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

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

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.

Eruvin 20-21    The פסי ביראות  , public domain, and more on rabbinical laws

One of the main themes of this chapter is the special dispensation that Chazal gave to allow travelers to Yerushalayim for the chagim to draw water from wells for their animals.

The sides of these water-pits or wells were usually too steep for livestock to walk down to and drink, in contrast to people who were nimble enough to do so.

Seeing as the pit or well was surrounded by walls and more than 10 אמות  wide, it was defined as a private domain, and carrying the water from it to the public domain outside was thus forbidden.

To include an area around the well large enough for the animal to stand inside and drink in this private domain, Chazal made do with 4 double posts on each corner.

Each post was 6 handbreadths wide in each of its 2 perpendicular directions, forming a half square or widened L shape.

Although usually a private domain needs to be enclosed by proper partitions, with more closed space than open space, or at least a צורת הפתח, in the case of the special public mitzva of aliya laregel (going up to Yerushalayim for the festivals,) Chazal were lenient.

It seems clear from Daf 20a that this leniency is based on the fact that this method is already an acceptable form of enclosure  on a biblical level, otherwise Chazal would not be able to create such a method on their own to change the status of a רשות הרבים דאורייתא. This goes so far as to make someone who throws someone from a רשות הרבים into this enclosure liable to the biblical penalties prescribed for desecrating the Shabbos.

The implication of this is that the area around the wells is considered a fully-fledged public domain.

We have mentioned a few times already the view of Rashi (Eruvin 6a) that to be considered a public domain, a city needs to have at least 600000 people in it.

It is hard to imagine that the rural villages or city-outskirts where these wells were situated met this definition, which raises considerable difficulty with Rashi’s view.

It is possible that we are referring to the wells outside large population centers which were extremely crowded and busy, but even then, it seems a little far-fetched to imagine 600000 people frequenting them- Even during the busy period of aliya laregel, the population was unlikely to be concentrated in one such location at any time- further analysis is thus needed.

In the earlier dapim of the Masechta, we spent time  examining  the differences between biblical and rabbinical laws, and where they are found in the hierarchy.

We saw that on the one hand, we are usually stricter with biblical mitzvos, something we see all over through various halachik principles, but on the other hand, sometimes Chazal were more stringent with rabbinical laws in order to strengthen their authority.

On daf 21b, we see the incredible drasha of Rava, based on Koheles, that one should be even more careful with דברי סופרים  ( “the words of the scribes”- a term usually used for laws made after the time of Moshe, but itself requiring its own discussion) than with the words of the Torah.

This is because there is a range of positive and negative commandments in Torah, with a range of punishments, but when it comes to דברי סופרים , they are all treated equally severely to the point that העובר על דברי סופרים חייב מיתה  – one who goes against the words of the sofrim is liable to death.

Given that the maximum punishment carried out in court for one who transgresses rabbinical laws was generally מכת מרדות  (lashes for rebellion,) lower on the hierarchy of punishments than the 39 lashes given for biblical prohibitions under the correct strict conditions, this statement seems rather exaggerated, to put it mildly.

We see a similar phrase elsewhere, regarding  one who intentionally puts off saying the evening shema till after midnight, and the attack on Rabbi Tarfon by robbers while sitting to say shema was attributed to his failure to follow the authoritative ruling of Beis Hillel who hold that this is not necessary. )See also the Mishna  Sanhedrin 88b regarding Zakein Mamrei, and the Mishna in A.Z. 29b)

Furthermore, on our daf, we are told the incredible story of Rabbi Akiva who used this principle to justify his risking dehydration in captivity to use the little water he had for the rabbinical mitzva of נטילת ידים!

This extreme example might be the key to how to understand this entire concept- after all, we all know that one is only liable to given up one’s life for 3 of the worst biblical transgressions. We also know that one is often permitted to transgress rabbinical prohibitions even for curative purposes where danger to life is not involved.

This makes it virtually undisputable that this is not a normative halachik concept, but rather an idea, which might occasionally be applied halachically, but whose main purpose is to teach us the pivotal role of rabbinic law in Torah life. Specifically because of the many leniencies Chazal themselves applied to their decrees, it is necessary for them to remind us both in general and in certain specific cases how rabbinical law, routed in Torah law as it is (we will hopefully have future opportunity to discuss in what way this is the case ,) essentially stems  from the same divine authority.

Why Chazal choose to highlight this in certain cases specifically requires careful study, but we will leave that for another time.

Coming back to the issue we raised with Rashi’s view that a true public domain on a biblical level must have 600,000 people at a minimum, perhaps we can relook at the פסי ביראות  and why they need to be already validated as a partition on a biblical level.

Our assumption was that this must be because otherwise, chazal would not have the ability to treat them leniently in the case of the wells.

Perhaps, however, this assumption is not fully necessary?

There are times when Chazal do treat rabbinical laws as strictly or even more strictly than biblical ones. As we have seen above, and even times when the usual rule of אין גוזרין גזירה לגזירה   does not apply ( see גזירה שמט יעלה הים שירטון  as a possible example as well as recently on daf 20a “גזירה שמא יאמרו עירוב מועיל לבין הפסין” )

Perhaps, when it comes to something as novel as creating a new type of partition, Chazal were unwilling to do this even in an area which is only rabbinically treated like a public domain, out of concern that this would become a generally accepted type of partition even in cases they did not intend it to be relied on, maybe even in a real public domain?

This opens the possibility that the typical area around a well might indeed not be a true רשות הרבים  according to Rashi!

The problem is that Rashi himself seems to say explicitly that we are dealing with a true רשות הרבים  and true רשות היחיד-there are also numerous sugyos that imply that we are dealing with a true רשות הרבים  , including on our daf itself- I think that we might be able to work It out, but that’s is for today!

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.

Shabbos 150-151 לפני עור, work done by a non-Jew on shabbos, and שבות דשבות re-examined

On the previous daf, the Mishna taught us that it is forbidden to hire workers on shabbos or to ask one’s friend to do so on one’s behalf.

