Tuesday, January 23, 2007

The Hat That Almost Got Away

This Shabbos was cold and windy. On my way back from shul, the wind blew off my hat (and both the hat and yarmulka off the man with whom I was walking). My hat flew under a parked car and became lodged far underneath it. I tried reaching it but could not. Then a few men from the same synagogue walked by and I asked a rather tall man to see if his long arms could reach the hat. He wasn't limber enough to do it and someone else in the group suggested that it would be forbidden to retrieve the hat because it would be carrying in public. I argued a bit but he was confident. So I let them walk away (the tall man turned back and offered on behalf of the group to buy me a new hat) but I learned my lesson long ago not to listen to halakhic proclamations from someone I didn't ask. Then a teenager came by and, limber as he is, got on his knees, stuck his arm all the way under the car and retrieved the hat. The question is whether what he did is permissible. There are a few reasons why I think it is.

1. We were within the boundaries of the Va'ad Ha-Rabbonim of Flatbush's controversial eruv. Without getting into the issues, I have a mesorah that the eruv can be used as an additional (senif) reason to be lenient and, for example, did not make a private eruv with my landlord at my previous residence because of this and one other reason.

2. The person retrieving the hat had his legs firmly placed and was doing the equivalent of standing in public and waving an item. That is not carrying. That is standing still and holding something. One could argue that he was dragging rather than carrying, but there is no difference. For example, see Kesuvos 31a-b that dragging (megarer) is the same as carrying. (When I asked a local rabbi about this [after the fact], he cited this as being a reason to be lenient but did not want to go on the record without doing further research.)

3. The carrying/dragging was done in an area of less than 4 amos (6-7 feet). The man who told me that this was forbidden contended that carrying less than 4 amos is rabbinically prohibited and I responded that it is entirely permissible. After the fact, I looked it up and it seems that we are both correct.

The Rashba (Shabbos 8b sv. ela) quotes Rabbenu Yonah as permitting carrying within 4 amos. The Rambam (Mishneh Torah, Hilkhos Shabbos 10:17) seems to permit it also, although the Ra'avad disagrees. The Chavos Yair (no. 15) writes that the Torah specifically permits carrying within 4 amos (according to Eruvin 51a) so, therefore, the sages lacked the ability to prohibit it. The Pri Megadim (general introduction to Hilkhos Shabbos) also permits it, as do the Eshel Avraham (349:5), Mishnah Berurah (349:16) and She'arim Metzuyanim Ba-Halakhah (82:1).

However, the Chasam Sofer (Responsa 1:60) prohibits (on a rabbinic level) carrying less than 4 amos, as does the Tiferes Yisrael (Shabbos ch. 1, Bo'az 4).

It seems to me that the majority view is that this is permitted, although there is a whole literature on the issue of chatzi shi'ur which might prove this judgment premature (cf. R. Daniel Z. Feldman, Binah Ba-Sefarim, vol. 1 ch. 9 and in particular p. 127 n. 88). Does anyone have a sufficient handle on this issue to give an opinion on what the majority view is?

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