Category Archives: principles of shabbos

Pesachim 83-84 בסיס לדבר האסור בנותר and עשה דוחה לא תעשה

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I would like to have a brief look at some general principles in halacha which are referenced over these two dapim.

One of them is  a principle we generally see in the laws of מוקצה  on shabbos, but which has a surprising application in the laws of the קרבן פסח, possibly opening the door to a broader application of this rule.

The Mishna on daf 83a tells us that the bones, sinews, and נוצר  (leftover meat) of the קרבן פסח  need to be burnt on the 16 of Nissan, the first day of Chol Hamoed, unless the 16’th falls on Shabbos in which case they are burnt on the 17, seeing as we do not burn קדשים  on Yom-Tov or Shabbos.

The Gemara on this Mishna opens by quoting a ruling of רב מרי בר אבוה  in the name of רבי יצחק .

It is forbidden to leave over the meat of the קרבן פסח (or other sacrifices)  until morning, a prohibition known as נותר.

If one transgresses and does so, one needs to burn it on the 16 Nissan, as per the above Mishna.

However this only applies to the meat, not the leftover bones, which usually do not usually require burning.

The חדוש  of רבי יצחק is that if the bones supported leftover meat, they are also forbidden as נותר  and need to be burnt.

The example Rashi gives, based on the continuation of the Gemara, is bones containing marrow.

Seeing as the bones contain or support the marrow which is considered edible meat and subject to the laws of נותר, the bones are considered a בסיס לדבר האסור  (“base for something forbidden”) and also forbidden as נותר  and subject to burning!

It is interesting to analyze whether this law is an extension of the same principle in the laws of shabbos, where a normally non-Muktza item that forms the base or support for a muktza item takes on the forbidden muktza status of the muktza item it is supporting.  (See Shabbos  47a)

Alternatively, it could be that this a different rule sharing only the name, with different mechanics and parameters.

After all, while this rule is generally accepted in hilchos shabbos, the Gemara makes various attempts to prove or disprove it in our context regarding the קרבן פסח but makes no attempt to bring the fact that it applies by הלכות שבת as a support for רבי יצחק.

Furthermore, when it comes to הלכות שבת, the laws of בסיס לדבר האסור  apply also to an item on top of which muktza is placed.

If this was simply an extension of that law, why would Rashi (and the Gemara) bring an example from bones containing marrow- surely bones without marrow but which still have meat connected to them should also have this status? (see Rabbeinu Chananel who indeed explains the Gemara as discussing bones with meat on them!)

If this is indeed an extension of this principle’s application in the laws of shabbos, we also need to investigate whether this is a general rule which extends to other areas of halacha as well.

For example, usually the bones of a non-kosher animal or נבילה being considered inedible are not treated with the same stringency as the meat itself when it comes to the laws of כשרות and might even combine with the kosher meat in  mixture to nullify the non-kosher meat בשישים  (in sixty times the amount-see Y.D. 99/1)

Should this principle be extended to all areas of halacha by default, perhaps when bones contain marrow, (or according to Rabbeinu Chananel if meat is still attached to them) they should be treated with the same stringency as the forbidden meat itself?

In order to answer these questions sufficiently, it is necessary to understand the source, whether פסוקים , מסורת, or סברא   (logic/lomdus) for this rule both regarding shabbos and קדשים and assess whether the source is the same in both cases and whether it also applies to other cases or not.

As muktza is a דין דרבנן  and נותר  is a דין דאורייתא (though the rule of עצמות ששמשו נותר  which designates it as a בסיס  is likely דרבנן ), the first two might be problematic but a common סברא, so long as not contradicted by any counter-examples in the primary sources, might do the trick.

One possible conceptualization of this rule could be that when an item of neutral status supports an item of forbidden status, it loses its independent identity and takes on the nature of the forbidden item it supports, at least on a rabbinical level.

An analogy could be one who supports people’s sinful actions, מסייעין ידי עובדי עבירה, who to a certain extent, and on a rabbinical level only, are also considered sinners. Yet they do not take on the same status as the sinner himself, but only the status of one who transgresses the rabbinical prohibition of assisting sinners.

Yet in both our cases, the item supporting the forbidden item does not just become forbidden but takes on the status of the forbidden item.

This is not necessarily a contradiction as it is possible that a person, being a complex being with his own free choice and דעת  while partly liable for other people’s sins that he enables, does not completely lose his independent status either.

In contrast, an inanimate object which lacks such דעת, has a far weaker level of independence, which is easily completely overridden  by a forbidden object it supports.

 If this is indeed the lomdus, it would not surprise us if this principle applies in other areas of halacha.

However, it is also possible that this principle is only applied by Chazal is certain specific cases and that in other cases, even if the logical principle they based this rule on applies conceptually, they chose for other reasons not to apply it there.

Much more to go into it, but as usual, just raising issues!

Another well known principle referred to at the bottom of 83b and beginning of 84a is the rule of  עשה דוחה לא תעשה  – a positive mitzva pushes aside a negative mitzva. (see my recent post on Pesachim  58-59  )

In our case, we learnt in the Mishna that one may not burn נותר  on Yom Tov and waits till chol hamoed to do so.

The Gemara asks why the mitzva of burning the נותר  does not push aside the prohibition of doing melacha on Yom-Tov based on this principle.

Various answers are given, but the final word goes to Rav Ashi, who explains that in addition to the prohibition of performing melacha on Yom-Tov, there is also a positive mitzva to rest on Yom-Tov, based on it being described as a שבתון (day of rest.)

Similar to shabbos, when one does melacha on Yom-Tov, one not only transgresses a negative commandment but also the positive command of resting.

Although a positive command pushes aside a negative command, it does not push aside a negative command and a positive command.

As such, the rule of עשה דוחה לא תעשה  can never apply to melacha on Yom-Tov, just as it cannot apply on shabbos.

A broader study of the rule of עשה דוחה לא תעשה  , particularly the long sugya in Yevamos, will reveal that one of the potential sources for this rule is the fact that a ברית מילה can be performed on shabbos- despite the fact that performing melacha on Shabbos involves both a positive and negative mitzva.

If this is the case, how does Rav Ashi say with such confidence that an עשה  cannot push aside both a לא תעשה  AND  an עשה ?

Food for thought for next time we encounter this rule!

These posts are intended to raise issues and stimulate further research and discussion on contemporary topics related to the daf. They are not intended as psak halacha.

Pesachim 71-73 מקלקל ומתעסק בחבורה

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In the fifth Perek (Pesachim 59a,) the Mishna teaches that even once it has been set aside to be a קרבן פסח, if the lamb or goat was slaughtered with intent to use it for another קרבן, or other invalid purposes, it is פסול.

In our chapter, we have focussed a lot on the fact that the קרבן פסח  pushes aside the prohibition of מלאכה  on Shabbos, and is thus offered even on Shabbos, unlike the חגיגה  which does not push this prohibition aside and is thus not offered on shabbos.

The Mishna on 71b puts these two rules together and teaches that if someone slaughtered a קרבן פסח  for an invalid purpose on shabbos, seeing as the קרבן  is invalid and the מצוה  has not been fulfilled, he has also unknowingly desecrated שבת  and needs to bring a קרבן חטאת  (sin offering) to atone for this.

The Gemara on 72b notes that seeing as the קרבן  is invalid, the slaughter was actually an act of מקלקל (a destructive action) and the general rule is that מקלקל בשבת פטור (one is not liable for a melacha whose result is only destructive- See post on Shabbos 105-106)

There is a view,however, namely that of Rabbi Shimon  (Shabbos 106a  ) that holds that כל המקלקלין פטורים חוץ ממבעיר וחובל – one is not liable for any destructive act other than lighting a fire and injury (the later falling under the מלאכה of שוחט.

According to this view, these two melachot are exemptions to the exemption of מקלקל and it thus makes sense that slaughtering an animal in a way that renders it unfit is still a punishable act on shabbos.

However, according to the view that מקלקל בחבורה (making a wound in a destructive way) is also פטור, why should one who slaughters an animal on shabbos in a way that disqualifies it be liable- his act was purely destructive!

The Gemara  first asks this question in relation to someone who slaughtered the קרבן פסח with the intention for people other than those assigned to it to eat it.

It responds that seeing as such a קרבן  is not taken down from the מזבח if it was already put up, there is still some benefit to the slaughter, and it is not considered מקלקל.

It then asks the same question regarding the case where the animal is found to be a בעל מום (blemished) after slaughter.  In this case, even if the animal has been put on the מזבח already, it must be taken down.

The Gemara answers that the mishna is only referring to certain blemishes that Rabbi Akiva holds do not require it to be taken down once it has already been put up.

The Gemara proceeds to query the case where it was slaughtered and then found  to be a טריפה (terminally wounded animal)  in a place which could not have been seen before slaughter, and answers that there is still some benefit in that the animal can no longer become טמא like a נבילה (an animal that died without halachik slaughter.)

We see from this sugya that even according to the opinion that the exemption of מקלקל applies to the מלאכה  of שוחט\חובל , the slightest benefit achieved from the animal itself because of the slaughter prevents the action from being defined as  מקלקל , even if the action is clearly more destructive than constructive.