Although hiring workers does not involve any specific melacha as such, Rashi explains that it goes against the passuk in Yeshayahu (58) which tells us to honor the shabbos and refrain from weekday activities and discussions, namely a “rabbinic” prohibition.

The Gemara ask why it is necessary to forbid asking one’s friend to do so- after all, he is equally obligated in the laws of shabbos!

Rashi understand that because he is equally obligated not to engage in weekday conversation, telling him to do so goes under against the prohibition of “putting a stumbling block in front of the blind,” interpreted by chazal among others things to refer to causing someone to sin)A.Z. 6b.)

It requires some analysis to determine whether one can transgress the biblical command against causing someone to sin by causing him to do something that is only rabbinically prohibited.

It could be argued that a rabbinical sin is not a stumbling-block on a biblical level and one can thus not transgress this prohibition if the sin one causes him to do is only rabbinical in nature.

On the other hand, one could argue that the prohibition is not specifically against causing someone to sin on a biblical level, but on putting a stumbling block in front of him on any level, and a rabbinical prohibition, once forbidden by Chazal, is certainly a stumbling block.

The irony would then be that hiring workers oneself on shabbos might only be a rabbinical prohibition but asking one’s friend to do so would be a biblical prohibition!

The way Rashi understands our Mishna seems to be a proof for this later understanding as he says explicitly that asking one’s friend to hire workers involves the prohibition of putting a stumbling block in front of the blind.

Whether the Gemara itself is a proof for this depends on whether there are any other legitimate ways of explaining why this should so obviously be forbidden.

It is of course possible that Rashi means that he transgresses the prohibition of “putting a stumbling block before the blind” on a rabbinic level, but we would need some precedent for such a thing for this argument to be convincing.

There are indeed times when chazal refer to transgressing a biblical prohibition and mean it on a biblical level (see for example Rashi Sanhedrin 82 regarding נשגז )but for Rashi to claim that this is such an example without saying so explicitly would seem unusual.

Perhaps the act of telling one’s friend to hire workers itself goes against the prohibition of weekday conversation?

However, this is not likely, seeing as the Gemara answers that the Mishna is needed to tell us that even asking a non- Jewish friend to do so is forbidden.

It answers that we already know that too, as it falls under the shvus (rabbinical prohibition) of אמירה לנכרי (asking a non-Jew to perform a forbidden melacha on shabbos.)

If telling someone else to engage in a weekday conversation was also considered weekday conversation, there should be no different between asking one’s Jewish friend or one’s non- Jewish friend

If yesterday we dealt with the general prohibition against telling a non-Jew to do melacha on shabbos, today’s daf deals with work which a non-Jew has done on his own initiative on shabbos.

The rule of the Mishna and accompanying Gemara is that if he performed it for his own benefit or for that of another non-Jew , one may benefit from it, whereas if he did it for a Jew, one may not.

The Mishna gives an example of a non-Jew who brings a reed-based wind instrument on shabbos to play during the eulogies for a Jew who died and is to be buried after shabbos.

It rules that it may only be used if it was brought from inside the techum (area in which walking is permitted on shabbos.

It then discusses a case where a non-Jew dug a grave or made a coffin on shabbos and It is now wanted for burying a Jew after shabbos.

It rules that if it was done for a non-Jew, it may be used for a Jew, but if it was intended for burying a Jew, he may not ever be buried in it.

The general rule coming out of the Mishna seems to be that it is permitted to benefit from a melacha done by a non-Jew on shabbos only if the non-Jew did it for himself or another non-Jew.

If he did it for a Jew, even without being told to do so, it may not be used.

The question is for how long it might not be used: in the first case of the reedpipes, the Mishna does not say that they may not ever be used again for a Jew (though see Rashi who does make this assumption.)

Yet in the second case of the grave/coffin, it says that they may never be used, at least for the Jew they were made for.

Perhaps the distinction lies in the fact that walking outside of the techum is only a rabbinic prohibition according to the view of this Tana (this is a dispute in various places, see Beitza 36: for example.)

On the other hand, making a coffin or grave is a biblical prohibition.

If this distinction is correct, we would conclude that if a non-Jew performs a biblical melacha for a Jew on shabbos, he may never benefit from it, but if he only performed a rabbinic prohibition , he may do so.

However, the assumption that the non-Jew who brought the reed pipe from outside the techum has only performed a rabbinically forbidden act is highly problematic for various reasons.

  1. Even if walking from outside the techum is only rabbinically prohibited, carrying an item from outside also involves the biblical melacha of הוצאה ( transferring something from one domain to another.) – If there was an eruv, there would not be an issue of the techum either.

One could answer that the Mishna is dealing with something brought through a non-built up area that is not defined as a private or public place , but a כרמלית, which too is only a rabbinical prohibition, but one would still be faced with the question why the important factor is whether it came from outside the techum and not whether a biblical or rabbinical melacha of carrying was performed. The Tosfos and other Rishonim deal further with this issue., but I will move on.

  1. We have learnt many times that according to most views, it is permitted to ask a non-Jew to perform an act that is only rabbinically forbidden on shabbos for the sake of a mitzva (שבות דשבות לדבר מצוה) .

We have seen that some later authorities understand that this principle even permits a Jew to himself perform an action that is only rabbinically prohibited for 2 independent reasons for the sake of a mitzva.

If so, seeing as the instrument is being used for the mitzva of כבוד המת (honoring the dead,) a truly great mitzva, and leaving the techum is only rabbinically forbidden, surely it would have been permitted to ask the non-Jew to bring it lechatchila on shabbos to avoid delaying the burial afterwards?

It is true that the Tosfos are of the view that this principle does not apply to any mitzva, but only certain special mitzvas mentioned explicitly such as circumcision and settling the land of Israel, and this could be a proof for this view, but this not the view of most authorities including the Rambam.

  1. In any case, the distinction we suggested between biblical and rabbinical melacha performed by a non-Jew would not survive the Gemara’s discussion of this Mishna.

