Shabbos 137 The constructive wound and misaseik (unintentional melacha) revisited

I had the zechus recently to listen to a video-shiur by Rabbeinu haRav Osher Weiss שליט”א, on the subject of דבר שאין מתכוין and פסיק רישיה (forms of unintended melacha we have discussed before in various posts.)

He discussed a question which I have often been bothered by, that seems so obvious, yet doesn’t seem to be dealt with by the Rishonim (early commentaries) at all.

The question centers on what the source for the leniency of דבר שאין מתכוין is- after-all, seeing as it applies not only on shabbos but in other areas of halacha too (see earlier entries,) it can not simply be based on the requirement of מלאכת מחשבת.

He gave an explanation very similar to what I have myself suggested, obviously with better proofs, but started out by saying that whenever we encounter an obvious question that is not dealt with by the Rishonim at all, we should generally assume that the answer was so obvious to them that the question didn’t even begin.

It then becomes our task not simply to answer the question, but to explain why the answer is actually SO obvious.

Of course, before jumping to this approach, one needs to go through the entire shas with all the major Rishonim and be sure that the question was in fact not asked, at a minimum going through all related sugyas.

As I am not Rav Osher Weiss and do not have close to that level of knowledge, this is simply not possible for me, even with the help of the Masores hashas (cross-reference printed in most editions of the  Talmud) and even with the Bar-Ilan search tool.  As such, although I try to check for parallel sugyas and do my homework, I often simply miss something.

Here is an example of this happening to me:

We have established in this chapter that one is permitted to perform all essential actions that form part of the circumcision process on the eighth day from birth, even if it falls on shabbos.

In contrast, if the bris is delayed for whatever reason and not performed on the eighth day, one is not permitted to perform it on shabbos, and waits till the next day.

The Mishna discusses a case where a mohel had 2 different babies to bris, one whose eighth day fell on shabbos, and one whose eighth day fell on the next day.

Somehow, he made an error and circumcised the younger baby when he was only 7 days old on shabbos, and the older one the next day when he was 9 days old.

The Mishna rules that this is an example of desecrating shabbos בשוגג (in error) and he is required to bring a קרבן חטאת (sin-offering.)

However, we have seen earlier in our study of Shabbos (Shabbos 72), that there is a way of performing a melacha unintentionally, known as Misaseik, for which one is exempt.

Although this exemption could possibly apply with other transgressions that do not involve הנאה (pleasure), this exemption is particular applicable on shabbos due to the requirement for מלאכת מחשבת.

We have discussed a substantial debate between the Amoraim Abaya and Rava, as well as Rashi and the Tosfos, regarding under which precise circumstances a melacha is considered  מתעסק and thus exempt from a korban.

To sum up, according to Abaya, the classic example is one who intends to lift up an item that is detached from the ground and lands up cutting (detaching) an item connecting to the ground.

He intended to perform a  permitted action, namely lifting, and landed up mistakenly performing

1.      a different action, namely cutting

2.      on a forbidden object, namely something attached to the ground

This is very far from his original permitted intention, both in terms of the מעשה (action) and the חפצא  (object the action is applied to) and he is thus exempt.

Rava is more lenient and holds that the classic example is one where one’s actual action is only different to one’s intended action in terms of the object it is applied to, not the action itself.

The classic case, according to Rava,  is thus as follows:  One intended to apply an action (namely cutting) to a permitted item (namely something detached from the ground, and landed up applying that SAME intended action, to a different object (something attached to the ground) that it is forbidden to apply that action to.

We also showed that Rashi (Kerisos 19b)  interpreted the case Rava is referring to as one where he knew which item was permitted and which was forbidden, intended to cut the permitted detached item, but his hand slipped and he landed up cutting the forbidden attached item instead.

Seeing as his intended action was not applied to the intended object of his action, it is clear that לא נעשתה מחשבתו (his thoughts were not fulfilled,) and he is thus exempt.

