Sources and reasoning:
A karpef larger than beit se’atayim that was not enclosed for dwelling—carrying is prohibited there
Maran the Shulchan Aruch rules in Orach Chaim, siman 358, סעיף 1, as follows:
Any enclosure that was not made for dwelling, such as gardens, orchards, and structures made solely to guard what is within them, the Sages prohibited carrying within it more than four amot if it is larger than beit se’atayim.
The reason for the prohibition is a Rabbinic decree: they decreed that carrying within this area is forbidden, even though it is a reshut hayachid by Torah law. Since it is a large area that was not enclosed for dwelling, resembling somewhat a reshut harabim or a karmelit, the Sages decreed that one may not carry there, just as carrying is prohibited in a reshut harabim or karmelit. See Mishnah Berurah, se’if katan 5.
Is the Gazelle Valley considered a karpef that was not enclosed for dwelling?
However, one must know that in order to define a fenced area as a karpef that was not enclosed for dwelling, the enclosure must have been made without regard to human needs or use. As Maran the Shulchan Aruch carefully states in Orach Chaim, siman 358, סעיף 1, an enclosure not for dwelling refers specifically to such cases as gardens, orchards, and structures “made solely to guard what is within them.”
However, the Gazelle Valley is not a place intended merely for safeguarding the gazelles. If it were, it would have been established entirely outside an inhabited area, for that would also be better for the gazelles, allowing them to live in nature itself. Rather, it is a place established specifically within the city at great expense, to serve people as a place for recreation, relaxation, and enjoyment of the sight of gazelles roaming in the valley. For this purpose, the valley was surrounded by a fence to preserve the gazelles so that they would remain there and people could enjoy them. Since this is so, the entire enclosure was made for human use and should be regarded as enclosed for dwelling.
Although those responsible for the site have placed a rope to mark an area that people are not permitted to enter, the reason is so as not to restrict the movement of the gazelles, enabling people to continue enjoying the sight of gazelles living naturally rather than as in a cage in a zoo. However, the very presence of the gazelles does not prevent people from entering the site.
Furthermore, even regarding a place designated for animal habitation, the Rishonim disagree whether it is considered enclosed for dwelling. The Gemara in Eruvin 22a states: Rabbi Shimon ben Elazar said as a general rule: Any open area whose use is for dwelling, such as a dir and sahar, a muktzeh, or a courtyard—even one of five kor or ten kor—is permitted. It is evident that a dir is a place enclosed for dwelling.
However, the Rishonim disagree regarding why a dir and sahar are considered enclosed for dwelling. Rashi’s view appears to be that this is because they are intended for people to enter and exit in order to milk or shear the animals and the like, as the Ritva explained his view. However, the plain meaning of the Gemara indicates that an enclosure for animals is an enclosure fit for dwelling in all circumstances. So too wrote the Rashba and Ran in their novellae, even according to Rashi’s view concerning pessin, which are considered enclosed for dwelling because the animals remain there.
Similarly, in Shut Noda BiYehudah, second edition, Orach Chaim, siman 47, he cites the Gaon, author of Or Chadash, who maintains that an enclosure for animal habitation is considered an enclosure for dwelling, and therefore wished to permit carrying in a zoo. Although the Noda BiYehudah himself disagreed with him regarding carrying in a zoo, this was for another reason that he wrote there: one must distinguish between animals accustomed to being with people and harmful wild animals, as a person does not live with a snake, bear, leopard, lion, and the like. This does not apply to our case. The Biur Halachah likewise appears inclined to be lenient in accordance with the Or Chadash, although he wrote that the matter requires further examination in practice. Therefore, these views of the poskim may be combined in the present case.
Although this valley contains an extensive area of wild vegetation larger than beit se’atayim, first, this vegetation too is intended for human use, so that people may enjoy the beauty of nature and find there a place for recreation and relaxation. In addition, see Shut Imrei Yosher, vol. 1, siman 170, who writes that grass does not nullify dwelling status, since Rashi’s words in Eruvin 23a, s.v. nizra rovo bezera’im bitel dirato, indicate that only when one intentionally plants does he nullify the dwelling status, but not when the grass grows on its own.
Although the Gazelle Valley also contains a large lake, with regard to this too it may be said that it is for human use, as people enjoy and are inspired by viewing lakes in nature. In addition, the Shulchan Aruch already rules in siman 358, סעיף 11, that bodies of water do not nullify dwelling status unless they are ten tefachim deep; and there must be a complete beit se’atayim at that depth. It is difficult to believe that the lake contains such a large area at a depth of ten tefachim.
Therefore, since the entire prohibition of a karpef not enclosed for dwelling is only Rabbinic, decreed regarding an area larger than beit se’atayim because it is large and somewhat resembles a reshut harabim or karmelit, all the aforementioned reasons warrant leniency according to the basic halachah. One who wishes to be stringent may do so personally.
This response was translated automatically from Hebrew and has not yet been reviewed by a person. Therefore, it may contain inaccuracies and should not be considered a definitive reference.
This response was translated automatically from Hebrew and has not yet been reviewed by a person. It may therefore contain inaccuracies and should not be considered a definitive reference.
