Eruvin 67 and 68  שבות דשבות  by a non-Jew and a Jew

Just as it is forbidden for a Jew to perform melacha (forbidden work) on Shabbos, it is usually forbidden for a Jew to ask a non-Jew to perform melacha for him on Shabbos, or to benefit from melacha done for him by a non-Jew on Shabbos, a topic we have discussed numerous times in previous posts.

However, there are exceptions, and one of them is where the melacha is performed for the sake of a mitzva or in the case of great need or suffering- The majority view in halacha is that it is permitted to ask a non-Jew to perform something that is only a שבות  (rabbinically prohibited action) on shabbos for the sake of the above.

As we shall see,  there is much debate regarding the scope of this leniency, with some opinions extending this leniency to any שבות  for any case of מצוה  or great need/suffering, and others limiting it to certain kinds of שבות  and/or certain special מצוות  or situations.

Furthermore, many later poskim extend this concept to any שבות דשבות , allowing even a Jew to perform an action that is only rabbinically forbidden for TWO separate reasons for the sake of a mitzva or in case of great need or suffering, and a minority view of Rishonim who allow one to ask a non-Jew to perform even a biblically forbidden act in such cases.

What all the opinions seem to agree with is that one of the main starting points, if not THE starting point for all these discussions is the sugya on our daf!

1: The Gemara relates how the warm water needed for a child spilled, and Rabbah advised the people to go get more from the house.

They replied that they had not made an eruv chatzeiros (and could thus not carry from his house to the shared courtyard or other house where they were.)

He advised them to rely on theשתוף  (form of eruv done to join all courtyards in a מבוי.)

They responded that this had also not been done.

He then suggested that they get a non-Jew to get more hot water for them.

At this stage, we should already be able to read between the lines and deduce the following about this case:

i.                    The only halachic issue involved was bringing the water through an area that had not been linked by an eruv, in other words a rabbinical prohibition (seeing as עירוב חצירות  and שתוף מבואות  would not help in a biblically defined public domain.

ii.                  Despite this being only a rabbinic prohibition, a Jew was not allowed to bring it even for the sake of the child.

iii.                The usual prohibition of asking a non-Jew to perform a forbidden action on behalf of a Jew did not apply in this case.

What is not clear from the Gemara is

1.      What kind of child this was talking about and what precisely the water was needed for?

2.      Whether the permission to ask a non-Jew to perform a forbidden action for the needs of a Jewish child would apply even to a biblical prohibition or is limited to a rabbinical prohibition like this.

3.      Whether the permission to ask a non-Jew to perform a prohibited action for a Jew is limited to this precise case, applies to any needs of a child, applies to any very important needs, or in the case of rabbinically forbidden actions, applies to any situation.

2: The Gemara proceeds to tell us that Abaya was unhappy with his Rebbe Rabbah’s permissive ruling, and wanted to object, but was constrained by his other Rebbe Rav Yosef.

Rav Yosef learned a golden rule from Rav Kahana, who learnt it from Rav Yehuda:  If one has an objection to a permissive halachik ruling of one’s Rebbe, if the objective involves a rabbinical prohibition, one should first follow the lenient ruling, and only afterwards bring the matter up with him.

Afterwards, Rav Yosef proceeded to ask Abaya what his objection had been.

Abaya replied that he wanted to object based on a Beraisa which compares אמירה לנכרי  (the prohibition of asking a non-Jew to perform a forbidden action for a non-Jew on Shabbos ) to  הזאה  ( sprinkling [the ashes of the red heifer] to purify someone.

The Beraisa tells us that both are  שבותים  (rabbinical prohibitions on shabbos) and do not push off shabbos.

The wording seems a little spurious- seeing as both are שבותים, surely it is is obvious that they do not push off shabbos?

Possibly for this reason, the Rishonim (See Rashi for example) understand that this is even for the sake of  mitzva, for example if erev pesach falls on shabbos and someone needs to be purified in order to be able to bring his קרבן פסח . Furthermore, this is not just any mitzva, but a mitzva whose failure to observe is punishable by kareit.

