, each five cubits wide. There were five cubits between them and a half a cubit on either side for a Levite to stand (Rashi). The same passage also specifies that these thoroughfares must be at least sixteen cubits in length.
Michah diagram and are not covered by a roof.10Shabbat 5a also derives this concept from the encampment of the Jews in the desert. There, the public domain was not covered by a roof. Therefore, even if an area meets the other criteria of a public domain, it is not considered to be in this category if it has a roof. (See Halachah 6.)
What constitutes a private domain? A mound that is at least ten handbreadths high and at least four handbreadths by four handbreadths in area;11A space that is smaller in height or area is not fit to be used for any significant purpose (Shulchan Aruch HaRav 345:1).
a groove that is at least ten handbreadths deep and at least four handbreadths by four handbreadths in area;
a place that is surrounded by four walls that are [at least] ten handbreadths high and whose inner space is at least four handbreadths by four handbreadths in area. Even if such an area is several millim in size, [it is considered a private domain] if it was enclosed for the purpose of [creating] a dwelling12The Rambam's intent is not that an area that is not enclosed for the purpose of dwelling is not considered a private domain at all. Rather, as obvious from his decisions in Chapter 16, Halachah 1, it is a private domain according to Torah law. Therefore, a person who transfers an object to it from a public domain is liable. Nevertheless, if such an area is very large, the Rabbis forbade carrying within it as explained in Chapter 16. - e.g., a city surrounded by a wall whose gates are closed13See Chapter 17, Halachah 10, and the Kessef Mishneh, which deal with the question of whether these walls must actually be closed. at night14See Hilchot Eruvin 1:1-2, where the Rambam states that although a city of this type is considered a private domain according to Torah law, the Rabbis forbade carrying within such a city unless an eruv is made. and a lane that has three walls and a lechi at its fourth side.15The lechi serves in place of the fourth wall. (See Chapter 17, Halachah 2.) Rav Moshe Cohen quotes an opinion that maintains that three walls are sufficient for an area to be considered a private domain. This difference of opinion is explained in the opening halachot of Chapter 17. Similarly, a courtyard, a corral, and a stable that were enclosed for the purpose of [creating] a dwelling16The Kessef Mishneh emphasizes that by mentioning these places, the Rambam implies that we can generally assume that they have been enclosed to serve as a dwelling. are considered private domains in a complete sense.
הלכה ב
אֲפִלּוּ כֵּלִים כְּגוֹן סְפִינָה אוֹ מִגְדָּל שֶׁל עֵץ וְכַוֶּרֶת וְכַיּוֹצֵא בָּהֶן אִם יֵשׁ בָּהֶן אַרְבָּעָה עַל אַרְבָּעָה בְּגֹבַהּ עֲשָׂרָה אוֹ יֶתֶר עַל זֶה הֲרֵי הֵן רְשׁוּת הַיָּחִיד גְּמוּרָה:
כסף משנה
2.
Even vessels17This refers to a vessel of this size that is placed in the public domain (Shulchan Aruch HaRav 345:10; Mishnah Berurah 345:13). - e.g., a boat, a wooden closet, a beehive, or the like - are considered private domains18This refers to both the inside and the upper surface of the vessel (Shulchan Aruch HaRav 345:10; Mishnah Berurah 345:16). in a complete sense if they are at least four handbreadths by four handbreadths19If the container is round, its surface must be large enough to contain a square of that size (Shulchan Aruch HaRav 345:10; Mishnah Berurah 345:15). in area and ten handbreadths high.הלכה ג
עֳבִי הַכְּתָלִים שֶׁל רְשׁוּת הַיָּחִיד כִּרְשׁוּת הַיָּחִיד. לַאֲחֵרִים עוֹשֶׂה מְחִצָּה לְעַצְמוֹ לֹא כָּל שֶׁכֵּן. אֲוִיר רְשׁוּת הַיָּחִיד כִּרְשׁוּת הַיָּחִיד עַד לָרָקִיעַ. אֲבָל אֲוִיר רְשׁוּת הָרַבִּים אֵינוֹ כִּרְשׁוּת הָרַבִּים אֶלָּא עַד עֲשָׂרָה טְפָחִים. וּלְמַעְלָה מֵעֲשָׂרָה בַּאֲוִיר רְשׁוּת הָרַבִּים מְקוֹם פְּטוֹר הוּא:
כסף משנה
3.
The span of the walls of the private domain is considered to be like the private domain.20This applies even when the upper surface of these walls is less than four handbreadths wide (Shulchan Aruch, Orach Chayim 345:3). This ruling was rendered, because it is possible to place a board on the walls and place articles upon it. Furthermore, the width of the walls can be added to the width of the private domain to reach a total of four cubits (Shulchan Aruch HaRav 345:7) If the [walls] create a distinction [from the public domain] for another [area - i.e., the space they contain], surely they create a distinction for themselves.The space above a private domain until [the highest point] in the heavens is considered a private domain.21See Halachah 17. The space ten handbreadths above the public domain, [by contrast,] is considered a makom patur.22See Halachah 18. The difference between a private domain and a public domain in this particular case stems from the fact that the space above a person's domain belongs to him. He will build his own property high and place objects within this space. In contrast, the public domain is set aside for people to pass through, and no one has permission to build in the space above it (Kinat Eliyahu).
הלכה ד
אֵי זוֹ הִיא כַּרְמְלִית תֵּל שֶׁיֵּשׁ בּוֹ אַרְבָּעָה עַל אַרְבָּעָה אוֹ יֶתֶר עַל כֵּן וְגָבְהוֹ מִשְּׁלֹשָׁה וְעַד עֲשָׂרָה. שֶׁהַכַּרְמְלִית אֵינָהּ תּוֹפֶשֶׂת אֶלָּא עַד עֲשָׂרָה וְאֵינָהּ רְחָבָה פָּחוֹת מֵאַרְבָּעָה עַל אַרְבָּעָה. וְכֵן חָרִיץ שֶׁיֵּשׁ בּוֹ אַרְבָּעָה עַל אַרְבָּעָה אוֹ יֶתֶר עַל כֵּן וְעָמֹק מִשְּׁלֹשָׁה עַד עֲשָׂרָה. וְכֵן מָקוֹם שֶׁהֻקַּף בְּאַרְבַּע מְחִצּוֹת גָּבְהָן מִשְּׁלֹשָׁה וְעַד עֲשָׂרָה וּבֵינֵיהֶן אַרְבָּעָה עַל אַרְבָּעָה אוֹ יֶתֶר עַל כֵּן. וְכֵן קֶרֶן זָוִית הַסְּמוּכָה לִרְשׁוּת הָרַבִּים וְהוּא הַמָּקוֹם שֶׁמֻּקָּף שָׁלֹשׁ מְחִצּוֹת וְהָרוּחַ הָרְבִיעִית רְשׁוּת הָרַבִּים כְּגוֹן מָבוֹי שֶׁאֵין לוֹ לֶחִי אוֹ קוֹרָה בְּרוּחַ רְבִיעִית וְכֵן הַיַּמִּים וְהַבִּקְעָה בֵּין בִּימוֹת הַחַמָּה בֵּין בִּימוֹת הַגְּשָׁמִים כָּל אֵלּוּ כַּרְמְלִית הֵן:
כסף משנה
4.
