A Window Between Two Houses

Eiruvin (7:1) | Yisrael Bankier | 2 years ago

The Mishnah discusses when a wall divides between two chatzeirot (courtyards). The qualification is important for the laws of eiruv chatzeirot. Recall that one is not allowed to carry in a shared space, even if it is technically defined as a private domain, unless the occupants form an "eiruv". A wall between two chatzeirot prevent the residents on both sides from joining in one eiruv. If however there is a doorway in the wall, they can either form an eiruv together or separately.

The Mishnah (7:1) teaches that a window within the wall can be considered a doorway if it is at least four by four tephachim and within ten tephachim from the ground.

The Bartenura explains that any smaller and the window would be too small to pass through. If it was higher than ten tephachim from the ground, then it would be inconvenient to use. The Bartenura however continues that the height restriction is only regarding a wall in a chatzer that is in an open space. If however, the window was in the wall dividing between two houses, even if the windows was higher than ten tephachim, the two houses could join together in an eiruv. This is because it is normal to put benches and tables around the house which would make the window convenient to use.

Previous (2(15)) we discussed the necessity of making an eiruv between two houses. In this issue, we will try to understand this leniency afforded to houses.

The Shoshanim LeDavid finds the Bartenura's explanation difficult, considering that the reason brought in the Gemara is different. The Gemara explains the leniency for houses is because a house is considered filled. He cites Rashi (Shababt 5) that an enclosed space is considered as if it is filled with objects to the roof -- the physical airspace is not considered space. Consequently, the window is not considered as being ten tephachim from the ground.

In defense of the Bartenura we can cite the R' Yehonatan who explains like the Bartenura. Furthermore, he explains that the reason why the Gemara maintains that we view the house as being filled is because there are benches accessible within the house that makes the window convenient to use.

Note that according to the Shoshanim LeDavid the law is based on the space being enclosed. Consequently, if the chatzer was covered it should share the same law as a house. Indeed the Mishnah Berurah also brings this rationale and the Chazon Ish (OC 96:20) explains that that that would imply that if the chatzer had a roof over it, then the window could be higher than ten tephachim. The Chazon Ish however feels that that result is not implied by the Gemara. Instead, he understands that the law is dependent on the area being a dwelling place (as opposed to a barn).

It would seem that according to the Bartenura the law is based on the general availability of benches and chairs in the space. If so, that would be unique to a house and not apply to a covered chatzer. That said, the Bartenura appears to bring both considerations in his comment. He mentions that the house is different because it is covered and that benches are usually accessible.¹

Perhaps we can explain the debate based on a different question posed by the Shoshanim LeDavid. The Bartenura explains that the reason why the window being too high is an issue in the chatzer is because it is not convenient to use. The Shoshanim LeDavid however argues that Rashi explains that the reason is that even if the wall was cut to the height of the window, the wall would be more than ten tephachim heigh and constitute a separation between the two chatzeirot.

One could suggest therefore that the according to Rashi, the issue with the window's placement is because the space beneath the wall on its own constitutes a mechitza. Consequently, for the window in a house to work, it must be that we halahically reduce that space, by viewing that house as being filled. According to the R' Yehonatan, the question is not regarding the space under the wall, but whether the window can be considered a petach -- a doorway. For the window to function as one, it depends on convenience.

¹ The Gaon Yaakov (s.v. Beita) also addresses why the Gemara treats the house as filled. He cites both the understandings above. He adds an additional option that the difference between the chatzer and the house is that that latter is owned by an individual.

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