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Eruvin 32

1) HALACHAH: A "CHAZAKAH" THAT A "SHALIACH" DOES HIS JOB

OPINIONS: There is a principle that a Shaliach does his job -- "Chazakah Shaliach Oseh Shelichuso." Rav Nachman and Rav Sheshes argue whether this principle applies only to laws which are d'Rabanan (the opinion of Rav Nachman), or even to d'Oraisa laws (the opinion of Rav Sheshes). What is the Halachah?

(a) TOSFOS (DH Rav Sheshes) cites RABEINU SHIMSHON of FOLIERRE (Falaise) who rules leniently like Rav Sheshes, based on the BEHAG's rule that "the Halachah is in accordance with Rav Nachman with regard to monetary matters and like Rav Sheshes with regard to matters of prohibitions." This is also the ruling of the RI as well as the conclusion of the ROSH.

(b) RABEINU TAM (cited in Tosfos), however, rules like Rav Nachman, because a number of Sugyos throughout Shas seem to favor the more stringent opinion of Rav Nachman, that only with regard to Rabbinic laws may this Chazakah be relied upon. This is also the opinion of the RIF and RAMBAM. (MISHNAH L'MELECH, Hilchos Bechoros 4:1, who concludes that one should be stringent and follow this opinion).

32b

QUESTION: The Mishnah says that if one places the food which comprises his Eruv in a tree within ten Tefachim from the ground, the Eruv is valid, since the Eruv and the person are in the same domain (Reshus ha'Rabim) and the Eruv is accessible on Shabbos. The Gemara says that if the tree and the person were both in Reshus ha'Yachid, then even if the Eruv was high up in the tree, it is valid, because the Eruv and the person are both in the same domain (Reshus ha'Yachid).

The Gemara asks on the latter ruling, why is the Eruv valid? One is using the tree ("Mishtamesh b'Ilan") when the Eruv is in the tree, and the Rabanan prohibited using a tree on Shabbos!

How is one "using" the tree when his Eruv in placed in the tree? He does not need to *climb* the tree to get the Eruv, since it is only 10 Tefachim off the ground. And *removing* an item from a tree certainly does not constitute using the tree, because there is no use of the tree involved in such an act. Furthermore, we see clearly in the Gemara in Shabbos (153a) that it is permitted to remove items from the back of an animal, even though using an animal is prohibited just as using a tree is prohibited! The fact that the tree is holding something which one placed there before Shabbos also cannot be considered using the tree, because we find in the Gemara in Shabbos (45a) that one may place a candle in a tree to remain there during Shabbos. (RITVA, RASHBA)

ANSWER:

(a) The RITVA first cites one explanation which says the very fact that one is getting a Halachic use out of the tree -- since one's Eruv in the tree makes the tree his primary place of Shabbos dwelling, thus altering his Techum from that point -- makes it as if he is being Mishtamesh b'Ilan.

However, the Ritva rejects this answer. Deriving Halachic benefit from the tree is not comparable to using the tree, since the Gezeirah against using a tree was made to prevent one from accidentally cutting down a branch. Getting a Halachic use out of a tree poses no concern that one might cut down a branch.

(b) Rather, explains the RITVA, the Rabanan were afraid that one might *lean on the tree* while removing the food.

Based on this Gemara, the REMA (OC 336:1) rules that one may not remove objects from a tree on Shabbos because one might lean on the tree (Mishnah Berurah 336:12, Sha'ar ha'Tzion 336:6-7).

QUESTION: According to Rebbi, the prohibitions of "Shevus," or the Isurei d'Rabanan of Shabbos, do not apply during Bein ha'Shemashos. This is the Halachah as well (SHULCHAN ARUCH OC 307:22, 342:1).

If the Gezeiros d'Rabanan do not apply during Bein ha'Shemashos, then why does the Mishnah in Shabbos (34a) state that it is prohibited during Bein ha'Shemashos to separate Ma'aser and to immerse utensils in a Mikvah if those acts are prohibited on Shabbos only mid'Rabanan? Does Rebbi argue with that Mishnah and permit those acts to be done during Bein ha'Shemashos?

ANSWERS:

(a) The RITVA cites the RA'AVAD who says that Rebbi certainly agrees to the Mishnah in Shabbos. When Rebbi said that the prohibitions of "Shevus" do not apply during Bein ha'Shemashos, he was referring only to the laws of Eruv Techumin. Rebbi is saying that when the Rabanan enacted the law of Eruvei Techumin, they said that the Eruv is valid as long as there is no Isur d'Oraisa preventing one from getting to his Eruv. If there is an Isur d'Rabanan preventing access to the Eruv, the Eruv is nevertheless valid. However, they did not actually *permit* doing an Isur d'Rabanan during Bein ha'Shemashos in order to get to the Eruv. (This is similar to the concept that Rashi explains at the end of the Amud regarding the area of a person's Eruv Techumin being considered like a Reshus ha'Yachid that extends up to the sky, even though it is not really a Reshus ha'Yachid.)

(b) The RAMBAM (Hilchos Shabbos 24:10) writes that it is permitted to transgress an Isur "Shevus" during Bein ha'Shemashos for the sake of a Mitzvah. Since an Eruv is made for a Devar Mitzvah (such as going to learn Torah from a teacher who is farther than 2000 Amos away), it is permitted to do an Isur "Shevus" for that purpose. Rebbi agrees, though, that to take Ma'aser from fruit is prohibited during Bein ha'Shemashos, since it is not being done for the sake of a Mitzvah. (MAGID MISHNAH ibid.)