Whether this limitation applies only to these two exceptional מלאכות or to all cases of מקלקל requires further analysis.

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Tosfos notes that in addition to מקלקל, there is another reason for exemption that should apply in these cases, namely the exemption of מתעסק, which usually applies when one intends to perform an action on a permitted item and lands up performing it on a forbidden one.

One who slaughters a קרבן פסח for another purpose presumably does so because he thought that it was set aside for another purpose (though see the discussion regarding the precise case on daf 72a where this might not be so straightforward an assumption.)

Similarly, one who thinks that he is slaughtering an animal without a blemish or that is not a טריפה and later finds out that it was indeed blemished or טריפה, has also performed an action on a forbidden item thinking it was a permitted item.

He notes that although there is admittedly a view (Kerisot 19b), in connection with the case of the two babies discussed on daf 72, that just like מקלקל  is not an exemption when it comes to חובל, neither is מתעסק, a view which of course needs its own explanation, it is clear from the same sugya that according to the view that the exemption of מקלקל  does apply to חובל, it applies to מתעסק  too.

As such, it is difficult why the Gemara does not question the liability of such a person based on the exemption of מתעסק, even if it is not considered מקלקל.

We should note that this question fits the way תוספות  understands מתעסק  (see post on Shabbos 72.)

However, Rashi  holds that the exemption of מתעסק only applies where the action was applied to a DIFFERENT item than the one which he intended to apply it to, for example if his hand slips, and in  a case where he intended it to be applied to the same item but merely thought that it was a permitted item, he would be liable as שוגג seeing as נעשתה מחשבתו  (his intended action was carried out on its intended recipient.)

According to this view, the question does not even begin!

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Another difficulty is the assumption that even a small benefit stops an action from being considered מקלקל even according to the opinion (Rabbi Yehuda) that exempts מקלקל בחבורה .

Virtually every destructive action could be viewed as beneficial in some far-fetched way, rendering the often-used exemption rather mute.

Yet Rabbi Yochanan (Shabbos 106a) denied that Rabbi Shimon held that מקלקל is liable when it comes to חובל ומבעיר and said that if he did indeed hold that way, it is only when there is some small benefit.

It follows that according to Rabbi Yehuda who holds that מקלקל  is exempt even when it comes to these 2 מלאכות  , he must mean that this is EVEN if there is some small benefit!

The Tosfos therefore  suggest that when our sugya refers to the view that exemptsמקלקל בחבורה  , it is not referring to Rabbi Yehuda, but rather to Rabbi Shimon according to Rabbi Yochanan’s interpretation  by which Rabbi Shimon only holds one liable for מקלקל בחבורה  if there is some small benefit.

It is possible that Rabbi Yochanan would still agree that Rabbi Shimon holds that מתעסק בחבורה is liable just like מקלקל בחבורה  is under his more limited circumstances, and that our sugya is not bothered by the מתעסק  issue.

This also allows us to conclude that Rabbi Yehuda exempts מקלקל בחבורה  even where there is some small benefit and that this certainly applies to מלאכות  other than it and הבערה!

There is much more to discuss on this issue, some of which we have done in earlier posts, and some of which I hope to revisit in later posts.

These posts are intended to raise issues and stimulate further research and discussion on contemporary topics related to the daf. They are not intended as psak halacha.

Pesachim 69-70 The Pesach night Chagiga and the egg on the seder plate

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The Mishna on 70b tells us that the  קרבן חגיגה   (festive sacrifice) brought together with the קרבן פסח  was not subject to many of the rules that the קרבן פסח itself was subject to:

Unlike the קרבן פסח  which could only be a male goat or lamb, under two years of age, the חגיגה  could come from cattle as well, and be female or male, younger or older than two years.

Furthermore, unlike the קרבן פסח  which only had one day and one night after its slaughter to be eaten, the חגיגה  may be eaten within two days and one night.

However, unlike the קרבן פסח which was always brought, the חגיגה  was neither brought on Shabbos, nor if most of the community was impure, nor if the group associated with the קרבן פסח  was small enough to be satisfied by the קרבן פסח   itself.

The Gemara deduces from this that the author of the Mishna holds that the חגיגה  is not obligatory- After all, if it was obligatory, it should be offered on shabbos like all obligatory sacrifices with a fixed time.

We should note that the Gemara uses the language “לאו חובה היא”  (is not obligatory) to describe the special chagiga of Pesach night.

The simple meaning of this means that although it could be דאורייתא (biblical in nature,) it is a voluntary mitzva and not an obligatory one.

Yet it is not the norm for the Torah to give us voluntary mitzvot without specifically saying so, and we also do not usually  דורש טעמא דקרא (expound the verse’s reasons, a topic for another post, but see meanwhile Sanhedrin 21a ) and conclude that a mitzva in the Torah does not apply when the reason does not seem to apply.

It is thus not surprising that the Tosfos understand that the Gemara means to say that it is only  דרבנן (a rabbinical command.) and that this is why it cannot push aside the prohibition of melacha on shabbos.

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The Gemara proceeds to bring a Beraisa that explains that the חגיגה  is eaten first in order that the קרבן פסח  can be eaten על השובע  (while satisfied.)

Rashi understands that the reason the קרבן פסח  in turn needs to be eaten על השובע  is ” שיהו נהנין באכילתו ותיחשב להם” (so that they should get pleasure from eating it and it should be significant to them.)

He seems  to understand the phrase על השובע  not literally as “while fully satisfied” but rather as while not very hungry, or partly satisfied.

The חגיגה  thus plays the roll as a filler in order that the relatively small amount of meat that each member of a large group gets from the קרבן פסח will be eaten after one has already satisfied his hunger and be able to relax and enjoy it- after all, even though it is clearly not healthy, one who is very hungry often tends to eat quickly in order to satisfy his hunger and doesn’t take the time to enjoy his food properly.

In contrast, the Tosfos quotes the ריב”א  based on the Yerushalmi as explaining that this requirement is a גזירה דרבנן  (rabbinical decree) to prevent one from rushing to eat it in his hunger and while doing so, transgressing the prohibition of שבירת עצם (breaking a  bone of the קרבן פסח.)

Whereas it is אפשר  (possible), though not  מוכרח  (a foregone conclusion)  that Rashi views על השובע to be an intrinsic element in the mitzva of קרבן פסח, without which one might not fulfil one’s obligation, the approach brought by Tosfos clearly sees it as a side- requirement on a rabbinical level, which probably, though not certainly, would not מעכב (hold back) one’s fulfillment of the mitzva.

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Back to the Beraisa quoted by our Gemara, we should note that it does not bring the requirement that the קרבן פסח  be eaten על השובע as the reason that the חגיגה is brought in the first place but only as the reason why it is eaten before the קרבן פסח – it is the Gemara that seems to goes further and take this as the reason for bringing the חגיגה , and thus the reason why the חגיגה  is not brought by small groups.

We should note that all the above applies to the special חגיגה  brought on erev Pesach and eaten on the night of Pesach, and not to the regular obligatory חגיגה  brought on the first day of Pesach and other festivals.

Whereas it is not yet clear whether  the regular חגיגה can be brought by an impure community, it seems implicit at this stage that being דאורייתא ,it is brought on shabbos, and certainly isnt dependant on the number of people eating it.

 However, on the next amud, Rav Ashi derives from a passuk that the regular chagiga is also not brought on shabbos. This seems to clash with our Gemara’s deduction from the fact that the חגיגה  brought with the פסח is not offered on Shabbos, that it is not obligatory- after all, the regular חגיגה  is certainly obligatory yet it is also not brought on shabbos!

Tosfos suggests that even if the חגיגה  brought with the פסח  is דאורייתא, it cannot be compared to the regular חגיגה which does not have a strictly fixed time and unlike it can be offered on all 7 days if missed on the first day!

As such, it  is only regarding the חגיגה  brought with the פסח that the Gemara claims a causal link between biblical level obligation and the ability to overide the prohibition of מלאכה  on shabbos!

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The Gemara continues to note the dissenting view of בן תימא who holds that the  חגיגה  that comes with the קרבן פסח  is subject to the same time restrictions that apply to the קרבן פסח , and only the regular חגיגה brought on Pesach day enjoys a  less restrictive time-period for it to be eaten.

In support for his view, the passuk “ולא ילין לבקר זבח חג הפסח”  is brought, where the word “זבח” is taken to refer to the חגיגה and “פסח”  to refer to the קרבן פסח.

The implication, as noted by Tosfos, is that בן תימא  considers the חגיגה to be דאורייתא whereas the חכמים  of the Mishna who disagree with him, consider it to be דרבנן.

After much discussion, the Gemara  also concludes that according to בן תימא, all or most of the other restrictions pertaining to the קרבן פסח also apply to that חגיגה.

Tosfos points out that later (Pesachim 71a) the Gemara brings a פסוק  to prove that the חגיגה may be eaten for 2 days and one night, unlike the קרבן פסח which clearly seems to support בן תימא  against our Mishna as saying that the חגיגה  is דאורייתא  and thus offered on shabbos as well!

