Tag Archives: מוקצה

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 101-102 bolting the door, minhag, and the new Rav in town

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In our earlier post on Eruvin 74-75, we discussed the situation where a community had received a lenient ruling which it followed and was later given a more stringent ruling by a new authority.

We noted the ruling of the Rema that a new Rav may indeed repeal the lenient ruling of a previous Rav, and that this might also apply to repealing an earlier stringent ruling.

The later might be more problematic, given the general rule (Pesachim 51a ) that דברים המותרים ואחרים נהגו בהם אסור אי אתה רשאי להתירן לפניהם  – things that are permitted but others were accustomed to forbid, one is not permitted to permit in front of them.

If this is the case for a stringency that a community took on by itself, how much more so should it be the case for something which they took on because of a ruling from their previous Rav!

In our Misha at the bottom of Eruvin 101, there is an explicit reference to a similar situation where Rabbis repealed existing lenient or stringent practices, though it is not clear whether the original practise was based on an earlier ruling of a Torah scholar, or simply developed over time.

The mishna continues to discuss actions that might resemble the מלאכה  of building on shabbos, including inserting a bolt whose one head is large enough to use to pound food (and thus considered a useful vessel already ) into a door in order to lock it (I have followed Rashi’s explanation here for the sake of brevity but this is a complex discussion in the Rishonim in its own right.)

The  Gemara later makes clear that if the bolt is already permanently connected to the door and is easily moved without the rope breaking (see Rashi and other Rishonim who give different explanations) even Rabbi Eliezer permits locking the door with it, as doing so no longer resembles building.

In contrast, if it was already connected to the door, but cannot be moved without the rope breaking (once again following Rashi’s explanation) , Rabbi Eliezer forbids doing so, seeing as it is not properly connected already, whereas Rabbi Yossi permits, seeing as it already has the features of a useful כלי and doing so does not resemble building.

The Ritva explains that this is because a person does not usually permanently set aside a useful כלי  as a bolt and it is clear to all that this is only a temporary fix and not an act of building .

Fascinatingly, both Rabbi Eliezer and Rabbi Yossi bring support for their view from an incident in the shul in Teverya.

Rabbi Eliezer reported that the original custom in that shul was to lock the door with such a bolt, and when Rabban Gamliel and the elders came, they forbade it.

In contrast, Rabbi Yossi accounts that the original custom had been not to do so, and that when Rabban Gamliel and the elders came, they permitted it!

Although they do not appear bothered at all by the fact that according to Rabbi Eliezer, Rabban Gamliel and the elders forbade something against the existing custom to permit it, Tosfos are bothered by how according to Rabbi Yossi, they permitted something against the existing custom to forbid it.

This is because , as mentioned above, we have learnt (Pesachim 51a) that if something is permitted but others have treated it as forbidden, it is forbidden to permit it in front of them.

Seeing as the member of that shul were long accustomed to prohibiting this, how could Rabban Gamliel and the elders come and permit it?

Their answer could have  far-reaching ramifications for the authority of minhagim in general, and we shall hopefully get the chance soon again in Pesachim to discuss this issue in more detail.

For our purposes, we shall note that Tosfos distinguishes between a custom which people took on because they mistakenly believed something was actually forbidden, and a custom which people took on as an extra chumra despite knowing that it was actually permitted.

In the former case, their minhag was taken on due to error, and one may certainly permit it to them.

In the later case, no error was involved, and one may not later permit it.

Tosfos understands that according to Rabbi Yosi, the members of the shul refrained from locking the door with such a bolt because they mistakenly believed it was forbidden, and Rabban Gamliel and the elders were well within their rights to correct their error and permit it!

What is still unclear is what the reason was for their initial error? Was it simply ignorance on their part, or was it because another Rabbi had mistakenly (at least in the view of the later Rabbi) told them that it was forbidden (as Rabbi Eliezer indeed held?)

If the later is true, it would solve our original problem of how a new Rabbi can permit something forbidden by the previous Rabbi if in his view, the previous Rabbi was wrong.

It is also possible, however, that seeing as the community was doing the right thing by following their Rabbi at the time, their stringent practise cannot be seen as an error, and in such a case, the new Rabbi may not permit it.

The role of rabbinic authority in the acceptance of minhagim is itself worthy of much discussion, and as mentioned, I hope to continue this when we reach the relevant sugya in Pesachim, Hashem willing!

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

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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 128 Tzaar Baalei Chayim (preventing cruelty to animals)

