Shabbos – RabbiKaganoff.com

Eating before Kiddush

Question #1: Reuven calls me: I have not been well, and I need to eat something shortly after awaking. On weekdays, I go to shul to daven when I wake up and can wait until after davening to eat, but I do not have this option on Shabbos. What should I do?

Question #2: Ahuva asks: It is difficult for me to wait for Kiddush until my husband returns from shul. May I eat something before he arrives home?

Question #3: Someone told me that a woman may not eat in the morning before she davens, but I remember being taught in Beis Yaakov that we may eat once we say the morning berachos. Is my memory faulty?

Answer:

This week’s parsha mentions the korban musaf of Shabbos. Observing Shabbos includes the mitzvah of reciting Kiddush Friday evening: borei peri hagafen and the special beracha of Kiddush, preceded by the passage of the Torah beginning with the word Vayechulu (Rambam, Hilchos Shabbos 29:7). This Kiddush fulfills the Torah’s mitzvah of Zachor es yom haShabbos lekadsho, Remember the day of Shabbos to sanctify it.

There is another Kiddush, introduced by our Sages, which is simply reciting borei peri hagafen and drinking wine prior to the Shabbos day meal. This article will discuss under what circumstances one may eat before reciting the daytime Kiddush.

First, we need to clarify that there are two related subjects here:

May one eat before reciting Kiddush?

May one eat before davening in the morning?

May one eat before reciting Kiddush, either at night or day?

May one eat or drink prior to reciting the Torah-required evening Kiddush? Although the Tanna, Rabbi Yosi, holds that someone eating a meal when Shabbos begins is not required to interrupt, but may complete his meal and then recite Kiddush afterwards, the Gemara concludes that we do not follow this approach. Once Shabbos arrives, it is forbidden to eat or drink anything until one recites or hears Kiddush (Pesachim 100a). The poskim conclude that one may not even drink water before Kiddush (Shulchan Aruch Orach Chayim 271:4).

What is the halacha regarding eating or drinking before daytime Kiddush? This matter is disputed by the two great pillars of halacha, the Rambam and the Raavad. The Rambam (Hilchos Shabbos, 29:10) declares that one may not taste anything before reciting the daytime Kiddush, whereas the Raavad contends that this prohibition applies only to the evening Kiddush, but not to the morning Kiddush.

What is the underlying issue of this difference of opinion? At first glance, it would seem that the Rambam and the Raavad are disputing the following question: When our Sages required Kiddush in the daytime, did they provide it with all the rules of evening Kiddush? After all, there is a general halachic principle Kol detikun rabbanan ke’ein de’oraysa tikun, whatever the Sages instituted they followed the pattern of the Torah’s mitzvos. (For brevity’s sake, I will henceforth refer to this concept simply as Kol detikun rabbanan.) Kol detikun rabbanan would indicate that just as one may not eat or drink before evening Kiddush, similarly one may not eat or drink anything before morning Kiddush. It would seem that the Rambam is contending that Kol detikun rabbanan applies to daytime Kiddush, whereas the Raavad disputes this for some reason that we will soon explain.

However, a careful reading of the Rambam demonstrates that this analysis is somewhat oversimplified, since the Rambam himself does not fully apply the concept Kol detikun rabbanan to daytime Kiddush. Whereas he introduces Chapter 29 of Hilchos Shabbos by stating: It is a positive mitzvah of the Torah to sanctify Shabbos with words, when he begins discussing the daytime Kiddush, he says: It is a mitzvah to recite a beracha over wine on Shabbos morning before one eats the second meal of Shabbos, and this is called Kiddusha Rabbah. Evidently, the daytime Kiddush is not a second mitzvah of Kiddush, but simply introduces that the daytime meal is in honor of Shabbos. (The early commentaries note that the term Kiddusha Rabbah [literally, the great Kiddush] for the daytime Kiddush, whose origin is in the Gemara itself [Pesachim 106a], is intentionally overstated.) We could say that the evening Kiddush is a sanctification of Shabbos, whereas the daytime Kiddush is a proclamation about the coming meal.

Reciting Kiddush over Bread

Now that we understand that evening Kiddush and daytime Kiddush serve different functions, we can explain why there are other halachic differences between them. For example, one may recite evening Kiddush over the challah-bread that one is using for the meal, but one may not use the bread of the day meal as a substitute for the daytime Kiddush. After all, if daytime Kiddush is to proclaim that the coming meal is in Shabbos’s honor, this proclamation must precede the meal and be somewhatdifferent from the meal itself.

So now we need to ask: If daytime Kiddush serves a different function than does evening Kiddush, why does the Rambam prohibit eating before daytime Kiddush? The answer is that he understands that some laws of Kiddush still apply in the daytime. The dispute between the Rambam and the Raavad is the degree to which daytime Kiddush is compared to evening Kiddush.

The Halacha

The accepted halacha follows the Rambam that one may not eat before daytime Kiddush (Shulchan Aruch Orach Chayim 289:1), although, as we will soon see, the Raavad’s opinion is not completely ignored by later authorities. They often factor the Raavad’s opinion when other mitigating circumstances exist, a halachic concept called tziruf. For example, the Elyah Rabbah (286:9) rules that a weak person who has no beverage available on which to recite Kiddush may rely on the Raavad together with another opinion who contends that there is no obligation to make Kiddush until one has completed davening Musaf. According to this opinion, someone who eats or drinks after completing Shacharis has no requirement to recite Kiddush before eating.

May one drink water before Kiddush?

In regard to the evening Kiddush, the halacha is that one may not drink anything, even water, once Shabbos begins before reciting Kiddush. Does the same law apply to morning Kiddush? The Tur cites a dispute whether one may drink water before davening on Shabbos morning, since one has as yet not recited or heard Kiddush. He quotes the Avi HaEzri as prohibiting this, whereas the Tur’s own father, the Rosh, permitted drinking water before Kiddush, and he himself drank before Shabbos morning davening. The Rosh reasoned that drinking before Kiddush is prohibited only once the time for reciting Kiddush has arrived, which is not until one has davened. Prior to davening, one is prohibited from eating and it is therefore too early for the Shabbos meal and too early for Kiddush. As we will soon see, one may drink even tea or coffee before davening on weekdays, and the Rosh permits this also on Shabbos morning.

May one eat before morning davening?

At this point, we can discuss the first question raised above: I have not been feeling well lately, and find that I need to eat something shortly after awaking. On weekdays, I go to shul to daven shortly after I wake up and can wait to eat until after davening, but there is no available minyan for me to attend early Shabbos morning. What should I do?

Reuven’s question involves an issue that we have as yet not discussed: May one eat before davening in the morning?

The Gemara (Berachos 10b) states: “What do we derive from the verse, You may not eat over blood? That you may not eat (in the morning) before you have prayed for your ‘blood’… The verse states, in reference to someone who eats and drinks prior to praying: You have thrown me behind your body (Melachim 1 14:9). Do not read your body (in Hebrew gavecha), but your arrogance (gai’echa). The Holy One said: After this person has indulged in his own pride (by eating or drinking), only then does he accept upon himself the dominion of heaven!?”

The halacha that results from this Gemara is codified by all authorities. To quote the Rambam: “It is prohibited to taste anything or to perform work from halachic daybreak until one has prayed shacharis” (Hilchos Tefillah 6:4).

Would you like tea or coffee?

Although all poskim prohibit eating and drinking before morning davening, we find early authorities who permit drinking water before davening since this is not considered an act of conceit (Rosh quoting the Avi HaEzri; the Beis Yosef cites authorities who disagree, but rules like the Avi HaEzri). Most later authorities permit drinking tea or coffee, contending that this is also considered like drinking water, but the poskim dispute whether one may add sugar to the beverage. The Mishnah Berurah and others prohibit this, whereas the Aruch Hashulchan and other later authorities permit it. They are disputing whether adding sugar to the beverage promotes it to a forbidden beverage or whether it is still considered water that one may imbibe before davening.

Hunger

The Rambam rules that someone who is hungry or thirsty should eat or drink before he davens so that he can daven properly (Hilchos Tefillah 5:2).

Similarly, some authorities contend that anything eaten or drunk for medical reasons may be done before davening. They explain that the Gemara prohibited only eating or drinking that demonstrate arrogance, whereas that done for medical reasons is, by definition, not done for arrogance (Beis Yosef, quoting Mahari Abohav). This approach is accepted as normative halacha by the Shulchan Aruch (Orach Chayim 89:3).

I will be hungry!

What is the halacha if someone is as yet not hungry, but he knows that he will be so hungry by the end of davening that it will distract him from davening properly. Is he permitted to eat before davening so that the hunger does not distract him? This question impacts directly on Reuven’s question.

The answer to this question appears to lie in the following Talmudic discussion (Berachos 28b):

“Rav Avya was weak and, as a result, did not attend Rav Yosef’s lecture that took place before Musaf. The next day, when Rav Avya arrived in the Yeshiva, Abayei saw Rav Avya and was concerned that Rav Yosef may have taken offense at Rav Avya’s absence. Therefore, Abayei asked Rav Avya why he had failed to attend the previous day’s lecture. After which the following conversation transpired:

Abayei: Why did the master (addressing Rav Avya) not attend the lecture?

Rav Avya: I was not feeling well and was unable to attend.

Abayei: Why did you not eat something first and then come?

Rav Avya: Does the master (now referring to Abayei) not hold like Rav Huna who prohibits eating before davening Musaf?

Abayei: You should have davened Musaf privately, eaten something and then come to shul (Berachos 28b).

We see from Abayei’s response that someone who is weak should daven first and then eat, even if this means that he davens without a minyan. Based on this passage, several noted authorities rule that someone who will not be able to wait until after davening, and cannot find an early minyan with which to daven, should daven privately (beyechidus), eat and then attend shul in order to hear the Torah and fulfill the mitzvos of answering Kaddish and Kedusha (Be’er Heiteiv 89:11; Biur Halacha 289; Da’as Torah 289 quoting Zechor Le’Avraham; Shu”t Igros Moshe, Orach Chayim 2:28 at end of teshuvah). Thus, it seems that we can positively answer Reuven’s question: If he cannot wait to eat until davening is over, he should daven Shacharis be’yechidus, make Kiddush and eat something, and then come to shul to answer Borchu, Kedusha, Kaddish and hear keri’as haTorah.

May a woman eat before Kiddush?

At this point, we have enough information to discuss Ahuva’s question: It is difficult for me to wait for Kiddush until my husband returns from shul. May I eat before he arrives home?

Of course, Ahuva may recite Kiddush herself and eat something before her husband returns home. To fulfill the mitzvah, she needs to eat something that satisfies the halacha of Kiddush bimkom seudah¸ a topic we will have to leave for a different time. However, Ahuva either does not want to recite Kiddush, or does not want to eat something to accompany the Kiddush. Is there a halachic solution to permit her to eat or drink before Kiddush?

Some authorities suggest approaches to permit Ahuva to eat or drink before Kiddush. Here is one approach:

Although most authorities obligate a woman to recite the daytime Kiddush and prohibit her from eating before she recites Kiddush (Tosafos Shabbos 286:4, 289:3; Pri Megadim, Mishbetzos Zahav 289:1; Mishnah Berurah 289:6), this is not a universally held position. One early authority (Maharam Halavah, Pesachim 106, quoting Rashba) contends that women are absolved of the requirement to recite daytime Kiddush, for the following reason:

Since the daytime Kiddush is not an extension of the mitzvah of evening Kiddush but is to demonstrate that the meal is in honor of Shabbos, this requirement does not devolve upon women. Although this approach is not halachically accepted, some authorities allow a woman to rely on this opinion, under extenuating circumstances, to eat before reciting morning Kiddush (Shu”t Minchas Yitzchak 4:28:3).

When does a married woman become obligated to make Kiddush?

Rav Moshe Feinstein presents a different reason to permit a married woman to eat before Kiddush. He reasons that since a married woman is required to eat the Shabbos meal with her husband, she does not become responsible to make Kiddush until it is time for the two of them to eat the Shabbos meal together, meaning after davening (Shu”t Igros Moshe, Orach Chayim 4:101\2). However, the Shemiras Shabbos Kehilchasah (Chapter 52, note 46) quotes Rav Shelomoh Zalman Auerbach as disputing Rav Moshe’s conclusion that a married woman has no obligation yet to make Kiddush. Firstly, he is unconvinced that she is halachically required to eat her meal with her husband. Furthermore, even if she is, this duty may not permit her to eat before Kiddush.

If we do not follow the lenient approaches mentioned, when does a woman become obligated to recite Kiddush and, therefore, at what point may she no longer drink tea, coffee, and water? The Acharonim debate this issue, but understanding their positions requires an understanding of a different topic:

What must a woman pray?

All authorities require a woman to daven daily, but there is a dispute whether she is required to recite the full shemoneh esrei (I will call this the “Ramban’s opinion”), or whether she fulfills her requirement by reciting a simple prayer, such as the morning beracha that closes with the words Gomel chasadim tovim le’amo Yisrael. (I will refer to this as the “Magen Avraham’s opinion.”) Allow me to explain.

When may she eat?

According to the Ramban’s opinion that a woman is required to recite the full shemoneh esrei, she may not eat in the morning without first davening (see the previous discussion), whereas according to the Magen Avraham’s opinion that she fulfills her requirement once she has recited a simple prayer or morning berachos, she may eat once she recited these tefilos.

Some authorities rule that a woman becomes obligated to hear Kiddush as soon as she recites berachos, since she has now fulfilled her requirement to daven and she may therefore begin eating her meals. According to this opinion, once she has recited morning berachos she may not eat or drink without first making Kiddush (Tosafos Shabbos 286:4, 289:3). This approach contends that before she recites morning berachos, she may drink water, tea or coffee, but after she recites morning berachos she may not even drink these items without first reciting Kiddush.

There is another view that contends that a woman can follow the same approach that men follow, and may drink water, tea or coffee even after she recited berachos before she has davened (Pri Megadim, Eishel Avraham 289:4 as understood by Halichos Beisah page 204).

At this point we can address the third question I raised above:

“Someone told me that a woman may not eat in the morning before she davens, but I remember being taught in Beis Yaakov that we may eat once we say the morning berachos. Is my memory faulty?”

Many authorities contend that although a woman should daven shemoneh esrei every morning, she may rely on the opinion of the Magen Avraham in regard to eating, and may eat after reciting morning berachos. In many institutions, this approach was preferred, since it accomplishes that the tefillah that the girls recite is a much better prayer and they learn how to daven properly.

Conclusion

According to Rav Hirsch, observing Shabbos, and declaring its holiness, means recognizing that the arrival of Shabbos signifies that man’s activity has attained its goal. Now it is time to recognize Hashem’s creation and devote ourselves to developing our spirituality. When we recite Kiddush, we should internalize this message.

Renting Animals for Shabbos

Question #1: Avi’s Donkey Rental

For halachic reasons, Avi always specifies that rental animals must be returned before Shabbos. What does he do if the renter does not bring it back in time?

Question #2: Hertzl’s Horse Sales

Hertzl sells all types of horses: Racehorses, carriage horses (those that lost the Kentucky Derby) for the Amish, and show equines. If he is scrupulous about closing his business on Shabbos and Yom Tov, does he face any other halachic issues? He knows that he has no problems with charging interest, because his clientele is all non-Jewish.

Foreword:

Neither Avi’s nor Hertzl’s shaylos are new – both situations show up in the Gemara. As a matter of fact, the Gemara (Avodah Zarah 15a) teaches that, because of various Shabbos concerns, the Mishnah prohibits selling large animals to non-Jews on any day of the week. The Gemara (ibid.) already mentions heterim that Chazal implemented allowing Jews to be in this line of business, and the rishonim discuss why the custom seems to be more lenient than the Gemara allows. Rabbeinu Peretz, author of probably the earliest edition of the Hagahos Semaq, presents advice what Avi should do if the renter does not return the animal before Shabbos. We will discuss Rabbeinu Peretz’s solution, but first I must explain the halachic background involved.

(Rav Yitzchak of Corbeil, one of the baalei tosafos, wrote a work he called “Amudei Olam” but this work was called the “Semaq” by virtually everyone and became a very common and often copied work. Numerous “hagahos” were added to it. Each of these was simply called Hagahos Semaq, but they are really completely different works sharing in common that they are notes that someone wrote on the manuscript edition of the Semaq that he found. The first of these was presumably the one written by Rabbeinu Peretz, a contemporary of the original author.)

Introduction:

The words of the Aseres Hadibros are: “The seventh day is Shabbos for Hashem, your G-d. You may not do any work; not you, your son, your daughter, your slave, your maidservant or your animal.” Thus, we are introduced to the concept that Shabbos is not only for us to observe, but also for us to ensure that animals are not involved in Shabbos desecration. We understand that we are required to observe Shabbos, but why are our animals required to do so? Does the Torah assume that every animal has the ability to understand which day is Shabbos?

