Tag Archives: פסיק רישיה

Pesachim 25-26 Benefit by force- הנאה הבאה לאדם בעל כרחיה

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1. Sugya synopsis

2. Semantic matters

3. פסיק רישיה and הנאה הבאה לאדן בעל כרחיה

4. הנאה as a liability

5. Entering situations of sexual temptation

Sugya Synopsis

Given that the prohibition of chametz on pesach is included in the list of איסורי הנאה  (prohibitions that one is not allowed to derive any benefit from,) our perek spends considerable time discussing the scope of such prohibitions.

Whereas when it comes to most forbidden foods, the prohibition is limited to the act of eating and when it comes to shabbos and forbidden relationships, specific actions are forbidden, when it comes to this category of prohibitions, benefit itself is prohibited, and this might apply even to benefits that do not involve a specific action (לאו שאין בו נעשה)  such as just smelling the fragrant aroma of incense offered for idolatrous purposes.

The central topic of the end of daf 25 and most of daf 26 is the status of הנאה הבאה לאדם בעל כרחיה, benefit which comes to a person “by force.”

Although the Gemara itself does not initially give an example of this, Rashi cites the case mentioned above of a person who walks past a place where incense is being offered for idolatrous purposes and cannot help smelling the fragrant aroma.

Abaya holds that this is permitted, whereas Rava holds that it is forbidden.

Seeing as we are dealing with benefit which is unavoidable, debating whether it is permitted or forbidden seems rather spurious, and it is thus obvious that the debate does not center around someone already in the situation, but whether one is permitted to willingly enter into a situation where  one knows that this will or might happen.

Alternatively, the debate could center upon whether a person is required to immediately move away from such a situation the moment he encounters it, even if it means retracing his steps and taking an alternative or possibly longer route to avoid further benefit, or whether one may carry on and pass the area, seeing as the benefit he gets from the smell is forced upon him.

Either way, the Gemara divides the discussion up into 4 different scenarios, which depend on whether it is אפשר (possible) to avoid the benefit or not, and whether one is מתכוין  (intends) to derive benefit or not.

The 4 permutations are as follows:

  1. When it is both impossible to avoid the prohibition and one has no intention to derive benefit from it (2 factors in one’s favor)
  2. When it is impossible to avoid the prohibition, but one has intention to derive benefit from it. (1 factor in one’s favor and 1 against)
  3. When it is possible to avoid the prohibition, but one has no intention to derive benefit from it. (1 factor against and one fact in favor)
  4. When it is possible to avoid the prohibition and one has intention to benefit from it. (2 factors against)

The Gemara first claims that everyone would be lenient in the first case, and stringent in the second and fourth cases- in other words, if one has intention to benefit, it is forbidden, whether it is possible to avoid the situation or not, and if one has no intention to benefit AND it is impossible to avoid the situation, they both agree  that it is permitted.

The debate is solely focussed on the third case, where it is possible to avoid the situation but one does not intend to derive benefit from the prohibition, and centers around the famous view of Rabbi Shimon (see our various posts on this back in Shabbos) who holds that דבר שאין מתכוין מותר (one is permitted to perform a permitted action even if there is a significant concern that it will be accompanied by a secondary forbidden action.)

The classic example of this principle is his permission for a person to drag a bed, chair, or bench along the ground even though he might dig a ditch while doing so, as long as this is not his intention.

However, as we have seen, it is clear from various sources ( see  post on Shabbos 133) that this leniency of Rabbi Shimon’s applies not only to the laws of shabbos but to all areas of halacha.

As such, Abaya argues that seeing as the act of walking to wherever one is going is a permitted action, it remains permitted even though one might transgress the prohibition of benefitting from עבודה זרה  (idol-worship) along the way.

Rava, on the other hand, claims that the leniency of Rabbi Shimon is limited to cases where it is impossible to achieve one’s goal without taking the risk, for example if the above-mentioned furniture is too large or heavy to lift.

However, if it is possible to avoid the risk, such as in the case of smaller/less heavy  furniture which one can lift, one is required to avoid the risk altogether.

It should be noted that this limitation to Rabbi Shimon’s leniency was suggested elsewhere (Shabbos 29b) and rejected, as it will be later in this sugya, but it is of course important to understand this הוה אמינא  (initial thought) as well.

