The Mishnah (6:9) discusses a case involving two chatzeirot (courtyards). The “outer” chatzer opens onto the public domain, while the only access for the “inner” chatzer is via the outer chatzer. We find three opinions regarding the impact that derisat regel (right of passage) has on the outer chatzer.
According to the Tana Kama, if the residents of the inner chatzer did not make an eiruv chatzerot, then even if the residents of the outer chatzer did make an eiruv chatzerot they would not be able to carry (items from their houses) into the chatzer. If however the residents of the inner chatzer did, then they would not impact the residents of the outer chatzer. In other words, derisat regel only presents a problem when the residents of the inner chatzer are not allowed to carry in their own chatzer.
R’ Akiva however argues that derisat regel always impacts on the outer chatzer while the Chachamim take the opposite opinion, that derisat regel never presents a problem. We shall try to understand the opinion of the Tana Kama.
The Gemara (Eiruvin 59b) explains that the reason why derisat regel does not present a problem when those in the outer chatzer can carry there, is because “they close their door [between the chatzeirot] and use their own area.” Rashi explains that since they are permitted in their own area, we force them to close their door so that on that day they do not have derisat regel. In other words, it appears that according to the Tana Kama, derisat regel does indeed present a problem. However, in the case where they are permitted in their own area, we force them to close the door, thereby removing derisat regel.
The Tosfot however find this explanation difficult. If indeed we were to take the Gemara literally, then the residents of the inner chatzer would have no access to the public domain. How could we force them into that position? The Tosfot therefore explains that “closing the door” should be understood to mean they the residents of the inner chatzer forgo their right of using the outer chatzer. In other words, while they can still walk through the outer chatzer, that is all that they may do. The Rosh (7:7) explains in a similar manner, that it is the use of the outer chatzer that is the issue. He adds that physical closing of the door may only be required as long as one is do not need to walk through it. According to this understanding, the issue with derisat regel is not simply that access, but rather the usage rights that the residents of the inner chatzer have in the outer chatzer (see Mishnah Berura 381:13).
The Rashba however defends Rashi explaining that we simply view the door between the chatzeirot as being closed and consider it is if the outer chatzer have separated themselves from the inner chatzer. The Ramban explains that fact the residents of the inner chatzer did not include those in the outer chatzer in their eiruv chatzeirut demonstrates that they separated themselves from the outer chatzer. We therefore view it as if they closed the door.
The Chazon Ish (82:10) explains that the issue with derisat regel is because we view the two chatzeirot as one big chatzer requiring all occupants to combine in an eiruv. Once the residents in the inner chatzer make an eiruv chatzeirot they are considered independent since the residents of the outer chatzer have no right in the inner one. Once they are considered distinct, the simple passage of those in the inner chatzer do not presents an issue since it is no longer considered a tashmish dira (usage of occupancy) but only passage.
Receive our publication with an in depth article and revision questions.
Listen to the Mishnah Shiurim by Yisrael Bankier