The answer is that animals have no obligation to observe mitzvos. The mitzvah applies to Jews: we are prohibited from having our animals perform melacha on Shabbos. There is absolutely no requirement to restrain an animal from performing melacha that it is performing for its own benefit. Therefore, flock and cattle may be allowed to graze on Shabbos, notwithstanding that they are reaping hay, alfalfa or other grasses in the process. Similarly, chickens and turkeys may hunt and eat worms, cats may hunt mice, and falcons may harvest their prey, provided the falconer is not involved in any capacity.

Shevisas beheimah

Actually, there are two different mitzvos, one called shevisas beheimah and the other called mechameir. Shevisas beheimah prohibits a Jew from having his animal worked by a person on Shabbos. The owner is in violation of this prohibition even if it is a non-Jew who works his animal (Sanhedrin 58b). The Rambam (Hilchos Shabbos 20:1) explains that this is a lav haba michlal aseih (also sometimes called issur aseih)derived from the pasuk, On the seventh day you shall cease from work, in order that your ox and your donkey can rest (Shemos 23:12; see also Devarim 5:14). An issur aseih is a prohibition that the Torah teaches by phrasing it as a positive mitzvah.

Mechameir is when a Jew uses an animal to perform a melacha, even if he does not own the animal.

Shevisas beheimah and mechameir are not mutually exclusive: Shevisas beheimah is violated when a Jew’s animal is worked on Shabbos, regardless as to who caused the animal to work. Mechameir is violated when a Jew is actively involved in having the animal work on Shabbos, regardless of who owns the animal. If a Jew uses his own animal to work on Shabbos, he violates both prohibitions, mechameir and shevisas beheimah.

Both of these activities, shevisas beheimah and mechameir, are prohibited min haTorah. Does this mean that they are considered on the same level as performing one of the 39 melachos on Shabbos? Chazal explain that there are two categories of activities that are prohibited min haTorah on Shabbos — those included under the heading of melacha and those that are not. The first are those that the Torah says could require capital punishment, as we see from the story of the mekosheish (Bamidbar 15:32-35). The second are those that, while prohibited min haTorah, are not as severe and do not involve capital punishment.

Some amora’im contend that mechameir has the full status of a melacha, and that it is included in the statement of the Torah, You may not perform any work – not you, not your son, your daughter, your slave, your maid or your animal (Shemos 20:10; see also Devarim 5:14). Following this position, the amora, Rami bar Chama, rules that causing an animal to perform melacha by goading it with your voice desecrates Shabbos on the same level as performing the melacha yourself. This means that if the goader intentionally violated Shabbos this could be a capital crime; if performed negligently, the goader is obligated to offer a korban chatas (Shabbos 153b; see also Avodah Zarah 15a, cf. Maharsha ad loc.). This renders mechameir far more severe than shevisas beheimah, which violates only an aseih.

Other opinions in the Gemara, including Rabbi Yochanan and Rava, contend that, although mechameir is potentially on this level of culpability, this is only if the goader performed some type of physical action, but speech alone does not qualify. Instructing your animal to plow, harvest, turn on lights or any other melacha indeed violates mechameir, but is not culpable, whether performed intentionally or negligently (Shabbos 154a). However, should someone plow together with his ox (Magid Mishnah, Hilchos Shabbos 20:1) or hunt together with his dogs (Rambam, Hilchos Shabbos 10:22) he would be as guilty as was the mekosheish.

There is a third, compromise position in the Gemara, that of Rav Zevid. In his opinion, mechameir performed intentionally by vocal instruction is a capital offense, whereas doing it negligently is exempt from offering a korban chatas. The Rambam rules according to Rabbi Yochanan and Rava, that mechameir does not render an offender culpable for either capital punishment or korban chatas.

Training your dog

The violation that we are describing applies regardless of which animal has been utilized to violate Shabbos. Many years ago, Mr. Cohen, an observant but not Jewishly well-educated man, trained his dog, Fido, to turn on and off lights by command. He still had the old style draw cords to turn his lights on and off (anyone remember those?) and had attached extended strings to them so that they would be within Fido’s reach. After training his dog to turn the lights on and off upon command, Mr. Cohen felt that he had improved upon the Shabbos clock. Now, through the course of Shabbos, he could change the light settings of his home at will. However, he did not realize that having Canis familiaris turn lights on and off upon command of Homo sapiens is prohibited min haTorah as a violation of mechameir, and, in this instance, also shevisas beheimah. He violated mechameir, because he was himself instructing the dog to desecrate Shabbos, and shevisas beheimah, because a dog owned by a Jew was performing melacha for a human. Needless to say, Mr. Cohen, was surprised and chagrined to discover that all his training efforts were for naught.

Only melacha

Both shevisas beheimah and mechameir violate Shabbos min haTorah only when the animal is used to perform an activity that, for a person, is considered melacha. Thus, having an animal plow or plant a field violates Shabbos. We will soon see that having the animal carry a rider does not.

Selling animals

The Mishnah prohibits selling a large animal, such as a cow or donkey, to a non-Jew. These sales are prohibited on any day of the week. I will cite the Gemara’s reason for this shortly. The main opinion prohibits selling even calves and foals, and even if the animals are injured and unable to work. The Mishnah then cites two opinions that are slightly more lenient: Rabbi Yehudah, who permits selling a “broken” (i.e., an injured) animal to a non-Jew, and Ben Beseira, who permits selling horses (Avodah Zarah 14b).

The Gemara (Avodah Zarah 15a) explains that the prohibition of selling a large animal to a non-Jew could cause the seller to desecrate Shabbos in one of two ways.

Renting or lending

The Gemara explains that for a Jew to rent or lend an animal to a non-Jew over Shabbos could easily cause the Jewish owner of the animal to desecrate Shabbos. Should the non-Jewish renter or borrower have the animal perform melacha on Shabbos, the Jewish owner violates the Torah prohibition of shevisas beheimah. Prohibiting the sale of large animals to non-Jews avoids a Jew having any financial dealings involving these animals, thus avoiding any potential pitfalls.

Mechameir

The other concern is that the Jew might sell the animal to a non-Jew before Shabbos, but the non-Jew discovers on Shabbos that he cannot get the animal to follow his instructions, so he asks the Jew for help with the animal. If the Jew speaks and the animal obeys his voice and thereby performs melacha, the Jew has directed the animal to work on Shabbos, which is a desecration of mechameir, even should the non-Jew already own the animal.

For those in the cattle business, there are heterim discussed in the Gemara and the halachic authorities; we will leave that topic for another time.

The minority opinions

Having explained why the Mishnah prohibited selling, renting or lending animals to non-Jews, we need to explain why Rabbi Yehudah ruled that it is permitted to sell them a broken animal and Ben Beseira permitted selling them a horse.

We learned that the mitzvos of mechameir and shevisas beheimah prohibit having animals perform melacha for a human. A broken animal is defined as one that cannot work. Presumably, the non-Jew purchasing it does so either for its meat, its leather or its milk, none of which involve a prohibition of either mechameir or shevisas beheimah.

To explain why Ben Beseira permitted selling a horse to a non-Jew, I need to explain a different concept.

Chai nosei es atzmo

In several places, the Gemara discusses a halachic principle called chai nosei es atzmo, literally, “a living thing carries itself” (Shabbos 94a, 141b; Eiruvin 103a; Yoma 66b). This principle teaches that, min haTorah, there is no prohibition on Shabbos to carry a person who is able to walk on his own; carrying someone who can walk on his own is prohibited only miderabbanan. A result of this principle is that riding a horse on Shabbos even in a public area is not prohibited min haTorah since the work being performed by the horse would not be considered a melacha.

Ben Beseira permits selling a riding horse to a non-Jew for the following reason. The prohibition of selling an animal is out of concern that the seller might help the new purchaser ride his horse on Shabbos. However, since riding a horse on Shabbos is only a rabbinic prohibition, banning the sale of a riding horse would be a gezeirah le’gezeirah, a decree of the Sages whose purpose is to make sure that someone not violate another decree, and we generally do not impose gezeirah le’gezeirah. The first opinion disagrees with Ben Beseira because of a concern that an old riding horse might be sold to a non-Jew for its horsepower and be used to grind grain or some similar activity that is prohibited on Shabbos min haTorah.

What is the reason that chai nosei es atzmo removes this act of carrying from the category of being a melacha min haTorah? The rishonim discuss this matter, and Tosafos (Shabbos 94a s.v. Shehachai), after suggesting other possibilities, concludes that the reason is because building the Mishkan never necessitated carrying something that was alive. Although both hides of animals and dyes manufactured from animal sources were used in the construction of the Mishkan, Tosafos concludes that the animals whose hides were used were led, rather than carried, to where they were slaughtered, and the animals that provided sources for the dyes were transported after they were dead. Thus, chai nosei es atzmo exempts from desecrating Shabbos because carrying is violated min haTorah only when performed fairly comparably to the way carrying was done when the Mishkan was constructed (Tosafos, Eruvin 97b s.v. Es and Shabbos 2a s.v. Pashat; see also Penei Yehoshua on Tosafos 94a s.v. Shehachai).

Is this still applicable?

Tosafos (Avodah Zarah 15a s.v. Eimur) notes that, in his day, the rabbinic prohibition against selling large animals was not commonly observed. He explains that, whereas, at the time of the Gemara, a Jew who wished to sell an animal could easily find another Jew interested in purchasing it, this was true only when one lived in an area with a sizable Jewish population. However, in Tosafos’ era, there were usually only a few Jews living within a much larger non-Jewish population, and the market for selling or renting excess animals was the local non-Jewish farm population. Tosafos therefore rules that, under these circumstances, Chazal did not create the prohibition. This approach is codified by later rishonim, and leads to a discussion about the following question:

The Gemara (Shabbos 18b) mentions that, just as a Jew is prohibited from having his animal work for him on Shabbos, Beis Shammai also forbids him from having his other property work for him on Shabbos. According to Beis Shammai, it is forbidden to have Shabbos clocks turn appliances on and off on Shabbos; and it should be also forbidden to cook your cholent in your pot on Shabbos and to have your refrigerator operate. But even the households that followed Bais Shammai cooked cholent. The Gemara questions how does Beis Shammai permit having your pot cook or warm your cholent on Shabbos? The Gemara answers that Beis Shammai contends that the owner of these appliances makes them ownerless, hefker, and ownerless items, like a non-Jew’s property, are not included in the laws of Shabbos.

Rabbeinu Peretz (Hagahos Semaq, quoted by Tur, Orach Chayim 246) utilizes this heter to avoid Avi violating Shabbos when the non-Jew works the animal. He rules that the Jew should declare his animal ownerless (cf: Tosafos, Shabbos 18b, end of s.v. Vehashta and s.v. Dimafkera). Of course, this would seem to cause a financial complication for Avi’s business. If the owner declares the animal ownerless, why can’t the non-Jew just walk off with the animal after Shabbos, claiming that the animal is now his?

Based on his understanding of a passage of Gemara in Nedarim (45a), Rabbeinu Peretz explains that Avi can declare that the animal is hefker only for Shabbos, and this precludes anyone taking possession of it. How and why this works is not entirely clear (see Ran and Rosh ibid.; and Shu”t Rabbi Akiva Eiger 1:145 s.v. Amnam). The Graz (Orach Chayim 246:9) explains that the owner’s hefker takes place only when the animal is being used to perform melacha on Shabbos. As soon as the animal stops doing melacha, the Jew repossesses the animal automatically. If and when the non-Jew begins to do more melacha with the animal, the animal becomes hefker again and returns to the Jew’s possession when it is not doing melacha. The Graz contends that this arrangement makes it impossible for anyone to take possession of the animal, although why this is so is also not obvious.

Evidently, this type of hefker, which precludes the non-Jew from taking possesson of the animal, operates similarly to the rules of selling something temporarily, which is different from renting out a property. Whereas a tenant may not make changes in the property because he does not own it, someone who purchases an item temporarily may make any changes in the property that would be considered normative by an owner. The temporary purchaser may not trash the property, but he may make major renovations to it. And, just as someone may sell an item temporarily, and when the terms of the sale are over the item automatically reverts back to its original owner, so, too, an owner may declare a properly temporarily hefker and then it reverts back to its original owner. This unique method will help Avi avoid violating the law of shevisas beheimah, should a non-Jew not return the animal before Shabbos.

Conclusion

As I mentioned above, animals have no requirement to observe mitzvos. The requirement forbidding melacha is a commandment to us; observing Shabbos requires that we refrain from having animals perform melacha for us. And the reason is simple: For six days of every week, Hashem grants permission, indeed responsibility, to oversee and rule over the world that He created. However, we must always remember that it is He who gave us this authority, and, by observing Shabbos, we demonstrate this. Our power extends over all of creation, including the animal kingdom. Thus, Shabbos limiting our control of animals demonstrates that our authority the rest of the week is only by virtue of the authority granted us by Hashem.

Carrying in Public and the Use of an Eruv

In this week’s parsha, the Torah recounts the story of the manna, also including the unbecoming episode where some people attempted to gather it on Shabbos. In the words of the Torah:

And Moshe said, “Eat it (the manna that remained from Friday) today, for today is Shabbos to Hashem. Today you will not find it (the manna) in the field. Six days you shall gather it, and the Seventh Day is Shabbos – there will be none.”

And it was on the Seventh Day. Some of the people went out to gather, and they did not find.

And Hashem said to Moshe: “For how long will you refuse to observe My commandments and My teachings. See, Hashem gave you the Shabbos. For this reason He provides you with two-day’s supply of bread on the sixth day. On the Seventh Day each person should remain where he is and not leave his place” (Shemos 16:25-29).

Although the Torah’s words each person should remain where he is and not leave his place imply that even leaving one’s home is forbidden, the context implies that one may not leave one’s home while carrying the tools needed to gather manna (Tosafos, Eruvin 17b). The main prohibition taught here is to refrain from carrying from one’s house or any other enclosed area (halachically called reshus hayachid) to an area available for the entire Benei Yisroel in the Desert to traverse, a reshus harabim. Chazal further explain that moving an item in any way from a reshus hayachid to a reshus harabim is a Torah violation, whether one throws it, places it, hands it to someone else, or transports it in any other way (Shabbos 2a, 96). Furthermore, we derive from other sources that one may also not transport an item from a reshus harabim to a reshus hayachid, nor may one transport it four amos (about seven feet) or more within a reshus harabim (Gemara Shabbos 96b; Tosafos, Shabbos 2a s.v. pashat). Thus, carrying into, out of, or within a reshus harabim incurs a severe Torah prohibition. For convenience’s sake, I will refer to portage of an item from one reshus to another or within a reshus harabim as carrying, regardless of the method of conveyance.

One should note that with reference to the melacha of carrying on Shabbos, the terms reshus hayachid and reshus harabim do not relate to the ownership of the respective areas, but are determined by the extent that the areas are enclosed and how they are used. A reshus hayachid could certainly be public property and there are ways whereby an individual could own a reshus harabim.

Notwithstanding the Torah’s clear prohibition against carrying into, from, or within a reshus harabim, we are all familiar with the concept of an eruv that permits carrying in areas that are otherwise prohibited. You might ask, how can poles and wires permit that which is otherwise prohibited min haTorah? As we will soon see, it indeed cannot, and the basis for permitting use of an eruv is far more complicated.

We are also aware of controversies in which one respected authority certifies a particular eruv, while others contend that it is invalid. This is by no means a recent phenomenon. We find extensive disputes among early authorities whether one may construct an eruv in certain areas; some considering it a mitzvah to construct the eruv, whereas others contend that the very same “eruv” is causing people to sin.

AN OLD MACHLOKES

Here is an instance. In the thirteenth century, Rav Yaakov ben Rav Moshe of Alinsiya wrote a letter to the Rosh explaining why he forbade constructing an eruv in his town. In his response, the Rosh contended that Rav Yaakov’s concerns were groundless and that he should immediately construct an eruv. Subsequent correspondence reveals that Rav Yaakov did not change his mind and still refused to erect an eruv in his town. The Rosh severely rebuked Rav Yaakov for this recalcitrance, insisting that if Rav Yaakov persisted, he, the Rosh, would place Rav Yaakov in cherem! The Rosh further contended that Rav Yaakov had the status of a zakein mamrei, a Torah scholar who rules against a decision of the Sanhedrin, which, in the time of the Beis HaMikdash, constitutes a capital offense (Shu”t HaRosh 21:8). This episode demonstrates that heated disputes over eruvin are by no means recent phenomena.

The goal of this article is to explain what allows the construction of an eruv, and present some circumstances in which one authority permits carrying within a specific eruv while another forbids it.

IS IT A MITZVAH?

Before I present the arguments for and against eruv construction in the modern world, we should note that all accept that it is a mitzvah to erect a kosher eruv when this is halachically and practically possible, as the following anecdote indicates.

Rabbah the son of Rav Chanan asked Abayei: “How can it be that an area in which reside two such great scholars (Abayei and Abayei’s Rebbe) is without an eruv?” Abayei answered: “What should we do? It is not respectful for my master to be involved, I am too busy with my studies, and the rest of the people are not concerned” (Eruvin 68a).