The Gemara immediately brings an איכא דאמרי  (alternative version) whereby everyone (in this case   both Rabbi Shimon and Rabbi Yehuda [who normally forbids דבר שאין מתכוין ] ) agrees that in the first case, where the situation is unavoidable and one has no intention to benefit, it is permitted, and that in the fourth situation where the situation is avoidable and one has intention to benefit, it is forbidden. 

The third scenario where it is possible to avoid the situation, but one has no intention to benefit, is the classic dispute between Rabbi Shimon and Rabbi Yehuda.

According to this version, It is the second scenario, where it is impossible to avoid the situation but one DOES intend to benefit once one is in the situation, which is subject to debate between Abaya and Rava.

According to this version, the debate between Abaya and Rava centers not on the view of Rabbi Shimon, for whom intention is the critical factor and for whom it would thus be clearly forbidden (see Rashi) but on the view of Rabbi Yehuda who seems less concerned with intention and more concerned with whether it is possible to avoid the situation or not.

Abaya claims that just like Rabbi Yehuda makes no distinction in a case where it is possible to avoid the situation between a case when one  intends to benefit and a case when one does not, forbidding דבר שאין מתכוין regardless, so also in a case where it is impossible to avoid the situation, he does not care whether one intends to  derive an otherwise forbidden side benefit from it, or not, and permits it either way. If this is correct, it would follow that once a person is in an unavoidable situation in which he is forced to derive a forbidden benefit, having conscious intent to enjoy the situation might be permitted, something which seems like a tremendous novelty.

Rava, in contrast, counters that Rabbi Yehuda’s lack of concern for whether one has intention for the forbidden action or benefit or not only applies לחומרה (stringently) to forbid an otherwise permitted act if it could involve a forbidden secondary action or benefit.

However, he certainly does not disregard intention in order to be lenient and permit one to have specific intention to perform a forbidden action or derive a forbidden benefit if one is already in a situation where some benefit is “forced on him.”  Although one might not be required to leave the situation, one is certainly not permitted to have intention to derive benefit from it.

After bringing various proof texts for the views of Abaya and Rava (with it being important for us to take note of which version of the debate the proofs seem to assume to be correct,) the Gemara brings a  Mishna  (Kil’ayim 9/5  ) which permits one to “wear” כלאים  (forbidden garments which contain a mixture of wool and linen, also known as שעטנז ) in order to display it to would be non-Jewish buyers, so long as one does not intend to derive warmth or protection from it.

This is despite the fact that one could rather display it from behind, as the צנועים  (more “modest” or careful people) would do.

This proves without a doubt that the view that permits דבר שאין מתכוין, namely Rabbi Shimon, permits it even when it is possible to avoid the situation and achieve one’s objective without risking the secondary forbidden action, thus disproving the first version of Rava’s opinion.

Although this case and the proof from it requires its own analysis, it follows that we would either rule like Abaya in the first version, despite the rule that we follow Rava in all but 6 disputes against him (Bava Metzia  22b) or more likely, in order to keep with this rule, that we follow the second version of Rava’s opinion.

Either way, as following the second version of Abaya’s view would unnecessarily go against this rule, this seems like an unlikely possibility.

As such, it seems to be the conclusion of the sugya that scenarios 1 and 3 are clearly permitted (at least according to Rabbi Shimon whom later Amoraim have clearly deemed authoritative )- so long as one has no intention to derive forbidden benefit, even if the situation is avoidable, there is no obligation to avoid it.

On the other hand, in cases 2 and 4, where one has intention to derive forbidden benefit, entering the situation is forbidden, irrespective of whether it is avoidable or not.

Now that we have summarized the flow of the sugya, according to Rashi and the consensus of most Rishonim, it is time to focus on some of the difficulties raised by this sugya.

Semantic Matters

As we have seen, the case of הנאה הבאה לאדם בעל כרחיה  (benefit which is forced upon a person) has been divided into 4 scenarios, based on 2 critical factors, namely whether is it possible to avoid the situation and whether one intends to derive the forbidden benefit.

However, the very term בעל כרחיה (by force) seems to exclude a situation where it is possible to avoid the situation, as well as a case where one has intention to derive forbidden benefit.

If one is able to avoid the situation, how can any subsequent benefit be considered “by force?”

Similarly, if when faced with the situation, one consciously has intention to enjoy it, how can that be considered “by force?”

It seems that Rashi and most Rishonim understand that

  1.  when referring to אפשר  ( the possibility to avoid the situation,) the Gemara means that it is possible to achieve the intended permitted goal (such as reaching one’s destination) by taking an alternative route

Whereas

  1. ii.                    לא אפשר  refers to a situation where it is impossible to achieve one’s otherwise permitted goal without taking the problematic route.