What is a carmelit? A mound that is four [handbreadths] by four [handbreadths] in area and between three [handbreadths]23If the mound is less than three handbreadths high, the principle of l'vud is applied, and it is considered part of the public domain (Rambam's Commentary on the Mishnah, Shabbat 1:1).and ten [handbreadths] high.24Just as a public domain does not occupy the space ten handbreadths above the ground, so too, a carmelit does not extend above that height. For a carmelit occupies only the space ten [handbreadths] nor less above the ground and is not less than four [handbreadths] by four [handbreadths in area].25A mound with a smaller area is a makom patur, as mentioned in Halachah 7.Each of the following is [also considered] a carmelit:
a groove that is four [handbreadths] by four [handbreadths] in area and between three [handbreadths] and ten [handbreadths] deep,26The converse of the principles applying to a mound apply in this instance.
a place that is surrounded by four walls that are between three and ten27See Halachah 8 with regard to a pillar nine handbreadths high. [handbreadths] high28These walls are sufficiently high to separate the place from the public domain, but not high enough to set it off as a private domain. and enclose an area at least four [handbreadths] by four [handbreadths],29Were the space to be smaller than this, it would not be considered significant, and would be classified as a makom patur. a corner next to the public domain - i.e., an area surrounded by three walls with the public domain on the fourth side30As the Maggid Mishneh mentions, many authorities differ with the Rambam and also consider such an area a private domain. This issue is discussed in Chapter 17. (See also Halachah 6.) - e.g., a passageway that does not have a lechi or a korah on the fourth side,31See Chapter 17, Halachah 2. seas, a valley [of fields],32These fields are not surrounded by fences ten handbreadths high (Maggid Mishneh). whether in the summer or in the rainy season.33Even in the winter, when crops do not grow, it is not common for people to walk through fields. (See also Hilchot Sha'ar Avot HaTum'ah 20:1-6).)
הלכה ה
אֲוִיר הַכַּרְמְלִית הֲרֵי הוּא כְּכַרְמְלִית עַד עֲשָׂרָה טְפָחִים. וּלְמַעְלָה מֵעֲשָׂרָה טְפָחִים בַּאֲוִיר הַכַּרְמְלִית הֲרֵי הוּא מְקוֹם פְּטוֹר. לְפִיכָךְ מֵעַל פְּנֵי הַמַּיִם שֶׁבַּיַּמִּים וְשֶׁבַּנְּהָרוֹת עַד עֲשָׂרָה טְפָחִים כַּאֲוִיר כַּרְמְלִית. וּלְמַעְלָה מֵעֲשָׂרָה מְקוֹם פְּטוֹר. אֲבָל כָּל הָעֹמֶק הַמְּלֵאָה מַיִם הֲרֵי הוּא כְּקַרְקַע עָבָה:
כסף משנה
5.
The space above a carmelit is considered equivalent to a carmelit for ten handbreadths. The space ten handbreadths above a carmelit, however, is considered a makom patur.34As mentioned in Halachah 3, the space more than ten handbreadths above the public domain is considered as a makom patur and not a public domain. Surely, this applies with regard to a carmelit, which - in most instances - is a makom patur according to the Torah and was taken out of this category only by Rabbinic decree.Therefore, the space above the water in a sea or river is considered a carmelit for ten [handbreadths], the space higher than ten [handbreadths above the water] is considered a makom patur.35The practical ramifications of this concept are mentioned in Chapter 15, Halachah 20. The entire depth of the water by contrast is considered as thick earth [and thus is deemed a carmelit].36I.e., even if the sea is hundreds of cubits deep, the entire depth is considered a carmelit, and the leniencies of a makom patur are not granted. See also the responsum of the Rambam quoted by the Kessef Mishneh Chapter 27, Halachah 3.
הלכה ו
בּוֹר שֶׁבְּכַרְמְלִית הֲרֵי הוּא כְּכַרְמְלִית אֲפִלּוּ עָמֹק מֵאָה אַמָּה אִם אֵין בּוֹ אַרְבָּעָה. רְשׁוּת הָרַבִּים שֶׁהָיְתָה עָלֶיהָ תִּקְרָה אוֹ שֶׁאֵין בְּרָחְבָּהּ ט''ז אַמָּה הֲרֵי הִיא כְּכַרְמְלִית. אִצְטַבָּא שֶׁבֵּין הָעַמּוּדִים הָעוֹמְדִים בִּרְשׁוּת הָרַבִּים הֲרֵי הִיא כְּכַרְמְלִית. וְצִדֵּי רְשׁוּת הָרַבִּים כְּכַרְמְלִית. אֲבָל בֵּין הָעַמּוּדִים הוֹאִיל וְרַבִּים דּוֹרְסִין בֵּינֵיהֶן הֲרֵי הֵן רְשׁוּת הָרַבִּים:
כסף משנה
6.
A storage vat in a carmelit is considered a carmelit even if it is 100 cubits deep, if it is not four [handbreadths by four handbreadths in area].37The text of the Rambam's wording in this halachah and its interpretation are a subject of debate among the commentaries. Some texts of the Mishneh Torah read "A storage vat in a carmelit is considered a carmelit even if it is 100 cubits deep and four [handbreadths by four handbreadths]." (Note Rav Kapach's text of the Mishneh Torah, which follows the latter version with a slight emendation, "even if it is 100 cubits deep and 100 cubits wide.")The essence of the issue is as follows: Were the vat to be more than four handbreadths by four handbreadths, it would be appropriate to consider it to be a private domain, since it meets all the criteria mentioned in Halachah 1. (Rav Kapach, however, maintains that in this instance, because the vat is filled with water and located in a carmelit, the fact that it meets the criteria of a private domain is insignificant.)
On the other hand, the Rashba and other authorities object to the Rambam's ruling as stated in our text. Since this vat can be considered an independent entity, seemingly, it would be more appropriate that it be considered a makom patur and not a carmelit. The Kessef Mishneh justifies the decision quoted in our text, explaining that since a carmelit is itself a makom patur according to Torah law, it is impossible for a makom patur to be established within it. Instead, the entire area is considered a single carmelit. Note a similar concept in Chapter 17, Halachah 11. This rationale is accepted as halachah by the Ramah (Orach Chayim 345:18-19).
A public domain that is covered by a roof38E.g., in Talmudic times, a market place with a roof; in contemporary situations, a shopping mall. or that is not sixteen cubits wide is considered a carmelit.39The encampment of the Jewish people in the desert, the source for the prohibition against carrying, was not covered and had paths that were sixteen cubits wide. Accordingly, although an area would for all intents and purposes be considered a public domain, it is not placed in that category with regard to the Sabbath laws unless it confirms to these criteria.
A stall between the pillars of the public domain40Where merchants display their wares. and the narrow space at the side of the public domain41The commentaries to Eruvin 94a describe this as referring to the space left between the public domain and a house built in an abnormal manner that causes obstructions to passersby. is considered a carmelit. In contrast, the space between the pillars is considered a public domain, because many people walk there.42The Rashba and others differ with the Rambam's ruling and maintain that the space between the pillars is not considered part of the public domain, because the merchants hang their wares there. Moreover, the very structure of the space does not allow people to walk there comfortably.
The Shulchan Aruch (Orach Chayim 345:14) appears to accept the Rambam's ruling, and this decision is accepted by Shulchan Aruch HaRav 345:21. Note, however, the Mishnah Berurah 345:50, which maintains that the majority of halachic authorities follow the more lenient view.