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The Gemara on 128b brings the ruling of Rav Yehuda in the name of Rav that states that if an animal fell into a trench/stream with water in it on shabbos and is not able to get out, one may stack/throw cushions one on top of another to allow it to climb out.
It questions this ruling from a Beraisa which states that in such a case, one should bring it פרנסה (sustenance- presumably food,water etc.) where it is, which implies that using cushions to help it out is forbidden.
The Gemara concludes that when it is possible to take care of its needs where it is, one should indeed do so, but if this is not possible, one is permitted to help it out using the cushions.
It then challenges this “leniency” on the basis that the cushions will be ruined, and there is a rabbinical prohibition against מבטל כלי מהיכנו ,ruining an instrument in a way that it will no longer be fit for its purpose on Shabbos.
Finally, it concludes that seeing as “tzaar baalei chayim” (avoid suffering to animals) is a biblical commandment and ruining a vessel is a rabbinical prohibition, the biblical concept of tzaar Baalei chayim pushed aside the rabbinic concern of ruining a vessel.
At first glance, this sugya seems to be establishing a rule that should perhaps even be obvious- the biblical requirement to prevent distress to animals pushes aside rabbinical prohibitions.
However, a look at the flow of the sugya reveals that this is far from obvious.
Firstly, if there was such a blanket rule, why was it necessary to allow this specifically in this case?
Secondly, if this is indeed true, why is this only permitted if it is impossible to take care of the animal while it is in the trench? Surely the animal still gets a degree of distress by not being able to get out, and one should be able to override the rabbinical prohibition simply to stop this distress, not just to give it food and water?
As such, one is almost forced to deduce from this sugya that there is no blanket permission to transgress any rabbinic prohibition to avoid distress to animals, AND that not every form of distress is equal.
The prohibition of making a vessel unusable is indeed pushed aside for this reason, and it is possible that other rabbinical prohibitions of similar nature or status are as well, but that is about all we can get from here.
In addition, it seems that the level of distress required to activate this “pushing aside” must be rather significant, at the level of hunger or thirst, and not just emotional distress or frustration.
If this legalistic analysis is indeed correct, it seems to be rather counter intuitive on an ethical and logical level, and some further explanation is in place.
Although it can argued that concern for the welfare of animals should be axiomatic to human nature and perhaps be in the category of simply דרץ ארץ קדמה לתורה, (basic decency precedes Torah,) there are a number of places in the Torah where concern for animals is evident explicitly as well, despite the fact that using animals for human needs and divine sacrifice was clearly sanctioned.
From the very beginning, we see that man is charged with working the garden of Eden and looking after it and its inhabitants (Bereishis 2/15.)
During the period of the flood, Noah was given responsibility not only for saving his family and anyone who would repent (there were none,), but also representatives of every living species (Bereishis 7/2.)
The Torah commands us to avoid eating blood of any animal, see as it contains the essence of its life-force (Devarim 12/23.)
Virtually all our leaders acted at least in their early years as shepherds, and the Midrash attributes this to the need for our leaders to be people who are merciful and concerned for all creatures )Shmos Rabbah 2/2 )
We are commanded to give the carcass of a טריפה (animal unfit for consumption due to injury) to the dogs, and the Gemara stresses how dogs are to be treated with extra compassion due to the difficulty they face in finding food (Shabbos 155b.)
One of the most poignant examples of the disdain that the Torah treats cruelty to animals must surely be the episode of the wicked heathen prophet Bil’am and his donkey (Bamidbar 22)
The exchange of words between him and his donkey leaves little place for doubt that the Torah’s harshest judgement of Bil’am, besides for his hatred of the Jewish people, is the utter callousness that he shows towards his loyal ass.
One is forbidden to kill an ox and its child on the same day (Vayikra 22/28), and is required to send away the mother bird before taking its young (Devarim 22/7), and although the reasons for these commandments are somewhat more controversial , it certainly appears at face value that they are connected to the need to have mercy even when performing cruel tasks needed for one’s own sustenance (See Ramban Devarim 22/6 , and his reference to the Rambam in the Moreh(3/48))
The Gemara (Bava Metzia 85a) tells us how Rabbi Yehuda haNasi himself, the great redactor of the Mishna, was walking on his way and a calf came and pleaded for him to save him from being taken to the slaughter.
Instead of helping him, or perhaps thinking that he was, he instructed the calf to go willingly to the slaughter, as this is what it was created for (to feed man.)
As a result of this callous response, the Gemara relates that extreme suffering was decreed on him.
This suffering only ended when he had repented and showed that he had changed his ways.
His maid was clearing out some weasels from the house and he told her to let them be, seeing as “His mercy is on all his creatures.”
Presumably Rebbe had learnt the lesson that it is man’s role to follow in the ways of Hashem and to be merciful like he is even in a situation when the law is not on the side of the supplicant.
Even if the calf was technically serving its purpose, he should have acted mercifully and saved it, or at a minimum, spoken to it in a more empathetic way.
Yet the most official halachik source for an obligation to not only refrain from actions that cause distress to animals but to actively strain oneself to prevent it, seems to be the commandment to help offload a donkey.
The Gemara (Bava Metzia 32b) explains the overreaching scope of this requirement as being a proof that צער בעלי חיים דאורייתא (avoiding distress to animals is a biblical requirement.)
We see clearly from this, that the biblical requirement to prevent suffering to animals is not limited to taking care of their food and water, but also to the distress felt by a loaded donkey.
Returning to our sugya and the animal in the stream, perhaps one needs to conclude that the case we are dealing with assumes that the animal is not in particular distress where it is, and that the main distress it faces is lack of food.
On a hot day in the African bush, one often sees animals enjoying time in the water, and so long as the water is not too deep for it to stand, it might not endure significant distress if it waits there till after shabbos, so longer as it has food.
If however, the animal is in significant stress just by virtue of being stuck in the trench, it seems logical that helping it out with cushions would also be permitted, and that if this is not sufficient, any other rabbinical prohibition could also be pushed aside in order to help it out.
In practise, there is much debate about when “tzaar baalei chayim” pushes off other halachik concerns, we have only come to open the discussion.
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 124-125 The reason for the laws of “Muktza”, and other “Muktza” related ideas.

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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.
מתוך
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

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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.