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.

Shabbos 150-151 לפני עור, work done by a non-Jew on shabbos, and שבות דשבות re-examined

On the previous daf, the Mishna taught us that it is forbidden to hire workers on shabbos or to ask one’s friend to do so on one’s behalf.

Although hiring workers does not involve any specific melacha as such, Rashi explains that it goes against the passuk in Yeshayahu (58) which tells us to honor the shabbos and refrain from weekday activities and discussions, namely a “rabbinic” prohibition.

The Gemara ask why it is necessary to forbid asking one’s friend to do so- after all, he is equally obligated in the laws of shabbos!

Rashi understand that because he is equally obligated not to engage in weekday conversation, telling him to do so goes under against the prohibition of “putting a stumbling block in front of the blind,” interpreted by chazal among others things to refer to causing someone to sin)A.Z. 6b.)

It requires some analysis to determine whether one can transgress the biblical command against causing someone to sin by causing him to do something that is only rabbinically prohibited.

It could be argued that a rabbinical sin is not a stumbling-block on a biblical level and one can thus not transgress this prohibition if the sin one causes him to do is only rabbinical in nature.

On the other hand, one could argue that the prohibition is not specifically against causing someone to sin on a biblical level, but on putting a stumbling block in front of him on any level, and a rabbinical prohibition, once forbidden by Chazal, is certainly a stumbling block.

The irony would then be that hiring workers oneself on shabbos might only be a rabbinical prohibition but asking one’s friend to do so would be a biblical prohibition!

The way Rashi understands our Mishna seems to be a proof for this later understanding as he says explicitly that asking one’s friend to hire workers involves the prohibition of putting a stumbling block in front of the blind.

Whether the Gemara itself is a proof for this depends on whether there are any other legitimate ways of explaining why this should so obviously be forbidden.

It is of course possible that Rashi means that he transgresses the prohibition of “putting a stumbling block before the blind” on a rabbinic level, but we would need some precedent for such a thing for this argument to be convincing.

There are indeed times when chazal refer to transgressing a biblical prohibition and mean it on a biblical level (see for example Rashi Sanhedrin 82 regarding נשגז )but for Rashi to claim that this is such an example without saying so explicitly would seem unusual.

Perhaps the act of telling one’s friend to hire workers itself goes against the prohibition of weekday conversation?

However, this is not likely, seeing as the Gemara answers that the Mishna is needed to tell us that even asking a non- Jewish friend to do so is forbidden.

It answers that we already know that too, as it falls under the shvus (rabbinical prohibition) of אמירה לנכרי (asking a non-Jew to perform a forbidden melacha on shabbos.)

If telling someone else to engage in a weekday conversation was also considered weekday conversation, there should be no different between asking one’s Jewish friend or one’s non- Jewish friend

If yesterday we dealt with the general prohibition against telling a non-Jew to do melacha on shabbos, today’s daf deals with work which a non-Jew has done on his own initiative on shabbos.

The rule of the Mishna and accompanying Gemara is that if he performed it for his own benefit or for that of another non-Jew , one may benefit from it, whereas if he did it for a Jew, one may not.

The Mishna gives an example of a non-Jew who brings a reed-based wind instrument on shabbos to play during the eulogies for a Jew who died and is to be buried after shabbos.

It rules that it may only be used if it was brought from inside the techum (area in which walking is permitted on shabbos.

It then discusses a case where a non-Jew dug a grave or made a coffin on shabbos and It is now wanted for burying a Jew after shabbos.

It rules that if it was done for a non-Jew, it may be used for a Jew, but if it was intended for burying a Jew, he may not ever be buried in it.

The general rule coming out of the Mishna seems to be that it is permitted to benefit from a melacha done by a non-Jew on shabbos only if the non-Jew did it for himself or another non-Jew.

If he did it for a Jew, even without being told to do so, it may not be used.

The question is for how long it might not be used: in the first case of the reedpipes, the Mishna does not say that they may not ever be used again for a Jew (though see Rashi who does make this assumption.)

Yet in the second case of the grave/coffin, it says that they may never be used, at least for the Jew they were made for.

Perhaps the distinction lies in the fact that walking outside of the techum is only a rabbinic prohibition according to the view of this Tana (this is a dispute in various places, see Beitza 36: for example.)