הלכה ז
אֵי זֶהוּ מְקוֹם פְּטוֹר. מָקוֹם שֶׁיֵּשׁ בּוֹ פָּחוֹת מֵאַרְבָּעָה עַל אַרְבָּעָה וְגָבְהוֹ שְׁלֹשָׁה עַד לָרָקִיעַ שֶׁכָּל פָּחוֹת מִשְּׁלֹשָׁה הֲרֵי הוּא כָּאָרֶץ. אֲפִלּוּ קוֹצִים וּבַרְקָנִים אוֹ גְּלָלִים בִּרְשׁוּת הָרַבִּים גָּבְהָן שְׁלֹשָׁה וְאֵין רָחְבָּן אַרְבָּעָה עַל אַרְבָּעָה הֲרֵי הֵן מְקוֹם פְּטוֹר. וְכֵן חָרִיץ שֶׁאֵין בּוֹ אַרְבָּעָה עַל אַרְבָּעָה וְעָמְקוֹ מִשְּׁלֹשָׁה עַד הַתְּהוֹם. וְכֵן מָקוֹם הַמֻּקָּף שֶׁאֵין בּוֹ אַרְבָּעָה עַל אַרְבָּעָה אֲפִלּוּ הָיָה אָרְכּוֹ אֶלֶף מִיל וְרָחְבּוֹ אַרְבָּעָה פָּחוֹת שְׂעוֹרָה וְגָבְהוֹ מִשְּׁלֹשָׁה וּלְמַעְלָה הֲרֵי זֶה מְקוֹם פְּטוֹר. וְכֵן אֲוִיר רְשׁוּת הָרַבִּים אוֹ אֲוִיר כַּרְמְלִית לְמַעְלָה מֵעֲשָׂרָה הֲרֵי הוּא מְקוֹם פְּטוֹר:
כסף משנה
7.
What is meant by a makom patur? An area that is less than four handbreadths by four handbreadths43Since it is less than four handbreadths by four handbreadths, it is not considered significant enough to be deemed a private domain. in area and more than three handbreadths above the earth, even if it reaches the heavens themselves. An elevation less than three handbreadths high, by contrast, is considered as [being on] ground level.44Because of the principle of l'vud.Even brambles, briers, and dung that are located in the public domain45A makom patur can exist only in the public domain, and, according to certain opinions, in a carmelit. (With regard to a carmelit, note the difference of opinion between the Rambam and the Rashba mentioned in the previous halachah.) In a private domain, by contrast, there is no concept of a makom patur. and are more than three [handbreadths] high and less than four [handbreadths] by four [handbreadths] are deemed a makom patur.
Similarly, a groove that is less than four [handbreadths] by four [handbreadths] and more than three handbreadths deep, even if it reaches the earth's very depths, and a place that is surrounded by walls, but is not four [handbreadths] by four [handbreadths] in area and is more than three handbreadths high, are both considered a makom patur.46The concept that a private domain must be four handbreadths by four handbreadths and not merely sixteen square handbreadths is derived from two laws mentioned in Shabbat 8b. Thus, a makom patur may have a very large total area. Even if they are one thousand millim long, but the length of a barley corn less than four handbreadths wide, [they are still considered as a makom patur.
Also considered a makom patur is the space above a public domain and the space above a carmelit that is more than ten handbreadths high.
הלכה ח
מָקוֹם שֶׁיֵּשׁ בְּגָבְהוֹ תִּשְׁעָה טְפָחִים מְצֻמְצָמִים לֹא פָּחוֹת וְלֹא יֶתֶר בִּרְשׁוּת הָרַבִּים הֲרֵי הוּא כִּרְשׁוּת הָרַבִּים. וְאֵין מַשְׁגִּיחִין עַל מִדַּת אָרְכּוֹ וּמִדַּת רָחְבּוֹ בֵּין רָחָב בֵּין קָצָר מִפְּנֵי שֶׁרַבִּים מְכַתְּפִין עָלָיו. אֲבָל אִם הָיָה יֶתֶר עַל תִּשְׁעָה אוֹ פָּחוֹת אִם הָיָה בּוֹ אַרְבָּעָה עַל אַרְבָּעָה אוֹ יֶתֶר הֲרֵי הוּא כַּרְמְלִית. וְאִם אֵין בּוֹ אַרְבָּעָה עַל אַרְבָּעָה הֲרֵי הוּא מְקוֹם פְּטוֹר:
כסף משנה
8.
A place that is exactly nine handbreadths high, neither more or less, in the public domain is considered part of the public domain. [It is placed in this category47According to the general principles mentioned previously, it would be classified as either a carmelit or a makom patur, as is obvious from the conclusion of the halachah. Nevertheless, since its height is appropriate to unload and load burdens, it is used frequently by the passersby in the public domain. Hence, it is considered an extension of that domain.The Maggid Mishneh quotes the Ra'avad as maintaining that the pillar must be four handbreadths by four handbreadths to be considered part of the public domain. The Shulchan Aruch (Orach Chayim 345:10) does not place a limit on the pillar's size.] regardless of its width or length - whether large or small - because many people use it to arrange their loads.48Most authorities have interpreted the Rambam's words to mean that since the pillar is this height, it is fit to be used to load and unload. Even if it is not used for this purpose, since it is suited for it it is considered part of the public domain.
The Ra'avad and others do not accept this decision and maintain that such a pillar is not considered part of the public domain unless people actually use it frequently to arrange their loads. (Note the Sha'ar HaTziyun 345:36, which cites opinions that interpret the Rambam's words in accordance with the Ra'avad's decision.)
The Shulchan Aruch (loc. cit.) follows the Ra'avad's decision. Nevertheless, the Eliyahu Rabbah suggests respecting the popular interpretation of the Rambam's view.
If, however, it is more49In his gloss on Shabbat 8a, Rabbenu Asher differs and maintains that a pillar that is between nine and ten handbreadths high is also considered par4t of the public domain. This slight addition in height does not make it uncomfortable to use. Although the Shulchan Aruch (loc. cit.) quotes this view as well, the Rambam's ruling is accepted by most authorities (Mishnah Berurah 345:36). or less than nine handbreadths high, [different rules apply]: If it is four [handbreadths] by four [handbreadths] or more [in area], it is a carmelit. If it is less than four [handbreadths] by four [handbreadths in area], it is a makom patur.
הלכה ט
גַּג הַסָּמוּךְ לִרְשׁוּת הָרַבִּים בְּתוֹךְ עֲשָׂרָה טְפָחִים הוֹאִיל וְרַבִּים מְכַתְּפִין עָלָיו אָסוּר לְטַלְטֵל בַּגַּג עַד שֶׁיַּעֲשֶׂה לוֹ סֻלָּם קָבוּעַ לְהַתִּירוֹ. עַמּוּד בִּרְשׁוּת הָרַבִּים גָּבוֹהַּ עֲשָׂרָה וְרָחָב אַרְבָּעָה הֲרֵי זֶה רְשׁוּת הַיָּחִיד. נָעַץ בְּגָבְהוֹ יָתֵד כָּל שֶׁהוּא אֲפִלּוּ אֵינָהּ גְּבוֹהָה שְׁלֹשָׁה הוֹאִיל וְרָאוּי לִתְלוֹת בַּיָּתֵד וּלְהִשְׁתַּמֵּשׁ בּוֹ הֲרֵי זֶה מְמַעֲטוֹ וְנַעֲשָׂה כַּרְמְלִית. וְאֵין מוֹדְדִין לוֹ אֶלָּא מִן הַיָּתֵד וּלְמַעְלָה. וַאֲפִלּוּ מִלְּאָהוּ כֻּלּוֹ יְתֵדוֹת הֲרֵי זֶה מְמַעֵט גָּבְהוֹ. שֶׁהֲרֵי תּוֹלִין בְּאוֹתָן הַיְתֵדוֹת וּמִשְׁתַּמְּשִׁים בָּהֶן:
כסף משנה
9.