The Gemara, for a different purpose ( establishing the law in a case where it is not certain if the non-Jew performed the melacha for a Jew or a non-Jew ) compares this to a different case, where a bathhouse is heated by a non-Jew on shabbos for whoever comes.

The ruling in that case is that if the bathhouse is in a place with a non-Jewish majority, we assume that it was heated for non-Jews and a Jew may bath there immediately after shabbos.

If the majority or even half the people the bathhouse serves are Jewish, then a Jew must wait כדי שיעשה (the time it takes to heat the bathhouse) after shabbos before using it.

Heating the bathhouse clearly involves at least one biblical melacha, lighting the fire and perhaps heating the water, depending on the temperature it reaches, yet the prohibition to use the bathhouse is limited to the period of כדי שיעשה and not forever.

Perhaps the real distinction lies in who the object of the forbidden action is going to serve. In a case where the non-Jew had a specific Jew in mind as the beneficiary of his actions, such as the case of the grave or coffin, that Jew may never benefit from his action.

On the other hand, other Jews, may benefit from it after the period of כדי שיעשה, and in a case where he had no specific person in mind, like the bathhouse and possibly the reed-pipes, any Jew may benefit from it after the period of כדי שיעשה .

These issues form the subject of long and major discussions in the Rishonim before the final halacha is determined- I have just come to take you through a preliminary analysis I have done on my own, in order to open the subject for further study.

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.

Shabbos 141-142: טלטול מן הצד- moving Muktza items indirectly and the panic button on the key chain

We have learnt elsewhere in the masechta that it is permitted to move certain types of muktza when one needs them for a permitted purpose, or where the place they occupy is needed for a permitted purpose.

The focus on these daf is how to move Muktza items when neither of those leniencies applies.

This discussion focusses around whether טלטול מן הצד שמיה טלטול, in other words, whether handling something indirectly is considered handling as far as the prohibition of handling Muktza is concerned.

The Mishna on 141b discusses a bed with straw on it that was intended as fuel for a fire.

A person now wishes to move the straw so he can lie on it, but seeing as the straw was not designated as a כלי, the leniency to move a כלי שמלאכתו לאסור for a permitted use or the place it occupies, does not apply.

The Mishna rules that one may not move it with one’s hands, but may move it with one’s body, such as with one’s shoulders.

Rashi explains that this is considered טלטול מן הצד, indirect handling, which is not considered טלטול as far as the laws of Muktza are concerned.

The Gemara brings a related ruling of Rav Nachman regarding a radish buried in the ground.

It was common practise to take whole, harvested vegetables, such as radishes, and bury them in the sand to preserve them during the dry summer.

Rav Nachman rules that if the raddish has been buried with its narrow top facing down, one may pull it out by its wider bottom, seeing as one will not be displacing any sand while doing so.

On the other hand, if the raddish was buried with its wider bottom facing down, one may not pull it out by its narrower top, seeing as it will be moving sand out of the way, which is Muktza.

The Gemara questions this ruling based on our Mishna.

Seeing as the person is not moving the sand directly, but it simply pulling out the vegetable, this

Should be considered טלטול מן הצד and should be permitted, as with the straw in the Mishna.

In light of the above, the Gemara concludes that the halacha is not like Rav Nachman and that this is permitted even if sand is moved out of the way while pulling out the vegetable.

We have various other examples of this leniency in the first few mishnayos of the new chapter on Dapim 141-142.

The Mishna rules that a person may carry a child with a stone in his hand, even though the stone is Muktza, in an enclosed courtyard (see Rashi) – this also seems to be an example of indirectly handling the Muktza stone while moving something that is not Muktza (the child.)

On Daf 142b, the Mishna permits one to tilt a barrel of wine over in order that a stone sitting on top of it will fall down, yet another such example.

Back on Daf 43a, there is a dispute regarding what to do with a corpse that ls lying out in the sun on Shabbos, given that it is Muktza

We should recall that moving a Muktza item for its own protection (מחמה לצל) is not usually an acceptable reason for moving Muktza items- yet human dignity also dictates that something must be done to prevent the corpse from rotting.

Rav Yehuda in the name of Shmuel rules that it may be rolled from bed to bed, seeing as this is indirect handling, and thus permitted.

Rav Chanina bar Salmai in the name of Rav, on the other hand does not allow this, and suggests an alternative solution.

It seems to follow that unlike Shmuel who permits טלטול מן הצד, Rav forbids it.

The Gemara brings a מחלוקת תנאים (tannaic dispute) regarding whether one may move a corpse on shabbos in order to save it from burning in a fire- the Tana Kama forbids it, whereas Rabbi Yehuda ben Lakish permits it.

It suggests that this is also a dispute regarding whether טלטול מן הצד is permitted or not, but rejects this suggestion, and says that both Tannaim could hold that טלטול מן הצד is usually forbidden, but that Rabbi Yehuda ben Lakish made an exception for a corpse so that the relatives don’t come to extinguish the fire instead.

It seems from this that the Gemara has concluded that טלטול מן הצד is forbidden.

Furthermore, even if the gemara was simply giving an alternative explanation of the tannaic dispute, but not completely rejecting the possibility that they could be arguing about טלטול מן הצד, there is still clearly a dispute about it, and Rav appears to forbid it- the halacha usually follows Rav in disputes against Shmuel in everyday halacha.

Tosfos raises an even larger difficulty that this places Rav in contradiction with himself, as on our daf (141,) it is the house of Rav that proves from the Mishna that טלטול מן הצד is permitted!

When examining these cases carefully, one can see that although they have much in common, there are also some differences:

  1. In the case of the straw, the straw is moved in an unusual way, namely with one’s shoulder rather than one’s hand, but not in the course of moving a non Muktza item it is attached to.

In the case of the child and the barrel of wine, the stone is moved indirectly, in the course of moving a non muktza entity(the child or barrel)

In the case of corpse, it is not clear what type of טלטול מן הצד is employed, moving it directly with an unusual part of the body, or moving it with a bed.