He also notes that there is a view elsewhere (Chagiga ) that implies that the  חגיגה   of ערב פסח  is indeed דרבנן, and we are left with aמחלוקת תנאים  regarding whether

  1.  the חגיגה  on ערב פסח  has the same biblical status as the regular חגיגה  AND is offered on pesach as well

 OR

 whether it is simply a מצוה דרבנן  designed to ensure that the rule that the קרבן פסח  is eaten while partially satisfied is upheld AND is thus NOT offered on shabbos.

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Although we do not merit to bring either the קרבן חגיגה  or the קרבן פסח in our time, there are a number of possible practical ramifications of the above analysis, one of which I wish to bring up briefly:

The egg which is traditionally placed on the Seder plate is done so  זכר לחגיגה (see Orach Chaim 473/4 based on Tur O.C. 473 but see also other views brought, all based on Pesachim 114b.)

It seems that according to the view that חגיגה  on Pesach night is only דרבנן and not brought on shabbos , when Pesach falls on Shabbos, the egg should not be placed.

Although some Rishonim do indeed rule this way, the halachik consensus seems to be that being just a זכר  and also due to other reasons given for using the egg, we do so anywhere (see above sources for more details.)

These posts are intended to raise issues and stimulate further research and discussion on contemporary topics related to the daf. They are not intended as psak halacha.

Pesachim 65-66 שבות במקום מצוה , קל וחומר, and גזירה שוה

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The Opening Mishna of our new perek lists the various מלאכות  that form part of the process of the קרבן פסח  that override Shabbos.

These include slaughtering it, sprinkling its blood, מחוי קרביו  (cleaning the insides), and burning its fat, but not roasting it or rinsing the insides-Rashi explains that  the later two can done after dark on Pesach night itself and thus do not override the shabbos laws.

Furthermore, the Tana Kama rules that הרכבתו  (carry it on one’s shoulders), bringing it from outside the techum, or cutting a יבולת  (wart) off it may not be done on shabbos.

Rabbi Eliezer, however, attempts to learn by way of קל וחומר that if מלאכה דאורייתא is pushed aside by the קרבן פסח , surely a שבות  should be.

Rashi explains the view of the Tanna Kama, later expressed by Rabbi Akiva, that  although these are all only שבותים  (rabbinical prohibitions- see inside for why,) they could have been done before shabbos and are thus not permitted, an explanation Rabbi Akiva himself gives after some back and forth which itself requires further analysis.

It should be noted that although we have indeed seen places where a שבות  is treated more stringently than a מצוה דאורייתא  in order that people should not make light of it (see my post of Eruvin 2 for sources and some discussion), neither Rabbi Eliezer nor Rabbi Akiva appear to apply this argument to our discussion.

 This seems consistent with what appears to be the default principle that biblical prohibitions are to be treated more seriously than rabbinical ones, in the absence of Chazal ruling to the contrary, something which itself is subject to much discussion and analysis.

The Gemara on daf 66 opens by relating how the בני בתירה  had forgotten the rule that the קרבן פסח  pushes aside the laws of shabbos, as per the above Mishna.

Hillel then proceeded to prove it to them by way of גזירה שוה based on the word “במועדו”  which is used both by the תמיד  and the פסח- just like the תמיד  pushes aside the laws of shabbos, so does קרבן פסח.

He then adds that this can also be derived by means of a  קל וחומר- if a regular תמיד  which does not cause one who fails to bring it to be liable to כרת  overrides shabbos, surely the קרבן פסח whose neglect brings about כרת  should do so.

The Gemara asks how we know that the תמיד  itself may be offered on shabbos, and concludes that we learn this from the  passuk “עולת שבת בשבתו על עולת התמיד ונסכה”( “ The burnt-offering of Shabbos on its Shabbos, in addition to the regular burnt-offering” – Bamidbar 28/10), which clearly implies that the  regular burnt-offering (תמיד)  is offered even on Shabbos.

The Gemara then ask how  Hillel could base himself on the קל וחומר  when the logical argument is flawed- the תמיד   is תדיר (regular) and is also a   burnt offering, the holiest type of sacrifice which is completely burnt whereas the קרבן פסח  is only once a year and is eaten by the owners!

Although the קרבן פסח  is taken more seriously regarding punishment, the תמיד  is taken more seriously in other ways and the former can thus not be said to be objectively more important than the later.

It answers that the קל וחומר   was actually argued first, and when the בני בתירה countered its logic as per the above argument, he then presented the גזירה שוה.

Unlike a קל וחומר  argument, which any sage could make based on his own logic but could also be countered by another sage’s logic, a גזירה שוה   is based not on logic (at least alone) but on מסורת  (tradition.)

A sage may not simply derive anything he wishes from a גזירה  שוה, but may only apply a גזירה שוה  which he has received from his teacher as part of the oral tradition (see Rashi ד”ה “וכי מאחר”  for his precise explanation of this rule, which we shall hopefully be able to revisit in a later post.)

This limitation also gives it an advantage, in that a countering logical argument cannot push It aside.

The Gemara explains that despite this advantage, Hillel initially preferred to use the קל וחומר  argument , seeing as his contemporaries could retort that they not received this גזירה שוה  by way of tradition like he had- only once the קל וחומר  failed, did he resort to the גזירה שוה.

Although the Mishna clearly holds like Hillel, it remains unclear if and how he was able to convince the בני בתירה  of this, given that they had countered the logic in the קל וחומר  and also did not have the גזירה שוה  as part of their tradition.

Are we to learn from this event that even if a certain sage has not received a גזירה שוה  from his Rabbi, once another sage has revealed a גזירה שוה  to them from his מסורות, they are also to accept it?

If so, why was Hillel initially reluctant to use this גזירה שוה?

On the other hand, if those sages are not required to accept a גזירה שוה  revealed by a colleague, of what help was the גזירה שוה in advancing Hillel’s argument at the end?

The Gemara on daf 66b returns to discussing the relative weight of a שבות  as compared to aמלאכה דאורייתא  and asks whether a melacha may be performed כלאחר יד  (in a back-handed or unusual manner) for the sake of a mitzva.

The specific case discussed is what happens if one forgot to bring the knife needed for the שחיטה  before Shabbos, seeing as this is not one of the things one is permitted to do on shabbos for the sake of the קרבן.

On the previous amud, we learnt that Hillel and his teachers, Shmaya and Avtalyon, had permitted sticking the knife required for the שחיטה  in the wool or hair of the animal so that it is carried by the animal and not by a person.

The Gemara queries this for various reasons, among them the fact that it is biblically forbidden to  perform an action which causes one’s animal to carry something for him on shabbos  (מחמר).

It answers that this is מחמר כלאחר יד , an unusual way of getting an animal to carry something,and Rashi explains that this is because a lamb is not usually used for carrying things (like a donkey or camel are.)

The Gemara counters that מחמר  כלאחר יד is still forbidden on a rabbinical level, and answers that this is precisely the question that had been asked of Hillel.

As its wording seems rather cryptic, I choose to quote the original Aramaic:

דבר שיש לו התיר מין התורה ודבר שבות עומד לפניו לעקרו כלאחר יד במקום מצוה מאי?

Something which is permitted on a biblical level and a rabbinical prohibition stands in its way- may one up-route it in a back-handed manner for the sake of a mitzva?

Although the precise wording seems to be referring to performing a שבות  in a backhanded manner, closer to what we often referred to in halacha as a שבות דשבות לדבר מצוה, the comparison drawn to our case seems to be referring to performing a מלאכה דאורייתא  with  a  שנוי  for the sake of a mitzva, which would be a far more drastic leniency.

The answer he gave, as quoted on the previous amud was in the affirmative – הנח להם לישראל אם לא נביאים הם בני נביאים הם!

May one derive from here that any שבות  may be performed for the sake of the mitzva?

It seems clear from the Mishna (according to Rabbi Akiva)  that it certainly may not, even for the sake of a קרבן פסח, at least if it could have been done before Yom-Tov.

As such, this leniency needs to be applied less broadly, perhaps specifically to the שבות  of כלאחר יד .

Rashi (ד”ה שיש לו התיר) , explicitly notes this distinction and explains that doing something כלאחר יד  is less severe than other שבותים, seeing as it is (relatively) uncommon (Chazal usually only make their decrees in cases that are common!)

In contrast, the Tosfos do not appear to make this distinction, and query how this could be permitted, seeing that it is clear from the Mishna that even a שבות  may not be done for the sake of the mitzva of korban pesach if it could have been performed before Yom-Tov.

Whereas Rashi’s distinction would render their query rather mute, the Tosfos suggest a different distinction, namely between a שבות  performed by a Jew and one performed by his animal- only the later is permitted for the sake of a mitzva-a distinction that appears to fit less into the actual wording of the question asked to Hillel, where no mention of an animal is made.

There could be a major נפקא מינה  (practical ramification) between these two distinctions:

According to Rashi, it seems to follow that ANY melacha may be performed  כלאחר יד/ with a שנוי  for the sake of a mitzva but no other שבות  is permitted (except perhaps in the case of a שבות דשבות.)

In contrast , according to Tosfos, it seems like ANY שבות  might be performed by one’s animal for the sake of a mitzva, but not even כלאחר יד  is permitted by a Jew himself even for such a purpose.