Tosfos and other Rishonim  (see for example Ritva in the name of the רא”ה) add that it is also considered לא אפשר  (impossible to avoid) if the alternative route or method is longer or requires more effort, time, or money.

“אפשר” , in contrast, is  understand to refer to a situation where it is possible to perform one’s intended otherwise permitted task in an equally convenient way that  avoids the risk.

Yet even such a case, while forbidden according to the first version of Rava’s view, seems to still be referred to by the Gemara as “by force,” seeing as if he goes on his chosen route, he is forced into encountering the forbidden benefit, an extremely broad definition of “by force” to say the least.

Furthermore, it seems according to Rashi and most other Rishonim (see for example Meiri, though see Ritva for a different view) that קא מכוין  refers to one who consciously intends to enjoy the forbidden benefit, and it requires some serious  analysis to understand how this could ever be considered “by force.”

One could possibly explain that once a person is forced into a situation where he cannot avoid enjoying a forbidden pleasure, then “giving in” and consciously enjoying it, while probably not permitted, is to a certain extent, still considered to be “forced.”

This could perhaps be compared to a person who is raped but at a certain point, once feeling the pleasure of physical stimulation, gives in and “enjoys it.” (obviously, the plausibility of this depends on the individual and precise circumstances, but such cases certainly seem to exist -a thorough analysis if the sugya in Yevamos 53b of אין אונס לערוה  is recommended at this point.)

Whereas the victim might be obligated to try his best to mentally detach himself and avoid deriving pleasure from the physical sensation, it might be harder to condemn him for succumbing and doing so, given that the combination of being forced into the situation and biology make it close to impossible to avoid- even if he is punished for this, as in the case of אונס לערוה  (Yevamos 53b,) it might still be called “by force.”- he was simply required to resist the force.

The Ran, however, simply explains that even though one intends to derive benefit, if the benefit is not intended for him (or brought about by him)  but comes automatically, it is still called in this  context “by force.”

As mentioned above, the Ritva goes to the opposite extreme and says that whenever a person benefits, it is considered intentional, and that לא קא מכוין  refers to when the person himself does not (or perhaps believes he will not ) derive pleasure from the forbidden entity, even if many or most people would (why the phrase הנאה  is used to describe someone who does not have הנאה  requires explanation according to this view.)

These various explanations could have major practical ramifications, but more on that at a later stage hopefully.

פסיק רישיה  and הנאה הבאה לאדם בעל כרחיה

One of the issues that bothers the Rishonim is the fact that in our sugya, it seems clear that according to Rabbi Shimon who permits דבר שאין מתכוין, there is no problem walking past a place where there is a pleasant forbidden fragrance.

Likewise, examples are given of sitting in the shade of the Temple’s walls for a derasha and  lowering workers into the קדש הקדשים  for maintenance even though they will derive forbidden benefit from seeing the inside.

Yet it is made clear in many places that even Rabbi Shimon forbids פסיק רישיה , a situation where the secondary forbidden action (in this case benefit) is inevitable, and it seems pretty much inevitable that a person in these situations will derive some benefit from them.

Whereas the Tosfos choose to assume that all these cases do not involve inevitable benefit (perhaps as different people react differently to certain scents and sights etc) the מהר”ם חאלאוה distinguishes between a forbidden action such as a melacha on shabbos whose completion is not affected by one’s lack of intention, and benefit, which is not considered complete when one lacks intention to benefit.

The latter’s חידוש  (novel idea) seems to be that unintended pleasure is not considered complete pleasure at all, and even if such pleasure is inevitable, the stringency of פסיק רישיה  does not apply to it, something which of course requires further explanation.

Of course, according to the view of the Ritva in the name of the רא”ה quoted above, the leniency of דבר שאין מתכוין  only applies where a person does not derive pleasure from the problematic situation, but if he does derive pleasure, it is considered intentional, and the question does not begin.

הנאה  as a stringency

We have seen in our sugya that Rabbi Shimon’s leniency of דבר שאין מתכוין מותר  is extended to forbidden benefits occurred during otherwise permitted actions.

However, we have dealt before with another related leniency, namely מתעסק, where one intends to perform a permitted action and lands up doing something that is forbidden (see posts on shabbos 72 and 92  for background.)