The commentaries note that Abayei accepted the position presented by Rabbah that one should assemble an eruv. Abayei merely deflected the inquiry by pointing out that no one was readily available to attend to the eruv, and that its construction did not preempt other factors, specifically Abayei’s commitment to Torah study and the inappropriateness for Abayei’s Rebbe to be involved in the project. Indeed, halachic authorities derive from this Talmudic passage that it is a mitzvah to erect an eruv whenever halachically permitted (Tashbeitz 2:37, quoted verbatim by the Birkei Yosef, Orach Chayim 363:2). These rulings are echoed by such luminaries as the Chasam Sofer (Shu”t Orach Chayim #99), the Avnei Nezer (Orach Chayim #266:4), the Levush Mordechai (Orach Chayim #4) and Rav Moshe Feinstein (Shu”t Igros Moshe, Orach Chayim 1:139:5 s.v. vilichora).

I mentioned before that the construction of an eruv with poles and wires cannot permit carrying that is prohibited min haTorah. If this is true, upon what basis do we permit the construction of an eruv? To answer this question, we need to understand that not every open area is a reshus harabim – quite the contrary, a reshus harabim must meet very specific and complex requirements, including:

(A) It must be unroofed (Shabbos 5a).

(B) It must be meant for public use or thoroughfare (Shabbos 6a).

(D) According to most authorities, it cannot be inside an enclosed area (cf., however, Be’er Heiteiv 345:7, quoting Rashba, and Baal HaMaor, Eruvin 22a,quoting Rabbeinu Efrayim). Exactly what is the definition of an “enclosed area” is the subject of a major dispute that I will discuss.

(E) According to many authorities, it must be used by at least 600,000 people daily (Rashi, Eruvin 59a, but see Rashi ad loc. 6a where he only requires that the city has this many residents.). This is derived from the Torah’s description of carrying into the encampment in the Desert, which we know was populated by 600,000 people.

(F) Many authorities require that it be a through street, or a gathering area that connects to a through street (Rashi, Eruvin 6a).

(G) Some authorities add still other requirements.

Any area that does not meet the Torah’s definition of a reshus harabim, and yet is not enclosed, is called a karmelis. One may not carry into, from, or within a karmelis following the same basic rules that prohibit carrying into a reshus harabim. However, since the prohibition not to carry in a karmelis is only rabbinic in origin, Chazal allowed a more lenient method of “enclosing” it.

CAN ONE “ENCLOSE” A RESHUS HARABIM?

As I mentioned earlier, carrying within a true reshus harabim is prohibited min haTorah – for this reason, the use of a standard eruv does not permit carrying in such an area (Eruvin 6b). Nevertheless, the construction of large doors that restrict public traffic transforms the reshus harabim into an area that one can now enclose with an eruv. According to some authorities, the existence of these doors and occasionally closing them is sufficient for the area to lose its reshus harabim status. (Rashi, Eruvin 6b; However, cf. Rabbeinu Efrayim, quoted by Baal HaMaor, Eruvin 22a).

PLEASE CLOSE THE DOOR!

There are some frum neighborhoods in Eretz Yisroel where a thoroughfare to a neighborhood or town is closed on Shabbos with a door, in order to allow an eruv to be constructed around the area. However, this approach is not practical in most places where people desire to construct an eruv.

So what does one do if one cannot close the area with doors?

This depends on the following issue: Does the area that one wants to enclose meet the requirements of a reshus harabim min haTorah or is it only a karmelis? If the area is a reshus harabim min haTorah and one cannot occasionally close the area with doors, then there is no way to permit carrying in this area. One should abandon the idea of constructing an eruv around the entire city or neighborhood (see Gemara Eruvin 6a; Shulchan Aruch Orach Chayim 364:2). Depending on the circumstances, one may still be able to enclose smaller areas within the city.

TZURAS HAPESACH

However, if the area one wants to enclose does not qualify as a reshus harabim, then most authorities rule that one may enclose the area by using a tzuras hapesach (plural, tzuros hapesach), literally, the form of a doorway. (However, note that Shu”t Mishkenos Yaakov #120 s.v. amnom and Shu”t Mishnas Rav Aharon #6 s.v. Kuntrus Be’Inyanei Eruvin paragraph #2 forbid this.) A tzuras hapesach consists of two vertical side posts and a horizontal “lintel” that passes directly over them, thus resembling a doorway. According to halacha, a tzuras hapesach successfully encloses a karmelis area, but it cannot permit carrying in a true reshus harabim (Eruvin 6a). Using tzuros hapesach is the least expensive and most discreet way to construct an eruv. In a future article, I hope to explain some common problems that can happen while constructing tzuros hapesach and how to avoid them, and some important disputes relative to their construction.

Let us review. One can permit carrying in a karmelis, but not a reshus harabim, by enclosing the area with tzuros hapesach. Therefore, a decisive factor in planning whether one can construct an eruv is whether the area is halachically a karmelis or a reshus harabim. If the area qualifies as a karmelis, then an eruv consisting of tzuros hapesach permits one to carry; if it is a reshus harabim, then tzuros hapesach do not permit carrying. The issues concerning the definition of a reshus harabim form the basis of most controversies as to whether a specific eruv is kosher or not.

600,000 PEOPLE

An early dispute among Rishonim was whether one of the requirements of a reshus harabim is that it be accessible to 600,000 people, the number of male Jews over twenty that the Torah tells us exited Egypt (see Tosafos, Eruvin 6a s.v. Keitzad). According to Rashi and the others who follow this approach, one may enclose any metropolis with a population smaller than 600,000 with tzuros hapesach to permit carrying. (Rashi in some places describes that the city has 600,000 residents, and in others describes that 600,000 people use the area constantly. The exact definition to be used is the subject of much literature, see Shu”t Mishkenos Yaakov #120 s.v. hinei harishon; and Igros Moshe, Orach Chayim 1:139:5.)

However, other early authorities contend that an area with less than 600,000 people still qualifies as a reshus harabim, providing that it fulfills the other requirements that I listed above. In their opinion, such an area cannot be enclosed with tzuros hapesach. Although many authorities hold this way, the accepted practice in Ashkenazic communities was to follow the lenient interpretation and construct eruvin around an area with less than 600,000 people.

Nevertheless, the Mishnah Berurah discourages carrying in such an eruv since many Rishonim do not accept it (364:8; Bi’ur Halacha to 345:7 and to 364:2). There are different opinions whether Sephardim are at liberty to follow this lenience, although the prevalent practice today is for them to be lenient.

MODERN CITY

Most large metropolitan areas today are populated by more than 600,000 people. Some authorities still define many of our metropolitan areas as a karmelis based on the following definition: Any area less concentrated than was the Jews’ encampment in the Desert is considered a karmelis. Since this encampment approximated 50 square miles, these authorities permit an eruv anywhere that the population density is less than 600,000 people per 50 square miles (Shu”t Igros Moshe 4:87). However, other authorities consider any metropolitan area or megalopolis containing 600,000 people to be a reshus harabim, regardless of its population density. Does this mean that there is no heter with which to construct an eruv in a large city? Indeed, many authorities contend this way (Shu”t Mishnas Rav Aharon 1:2).

A LARGE BREACH

The Chazon Ish, however,presented a different approach to permit construction of an eruv in a contemporary large city. His approach requires an introduction.

In general, an area enclosed by three or four full walls cannot be a reshus harabim (Eruvin 22a). What is the halacha if each of the three sides of an area is enclosed for most of its length – however, there are large gaps in the middle of the enclosure. For example, walls or buildings enclose most of an area, but there are gaps in the middle of the area between the buildings where streets cross the city blocks. Does the area in the middle, surrounded on both sides by buildings and other structures, still qualify as a reshus harabim, or has it lost this status because it is mostly “enclosed”?

The basis for the question is the following: There is a general halachic principle that an area that is mostly enclosed is considered enclosed even in its breached areas (Eruvin 5b et al.). For example, a yard enclosed by hedges tall enough to qualify as halachic walls may be considered enclosed notwithstanding that there are open areas between the hedges, since each side is predominantly enclosed either by the hedges or by the house.

On the other hand, a breach wider than ten amos (about 17 feet) invalidates the area from being considered enclosed. Therefore, one may not carry within a fenced-in area that has a 20-foot opening without enclosing the opening in some way.

The issue that affects the modern city is the following: Granted that a large breach needs to be enclosed to permit carrying within the area, but is this required min haTorah or only rabbinically? Let us assume that one encloses a reshus harabim area with walls that run for miles, but the walls have large gaps in the middle. Is this area considered enclosed min haTorah because it is mostly surrounded by walls, or is it considered open because of the gaps?

This question was debated by two great nineteenth-century authorities, Rav Efrayim Zalman Margoliyos, the Beis Efrayim and the Rav of Brody, and Rav Yaakov of Karlin, the Mishkenos Yaakov. The Beis Efrayim contended that a breach is only a rabbinic concern, and that the area is considered enclosed min haTorah, whereas the Mishkenos Yaakov held that a breach qualifies the area as a reshus harabim min haTorah. The lengthy correspondence between the two of them covers also a host of other eruv related issues (Shu”t Beis Efrayim, Orach Chayim # 25, 26; Shu”t Mishkenos Yaakov, Orach Chayim, #120-122).

What difference does it make whether this area is considered open min haTorah or miderabbanan, since either way one cannot carry without enclosing the area?

The difference is highly significant. If we follow the lenient approach of the Beis Efrayim, then even if the area in the middle meets all the other requirements of a reshus harabim, the area loses its status as a reshus harabim because of the walls surrounding it, notwithstanding the large gaps in the walls. In this case, it may be possible to construct an eruv in such a place.

On the other hand, the Mishkenos Yaakov would contend that this area is considered a reshus harabim because of the gaps, and we ignore the walls. According to him it will be impossible to construct an eruv.

How one rules in the dispute between these two gedolim affects the issue of constructing an eruv in a contemporary city. Most modern cities contain city blocks that consist predominantly of large buildings with small areas between the buildings, and streets that are much narrower than the blocks. If we view these buildings as enclosures, then one can easily envision that both sides of the street are considered enclosed min haTorah according to the Beis Efrayim’s analysis. This itself does not sufficiently enclose our area because of the streets that run parallel to the buildings. However, at certain points of the city, the parallel streets dead end into a street that is predominantly enclosed with either buildings, fences, walls, or some other way. The result is that this section of the city can now be considered min haTorah as enclosed on three sides by virtue of the buildings paralleling both sides of the street and those on its dead end. Since this area now qualifies as an enclosed area min haTorah, the entire area is considered a reshus hayachid min haTorah.

The Chazon Ish now notes the following: Once you have established that this part of the city qualifies as a reshus hayachid min haTorah, this area is now considered completely enclosed halachically. For this reason, other city blocks that are predominantly enclosed on both sides of the street that intersect with this first area are also now considered to be enclosed areas min haTorah. According to his calculation, a large section of most cities is considered min haTorah enclosed on at least three sides, according to his calculation. Although one cannot carry in these areas miderabbanan because of the “breaches” in their “enclosures,” they are no longer reshus harabim min haTorah and one can therefore enclose the entire area with tzuros hapesach (Chazon Ish, Orach Chayim 107:5). The Chazon Ish concludes that many large cities today qualify as a karmelis and therefore one may construct tzuros hapesach to permit carrying there.

However, other authorities reject this calculation for a variety of reasons, some contending that the gaps between the buildings invalidate the enclosure, thus leaving the area to be considered a reshus harabim, which cannot be enclosed (Shu”t Mishkenos Yaakov; Shu”t Mishnas Rav Aharon).

In conclusion, we see that disputes among poskim over eruvin are not recent phenomena. In practice, what should an individual do? The solution proposed by Chazal for all such issues is “Aseh lecha rav, vehistaleik min hasafek,” “Choose someone to be your rav, and remove doubt from yourself.” He can guide you whether it is appropriate to carry within a certain eruv, after considering the halachic basis for the specific eruv’s construction, the level of eruv maintenance, and family factors. Never underestimate the psak and advice of your rav!

What If I Goofed and Said Tikanta Shabbos by Mistake?

Question: In the middle of davening Musaf on Shabbos Rosh Chodesh, I realized that I was reciting the Musaf for a regular Shabbos rather than the special Musaf for Shabbos Rosh Chodesh. What should I have done?

Answer:

This Shabbos is also Rosh Chodesh, requiring the recital of a special text for the middle beracha of Musaf. This special Musaf includes elements of the usual Shabbos Musaf, the usual Rosh Chodesh Musaf, and a special introductory passage. This passage, beginning with the words Atah Yatzarta, actually bears close resemblance to the introductory part of the Yom Tov Musaf rather than to Musaf of either Shabbos or Rosh Chodesh. The rest of the middle beracha of Musaf combines elements of both Shabbos Musaf and Rosh Chodesh Musaf.

I once edited an article in which the author quoted several anthologies, each of which ruled that someone still in the middle beracha of shemoneh esrei should immediately stop where he is, and go to the beginning of Atah Yatzarta, and recite the entire beracha. However, I believe that this ruling is in error, which I will explain shortly. But first…

I attempted to trace the sources quoted in the article to see if perhaps I was missing some logic or information that I would clarify in the course of my research.

What I did discover was that each source was simply quoting a previous one, and that they all traced to one obscure 19^th century work, which did not explain at all the reason for the ruling. Classic group-think.

I will now explain why I believe this ruling is in error, and what one should do. My major concern is that the approach that these works advocate results in repeating many parts of the shemoneh esrei, and that this repetition constitutes a forbidden interruption in the tefillah. Furthermore, to the best of my knowledge, there is no essential requirement to recite this middle beracha of the shemoneh esrei precisely in order. Obviously, one should maintain the order as is, but there is ample evidence from major halacha authorites that, in general, mistakenly rearranging the order of a beracha is not calamitous (see, for example, Rosh, Taanis 1:1; Shu”t Igros Moshe, Orach Chayim 4:18 and 4:70:14). Thus, when left with the choice of rearranging the order of a beracha to avoid repetition, or repeating parts of the beracha and ignoring what was already said, one should follow the first approach (cf., however, Biur Halacha 127:2 s.v. Aval).

Based on the above, it appears that someone who discovers that they began reciting Tikanta Shabbos rather than Atah Yatzarta should mention only those parts of the beracha that they had as yet not recited, but not repeat any theme or part of the beracha that one has already said. Although fulfilling this may be confusing to someone unfamiliar with the beracha, this should provide us with a valid reason to pay more attention to the details of this beracha and understand its different parts.

In order to explain how one does this correctly, I will divide the beracha of Atah Yatzarta into its constituent parts, so that we can identify which parts we should not repeat. We can divide it into the following seven sections:

1. The introduction – from the words Atah Yatzarta until (and including) the words shenishtalcha (some recite the text hashelucha) bemikdashecha.

2. The prayer for our return – beginning with the words Yehi Ratzon – until (and including) the word kehilchasam.

3. The sentence that introduces the mention of the pesukim of the Musaf –Ve’es Musafei Yom HaShabbos hazeh… until (and including) the word ka’amur.

4. Mention of the pesukim of the korban Musaf of Shabbos.

5. Mention of the pasuk of the korban Musaf of Rosh Chodesh and the passage Uminchasam… until (and including) the word kehilchasam.

6. The paragraph Yismechu Vemalchusecha that concludes with the words zeicher lemaasei vereishis.

7. The closing of the beracha — Elokeinu Veilokei avoseinu.

On a regular Shabbos we recite the following sections: I have numbered them in a way that parallels the previous list:

1. Tikanta Shabbos – the introduction.

2. Yehi Ratzon – the prayer for our return. This passage then introduces the mention of the pesukim of the Musaf, which includes only the pesukim of Shabbos.

3. Ve’es Musaf Yom HaShabbos hazeh… until the word ka’amur.

4. Mention of the pesukim of the korban Musaf of Shabbos.

6. The paragraph Yismechu Vemalchusecha that concludes with the words zeicher lemaasei vereishis.

7. The closing of the beracha — Elokeinu Veilokei avoseinu. We should note that the closings of the Shabbos and the Shabbos Rosh Chodesh shemoneh esrei prayers are very different. On Shabbos Rosh Chodesh we recite a version that is almost identical to what we recite on a weekday Rosh Chodesh, but we insert three passages to include Shabbos.

See chart next page.

Parts 2, 4 and 6 of the two brachos are identical, whether it is Shabbos or Shabbos Rosh Chodesh. Therefore, one should not repeat these sections if one has said them already.

Part 1 on Shabbos Rosh Chodesh, Atah Yatzarta, is very different from what we usually recite on a regular Shabbos. Therefore, someone who mistakenly said the regular Shabbos beracha should go back and recite this passage (part 1).

If someone missed part 5, which mentions the pesukim of Rosh Chodesh, and is still in the middle of this section, they should recite – the pasuk that describes the korbon of rosh chodesh and introduce it with part 3 above, which introduces the Musaf korbanos. However, if they already recited the pesukim of Shabbos korban Musaf (part 4) above, omit the reference to Shabbos in this piece and only mention Rosh Chodesh. In the latter case, one should change the plural Musafei to a singular Musaf since now he is now referring only to the Rosh Chodesh Musaf.

