The Definition of a Private Domain

The Definition of a Private Domain

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In this article we will define what a reshut ha-yachid, a private domain, is. This concept is a basic one for anyone studying the laws of carrying on Shabbat. This article is intended to give the learner all the tools needed to define what constitutes a reshut ha-yachid. In separate but related articles we will define what a reshut ha-rabim, a public domain, is, what a karmelit is, and what a makom patur, an exempt place, is.

What is a reshut ha-yachid?

A reshut ha-yachid and a reshut ha-rabim with regard to Shabbat do not depend on whether the place belongs to a private person — an individual — or whether it is a public place, belonging to the many. The term is a borrowed one, and one must become accustomed to this, because on Shabbat there can be a reshut ha-yachid that belongs to the entire public, while on the other hand a domain in private ownership can be a reshut ha-rabim. Nevertheless, there are halachic differences concerning to whom the place belongs, and we will address them in the following articles.

A reshut ha-yachid includes two definitions: a. It is surrounded by four halachic partitions 10 tefachim high [0.8–0.96 meters]. b. The area is large enough to be usable, and it has 4 tefachim by 4 tefachim [approximately 40 cm by 40 cm, and some say 32 cm by 32 cm].

A halachic partition includes a fence, or a pit in the ground whose walls constitute a partition, or a mound — a wide pillar or mass of earth — whose sides are 10 tefachim high. (Shulchan Aruch, Orach Chaim, siman 345, se’if 2; and Mishnah Berurah, se’if katan 6, which disagrees with the Rema there).

A reshut ha-yachid surrounded by partitions, but whose area is larger than beit se’atayim — 70.66 amot by 70.66 amot: if the partitions were made for the purpose of dwelling [see its definition in a separate article], it is a complete reshut ha-yachid. However, if the partitions were not made for dwelling, then according to Torah law it is a reshut ha-yachid, but the Sages determined that the place is a karpef and not a reshut ha-yachid, and its law is like that of a karmelit.

A Steep Slope

A sloping mountainside, where because of the incline a height of 10 tefachim is accumulated over a distance of 4 amot, is considered a partition. Therefore, when such a slope surrounds a certain place, that place is considered a reshut ha-yachid. (Mishnah Berurah, siman 345, se’if katan 5).

Many cities situated on a mountainside, such as various neighborhoods in Jerusalem, Tzfat, Arad, and others, make extensive use of the fact that a significant part of the place is on a mountainside with a steep incline, where over a distance of 4 amot there is a height of more than 10 tefachim. [According to the Chazon Ish, a height of 9.6 meters over a distance of 2.4 meters; according to HaGaon Rabbi Chaim Naeh, a height of 0.8 meters over a distance of 2 meters.] Therefore, the city or neighborhood is largely surrounded by natural halachic partitions, and it is easy to repair what remains and turn it into a reshut ha-yachid. In such places, it is relatively easy to make a high-standard eruv.

In a case where there is a steep slope and at the top of the slope there are not 4 tefachim, the place is considered a makom patur.

The Roof of a House

A house [not surrounded by a courtyard with partitions] that is a reshut ha-yachid: if the roof is aligned with the walls of the structure, then even though there are no partitions around the roof, the roof too is a reshut ha-yachid.

However, if the roof extends beyond the walls of the house, and there are no partitions 10 tefachim high on the roof, the opinion of the Shulchan Aruch (Orach Chaim, siman 345, se’if 16) is that the roof is a karmelit, and it is forbidden to carry from the house or another reshut ha-yachid to the roof, and likewise it is forbidden to carry on the roof for a distance of 4 amot. And although above 10 tefachim from the ground there is no karmelit, the 10 tefachim are measured from the floor of the roof. However, the Mishnah Berurah (se’if katan 66) writes that according to the Eliyah Rabbah and the Gra, the 10 tefachim are measured from ground level and not from the floor of the roof, and therefore in an ordinary house this law is not applicable. The Mishnah Berurah (siman 353, se’if katan 8) also rules this way plainly as the halachah.

In a case where the roof protrudes only very slightly beyond the walls of the house, and the edge of the roof is less than 4 tefachim from the walls of the house, the later authorities disagree as to whether the roof is considered a karmelit. However, in this case the Mishnah Berurah (Biur Halachah, siman 345, se’if 16, s.v. “gag”) wrote that one may certainly rely on the opinion of the Eliyah Rabbah and the Gra to be lenient.