Regarding מתעסק, we have seen that when benefit is derived from the unintended forbidden action (such as eating forbidden fats thinking that it is permitted fat or sleeping with a woman who is forbidden to him, thinking she is permitted to him,) one is still liable to bring a korban (sacrifice) for one’s actions.

We see a similar idea regarding נזיקין  (damages- B.K. 19b) that although an ox is sometimes exempt from damages it does with its mouth in public property, the owner is liable up to the value of the benefit that it derived from doing so (such as the cost of the food it ate.)

It seems from the above that whenever a person (or his animal) derives pleasure from something, his lack of intent or warning is irrelevant to his liability for any transgression derived thereby.

It seems, at least on the face of it, that there must be a strong distinction between מתעסק  and דבר שאין מתכוין when it comes to benefit and that the latter is conceptually so different that הנאה  does not affect it at all.

 Perhaps this because whereas in מתעסק, the primary action one lands up doing, albeit unintentionally, is forbidden, in the case of דבר שאין מתכוין, the primary action remains permitted and the forbidden action is merely a secondary by-product of that action- secondary benefit that is only a by-product of a permitted action  might not be enough to create liability or even to forbid the permitted action in the first place.

OF course, once again, if we were to adopt the approach of the Ritva quoted above, then any benefit is treated as intentional (even though possibly still called “by force”) and there is no need for any such distinction.

Entering situations of sexual temptation for the sake of permitted activities

It follows from the conclusion of our sugya, at least according to most Rishonim, that it is permitted to enter a situation where one might derive forbidden but unintended benefit, if one needs to for some otherwise permitted purpose, even if there is an equally convenient alternative route or way of achieving that objective (אפשר ולא קא מכוין)

Yet we are told (Bava Basra 57b) that a man who intentionally walks past a place where women are washing clothes (and thus not fully covered) where another path exists to where he is going, is called a רשע  (wicked person.)- Only if there is no alternative path, may he walk past and turn his eyes away.

It is not immediately clear from that sugya whether the alternative path needs to be as convenient as the problematic one or not, but If intentionally walking past a place where he will derive pleasure from the forbidden fragrance of idolatrous incense is permitted, even if there is an equally convenient alternative route, why should walking past this immodest situation even if an EQUALLY convenient alternative route exists, be not only forbidden but bad enough to be called a רשע ? (see though Rashbam on the sugya, as opposed to Rabbeinu Gershom, regarding what exactly this means.)

Once again, if we accept the Ritva’s explanation above, the question might not even begin.

Although it is indeed possible for a person to know in advance (or at least think)  that he does not derive pleasure from incense, the principle of אין אפוטרופוס לעריות  might teach us that it is impossible for any man to know or assume in advance that he will not derive pleasure from immodestly dressed women.

Similarly, according to the Tosfos who say that הנאה הבאה לאדם בעל כרחיה  is only permitted in cases where דבר שאין מתכוין  itself is permitted, namely when the benefit is not inevitable, perhaps the strength of the sexual urge is such that such benefit is inevitable.

However, according to the מהר”ם  חאלאוה quoted above, who explains that benefit one is “forced into” is not subject to the stringency of פסיק רישיה, neither of these explanations hold water.

Pinning an explanation on the severe status of forbidden relations in things related to them is also not sufficient, seeing as idolatry and things related to it are treated equally strictly.

Perhaps a combination of the severity of the transgression and likelihood thereof due to its overpowering attraction sets entering a situation of sexual temptation apart and even the מהרם חאלואה would agree that the leniency of הנאה הבאה לאדם בעל כרחיה  does not apply to it.

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

Eruvin 100 Running on grass on Shabbos

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Shabbos 133 דבר שאין מתכוין revisited and bugs in vegetables