  1. In the case of the child and barrel of wine, one’s intention is to move the child or access the wine in the barrel, not to move the muktza item (the stone,) which is simply moved as a secondary effect of moving the non muktza entity.

In the case of the corpse, the intention is to move the muktza item itself, namely the corpse.

In the case of the straw, it is not completely clear whether one is moving the Muktza item (the straw) in order to make it spread out evenly and be comfortable to lie on, or whether one is moving it out of the way so he can sleep on the non Muktza item(the straw)

It is interesting that Rashi on Daf 43b defines טלטול מן הצד as כלאחר יד, a back-handed manner, the term normally used for performing a forbidden action with a שנוי (in an unusual manner.)

This would make this leniency an extension of the exemption from punishment for performing a forbidden melacha in an unusual manner, going a step further and permitting it completely when it comes to handling Muktza items in a רשות היחיד (private domain,) which is only rabbinically prohibited.

It would still be a חדוש as we do not generally permit a שבות דשבות (something forbidden only rabbinically for 2 independent reasons) for any reason whatsoever, but just for the sake of a mitzva (like bris milah), and even there, the scope of the leniency is subject to debate- see earlier posts on שבות דשבות.

Back to the contradiction in sugyos and the opinion of Rav, the Baalei Tosfos and the Rosh both suggest that there is a difference whether the טלטול מן הצד is performed for the sake of the Muktza item, or for the sake of the non Muktza item.

In the case of the corpse, it is performed in order to bring it into shade, namely for the sake of the Muktza item, and is thus forbidden according to Rav.

In the cases on our dapim, it is done for the sake of the non Muktza entities, ie the bed, the child, or the barrel, and is thus permitted.

This distinction seems to based on the assumption that in the case of the straw, one is moving the straw for the sake of the bed, not in order to make the straw more comfortable to lay down on, a point noted by Rabbeinu Yona and the Rosh.

Although there are different approaches in the Rishonim as to the definition and scope of טלטול מן הצד , the distinction made by the Tosfos forms the basis for the generally accepted halacha that it is permitted to move a Muktza object together with a non Muktza object, only if one is doing so for the sake of the non Muktza object, and not if one is doing so for the sake of the Muktza object.

In some countries where violent crime is unfortunately common, it is common for people to have panic buttons that link to a security company when pushed.

These buttons are often put on one’s keyring together with one’s keys.

Assuming that the panic button is muktza, and that the danger is not at the level that constitutes pikuach nefesh (neither which should be assumed,) would it be permitted to carry the key-chain around inside an Eruv even though one is inevitably moving the panic button with it?

It seems from the above as seeing that it is impossible to remove the panic button without handling it directly by simply shaking it off, this should be a classic example of handling a muktza item (the panic button) indirectly while directly handling a non muktza item that one needs (the key.)

As such, it should be permitted even if the button is indeed muktza and the criteria of pikuach nefesh do not apply.

Obviously, if there is indeed no concern for pikuach nefesh while going out, it would be better to remove the button before shabbos, and seeing that there is a strong argument for pikuach nefesh in any case, this leniency might be rather spurious.

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.

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….