On the other hand, making a coffin or grave is a biblical prohibition.

If this distinction is correct, we would conclude that if a non-Jew performs a biblical melacha for a Jew on shabbos, he may never benefit from it, but if he only performed a rabbinic prohibition , he may do so.

However, the assumption that the non-Jew who brought the reed pipe from outside the techum has only performed a rabbinically forbidden act is highly problematic for various reasons.

  1. Even if walking from outside the techum is only rabbinically prohibited, carrying an item from outside also involves the biblical melacha of הוצאה ( transferring something from one domain to another.) – If there was an eruv, there would not be an issue of the techum either.

One could answer that the Mishna is dealing with something brought through a non-built up area that is not defined as a private or public place , but a כרמלית, which too is only a rabbinical prohibition, but one would still be faced with the question why the important factor is whether it came from outside the techum and not whether a biblical or rabbinical melacha of carrying was performed. The Tosfos and other Rishonim deal further with this issue., but I will move on.

  1. We have learnt many times that according to most views, it is permitted to ask a non-Jew to perform an act that is only rabbinically forbidden on shabbos for the sake of a mitzva (שבות דשבות לדבר מצוה) .

We have seen that some later authorities understand that this principle even permits a Jew to himself perform an action that is only rabbinically prohibited for 2 independent reasons for the sake of a mitzva.

If so, seeing as the instrument is being used for the mitzva of כבוד המת (honoring the dead,) a truly great mitzva, and leaving the techum is only rabbinically forbidden, surely it would have been permitted to ask the non-Jew to bring it lechatchila on shabbos to avoid delaying the burial afterwards?

It is true that the Tosfos are of the view that this principle does not apply to any mitzva, but only certain special mitzvas mentioned explicitly such as circumcision and settling the land of Israel, and this could be a proof for this view, but this not the view of most authorities including the Rambam.

  1. In any case, the distinction we suggested between biblical and rabbinical melacha performed by a non-Jew would not survive the Gemara’s discussion of this Mishna.

The Gemara, for a different purpose ( establishing the law in a case where it is not certain if the non-Jew performed the melacha for a Jew or a non-Jew ) compares this to a different case, where a bathhouse is heated by a non-Jew on shabbos for whoever comes.

The ruling in that case is that if the bathhouse is in a place with a non-Jewish majority, we assume that it was heated for non-Jews and a Jew may bath there immediately after shabbos.

If the majority or even half the people the bathhouse serves are Jewish, then a Jew must wait כדי שיעשה (the time it takes to heat the bathhouse) after shabbos before using it.

Heating the bathhouse clearly involves at least one biblical melacha, lighting the fire and perhaps heating the water, depending on the temperature it reaches, yet the prohibition to use the bathhouse is limited to the period of כדי שיעשה and not forever.

Perhaps the real distinction lies in who the object of the forbidden action is going to serve. In a case where the non-Jew had a specific Jew in mind as the beneficiary of his actions, such as the case of the grave or coffin, that Jew may never benefit from his action.

On the other hand, other Jews, may benefit from it after the period of כדי שיעשה, and in a case where he had no specific person in mind, like the bathhouse and possibly the reed-pipes, any Jew may benefit from it after the period of כדי שיעשה .

These issues form the subject of long and major discussions in the Rishonim before the final halacha is determined- I have just come to take you through a preliminary analysis I have done on my own, in order to open the subject for further study.

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 94 שבות דשבות על ידי ישראל – a double derabonen by a Yisroel

Shabbos 94 שבות דשבות על ידי ישראל – a double derabonen by a Yisroel

One of the most powerful leniencies on Shabbos, is the rule of a שבות דשבות, an action which is only rabbinically prohibited for 2 different reasons.

The most common application of this applies to work done by a non-Jew on Shabbos for a Jew.

In general, it is forbidden to ask a non-Jew to perform a forbidden task for a Jew on Shabbos. According to most opinions, this is a rabbinical prohibition, which I hope to discuss in a later post.

However, one is permitted to ask a non-Jew to perform something that is only rabbinically prohibited, for example to move something that is Muktza, or perform a forbidden melacha in an unusual way, so long as there is a great need for this, to prevent suffering, or for the sake of a Mitzva. (This too, is not straight-forward, and I hope to devote a future post to it.)