As such, it seems from Abaya’s objection that the case was one were the hot water was needed for a mitzva relating to the child, and probably a mitzva of similar weight.

There is such a mitzva that relates to a child, and this is ברית מילה!

As such, it know seems probable that this question was not about any needs of any child, but for the sake of the ברית מילה  of a baby, and this is indeed how many Rishonim learn the case, but back to that later.

3: Rav Yosef  replies to Abaya’s objective by making a distinction between a שבות שיש בו מעשה  and a שבות שאין בו מעשה . He backs this up by pointing out that they did not ask the non-Jew to go and heat up more water for the child! (This “proof” is omitted in certain גירסאות  (versions) of the text, something that makes a big difference to the flow of sugya, but that is for a little later.)

It is clear from Rav Yosef’s reply that not all שבותין  are equal- there are some (those that involve an “action” like sprinkling ashes) that are not permitted even for the sake of the great mitzva of ברית מילה  or קרבן פסח , and there are others (those that do not involve an action like telling a non-Jew to bring water through a courtyard that has not been “joined”) that are permitted, at least for the sake of such a mitzva.

What is not clear is what the meaning of the phrase “שבות שיש בו מעשה”  (a rabbinical prohibition of shabbos involving an action) and its opposite are.

There are several possibilities that could spring to mind, among them:

i.                    Perhaps the most obvious meaning of the text is that sprinkling ashes involves a physical action by a Jew, as opposed to telling a non-Jew to perform a forbidden action, which involves only “speaking” by a Jew.

 We know that speaking is not necessarily the same as a physical action, and that there is a debate when it comes to חיוב מלקות  (liability to corporal punishment [which generally only applies for a prohibition involving an action]) whether speaking qualifies as an action (see for example B.M. 90a)

 According to the view that it does not, the distinction here is obvious, but even according to the view that it does, it is possible that this only applies regarding חיוב מלקות  but that a different threshold applies when it comes to being overridden by a mitzva, certainly a great mitzva like this.

If this is the distinction referred to by Rav Yosef, it could be that any prohibition that does not involve an action by a Jew, even if it involves a biblical action by a non-Jew, would be permitted.

This is the view of the בה”ג  and רבינו חננאל – however, it does not seem to fit the “proof” that Rav Yosef brings for his distinction, namely the fact that the non-Jew is not being asked to heat the water for the baby, in others words he was not being asked to perform a biblical prohibition.

This seems so inconsistent with the simple meaning of Rav Yosef’s distinction that these authorities do not have this “proof” in their version of the text (what exactly this means and how it works is a fascinating topic in its own right!)

ii.                  It is possible that  שבות שיש בו מעשה  refers to the rabbinical prohibition of telling a non-Jew to do an actual “מעשה” as in “לא תעשה כל מלאכה”- a biblically prohibited מעשה, which is forbidden even for the sake of a mitzva, just like sprinkling is.

שבות שאין בו מעשה  would then refer to the rabbinical prohibition of telling a non-Jew to perform something which is only rabbinically forbidden as a שבות  and only actually considered “doing a melacha.”

Although creative, and perhaps a little forced, given that Rav Yosef does not refer to  עשית מלאכה  but rather to מעשה, this fits in with the “proof” brought by Rav Yosef, namely the fact that the non-Jew was not asked to perform a biblical melacha act such as heating up hot water for the baby.

This approach is taken by the Rif and quoted by various other Rishonim (see Rashba and Ritva, for example, who raise various difficulties on it, and Rosh on Shabbos Perek 19/2 who accepts it)

It would follow from this that one may NOT ask a non-Jew to perform a biblically forbidden at on shabbos even for a great mitzva like Bris Milah-One may only ask him to perform a rabbinically prohibited action like forbidden carrying though an area that does not involved a biblical public domain.