Having explained the rules governing these halachos, I will now present the conclusions in a hopefully clearer way, depending on when you discover your mistake:

A. If you were still reciting the beginning of Tikanta Shabbos, and had not yet reached Yehi Ratzon:

Return to Atah Yatzarta and recite the beracha in order, without any changes.

B. If you had already begun Yehi Ratzon, but are before Ve’es Musaf Yom HaShabbos hazeh:

Complete the Yehi Ratzon until Ve’es Musaf; then recite Atah Yatzarta until the words Yehi Ratzon, then resume from the words Ve’es Musafei Yom HaShabbos hazeh veyom Rosh Hachodesh hazeh from the Shabbos Rosh Chodesh Musaf and continue through the rest of the tefillah.

C. If you had just begun Ve’es Musaf Yom HaShabbos hazeh:

Add the words Ve’es Musaf Yom Rosh Hachodesh Hazeh, then continue in the Shabbos Rosh Chodesh Musaf until Yismechu Vemalchusecha. Immediately prior to saying Yismechu Vemalchusecha insert the words from Atah Yatzarta until the words shenishtalcha bemikdashecha (part 1). Then return to Yismechu Vemalchusecha and recite the rest of the tefillah in order.

D. If you are already in the middle of Ve’es Musaf Yom HaShabbos hazeh:

Recite Uveyom Hashabbas… until veniskah. Then insert the words from Atah Yatzarta until the words shenishtalcha bemikdashecha. Then return to the words Ve’es Musaf but say the following: Ve’es Musaf Yom Rosh Hachodesh hazeh until the word ka’amur. Then say Uverashei Chadsheichem in the Shabbos Rosh Chodesh section and continue in order.

E. If you are in the middle of Yismechu Vemalchusecha, complete it until Zecher lemaasei vereishis, and then insert the words from Atah Yatzarta until the words shenishtalcha bemikdashecha. Then return to the words Ve’es Musaf but say the following: Ve’es Musaf Yom Rosh Hachodesh hazeh until the word ka’amur. Then say Uverashei Chadsheichem in the Shabbos Rosh Chodesh section. Then go to Elokeinu Veilokei avoseinu (after Yismechu Vemalchusecha) and finish the end of the beracha.

F. If you are already in the middle of the closing part of the beracha (Elokeinu Veilokei Avoseinu) complete the clause that you are saying, and then insert the words from Atah Yatzarta until the words shenishtalcha bemikdashecha. Return to the words Ve’es Musaf but say Ve’es Musaf Yom Rosh Hachodesh hazeh until the word ka’amur. Say Uverashei Chadsheichem from the Shabbos Rosh Chodesh section. Then return to chadeish aleinu beyom haShabbos hazeh es hachodesh hazeh and finish the end of the beracha in the Shabbos Rosh Chodesh section.

If he completed the entire beracha of Tikanta Shabbos, but mentioned in the middle of the brocha some reference to the korban Musaf of Rosh Chodesh, he has fulfilled the requirements of his prayer and he should continue Retzei (see Mishnah Berurah 423:6). If he completed the beracha of Tikanta Shabbos but did not yet begin Retzeih, he should say “venaaseh lefanecha korban Rosh Chodesh hazeh” – “and we shall do before You this Rosh Chodesh offering” – and then continue with Retzeih (ibid.).

Conclusion

Although all this may sound confusing, if you spend a few minutes familiarizing oneself with the divisions of this beracha that I have made, you will easily realize how the parts of the Shabbos and Shabbos Rosh Chodesh davening are aligned. Then you will be ready to make the necessary adjustments should you find that you have erred. This readiness has, of course, a tremendous value on its own: It familiarizes one with the shemoneh esrei, something we always should do, but, unfortunately, is something to which we often do not pay adequate attention.

Understanding how much concern Chazal placed in the relatively minor aspects of davening should make us even more aware of the fact that davening is our attempt at building a relationship with Hashem. As the Kuzari notes, every day should have three very high points — the three times that we daven (or four times on days that we recite Musaf). Certainly, one should do whatever one can to make sure to pay attention to the meaning of the words of one’s Tefillah. We should gain our strength and inspiration for the rest of the day from these prayers. Let us hope that Hashem will accept our tefillos together with those of Klal Yisrael!

Wanted Dead or Alive

Question #1: Getting Rid of those Bugs!

“May I trap or kill mosquitoes, bees, or wasps on Shabbos?”

Question #2: Hanging from the Lowest Tree

“I forgot to hang the flypaper before Shabbos. May I do it on Shabbos?”

Question #3: A Charming Shabbos

“May a snake charmer work on Shabbos?”

Answer: Catching or dispatching

We have all been in the following uncomfortable situation: Sometime during Shabbos, a mosquito appears in our vicinity seeking to earn its living. Although we realize that this creature requires its sustenance, we are not eager that we, our children or our guests should become mosquito fodder, even just as a minor donor. Are we permitted to trap or kill the mosquito?

Trapping living things, tzad, was an action necessary for acquiring some of the materials used to build the Mishkan, and is one of the 39 melachos, categories of prohibited activity on Shabbos (Mishnah Shabbos 73a and Rashi ad loc.). Killing living things also violates the melachos of Shabbos, a topic that we discussed last week. Here, we discuss many pertinent principles of Shabbos and some details of the melachah of tzad.

Shabbos nomenclature

When discussing what one may or may not do on Shabbos, the Mishnah and Gemara use three terms: (1) chayov, punishable, when a particular act constitutes melachah, meaning that it desecrates Shabbos by violating a Torah law; (2) patur, exempt, meaning it does not violate a Torah law, and (3) mutar, permitted, when an act may be performed on Shabbos. We will discuss the middle term, patur, which states that a particular forbidden act does not violate Torah law. This term usually indicates that the act is prohibited due to rabbinic sanction, but sometimes the Sages permitted such acts. But first we will explain what makes performing a forbidden activity patur?

Meleches machsheves

The Gemara (Chagigah 10b; Bava Kama 26b; Kerisus 19b) teaches that the Torah prohibited only something that can be categorized as meleches machsheves, which can perhaps be translated as premeditated melachah. An obvious example of meleches machsheves would be trapping an animal to obtain its hide or meat. Similarly, someone who digs a hole to plant the base of a tree violates the meleches machsheves of choreish, plowing, and one who picks a fruit performs a meleches machsheves of kotzeir, harvesting.

Meleches machsheves is often explained by what it is not. Following that approach, I will provide three categories of labor that are exempt from being defined as desecrating Shabbos min haTorah, because they do not qualify as meleches machsheves, at least according to some opinions.

Mekalkeil

In general, an act constitutes meleches machsheves only when its direct result is beneficial. This means that an action that is inherently destructive does not violate Shabbos min haTorah, even when one needs the result. For example, digging a hole in the ground when one needs the earth but not the hole is defined as a destructive activity and prohibited only miderabbanan. The dug hole itself is a negative development, rendering the burrowing to be mekalkeil, not prohibited min haTorah, but only because of rabbinic injunction. However, digging a hole to plant or to create a posthole results in a positive benefit and is indeed prohibited min haTorah, since one wants the hole in the ground.

Bemino nitzad

Here is a second example of meleches machsheves that is particular to the melachah that we are discussing, tzad. The tanna’im (Shabbos 107b) dispute whether it is prohibited min haTorah to ensnare a creature that mankind does not typically use, such as a scorpion or a flea, which is called ein bemino nitzad, literally, a species that is not trapped. The halachic conclusion follows the lenient opinion, ruling that tzad applies only to a species that is bemino nitzad, commonly trapped, so that mankind can benefit from it. For example, a species that is eaten, from whose body a medicine is extracted, or whose hide is used as leather qualifies as bemino nitzad. The halachic authorities discuss whether trapping an animal for scientific research or so that one can have it as a pet makes the animal bemino nitzad (Rambam, Hilchos Shabbos 10:21; Chazon Ish, Orach Chayim 50:4 at end).

However, a species that is caught only because it is an annoyance has the status of ein bemino nitzad.

Why is this true? The purpose of trapping is to harness a living creature so that mankind can use it. Thus, tzad is a type of acquisition (see Shu”t Avnei Neizer, Orach Chayim 189:7; Biur Halachah, 316:2 s.v. Oh Choleh). However, trapping a creature that mankind does not generally use is not acquiring these creatures, but distancing them from potential victims. Therefore, most opinions conclude that trapping a species that is ein bemino nitzad does not violate the melachah of tzad, and is prohibited only because of rabbinic injunction. Thus, since flies are ein bemino nitzad, catching them would not violate a Torah prohibition. Hanging flypaper on Shabbos would still involve a rabbinic prohibition and it is similarly prohibited to set up a mousetrap on Shabbos (Magen Avraham 316:9; see Piskei Tosafos, Shabbos 17b #62).

By the way, many authorities consider mice to be bemino nitzad, since there are places in the world where their hide is used (Chayei Odom 30:7). There is also a dispute whether a non-kosher species harvested only as food is considered bemino nitzad (Ritva, Shabbos 106b; Nimla Tal, Meleches Tzad #37).

Melachah she’einah tzerichah legufah

Many authorities rule that another category of activity — Melachah she’einah tzerichah legufah, literally, an act not needed for its purpose — is not prohibited min haTorah because it is not considered meleches machsheves. In fact, there is a dispute among tanna’im whether a Melachah she’einah tzerichah legufah is prohibited min haTorah or only miderabbanan. Whereas Rabbi Yehudah contends that Melachah she’einah tzerichah legufah is prohibited min haTorah, according to Rabbi Shimon, these acts are prohibited only by virtue of rabbinic injunction.

What is a Melachah she’einah tzerichah legufah? Among the rishonim, we find differing opinions as to exactly how to define this term, and there are many instances where a dispute in halachah results. Since this complicated question is a bit tangential to our topic, I am going to present only one approach. According to Tosafos (Shabbos 94a s.v. Rabbi Shimon) and the Rivash (Shu”t Harivash #394), Rabbi Shimon contends that the 39 melachos are prohibited min haTorah only when performed for a goal or purpose similar to the reason why this melachah was done when constructing the Mishkan. However, performing a melachah to accomplish a purpose other than that for which this melachah was performed in the Mishkan qualifies as a Melachah she’einah tzerichah legufah. This means that it is prohibited only miderabbanan, according to Rabbi Shimon and those who rule like him.

Here is an example: Removing an item that has a bad odor from a reshus hayachid, an enclosed area, into a reshus harabim, an open area meant for public use, is a classic case of Melachah she’einah tzerichah legufah. Although moving something from a reshus hayachid into a reshus harabim constitutes the melachah of carrying, moving the foul-smelling item from a house to a reshus harabim does not constitute a melachah min haTorah, according to Rabbi Shimon, because the purpose of the carrying when building the Mishkan was to relocate the item to a new place. However, when removing a foul-smelling item, there is no significance attached to the place to which the item is moved; one’s goal is only to distance it from its current location. The public area does not constitute the goal of one’s act; rather, it is merely a convenient place to deposit unwanted material. For this reason, Rabbi Shimon contends that this act was not prohibited by the Torah, but only by the Sages. On the other hand, Rabbi Yehudah considers Melachah she’einah tzerichah legufah as conforming to the definition of meleches machsheves and prohibited min haTorah.

Although most rishonim conclude that the halachah follows Rabbi Shimon that Melachah she’einah tzerichah legufah is prohibited only because of rabbinic injunction, the Rambam and others rule, according to Rabbi Yehudah, that Melachah she’einah tzerichah legufah is prohibited min haTorah.

When exempt is permitted

There is a passage of Gemara that reflects both on our opening question and on a different aspect of the melachah of tzad. “Shemuel said: Whenever the Mishnah states that something is patur when performed on Shabbos, the activity is prohibited [because of a rabbinic injunction], with the exception of the following three instances, when patur means that the activity is permitted. The first case discusses catching a deer, the second is catching a snake and the third is lancing a boil” (Shabbos 3a; 107a, as explained by Tosafos, Shabbos 3a s.v. Bar). Shemuel proves from Mishnayos that, in these three instances, the acts are permitted (Shabbos 107a). The first two of these cases educate us to understand what constitutes the melachah of trapping. (The case of lancing a boil involves a different topic that we will leave for a different article.)

What are the first two cases presented by Shemuel? The first situation is when a deer entered a building, and someone sat in the doorway of the building, thereby preventing the deer’s escape. When that person sat down, he trapped the deer and therefore performed the melachah of tzad. This is true, even if he was not involved in coaxing the deer into the building. The Mishnah (Shabbos 106b) then states that if a second person sits alongside the first in a way that the deer’s escape is still blocked, even when the first person gets up, the second person has not desecrated Shabbos. This is because the second person did not trap the deer but merely guaranteed that a captured animal remains in captivity. Although the Mishnah says that the second person is patur, Shemuel explains that one may lechatchilah sit down alongside the first person, even if one’s intention is to keep the deer trapped when the first person gets up. This explains a different aspect of tzad — the melachah is making the animal available for human use, but once it is already trapped, there is no further violation in keeping it under human control.

The second case is based on two different mishnayos. One Mishnah (Shabbos 107a) permits catching a scorpion, so that it doesn’t bite, and another states that catching a snake to prevent it from biting does not violate Shabbos min haTorah, whereas catching it for medicinal uses does (Eduyos 2:5). Tosafos proves that both Mishnayos that permit tzad to protect someone are discussing creatures whose bite is painful, but not life-threatening, pikuach nefesh (Tosafos, Shabbos 3a s.v. Bar). Were the Mishnah discussing a creature whose bite is life-threatening, it would be obvious that one may kill it, because of the general rule that actions necessary to protect life supersede Shabbos and almost all other mitzvos.

Shemuel ruled that although catching non-dangerous creatures is ordinarily prohibited on Shabbos, since this involves only a rabbinic injunction the Sages permitted it under extenuating circumstances.

Why is the act of trapping non-dangerous creatures considered only a rabbinic injunction? We have already presented two possible reasons. The first is because of the principle of Melachah she’einah tzerichah legufah, since one has no interest in capturing a snake or a scorpion (Tosafos op. cit.). The second reason is that one is not catching these species to make them available for human use, which is an essential component of the melachah of tzad (Avnei Neizer, Orach Chayim 189:7; Biur Halachah, 316:2 s.v. Oh Choleh).

Mosquitoes versus snakes

Although we have discovered that one may catch snakes and scorpions that are not life-threatening, this does not tell us whether one may trap mosquitoes, bees or wasps. Although the sting or bite of these species is indeed painful, it is not usually as painful as a snake or scorpion bite. Thus, it might be that Chazal did not permit catching mosquitoes, bees or wasps.

We can presumably derive the answer from the following passage of Gemara:

“Someone who trapped a flea on Shabbos, Rabbi Eliezer rules him liable for desecrating Shabbos min haTorah, whereas Rabbi Yehoshua rules that his desecration of Shabbos was only of a rabbinic ordinance” (Shabbos 107b). The Gemara explains that this dispute is dependent on an issue that we discussed earlier. Does one desecrate Shabbos min haTorah if he traps a species that is not usually trapped? Rabbi Eliezer rules that he does, whereas Rabbi Yehoshua rules that he does not. Thus, it appears from this Gemara that although Shemuel proved that it is permitted to trap a scorpion, even of the non-deadly variety, one cannot trap a flea, which is considered only as causing discomfort.

Three types of varmints

We can, therefore, divide the different types of unpleasant biters and stingers into three categories:

1. Those that are potentially life-threatening to people. In this instance, if there is even the slightest possibility of danger, one may kill or catch them on Shabbos.

2. Those whose bite will be very painful, but there is no life-threatening danger. These may be trapped on Shabbos, provided that one’s intent is only to save people from harm (Rambam, Hilchos Shabbos 10:25). However, it is forbidden to trap if one intends to use the insect, reptile or arachnid. (Modern biology categorizes spiders and scorpions as arachnids, because they have eight legs, are carnivorous and are wingless. If we want to categorize insects and arachnids together, we should use the word arthropods, but that still excludes snakes and other reptiles. So, for most of this article, I have simply used the word creatures. My apologies to the scientists who are reading this.)

3. Those whose bite will be unpleasant, but not highly painful. In this instance, there is a dispute among the rishonim. Tosafos and the Rosh quote from an earlier baal Tosafos named Rav Poras that, if one sees that an insect may bite him, he is permitted to remove the insect. When the insect is not so close to him, he may brush the insect off, but he may not trap it.

Not all authorities accepted Rav Poras’ approach. The Mordechai (#402) quotes Rav Yehudah Gaon that he noticed that the “elder rabbis” did not trap fleas, even when they were on their skin. The Beis Yosef, however, contends that even Rav Yehudah Gaon accepts the ruling of Rav Poras, but that he himself practiced this as a personal chumrah, not as the required halachah that he would rule for others. There are other rishonim, however, who certainly disagree with Rav Poras and prohibit trapping mosquitoes, even when they are on your skin, since they are only a discomfort (Meiri, Shabbos 107b).