Although this seems the most precise conclusion, given that the Gemara mentions “for the sake of a mitzva” in general and does not limit its version of the question asked to Hillel to the case at hand, it is also possible that both Rashi and Tosfos would limit their respective interpretations of this leniency to a mitzva of the stature of קרבן פסח, however that is defined, which sometimes pushes aside even severe biblical restrictions such the laws of shabbos, and not any other mitzva!

These posts are intended to raise issues and stimulate further research and discussion on contemporary topics related to the daf. They are not intended as psak halacha.

Eruvin 105 Intellectual honesty opposed to a philosophy of leniencies

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This short daf deals with various work needed for the maintenance of the מקדש , to remove impure items from it, and how and by whom it should be done.

This is based on a debate in the concluding Mishna of the Masechta regarding how to remove a dead שרץ  (creeping creature/bug) from the Temple.

The Masechta ends, however, by focusing on a rather cryptic statement in the final Mishna by Rabbi Shimon: מקום שהתירו לך חכמים משלך נתנו לך שלא התירו לך אלא משום שבות – “The place where the sages permitted it to you, they gave you from your own, as they only permitted it because of a rabbinical prohibition.”

Whatever the meaning of this statement, we might instinctively think that it has something to do with the debate in this Mishna itself.

Yet the Gemara understands this as a flashback to two other debates that Rabbi Shimon was involved in:

  1. Although the Chachamim hold that even if one stepped one אמה outside the תחום  (shabbos zone), it is forbidden to return, Rabbi Shimon allows a leeway of up to 15 אמות  because the people who measure the תחום  do not do so precisely and leave a safety net of this distance inside the תחום.

The first part of his cryptic statement thus reads:

“That which they (according to me) permitted you, ie 15 amos, was really yours to begin with, due to the safety net made by the measurers.”

  • Although Chachamim permitted retying a string that came loose on a musical instrument required for the Temple service, due to the rule of אין שבות במקדש , Rabbi Shimon forbade it, seeing as he held that this is a biblical prohibition, and only permitted tying it with a bow.

The second part of his cryptic statement thus reads:

“They only permitted  tying a bow which is a שבות, not tying a knot which (according to me) is a biblical transgression.

Rashi and Tosfos both explain that Rabbi Shimon makes these statements here because they are connected to his ruling regarding the string of an instrument.

Tosfos adds that this discussion was interrupted by listing the other things permitted because אין שבות במקדש  (there are no rabbinical prohibitions when it comes to Temple service) and Rabbi Shimon is now returning to explain his position there.

They both explain that Rabbi Shimon is going out of his way to stress that his leniency regarding the תחום  was not due to his taking shabbos lightly and a general policy of leniency, but because he felt it was objectively the correct ruling, seeing as the safety net was intentionally placed for that reason.

In contrast, when  it comes to making  a knot, he believed that a biblical prohibition was involved and only permitted a bow, in keeping consistently with the rule of אין שבות במקדש, even though the Chachamim were lenient.

Although both Rashi and Tosfos explain the positioning of Rabbi Shimon’s “clarification” of his approach based on the recent placement of the late dispute, it seems fitting that the Maseches concludes in this way.

After all, as we have seen so many times, Eruvin is not just about the technical and specific laws of Eruvin, but also about the power of rabbinical decrees as a whole and many global rules of psak halocho.

We have seen many leniencies when it comes to rabbinic decrees, such as ספק דרבנן לקולא, אין שבות במקדש, אין גוזרין גזירה לגזירה etc , as well as many exceptions to these rules.

Rabbi Shimon, in particular, is known for many leniencies in the rules of Shabbos, among them דבר שאין מתכוין מותר, מלאכה  שאינה צריכה לגופא פטור, לית ליה מוקצה,  גגות חצירות וקרפפים רשוצ אחת הן,  כתבי קודש  etc.

However, as we discussed early in the Maseches (see post on Eruvin 7,) halacha ideally should not be about having a philosophy of leniency or stringency, but rather about searching for the objective truth.

It is so fitting that such a Masechta should end with no other than the “lenient” Rabbi Shimon clarifying his position that his leniencies do not flow from any זלזול (making light of) the laws of Shabbos, chas veshalom, but from his objective view of the truth in each case.

Just like he was lenient so often in cases where he believed the truth required leniency, he was not afraid to be stringent against consensus when he felt that the truth required it.

Although a poseik might often be required to take local circumstances or even “meta-halachik” factors into account when issuing rulings, Rabbi Shimon, forever the idealist, seems to be teaching us that the ideal derech of a poseik and Talmid Chacham, namely intellectual honesty and objectivity, must never be forgotten.

הדרן עליך מסכת עירובין והדרון עליך

Its been an incredible journey, and we will miss you, as we temporarily move on to exciting new territory with Maseches Pesachim, Hashem willing, truly inspired and looking forward to the next round!

Eruvin 104 Soccer on Shabbos and when a גזירה’s reason doesn’t apply

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One of the more contentious issues in many communities today is the question of children, teens, and even adults  playing  sports on Shabbos.

On the one hand, many argue that not only does this practise not confirm with the required atmosphere for the holiest day of the week, it also involves many other halachik problems.

On the other hand, most of these points could be arguable, and there is a strong argument that for many, they can certainly enhance their “oneg shabbos” , itself a major mitzva.

Some of the issues raised against playing games like soccer even in a private domain, are:

  1. Running itself is prohibited on shabbos. (see Shabbos 113a)
  2. The game is not in keeping with the spirit of shabbos and could even be in the category of forbidden weekday activities (see Peninei Halacha Shabbos 24/9 based on Rav A.I. Kook)
  3. Running on long  grass is problematic as one might come to uproot the grass while doing so, itself a forbidden melacha on shabbos. (see M.B. 336/25)
  4. Playing with a ball along the ground is prohibited on shabbos. (see M.B. 308/158)
  5. A ball is muktza (see S.A. O.C. 308/45)
  6. There is  a Midrash (Eichah Rabba parsha 2, possibly also referenced in the Yerushalmi  Taanis 4/5 ) that blames the destruction of the city טור שמעון on the fact that they played with balls on shabbos.

We saw in a recent post (see Eruvin 100)  that although walking in a rushed manner and running on shabbos are forbidden due to the passuk in Yeshaya forbidding weekday activities, in particular walking in a weekday rushed manner, running for the sake of a mitzva is permitted, as is running for “oneg shabbos” or even to get to an activity from which one will get “oneg shabbos.”

As such, the first 2 points seem less problematic, and although some have argued that given its nature as a commercial sport, soccer might be different to running and still be considered a weekday activity (Pninei halacha based on Rav A.Y. Kook ), this argument seems rather subject to debate, given that  both running and all sports are popular both privately and commercially.

In fact, given one’s busy school or work schedule during the week, they are actually far more popular on weekends than on “weekdays” and singling out sports like soccer as being particularly commercial in nature when it is a game played casually by young people in their backyards in most places in the world seems somewhat subjective.

We saw in that post that there is no issue with walking on grass on shabbos, even on long grass, and even with shoes with nails in them, due to the principle of דבר שאין מתכוין מותר.

We also saw that although the Mishna Berura forbids running on long grass and consider it פסיק  רישיה, this does not apply on short grass, and the Aruch haShulchan disagrees strongly and permits running on short grass as well- we also  analyzed the basis for this disagreement in classical sources.

Even on long grass according to the Mishna Berura, this would at worst only be rabbinically prohibited as פסיק רישיה דלא ניחה ליה  , seeing as one derives no benefit from any grass uprooted during the game.

The fifth point is a sugya in its own right, and needs to be dealt with separately, but the Rema (O.C. 308/45) rules that this is not an issue in any case, and the sixth point is aggadic material which needs to be understood but is not necessarily halachically relevant. Indeed, it is not mentioned by most Rishonim and Achronim at all ( see though Aruch haShulchan O.C. 38/70  who does bring it into the discussion.)

For the purposes of this post, I would like to focus  on point 4, which is based on a discussion on this very daf.

The Gemara has been discussing the prohibition of השמעת קול, making sounds with objects (as opposed to the voice) on shabbos, which is rabbinically forbidden in case on comes to fix a musical instrument.

The Gemara has been entertaining the later rejected  possibility that not only קול של שיר, the kind of sounds that accompany song are forbidden, but even other sounds, such as knocking on the door, making noise to wake someone up ,clapping hands to scare away birds, or drawing water with a wheel-run device are also forbidden.

One of the attempted proofs the Gemara brings is from a ruling of Rav quoted by Rav Yehuda that women who are accustomed to play with hazel-nuts  (rolling them like marbles, which Rashi explains was a common pastime for ladies) may not do so on Shabbos.

The Gemara at first assumed that this is because of the sounds they make and that this ruling is proof that even non song-related noises are forbidden.

It rejects this proof by explaining that the reason for this rabbinical prohibition is completely different, and is due to the concern that they might fill-in any holes in the courtyard ground that get in the way of the game (where the hazelnuts could be trapped.)

This could involve the melacha of building (indoors or perhaps in  courtyard) or ploughing (outdoors.)