Shabbos 130-131 Shabbos מכשירי מצוה ,Corona,and drawing the line

Shabbos 130-131 Shabbos מכשירי מצוה ,Corona,and drawing the line
Our Daf starts a new Mishna and a new chapter, but it is connected to the last Mishna of the previous chapter which taught that all actions that form an essential part of the process of מילה  (circumcision,) may be performed on shabbos, when the bris is performed on time, namely on the 8’th day.
In this Mishna, Rabbi Eliezer, and Rabbi Akiva dispute to what extent this permission goes.
Rabbi Eliezer goes further than the previous mishna, and rules that not only may one perform all essential parts of the circumcision process, but also preparations for the process, such as bringing the knife through a public domain, or even cutting wood to burn into coals in order to burn the knife before use, if one did not do so before shabbos.
Rabbi Akiva, on the other hand, rules that any preparation that could have been done before shabbos, may not be done on shabbos, and only things which could not be done on shabbos, may be done on shabbos.
Rashi explains that Rabbi Akiva holds that only things that are directly part of the circumcision process may be done on shabbos, seeing as the process itself can only be done on shabbos, but things are preparatory to the process, known as מכשירי מילה , may not, seeing as they can be done before shabbos.
It seems from the way that Rabbi Akiva makes this distinction, that he limits  the definition of the circumcision process itself to things which can only be done on the day of the circumcision, and considers everything else to be in the category of מכשירי מילה  (preparation for the circumcision process), which is not permitted.
On Daf 131a, Rabbi Eliezer goes further and incredibly extends this permission to transgress shabbos in order to prepare for   most other  mitzvot that apply biblically on shabbos, such as lulav, matza, and shofar, though not for writing tefillin and mezuzot!
We have a similar debate regarding performing melacha for food purposes on Yom-Tov (Megila 7b)- The Tana Kama holds that that one may only do melachot that are part of the food preparation itself, such as slaughtering an animal or lighting a fire, but not to source or prepare objects needed for this process, such as sharpening a knife or chopping wood.
In contrast, Rabbi Yehuda holds that one may even perform מכשירי אוכל נפש, melachot need to prepare for the food-preparation process on Yom-Tov.
Unlike Rabbi Eliezer regarding מכשירי מילה, though, Rabbi Yehuda limits this leniency to preparations that could not be done before Yom-Tov.
Later in our perek (Shabbos 137b,) the Gemara indeed says that Rabbi Eliezer holds like Rabbi Yehuda but goes even further than him and permits even preparations that could not be done before-hand.
All these opinions based themselves on Pesukim, and it is not clear that the two debates are logically connected to one another but let us at least examine the possibility that these are indeed connected conceptually.
According to Rabbi Akiva regarding מילה and the Tana Kama regarding Yom-Tov, only things directly part of a normally forbidden action that has been permitted by the Torah, are included in the permission. According to Rabbi Eliezer regarding מילה   and Rabbi Yehuda regarding Yom-Tov, even preparatory actions for the permitted act are allowed.
How do we determine whether it is part of the action, or simply preparatory?
According to Rabbi Akiva, Things which can be done only on the day of the permitted action itself, are considered part of the action itself and permitted, whereas things that can be done the day before are not considered part of the action itself, but rather preparatory to the action, and may not be done.
Rabbi Eliezer either agrees that things that can be done before shabbos are not considered part of the action, but rather preparations, but permits preparations too, or holds that even preparations that can be done before shabbos are considered part of the permitted action and may thus be done.
Regarding yom-Tov, the debate seems somewhat different.
Both Chachamin and Rabbi Yehuda agree that actions  preparatory to the food production process  that could have been done before Yom-Tov  are not permitted, and both agree that things that could not be done before Yom-Tov, are considered preparatory and not part of the actual food production process.
Their argument is not about what is considered part of the actual process and what is only considered preparatory, but only about whether such preparations that can only be done on Yom-Tov are permitted on Yom Tov , and is based on how they interpret the pesukim in that context.
whatever we conclude, in both cases, we see that the more stringent opinions draw the line long before the more lenient opinions in terms of the scope of what the Torah permits.
This is not surprising, as if this were not done, one leniency could lead to another, and one could land up spending the whole shabbos or Yom-Tov doing melacha.
If we follow Rabbi Yehuda and permit מכישירי אוכל נפש that can only be done on shabbos, what is to stop us permitting מכשירין דמכשירין (preparations for preparations) or permitting מכשירין that can be done before shabbos?
Yet despite this concern, the view of Rabbi Yehuda was accepted on Yom-Tov, whereas the extreme leniency of Rabbi Eliezer on shabbos was not. (see relevant sugyos)
Once again this seems to be based primarily on his status as a שמותי, explained by Rashi to mean either of the school of Beit Shamai, which we do not follow, or someone in שמתא (excommunication,) due to his refusal to accept the majority view of Sanhedrin in the famous argument over the stove of Achnai (Bava Metzia 59b.)
Yet there are times that despite this, we do rule like Rabbi Eliezer, and perhaps there is also an underlying logical reason his view was rejected as well.
Perhaps, the slippery slope is indeed a factor here- if we go so far as to allow one to cut wood in order to burn coals in order  to  forge a knife, which he indeed permits, what is to stop us allowing a person to perform any melacha in order to get paid in order to buy the knife, effectively destroying the entire shabbos?
Even in matters of pikuach nefesh, and avoiding dangerous situations, we have seen that Chazal have drawn the line at certain points.
Where the chances of danger to life are negligible and there is no limit to how much melacha one can do to avoid such negligible chances (like running around killing wasps on shabbos,) Rav Huna places limits on pikuach nefesh (Shabbos 121b.)
When an everyday activity that involves a small risk has been accepted by society as a normal part of life (דשו בו רבים ), we have seen that such risks can become halachically acceptable- if we don’t draw a line somewhere, we would need to spend all day locked at home forever, and even that has its dangers(Shabbos 129b.)
Every leniency or stringency must be constantly balanced in order to prevent other key values from being unproportionally affected, and to prevent a slippery slope.
During the current Corona plague, we are constantly faced with the question of how far to go to contain it.
If we go to far, we can land up stopping normal living entirely and create even greater economic, social, educational, spiritual and psychological dangers.
If we do not go far enough, we risk countless deaths and the ultimate destruction of the health system and economy as well.
For example, when we give people space to go out as long as they keep a 2 meter distance between one another and wear masks, they decide that they do not need to wear masks if they keep a distance, or to keep a distance when they are wearing masks.
Some decide that neither precaution is necessary.
When we open schools with no distancing on condition that masks are worn, we land up relaxing the need for masks when the weather is too hot, and that causes the next wave of the plague.
The Torah always implores us to strike the right balance, and Chazal are tasked with working out exactly where and how it does so. We need to try and do our best to follow their example.