However, if he intended to pick up a certain item thinking it was detached, and later discovered that it was really attached, it is considered as if his intentions were fulfilled, and is not considered מתעסק  but rather שוגג  ( a transgression action performed intentionally but unknowingly,) for which he is liable to bring a sin-offering.

The Tosfos, in contrast, understood that it is precisely this later case that Rava is referring to, pointing out that in a case where his action was not performed on the desired object, he would be exempt even if his intended object was also forbidden!

According to Tosfos’ explanation of מתעסק, the classic case is thus precisely when one intends to apply an action to an object which he believes is permitted, but after doing so, it becomes clear that it was in fact a forbidden object.

Surely the case of our mishna is a precise example of such a case, and should thus be exempt completely, rather than liable to a sin-offering as per the Mishna?

A person intends to perform an action (circumcision) on what he thinks is a permitted “object” (the 8 day old child) and later finds out that it was a forbidden “object” (the 7 day old child.)-

According to Abaya, seeing as he intended to do the action of circumcision, he would be liable.

According to the way Rashi understood Rava’s view,  one could argue that the Mishna is not referring to a case where his hand slipped and circumcised the wrong baby (something rather disturbing and hopefully very unlikely,), but to a case where he thought the baby he was circumcising was the 8 day old when he was really the 7 year old .

Such a case would understandably result in liability.

Yet if we follow the generally accepted view of Rava according to Tosfos, the case of our mishna should be classic מתעסק and result in zero liability (at least as far as shabbos laws are concerned.)

I searched zealously through the various Rishonim on the daf, and although it is always possible that I missed something, I failed to find anyone who asks this seemingly obvious question.

I reached the point of frustration where I wondered whether this was an example of the type of question Rav Osher had referred to, whose answer is SO obvious to the Rishonim  that the question doesn’t even beg asking , but I couldn’t figure out why- what was I missing.

In desperation, I started looked through the Achronim(later commentaries,)something I always prefer to do only once I have come up with my own approach to an issue (a very Maharal style  approach  I have learnt from my Rebbe, Rabbeinu haRav Blachman שליט”א   )

I felt like such a fool when I saw that Rabbi Akiva Eiger, often considered as the king of the Achronim, points that that the Gemara itself asks this question in the main sugya of Misaseik (Kerisos 19b) and answers that this case is different, seeing as circumcision involves the prohibition of   )עושה חבורה  making a wound(, which falls under the melacha of שוחט ( slaughtering or taking a life, the blood spilled being considered a partial taking of life.)

Although a melacha performed with only a destructive purpose (מקלקל, see earlier post) usually does not result in liability, there is a view that there are 2 melachot to which this exemption does not apply, seeing as they are by definition destructive- wounding, and burning.

The Gemara in Kerisos says that seeing as מקלקל is not an exemption for these melachot, NEITHER is מתעסק.

There we go- I forget a Gemara I had learnt- question asked, question answered.

Yet this answer needs some serious explaining- after all, these melachot might not be subject to the exemption of מקלקל, but that is because they are by definition mainly destructive acts.

Yet the other exemptions based on מלאכת מחשבת do apply to them, so why shouldn’t מתעסק?

Furthermore, if we accept that answer of the Gemara in Kerisos as final and authoritative, we will be faced with a סתם משנה  (anonymous Mishna) that supports the view that מתעסק בחבורה חייב  (one is liable for an act of Misaseik that involved wounding,) which has major implications for this melacha as well as the other melacha singled out, namely making a fire.

Even more problematic is the fact that in the main sugya of מקלקל בחבורה  (Bava Kama 34b,) Rabbi Yochanan rejects the view that one is liable for such a purely destructive act even for these melachot and applies the obligation to situations where there is a need for the result of the action.

Making our Mishna reliant on this view thus places Rabbi Yochanan in direct opposition to a סתם משנה, whereas he is the one who always stressed the fact that we always rule like a  סתם משנה.

There is much more to discuss before we can answer these questions, but that’s it for now….

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