It brings further evidence that this must be the reason from the fact that Rav Yehuda also forbade rolling apples along the ground, though they do not make noticeable sounds like hazel nuts.

However, it is very possible that this decree is limited to

  1. Women who play this game commonly, and not others for whom the concern is not so common
  2. Hazelnuts and apples which are relatively small and easily trappable in small to medium sized holes in the ground, and not larger spherical   objects such as a melon or a modern-day soccer balls (I am using this term for the sake of clarity although it is not a precisely accurate description for these items.)
  3. Situations and/or times where the ground used is usually already smooth and/or it is not common for players to smooth the ground out before or while playing.

Due to points 2-3, playing soccer is clearly rather removed from the decree that formed the basis for Rav’s ruling, and applying this prohibition thus seems to be quite a stretch.

Although one might argue from the case of the apples that the decree was not limited to small spheres such a hazel-nuts but included round items of all sizes, it is just as likely that it included items as large as apples, but not significantly larger, as argued in point 2 above

The issue raised in point 3 requires much analysis:

There is a general rule of אין בית דין יכול לבטל דברי בית-דין חבירו אלא אם כן גדול ממנו בחכמה ובמנין  – one court may not annul the words of an earlier court unless it is greater than it in wisdom and numbers  (Megila  2a ) .

 This and the related rules of

  1. 1.        כל דבר שבמנין צריך מנין אחר להתירו  (Beitza 5a-anything voted as forbidden by a court/group of authorities  requires another vote to permit it)

AND

  •  לא פלוג רבנן (B.M 52a-the Rabbis do not differentiate between different cases in their decrees but rather make blanket rules )

seem to preclude annulling a decree such as this just because the concern of smoothing out holes does not apply commonly in a friendly soccer game.

Yet, there are various times where Tosfos argues that decrees do not apply in our day precisely because the reason for the decree is not relevant in our day.

For example, they argue that the prohibition of clapping, banging, and dancing even to song does not apply in our time because we are not expert in making/fixing musical instruments anymore and there is no concern one would do so (Beitza 30a ד”ה “תנן” )

They also argue that

  1.  the  prohibition of drinking מים מגולים  did not apply in their time as snakes were not common )Beitza 6a)
  2.  a bird used for children’s entertainment might not be muktza (Shabbos 45b),
  3.   the prohibition of entering into a partnership with idol-worshippers did not apply in his day seeing as the concern that they would make one swear by their idols was not relevant )Sanhedrin 63b ד”ה “אסור”, though the exact point Tosfos is making there is subject to much debate)

Whereas the question as to how the Tosfos are able to do this despite the principles quoted above requires a serious analysis, and one commonly suggested explanation is that they are not suggesting that the decree no longer applies but that the circumstances at hand are SO clearly different to those under which the decree was made that they were never included by Chazal in the decree in the first place.

While even this less controversial explanation of the approach of the Tosfos might not be accepted by many other Rishonim, there appears to be some precedent for it on our very daf.

One of the things that our Mishna permitted in the Mikdash as part of the long list of rabbinic prohibitions mentioned in our perek that do not apply there, was drawing water from certain pits with a wheel.

The implication of the Mishna is that this would be forbidden rabbinically  outside the Mikdash , and after suggesting that this is due to the prohibition against making sounds, the Gemara answered that it is out of concern that one might come to draw water to water his garden or ruin.

Despite this, the later Amora Ameimar permitted drawing water in such a way in the town of Mechoza, because there were no gardens or ruins there, until he saw that they used it for other forbidden purposes, such as soaking flax.

This seems to indicate that a later authority  (Ameimar) may permit something forbidden by an earlier authority (in this case none other than a Mishna) because the circumstances under which the decree was made do not exist.

The approach of the Tosfos thus seems clearly anchored in precedent, and even in the unlikely scenario that the decree against playing with hazelnuts and apples on a rough surface extended to larger spheres on a smooth surface, in a time and place where it is not common to play soccer on surfaces one would need to smooth during the game or directly before, there would still be reason to argue that such far-removed circumstances were never included in the decree in the first place.

Given the multiple reasons for leniency mentioned above and the fact that we are dealing with at most a rabbinical prohibition, forbidding soccer for reasons of this decree thus seems to be a rather stringent approach to the question.

We can also add to this the fact that the Tosfos on our daf say that even in the circumstances described on our daf with hazelnuts and apples, we should not protest and women and children who do this due to the principle of מוטב שיהיו שוגגין ואל יהיו מזידין , and there is strong argument that this principle also applies to teenage boys and other males who are also unlikely to listen.

At the end of the day, there are certainly worse things that kids could be up to these days, and although there might be other halachik, ideological, and policy issues that need to be taken into account before permitting it, this particular concern certainly doesn’t seem like cause for a major confrontation with them.

Having said this, achieving some balance is important- Given that Shabbos and Yom-Tov are supposed to  be special opportunities for spiritual pursuits such as davening, learning Torah, singing songs of praise, and strengthening the family, and not just for physical enjoyment, it seems clear that if these essential aspects of shabbos are replaced chas veshalom by sporting activities, this is a serious lack of כבוד שבת and is certainly forbidden.

As such, even if we permit  (or turn a blind eye to) kids playing sports during the afternoon while adults would usually be resting, it is essential to gently encourage and educate them to be a full part of the shabbos experience, both in shul and at home.

These posts are intended to raise issues and stimulate further research and discussion on contemporary topics related to the daf. They are not intended as psak halacha

Eruvin 97-98 and 103 שבות במקדש וכתבי קודש

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Eruvin 97-98 and 103  שבות במקדש וכתבי קודש

One of the main themes in the later part of this concluding chapter of Eruvin is the rule that אין שבות במקדש – there are no rabbinical prohibitions of Shabbos in the Temple.

For example, one may

  1. use a bolt that is attached to the door but drags on the floor to lock a door  (Eruvin 102a)
  2. return the bottom hinge of a door to its place (Eruvin 102b)
  3. put a bandage back on (Eruvin 102b)
  4. retie the string of a musical instrument that broke (according to those who permit מכשירי מצוה  ( see Gemara Eruvin 102b-103a)
  5. Cut a lesion off the hands of a kohain with one’s hand (Eruvin 103b)
  6. Scatter salt on the ramp (Eruvin 104a)
  7. Draw water from certain pits (Eruvin 104a)

When required for Temple service, even though they all involve rabbinic prohibitions and are not permitted elsewhere.

This leniency is limited to rabbinically forbidden actions that are needed for the Temple service, and do not apply to actions done for personal benefit, even if they are performed in the Temple.

Although, due to our many sins, we do not have a Temple today, this rule might not be completely irrelevant in our times, at least according to certain views.

The Gemara (Eruvin 93a) discusses the converse of the above-mentioned case, namely whether a שבות  needed for the Temple service may be performed outside the Temple.

For example, may one cut off a lesion from a kohain outside the Temple to make him fit for the service inside the  Temple?

Rav Yosef claims that this would not be permitted!

Yet Rav Safra brings an earlier Mishna (Eruvin 97b)  to dispute this claim.

We have learnt that if one was reading from a holy scroll on the איסקופה (threshold of his house), assumed at this point to be a private domain, and the scroll rolled to the ground of the public domain below, so long as one is still holding it in one’s hand, one may roll it up again.

This is because it has not yet “rested” in the public domain, being still in his hand, and although there would normally still be a rabbinic prohibition against doing so in case it falls from his hand and he comes to bring it in from a public domain, a biblical prohibition, when it comes to כתבי קודש  (holy books), this שבות  does not apply.

Rav Safra  amazingly assumes that the sanctity of holy books has the same law as the Temple service, due to their sanctity (see Rashi on Eruvin 93) and attempts to derive from here that in the face of such concerns, the rule of אין שבות במקדש  extends to outside the Temple too.

According to this interpretation of the rule, it does not refer to the geographic location where the שבות  is concerned but rather to its purpose- There is no שבות  when it comes to matters of sanctity!

In fact, the Gemara (Eruvin 98a) actually first explains that this lenient ruling is based on the view of Rabbi Shimon that כל דבר שהוא משום שבות אינו עומד בפני כתבי הקודש- “anything rabbinically forbidden regarding shabbos does not stand in the face of holy writings.”

However, Rav Safra’s proof is rejected (Eruvin 93a) based on the Gemara’s conclusion (Eruvin 98a) that the mishna was dealing with an איסקופה כרמלית  , not one that is a private domain.

Seeing as bringing it back into this כרמלית  from theרשות הרבים  would only be rabbinically prohibited, one is permitted לכתחילה  to roll it back so long as it is still in one’s hands without being concerned that it will  fall from his hands- this is in keeping with a general rule of אין גוזרין גזירה לגזירה (see Tosfos Eruvin 98 ד”ה “אלא”  who discusses this in more detail.)

As such, there is no proof from this Mishna that one may perform a שבות  needed for the מקדש  (or sanctity) outside the מקדש  .

However, while the Gemara rejects Rav Safra’s proof that such a שבות  may be performed even outside the מקדש, it does not seem to question his analogy between Temple service and holy writing (though see Tosfos haRosh Eruvin 93a ד”ה “ולאו” .)