Consensus

The consensus of halachic authorities follows Rav Poras, although there is a dispute among them whether it is permitted to catch the insect only when it is actually biting (Shulchan Aruch, Orach Chayim 316:9; Bach) or whether one may remove the insects even when they are in close proximity (Taz 316:8; Magen Avraham 316:18; Elyah Rabbah). The Mishnah Berurah (316:37) concludes that when one can brush off the insect, he should not rely on the heter of trapping it, but he implies that one may trap the insect if brushing it off will not suffice.

Answers

At this point, let us take a fresh look at our original questions:

“May I trap mosquitoes, bees, or wasps on Shabbos?”

The answer is that if the insect is about to attack someone, one may trap it. One may also trap it if its sting or bite is very painful, and certainly if it is potentially dangerous.

May one hang flypaper on Shabbos? The answer is that one may not.

“May a snake charmer work on Shabbos?” If one is not intending to use the snake, it is permitted. This is all the more so if the snake is dangerous.

In conclusion

Rav Samson Raphael Hirsch (Shemos 20:10) notes that people mistakenly think that work is prohibited on Shabbos, to ensure that Shabbos is a day of rest. He points out that the Torah does not prohibit doing avodah, which connotes hard work, but melachah, which implies purpose and accomplishment. We certainly see this idea borne out by the ideas of meleches machsheves, which denote the purpose of the action, and have no correlation at all to the amount of energy expended. The goal of Shabbos is to allow Hashem’s rule to be the focus of creation by our refraining from our own creative acts (Rav Samson Raphael Hirsch Commentary to Shemos 20:11).

May I Take Lives?

Introduction

One of the 39 melachos on Shabbos is netilas neshamah, literally, taking a life. Although we may not want to consider this to be a constructive activity, we recognize that the animal world was placed under our control to use it responsibly and respectfully. This article will discuss some of the details of the halachos of Shabbos that are included in this melacha.

When listing the melachos, the Mishnah, refers to it as hashocheit, meaning he who slaughters. (Later in the article, I will discuss why the Mishnah refers to it in this manner, rather than the more technically accurate hanoteil neshama.) To quote the Mishnah, “One who traps a deer, one who slaughters it, one who skins it, one who salts the hide, one who tans the hide, one who scrapes off the hair, and one who cuts it to size” (Shabbos 73a). Performing any of these activities on Shabbos violates one of the 39 main categories of desecrating Shabbos, what we call an av melacha. As we will see shortly, there are also tolados melacha, subcategories of these 39, which also involve a Torah violation of Shabbos.

An obvious question is that the Mishnah lists “salting the hide” and “tanning the hide” as two different melachos, which is strange, since salting is one of the stages in tanning, and, therefore, does not comprise a separate av melacha. The Gemara notes that this is indeed true, and that “salting” should therefore be deleted from the Mishnah. Since this would result in the Mishnah listing only 38 melachos and not 39, the Gemara explains that a different melacha, called mesarteit, should be included. Mesarteit means “marking,” which, according to Rashi, refers to scoring or marking leather in order to know where to cut it (Shabbos 75b). According to the Rambam (Hilchos Shabbos 11:17), mesarteit is scoring paper or parchment in order to be able to write on it neatly. The Rambam explains that a toladah of this melacha would be to mark lumber prior to sawing it. Marking a precious stone in order to decide how to cut it is another application of mesarteit (Minchas Chinuch). An interesting contemporary example might be when a surgeon marks a patient’s skin where he intends to make his incision.

Purpose of shocheit

Returning to shocheit, this melacha was necessary to prepare materials for the construction of the Mishkan, such as the hides of the rams and the techashim, the unusual species that appeared on earth so that its hide could be used in the construction of the Mishkan and then became extinct (Shabbos 28b).

Chilazon catching

There is halachic discussion regarding whether the melacha of shocheit was necessary to create the dyes prepared from the chilazon, the fish from which the techeiles was made. Allow me to explain. The Gemara (Shabbos 75a) quotes a beraysa, a teaching dating to the era of the Mishnah, that there is a machlokes tanna’im regarding someone who catches a chilazon and squeezes out its liquid used for dyeing. Does he violate only the melacha of trapping or is he also liable for extracting the dye, which would violate the melacha of dosh, threshing. The Gemara then asks why this process does not also violate the melacha of netilas neshamah. The Gemara quotes two answers to this question:

Rabbi Yochanan explains that processing dyes from a live chilazon indeed violates netilas neshamah, but the beraysa omits this fact, because it is discussing a case where the chilazon is already dead.

Rava answers that the beraysa may indeed be discussing someone extracting dye from a live chilazon, yet he does not violate netilas neshamah because the dyer is trying to keep the chilazon alive while he extracts its dye, since it produces better color when it is alive (Shabbos 75a). Notwithstanding the fact that the extraction will kill the chilazon, since the dyer is trying to keep it alive, he does not violate a melacha for killing it, according to this opinion.

Bleeding

Causing a person or animal to bleed on Shabbos is a Torah violation of shocheit. Which of the 39 melachos does this violate? This is the subject of a major dispute among the rishonim, many of whom conclude that one violates the melacha of netilas neshamah. A question already raised by the rishonim is that if netilas neshamah is the taking of life, why does one violate it when all he did was cause a loss of blood?

The answer is that since the posuk states, ki hadam hu hanefesh, that blood is life, causing bleeding is considered, for the purposes of this melacha, the same as taking life (Tosafos, Kesubos 5b s.v. Dam and Shabbos 75a s.v. Ki).

Causing what we call a black-and-blue mark, which means that there is some form of bruising or superficial bleeding beneath the skin, also violates shocheit min haTorah (Shabbos 107b and Rashi).

As we have learned, the concept of meleches shocheit is taking the life of an animal. It refers to the instances in which it was necessary to take an animal’s life (netilas neshamah) in order to prepare materials for the construction of the Mishkan. However, this netilas neshamah did not require ritual slaughter. To quote the Rambam (Hilchos Shabbos 11:1): “One who slaughters is obligated for desecrating Shabbos, and not only one who slaughters, but anyone who takes the life of any living creature, be it a mammal, a bird, a fish or a creeping creature; whether he took its life through shechitah, nechirah, or by beating it.” I will explain shortly what the word nechirah means.

Drowning

Several later authorities conclude that drowning an animal on Shabbos similarly violates netilas neshamah min haTorah (Shu”t Chavos Yair #164; Nishmas Odom 31:3).

Fish out of water

Removing a fish from water violates netilas neshamah (Rashi, Shabbos 107b; Rambam, Hilchos Shabbos 11:1). To quote the Gemara, “Shmuel said, one who removes a fish from water is guilty of desecrating Shabbos once a coin-sized part of its skin has dried out” (Shabbos 107b). The Gemara then adds that this is true when the dried-out area is between its fins, since, once the fish has dried out this much, it will die, even should one return it to water.

One who catches a fish and hauls it out of the water violates both trapping, tzad, and taking its life. If it was caught from before Shabbos, but left in the water until Shabbos, one who removes it from the water is in violation only for killing it. Someone who trapped the fish on Shabbos and placed it into a bucket of water violated tzad, but not killing it.

Wrong name

At this point, I will discuss a question alluded to earlier. Although when we use the word shechitah, we ordinarily mean the halachically accepted method of preparing an animal for the Jewish table, the word can be used as a translation for any instance in which one would use the word slaughter in English. (See, for example, Yirmiyohu 52:10.) Why, then, does the Mishnah call the melacha “hashocheit,” rather than the broader and more accurate term hanoteil neshamah, “one who takes the life of an animal?”

The answer is that, in truth, the melacha is killing an animal and not necessarily shechting it. However, the Mishnah (Shabbos 73a) uses the term “hashocheit” because it chooses, for its own educational reasons, the example of a deer (“one who traps a deer, one who slaughters it, etc.”), and prefers expressing the name of the melacha in the context of processing it for kosher food.

Baking or cooking?

This is similar to another case in the same Mishnah, regarding the melacha that we usually call bishul, cooking, which the Mishnah calls “ofeh,” baking. The “cooking” performed in the construction of the Mishkan was the heating of dyes in vats, in which cloth was placed for dyeing. Nevertheless, the Mishnah calls the melacha ofeh, baking, since it fits the Mishnah’s pedagogic style better to refer to the baking of bread, notwithstanding that no baking was involved in the construction of the Mishkan (Shabbos 74b).

Nechirah

We quoted, above, the Rambam’s statement that someone who kills an animal by means of nechirah has violated the av melacha of netilas neshamah. What is nechirah?

In Modern Hebrew, the word nechirah means stabbing an animal to death, a common method of non-kosher slaughter. However, there is no evidence in traditional sources that this is what the word means. From the Mishnah (Bava Kama 7:5; Chullin 5:3; 6:2), we see that the word nechirah refers to a means of killing an animal, but it is unclear exactly which method is intended. Further complicating matters is that Rashi, in two different places, presents two contrary approaches. In Chullin (85b) he explains nechirah to mean choking an animal to death, whereas in Bava Kama (78b), he understands it differently, relating the word nechirah to the Hebrew word for nostril, nechir, which has the same root.

The Rambam could not have understood nocheir to mean choking, because he explains (Hilchos Shabbos 11:1) that choking an animal is a toladah of netilas neshamah, whereas he explains that nechirah is the av melacha itself. Since he wrote no other description, we cannot ascertain what he understood nechirah to mean. Thus, we are left with no definitive conclusion regarding what constitutes nechirah.

Av versus toladah

The statement of the Rambam that I just quoted raises a different question: Indeed, why is choking an animal only a toladah of netilas neshama and not the av melacha itself? Perhaps this is because choking withholds something vital from the animal (air) rather than directly killing it (Nimla Tal, Meleches Shocheit #32).

Dyeing or dying?

In this context, we cannot ignore a seemingly very strange passage of Gemara (Shabbos 75a-b, as explained by Tosafos). “Why is slaughtering on Shabbos a punishable offense for desecrating Shabbos? Rav said because of dyeing, and Shmuel said because of taking a life.” The Gemara then asked of Rav, is slaughtering only a violation of dyeing and not of taking a life? To this, the Gemara replies that Rav meant that slaughtering violates two prohibitions on Shabbos, one for taking a life and the other for dyeing. The Gemara then explains why Rav contends that the shocheit also violates dyeing: The butcher wants part of the hide of a freshly slaughtered animal to look bright red, because it attracts customers interested in purchasing fresh meat. This is an adequate reason to consider the slaughtering a melacha of dyeing.

Dies after Shabbos?

What is the halacha if someone removed a fish from water towards the very end of Shabbos, but the fish did not die until Shabbos was over? Has the person violated Shabbos min haTorah, since his action was performed on Shabbos, or has he not, since the fish did not die until motza’ei Shabbos? This subject is debated by several late authorities (see, for example, Rashash, Shabbos 73a; Minchas Chinuch 298:8; Tzafnas Paneiach, Hilchos Shabbos 9:1; Eglei Tal, Meleches Zorei’a 8:8).

Positive purpose

A general principle regarding the melachos of Shabbos is that they are prohibited min haTorah only when they provide a positive benefit, what we call a tikun (Mishnah Shabbos 105b). Performing a melacha activity whose direct result is negative is called mekalkeil and does not violate Shabbos min haTorah. For example, digging a hole on Shabbos only because one needs some earth with which to cover a spill is not a violation of the melacha min haTorah, but only miderabbanan. The reason is that the hole is itself not an advantage. One violates the melacha of choreish, plowing, only when one creates a furrow or something similar, such that the digging itself results in something beneficial.

A consequence of this principle is that violating netilas neshamah min haTorah requires that the result is positive – it creates or is a stage in the creation of meat, leather, dye or something similar. (Although there is a tanna, Rabbi Shimon, who rules that netilas neshamah is an exception to the general rule of mekalkeil [Shabbos 106a], the halacha does not follow his approach [Rambam, Hilchos Shabbos 8:8, 12:1; Rashi, Chullin 40a s.v. Shalosh; Tosafos, Chullin 29b s.v. Kegon].)

Killing insects

The halacha that a melacha activity is prohibited min haTorah only when its results are positive affects the following common question: Is killing annoying insects on Shabbos prohibited min haTorah? If it is prohibited min haTorah, the only reason to permit eliminating these insects is when they pose a threat to life. However, if the prohibition is only miderabbanan, there may be other grounds upon which to permit this, under extenuating circumstances. Although we will leave details of this for a different time, we now realize that a Torah prohibition is involved only when someone intends to put the insect remains to good use.

I will now present a more detailed discussion about this idea, which requires an introduction germane to a different, seemingly unrelated topic.

Value added

It is prohibited min haTorah to have any benefit from something that was used to worship idols. The Gemara (Chullin 8a) rules that, notwithstanding this law, one is permitted to perform the act of shechitah with a knife that was designated for idol worship. How can this be permitted?

The Gemara assumes that an animal is worth more in the marketplace when alive than after shechitah. This was certainly true in the time of the Gemara, when a living animal could be used for hauling or other employment, something difficult to get it to do after shechitah. The Gemara explains that since an animal is worth more alive than dead, no value was added when the prohibited appliance changed the animal from employee to food. Thus, shechitah did not add any value, and the shechitah knife’s contribution is considered negative. In other words, this act is considered mekalkeil. And this is halachically true, even if you are a butcher with a long line of customers waiting to purchase fresh meat.

The Gemara then states that, although we have established that the avodah zarah knife may be used to shecht the animal, it is forbidden to use that knife to slice up the meat after shechitah has been completed. This is because, at this point, cutting up and slicing the meat add financial value.

The animal is sick

There is an old Yiddish proverb: When a poor man eats chicken, one of them is sick. This proverb can be used to explain the next passage of the Gemara that we have been studying: Rava explained that sometimes it is prohibited to shecht with this avodah zarah knife. When? In the case of a sick animal whose life is in danger, but it is not a tereifah, meaning that its illness does not affect its kashrus status. In this instance, slaughtering the animal, thus permitting its meat for Jewish consumption, increases the value of the animal, since a sick animal cannot work and may die without the benefit of shechitah, which would severely decrease its value. Thus, this shechitah adds financial value, and, as a result, may not be performed with an avodah zarah knife.

Honored guest

The next point in the Gemara is that although we have just established that one may not slice up meat with an avodah zarah knife, there is a situation in which this is permitted. When is this? If it is a nice cut of meat that would be suitable to serve to an honored guest, but one chooses to cut it up. Although this may make it more serviceable for your family, on an objective level it has decreased the value of the meat, since upper echelon people would no longer purchase it. Since the slicing in this instance reduces the commercial value of the meat, it is considered mekalkeil, and therefore permitted to be done with an avodah zarah knife.

Isn’t all shechitah mekalkeil?

On the basis of this Talmudic discussion, Tosafos (Shabbos 106a) asks: Should not every act of shechitah qualify as mekalkeil, whenever the animal is worth more as a work animal? If that is true, then most acts of shechitah will be exempt from desecrating Shabbos, something that the Gemara, in the above-quoted dispute between Rav and Shmuel, should have noted, but did not.

There are several answers to this question. Some assume that the two mitzvos, Shabbos and avodah zarah, follow different rules. Regarding avodah zarah, there must be a financial net gain for it to be considered that one “benefited” from the prohibition. Regarding the laws of Shabbos, a person’s subjective interest that this animal becomes meat is enough reason to render the melacha a tikun (Sefer Yerei’im).

Conclusion

Rav Samson Raphael Hirsch (Shemos 20:10) notes that people mistakenly think that work is prohibited on Shabbos in order to provide a day of rest. This is incorrect, he points out, because the Torah does not prohibit doing avodah, which connotes hard work, but melacha, which implies work with purpose and accomplishment. On Shabbos, we refrain from altering the world with our own creative acts and instead emphasize Hashem’s role (Shemos 20:11). We thereby acknowledge the true Builder and Creator of the world and all that it contains.

Carrying on Shabbos

Question #1: A Private Area Owned Publicly?

Can a “private area” be under public ownership?

Question #2: Owning a Public Area

Is it possible to own a public area?

Foreword

The 39^th of the melachos of Shabbos is usually called “carrying,” although the Hebrew term hamotzi (Shabbos 73a) translates as “removing,” moving something from an enclosed to a public area. In parshas Beshalach, the Torah states: Hashem gave you the Shabbos. For this reason, He provides you with two days’ supply of bread on the sixth day. Each person should remain where he is and not leave his place on the seventh day” (Shemos 16:29).

The sentence each person should remain where he is and not leave his place means not to leave home while carrying the tools needed to gather the mann (Tosafos, Eiruvin 17b). Thus, the Torah prohibits carrying from one’s house, or any other enclosed area (halachically called a reshus hayachid), to a reshus harabim, an area established for public use. Chazal further explain that moving an item from a reshus hayachid to a reshus harabim violates Torah law even if someone did not carry it but remained in the reshus hayachid and threw it or handed it to someone else, as long as the item was transferred from a reshus hayachid to a reshus harabim (Shabbos 2a, 96a-b).