When a roof that is less than ten handbreadths [high]50Although the roof is less than ten handbreadths high when measured from the side of the public domain, it is ten handbreadths high from the side of the courtyard (Maggid Mishneh citing the Rashba). is located in proximity to the public domain and many use it for their loads, it is forbidden to carry on this roof51According to the Torah, this roof is a private domain and there is no reason why it should not be used by its owner. Nevertheless, since it is easily accessible from the public domain and is used by passersby there during the week, the Rabbis forbade its owner from carrying upon it on the Sabbath (Eruvin 84b).Note the Shulchan Aruch (Orach Chayim 361:1), which accepts a differing interpretation of the passage offered by the Rashba and permits carrying on the roof, but prohibits transferring an article from the adjoining courtyard to the roof. unless a ladder [leading to the owner's courtyard] is permanently affixed52I.e., it remains there during the week as well as on the Sabbath (Maggid Mishneh). there. [If this is done,] it is permitted [to carry on the roof].53Since the owner has set up a ladder leading to the roof from the adjoining courtyard, it is obvious that he intends to use the roof and that it is part of his domain. This makes it distinct from the public domain.
A pillar that is located in the public domain and is ten handbreadths high and four [handbreadths by four handbreadths in area] is deemed a private domain.54Since it is ten handbreadths high, it is not part of the public domain, and since it is four handbreadths by four handbreadths, it is of significant size to be considered a domain in its own right. If, however, one inserted a spike in its side,55This ruling follows Rabbenu Chanan'el's interpretation of Eruvin 78a. Rashi and the Ra'avad interpret that passage differently. even if [the spike is] less than three handbreadths high,56And thus is considered to be an extension of the ground, because of the principle of l'vud. since articles may be hung from it or it may be used [for other purposes], it reduces the height of the pillar and it is deemed to be a carmelit.57Since these spikes are used by the passersby in the public domain, they are considered part of that domain. Therefore, the height of the pillar is calculated from the highest spike. If it is not ten handbreadths high from that point upward, it is not considered to be a private domain. See the above diagram. [The pillar's] height is calculated beginning from the highest spike.
הלכה י
חוֹרֵי רְשׁוּת הַיָּחִיד הֲרֵי הֵן כִּרְשׁוּת הַיָּחִיד. אֲבָל חוֹרֵי רְשׁוּת הָרַבִּים אֵינָם כִּרְשׁוּת הָרַבִּים אֶלָּא הֲרֵי הֵן כְּפִי מִדָּתָן. כֵּיצַד. חוֹר בְּצַד רְשׁוּת הָרַבִּים אִם יֵשׁ בּוֹ אַרְבָּעָה עַל אַרְבָּעָה וְגָבוֹהַּ עֲשָׂרָה הֲרֵי הוּא רְשׁוּת הַיָּחִיד. וְאִם אֵין גָּבוֹהַּ עֲשָׂרָה הֲרֵי זֶה כַּרְמְלִית. וְאִם אֵין בּוֹ אַרְבָּעָה עַל אַרְבָּעָה הֲרֵי זֶה מְקוֹם פְּטוֹר. וְהוּא שֶׁגָּבוֹהַּ שְׁלֹשָׁה. שֶׁכָּל הַפָּחוּת מִשְּׁלֹשָׁה הֲרֵי הוּא כָּאָרֶץ:
כסף משנה
10.
Holes [in the wall of] a private domain58This refers to holes in the wall that face the private domain. Even if they extend through the entire breadth of the wall and also open up to the public domain, they are considered part of the private domain (Shulchan Aruch HaRav 345:8; Mishnah Berurah 345:9). are [considered part of] the private domain.59The Rambam does not not make any specifications regarding the size or the height of these holes. His view is accepted by the Shulchan Aruch (Orach Chayim 345:4), although other Rishonim differ. Holes in the public domain, by contrast, [are not considered part of the public domain, but rather] are judged according to their size.What is implied? Holes located at the side of the public domain which are four [handbreadths] by four [handbreadths] and ten [handbreadths] high60The intent is not necessarily that the hole be ten handbreadths high, but that its floor be ten handbreadths above the ground. are considered as a private domain.61An area that is four handbreadths by four handbreadths is significant enough to be considered a separate domain. If they [are this length and width, but] are not ten [handbreadths] high, they are considered to be a carmelit. If they are smaller than four [handbreadths] by four [handbreadths], they are considered to be a makom patur.
[The above applies] provided that they are three [handbreadths above the ground]. Anything below three [handbreadths]62This ruling applies even if the holes are four handbreadths by four handbreadths and thus are of significant enough size to be be considered a separate space. Since they are within three handbreadths of the ground, they are considered part of the public domain (Mishnah Berurah 345:46). is considered to be [an extension] of the ground.63Because of the principle of l'vud.
הלכה יא
רְשׁוּת הַיָּחִיד וּמְקוֹם פְּטוֹר מֻתָּר לְטַלְטֵל בְּכֻלָּן אֲפִלּוּ הָיָה אֹרֶךְ כָּל אַחַת מִשְּׁתֵּיהֶן כַּמָּה מִילִין מְטַלְטֵל בְּכֻלָּהּ. אֲבָל רְשׁוּת הָרַבִּים וְהַכַּרְמְלִית אֵין מְטַלְטְלִין בָּהֶן אֶלָּא בְּאַרְבַּע אַמּוֹת. וְאִם הֶעֱבִיר אוֹ הוֹשִׁיט אוֹ זָרַק חוּץ לְאַרְבַּע אַמּוֹת בִּרְשׁוּת הָרַבִּים חַיָּב וּבְכַרְמְלִית פָּטוּר. שֶׁאִסּוּר הַכַּרְמְלִית מִדִּבְרֵיהֶם מִפְּנֵי שֶׁהִיא דּוֹמָה לִרְשׁוּת הָרַבִּים שֶׁמָּא תִּתְחַלֵּף בִּרְשׁוּת הָרַבִּים. לְפִיכָךְ אִם לֹא הָיָה צָרִיךְ לְגוּף הַהוֹצָאָה כְּגוֹן שֶׁהֶעֱבִיר קוֹץ בְּכַרְמְלִית כְּדֵי שֶׁלֹּא יִזּוֹקוּ בּוֹ רַבִּים הֲרֵי זֶה מֻתָּר. וַאֲפִלּוּ הֶעֱבִירוֹ כַּמָּה אַמּוֹת. וְכֵן כָּל כַּיּוֹצֵא בָּזֶה:
כסף משנה
11.
It is permitted to carry throughout a private domain and a makom patur. Even if such a domain is several millim long, one is permitted to carry throughout the entire area. In contrast, one may carry only within [a square of] four cubits in a public domain and in a carmelit.If a person carried [an article], passed [it] to another person or threw [it] beyond four cubits in the public domain, he is liable. In a carmelit, one is not liable, since the prohibition against [carrying in] a carmelit is a Rabbinic decree, [enacted because] the area resembles a public domain and [the Sages were concerned] that a distinction between the two would not be made.