As such, should we conclude from other sources, as Rav Safra continues to attempt to do and Abaya seems to concede, that שבות דמקדש  may be performed even outside the מקדש, it might follow that holy writings may be recovered outside the מקדש  as well, so long as no biblical transgression is transgressed.

However, not only does Rava (Eruvin 93b)  seem to conclude that we have no proof that a שבות במקדש  may be performed outside the Mikdash, the conclusion of the Gemara on Eruvin 98 seems to be clear that we do not follow Rabbi Shimon’s leniency regarding כתבי קודש .

As such, it seems that there is no blanket rule that one may perform a rabbinical prohibition for the sake of holy writings on Shabbos, and on the contrary, the default rule seems to be that it is forbidden in cases where there is a concern of coming to a biblical prohibition.

Yet as Tosfos (Eruvin 93a) points out, the Gemara (Eruvin 97a) permits bringing in Tefillin that one finds in the public domain and are in danger of desecration, 4 amos at a time, something normally rabbinically forbidden.

He concludes that there are indeed times when   שבות  might be permitted for the sake of holy writings, such as in that case where they are in danger of actual desecration.

Tosfos haRosh goes further and suggests that when holy writings are in danger of desecration in the street, it is the equivalent of שבות במקדש במקדש  – a שבות  regarding the מקדש  INSIDE the מקדש, a rather abstract concept that requires further analysis.

In our case, however, it might not be dignified for the holy writings to be left in the public domain, but they are not in danger of actual desecration.

Although only Rabbi Shimon permits a שבות  in the latter case, everyone seems to agree that it is permitted in the former, an application of the rule of אין שבות במקדש  even in our day- Holy books are evidently the closest thing we have to a Temple!These posts are intended to raise issues and stimulate further research and discussion on contemporary topics related to the daf. They are not intended as psak halacha

Eruvin 100 Running on grass on Shabbos

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This is one of those daf that are  filled with an array of different colorful topics not directly related to Eruvin per se, spanning from other shabbos laws to advice regarding marital intimacy.

One of them is the prohibition of climbing or making use of trees on Shabbos and Yom-Tov.

The Gemara also brings a Beraisa that says that one may not even walk on grass on Shabbos, apparently in case one uproots it while walking.

This supports a ruling to that effect of Rami bar Aba in the name of Rav Assi, who bases this on the passuk )Mishlei 19/2)  “ואץ ברגלים חוטא”- one who is “אץ” with his legs is a sinner.

Rashi explains that this implies that walking can be considered a sin and doing so on grass on shabbos is precisely such a case.

The Gemara brings another Beraisa that rules to the contrary that walking on grass on shabbos is permitted.

The Gemara gives several options to reconcile these two Beraisa’s:

  1. The stringent  Beraisa is talking about walking on moist grass, which Rashi explains is forbidden, whereas the other is talking about walking on dry grass which Rashi explains is considered as if it has already been uprooted. Perhaps this is because dry grass  does not grow, is no longer deriving much nourishment from the grounded and detaching it might thus not fall under the מלאכה  of קוצר (harvesting) which includes detaching anything from the place where it grows.
  2. The one Beraisa is talking about during the dry season, and the other is talking about during the wet season.
  3. The stringent  Beraisa is talking about someone who is not wearing shoes. Rashi explains that the grass gets stuck around his toes and is easily torn.
  4. The stringent Beraisa is talking about one is who wearing shoes with nails in the bottom which cause grass to be torn .
  5. The stringent Beraisa is talking about walking on long grass which is more easily uprooted.

Though there appear to be some differences in the גירסא  (wording) of the above distinctions, they seem to be conclusively rendered mute by the Gemara that concludes that “today” that we follow Rabbi Shimon who holds that דבר שאין מתכוין מותר, it is permitted under all the above circumstances.

We have discussed multiple times in our posts on Maseches Shabbos the rule of דבר שאין מתכוין- when an otherwise permitted action might result in an unintended  secondary forbidden action.

Although Rabbi Yehuda and the Amora Rav forbid such an action, Rabbi Shimon and the Amora Shmuel permit it, and many Amoraim rule accordingly, including the later authority Rabbah- one of the only 3 times he supports a leniency of Shmuel against a stringency of Rav.

In our case, one wishes to perform the ostensibly permitted action of walking on grass, and there is a concern that while doing so, one will unintentionally transgress a second forbidden action of uprooting the grass

As we also know from various places, when the secondary forbidden action is inevitable, it is known as פסיק רישיה  and even Rabbi Shimon forbids the otherwise permitted action .

As such, it should follow from our Gemara’s application of Rabbi Shimon’s leniency to walking over grass in all these different circumstances that it does not consider uprooting the grass to be an inevitable result even when the shoes have nails in them or where the grass is long! (Alternatively, this could serve as a proof for the view of the ערוך who permits פסיק רישיה דלא ניחה but that is for a different discussion!)

If so, it seems that Rami bar Aba and Rav Assi who applied the passuk in Mishlei to this act, in line with the stringent Beraisa, must have held like Rabbi Yehuda and his view and accompanying דרשה  from the passuk is rejected together with the stringent Beraisa.

A very practical question involves whether this lenient ruling applies to running on grass as well.

On the one hand, the pressure exerted by running on the grass is certainly greater than that exerted by walking, both because of the speed as well as the different mechanism of running.

On the other hand, it is certainly not clear that running on short grass with regular shoes is more likely to uproot the grass than running on long grass with nailed shoes, and if the later is not considered פסיק רישיה, the former might not be either.

In addition, if there was a distinction between walking and running, one would expect the Gemara to make that distinction- it would be a perfect way to reconcile the two Beraisa’s!

One might counter that running is already forbidden on Shabbos as a weekday activity (see Shabbos 113a) but running  to learn, shul  or for the sake of another  mitzva is permitted (see Brachos 6b and Rif’s girsa there) , as is running for עונג שבת   (סמ”ק רפא) , so that argument seems rather mute.

If it was indeed פסיק רישיה  to run on grass on the way to shul, for example, one would expect the Gemara to say so at some point.

The Biur Halacha (O.C. 336/3) however, brings the סמ”ג  (לאוין סה) , who quotes the Yere’im as bringing our Gemara as a proof that one should not walk on grass on shabbos where it is impossible not to uproot it while walking!

He quotes others who questioned these words of the סמ”ג  based on the seemingly obvious fact that the Gemara rejected the view that forbids walking on grass because we follow Rabbi Shimon, implying that it does not consider it to be פסיק רישיה  under any circumstances- after all, this is how most of the Rishonim seem to have learnt the sugya!

He suggests that the סמ”ג  and יראים were bothered by the fact that the Gemara rejected all the distinctions made to reconcile the stringent Beraita with the lenient one, because we follow Rabbi Shimon, but did not reject the derasha of Rabbi Assi that started the discussion.

They therefore assume that Rabbi Asi’s derasha is still upheld and he must be referring to running on tall grass, which is considered to be  פסיק רישיה.

Based on this reasoning, he cautions in  the Mishna Berura (O.C. 336/25)  against running on long grass on Shabbos.

This seems to be quite a chumra, given that it is based on a distinction not made by the Gemara, as well as a novel interpretation of a סמ”ג  and יראים  that we do not see in most of the Rishonim (see Aruch haShulchan 336/21 who indeed rejects this stringency for these reasons,) but it opens the door to the possibility that under certain circumstances, there is a distinction between running and walking, and even when running is permitted on shabbos, for a mitzva or oneg shabbos, it might be problematic where uprooting the grass appears closer to inevitable.

Would the Mishna Berura extend that stringency to other types of running that might be closer to פסיק רישיה  such as running on regular grass without shoes or with nail-studded shoes?

Seeing as his ruling is already novel, and he never mentioned such obvious possibilities, it seems that even if we follow his stringency, we should apply the rule of אין בו אלא חדושו (we do not extend a novelty beyond what is stated,) unless it is clear to us under certain circumstances that there is a case of פסיק רישיה.

These posts are intended to raise issues and stimulate further research and discussion on contemporary topics related to the daf. They are not intended as psak halacha

Eruvin 67 and 68  שבות דשבות  by a non-Jew and a Jew

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Just as it is forbidden for a Jew to perform melacha (forbidden work) on Shabbos, it is usually forbidden for a Jew to ask a non-Jew to perform melacha for him on Shabbos, or to benefit from melacha done for him by a non-Jew on Shabbos, a topic we have discussed numerous times in previous posts.

However, there are exceptions, and one of them is where the melacha is performed for the sake of a mitzva or in the case of great need or suffering- The majority view in halacha is that it is permitted to ask a non-Jew to perform something that is only a שבות  (rabbinically prohibited action) on shabbos for the sake of the above.

As we shall see,  there is much debate regarding the scope of this leniency, with some opinions extending this leniency to any שבות  for any case of מצוה  or great need/suffering, and others limiting it to certain kinds of שבות  and/or certain special מצוות  or situations.

Furthermore, many later poskim extend this concept to any שבות דשבות , allowing even a Jew to perform an action that is only rabbinically forbidden for TWO separate reasons for the sake of a mitzva or in case of great need or suffering, and a minority view of Rishonim who allow one to ask a non-Jew to perform even a biblically forbidden act in such cases.