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In previous posts, we have discussed the famous rule that when performing a permitted activity, one does not need to be concerned about it being accompanied by an unintended  forbidden activity, so long as that forbidden activity is not פסיק רישיה  (inevitable.)
For example, one is permitted to drag a bench along the ground even though it might make a ditch while being moved, seeing as this is not inevitable.
We have also shown that this leniency applies not only on shabbos, but also in other areas of halacha.
For example, a Nazir is permitted to scratch his beard even though some hair might fall out. This is because his intention is not to remove hair, but rather simply to scratch his beard, and the hair removal, though likely, is not inevitable.
We have also questioned whether the exemption of מתעסק, another category of unintended melacha, would apply to someone who intends to eat a fruit and unintentionally lands up swallowing an insect with it.
Though the rabbinic requirement to perform reasonable checks before eating fruit that are commonly infested is certainly not waived by such an exemption, in cases where checking sufficiently is impossible or involves extreme exertion, such an exemption could be very helpful, at least in combination with other reasons for leniency.
Even more helpful than this leniency which might mitigate the halachik concerns but would not permit the action לכתחילה,would be showing that we can apply the leniency of דבר שאין מתכוין  to this situation, seeing as such actions are permitted even לכתחילה.
Let us formulate it as follows:
A person wants to eat a raspberry. He has fulfilled the basic obligation to check it for insects, but has been told that they often hide in inaccessible places or camouflage so well that checking and removing them all is close to impossible, or would take so much time that it would simply not be viable.
The person intends to perform a permitted action- eating raspberries, which the Torah permitted.
There is a concern that while performing this permitted action, he might land up eating a bug, which is biblically prohibited (by multiple transgressions.)
It is presumably not inevitable that he will eat the bug, as there might not be a bug there, or it might have crawled or fallen out before he eats it.
 
