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Eruvin 31

1) HALACHAH: AN ERUV PLACED IN A GRAVEYARD

OPINIONS: Rebbi Yehudah and the Rabanan argue whether one may put an Eruv on a gravestone. The Gemara concludes that the argument is whether or not one's intention is for the Eruv to remain, intact, on the gravestone throughout Shabbos. Even though it is forbidden to derive personal benefit from a gravestone, Rebbi Yehudah permits placing an Eruv on a gravestone because one is not deriving benefit from it since he does not care that his Eruv should remain there and be protected there from predators. The Rabanan prohibit it because they hold that one normally wants his Eruv to be protected and to remain intact throughout Shabbos, and thus one is using the gravestone to protect it, which is prohibited. What is the Halachah?

(a) The SHULCHAN ARUCH (OC 409:1) cites the majority opinion of the Rabanan that one may not use a gravestone for an Eruv because one is deriving pleasure from the gravestone.

(b) However, the BI'UR HALACHAH cites the MAHARAM, ROSH, TUR, and RASHBA who conclude that in this case the Halachah follows Rebbi Yehudah, because "the Halachah follows the lenient opinion in laws of Eruv, even when it is the opinion of a minority" (Eruvin 46a). Therefore, one may rely on an Eruv which is placed on a grave in extenuating circumstances. However, the Bi'ur Halachah points out that this is true only for a Yisrael. A Kohen may *not* rely on such an Eruv because it is impossible for him to get to the gravestone to eat the food. Even if he goes in a "Shidah, Teivah, or Migdal," we rule that "Ohel Zaruk Lav Shmei Ohel" and it does not serve to protect him from the Tum'ah of the graveyard.

(According to Rashi, if the grave is not in a graveyard but it is an isolated grave, then even a Kohen could reach the food by approaching *near* the grave and grasping the food at a point from which it is protruding from the gravestone, so the Eruv would be valid.)

31b