What all the opinions seem to agree with is that one of the main starting points, if not THE starting point for all these discussions is the sugya on our daf!

1: The Gemara relates how the warm water needed for a child spilled, and Rabbah advised the people to go get more from the house.

They replied that they had not made an eruv chatzeiros (and could thus not carry from his house to the shared courtyard or other house where they were.)

He advised them to rely on theשתוף  (form of eruv done to join all courtyards in a מבוי.)

They responded that this had also not been done.

He then suggested that they get a non-Jew to get more hot water for them.

At this stage, we should already be able to read between the lines and deduce the following about this case:

i.                    The only halachic issue involved was bringing the water through an area that had not been linked by an eruv, in other words a rabbinical prohibition (seeing as עירוב חצירות  and שתוף מבואות  would not help in a biblically defined public domain.

ii.                  Despite this being only a rabbinic prohibition, a Jew was not allowed to bring it even for the sake of the child.

iii.                The usual prohibition of asking a non-Jew to perform a forbidden action on behalf of a Jew did not apply in this case.

What is not clear from the Gemara is

1.      What kind of child this was talking about and what precisely the water was needed for?

2.      Whether the permission to ask a non-Jew to perform a forbidden action for the needs of a Jewish child would apply even to a biblical prohibition or is limited to a rabbinical prohibition like this.

3.      Whether the permission to ask a non-Jew to perform a prohibited action for a Jew is limited to this precise case, applies to any needs of a child, applies to any very important needs, or in the case of rabbinically forbidden actions, applies to any situation.

2: The Gemara proceeds to tell us that Abaya was unhappy with his Rebbe Rabbah’s permissive ruling, and wanted to object, but was constrained by his other Rebbe Rav Yosef.

Rav Yosef learned a golden rule from Rav Kahana, who learnt it from Rav Yehuda:  If one has an objection to a permissive halachik ruling of one’s Rebbe, if the objective involves a rabbinical prohibition, one should first follow the lenient ruling, and only afterwards bring the matter up with him.

Afterwards, Rav Yosef proceeded to ask Abaya what his objection had been.

Abaya replied that he wanted to object based on a Beraisa which compares אמירה לנכרי  (the prohibition of asking a non-Jew to perform a forbidden action for a non-Jew on Shabbos ) to  הזאה  ( sprinkling [the ashes of the red heifer] to purify someone.

The Beraisa tells us that both are  שבותים  (rabbinical prohibitions on shabbos) and do not push off shabbos.

The wording seems a little spurious- seeing as both are שבותים, surely it is is obvious that they do not push off shabbos?

Possibly for this reason, the Rishonim (See Rashi for example) understand that this is even for the sake of  mitzva, for example if erev pesach falls on shabbos and someone needs to be purified in order to be able to bring his קרבן פסח . Furthermore, this is not just any mitzva, but a mitzva whose failure to observe is punishable by kareit.

As such, it seems from Abaya’s objection that the case was one were the hot water was needed for a mitzva relating to the child, and probably a mitzva of similar weight.

There is such a mitzva that relates to a child, and this is ברית מילה!

As such, it know seems probable that this question was not about any needs of any child, but for the sake of the ברית מילה  of a baby, and this is indeed how many Rishonim learn the case, but back to that later.

3: Rav Yosef  replies to Abaya’s objective by making a distinction between a שבות שיש בו מעשה  and a שבות שאין בו מעשה . He backs this up by pointing out that they did not ask the non-Jew to go and heat up more water for the child! (This “proof” is omitted in certain גירסאות  (versions) of the text, something that makes a big difference to the flow of sugya, but that is for a little later.)

It is clear from Rav Yosef’s reply that not all שבותין  are equal- there are some (those that involve an “action” like sprinkling ashes) that are not permitted even for the sake of the great mitzva of ברית מילה  or קרבן פסח , and there are others (those that do not involve an action like telling a non-Jew to bring water through a courtyard that has not been “joined”) that are permitted, at least for the sake of such a mitzva.

What is not clear is what the meaning of the phrase “שבות שיש בו מעשה”  (a rabbinical prohibition of shabbos involving an action) and its opposite are.

There are several possibilities that could spring to mind, among them:

i.                    Perhaps the most obvious meaning of the text is that sprinkling ashes involves a physical action by a Jew, as opposed to telling a non-Jew to perform a forbidden action, which involves only “speaking” by a Jew.

 We know that speaking is not necessarily the same as a physical action, and that there is a debate when it comes to חיוב מלקות  (liability to corporal punishment [which generally only applies for a prohibition involving an action]) whether speaking qualifies as an action (see for example B.M. 90a)

 According to the view that it does not, the distinction here is obvious, but even according to the view that it does, it is possible that this only applies regarding חיוב מלקות  but that a different threshold applies when it comes to being overridden by a mitzva, certainly a great mitzva like this.

If this is the distinction referred to by Rav Yosef, it could be that any prohibition that does not involve an action by a Jew, even if it involves a biblical action by a non-Jew, would be permitted.

This is the view of the בה”ג  and רבינו חננאל – however, it does not seem to fit the “proof” that Rav Yosef brings for his distinction, namely the fact that the non-Jew is not being asked to heat the water for the baby, in others words he was not being asked to perform a biblical prohibition.

This seems so inconsistent with the simple meaning of Rav Yosef’s distinction that these authorities do not have this “proof” in their version of the text (what exactly this means and how it works is a fascinating topic in its own right!)

ii.                  It is possible that  שבות שיש בו מעשה  refers to the rabbinical prohibition of telling a non-Jew to do an actual “מעשה” as in “לא תעשה כל מלאכה”- a biblically prohibited מעשה, which is forbidden even for the sake of a mitzva, just like sprinkling is.

שבות שאין בו מעשה  would then refer to the rabbinical prohibition of telling a non-Jew to perform something which is only rabbinically forbidden as a שבות  and only actually considered “doing a melacha.”

Although creative, and perhaps a little forced, given that Rav Yosef does not refer to  עשית מלאכה  but rather to מעשה, this fits in with the “proof” brought by Rav Yosef, namely the fact that the non-Jew was not asked to perform a biblical melacha act such as heating up hot water for the baby.

This approach is taken by the Rif and quoted by various other Rishonim (see Rashba and Ritva, for example, who raise various difficulties on it, and Rosh on Shabbos Perek 19/2 who accepts it)

It would follow from this that one may NOT ask a non-Jew to perform a biblically forbidden at on shabbos even for a great mitzva like Bris Milah-One may only ask him to perform a rabbinically prohibited action like forbidden carrying though an area that does not involved a biblical public domain.

It is still not clear whether this permission applies to only Bris Milah, the other mitzva subject to כרת  for non-fulfillment, such as korban pesach, other mitzvos defined as מצוה רבה (extra great mitzvos), any mitzva, any situation of great need or distress, or perhaps for any need (Tosfos Gittin 8b limits it to milah) but some basis for permitting שבות דשבות על-ידי עכום  is at least present.

iii.                A third explanation of Rav Yosef’s distinction is that a שבות שיש בו מעשה  is an action that is applied to an object that physically changes it  (the emphasis on the “בו” referring to the object, also not the most obvious reading.)

The prohibition of telling a non-Jew to perform a forbidden action on shabbos might be limited to one that changes the actual object, and not something that simply changes its position. We have discussed in an earlier post (Shabbos 96) how the prohibition of הוצאה  is considered to be  מלאכה גרועה  (inferior melacha) for this reason.

This explanation is brought by the Ritva in the name of הרב החסיד  (usually Rabbeinu Yona [thanks to מו”ר הרה”ג מנדן בלחמן שליט”א  for pointing this out and pointing me to Ritva Eruvin 41b where he indeed brings this in the name of Rabbeinu Yona] )

If this explanation is accepted, the permission to tell a non-Jew to perform a forbidden activity on shabbos even for the sake of a bris would be limited to the melacha of carrying and other things that do not involve change to the item. This melacha might even be permitted even on a biblical level, such as when a real public domain is involved!

What is clear according to all 3 opinions is that we have not yet seen a blanket permission for any שבות דשבות  on shabbos.

At most, we have seen permission even for a Jew,  to perform a שבות  that does not involve a physical action, for the sake of the mitzva of milah, korban pesach,  or its equivalent, and that would include telling a non-Jew to do anything for such a purpose, even if it is biblically prohibited, without the need for a שבות דשבות  at all, and certainly where a שבות דשבות is involved.

According to the third explanation, even a שבות דשבות  like telling a non-Jew to perform a rabbinically forbidden action on Shabbos, even for the sake of a bris milah, would only be permitted if the action does not involve a physical change in the item, and would thus be limited mainly to asking a non-Jew to carry something on shabbos through a forbidden domain.

It is only  according to the second explanation that this sugya could set a clear precedent for the distinction between a שבות  and a שבות דשבות , and even there, there is no proof that this is permitted for anything less than a mitzva of the stature of ברית מילה  or קרבן פסח.

