Tag Archives: מילה

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

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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

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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.