Tag Archives: מקלקל

Pesachim 71-73 מקלקל ומתעסק בחבורה

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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 105 and 106 מקלקל, anger management, and discipling the family.

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The Mishna on 105b discusses the melacha of קורע (tearing).
The biblical prohibition applies to tearing something for constructive purposes, such as tearing threads in an imperfect garment to sow it up again correctly. (Tearing toilet paper might fit into this category but is a subject of its own.)
However, our Mishna tells us that if this is done out of anger, mourning for a relative, or for any destructive purpose, one is exempt, and has only transgressed a rabbinical transgression.
Our sugya debates the question of whether tearing something out of mourning or in anger is considered a constructive act or not.
Simply using our own logic, there seems to be logic on both sides – on the one hand, one is not making the torn item into anything that can be used for a constructive purpose as a result.
On the other hand, there might be a constructive result from the action itself, in that one fulfills one’s obligation to tear one’s clothes to mourn a relative, as well as one’s psychological need to grieve.
Similarly, tearing something out of anger might fulfil a constructive purpose, such as calming oneself down.
It appears from our Mishna that it is not considered constructive.
However, the Gemara brings a Beraita which is of the opinion that one is liable for such actions, indicating that they are halachically considered constructive.
The Gemara concludes that if one tears a garment for a relative that one is liable to tear for, the action is considered constructive because one has discharged his obligation by this action.
However, if one tears for a relative that one has no obligation to tear for, the action is not considered constructive, seeing as he has discharged no obligation by so doing.
The Gemara adds that the same applies to anyone that it is a mitzva, even if not an absolute obligation, to tear one’s clothes for, such as a חכם (scholar) or an איש כשר (righteous man)
How the above two are defined halachically requires further discussion of course.
The exclusion of a relative one is not obligated to tear for seems to make it clear that emotional therapeutic value is not enough to be considered a constructive act on its own, without actually fulfilling a mitzva.
However, we are still face with a contradiction between our Mishna and the Beraisa regarding tearing something in anger.
One would think that based on the law regards relatives, we have already settled the fact that tearing simply for emotional or therapeutic benefit is not considered a constructive action as far as liability on shabbos in concerned, and is still considered מקלקל.
Why then does the author of the Beraisa hold that one is indeed liable for this, in contrast to the author of the Mishna who holds that one is not?
At first, the Gemara tries to explain that this dispute is not actually based on whether it is מקלקל or not, but rather on whether one is liable for מלאכה שאינה צריכה לגופא.
The Mishna which exempts someone who tears out of anger is not doing so because of מקלקל, but rather because it reflects the view of Rabbi Shimon who holds that one is exempt for מלאכה שאינה צריכה לגופא , a melacha done for a constructive purpose but for one other than its usual purpose as derived from the Mishkan, the classic example being digging a hole because he wants the dust, rather than the hole itself( see Shabbos 73b.)
Here he has no need for the torn garment itself, but rather for the emotional relief or indulgence of his anger he feels from tearing it, making it classic מלאכה שאינה צריכה לגופא.
According to this suggestion, The Beraisa which says that one is liable for this simply reflects the view of Rabbi Yehuda that one is liable for מלאכה שאינה צריכה לגופא.
(We should note at this point that should this suggestion be accepted, we would have a סתם משנה (anonymous Mishna) that is in accordance with Rabbi Shimon, which all things being equal, would be a very strong reason for the poskim to rule like him- but that’s for another time!)
The issue with this suggestion is that it totally ignores the exemption of מקלקל, which certainly seems to apply
i. based on logical analysis
ii. based on the previous conclusion that emotional benefit is not considered a constructive purpose regarding melacha
iii. Based on the wording of the Mishna which seems to base the exemption on מקלקל explicitly. ( one would then have to say that מקלקל mentioned in the Mishna is a totally new exemption, not the reason for the previous too exemptions and others like it, which while not illegal, certainly doesn’t seem to be the simple reading of the Mishna.)