Reshus harabim to reshus hayachid

We derive from other sources that it is prohibited min haTorah to transport an item in the other direction — from a reshus harabim to a reshus hayachid — and also to carry or transport it four amos (about seven feet) or more within a reshus harabim (Shabbos 96b; Tosafos, Shabbos 2a s.v. Pashat). Since the melacha includes more than “carrying” or “removing,” a more accurate English term for this melacha is probably “transporting” or “conveying.”

The purpose of this article is to provide introductory information identifying what qualifies as a reshus hayachid and a reshus harabim min haTorah, and the names and definitions of two other jurisdictions. There are far too many details in this melacha to cover in one article, and, therefore, providing practical halacha le’maaseh will need to wait for further articles on the subject.

Introduction

Germane to the min haTorah laws of carrying on Shabbos, every place in the universe falls under one of three Torah categories: reshus hayachid, an enclosed area; reshus harabim, an area meant for public thoroughfare or for public use; and makom petur, an area that does not meet the definitions of either a reshus hayachid or a reshus harabim. There is also a fourth area created by rabbinic injunction, called a carmelis, which we will discuss.

Reshus hayachid – these words literally mean a private domain. The term means an enclosed area and has nothing to do with who owns it. Min haTorah, a reshus hayachid does not need to be fully enclosed; it is sufficient if it is enclosed most of its way around by walls, or their equivalent, that are at least ten tefachim tall (approximately three feet). (There are disputes about details that we will leave for the time being.)

A reshus hayachid must be at least four tefachim (approximately fourteen inches) long by four tefachim wide. If the area is narrower than four tefachim, it is not a reshus hayachid, but a makom petur, which we will define shortly.

From the depths

The walls of a reshus hayachid need not necessarily go up – they can go down from ground level. In other words, a pit, a manhole, a sewer or a mine that is at least ten tefachim deep and four tefachim long and wide also qualifies as a reshus hayachid. Carrying from this “hole in the ground” into a reshus harabim, or from a reshus harabim into it, are violations of Torah law.

Sloping reshus hayachid

Some or all of the “walls” of a reshus hayachid can be created by the slope of a mound whose top is at least ten tefachim higher than the area around it, and the mound rises to this height within a walking distance of four amos or less, thus creating a significant angle of slope (Shabbos 100a; see Mishnah Berurah 345:5).

Above

Once an area is categorized as a reshus hayachid, the space above it also qualifies as a reshus hayachid, regardless of the height. This is referred to by Chazal as reshus hayachid olah ad larakia (Shabbos 7a, b; Eiruvin 32b, 34b), literally, “a private domain rises to the sky.” Thus, since throwing something from a reshus harabim to a reshus hayachid is a melacha de’oraysa, tossing an item on Shabbos from a reshus harabim that lands on top of a pole in a reshus hayachid violates a Torah prohibition of carrying. This is true even if the item lands at a point hundreds of feet above the ground.

The walls enclosing a reshus hayachid are part of the reshus hayachid. Therefore, atop the walls is also part of the reshus hayachid, as well as any drawers, shelves, cracks or crevices along its inside walls, regardless as to their dimensions or height (Shulchan Aruch, Orach Chayim 345:4). The Shulchan Aruch concludes that the entire crevice, even when it penetrates the entire wall to a reshus harabim area on the opposite side, is part of the reshus hayachid. However, in one instance some later authorities disagree with the conclusion of the Shulchan Aruch. When the crevice is in the lowest ten tefachim of the reshus hayachid and it passes through the wall to the reshus harabim on the other side, the Elya Rabbah and the Gra conclude that the crevice has the halachic status of a reshus harabim, not a reshus hayachid.

Movable reshus hayachid

A reshus hayachid can be portable and can even be a storage item or vessel sitting in a reshus harabim. Thus, the standard American mailbox sitting on the street corner, which is larger than four tefachim by four tefachim and more than ten tefachim tall, is a reshus hayachid, notwithstanding its location in a public area. Garbage cans whose sides are at least ten tefachim tall and contain an area at least four tefachim by four tefachim qualify as a reshus hayachid, both inside and above it. If the garbage can is round, it must be large enough to contain a square area four tefachim on each side (Shulchan Aruch, Orach Chayim 345:6).

Thus, moving something lying on the street onto or into a mailbox, garbage can or dumpster may violate carrying on Shabbos min haTorah.

Similarly, the hood, trunk or roof of an automobile are reshuyos hayachid, since they are ten or more tefachim tall and at least four tefachim wide and long. Therefore, carrying an item from a reshus harabim and placing it atop a car or truck, or removing something from atop a car or truck and placing it in reshus harabim are violations of carrying min haTorah.

A publicly owned, private area?

At this point, we can address our opening question: Can a “private area” be under public ownership?

The answer is that it can. Germane to the rules of Shabbos, a “private area,” reshus hayachid, refers to it being enclosed, not to who owns it.

Reshus harabim

Reshus harabim, which literally means “a public domain,” refers to an area intended for public use. There are several requirements for an area to qualify as a reshus harabim, the most basic being that it must be at least sixteen amos (about twenty-eight feet) wide (Shabbos 99a), that it must be unroofed (Shabbos 5a) and that it is meant to be a public thoroughfare or for other public use, such as a marketplace (Shabbos 6a). It is not required that it be sixteen amos wide for its entire length — if there are places in which it narrows to a width of only 13 1/3 amos, it still qualifies as a reshus harabim (Shulchan Aruch, Orach Chayim 345:9).

A side street or alleyway that is less than 16 amos wide qualifies as a reshus harabim if it connects two reshus harabim areas (Shulchan Aruch, Orach Chayim 345:8). Similarly, an intra-city road leading from one city to another is a reshus harabim, even if it is less than 16 amos wide, when the cities it connects qualify as a reshuyos harabim.

Some authorities contend that a reshus harabim cannot be inside an enclosed area. However, the Be’er Heiteiv (345:7), quotingthe Rashba, andthe Baal Hama’or (Eiruvin 22a),quoting Rabbeinu Efrayim, disagree with this last opinion, contending that an area sixteen amos wide meant for public thoroughfare is a reshus harabim, even if it is enclosed by walls.

Below three tefachim

As opposed to a reshus hayachid, which includes all the area above it, a reshus harabim includes only the area near the ground. In other words, if the ground is not perfectly smooth, the three lowest tefachim of the small hills and indentations, both below and above street height, are part of the reshus harabim. An area that rises more than three tefachim above or is more than three tefachim below street height is no longer part of the reshus harabim. At times, as we will soon see, the area more than three tefachim above the reshus harabim is a makom petur.

600,000

The rishonim dispute whether an area that meets all the other requirements of a reshus harabim, but does not service 600,000 people on a regular basis, qualifies as a reshus harabim (Rashi, Eiruvin 6a and 59a; Tosafos, Eiruvin 6a s.v. Keitzad). For a reason I will explain shortly, those who require 600,000 people for the area to be a reshus harabim permit an eiruv in an area that does not have this many people even when it meets the other requirements of a reshus harabim. The established practice among Ashkenazim is to rely on this approach (Taz and Magen Avraham, Orach Chayim 345), although not all authorities accept it (Shu”t Mishkenos Yaakov #120 s.v. Hinei harishon and Biur Halacha 345:7 s.v. She’ein).

Whether Sefardim rely on this approach is disputed by later authorities (commentaries on Shulchan Aruch, Orach Chayim 345:7 and 303:18). The exact definition of what is meant that “600,000 use the area” is the subject of much literature and dispute. (Among numerous other authorities, see commentaries on the Gemara and Shulchan Aruch, Orach Chayim passages above; Shu”t Beis Efrayim, Orach Chayim #25, 26; Shu”t Igros Moshe, Orach Chayim 1:139:5; Shu”t Mishnas Aharon, Orach Chayim #6.)

Within a reshus harabim

Carrying more than four amos in a reshus harabim is forbidden and usually violates a melacha min haTorah. Carrying an item from a reshus hayachid to a reshus harabim or from a reshus harabim to a reshus hayachid also usually violates a melacha min haTorah.

Usually an area enclosed by walls does not qualify as a reshus harabim (Eiruvin 22a). What is the halacha if an area is enclosed for most of its length, but there are large gaps in the enclosure? For example, walls or buildings enclose most of an area – however, in the middle of the area there are streets that cross through city blocks. Is this area that is mostly surrounded by buildings and other structures considered a reshus harabim because of its use, or has it lost this status because it is “enclosed”?

The Beis Efrayim and the Chazon Ish (Orach Chayim 107:5) contend that this is considered an enclosed area min haTorah, notwithstanding the large breaches in its enclosure, whereas the Mishkenos Yaakov and Rav Aharon Kotler consider it to be a reshus harabim min haTorah. The lengthy correspondence on this question between the Beis Efrayim and the Mishkenos Yaakov also covers a host of other related issues (Shu”t Beis Efrayim, Orach Chayim # 25, 26; Shu”t Mishkenos Yaakov, Orach Chayim, #120-122).

Owning a Public Area

At this point, we can address the second of our opening questions: Is it possible to own a public area? If the question is whether privately owned property can qualify as reshus harabim (i.e., it has the physical properties that define a reshus harabim for hilchos Shabbos), the answer is “yes.”

Makom petur

This is an area into, within and from which there is no prohibition of carrying on Shabbos at all. In other words, it is 100% permitted to transport an item from a reshus harabim to or from a makom petur on Shabbos, or to or from a reshus hayachid from a makom petur. But before getting excited that we can now circumvent the violation of carrying on Shabbos, we must note that it is forbidden to use a makom petur as a transit point to move something from a reshus hayachid to a reshus harabim, or vice versa. In other words, if an item started Shabbos in a reshus hayachid and was moved to a makom petur, it cannot then be moved to a reshus harabim. Similarly, an item that started Shabbos in a reshus harabim and moved to a makom petur cannot be moved afterward to a reshus hayachid.

A makom petur is an area less than four tefachim wide that is at least three tefachim high or is enclosed within “walls” that are this high. A telephone pole or a street sign qualify as a makom petur since they are more than three tefachim tall and less than four tefachim wide, as does a British or Israeli mailbox, which are significantly smaller than American mailboxes.

An area enclosed between parallel walls that are within four tefachim of one another is a makom petur, regardless of the length of the area. Similarly, a ditch or furrow narrower than four tefachim whose sides are three tefachim deep is a makom petur, even though it may be many miles long (Shulchan Aruch, Orach Chayim 345:19).

I noted above that it is permitted to transport an item on Shabbos from either a reshus harabim or a reshus hayachid to or from a makom petur. However, before attempting to do this, be aware that within a reshus hayachid, there is never a halacha of makom petur. Once an area qualifies as a reshus hayachid, everything inside and above it is also a reshus hayachid. More importantly, the rishonim dispute whether a makom petur exists within the area called a carmelis (which I will explain in the next paragraph). Those who hold that an area that would otherwise be a makom petur, but is inside a carmelis, has the status of a carmelis, will not permit moving an item from a reshus harabim or a reshus hayachid to or from it (Rema, Orach Chayim 345:19). Both the Rema and most acharonim rule according to the more stringent opinion, which severely limits the heter of a makom petur (Mishnah Berurah 345:87; however, see Biur Halacha 345:19 s.v. Veyeish).

Carmelis

Now that we have clarified the three areas that exist under Torah law, I need to explain a fourth area called a carmelis. A carmelis is a domain created by Chazal that has the stringencies of both a reshus hayachid and a reshus harabim. Thus, it is prohibited to carry to or from a carmelis to a reshus harabim (because a carmelis has the stringency of a reshus hayachid), to or from a carmelis to a reshus hayachid, or for a distance of four amos or more within a carmelis (because it has the stringency of a reshus harabim).

What areas qualify as a carmelis? Any surface area that does not meet the Torah’s definition of a reshus harabim, and yet is not enclosed, qualifies as a carmelis. This includes fields, forests and other uninhabited areas, bodies of water, beaches, hills, etc. (Shulchan Aruch, Orach Chayim 345:14). Another example: I mentioned above that any covered area is not a reshus harabim. Thus, the lower level of a bridge, such as the George Washington Bridge, and all tunnels are not reshuyos harabim, notwithstanding that they may be sixteen amos wide, made for public thoroughfare and have 600,000 people travel on them daily (see Shulchan Aruch, Orach Chayim 345:7 and 14). Each of these areas qualifies as a carmelis, and carrying to, from and in them is prohibited, but only because of a rabbinic injunction. Most of these areas are a makom petur min haTorah, although some are a reshus hayachid min haTorah.

There are numerous practical halachic differences that result from the fact that the prohibition to carry in these areas is only miderabbanan. Because of space considerations, we will leave most of this discussion for future articles.

Eiruvability

Perhaps the most significant difference between a reshus harabim and a carmelis is that, in accepted practice, an eiruv permits carrying only in an area in which there is no violation to carry min haTorah (Eiruvin 6a-b). For this reason, before attempting to build an eiruv, a decision must be reached whether the area is halachically a carmelis, in which case it is possible to construct an eiruv, or a reshus harabim min haTorah, in which case it cannot.

Conclusion

Rav Samson Raphael Hirsch (Shemos 20:10) notes that people mistakenly think that work is prohibited on Shabbos so that it should be a day of rest. He points out that the Torah did not prohibit doing avodah, which connotes hard work, but melacha, which implies purpose and accomplishment. Thus, even transporting items accomplishes something, notwithstanding that the object moved is not physically changed in the process. The goal of Shabbos is to allow Hashem’s rule to be the focus of creation by withdrawing from our own creative acts (Shemos 20:11). By refraining from melacha for one day a week, we demonstrate Who created the world and authorized us to control it.

Medicines on Shabbos

Vitamin E oil

“May I rub Vitamin E oil on Shabbos into my skin to alleviate some discomfort?”

Introduction

In parshas Chukas, the Torah teaches that when the Bnei Yisroel complained against Hashem and Moshe for taking them through the desert without adequate provisions and for providing them with mann, a plague of poisonous snakes was unleashed among them and killed many Jews. When the Jews did teshuvah and asked Moshe to daven on their behalf, Hashem commanded him to make a snake out of copper and place it on top of a pole. Subsequently, anyone bitten by a poisonous snake would look at the copper snake and live.

The Mishnah (Rosh Hashanah 29a) comments: Does the copper snake determine life and death? No, it does not. When people looked in its direction, they were reminded of Hashem, prayed to Him and survived the bite.

Later in history, an image of a snake wrapped around the upper end of a pole became the international symbol of an apothecary or other medical practitioner. Obviously, this is the perfect week to discuss the halachos of using medicines on Shabbos, particularly since the work of the pharmacist is the basis for this halachic discussion.

Don’t take your medicine!

The Mishnah and Gemara allude to a prohibition that Chazal instituted not to take medicines on Shabbos. For example, the Mishnah (Shabbos 111a) records the following:

Someone whose teeth are causing him pain may not sip vinegar as a remedy, but is permitted to dip his food into vinegar in his usual method of eating; there is no concern if this accomplishes his purpose of using the vinegar as an analgesic.

From this Mishnah, we see that Chazal prohibited doing anything that is clearly performed to alleviate pain or discomfort. This prohibition is called “refuah”by the poskim.

The Gemara concludes that it is prohibited to sip vinegar only if he spits it out, but it is permitted to sip vinegar and swallow it, since people sometimes do this to arouse a greater appetite.

From a different passage of Gemara (Beitzah 22a), we see that this prohibition also exists on Yom Tov. This article will attempt to clarify the rabbinic prohibition of refuah on Shabbos. Explaining this topic adequately requires two introductory lists:

Hierarchy of prohibitions

To begin with, we need to understand that there are different levels of prohibition that are set aside for the needs of a person who is ill. First, I will list these, and then afterward, we will see what rules apply to permit these activities – in other words, how ill must a person be to permit them.

A. De’oraisa – A Jew performing an action that is usually prohibited on Shabbos min haTorah.

B. Derabbanan – A Jew performing a rabbinic prohibition.

C. Derabbanan with a shinuy – A Jew performing a rabbinic prohibition in an unusual way.

D. Amirah lenachri – Asking a non-Jew to do something that a Jew is not permitted to do.

E. Refuah – An action that is prohibited solely because it serves a medical purpose.

Hierarchy of conditions

According to most poskim, levels of “illness” or “wellness” are classified under five categories (cf. Eglei Tal, Meleches Tochein 17, 18 and notes who disagrees). I am listing these beginning from the category that is most severe medically, where the halacha is most lenient:

Choli she’yeish bo sakanah

Any medical condition or situation that might be a threat to life, even if remote, is called a choli she’yeish bo sakanah. In this situation, we perform whatever is necessary to make the patient safe and properly treated. In other words, none of the categories of activities above is prohibited, and it is meritorious and required to perform whatever is necessary as quickly as possible to save the patient (pikuach nefesh).