Accordingly, if one removed [an article] for which one had no purpose - e.g., one removed a thorn from a carmelit64As mentioned in Chapter 1, Halachah 7, according to the Rambam, who maintains that one is liable for performing a מלאכה שאינה צריכה לגופה, this leniency applies only in a carmelit and not in the public domain. As mentioned in the notes on that halachah, many authorities differ with the Rambam and maintain that the prohibition against performing a מלאכה שאינה צריכה לגופה is Rabbinic in origin. Therefore, it is bypassed when there is a danger involved. This view is accepted by the Shulchan Aruch (Orach Chayim 278:1). so that people would not be injured by it, the act is permitted. This applies even if one carries it several cubits. The same applies in other similar instances.
הלכה יב
כְּשֵׁם שֶׁמֻּתָּר לְטַלְטֵל בְּכָל מְקוֹם פְּטוֹר כָּךְ מֻתָּר לְהַכְנִיס מִמֶּנּוּ לִרְשׁוּת הַיָּחִיד אוֹ לִרְשׁוּת הָרַבִּים וְאֵין צָרִיךְ לוֹמַר לְכַרְמְלִית. וּמוֹצִיאִין לוֹ מֵרְשׁוּת הַיָּחִיד וּמֵרְשׁוּת הָרַבִּים וְאֵין צָרִיךְ לוֹמַר מִן הַכַּרְמְלִית:
כסף משנה
12.
Just as one is permitted to carry within a makom patur, so too, is one permitted to transfer articles from it to a private domain, a public domain, and, needless to say, a carmelit. Similarly, one may transfer articles to it from a private domain, a public domain, and, needless to say, a carmelit.65Accordingly, if a person discovers that he is unwittingly carrying an object in the public domain, he should deposit it in a makom patur.הלכה יג
כְּשֵׁם שֶׁאָסוּר לְטַלְטֵל בְּכָל הַכַּרְמְלִית כָּךְ אָסוּר לְהוֹצִיא מִמֶּנָּה לִרְשׁוּת הַיָּחִיד אוֹ לִרְשׁוּת הָרַבִּים אוֹ לְהַכְנִיס לְכַרְמְלִית מֵרְשׁוּת הַיָּחִיד אוֹ מֵרְשׁוּת הָרַבִּים. וְאִם הוֹצִיא אוֹ הִכְנִיס פָּטוּר:
כסף משנה
13.
Just as one is forbidden to carry within a carmelit, so, too, is one forbidden to remove articles from it to a private domain or a public domain. [Similarly, it is forbidden] to bring in an article from a private domain or a public domain to a carmelit.66The Shulchan Aruch (Orach Chayim 346:2) states that one may pass an article from one carmelit to another - e.g., from a sea to a valley [of fields] - provided one does not pass it more than four cubits. See also Chapter 16, Halachah 2. If one removes or brings in [an article], one is not liable.הלכה יד
הַמּוֹצִיא מֵרְשׁוּת הַיָּחִיד לִרְשׁוּת הַיָּחִיד אוֹ מֵרְשׁוּת הָרַבִּים לִרְשׁוּת הָרַבִּים וְכַרְמְלִית בָּאֶמְצַע פָּטוּר. וְכֵן הַמּוֹשִׁיט אוֹ הַזּוֹרֵק מִזּוֹ לְזוֹ וְכַרְמְלִית בָּאֶמְצַע פָּטוּר. הַמּוֹצִיא חֵפֶץ מֵרְשׁוּת הָרַבִּים לְכַרְמְלִית וְהִנִּיחוֹ שָׁם וְחָזַר וַעֲקָרוֹ מִכַּרְמְלִית וְהִכְנִיסוֹ לִרְשׁוּת הַיָּחִיד. אוֹ שֶׁהוֹצִיאוֹ מֵרְשׁוּת הַיָּחִיד לְכַרְמְלִית וְהִנִּיחוֹ שָׁם וְחָזַר וַעֲקָרוֹ מִכַּרְמְלִית וְהוֹצִיאוֹ לִרְשׁוּת הָרַבִּים הֲרֵי זֶה פָּטוּר:
כסף משנה
14.
A person is not liable for transferring an article from one private domain to another private domain via a carmelit,67One is, however, liable for transferring an article from a private domain to a public domain via a carmelit, provided one does not stand in the carmelit (Shabbat 5b). (See also the notes on the following halachah.) nor [is he liable for transferring an article] from one public domain to another public domain via a carmelit.68This ruling applies only when one does not carry the article more than a total of four cubits in both public domains combined, as stated in Chapter 13, Halachah 17. Similarly, a person who passes or throws an article from either of these types of domains to another similar domain via a carmelit is not liable.When a person transfers an article from the public domain to a carmelit, puts it down in the latter domain, and afterwards, picks it up from the carmelit and brings it into a private domain, [he is not liable].69A person is liable for transferring an article only when he removes an article from either a private or a public domain and places it down in the other in one uninterrupted sequence. [Similarly, a person who transfers an article] from a private domain to a carmelit, puts it down in the latter domain, and afterwards, picks it up from the carmelit and brings it into a public domain, is not liable.
הלכה טו
הַמּוֹצִיא מֵרְשׁוּת הַיָּחִיד לִרְשׁוּת הָרַבִּים וְעָבַר עַל מְקוֹם פְּטוֹר שֶׁהָיָה בֵּינֵיהֶן בַּהֲלִיכָתוֹ חַיָּב. שֶׁמְּהַלֵּךְ אֵינוֹ כְּעוֹמֵד. וְאֵין צָרִיךְ לוֹמַר בְּזוֹרֵק שֶׁעָבַר הַחֵפֶץ בִּמְקוֹם פְּטוֹר שֶׁאֵינוֹ חָשׁוּב כְּמִי שֶׁנָּח שָׁם. הָיָה עוֹמֵד בִּמְקוֹם פְּטוֹר וְנָטַל חֵפֶץ מֵרְשׁוּת הַיָּחִיד אוֹ מֵאָדָם הָעוֹמֵד שָׁם וְהִנִּיחוֹ בִּרְשׁוּת הָרַבִּים אוֹ בְּיַד אָדָם הָעוֹמֵד שָׁם פָּטוּר. וְכֵן אִם הִכְנִיס מֵרְשׁוּת הָרַבִּים לִרְשׁוּת הַיָּחִיד וְעָמַד בִּמְקוֹם פְּטוֹר, פָּטוּר:
כסף משנה
15.
A person is liable if he transfers an article from a private domain to a public domain even though he passes through a makom patur, because a person who is walking is not considered to have stood [in the places through which he passed].70This concept is the subject of a difference of opinion among the Sages (Shabbat 5b). Although the majority of the Sages follow the ruling quoted by the Rambam, ben Azzai differs. He maintains that a person who walks through a domain - even though he does not stop to rest - is considered to have stood there. Thus, in the above instance, the article the person is carrying is considered to have been placed down in the makom patur. Hence, he would not be held liable. Surely, when a person throws an article through a makom patur, the article is not considered to have come to rest.71The Maggid Mishneh mentions that in this halachah, the term makom patur also applies to a carmelit, since according to Torah law, a carmelit is also a makom patur.A person is not liable if, while standing in a makom patur, he took an article from a private domain or from a person standing there and placed it down in the public domain or in the hands of a person standing there.72The rationale for the Rambam's ruling can be understood based on the comments of the Radbaz cited in the notes to Chapter 15, Halachah 1. According to the Rambam, a person is liable for transferring an article only when he is standing in one of the domains involved in the prohibited transfer. If he is standing in another domain, he is not liable. As mentioned in the notes to that halachah, most other authorities do not accept the Rambam's basic principle. Needless to say, even according to the Rambam, transferring an article in this manner is forbidden.
