Question: May one immerse in a private mikvah that was built or is maintained without rabbinic oversight?
Short Answer: No, because of the complexity of the laws of mikvaos, one should only immerse in a mikvah that was built (and is maintained) with the guidance of talmidei chachamim who are experts in the laws of mikvaos.
I. The Lesson of the Rivash
The Shulchan Aruch (Yoreh Dei’ah 201:1) rules that a mikvah must contain 40 sa’ah (i.e., somewhere between 600 and 1,000 liters, see sefer Mikveh Mayim, Vol. 3, p. 50-59).
As discussed in Article #6, mikvah water must consist of “ashborin,” i.e., stationary water, such as rainwater, and not of zochalin water, i.e., flowing water. Even rainwater, however, is pasul for use as a mikvah if it is “mayim sh’uvin,” i.e., drawn water. Thus, tap water, which is from a reservoir but passed through “receptacles” in purification plants and through other devices (i.e., that are keilim) is pasul for use as a mikvah, as it is considered “mayim sh’uvin.” One solution to add tap water to the mikvah is through the halachic concept of “hamshachah,” which requires pouring the tap water on the floor outside of the mikvah, allowing it to flow naturally into the mikvah.
The Rivash (125) was asked about a town that only had a mikvah with less than 40 sa’ah of ashborin water and a river: whether it is preferable (i) to immerse in the river or (ii) to make the mikvah kosher by adding mayim sh’uvin through hamshachah. The Rivash ruled that it is certainly preferable to make the mikvah kosher by adding mayim sh’uvin through hamshachah, as the Gemara (T’murah 12a) only requires a majority of ashborin water, and immersing in the river is problematic for numerous reasons (outside of the scope of this article).
However, the Rivash wonders whether this permissibility of adding a minority of tap water via hamshachah will lead to problems, as people will err and assume that the mikvah is kosher even without hamshachah or without a majority of ashborin water. The Rivash concludes by rejecting this concern, because poskim should not create new “g’zeiros,” and there is no worry that the uneducated will rule improperly here, as the laws of mikvah building/oversight are the purview of talmidei chachamim who are careful and knowledgeable in these halachos.
II. Knowledgeable Talmidei Chachamim
The sefer Mikveh Mayim (Vol. 3, pp. 17-24) cites numerous other poskim who agree with this Rivash and codify this principle of “rov ha’m’tzusim eitzel mikvah, mumchim heim” – that the majority of people involved (i.e., both practically and halachically) are talmidei chachamim with mikvah expertise.
For example, the Tashbeitz rules that we are not concerned that a mikvah was filled improperly (i.e., without hamshachah) because “rov ha’m’tzusim eitzel mikvah, mumchim heim.” Indeed, the Rama (Yoreh Dei’ah 201:4) codifies this Tashbeitz, ruling that we assume a Jew filled the mikvah properly because “rov ha’m’tzusim eitzel mikvah, mumchim heim.”
III. Doubting This Principle
Mikveh Mayim (ibid), however, cites the Satmar Rebbe who doubted whether this principle applies nowadays. The Satmar Rebbe explained that the sefer Simlah Chadashah understood a similar principle by the laws of sh’chitah as based upon the concept that people will not be brazen (i.e., have “chutzpah”) to violate these laws. Nowadays, people have tremendous chutzpah, and it is “well known” that mikvaos are operated by ignoramuses.
Similarly, the Mikveh Mayim cites Rav Yosef Shalom Elyashiv zt”l, who reportedly ruled that this principle is not applicable nowadays. Indeed, the Mikveh Mayim himself acknowledges that there are often many mistakes and pitfalls in building mikvaos. A competent talmid chacham must oversee the project.
IV. The Aruch HaShulchan’s Defense
The Aruch HaShulchan (201:46), recognizing the above arguments that many mikvaos are overseen by administrators/askanim with scant knowledge of hilchos mikvaos, upholds the principle of “rov ha’m’tzusim eitzel mikvah, mumchim heim.” He explains that these administrators are experts in hilchos mikvaos, because they know to bring halachic questions to talmidei chachamim who will rule on the kashrus of the mikvah!
Mikveh Mayim (ibid) cites the sefer Birur Halachah (Rav Avraham Wilhelm zt”l) who challenges this Aruch HaShulchan based on personal experience where the administrator of the mikvah did not deal properly with issues regarding the kashrus of a mikvah. Mikveh Mayim also brings the Minchas Yitzchak who is concerned that even if a mikvah was built correctly and according to halachah, there will be subsequent wear and tear of the mikvah that will present many halachic questions.
V. The Private Mikvah
Based on all the above, the Mikveh Mayim cites many Acharonim who rule that a mikvah must be overseen by talmidei chachamim and be under the guidance of a competent poseik. One should not use a private mikvah that is not checked by such an expert.
Next Week’s Topic: What is the required depth of mikvah waters?