Shabbos 129     Safeik Pikuach Nefesh

Our Daf deals with the question when a nursing woman is permitted to eat on Yom Kippur.
Unlike a pregnant woman , one who is in the birthing process or immediate post-birth process, a woman who has recently given birth and/or is nursing is considered to be in immediate danger and is not always exempted from fasting.
In this regard, Rav Yehuda quotes Shmuel who says that as long as the womb is still considered “open”, we insist that she eats whether she says that she needs to or not. Thereafter, whether she says that she needs to eat or not, we do not feed her, the assumption being that it is no longer dangerous for her to fast.
The Gemara notes that this is only the version of his ruling that Rav Ashi taught.  However, Mar Zutra had a different version of this ruling, whereby even after the womb has closed, we feed her for as long as she says that she needs to eat.
Ravina asked Mereimar which version of the ruling is to be accepted, and he told him that we follow the lenient ruling of Mar Zutra, seeing as ספק נפשות להקיל  (we are lenient in case of any doubt regarding danger to life.)
At first glance, it might seem from this that Rav Ashi rejects the view that in case of doubt of danger to life, we are stringent, and do not desecrate the shabbos, and that we only desecrate shabbos in a case of certain danger.
However, it is very difficult to accept that this is indeed his view, given the well-known and universally accepted view amongst earlier authorities that in case of any real doubt of danger to life, we are always lenient.
For example, the Mishna (Yoma 83a)  brings the   rule of Rav Matya that if someone might have  been covered by a rockfall, or might still be alive, we desecrate shabbos to free him, because ספק נפשות להקיל and the Gemara concludes that no one disputes this.
In addition, it is clear from the sugya there that even when most experts (including the patient) say that an ill person need not eat on Yom Kippur, we follow 2 who say that he does, and where the patient and doctor disagree, we always follow those who says he needs to eat.
It seems hardly likely that one of the latest and most authoritative Amoraim would rule against all of that.
It thus seems more plausible that Rav Ashi agrees in principle with the rule of ספק נפשות להקיל  but holds that after the womb has closed, there is not even a doubt anymore- we can assume she is not in danger.
However, this puts this into the irreputable category of a מחלוקת מציאות  (debate in a factual matter which can easily be researched)- surely both Rav Ashi and Mar Zutra were able to gather enough cases where nursing women were endangered by fasting to either both see at least some doubt or both agree that there is no real concern?
The next step in the yeshiva-style lomdus (analysis) would usually be to show how the argument is not about facts but about how the halacha relates to the facts.
We could suggest that both Rav Ashi and Mar Zutra agree that there is a small danger involved at this stage but differ as to whether this degree of danger is indeed considered a valid ספק halachically.
At the end of the day, there is always some small risk to anyone who fasts, yet nobody suggests that no one should ever fast because of this concern- it is clear from the fact that the Torah requires a regular person to fast that such risks are not only acceptable, but are meant to be taken for the sake of the Mitzva of fasting.
We have also seen the view of Rav Huna (Shabbos 121a) who disagrees with his son, Rabbah bar Rav Huna’s disapproval of those who are “pious” and do not go round killing snakes and scorpions on shabbos, because the risk is small and there is no end to how much time we can spend killing wasps and the like on shabbos.
As such, we are forced to conclude that there is a line somewhere between what is considered a reasonable though doubtful concern for saving life, for which we certainly desecrate Shabbos and other Mitzvos , and far off and never-ending concerns which are not sufficient reason to justify doing so- After all, if we took all far-fetched concerns into account, it would lead to a situation where shabbos in constantly being desecrated out of paranoia.
It is in this grey area between reasonable concern and exaggerated concern that there is room for debate- everyone has to draw the line somewhere, and just as Rabbah bar Rav Huna and Rav Huna drew it in different places, so do Rav Ashi and Mar Zutra.
Although  the criteria are not necessarily the same,  this trade-off has relevance to another common question, namely what level of risk is one permitted to take in the course of normal living? – one of the main springboards for this question is the sugya of דשו בו רבים  on the other side of our daf, which I hope to have time to address in the future, Hashem willing.
It is also possible that given that the level of risk is in a grey area, even medical experts might have different views on the subject, and different surveys or other sets of evidence could lead one to different conclusions, something we have seen so much lately during the endless debates amongst experts in medicine, virology, epidemiology, statistics, and pretty much everything else.
As such, there is also room to say that Rav Ashi and Rav Zutra do indeed differ enough regarding the facts, and not just regarding where statistically the halachik red line is drawn.
Many of us, myself included, are often frustrated or annoyed at the amount of seemingly ridiculous halachik questions going around regarding pikuach nefesh- after all, we have always been taught this rule of ספק נפשות להקיל – in other words, if you have any doubt, just assume its pikuach nefesh and act accordingly.
Although in situations when one does not the time to ask questions and wait for answers before acting, this dictum remains the golden rule, we have seen from the above that there is indeed a grey area or very fine line between real concerns and halachically insignificant ones, and there is thus still certainly room for some give and take on the subject, when, and only when, there is no immediate urgency to act- תורה היא וללמוד אני צריך!

Shabbos 124-125 The reason for the laws of “Muktza”, and other “Muktza” related ideas.

A lot of time is spent in this chapter, among other places, discussing the different categories of “Muktza” and their complex laws.
These involve mainly restrictions on moving items that are not set aside for use on shabbos, for various reasons.
Yet what exactly are the reasons for this myriad of rabbinical restrictions?

On our daf, there is a dispute between Rabbah and Rava as to which categories of items may be moved on shabbos, for different reasons.
Without going into the entire debate, Rava expresses the view that according to Chachamim, a דבר שמלאכתו להתיר (something whose main purpose is permitted on shabbos), may be moved for any reason whatsoever on shabbos, and a דבר שמלאכתו לאסור may be moved לצורך גופו ( if it is needed for a permitted purpose,) לצורך מקומו (if one needs the place that it occupies), but not מחמה לצל (for its own protection.)

Abaya challenges Rava with a Mishna (Beitza 32b) that forbids one to support a pot with a piece of fire- wood.
Firewood is a דבר שמלאכתו להתיר on Yom-Tov, yet we see that it may not be handled even for another permitted use, let alone for the sake of its place or protection!
גזרינן יום-טוב אטו שבת

After a failed first attempt at resolution, The Gemara says that firewood is different because it is a כלי שמלאכתו לאסור on shabbos.
Chazal thus forbade using it for another purpose on Yom Tov in case one comes to use it for a permitted purpose on Shabbos as well. (this in itself seems strange given that it looks like a גזירה לגזירה, but as usual, we have to leave that for another post someday.)

Even though using a דבר שמלאכתו לאסור for a permitted purpose is allowed on Shabbos as well, according to Rava, the Gemara explains that this is only the case if it has תורת כלי (the status of a useful vessel, which a plain piece of wood does not have.)
Something usually used for a forbidden melacha that does not have the status of a כלי may not be used on shabbos even for a permitted purpose.

This in itself is a big chiddush (novel idea) given that the phrases used until now have not been כלי שמלאכתו להתיר and כלי שמלאכתו לאסור but simply דבר שמלאכתו להתיר and דבר שמלאכתו לאסור.
Be that as it is, we see from here that there are times that Chazal forbade things that would ordinarily be permitted on Yom Tov, so one doesn’t come to do them on shabbos. (a phenomenon that needs clear boundaries, given that there are certainly things permitted on Yom Tov that are forbidden on shabbos.)

The Gemara questions the idea that Chazal forbade doing things on Yom Tov because of Shabbos: There is an explicit Mishna that allows one to lower fruits that have been drying out on the roof through a skylight on Yom Tov in case of rain , but not on Shabbos. (the exact issue with this requires further analysis, but it appears from Rashi to have something to do with the exertion involved in it.)

The Gemara immediately brings a counter proof that Chazal do indeed forbid things on Yom Tov because of shabbos, from another Mishna (Megillah 7b) which states that the only difference between Shabbos and Yom Tov is that on Yom Tov, melacha needed for the preparation of food is permitted. This implies that other things not needed for food on Yom-Tov, are forbidden, even if done with something that is a כלי שמלאכתו להתיר on Yom-Tov but not on shabbos.