Note Shulchan Aruch HaRav 346:2, which states that if the person transfers the article immediately, without resting his hand at all in the makom patur, he is liable. Similarly, if one brought an article from a public domain to a private domain [via a] makom patur and stood in the latter domain, one is not liable.73This ruling applies only when one stands to rest. Should the person stand merely to adjust his load, he is liable. See Chapter 13, Halachot 8 -10.
הלכה טז
עַמּוּד בִּרְשׁוּת הָרַבִּים גָּבוֹהַּ עֲשָׂרָה וְרָחָב אַרְבָּעָה וְאֵין בְּעִקָּרוֹ אַרְבָּעָה וְיֵשׁ בַּגֹּבַהּ הַקָּצָר שֶׁלּוֹ שְׁלֹשָׁה הֲרֵי הוּא רְשׁוּת הַיָּחִיד וְאִם זָרַק מֵרְשׁוּת הָרַבִּים וְנָח עַל גַּבָּיו חַיָּב. תֵּל הַמִּתְלַקֵּט גּוֹבֶה עֲשָׂרָה טְפָחִים מִתּוֹךְ אֹרֶךְ אַרְבַּע אַמּוֹת הֲרֵי הוּא רְשׁוּת הַיָּחִיד וְאִם זָרַק מֵרְשׁוּת הָרַבִּים וְנָח עַל גַּבָּיו חַיָּב:
כסף משנה
16.
A pillar that is located in the public domain [is considered] a private domain [in the following situation]: It is ten [handbreadths] high and [possesses an upper surface] of four [handbreadths by four handbreadths] in area, but a lower surface that is not four [handbreadths by four handbreadths]. [This applies even] when its smaller end is more than three [handbreadths] high.74The pillar is considered to be a private domain because it is ten handbreadths high. Were the smaller surface to be less than three handbreadths above the ground, there would be no difficulty in such a statement, because of the principle of l'vud. The new concept taught by this ruling, which is based on Shabbat 101a, is gud acheit mechitzata, "pull down and extend the partition downward" - i.e., the circumference of the pillar is considered to extend to the ground, and thus the entire pillar is considered as being ten handbreadths high.The above explanation follows the standard published texts of the Mishneh Torah, which have the support of some early texts. It parallels Rashi's understanding of the above Talmudic passage. Tosafot and the Rashba, however, interpret that passage differently and maintain that there is a proviso that must be met in regard to the principle gud acheit mechitzata: It is accepted only when young goats are not able to pass under the partition in question. Therefore, in this instance, since the narrow portion of the base is small, it would appear that young goats would be able to pass under the open portion. Accordingly, they offer a different interpretation, stating that this ruling is applicable only when the lower surface of the pillar is less than three handbreadths above the ground.
There are many manuscripts and early printings of the Mishneh Torah whose text indicates that the Rambam subscribes to this latter view. Furthermore, this perspective parallels the Rambam's rulings in Hilchot Sukkot 4:4. This view is quoted as halachah by the Magen Avraham 345:1. It must be emphasized, however, that the halachot that follow and their interpretation appear - although not conclusively so - to indicate that the Rambam subscribes to the principle of gud acheit in other contexts similar to the situation described here. [Therefore,] if a person throws an article from the public domain and it lands on [this pillar], he is liable.
הלכה יז
נָעַץ קָנֶה בִּרְשׁוּת הַיָּחִיד אֲפִלּוּ גָּבוֹהַּ מֵאָה אַמָּה וְזָרַק מֵרְשׁוּת הָרַבִּים וְנָח עַל גַּבָּיו חַיָּב. שֶׁרְשׁוּת הַיָּחִיד עוֹלָה עַד לָרָקִיעַ. אִילָן שֶׁהוּא עוֹמֵד בִּרְשׁוּת הַיָּחִיד וְנוֹפוֹ נוֹטֶה לִרְשׁוּת הָרַבִּים וְזָרַק וְנָח עַל נוֹפוֹ פָּטוּר. שֶׁאֵין הַנּוֹף הוֹלֵךְ אַחַר הָעִקָּר:
כסף משנה
17.
When a person throws an article from the public domain and it lands upon a reed77The mention of a "reed" by Shabbat 7a, the source for this halachah, is very significant, because a reed is narrow. In Chapter 13, Halachah 1, the Rambam states that a person is not liable for transferring an article unless he places it down on a surface that is at least four handbreadths by four handbreadths. A reed is obviously not that size.Based on that passage, Rashi, the Ramban, and the Rashba maintain that the above principle applies only in the public domain and not within a private domain. The Maggid Mishneh and others interpret the Rambam as accepting this principle as well. Accordingly, they question why he did not state this exception in Chapter 13, when laying down the general principles regarding this forbidden labor.
The Ma'aseh Rokeach offers an alternative to this explanation, noting that Shabbat 102b holds one liable for throwing an article into the mouth of a dog or into the mouth of a furnace even though they are less than four handbreadths by four handbreadths. Why? Since this was the person's desire, this intent causes the place to be considered as if it were the required size. Similarly, in this instance, if one desired the article to rest on top of the reed, that intent is sufficient to cause one to be liable. - even one that is 100 cubits high - which is implanted in a private domain, he is liable, for a private domain extends until the very heavens.
When a tree's [trunk] is located in a private domain and its branches extend into the public domain, a person who throws [an article from the public domain that] lands in its branches is not liable, because the branches78Rav David Arameah states that the branches are considered to be a makom patur. Surely this would be true if the branches are ten handbreadths high. are not [automatically considered as being] in the same domain as the stem.
הלכה יח
נָעַץ קָנֶה בִּרְשׁוּת הָרַבִּים וּבְרֹאשׁוֹ טְרַסְקַל וְזָרַק וְנָח עַל גַּבָּיו פָּטוּר שֶׁאֵין רְשׁוּת הָרַבִּים אֶלָּא עַד עֲשָׂרָה. הַזּוֹרֵק אַרְבַּע אַמּוֹת בִּרְשׁוּת הָרַבִּים וְנָח הַחֵפֶץ בַּכֹּתֶל. כְּגוֹן שֶׁזָּרַק חֵלֶב אוֹ בָּצֵק וְנִדְבַּק בַּכֹּתֶל. אִם נִדְבַּק לְמַעְלָה מֵעֲשָׂרָה טְפָחִים כְּזוֹרֵק בַּאֲוִיר. שֶׁלְּמַעְלָה מֵעֲשָׂרָה בִּרְשׁוּת הָרַבִּים מְקוֹם פְּטוֹר הוּא. נִדְבַּק לְמַטָּה מֵעֲשָׂרָה טְפָחִים כְּזוֹרֵק בָּאָרֶץ וְחַיָּב. זָרַק לְמַעְלָה מֵעֲשָׂרָה וְנָח בְּחוֹר כָּל שֶׁהוּא פָּטוּר:
כסף משנה
18.