If there is a window 4 X 4 tefachim wide that opens onto the roof, according to all opinions the roof is considered a reshut ha-yachid, because it is regarded as the “holes” of a reshut ha-yachid. (Shulchan Aruch, siman 345, se’if 16; Mishnah Berurah, se’if katan 67; Biur Halachah, s.v. “Ve’im”).

A Shelf Attached to the Building

A shelf attached to the building that has a width of 4 X 4 tefachim, for example the external part of an air conditioner attached to the wall of the building: if there is no window 4 X 4 tefachim wide from the house to the shelf, the shelf is considered a karmelit, and therefore it is forbidden to transfer from it to a reshut ha-yachid or vice versa. (Shulchan Aruch, siman 345, se’if 16; Mishnah Berurah, se’if katan 68; Biur Halachah, s.v. “Ve’im”). We will devote a special article to explaining its laws.

Similarly, in a case where there is a balcony suspended from the building, but there is not yet an opening from the house to the balcony and there are no partitions around the balcony, its law is like that of a karmelit, and it is forbidden to carry in it 4 amot, and likewise to carry from it to a reshut ha-yachid. (Shulchan Aruch, siman 345, se’if 16; Mishnah Berurah, se’if katan 68).

The opinion of the Shulchan Aruch (Orach Chaim, siman 345, se’if 16) is that although above 10 tefachim from the ground there is no karmelit, the 10 tefachim are measured from the floor of the shelf or balcony. However, the Mishnah Berurah (se’if katan 66) writes that according to the Eliyah Rabbah and the Gra, the 10 tefachim are measured from ground level and not from the floor of the shelf or balcony, and therefore this law applies only in a case where the shelf or balcony is close to the ground, up to a height of 10 tefachim.

What is the Maximum Size of a reshut ha-yachid?

The Torah definition of a reshut ha-yachid is any place surrounded by partitions, and the question arises whether there is any limitation to this. For example, a giant island the size of a continent, entirely surrounded by the sea, where the seashore is deep in such a way that at a distance of 4 amot there is already a depth of 10 tefachim, or a huge country surrounded by cliffs — does it too become a reshut ha-yachid? The answer is divided into two parts: according to Torah law and according to the words of the Sages.

Several approaches were stated by the Rishonim regarding what is a reshut ha-yachid according to Torah law:

1. The approach of Tosafot is that by Torah law, any place surrounded by partitions, even if there are vast expanses inside it, whether they were made by human beings or are natural, is considered a reshut ha-yachid, provided that no public thoroughfare passes through it, because a public thoroughfare nullifies the partitions.  (Biur Halachah, siman 346, se’if 3, s.v. “karpef”).
2. The approach of the Ramban according to the Ritva’s understanding is that by Torah law, any place surrounded by partitions made by human beings, even if it contains vast expanses, is a reshut ha-yachid. However, if it is surrounded by natural partitions, such as a cliff, crater, large riverbank, or seashore, as long as a person standing in the center of the domain can see all the partitions of the domain, it is considered a reshut ha-yachid; but if he cannot see the entire domain, it is not considered a reshut ha-yachid. According to this approach, there is no difference whether the public passes through there or not.  (Biur Halachah, siman 346, se’if 3, s.v. “karpef”).
3. The approach of the Ramban and additional Rishonim according to the understanding of the Biur Halachah is that by Torah law, any place surrounded by partitions, even if there are vast expanses inside it, if they were made by human beings, is considered a reshut ha-yachid, provided that no public thoroughfare passes through it, because a public thoroughfare nullifies the partitions. If they are natural, a person standing in the center must be able to see the partitions. (Biur Halachah, siman 346, se’if 3, s.v. “karpef”).
4. The approach of the Ramban in his second answer according to the understanding of the Biur Halachah is that if the partitions prevent the public from passing through, they are partitions in any case; however, if they do not prevent passage, they must be visible to one standing in the center. (Biur Halachah, siman 346, se’if 3, s.v. “karpef”).

All this, however, is according to Torah law. According to the words of the Sages, there is an additional condition: if the partitions enclose an area smaller than beit se’atayim — 70.66 amot by 70.66 amot — in any case it is a reshut ha-yachid. But if the area is larger than beit se’atayim, it requires  “partitions that were made for dwelling,” meaning that the partitions were made for the purpose of dwelling among them. (Shulchan Aruch, Orach Chaim, siman 346, se’if 3). For the definition of “enclosed for dwelling,” see a separate article.

Shulchan Aruch (Orach Chaim, siman 345).