(Some might argue this is actually a case of ספק פסיק רישיה  , seeing as if there is indeed a bug, one will definitely come to eat, and there is indeed a well-known debate whether ספק פסיק רישיה  has the same permitted status as דבר שאין מתכין  or is forbidden like פסיק רישיה .
However, even one argued that it was indeed פסיק רישיה , if would certainly be a פסיק רישיה דלא ניחא ליה  (inevitable but unintended result that one derives no benefit from at all, which according to some opinions is permitted and according to the more accepted stringent view is only rabbinically forbidden, making this a ספק פסיק רישיה דלא ניחיה ליה  about which we should be able to apply the rule of ספק דרבנן לקולא , or even a ספק ספיקא, given the views that both ספק פסיק רישיה  AND פסיק רישיה דלא ניחיה ליה  are permitted.  )
Surely we can apply the principle of דבר שאין מתכוין מותר and allow one to eat the fruit, seeing as one has no intention to eat the bug, if it is indeed there?
However, when one examines this more carefully, it is not a typical case of דבר שאין מתכוין, but more similar in some ways if anything to מתעסק.
In classic דבר שאין מתכוין, one intends to do a permitted action like dragging a bench and is concerned about a possible DIFFERENT secondary prohibited action, such as digging a groove.
In our case, one intends to perform the permitted action of eating a fruit and is concerned that one will come to apply the SAME action to a prohibited object, namely the bug.
(In Brisker terminology, in typical דבר שאין מתכוין, one intends to perform a מעשה של היתר and is concerned about a secondary מעשה של אסור.
In our case, it is the same מעשה one is concerned about, and the issue is the חפצא של אסור (prohibited object) on which the same מעשה will fall.)
In order to apply the leniency of דבר שאין מתכוין  which is already a חדוש (novel idea,) one would need to find a precedent for its application even when we are dealing with the same action, namely eating, an action one clearly intends to do, and the only lack of intent is for the secondary application of this same intended action to an unintended object, namely the bug.
This would still be different to מתעסק  in that the forbidden eating (the bug) would be secondary to the intended permitted eating (the fruit), not in place of it (intending to eat something kosher and eating something non-kosher [the issue of נהנה  aside])
I believe that we find exactly the precedent we are looking for on our daf!
Our daf discusses why it is permitted to perform a bris when there is a leprous lesion on the area about to be cut.
There is a biblical prohibition against cutting off such a lesion, and we have concluded that because there is also a positive command to avoid doing so, the normal rule of עשה דוחה לא תעשה  (a positive command pushes aside a negative one, cannot be applied to permit the bris.
Instead, the view of Rabbi Yoshiya is brought who learns this from a passuk.(the stressing of the word “בשר” – even if it has a lesion.)
The Gemara asks why this is necessary, seeing as it should be a case of דבר שאין מתכוין!
One has intention to cut off the ערלה (foreskin) in order to perform the mitzva of bris mila, and the cutting off of the lesion is only an unintended secondary action that accompanies it!
The Gemara answers that the permissive verse is still required seeing as this is an example of פסיק רישיה- an inevitable forbidden result.
We see that if not for the concern of פסיק רישיה (for example if the lesion was not on the site of bris but close to it,) this would indeed be a case of דבר שאין מתכוין.
Yet when we examine the case, we see that this is similar to the case of the fruit and the bug- one wishes to “cut” the ערלה  and the SAME action, namely “cutting”, is also likely to be unintentionally applied to a forbidden object, namely the צרעת  (lesion.)
If the rule of דבר שאין מתכוין did not apply to such a scenario, the question would not even begin, the Gemara would at least have given this as the reason it does not apply.
It indeed seems to follow from this Gemara that the leniency of דבר שאין מתכוין indeed applies also when the forbidden secondary action involves the same מעשה (act) as the permitted one!
It thus seems to follow that so long as one has fulfilled the rabbinic requirement to check commonly infested fruit before eating them, one should be permitted to eat it even if there is a real concern that some bugs might still remain.
This could even apply when checking is biblically required, such as when the majority of the species are known to be infested, so long as there is no פסיק רישיה.
If so, we can ask why there is even a rabbinic requirement to check fruit at all? Why not just rely on the leniency of דבר שאין מתכוין in the first place, something which no contemporary poseik I am aware of seems to suggest?
I believe that the answer lies in the way that the various Rishonim understands the prohibition of removing a leprous lesion.
The Rashba notes that the case on our daf does not appear like דבר שאין מתכוין- he actually says that it is more like מלאכה שאינה צריכא לגופא  seeing as one intends to perform  the action of cutting but not for the purpose of removing the lesion , rather in order to perform the מילה.
His classification of this as מלאכה שאינה צריכא לגופא  requires its own analysis but it is his answer that is most relevant here- he says that the prohibition from the Torah is not simply to cut the lesion but rather to intentionally purify himself by removing the lesion.
Seeing as he is cutting for the sake of the Mitzva of Milah and not with intention to purify himself, he has no intention for the prohibited action at all- there is a primary action of cutting off the ערלה  and a secondary unintended action of purifying himself- if this was not פסיק רישיה, it would thus be a classic case of דבר שאין מתכוין.
On the other hand, if there was indeed a prohibition of cutting off the lesion, and not of purifying oneself by so doing, this would not be דבר שאין מתכוין but rather מלאכה שאינה צריכה לגופא and thus prohibited.
This definition of the prohibition of removing a leprous lesion is  a huge chiddush, which the Rashba no doubt has his own proof for, and it is clear that according to this approach, this case can no longer serve as a precedent for our case with the fruit and the bugs.
What is also clear though, is that this is not the way most authorities define this prohibition- the Rambam, for example (Sefer haMitzvot 308 and Tumat Tzaraat 10/2) , and the Chinuch( Mitzva 584) define the prohibition simply as removing the signs of leprosy, ie the lesions.
Similarly, the Ritva brings 2 alternative answers to the Rashba’s question, which does not take this approach at all, and in fact suggests, in the name of the Ramban, that this is indeed a case of דבר שאין מתכוין, seeing as intention is to cut the milah, not the lesion, and the lesion is not all over the area of the מילה- almost exactly like our case with the fruit and the bug!
As such, defining our case as דבר שאין מתכוין seems to be subject to a dispute amongst Rishonim, and there is little wonder why Poskim are loathe to rely on it לכתחילה .
Indeed, the Rashba is amongst the most stringent of the Rishonim regarding the requirement to check even species that are not mostly infested but only have a מעוט המצוי  (common minority) of members infested, unlike Rashi, Tosfos, and possibly even the Rambam, who seem to hold that the requirement to check only applies where the majority of a species is infested (See my Hebrew Iyun for more on this.)
As common practise is to follow the Rashba, it seems that we cannot be lenient and  rely on דבר שאין מתכוין in the first place.
Once however, reasonable checks have been performed, the views that this is indeed דבר שאין מתכוין  certainly seems weighty enough to allow one to eat the fruit, even if there is still a concern of undetected bugs being present, even more so in conjunction with the many other reasons (for a different discussion) to be  lenient.
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 110-111 Healing, castration, דבר שאין מתכוין , and קרוב לפסיק רישיה

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Our dapim continue to focus a lot on the prohibition of רפואה (healing) on shabbos.

Whereas any concern about danger to life over-rides all laws of Shabbos, the same does not apply to other ailments.

A biblical transgression may not be performed for an ill person who is not in danger, though much of the time, a rabbinical one may be.

However, when it comes to a מיחוש בעלמא (a pain or discomfort that is not severe enough to confine one to bed or affect the entire body,) , Chazal actually forbade even permitted activities, as a גזירה (decree,), intended to prevent one from coming to transgress the melacha of טוחן ( grinding.)