The Gemara rejects this suggestion based on the fact that Rabbi Yehuda himself does not disagree with the exemption of מקלקל, which clearly seems to apply here.
It then suggests that perhaps the Beraisa that says one is liable for tearing something out of anger actually holds that tearing out of anger is constructive, in that it appeases his יצר (inclination).
This is a full 180 degree turn in which the Gemara acknowledges that at least according to the Beraisa, emotional therapeutic benefit might actually be considered constructive regarding melacha (it is possible to learn that even our Mishna would acknowledge that but exempts it due to מלאכה שאינה צריכה לגופא , but once we have found an acceptable way to reconcile the two views without reference to this debate, particularly as the Mishna does seem to given the reason for the exemption as מקלקל, it seems more likely that the Mishna would disagree simply on the point as to whether emotional benefit is constructive, and holds that it is not, which is reflected by the fact that its exempts one who tears out of mourning as well.)
The Gemara doesn’t seem so bothered by the suggestion that emotional benefit might be considered constructive in general ( to the point that we would then need to explain the difference between the emotional benefit of indulging or discharging one’s anger which one is liable for and that of fulfilling one’s need to grieve which is exempt even according to the Beraisa in the absence of a mitzva.)
Yet it rejects that suggestion that tearing out of anger might be constructive flat out for a different reason- indulging one’s anger is NEVER constructive .
It brings the very strong statement of Rabbi Yochanan ben Nuri that a person who tears or breaks something out of anger is considered like one who has worshipped idols -The way of the יצר הרע (evil inclination) is first to make you indulge your anger by destroying something and then to make you do other sins.
Rav Avin goes further and interprets the verse “לא יהיה בך אל זר “ (“there shall not be in you a strange god” -Tehillim 81/10) as referring to the evil inclination within everyone.
Indulging one’s evil inclination in the hope that it will go away afterwards is not viewed as a constructive action, rather as a catastrophic form of מקלקל.
This concept in also seen regarding the inclination for sexual relations.
The Gemara (Sanhedrin 107a) relates how David heMelech requested a test from Hashem, so he could also be regarded on par with the אבות (the three forefathers), and mentioned in the first blessing of the עמידה (silent standing prayer.)
It relates that Hashem agreed to this, and even warned him that the test would involve a woman.
David haMelech though that he would indulge his sexual drive in a permitted way that day by sleeping with all his wives, so by the time the test came, it would be worn out.
However, this was of no help. And he failed the test of Batsheva miserably.
The Gemara explains that he forgot the simply rule that אבר קטן יש באדם משביעו רעב
מרעיבו צמא ( a man has a small organ, if he starves it, it is satisfied, but if he indulges it, it is hungry.)
Hence engaging in too much sexual indulgence, even in a permitted way, is not constructive at all, and rather than getting tired of it eventually, simply leads to a person being addicted and chronically obsessed with it.
Now to return to our sugya- so under what circumstances could tearing something in anger be considered constructive and liable, as per the ruling of the Beraita?
The Gemara concludes with something that could seem very shocking in our modern, liberal world: performing certain actions that appear to be out of anger in order to instill fear in the members of one’s household, not out of uncontrolled anger indulgence, are indeed constructive and one would be liable for them on shabbos.
The Gemara gives some examples, but we will have to leave that to further discussion- please don’t copy any of those actions without getting suitable practical rabbinic AND legal advice!
(p.s. Another unresolved issue regarding מקלקל is seeing that injuring a person is basically always destructive (as well as being a prohibition outright,) how could one ever be liable for wounding a person on shabbos, something we know from various places that one is certainly liable for? The discussion on 106a resolved around this.
Our long-standing discussion about whether a שבות דשבות על ידי ישראל is permitted or not might also find some precedent in our Mishna, as it does indeed seem to be a case of both מלאכה שאינה צריכה לגופא and מקלקל, which according to Rabbi Shimon should actually be a שבות דשבות! Lots to say on this, but its late…)
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.