What type of condition qualifies as choli she’yeish bo sakanah?

In general, an internal injury is assumed to be pikuach nefesh until determined otherwise (Avodah Zarah 28a, see Tur, Orach Chayim 328). Excess or unusual internal pain is similarly assumed to be pikuach nefesh until determined otherwise. The extensive details germane to these situations will not be dealt with in this article.

2. Sakanas eiver

This is a situation in which there is no threat to a person’s life, but he runs the risk of losing the use of part of his body irreversibly, if it is left untreated. Contemporary authorities rule that this category includes a patient in which the result may be a limp or permanent weakness in a limb (Chut Hashani, Volume 4, 89:27), and even if this result is only a possibility (Minchas Shelomoh, Volume 2:34:36).

The Shulchan Aruch quotes several opinions regarding what the halacha is germane to this situation. He concludes that although violating Torah law is permitted only when there is risk, albeit remote, to someone’s life, violating any rabbinic prohibitions is permitted in a situation of sakanas eiver (Orach Chayim 328:17). This includes asking a non-Jew to do anything for his needs (Ran, Shabbos 39b s.v. Umeiha). It goes without saying that the prohibition not to take medicines does not apply to this category. In other words, to treat this patient, all categories of prohibitions listed above, except for level A, are permitted.

To the best of my knowledge, the approach preferred by the Shulchan Aruch is accepted by all the subsequent authorities (Rema, Magen Avraham, Taz, Gra, Nishmas Adam 69:1, et al.).

3. Choleh kol gufo she’ein bo sakanah

This refers to a condition in which someone is ill in a way that affects his entire body, such as he is ill enough to go to bed (Shulchan Aruch, Orach Chayim 328:17). It also includes situations in which the discomfort is intense enough that he feels that his entire body is affected (Rema ad locum), he is running a fever that is higher than his usual body temperature (Shemiras Shabbos Kehilchasah 33:1) or if, without medical intervention, he will end up with a condition similar to one of those mentioned above (Shemiras Shabbos Kehilchasah 33:1). In addition, a child, an elderly person or someone whose general condition is weak may be in this category.

In this situation of choleh kol gufo, we find differing opinions among the rishonim regarding how lenient the halacha is. All authorities agree that a choleh kol gufo may ask a non-Jew to do something for him (level D), and it is prohibited for a Jew to perform on Shabbos or Yom Tov a melacha min haTorah for this patient (level A).

The Rosh was uncertain whether you can perform an issur derabbanan other than asking a non-Jew, and Rashi may have been stringent regarding this issue (levels B and C, see Eglai Tal, Meleches Tochein #36 and #38). On the other hand, the Rambam rules that any issur derabbanan is permitted. The Ramban splits the difference, permitting a Jew to do a melacha only with a shinuy, in other words, permitting level C and forbidding level B.

The Shulchan Aruch concludes, according to the Ramban, that an activity that is ordinarily prohibited because of a rabbinic injunction may be performed by a Jew in an indirect way (i.e., with a shinuy). Furthermore, a non-Jew can be asked to do anything for his needs (Ramban and Rashba, Shabbos 129a). In addition, the prohibition of performing a refuah activity does not exist for this person when no other melacha activity is involved. In other words, to treat this patient, all categories listed above, except for levels A and B, are permitted.

4. Meichush

The word meichush means an ache, and carries with it the inference that it is a relatively minor discomfort. The term also includes someone who is mildly ill, but does not pass the threshold of the previous category of choleh kol gufo. One of the terms used to describe this category is that the person is walking around like a healthy person – he does not appear to be ill, but he is suffering from some minor ailment. If it is clearly noticeable that he is in pain or that he is experiencing discomfort, he is not in the category of meichush, but in the previous category of choleh kol gufo.

A meichush does not permit performing any melacha activity, even one that is prohibited only because of a rabbinic decree. Furthermore, he may not attempt to alleviate the discomfort by use of any treatment being performed for that purpose. This is referred to as the prohibition against refuah, established by Chazal. In other words, to treat this patient, all categories listed above are prohibited.

5. Bari

This refers to someone who is perfectly healthy, but would like to do something that is usually considered a medicinal-type act to maintain or bolster his health. All authorities agree that a person may not perform a melacha activity for this purpose, whether the activity is forbidden min haTorah or miderabbanan. There is a dispute between the Shulchan Aruch and the Magen Avraham whether the special prohibition of refuah, i.e., preparing or taking medicinal aids or doing healing acts, applies to someone who is not sick. The Shulchan Aruch (Orach Chayim 328:37) rules that it does not; the prohibition to perform refuah applies only to someone who qualifies as being a bit ill. The Magen Avraham concludes that the prohibition of refuah applies, also, to someone who is completely well, but wants to do something that would usually be considered a medicinal type of activity.

In other words, a person who is healthy may certainly not do anything in categories A-D to enhance or bolster his health. Whether the prohibition of refuah, category E, applies is a dispute between the Shulchan Aruch, who is lenient, and the Magen Avraham, who rules strictly. As there does not appear to be a consensus among halachic authorities which approach to follow, I recommend that our readers consult with their rav or posek for halachic guidance.

Why are medicines prohibited on Shabbos?

The rest of this article will focus on explaining what I called above “Category E”: the rabbinic prohibition to do anything on Shabbos that is usually performed for medical reasons.

First we want to understand: Why did Chazal establish this prohibition?

The Gemara (Shabbos 53b) implies that the reason for the prohibition of refuah on Shabbos is because preparing medicines often involves crushing raw herbs, thus violating the melacha of grinding. This reason is mentioned by the primary early rishonim in several places (Rashi, Brachos 36b, Shabbos 108b, Beitzah 11b, Avodah Zarah 28a; Tosafos, Shabbos 64b, 93a, Eiruvin 102b; Rambam, Hilchos Shabbos 21:2; Rashba, Shabbos 129a; Rosh, Avodah Zarah 2:10). Other authorities provide an additional reason for the prohibition: at times, the application of a medicinal preparation involves a different melacha activity, that of memarei’ach, smearing and smoothing the salve onto the skin (Chayei Adam 69:1).

The discussion about this prohibition is scattered across many different places in the Gemara, and the conclusions are explained in Shulchan Aruch in Orach Chayim, Chapters 327 and 328.

At this point, we will return to the Mishnah I quoted above (Shabbos 111a): Someone whose teeth are causing him pain may not sip vinegar as a remedy, but he is permitted to dip his food into vinegar in his usual method of eating; there is no concern if this accomplishes his purpose of using the vinegar as an analgesic. Someone experiencing pain in the sides of his body may not smear wine or vinegar as a remedy, but he may apply oil as long as it is not rose oil.

Based on our previous discussion, we now know that this Mishnah is discussing someone who is uncomfortable because of a toothache or minor irritation on his side, but who does not qualify as a choleh kol gufo — in other words, what we called before someone suffering from a meichush (category 4). We also see another very important principle: An activity that would commonly be done for a non-medical reason may be done notwithstanding that the person intends to alleviate thereby pain or discomfort — a medical reason.

Rashi explains that people smear oil on their bodies for reasons other than medical reasons, but not wine, vinegar or rose oil. Wine and vinegar were smeared only for medical reasons, and rose oil was not smeared for non-medical reasons, because it was too expensive to use for this purpose. Therefore, smearing wine, vinegar or rose oil is clearly for a medical reason, and is included under the rabbinic prohibition of refuah, but smearing other oils is not.

Incidentally, we see from this Mishnah that there is no prohibition of memarei’ach when rubbing oil into your skin on Shabbos. This is explained by halachic authorities to be permitted because oil is too thin to smooth out surfaces. Since this is not our topic for today’s article, we will not spend more time on it.

Individual circumstances

Whether something is done usually for medical purposes or not might be subjective. In certain societies, there are things that are considered a normal activity, whereas in others, the same activity would not be done except as a medical treatment. How do we determine what is a “normal activity?”

The answer to this question is found in the continuation of the Mishnah, which states: Princes may smear rose oil on their injuries, because they smear it on regular days, even without a medical purpose. Rabbi Shimon rules that all Jews are treated like princes, and that therefore they may all smear rose oil as a medical treatment.

Both the first tanna and Rabbi Shimon agree that an activity that is sometimes performed for non-medical reasons may be done to alleviate a discomfort. Therefore, princes, who might apply rose oil not as a medical treatment, may use it to alleviate discomfort, whereas, according the first tanna, common folk ,may not. Rabbi Shimon permits someone to do something that a different person would be doing for non-medical reasons, whereas the first tanna requires that he, himself, would do this activity on other occasions when not uncomfortable.

Notwithstanding Rabbi Shimon’s position, the majority of early authorities and the Shulchan Aruch (Orach Chayim) conclude according to the first tanna’s opinion: someone can do something to alleviate discomfort only if he, himself, might do the same for a non-medical purpose.

Vitamin E oil

Thus, we can now answer our opening question: “May I rub Vitamin E oil on Shabbos into my skin to alleviate some discomfort?”

The answer is that it will depend: If people do rub Vitamin E oil when there is no medical discomfort, this would be permitted. I believe that this is not standard practice, and therefore it would seem to me that this is prohibited on Shabbos, unless the person is a choleh kol gufo.

Local circumstances

We see from this part of the Mishnah that when an act is commonly performed for non-medical reasons, someone may do it on Shabbos to alleviate discomfort or for a different medical reason. The Gemara expands this by noting that Rav permitted people in his place to smear rose oil on Shabbos, because where he lived it was plentiful and inexpensive and was used commonly without medical need. From this conclusion, we see that local circumstances can determine what is called a permitted typical use.

Does this concept apply only lekula or even lechumrah? In other words, can an activity that is common even not for medical reasons, but in a certain place is performed only to alleviate discomfort, be done in such a place to alleviate discomfort?

The answer is that this concept is true also lechumrah: the Rema (Orach Chayim 327:1) concludes that in any place where rubbing oil on the body is done only for medical reasons, it is prohibited to do so on Shabbos.

From this discussion, we see that a Shabbos prohibition existed even to use a medicinal process or aid whose preparation did not involve the melacha of grinding. We also see that an item that might be used by a healthy person is not included in the prohibition, and that determining whether a substance may be used or not can be dependent on local circumstances.

Conclusion

The Gemara teaches that the rabbinic laws are dearer to Hashem than the Torah laws. In this context, we can explain the vast halachic literature devoted to understanding this particular prohibition, created by Chazal to protect the Jewish people from major sins.

Early Maariv

Question #1: Earliest Maariv?

When is the earliest time that I may daven maariv?

Question #2: Earliest Shabbos?

May I daven maariv earlier on Friday evening?

Question #3: Earliest Conflict?

What does “tartei desasri” mean?

Question #4: Early Meal?

If I make “early Shabbos,” when may I begin the Shabbos meal?

Background

We may have heard terms like “mincha gedolah,” “mincha ketanah,” “plag,” “Magen Avraham’s zman,” “Gra’s zman,” “tosefes Shabbos;” and “tartei desasri” and have an approximate idea of what they mean, yet not a perfect understanding.

Let’s explain some of the terms:

Mincha gedolah: This is the earliest time that it is permitted to daven mincha (Brachos 26b, see Rashi and Rambam), and is half an hour after halachic midday (ibid.). For virtually all the calculations that we will be making, “an hour” is what we call a sha’ah zemanis, which means that we divide the daytime into twelve parts, and each part is considered an hour. One of the major questions that we will be discussing is whether the “daytime” we are dividing is calculated from sunrise to sunset (which means that it averages out over the year to about sixty minutes) or whether it is calculated from halachic dawn until nightfall, in which case each hour is considerably longer.

Mincha ketanah: The preferred time to daven mincha is after mincha ketanah (Brachos 26b, see Rashi and Rambam). This is half an hour after the day is three-quarters over (ibid.). Expressing this in a more mathematical way, it is 9.5/12 or 19/24 of the day. Here the range among the various opinions is much wider than it is for mincha gedolah. The time on your home clock for mincha ketanah is much later when you end the day at nightfall than when you end it at sunset because your daytime hours and length of each hour are longer.

Plag, or, as it should properly be called, “plag hamincha,” is midway between mincha ketanah and the “end” of the day. The word plag literally means “splitting” or “half.” The mathematical way of expressing this is 10.75/12, or 43/48 of the way through the day, meaning that if you divide daytime into 48 quarter-hours, calculating backward from the end of the day by five of these quarter-hours is plag haminchah. The same dispute that I mentioned earlier, whether we calculate the end of the day from nightfall or from sunset, also makes a tremendous difference here regarding when is plag haminchah.

The main halachic factors determined by plag hamincha are when is the earliest time of day that one may daven maariv, and when is the earliest time of the day that someone may light the Shabbos lights and accept Shabbos.

“Magen Avraham’s zman” and “Gra’s zman:” These terms are used most frequently in reference to the latest time by which Shema must be recited every morning, which is before a quarter of the day has passed. The difference between these two zmanim is that the Magen Avraham calculates the day from alos hashachar, sometimes called halachic dawn, until tzeis hakochavim (Magen Avraham 58:1), “when the stars come out,” whereas the Gra calculates it from sunrise to sunset (Orach Chayim 459:2; Aruch Hashulchan, Orach Chayim 261:10). Calculating the other three times of the day that I mentioned above — mincha gedolah, mincha ketanah, and plag hamincha — is also dependent on the same question: whether we calculate these zmanim by beginning the day at alos hashachar and ending it at tzeis hakochavim, or by beginning it at sunrise and ending it at sunset. (There are authorities who calculate some of these laws from alos hashachar to tzeis hakochavim and others from sunrise to sunset; see acharonim who explain above Magen Avraham; Achuzas Sadeh, page 62.)

The Gemara mentions that the cutoff-point between one day and the next, is at tzeis hakochavim, “when the stars come out” (Brachos 2a-b; Pesachim 2a; Megillah 20b). There are authorities who reach a different halachic conclusion, but we will discuss this some other time.

Tosefes Shabbos: the halachic requirement to begin observing Shabbos before the day has yet arrived and, also, to continue observing Shabbos for some time after the day is over on Saturday night. Even if we are able to calculate the exact moment that Shabbos begins and ends, we are required to add time, before it begins and after it ends.

Tartei desasri, literally, two that contradict, means two practices that conflict with one another, because they follow two opposing opinions. We will soon see how this applies to our discussion.

Opening questions

At this point, let us discuss our first opening question: When is the earliest time that I may daven maariv?

Although several Mishnayos discuss the beginning and ending time of many mitzvos and prayers, they make no reference to the earliest time to daven maariv. Instead, the Mishnah (Brachos 26a) states that “the maariv prayer has no established time.” The same Mishnah records a dispute among tanna’im when is the latest time to daven mincha (Brachos 26a): An anonymous tanna, whom the Gemara calls the “Sages” (chachamim), permits davening mincha “until evening,” whereas Rabbi Yehudah ends the time for mincha at plag hamincha, notwithstanding that the day is not yet over.

The Gemara (Brachos 26b) then quotes a Tosefta (Brachos Chapter 3) in which these tanna’im explain their opinions. Rabbi Yehudah contends that the latest time for mincha is at plag hamincha because this is the latest time that the afternoon korban tamid may be offered in the Beis Hamikdash. The Sages disagree with Rabbi Yehudah, contending that the korban tamid may be offered until the end of the day and, therefore, the prayer of mincha may also be recited until then. Thus, all agree that the time for davening mincha is dependent on when the afternoon korban tamid may be offered.

In the Tosefta and Gemara, it states that maariv has no “set time” because the remains of the korbanos that were offered during the previous day are burnt on the mizbeiach all night long.

Earliest Maariv?

As mentioned, the Mishnah says nothing about when the time for maariv begins. However, the following Gemara implies that it begins when the time for mincha ends. The Gemara notes that Rav davened the maariv of Shabbos when it was still Friday afternoon; the Gemara derives from this practice that Rav accepted the opinion of Rabbi Yehudah. The Gemara then concludes that, since Rav Huna and other great rabbis did not daven maariv until it was night, they follow the opinion of the Sages. Thereby, the Gemara implies that the time for maariv begins whenever the time for mincha ends; since Rav davened maariv before nightfall, he must hold like Rabbi Yehudah that it is now too late to daven mincha. According to the Sages, that the latest time for mincha is “evening,” one cannot daven maariv earlier.

Rabbi Yehudah or the Sages?

The Gemara discusses whether the halacha accords with Rabbi Yehudah, that the demarcation between mincha and maariv is plag hamincha, or whether we rule like the Sages, that it is the end of the day. After rallying various opinions in either direction, the Gemara concludes that there is no clear-cut accepted practice, and, as a result, each individual can choose which approach he wants to follow. This leads us to the following question, which the rishonim address: Can one daven sometimes according to the opinion of Rabbi Yehudah, and sometimes according to the Sages? Although there are many instances in halacha of tartei desasri, the one involving davening mincha and maariv is the most commonly referred to instance.

