(2016/5777)
Introduction - The Dispute
Whether or not to have a Lechi on every utility pole is undoubtedly the most important issue a community must grapple with in constructing its Eruv. Rav Yosef Gavriel Bechhoffer and Rav Moshe Heinemann advise many communities on Eruv construction and require a Lechi to be installed on every pole on which a utility wire does not run above the pole. On the other hand, both Rav Hershel Schachter (as heard by myself and Rav Michael Taubes) and Rav Mordechai Willig (personal communication) do not believe that Halachah makes this demand.
This dispute has enormous practical ramifications. Communities that abide by the stricter opinion need to install hundreds of additional Lechis compared to those communities which do not adopt this practice. At an average cost of seventy-five dollars per each Lechi installed by a professional, this strict ruling can add up to fifty thousand dollars in installation costs for an Eruv of an average size (not to mention much greater long-term maintenance costs in terms of inspection and repairs).
This issue has not been resolved – some communities adopt a lenient practice and others follow the stricter approach. In general, communities with a sizable Chareidi presence will follow the stricter approach and communities whose rabbis affiliate with Yeshiva University adopt the approach of Rav Schachter and Rav Willig, the two leading Halachic lights of the Modern Orthodox community.
Background Information - Tzurat HaPetach
I will share perspectives on both opinions with our readers, based on my nearly thirty years of experience in advising dozens of communities throughout North America how to construct, expand and maintain their Eruvin. We shall focus on the construction of a Tzurat HaPetach (symbolic doorframes), which most often constitutes the bulk of a community Eruv.
The Gemara (Eruvin 11b) states that a Tzurat HaPetach consists of two vertical poles (colloquially known as Lechis) with a horizontal pole directly on top of each pole (“Kaneh MiKan VeKaneh MiKan VeKaneh Al Gabeihen”). The rationale behind this type of Mechitzah (Halachic wall), as explained by Rav Hershel Schachter (Journal of Halacha and Contemporary Society, volume 5 page 9), is as follows:
Since a house is most certainly a Reshut hayachid (private domain), even with its door(s) wide open, and even when it has several such doors, why shouldn't an enclosure surrounded totally by doorways (even when the doors are missing and only the doorframes remain) be considered a Reshut hayachid as well? All that is needed for such a doorframe mechitza is "a pole on one side, a pole on the other side, and a pole running across the two from above.” Strictly speaking, there is no limit to the number of such tzurot hapetach which may be employed.
The horizontal wire must run above the Lechis. If it runs to the side (Tzurat HaPetach Min HaTzad), it is invalid due to its failure to resemble an actual doorframe. Sometimes there will be a series of utility poles over which a wire runs above each and every one of these poles. Such poles are ideal and all agree that a separate Lechi need not be attached to the pole. Most often, though, a wire does not run above a series of poles. In such a situation, a Lechi needs to be installed beneath one of the wires that runs along the side of the utility pole.
A Lechi on Every Utility Pole?
Rav Bechhoffer (The Contemporary Eruv, third edition pages 132-133) frames the issue as follows:
There are rabbis involved in the construction and maintenance of metropolitan Eruvin that are not meticulous in ensuring that every pole in a series have a Lechi attached to it, so long as the first and last pole in that series have been rectified with Lechayayim[1]. Their rationale is that the longer Tzuras HaPesach between the first and last pole is sufficient[2].
Rav Bechhoffer first criticism of this approach is the following:
Its running afoul of the gezeiras haro’im (literally, the decree of the onlookers). This principle stated by the Magen Avraham (362:20) mandates the maintenance not only of the actual validity of an eruv, but also of the appearance of that validity. Accordingly, the Magen Avraham mandates the removal[3] of invalid lechayayim from the eruv, lest onlookers get a mistaken impression [that a tzurat hapetach min hatzad is acceptable).
Rav Bechhoffer does not cite any major recent Halachic authorities to support his application of the Magen Avraham to the contemporary utility pole. It should be noted, though, that two major twentieth century Halachic authorities disagree with Rav Bechhoffer. Rav Moshe Feinstein (as cited by Rav Moshe Heinemann and many other Rabbanim) did not make such a requirement. Rav Moshe’s ruling was applied in practice by Rav Shimon Eider in the 1970’s and early 1980’s for the Eruvin he built following Rav Moshe Feinstein’s specifications. Rav Moshe is quoted as saying that there is no limit as to the distance between the first and last Lechis on the series of wires, as long as the wire is relatively straight.
In Israel, the great Rav Zvi Pesach Frank (Teshuvot Har Zvi Orach Chaim 2:18:12), in a brief responsum addressed to rabbis and inspectors of communal Eruvin, clearly does not subscribe to Rav Bechhoffer’s application of the Magen Avraham. The words of Rav Zvi Pesach are instructive:
Question: The iron (i.e. utility) [horizontal] wire of the Eruv runs along a very large area and along its path, the wire meanders and rests on the sides of the poles. However, this happens only on the middle poles. May we rely on the fact that the wires rests on top of first and last poles in the series?
Response: The Eruv is valid. See the Rambam (Hilchot Shabbat 17:14) who writes ‘A tzurat hapetach that is one hundred amot[4] wide is permitted’. It is self-evident that the Rambam does not impose a specific maximum of one hundred amot. Rather a tzurat hapetach even wider than one hundred amot is acceptable[5]. Accordingly, there is no disqualification in the eruv due to the middle poles since we view them as if they do not exist. Thus the Tzurat HaPetach created by the lechis at the beginning and end of the long stretch of poles is valid and the middle poles do not invalidate the eruv.
Note that Rav Zvi Pesach, similar to Rav Moshe, does not advise constructing a Lechi on the middle poles to satisfy the opinion of the Magen Avraham. The question is why these two great authorities did not advise satisfying the Magen Avbraham, when it is codified by both the Mishnah Berurah (362:65) and Aruch HaShulchan[6] (O.C. 362:31). One may suggest that Rav Moshe and Rav Zvi Pesach believe that the Magen Avraham speaks of a situation where the poles were installed for the purpose of creating a Tzurat HaPetach. In such a situation, the existence of a pole on which the wire rests on its side and remains uncorrected by a Lechi misleads the observer. However, in the contemporary urban and suburban Eruvin which rely upon modifying preexisting utility poles to create a suitable Eruv, the observer is hardly misled. He realizes that the wire runs on its side not due to Halachic design but owing to the utility companies’ design. Thus, Eruvin composed of utility wires need only be valid but need not appear valid[7].
Conclusion
Next week we shall, God willing, conclude with a discussion of a second concern raised by Rav Bechhoffer, considerations regarding how this issue plays out in practice in community Eruvin, and Rav Hershel Schachter’s compromise approach to this issue.
[1] Plural for Lechi.
[2] This approach argues “Dal MeiHacha” (see Sukkah 2a), that we may ignore the middle poles and treat them as Halachically insignificant.
[3] Of course, Rav Bechhoffer does not require the removal of the utility poles, but requires a Lechi to be installed beneath the wire that runs along the side, in order to eliminate concern for a mistaken impression.
[4] An Amah is explained as ranging from 18 to 24 inches.
[5] The Shulchan Aruch (O.C. 362:11), in describing a Tzurat HaPetach, does not mention a maximum distance between Lechis, which seems to support Rav Frank’s approach.
[6] The Aruch HaShulchan explicitly states that the Eruv is not disqualified if the Gezeirat HaRo’im is not addressed.
[7] The fact that the Magen Avraham advises removing the pole indicates that he addresses a situation where Halachic authorities created and control the pole.