It is still not clear whether this permission applies to only Bris Milah, the other mitzva subject to כרת  for non-fulfillment, such as korban pesach, other mitzvos defined as מצוה רבה (extra great mitzvos), any mitzva, any situation of great need or distress, or perhaps for any need (Tosfos Gittin 8b limits it to milah) but some basis for permitting שבות דשבות על-ידי עכום  is at least present.

iii.                A third explanation of Rav Yosef’s distinction is that a שבות שיש בו מעשה  is an action that is applied to an object that physically changes it  (the emphasis on the “בו” referring to the object, also not the most obvious reading.)

The prohibition of telling a non-Jew to perform a forbidden action on shabbos might be limited to one that changes the actual object, and not something that simply changes its position. We have discussed in an earlier post (Shabbos 96) how the prohibition of הוצאה  is considered to be  מלאכה גרועה  (inferior melacha) for this reason.

This explanation is brought by the Ritva in the name of הרב החסיד  (usually Rabbeinu Yona [thanks to מו”ר הרה”ג מנדן בלחמן שליט”א  for pointing this out and pointing me to Ritva Eruvin 41b where he indeed brings this in the name of Rabbeinu Yona] )

If this explanation is accepted, the permission to tell a non-Jew to perform a forbidden activity on shabbos even for the sake of a bris would be limited to the melacha of carrying and other things that do not involve change to the item. This melacha might even be permitted even on a biblical level, such as when a real public domain is involved!

What is clear according to all 3 opinions is that we have not yet seen a blanket permission for any שבות דשבות  on shabbos.

At most, we have seen permission even for a Jew,  to perform a שבות  that does not involve a physical action, for the sake of the mitzva of milah, korban pesach,  or its equivalent, and that would include telling a non-Jew to do anything for such a purpose, even if it is biblically prohibited, without the need for a שבות דשבות  at all, and certainly where a שבות דשבות is involved.

According to the third explanation, even a שבות דשבות  like telling a non-Jew to perform a rabbinically forbidden action on Shabbos, even for the sake of a bris milah, would only be permitted if the action does not involve a physical change in the item, and would thus be limited mainly to asking a non-Jew to carry something on shabbos through a forbidden domain.

It is only  according to the second explanation that this sugya could set a clear precedent for the distinction between a שבות  and a שבות דשבות , and even there, there is no proof that this is permitted for anything less than a mitzva of the stature of ברית מילה  or קרבן פסח.

We certainly do not seem to have any precedent for permitting a שבות דשבות  by a Jew himself, even for the sake of a mitzva or great need, in other words allowing a Jew to performing something that is 2 levels removed from a biblical prohibition, and only forbidden because of TWO separate rabbinic prohibitions, for  example, two people turning on a light in an unusual way in order to be able to read a siddur or learn.

In fact, even the second explanation seems to be  based on the difference between something done by a Jew and something done by a non-Jew, and although according to the first explanation, this distinction could be limited to when only one שבות  is involved (such as sprinkling or asking a non-Jew to heat up water,) we certainly have precedent for making this distinction with a שבות דשבות  as well.

Yet, the view of many Rishonim, including the Rambam (Milah 2/9), is that a שבות דשבות involving a non-Jew is permitted for any mitzva  and this seems to be the normative halacha (O.C. 266/5.)

In addition, many Achronim extend this permission to a שבות דשבות  performed by a Jew as well  (including האלף לך שלמה קמו – see Peninei halacha shabbos 9/11 and ג בהרחבות for an impressive  list that also includes the Chazon Ish and Rav Moshe Feinstein zt’l)

Clearly, we have much work to do still on this sugya and/or there are other sugyos and/or sevaros  involved.

A little later on daf 68 is another case with a child that plays a major role in this discussion, as does a fascinating sugya about buying a house in Eretz-Yisroel on shabbos (Gittin 8b.

In addition, a thorough analysis of the principle of אין גוזרין גזירה לגזירה  and the reasons for the prohibition of אמירה לעכום could also be in order,  but that’s it for tonight- Shavua tov and Chodesh Tov!

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.