As most cures were (and often still are) derived from plants which were ground up and used for therapeutic purposes, there was a real concern to Chazal that taking medicine, or allowing any other curative activities, might lead to biblical shabbos transgressions.
The rule which our Mishna formulated is that anything which a person normally eats or drinks when he is healthy, may be done on shabbos, even if it has a curative affect.

The same applies to actions, such as bathing in the “good parts” of the sea, which one normally does when healthy, even when one does so for therapeutic purposes. (see back on Daf 109)

I planned a nice post on the discussion of washing and cooling off in the ocean on Shabbos (floating or swimming is a different issue) , which that sugya seems to clearly imply is fine (spoiler alert- at least for Ashkenazim, it isn’t due to a later custom), but had to leave it to a little later- hang in there!

Here, our Mishna deals with drinking a כוס של עקרין (literally a cup of roots) on shabbos. This was a potion made up of tree sap from Alexandra (see Rashi 110a.)
Our Mishna forbids it, seeing as it is used mainly as a cure for jaundice and not as a drink for healthy people.

There is however a negative side affect of this remedy- it causes sterility-causing sterility to oneself, other people, or even animals, is a biblical prohibition, whether done chemically or physically.

As a result, the Gemara questions how this could be allowed even on a weekday, and replies that it is only forbidden when one’s intention is to cause sterility, but if one has a different intention, and the sterility happens automatically, it is allowed.

A proof is brought from Rabbi Yochanan’s ruling that one who wishes to neuter a rooster, should cut its crown off, and the neutering will happen on its own.
The Gemara responds that the case of the rooster is different, as it is not actually made infertile physically or chemically- its “pride” is simply taken away and it loses it motivation to mate.
In our case, however, even though the intention is to heal the jaundice, the side-effect is actual chemical castration, and that is forbidden.

The Gemara then proceeds with other attempts to explain why taking this potion is permitted, by limiting it to people who are already infertile , a woman who has no duty to procreate, or as a last resort, an infertile woman.

I would like to focus on the first stage of this discussion and see how it relates to the well-known leniency of דבר שאין מתכוין.
This is one of the most important principles of melacha on shabbos, but unlike most of the leniencies based on the requirement for מלאכת מחשבת calculated or significant work) on shabbos, this one applies to other prohibitions as well.

The most often quoted example is the ruling of Rabbi Shimon that a person is permitted to drag a bed, chair, or bench along the ground on shabbos in order to move it, and does not have to be concerned that he will dig a groove in the ground while doing do, so long as that is not his intention.

According to Rabbi Shimon, there is no need to refrain from a permitted activity because of the concern that it might be accompanied by a forbidden secondary activity, so long as one’s intention is for the permitted activity.

Rabbi Yehuda disagrees (the precise source for this disagreement is the subject of another discussion) and holds that’s even if one only intends to perform the permitted action, one still has to be concerned about an unintended forbidden consequence.

The leading Amora Rav rules like Rabbi Yehuda, and his colleague, Shmuel, rules like Rabbi Shimon and is permissive.
In various places, the Gemara quotes this case as one of the 3 times where the later Amora, Rabbah, rules like Shmuel rather than Rav, and this therefore became the accepted halacha throughout the Shas- דבר שאין מתכוין מותר.

One important qualification, however, is that the secondary forbidden action we are concerned about should not be inevitable – the term given for this is פסיק רישיה ולא ימות – cutting off a chickens head for one’s child to use as a ball, without the intent to kill it.

Seeing as killing the chicken is an inevitable result of the action of cutting off its head, the action is forbidden, even if that is not his intention.

One of the sources for this distinction is on our daf 111a-b , where Rav tells us that we follow Rabbi Shimon regarding permission to anoint oneself with the very exclusive rose-oil on shabbos, because כל בני ישראל בני מלכים הם – all Jews are princes, and it is thus considered normal to use such things even for non-curative purposes.

The Gemara then questions how Rav can say that we hold like Rabbi Shimon, when he clearly rules in another case in the laws of Shabbos against Rabbi Shimon (why he needs to consistently follow Rabbi Shimon in all cases is not clear from the Gemara, and is the subject of much discussion in the Rishonim.)

The question at hand is whether one may tighten a cloth that is tied around a barrel of wine to prevent leakage, seeing as there is a concern of squeezing out the wine from the cloth (also a topic of much debate regarding what precisely the problem with that would be.)

This seems to be a classic case of דבר שאין מתכוין – the intention is to plug the leak, not to squeeze out the wine.
However, Rav is quoted as forbidding this, which seems to show that he does not hold like Rabbi Shimon regarding דבר שאין מתכוין.

