Shabbos 133 דבר שאין מתכוין revisited and bugs in vegetables


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

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.