Although subject to debate in the Rishonim, this is the generally accepted halacha, and is because this is only rabbinically forbidden, for 2 different reasons:

  • אמירה לעכום (asking a non-Jew to perform forbidden work) is only rabbinically forbidden
  • The actual act being requested, is also only rabbinically forbidden.
    The generally accepted source for this, is a sugya in Eruvin 67 , which allows one to ask a non-Jew to bring hot water for a bris milah through a shared courtyard where an eruv has not been made. (See Rif and Ran Shabbos 56 for a long analysis and debate on this.)

The question is, however, whether this is limited to a rabbinical prohibition performed by a non-Jew, or whether a Jew would also be allowed in case of great need, to perform an action that is a שבות דשבות, for example moving Muktza in an unusual way, or two people turning on a light in an unusual way.

In order to answer this question, one would either need to prove that whatever Chazal’s reason for this leniency is equally applicable to a שבות דשבות performed by a Jew, or find a specific case in the Gemara where a שבות דשבות by a Jew is permitted.

On the other hand, should we find a case where a שבות דשבות by a Jew is not permitted, even for the sake of a Mitzva, great need, or suffering, one would be forced to either prove that this is an exception or a non-authoritative view, or conclude that שבות דשבות is not permitted for a Jew.

I have been trying for many years to find a concrete example of what might be an example of שבות דשבות by a Jew that is permitted, within the Gemara.

Today’s daf got me extremely excited, at least for a minute!

We are told that there was a corpse in the town of Darukra, that Rav Nachman bar Yitzchak permitted to be moved to a Carmelis (an open area that is not closed enough to be a private domain and not busy enough to be a public domain.)

This action seems to be a clear example of what we are looking for, a שבות דשבות done by a Jew!

  • It is mentioned just after we have analyzed the view of Rabbi Shimon that מלאכה שאינה צריכה לגופה (A Melacha where the usual result is not needed- another post to look forward to!) is only rabbinically forbidden. As the corpse is not needed, but merely needs to be removed, this would be one reason that this is only rabbinically forbidden.
  • It was taken to a כרמלית, which is also only Rabbinically prohibited!
    It seems that we have our case!

The trick, however, comes in how we learn the continuation of the sugya!
Rabbi Yochanan, brother of Mar son of Ravina, challenges Rav Nachman bar Yitchak on his leniency.

He says that even if one holds like Rabbi Simon that מלאכה שאינה צריכה לגופה is only rabbinically prohibited (פטור אבל אסור), that does not make it permitted!

It seems clear that the challenger does not see a difference between one שבות or a שבות דשבות if it is done by a Jew, or the question would not be relevant- it would be true that even Rabbi Shimon agrees that מלאכה שאינה צריכה לגופה is at least rabbinically forbidden, but Rav Nachman bar Yitchak only permitted it to be moved to a כרמלית, which is also only דרבנן, and thus permitted as a שבות דשבות.

At this stage, one might still argue that Rav Nachman bar Yitchak himself does differentiate and permits a שבות דשבות even by a Jew.

However, if that were the case, one would expect him to reply accordingly.

Instead, he replies that even his challenger would permit this case, and even if he held like Rabbi Yehuda that מלאכה שאינה צריכה לגופא is biblically forbidden (i.e. Only one שבות is involved.)

This is because of the rule that כבוד הבריות (human dignity) over-rides any rabbinical prohibition, and seeing as this was only to a כרמלית , which is only rabbinically prohibited, it was permitted.

It seems from his reply that the reason he permitted this was NOT because of a general rule that שבות דשבות is permitted for any mitzva, or great need, but because of the התיר of כבוד הבריות that applies to any שבות, even if it isn’t a שבות דשבות.

Before I give up and acknowledge that this sugya is thus not a proof that שבות דשבות על ידי ישראל is permitted, but rather could be a proof that it is not, I make one final argument:

Perhaps, Rav Nachman’s reply is not meant to deny the permissibility of שבות דשבות על-ידי ישראל , which likely is his initial motivation for his decision.

Maybe, he is merely bringing the less controversial התיר of כבוד הבריות to answer his challenger and to show that even his challenger, and even Rabbi Yehuda himself, would also have no reason to oppose his reason!
Much more to discuss, but that’s it for tonight….

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.