The Mishnah (10:6) taught that one may not stand in the reshut ha’rabbim (public domain) and drink water from the reshut ha’yachid (private domain). The Gemara (99a) notes that the ruling of this Mishnah appears to contradict a previous one.
The earlier Mishnah taught that one is allowed to stand in the reshut ha’rabbim and move items in the reshut ha’yachid. The Gemara there explained that that the Mishnah was the opinion of the Rabbanan. R’ Meir however forbade standing in one domain and moving object in another, out of concern one might bring that item into the domain in which he is standing. Returning to our Mishnah, one is not allowed to move their head into another domain and drink there, out of a concern that they might bring the water into the domain where the rest of their body is located (Rashi). Such a concern appears to be the opinion of R’ Meir and not the opinion of Rabbanan to which the previous Mishnah was attributed.
The Gemara explains that our Mishnah refers to “objects that he needs”. Rashi explains, that since the person drinking needs the water, in this case the Rabbanan would share the concern of R’ Meir. The Rambam explains that in this case, the person needs the utensils used for drinking. Consequently there is a concern, even for the Rabbanan that he might transfer them into his domain.
There is however a more basic question. Why is standing in one domain and drinking from another not prohibited because by drinking, the water will be transferred from one domain to another? To strengthen the question, we have learnt that it is prohibited to spit from on domain to another, so how is this case different? Rashi (Eiruvin 99a) answers that in the case of spitting, the akira(picking up) and hanacha (placing down) are performed in two separate domains. In the case of our Mishnah, since the person’s mouth is in the same domain as the water, akira and hanacha are performed in the same location.
The Gemara continues with a debate between Rava and Abaye. The question is what would the law be if one of the domains was a karmalit. Abaye maintains that the law would be no different to the case in our Mishnah. Rava however disagrees. As already stated, the prohibition in our Mishnah stems from a rabbinic gezeira. The prohibition against transferring from a private or public domain to a karmalit is also a rabbinic gezeira out of a concern that people might then transfer from the private domain to the public one. In general a gezeira is not instituted to protect another gezeira. Therefore, according to Rava, it should be permitted to stand in a reshut ha’yachid and drink water from a karmalit. How do we understand Abaye’s position?
Tosfot (Eiruvin 98a) explains that with respect to water specifically, there is a greater concern that one might bring it towards them, consequently Abaye felt there was a need for the gezeira even in the case of a karmalit. The Rashba (Shabbat 11b) explains that Abaye understood that both gezeirot were one in the same; without one, the other would not stand. Tosfot (Shabbat 11b) however explain that when it comes to the prohibition of carrying, Abaye has no hesitation about establishing a gezeira for an existing one. Carrying is different, as the Tosfot explain (Shabbat 2a), because it is a melacha geruah; it is not obvious to all that it is a melacha for what difference should there be between transferring from a reshut ha’yachid to a reshut ha’rabbim and transferring from one reshut ha’yachid to another. Consequently, Abaye felt there was a greater reason to be machmir by hotza’ah.
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