When a person throws an article that lands upon a reed with a basket79Although Rav David Arameah offers a different interpretation, most commentaries render טרסקל as "basket. at its top which is implanted in a public domain, he is not liable,80This ruling applies regardless of whether the article is thrown from a private domain or a public domain. Were the article to have been thrown from a private domain, the person would not be liable, for the space more than ten handbreaths above a public domain is not considered to be part of that domain.Were the article to have been thrown from the public domain, the person is not liable, for the basket is not considered to be a private domain. This decision applies even when the basket is four handbreadths by four handbreadths. Shabbat 101a relates that one might think that since the surface is four handbreadths by four handbreadths and it is more than ten handbreadths high, it would meet the criteria for a private domain. Nevertheless, this is possible only based on the principle gud acheit mechitzata, "pull down and extend the partition downward" - i.e., that the edges of the basket would be considered as extending to the ground.
This principle is not applicable in the present instance. The principle gud acheit is applicable (see Halachah 16) only when the area through which one would like to "extend the partition" could not be "entered by young goats." Since the entire area beneath the basket is open, the principle cannot be applied. for a public domain extends only ten [handbreadths high].81The Ra'avad objects to the addition of the latter phrase, maintaining that even if the basket were less than ten handbreadths high, it would be considered a carmelit, and a person who threw an object into it would not be liable.
The Maggid Mishneh explains that the Rambam was not focusing on that dimension, but rather was differentiating between this halachah and the previous one, which describes a reed implanted in a private domain. The intent was to emphasize that unlike a private domain, the rules governing a public domain apply only within ten handbreadths.
See also the Or Sameach, who brings a proof from Halachah 19 that although utensils can create a private domain, they cannot create a carmelit.
[The following rules apply when] a person throws an article in the public domain and it comes to rest on a wall - e.g., one threw fats or dough and they became attached to the wall: If they become attached above ten handbreadths [from the ground], it is considered as if he threw the article into the air, for the space more than ten handbreadths above a public domain is a makom patur.
If it becomes attached below ten handbreadths, it is as if he threw the article on the ground and he is liable.82Provided the article traveled four cubits. In his Commentary on the Mishnah (Shabbat 11:3), the Rambam mentions that the four cubits are measured in a direct line from where the person is standing to where the article became attached to the wall. If he threw the article above ten [handbreadths high]83The same ruling would apply if the hole were less than ten handbreadths high. The Rambam quotes this law in this fashion to negate the opinion of Rabbi Meir, Shabbat 7b. and it came to rest in a hole that is of inconsequential size,84If, however, the hole is four handbreadths by four handbreadths, he is liable, as stated in Halachah 10. he is not liable.
הלכה יט
זָרַק קָנֶה אוֹ רֹמַח מֵרְשׁוּת הַיָּחִיד וְנִתְקַע בִּרְשׁוּת הָרַבִּים כְּשֶׁהוּא עוֹמֵד פָּטוּר. שֶׁהֲרֵי מִקְצָתוֹ בִּמְקוֹם פְּטוֹר. זָרַק כְּלִי מֵרְשׁוּת הַיָּחִיד לִרְשׁוּת הָרַבִּים וְהָיָה אוֹתוֹ כְּלִי גָּדוֹל וְיֵשׁ בּוֹ אַרְבָּעָה עַל אַרְבָּעָה בְּגֹבַהּ עֲשָׂרָה פָּטוּר. מִפְּנֵי שֶׁכְּלִי זֶה רְשׁוּת הַיָּחִיד גְּמוּרָה וְנִמְצָא כְּמוֹצִיא מֵרְשׁוּת הַיָּחִיד לִרְשׁוּת הַיָּחִיד:
כסף משנה
19.
If a person throws a reed or a spear from a private domain [to a public domain] and [the spear] becomes implanted in the public domain in an upright position, he is not liable, for a portion [of the article] is in a makom patur.85Since the reed is more than ten handbreadths high, its upper end is in a makom patur. One is liable only when the entire article comes to rest in the public domain (Rashi, Shabbat 8a). Compare to Chapter 13, Halachah 11.If a person throws a large utensil which is four [handbreadths] by four [handbreadths in area] and ten handbreadths high, he is not liable. The utensil itself constitutes a private domain, and thus the person is considered as one who transfers an article from one private domain to another.86The Rambam's interpretation of this law is paralleled by Tosafot, Shabbat 8a. Note Rashi, who offers a different i nterpretation.
הלכה כ
בּוֹר תִּשְׁעָה בִּרְשׁוּת הָרַבִּים וְעָקַר חֻלְיָא מִקַּרְקָעִיתוֹ וְהִשְׁלִימוֹ לַעֲשָׂרָה. אַף עַל פִּי שֶׁעֲקִירַת הַחֵפֶץ וַעֲשִׂיַּת הַמְּחִצָּה בָּאִין כְּאַחַת פָּטוּר. מִפְּנֵי שֶׁלֹּא הָיְתָה הַמְּחִצָּה עֲשָׂרָה בַּתְּחִלָּה. הָיָה הַבּוֹר עֲשָׂרָה וְהִשְׁלִיךְ בּוֹ חֻלְיָה וּמִעֲטוֹ מֵעֲשָׂרָה פָּטוּר. שֶׁהֲרֵי הַנָּחַת הַחֵפֶץ וְסִלּוּק הַמְּחִצָּה בָּאִין כְּאַחַת:
כסף משנה
20.
When a person uproots a clod of earth from the bottom of a pit that is nine handbreadths deep,87As mentioned in Halachah 1, if the pit is ten handbreadths deep, it is considered to be a private domain. If its depth is even slightly less, it is considered to be a carmelit, and one is not liable for throwing an article into it from the public domain. and [by doing so] makes it ten handbreadths deep, he is not liable. [This decision is rendered] despite the fact that the removal of the article and the creation of the domain occur simultaneously, because the domain was not originally ten [handbreadths] deep.88Shabbat 99b leaves this and the law mentioned in the latter clause of this halachah as unresolved questions. Therefore, the Rambam rules that the person is not liable.A pit whose depth of 10 handbreadths is reduced by the addition of earth
[Conversely,] if a person throws a clod of earth into a pit that is ten handbreadths deep, and [by doing so] causes it to become less than ten handbreadths [deep], he is not liable. [This decision is rendered] because the placement of the article and the nullification of the domain occur simultaneously.
הלכה כא
הַזּוֹרֵק דַּף וְנָח עַל גַּבֵּי יְתֵדוֹת בִּרְשׁוּת הָרַבִּים וְנַעֲשָׂה רְשׁוּת הַיָּחִיד אֲפִלּוּ הָיָה כְּלִי עַל גַּבֵּי הַדַּף פָּטוּר. שֶׁהֲרֵי עֲשִׂיַּת הַמְּחִצָּה עִם נוּחַת הַכְּלִי בָּאִין כְּאַחַת:
כסף משנה
21.
A person is not liable if he throws a board that lands on spikes [implanted] in the public domain [even when] by doing so, he creates a private domain.89Such a situation could arise if the spikes were more than ten handbreadths high, and the board - four handbreadths by four handbreadths. In such a situation, the criteria for a private domain would be met.The Rashba questions this, noting that "goats could enter" the space beneath the spikes, and thus, the principle gud acheit mechitzata could not apply, as explained in the notes on Halachah 18. He interprets this as referring to a situation where spikes were implanted in a wall at the side of a private domain.