We certainly do not seem to have any precedent for permitting a שבות דשבות  by a Jew himself, even for the sake of a mitzva or great need, in other words allowing a Jew to performing something that is 2 levels removed from a biblical prohibition, and only forbidden because of TWO separate rabbinic prohibitions, for  example, two people turning on a light in an unusual way in order to be able to read a siddur or learn.

In fact, even the second explanation seems to be  based on the difference between something done by a Jew and something done by a non-Jew, and although according to the first explanation, this distinction could be limited to when only one שבות  is involved (such as sprinkling or asking a non-Jew to heat up water,) we certainly have precedent for making this distinction with a שבות דשבות  as well.

Yet, the view of many Rishonim, including the Rambam (Milah 2/9), is that a שבות דשבות involving a non-Jew is permitted for any mitzva  and this seems to be the normative halacha (O.C. 266/5.)

In addition, many Achronim extend this permission to a שבות דשבות  performed by a Jew as well  (including האלף לך שלמה קמו – see Peninei halacha shabbos 9/11 and ג בהרחבות for an impressive  list that also includes the Chazon Ish and Rav Moshe Feinstein zt’l)

Clearly, we have much work to do still on this sugya and/or there are other sugyos and/or sevaros  involved.

A little later on daf 68 is another case with a child that plays a major role in this discussion, as does a fascinating sugya about buying a house in Eretz-Yisroel on shabbos (Gittin 8b.

In addition, a thorough analysis of the principle of אין גוזרין גזירה לגזירה  and the reasons for the prohibition of אמירה לעכום could also be in order,  but that’s it for tonight- Shavua tov and Chodesh Tov!

These posts are intended to raise issues and stimulate further research and discussion on contemporary topics related to the daf. They are not intended as psak halacha.

Eruvin 33 and 34 שבות בין השמשות and Eruv Techumim

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Eruvin 33 and 34 שבות בין השמשות and Eruv Techumim

Our Masechta is starting to move deep into the detailed laws of עירוב תחומין, another type of Eruv that we have not focused on much till now.

In addition to the forbidden melacha of transporting things from one domain to another, there are also limitations on where a person himself may walk on Shabbos.

Though there is no prohibition on walking from one domain to another, there is a prohibition of walking outside one’s תחום של שבת, one’s shabbos domain.

This domain is measured 2000 amos (around or a little less than a km) from the place where one is or intends to base oneself for shabbos, as at nightfall before shabbos.

By default, it is measured from one’s own house, or if in a halachically defined city or enclosed private property, from the halachik boundaries of that city or private domain.

There is a debate on the next daf (Eruvin 35) as to whether the law of תחומין is biblical or rabbinical, but the 2000 Amah domain is very stringent, to the point that if someone leaves this area on shabbos, he might have to stay put within his own 4 amos for the rest of the shabbos!

Clearly, this has a major impact on people who wish to walk from one village to another on shabbos, sometimes even from one suburb to another, if the suburbs have significant open space between them (about 139 amos, which is not very much.)

In suburban neighborhoods with large open yards, this could even affect walking from one house to another, as each house might make up its own תחום!

This also applies to going for nature walks or hikes outside fenced resorts, or even within unfenced resorts.

To address this problem, Chazal allowed one who intends in advance to travel more than 2000 amos but less than 4000 amos from his shabbos base, to make an ערוב תחומין before shabbos.

By placing some food just under 2000 amos away from his base and intending to make that place his symbolic shabbos base, he would be permitted to go anywhere with a 2000 amah radius of where he put his food, rather than from his house.

The disadvantage of doing this, is that his house will now be on or at least closer to the boundaries of his new shabbos domain in the other direction, limiting his walking over the same shabbos in that direction- as such, his shabbos movements need to be planned very carefully.

One of the requirements for the food used for the Eruv is that the food has to be accessible from the place that one makes one’s new symbolic shabbos base.

The Mishna on 32b tells us that If one places one’s Eruv food on top of a tree, this might thus present a problem.

If one’s intended shabbos base is at the bottom of the tree, but the Eruv is more than 10 handbreadths high, and more than 4 handbreadths wide, the part of the tree above 10 handbreadths might form its own private domain.

This means that carrying his Eruv from the top to the bottom, assuming the tree is in a public domain, would be forbidden, and the Eruv would thus be invalid.

The mishna rules that if the Eruv is below 10 handbreadths, the Eruv is valid.

This seems to be despite the fact that an area between 3 and 10 handbreadths above a public domain might be considered a כרמלית (neither a private or public domain) and carrying the Eruv from there to one’s shabbos base at the bottom would thus be rabbinically forbidden.

In addition, there is a rabbinical prohibition against making use of a tree on shabbos, which extends to removing something from it.

As such, regardless of where it has been placed, it should be forbidden to remove it, and the Eruv should be invalid.

The Gemara solves the later problem (and according to Rashi, by implication the former too) by explaining that the validity of the Eruv is based on whether it may be carried to one’s shabbos base during the period of בית השמשות on shabbos eve.

Although its precise time and definition is also subject to much debate, this is generally viewed as the time between שקיעה (sunset) and צאת הכוכבים (the time the stars come out), and is also referred to as ספק חשכה ספק אינה חשיכה , a time when there is a doubt whether it is considered night yet or not.

This means that during this time, it is a doubt whether it is shabbos yet or not.

When it comes to biblical law, it goes without saying that one has to treat this time as if it is shabbos, due to the rule of ספק דאורייתא לחומרא .

Yet when it comes to rabbinical law, it is possible that Chazal followed the general rule of ספק דרבנן לקולא and did not treat that time as shabbos, thus making performing rabbinically prohibited activities (שבותים) permitted during that time.

It is also possible that seeing as Chazal were aware of the ambiguous nature of this period, but did not want to confuse us whether it is shabbos or not, they intentionally applied rabbinical prohibitions during this time as well, making it no longer a question of doubt.

The Gemara explains further that the author of our Mishna follows the view of Rebbe, who holds that Chazal did not impose their own rabbinical shabbos restrictions during this twilight period.

As such, at the crucial time of בין השמשות that determines the validity of the Eruv, the biblical prohibitions of removing something from a tree (or transferring it from a כרמלית to a רשות הרבים) does not apply, and the Eruv is valid!

On 33a, the Gemara brings an explicit Beraisa where Rebbe and the רבנן argue about an Eruv placed at a height of between 3 and 10 tefachim on a tree.

Rebbe is of the view that even though this area is a כרמלית and the Eruv may thus not be moved to the public domain at the base of the tree on shabbos itself, seeing as this rabbinical prohibition did not apply during בין השמשות, the Eruv is valid for the entire shabbos.

The Rabbis disagree, arguing that any Eruv that cannot be moved to one’s shabbos domain, is invalid- the Gemara seems to understand that while they agree that בין השמשות is the definitive time, they hold that these rabbinical prohibitions apply during בין השמשות as well.

This crucial debate is also found on 34b, regarding the same Mishna’s permission to place the eruv in a pit deeper than 10 tefachim, even though it too forms its own private domain.

The Gemara understands that this part of the mishna is referring to a case where one’s chosen shabbos base above the pit is a כרמלית , and that this once again reflects the lenient view of Rebbe that rabbinical restrictions of Shabbos do not apply בין השמשות.

It follows from all the above that according to Rebbe, though biblical prohibitions of shabbos apply from sunset on Erev shabbos, activities that are only forbidden rabbinically remain permitted until dark, which could be extremely useful for those well versed in shabbos laws (and very dangerous for those who are not.)

According to those Rabbis who disagree with him, both biblical and rabbinical prohibitions come into force the moment the sun sets on Friday. (I have assumed for purposes of this post that what we refer to today as sunset is the same as the talmudic concept of שקיעה, something which is in fact the subject of an entirely different discussion.

Given the rule that הלכה כרבי מחבריו, (the law usually follows Rebbe against his colleagues,) it seems likely that his lenient ruling here might actually be authoritative.

However, we need to examine closely at least one other major source on this subject.

This is an explicit Mishna (Shabbos 34a ) which states that during ספק חשכה ספק אינה חשיכה , the twilight period, certain actions forbidden on shabbos are forbidden, but others are permitted.

At first glance, this might seem to support the lenient view of Rebbe.

However, when examining the list, one finds some things that are only rabbinically forbidden on shabbos which one may also not do during twilight!

The list of forbidden things:

  1. separating tithes from ודאי (produce that has definitely or probably not been tithed)
  2. Immersing new vessels (טבילת כלים)
  3. Lighting candles

Whereas lighting candles is clearly a biblical prohibition, separating tithes and immersing vessels seem to be rabbinical prohibitions, yet they are still forbidden during twilight!

The list of permitted things:

  1. Separated tithes from דמאי (produce bought from an ignorant person who has probably but not definitely already separated tithes.)
  2. Making an Eruv
  3. Insulating hot food

The above 3 are all rabbinical requirements.

This Mishna seems to take a view between that of Rebbe and the Rabbis and permit certain rabbinically forbidden actions during twilight but forbid others.

This needs serious clarification, and there seem to be two main approaches to reconciling these Mishnayos amongst the commentators, but that is it for our daf!

These posts are intended to raise issues and stimulate further research and discussion on contemporary topics related to the daf. They are not intended as psak halacha.