The Gemara attempts to answer this by pointing out that this is actually an example of פסיק רישיה- squeezing our the wine is an inevitable result of tightening the cloth, and Abaya and Rava have pointed out that even Rabbi Shimon would agree that it is forbidden!

While the Gemara rejects this solution seeing as we know that Rav in fact does not agree with Rabbi Shimon’s leniency regarding דבר שאין מתכוין, we remain with the universally accepted distinction that even though דבר שאין מתכוין is permitted, פסיק רישיה is not.

Now back to Daf 110, the כוס של עקרין , and another possible distinction regarding דבר שאין מתכוין.

It is clear from the conclusion of the Gemara that for a fertile male, drinking this potion is forbidden even during the week, due to the prohibition of סרוס (castration.)

The question is why? Surely this is a classic example of דבר שאין מתכוין- the intention is to treat the jaundice, not to cause infertility!
Tosfos quotes Rav Achai Gaon who is so bothered by this question, that he claims that even though Rabbi Shimon holds that דבר שאין מתכון is permitted in all or at least most prohibitions, not only regarding shabbos melacha, we only follow him on shabbos, not in other matters!

There are numerous places in the shas where it is clear that Rabbi Shimon permits דבר שאין מתכוין in other areas of halacha, among them
-permitting a Nazir to scratch his hair without being concerned it might be detached (Nazir 42a)

  • allowing people selling שעטנז ( mixtures of wool and linen) to wear them for show, even though they might benefit from their warmth and transgress the prohibition of wearing שעטנז
    שעטנז (Kilayim 9/5) –[see my Hebrew article for an analysis as to what the precise prohibition is and why wearing it for show is allowed.]
    -performing a bris on a leprous infant, despite the concern that he might cut the נגע off together with the foreskin, transgressing the prohibition of removing a leprous lesion. )Shabbos 133a)
  • letting blood from a בכור בהמה (first born animal) without being concerned he might cause a blemish, which is forbidden. )Bechoros 33b )

As there is no clear claim anywhere in the shas that the Amoraim’s acceptance of Rabbi Shimon’s leniency is limited to the laws of Shabbos, the claim of Rav Achai Gaon is rather radical, and the Tosfos rejects it out of hand, as does the consensus of halachik opinion.

Tosfos actually brings proofs from some of the other sugyos that the Amoraim clearly rule like Rabbi Shimon in all areas of halacha regarding the leniency of דבר שאין מתכוין.

The question remains, however, if that is the case, why is drinking this כוס של עקרין forbidden even during the week, at least for fertile males?

Tosfos suggests that this is because this is actually a case of פסיק רישיה – the resulting infertility is inevitable, and that is why all the Amoraim and Tannaim would agree it is forbidden.

We cannot simply end there, however.
After all, surely Rav Achai Gaon was aware that פסיק רישיה is forbidden?
We also have to try to explain what Rav Achai Gaon would do with all the proofs that the Tosfos brought from the other areas of halacha.

We do not have time in this post for the later, but as far as the former goes, it is unlikely that two Rishonim would debate an easily verifiable medical fact such as whether infertility is an inevitable result of drinking a כוס של עקרין .

A more “lomdish” approach would be to suggest that they agree as to how likely this side-effect is, but debate how inevitable the prohibited action has to be in order to make the permitted action forbidden.

How inevitable you might ask? Surely inevitable means precisely that?

As is often the case with halachik definitions, this is not so simple though- there is some discussion amongst the Rishonim as to the permissibility of something that is קרוב לפסיק רישיה- almost inevitable but not completely, and we shall hopefully discuss in more in later posts.

In fact, a different Tosfos points out that our אב לכולם- the case of dragging the bench, is actually almost inevitable, and the novelty of that particular sugya is that even such a case is permitted.

Perhaps Rav Achai Gaon also makes no distinction between דבר שאין מתכוין and ספק פסיק רישיה whereas our Tosfos (in this case Rabbeinu Yitchak) considers ספק פסיק רישיה to be forbidden like פסיק רישיה ?

Or perhaps we can simply argue that the ingredients used forכוס של עקרין , which grew naturally In Egypt, were simply not available in Geonic Babylonia or medieval France, and the כוס של עקירן was simply not available to either Rav Achai or the Ri, making this a factual argument that is not easily resolved by observation or research, and thus a valid debate in how to understand the sugya?

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.