Note also the interpretation of Tosafot, Shabbat 99b who interpret this as referring to a situation in which the spikes on two sides of the board are close enough to constitute an actual wall. Therefore, the roof can be considered as creating the third and fourth sides. According to the Rambam, as is explained in Chapter 17, Halachot 3 and 35, three walls of spikes would be required. [This applies] although a utensil was on the board. [The rationale for this decision is] that the creation of the domain occurs at the same time that the utensil comes to rest.90Although the article comes to rest slightly after the board does, the Talmud does not resolve the question whether this brief amount of time is of consequence or not. Therefore, the Rambam does not hold the person liable.
A Board Being Placed on Spikes in the Public Domain
הלכה כב
בּוֹר שֶׁהוּא עָמֹק עֲשָׂרָה וְרָחָב שְׁמוֹנָה בִּרְשׁוּת הָרַבִּים וְזָרַק מַחְצֶלֶת מֵרְשׁוּת הָרַבִּים וְחִלְּקָה הַבּוֹר בְּרָחְבּוֹ לִשְׁנַיִם פָּטוּר. שֶׁהֲרֵי עִם הַנָּחַת הַכְּלִי בָּטְלוּ הַמְּחִצּוֹת וְנַעֲשָׂה כָּל מָקוֹם מֵהֶן פָּחוֹת מֵאַרְבָּעָה עַל אַרְבָּעָה:
כסף משנה
22.
When a person throws a mat from91Our translation is based on manuscripts and early printings of the Mishneh Torah. The standard published text reads "in a public domain," which is enigmatic. a public domain into a pit that is ten handbreadths deep and [precisely] eight handbreadths wide, [and the mat falls in an upright position in the exact center of the pit,] dividing the width of the pit in half, he is not liable.92Shabbat 100a mentions a difference of opinion regarding this matter. The Rambam follows the opinion of Abbaye, for he is the latest of the Sages to venture an opinion on this question.The Rashba notes that this law applies only when one intends to leave the mat in this place permanently. If one intends to remove it, it is not considered to have divided the pit. [The rationale is] that when the article lands, it nullifies the domain, causing each of the halves to be less than four [handbreadths] by four [handbreadths].93Since the mat has a minimal thickness of its own, each side of the pit is slightly less than four handbreadths.
הלכה כג
בּוֹר בִּרְשׁוּת הָרַבִּים עָמֹק עֲשָׂרָה וְרָחָב אַרְבָּעָה מָלֵא מַיִם וְזָרַק לְתוֹכוֹ חֵפֶץ וְנָח עַל גַּבֵּי הַמַּיִם חַיָּב. שֶׁאֵין הַמַּיִם מְבַטְּלִין הַמְּחִצּוֹת. הָיָה מָלֵא פֵּרוֹת וְזָרַק לְתוֹכוֹ פָּטוּר. שֶׁהֲרֵי מִעֲטוּ הַפֵּרוֹת אֶת שִׁעוּרוֹ:
כסף משנה
23.
When a person throws an article into a pit in the public domain that is ten handbreadths deep and four [handbreadths by four handbreadths] in area and is filled with water, he is liable although the article lands on the water, for the water does not nullify the domain.94Rav Kapach explains that this law does not represent a contradiction to Chapter 13, Halachah 4, for in a private domain it is not necessary that an object come to rest on a surface that is four handbreadths by four handbreadths. Nevertheless, with regard to the removal of an object, it is necessary that it be at rest on a surface of four handbreadths by four handbreadths for the person to be liable.[In contrast,] were [such a pit] to be filled with produce, a person who throws [an article] into it would not be liable, for the produce reduces the size of the pit.95The Maggid Mishneh differentiates between water and a pit as follows: The water is clear and the contours of the pit can be seen. Therefore, the domain is not considered to be nullified. In contrast, the produce covers the pit and prevents its contours from being seen. Therefore, it is considered to have reduced its size.
The Maggid Mishneh also mentions opinions of the geonim who maintain that the produce in question must be of a type that the person intends to continue storing within the pit. A similar thrust is apparent in the Rashba's interpretation of this law as referring to produce that is tevel and may not be moved on the Sabbath.
Note the Or Sameach, who cites Hilchot Eruvin 3:13, which states that an article that can be taken on the Sabbath does not reduce the size of a domain. Accordingly, he suggests an original explanation, stating that this law refers to a pit filled with produce that the public could walk on - e.g., nuts or grain. Since people at large will not hesitate to walk over such a surface, the pit is no longer considered to be a private domain.
הלכה כד
רְקַק מַיִם שֶׁהוּא עוֹבֵר בִּרְשׁוּת הָרַבִּים וְרַבִּים מְהַלְּכִין בּוֹ. אִם אֵין בְּעָמְקוֹ עֲשָׂרָה טְפָחִים הֲרֵי הוּא כִּרְשׁוּת הָרַבִּים. בֵּין שֶׁהָיָה רָחָב אֲפִלּוּ אַרְבַּע אַמּוֹת בֵּין שֶׁלֹּא הָיָה בְּרָחְבּוֹ אַרְבָּעָה טְפָחִים. שֶׁהֲרֵי רֹב הָעָם מְדַלְּגִין עָלָיו וְאֵין מְהַלְּכִין בְּתוֹכוֹ. הוֹאִיל וְאֵין בְּעָמְקוֹ עֲשָׂרָה הֲרֵי הוּא רְשׁוּת הָרַבִּים. וְאִם יֵשׁ בְּעָמְקוֹ עֲשָׂרָה אוֹ יֶתֶר הֲרֵי הוּא כְּכַרְמְלִית כִּשְׁאָר הַיַּמִים. וְהוּא שֶׁיֵּשׁ בְּרָחְבּוֹ אַרְבָּעָה טְפָחִים אוֹ יֶתֶר עַל כֵּן. שֶׁאֵין כַּרְמְלִית פְּחוּתָה מֵאַרְבָּעָה:
כסף משנה
24.
[The following rules apply to] an irrigation ditch that contains water that passes through the public domain, and which people [usually] walk through: If it is not ten handbreadths deep, it is considered to be a public domain regardless of whether it is four cubits [or more] wide or less than four handbreadths wide. [It is placed in this category, despite the fact that, in the latter instance,] most people would jump over it, rather than walk through it.96Although a place is not considered a public domain unless people actually walk through it, since there are some individuals who walk through this ditch - although they are in the minority - it is still placed in this category. [Regardless of its width,] since it is not ten handbreadths deep, it is considered to be [part] of the public domain.97Although a pit between three and ten handbreadths deep is usually regarded as a carmelit if it is four handbreadths wide, or a makom patur if it is narrower, an exception is made in this instance. Since the traffic of the public domain continues to pass, albeit with difficulty, through this ditch, it is not considered to be a separate domain (Shabbat 100b).If it is ten handbreadths or more deep,98Since it has walls steep enough to be considered a domain of its own, it may not be considered part of the public domain. it is considered a carmelit like other bodies of water.99The Or Sameach questions why this irrigation ditch is not considered to be a private domain; he explains that since water is flowing through it rapidly, it may not be used as a private domain. A similar conception is also reflected in the Shulchan Aruch HaRav 345:15,19 which states that according to the Torah, this would be considered as a private domain. Nevertheless, since it resembles a sea, the Rabbis applied the laws of a carmelit to it.
See also the Pri Megadim 345:11 which deals with this difficulty, based on a principle explained by the Maggid Mishneh cited above. He explains that this halachah refers to a ditch with dirty water. Hence, its contours cannot be seen and therefore it is not considered as a private domain. [The above applies] when the ditch is at least four handbreadths wide, for there is no concept of a carmelit that is less than four handbreadths [wide].100Hence, the area would be considered to be a makom patur.