The Gemara makes several attempts to reconcile the various texts that imply that Chazal made decrees forbidden otherwise permitted things on Yom-Tov out of concern for Shabbos.
After an initial failed attempt, the Gemara answers that these different Mishnayot reflect the famous argument between Beis Hillel and Beis Shamai regarding the rule of מתוך.

Beis Shamai holds that even a melacha which is permitted because it is usually performed for the sake of food preparation may only be done for the sake of food, but not for other needs.

Beit Hillel holds that מתוך שהותרה לצורך הותרה נמי שלא לצורך – this means essentially that once a category of melacha is permitted because it is normally associated with food preparation, it becomes permitted for any legitimate Yom Tov need.

For example, lighting a fire is not permitted only for cooking, but also for warming the room or heating water for permitted washing (though rabbinically it may only be lit from an existing flame.)

It follows that Beis Shamai could forbid any handling of items on Yom Tov that are not for the usual purpose of the permitted melacha, namely food preparing, particularly (and perhaps only) whereas Beis Hillel would permit it.

The Mishna that forbids using firewood for another permitted purpose other than cooking thus represents the view Beis Hillel, as does the Mishna which says that the only difference between Shabbos and Yom-Tov is melachos needed for and associated with food preparation.
The Mishna that permits lowering fruit on Yom-Tov but not on Shabbos reflects the view of Beis Hillel.
The Gemara then points out that we have indeed seen that Beis Shamai is stringent about not performing a permitted biblical melacha on Yom Tov for a purpose other than food.

Yet we have not found that they are similarly stringent about the rabbinical prohibition of טלטול (merely moving/handling items in a permitted domain) to the point that he forbids moving them for a purpose other than food.
אסור מוקצה היא גזירה אטו אסור הוצאה

The Gemara concludes that seeing as טלטול itself is משום הוצאה (because of the melacha of taking something out,) Beis Shamai forbade even handling items that one is permitted to use for food, for non-food purposes.
The simple explanation of this seems to be that the entire reason for the rabbinic prohibition of handling Muktza is in order to prevent one from transferring an item he is carrying from one domain to another- in other words , a סייג (fence) or גזירה (decree) אטו הוצאה (because of the melacha of הוצאה.)
As such, anything that one is forbidden to transfer on Yom Tov or shabbos may also not be handled, except for purposes Chazal made allowances for.
As transferring firewood for anything other than food-related needs is forbidden on Yom-Tov according to Beis Shamai, it follows that handling anything other than for its normal permitted purpose is as well.
As Beis Hillel permits transferring any item for any Yom-Tov need on Yom-Tov, they also permit handling it for any purpose.
On Shabbos, when everyone agrees that transferring any item from one domain to another is forbidden, everyone also agrees that handling it is too, unless it is for a permitted purpose.
After quite a long introduction during which we learnt some other important principles, such as the requirement for a דבר שמלאכתו לאסור to be a כלי in order for it to be moved לצורך גופו ולצורך מקומו, and the rule of מתוך on Yom-Tov, we seem to finally have discovered the reason for the decree of Muktza!
This is indeed the way the Ritva understands the Gemara, and though slightly more open to interpretation, Rashi seems to take this approach as well.
שיטת הרמב”ם- The Rambam’s approach
The Rambam, however (Shabbos 24/12-13) suggests several reasons for the prohibition of moving Muktza:

  1. So that one does not handle items the way one does during the week, and land up spending shabbos moving items around.
  2. In the case of a כלי שמלאכתו לאסור, to prevent one from using it for a forbidden melacha.
  3. So that people who are unemployed and hardly do melacha during the week will also have a way of making shabbos special
    Yet the one reason the Gemara brings explicitly, the Rambam seems not to mention!
    The Raavad points this out, and in his usual way, disagrees with the Rambam and accepts the reason given in the simple meaning of our Sugya- that it is simply a decree designed to prevent the melacha of הוצאה.
    Why does the Rambam bring 3 relatively creative reasons of his own and seemingly ignore our Gemara? Did he interpret it differently to us, or does he simply have a contradictory sugya elsewhere that he considers to be more authoritative? Any feedback is welcome.

What is Melacha?

We have learnt before that although the Torah forbids performing any melacha on Shabbos, Chazal derived from the proximity of the prohibition to the work of the Mishkan that only those actions that were done in the process of the mishkan(avot melacha) and things similar to them (toladot) are including in the prohibition.
Does this mean that there are some types of melacha which remain permitted on Shabbos, or that any action that doesn’t fit into the above criteria simply isn’t considered a melacha at all?
There is much to discuss, but it does seem from the Mishna on Daf 124b, that there actions which are called “melacha” but still permitted on shabbos.
The Mishna tells us that one may handle pieces of broken vessels on Shabbos, so long as it is done מעין מלאכה , for the sake of some “melacha.”- in this case, it still has a valid purpose on shabbos, and is not considered “Muktza.”
Rabbi is stricter, and requires that it can still be used for something similar to the “melacha” it was fit for before it broke, such as using a broken pot-cover to cover something smaller- otherwise it is forbidden, (possibly as form of “Muktza” known as “nolad”- see the rest of the daf and daf 125 for the full discussion)
Either way, we see that certain actions performed on shabbos, such as using a lid to cover a pot, are indeed referred to as “melacha” even though they do not fit into the categories of forbidden “melacha”, and are clearly permitted on shabbos!
Whether this is “simply” semantics, or has greater ramifications, invites further analysis.

Shabbos 122 and 123       When and how Muktza items may be moved

It is known that one of the most far-reaching rabbinical decrees pertaining to Shabbos is the prohibition of picking up/carrying article which are defined as מוקצה (set apart from use on shabbos.)
Items which are appropriate and have been set aside, either specifically, or by default, for use on shabbos may be handled within a רשות היחיד (private domain.)
However, anything defined as מוקצה on shabbos may not even be handled within such an area.
There are various opinions offered as to the reason for this prohibition, but that will be left for a possible future post.
On our daf, we see a number of categories of Muktza, and a number of different reasons for moving Muktza, some of which might be permitted for some of these categories but not for others.
The three main categories that we see on this daf are as follows:
דבר שמלאכתו להתיר – A vessel normally used for an action which is permitted on Shabbos.  Although this is not really a category of Muktza per se, our daf does make reference to the stringent view of Rabbi Nechemya that even such a vessel may only be handled when needed for its permitted purpose, not when there is no such reason for doing so.
כלי שמלאכתו לאסור  – a vessel normally used for a melacha which is prohibited on Shabbos
דבר שמקפיד עליו  -something of
value one looks after extra carefully.
 (this is also referred to  as מוקצה מחמת חסרון כיס- see Shabbos 157a)

There are also a number of reasons that one might move a muktza item, each with their own set rules:
שלא לצורך כלל  – for no particular constructive reason
מחמה לצל – in order to protect it  (literally moving it from the sun into the shade)
לצורך גופו  – when one wishes to use the item itself for a permitted purpose.
לצורך מקומו – for the sake of its place- when one needs the space it is occupying for a permitted purpose  (provided that space is not defined as a בסיס לדבר האסור [base for a forbidden item], a different topic.)
The Mishna on 122b lists a number of items that may be used for various purposes on Shabbos, despite the laws of Muktza.
One of them is a hammer, which may be used for cracking nuts.
There is a dispute in the Gemara between Rav Yehuda and Rabbah regarding what type of hammer is referred to in the Mishna.
Rav Yehuda claims that it is referring to a hammer usually used for cracking nuts, which is a כלי שמלאכתו להתיר and thus may be used, at least for its intended permitted purpose.
Rabbah points out that our same Mishna permits using a winnowing shovel or pitchfork to pass food to a child on, and these instruments are only made and bought for performing forbidden melachot with them.
As such, Rabbah concludes that the hammer referred to in the Mishna could even be a smith’s hammer, which is clearly a כלי שמלאכתו לאסור.
We conclude from there that it is permitted to use a כלי שמלאכתו לאסור for a permitted purpose!
The Gemara a little later brings a Beraita to question this leniency.
Beis Hillel and Beis Shamai argue whether it is permitted to use an עלי (evidently a type of important vessel) to cut meat for the sake of Simchas Yom Tov.
Yet both agree that once the meat has been cut, it may no longer be used for another permitted purpose.
This seems to imply that in the absence of the special leniency of simchas Yom Tov, using something normally used for a forbidden purpose is forbidden even when one uses it for a permitted purpose, against Rabbah’s conclusion.
The Gemara answers that this instrument is different, as it is more like סיכי זיירי ומזורי (which Rashi identifies as specialist tools used by painters, or alternatively specialty weaving tools), which a person takes pains to look after and sets aside a special place to store. (see also Tosfos who quotes the Aruch’s translation(one of the most important  linguists amongst the Rishonim).
It follows that special instruments of value that a person is particular to look after and store in one place are treated as a more serious form of מוקצה and may not be used even for a permitted purpose.
The Gemara further records a debate between Rabbi Chiya bar Abaya quoting Rabbi Yochanan and Rav Shemen bar Ada regarding what type of hammer the Mishna permits one to use.
Whereas both agree that a hammer used for beating gold may be used for permitted purposes, even though it is a דבר שמלאכתו לאסור, Rabbi Yochanan is of the view that a hammer used for pounding spices (the forbidden melacha of grinding) may not be used even for  a permitted purpose, seeing as a person is particular about it.
Yet the primary source for the prohibition of using מידי דקפיד עליו (something one is particular about), can be found in the second Mishna on amud bet.
There, Rabbi Yossi tells us that any vessel may be used for a permitted purpose on shabbos, with the exception of a large saw and the peg (blade) of a plough, presumably because they are  particularly valuable or fragile items that the owner is particular to look after.
The Gemara seems to understand that Rabbi Yossi is not referring to these 2 items only, but uses them as examples of anything that fits into the category of things used for a specialised purpose that the owner takes great care with.
We thus have 3 primary sources for the stringency applied to items that one is particular with:
1.      The Beraisa where Beit Hillel agrees that an עלי many only be used until the meat has been cut, and the Gemara’s understanding that this is similar to the special painter’s tools (as explained by Rashi.)
2.      The view of Rabbi Yochanan, disputed by Rav Shemen bar Ada, that a hammer used for spices may not be used on shabbos at all.
3.      The Mishna (as interpreted by the Gemara) which permits using any vessels on shabbos except those that one is particular about.
At first glance, these 3 sources all seem to be saying the same thing, to the point that we need to understand
1.      Why the Gemara brought the Beraisa to query the lenient ruling of Rabbah rather than an explicit Mishna
2.      How Rav Shemen bar Ada could disagree with an explicit Beraisa AND Mishna.
Yet, when one looks more carefully, it appears that there are different categories of things one is particular about, and Rashi actually seems to define them differently.
There are things which one is so particular about that one usually  does not allow them to be used for anything but their intended professional purpose.- this seems to be the category discussed in the Mishna, which everyone agrees may not be used at all on Shabbos.
There are things which one might allow to be used for another purpose, but which one is careful enough to keep in a special place while not being used- This is the case discussed in the Beraisa.
Then, there are things which one might not be particular enough about to dedicate a special place for, but which one does not use for other purposesד in case they get dirty or disgusting, such as the hammer used for pounding spices (see Rashi who makes this point  and the Ritva who has a different version of the Gemara and holds that one is more particular about a gold hammer than a spice hammer.)
Perhaps, this is what Rabbi Yochanan and Rav Shemen argue about- the both agree accept the basic stringency of דבר שמקפיד עליו , but differ as to the extent of its application.
This is just an initial analysis, and a study of the Rishonim will reveal that it is not so straight forward and there are many ways to approach this, but that’s it for today….
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.