Tartei desasri

I explained above that this means following two practices that conflict with one another, because they follow opposing opinions. For example, the Gemara prohibits certain practices that would be following the opinion of Beis Hillel, in one aspect, and that of Beis Shammai, in another. This is prohibited because, taken together, someone is doing something not accepted by either academy (Eiruvin 7a).

At this point, our question is as follows: May someone follow the opinion of the Sages by davening mincha after plag, and also follow the opinion of Rabbi Yehudah and daven maariv before the day ends? Although the halacha does not definitively follow either Rabbi Yehudah or the Sages, davening mincha at a time that Rabbi Yehudah rules is too late, and maariv when the Sages consider it too early, is tartei desasri (Tosafos, Brachos 2a s.v. Mei’eimasai). Although I may follow either of the two opinions, tartei desasri implies that I cannot mix – since this results in following no opinion.

Most rishonim consider this a concern, the majority contending that someone should decide that he follows either Rabbi Yehudah, and never davens mincha after plag hamincha, or that he follows the Sages, and never davens maariv before the day ends.

Some rishonim rule that this is a problem only on the same day, i.e., one should not daven mincha after plag and maariv before the day ends on the same day, but there is no problem doing this on different days (see Mordechai, Brachos #89, cited by Magen Avraham). Although most rishonim do not hold this way, the prevalent custom is to follow this approach.

There is a minority opinion that there is no problem with davening mincha and maariv in a way that causes a tartei desasri, particularly when davening with a tzibur (see Beis Yosef, Orach Chayim 235; Taz, Orach Chayim 235:2; Yad Efrayim, 267:1).

Fourteenth century conundrum

In the fourteenth century, it was apparently common among Ashkenazim that the summertime communal mincha–maariv minyan was scheduled considerably before plag hamincha. This raises a major halachic concern, because no opinion cited by the Gemara allows davening maariv this early.

This issue was raised by perhaps the most prominent poseik of the era, the Terumas Hadeshen (1:1), who notes that the practice seems to defy the rules we would derive from the Gemara. Yet, he concludes that one should daven together with the community minyan. Although the Terumas Hadeshen does not fully explain his conclusion, he may opine that a community’s prayer schedule may be more flexible than that of an individual, as evidenced by a different passage of Gemara (Brachos 27b). We should note that the Gemara mentions this factor only regarding a situation in which an error occurred that caused the tzibur to daven too early.

Earliest Shabbos?

At this point, we will address the second of our opening questions: May I daven maariv earlier [than I usually do] on Friday night?

The Shulchan Aruch (Orach Chayim 267:2) permits davening maariv on Friday evening while it is still day, even according to the Sages. This appears to contradict the Gemara, cited above, that permitted davening maariv early on Friday night only according to Rabbi Yehudah.

I am aware of at least four approaches that can be used to justify this practice, three of which are mentioned by the Magen Avraham (267:1):

(1) The Baal Halachos Gedolos and other authorities understand that a later passage of Gemara permits early maariv on Friday night even according to the opinion of the Sages. The rationale for this is because tosefes Shabbos permits davening early, since accepting Shabbos prohibits davening the weekday mincha of Friday. Once the time of mincha ended (because he accepted Shabbos), the time for maariv automatically begins, even though night has not yet begun (Mordechai; Olas Shabbos 267:1; Penei Yehoshua, Brachos 27a s.v. Amar rav Chanina).

(2) As I mentioned above, Chazal instituted the nightly prayer of maariv, corresponding to placing leftover parts of the day’s korbanos on the mizbei’ach. On a weekday in the Beis Hamikdash, what was not consumed by the fires during the day was burnt at night. However, this was the procedure only on a weekday. No leftovers were burnt on Friday night, because it is Shabbos; instead, they were burnt Friday afternoon. Since maariv corresponds to the burning of these parts of the korbanos, it is permitted to daven maariv at the time that these were offered – on Friday before nightfall.

(3) The Magen Avraham suggests a different reason why someone may daven earlier on erev Shabbos — based on the opinion of the Mordechai that permits following the opinion of Rabbi Yehudah one day and that of the Sages on a different day. Thus, you may daven mincha before plag and maariv after plag on Friday, notwithstanding that the rest of the week you daven mincha much later in the day.

(4) According to the above-mentioned responsum of the Terumas Hadeshen, a tzibur may daven maariv early, immediately after davening mincha, even though we would otherwise consider it too early to daven maariv. This approach might be based on the idea that tefillas aravis reshus, that maariv is less obligatory than the other tefillos, and therefore one can be more flexible with its time.

There are several halachic differences (nafka mina) that result from these various answers. For example, according to the first two approaches, it is acceptable to daven mincha on Friday evening after plag and maariv immediately after, and it is not considered tartei desasri.

The Magen Avraham concludes that someone davening maariv early on Friday evening should daven mincha before plag. This is because he accepts the third approach, that of the Mordechai, as the main heter, notwithstanding that he quoted three reasons to be lenient.

Nevertheless, the accepted practice, in most places, is to be less concerned than is the Magen Avraham.

Earliest Shema?

When is the earliest time to fulfill the mitzvah of reciting Shema at night?

Most rishonim assume that the earliest time to recite the Shema is at tzeis hakochavim. After all, most mitzvos that we observe at night are dependent on tzeis hakochavim.

However, when the Torah instructs us concerning the mitzvah of reading the Shema, it never says that the mitzvah is at night. The Torah teaches that we are to perform the mitzvah be’shachbecha, when we go to bed, or while we are in bed (see Rashi, Brachos 2a). This distinction produced much halachic literature at the time of the tanna’im, many of whom held that the time for reciting the evening Shema does not necessarily begin at tzeis hakochavim (Brachos 2b). Rabbeinu Tam concludes that one may fulfill the mitzvah of reciting Shema as early as plag hamincha. His reasoning why Shema is different appears to be that the Torah never states that Shema be recited at night, but when you go to bed, and there are those who go to bed early.

Early Meal?

At this point, let us discuss the last of our opening questions: If I make “early Shabbos,” must I be careful what time I begin eating the Shabbos meal?

The halacha prohibits beginning a meal once it is the time for reciting Shema, or even within a half hour of that time, without first reciting Shema. This means that if it is less than half an hour before the time that the day ends, one must wait until it is nightfall and recite Shema before beginning the meal.

However, there is no problem with beginning the meal more than half an hour before nightfall, continuing the meal into the night, and reciting Shema when the meal is over. Since it was permitted to start the meal, Chazal did not require interrupting the meal to say Shema.

Someone who starts Shabbos shortly after plag hamincha and begins the meal within a short time thereafter does not have any concern about this halacha, since he is beginning the meal well before half an hour before the time to recite Shema. The question concerns someone who starts Shabbos at a set time every week, and the meal sometimes starts within half an hour of the time to recite Shema. Is he permitted to begin his meal now, or must he wait until it is late enough for him to recite Shema before he begins his meal?

Indeed, the conclusion of many prominent authorities is that he should wait until he recites Shema (Magen Avraham 235:2).

However, although most rishonim do not accept Rabbeinu Tam’s approach that one can fulfill the mitzvah of reciting Shema after plag hamincha, there are those who do (Mordechai, Hagahos Maimani, Raavyah, all quoted by Terumas Hadeshen 1:1). The Beis Yosef (Orach Chayim 235, quoting Mordechai, Shabbos 224 and Ran) and others conclude that, although everyone who davens maariv before it is fully dark should recite the full Shema later and not rely on Rabbeinu Tam’s opinion, regarding the rabbinic prohibition to delay the meal until he recited Shema, one may rely on Rabbeinu Tam that he already fulfilled the mitzvah and may begin the meal already (Beis Yosef, Orach Chayim 267 and Yad Efrayim).

Conclusion — Why is maariv different?

As the Gemara teaches, Yaakov Avinu introduced maariv. If so, why does the Gemara discuss whether maariv is an obligatory prayer or not? Although we consider maariv to be obligatory, it sounds like someone considered it “second rate” relative to shacharis and mincha,which were established by Avraham and Yitzchak?

The Penei Yehoshua answers that Yaakov was not planning to daven maariv; he had intended to daven mincha, but Hashem caused the sun to set suddenly, giving Yaakov no choice but to daven after nightfall. Since this davening was performed not as Yaakov’s first choice, but because he had no other option, this allows us the option to be more flexible regarding the time of this prayer – a very helpful halachic consideration when Shabbos begins late (Penei Yehoshua, Brachos 26b s.v. Mihu).

Some of the Laws of Seudah Shelishis

Question #1: Min haTorah or not?

Is eating three meals on Shabbos a Torah requirement?

Question #2: Shaloshudis?

Why do most people slur the word and pronounce it as shaloshudis? Should it not be called seudah shelishis?

Question #3: Three and over

What is required to be eaten for the third meal on Shabbos?

Answer:

The mitzvah of celebrating Shabbos is mentioned by the prophet Yeshayahu (58:13), in his famous words, vekarasa laShabbos oneg, “And you shall call Shabbos a delight.” Although this observance is not mentioned in the written Torah, many authorities rule that it has a halachic status of being min haTorah. It may be included in the Torah’s words mikra’ei kodesh (Vayikra 23:2, see Ramban, as explained by Shaar Hatziyun 242:1). Alternatively, it was originally a halacha leMoshe miSinai, meaning part of the Torah Shebe’al Peh without allusion in the written Torah, until Yeshayahu stated this requirement (Chasam Sofer, Shabbos 118a). The Gemara (Yoma 71b) instructs that some halachic rulings had been halacha leMoshe miSinai until the nevi’im taught them. As the Ramban explains (Notes to Sefer Hamitzvos, Shoresh II), since a navi may not add to the Taryag mitzvos, if this requirement was introduced by Yeshayahu, it would have the status of a takkanas chachamim introduced by the great Torah scholar Yeshayahu, who also happened to be a prophet.

The Chasam Sofer (Shabbos 118a) appears to be of the opinion that no early authority held that the mitzvah is only miderabbanan. After mentioning that some poskim understand the requirement to celebrate the Shabbos not to be min haTorah, the Mishnah Berurah (Shaar Hatziyun 242:1) notes that people should not treat this mitzvah lightly. He suggests that, perhaps, it should be treated even more strictly than a Torah requirement.

Three meals

As part of the observance of oneg Shabbos, Chazal required that we eat three meals every Shabbos. Although the Mishnah never mentions directly a requirement to eat three meals on Shabbos, a beraysa from the era of the Mishnah does report it (Shabbos 117b). This beraysa records a dispute between the tanna kamma, who rules that three meals are required, and Rabbi Chidka, who requires that we eat four meals every Shabbos. The Gemara provides an extensive discussion regarding this dispute.

The famous amora, Rabbi Yochanan, explains that both tanna’im derive their ruling from seemingly extra words in the same pasuk that states, regarding the mann, “And Moshe said, eat it today, for today is Shabbos for Hashem. Today you will not find it (the mann) in the field” (Shemos 16:25). Rabbi Yochanan notes that the word hayom, today, is written three times in the pasuk, and refers each time to Shabbos. This is the midrashic source for eating three meals on “the day” — Shabbos. In other words, eating extra meals on Shabbos is a way to remind us that Hashem provided for us in the Desert.

The tanna kamma understands the pasuk to be requiring that three meals are eaten in the course of Shabbos, whereas Rabbi Chidka derives that the three meals must be consumed during the daytime of Shabbos.

Three meals or four?

Having established that the tanna kamma requires three meals each Shabbos, and Rabbi Chidka requires four, the Gemara discusses whether proof can be rallied from various Mishnayos regarding whether it held like either of these opinions or, perhaps, held a potential third position. In this context, the Gemara cites a Mishnah (Peah 8:7) that reports that there were many levels of tzedakah collection in the days of Chazal, among them was one called tamchuy (literally, plate or platter) and another called kuppah (literally, box). The tamchuy, which was what we call a soup kitchen, supplied meals for anyone who arrived in a Jewish community. Any pauper, whether resident or itinerant, was entitled to eat at the tamchuy (Tosefta, Peah Chapter 4). However, only those who did not have enough money or food for two meals were eligible.

The kuppah was restricted to the local poor (Tosefta, Peah 4:8). Itwas intended for those who were relatively well off –enough to provide at least for their next fourteen meals. The Mishnah assumes that a poor person is satisfied with two meals a day, one in the morning and one in the evening (no free lunch), and that the kuppah is for those who do not anticipate being able to support themselves and their families with minimal food requirements for the coming week.

Someone with sufficient financial resources to expect that he will have fourteen meals was not permitted to join either the tamchuy or the kuppah. Someone who had two meals, but not fourteen, was permitted to collect from the kuppah, but not from the tamchuy.

The question raised by the Gemara was that the Mishnah does not seem to agree with either the tanna kamma or Rabbi Chidka. According to the tanna kamma, since the requirement for participation in the kuppah was the ability to provide for yourself and your family for the next week, why does the Mishnah state that the minimal requirement for the tanna kamma is someone who has fourteen meals. Since there is a requirement to eat three meals on Shabbos according to the tanna kamma, and four according to Rabbi Chidka, the kuppah limit should be higher – fifteen meals according to the tanna kamma, and sixteen meals according to Rabbi Chidka, allowing for the extra meals required on Shabbos. Upon this basis, the Gemara suggests that the Mishnah represents a third opinion, which requires only two meals on Shabbos.

After a bit of discussion, the Gemara concludes that, indeed, the Mishnah’s ruling is not universally held. However, the author of this Mishnah is Rabbi Akiva (Pesachim 112a, 113a), whose dispute is not with the tanna kamma or Rabbi Chidka regarding the requirement to eat extra meals on Shabbos, but in a different subject. Rabbi Akiva rules that, although there is a requirement to eat extra meals on Shabbos, the requirement does not extend to someone who will require tzedakah funds to provide the extra meals (Shabbos 118a). The rishonim dispute whether we rule according to Rabbi Akiva or not (see Rambam, Hilchos Shabbos 30:9, who rules unlike Rabbi Akiva).

The Shulchan Aruch rules according to Rabbi Akiva, although he qualifies the ruling somewhat: “Even a person who is in need of financial assistance should exhibit his desire to honor Shabbos by minimizing what he eats during the weekdays, in order to be able to have a respectable Shabbos meal. The ruling [of Rabbi Akiva] that you should make your Shabbos as a weekday and not utilize tzedakah funds applies only to someone who is truly needy” (Shulchan Aruch, Orach Chayim 242:1).

Melaveh malkah

Although our article has been discussing exclusively the three meals of Shabbos, and not the motza’ei Shabbos meal of melaveh malkah, we would be remiss not to note the following discussion. In his commentary on this passage of Gemara, Rashi asks the following question: When the Gemara discusses whether the extra Shabbos meals are included in the qualifications for the kuppah, why does it not take into consideration the melaveh malkah meal that one should eat on motza’ei Shabbos (see Shabbos; Tur and Shulchan Aruch, Orach Chayim 300)? Rashi answers that tzedakah funds are not used to provide for melaveh malkah (Shabbos 118a s.v. achlei). I am aware of two other approaches to answer this question.

1. The Magen Avraham explains that if you ate seudah shelishis late, there is no requirement to eat bread for melaveh malkah, but you can fulfill the mitzvah by eating fruit (Orach Chayim 300). Since the Tosefta (Peah Chapter 4) mentions that a poor person provided from the communal funds is also provided with fruits and vegetables, he can leave over from these for his melaveh malkah.

2. The Ba’eir Heiteiv (Orach Chayim 300:1) quotes from the Ohr Zarua that if you extend seudah shelishis into night, you thereby fulfill the mitzvah of eating melaveh malkah.

According to both of these approaches, someone can fulfill the mitzvah of melaveh malkah without needing extra support from the tzedakah funds.

Bread or not?

The Shulchan Aruch (Orach Chayim 291:5) cites a four-way dispute among rishonim, whether the third meal of Shabbos must be a bread meal. He quotes the following opinions:

1. The third meal must be a bread meal (Mordechai, Shabbos #397, quoting Yerei’im and Maharam; Tosafos, Brachos 49b s.v. ei nami).

2. The third meal can be either mezonos or a bread meal (Tosafos, Sukkah 27a s.v. beminei; see also Tosafos, Yoma 79b s.v. minei).

3. The third meal can be meat or fish, and need not include bread (Mordechai, Shabbos #397, quoting Ra’avyah). Ra’avayah states that eating something that would be considered a delicacy fulfills the mitzvah of eating the third meal.

4. The third meal can be fruit (Ramban; Rashba; Ran all to Shabbos 118a).

It should be noted that all authorities agree that it is preferable to have a bread meal for seudah shelishis, and the other three approaches are to be followed only under extenuating circumstances (Bach; Mishnah Berurah).

Two other opinions

5. Among rishonim, we find yet a fifth, more lenient opinion, that of the Rashba, who contends that one can fulfill any of the three meals of Shabbos by eating fruit. It is possible that he is assuming, similar to the Ra’avyah quoted above, that it must be something unusual to demonstrate the kavod and oneg of Shabbos, and not just eating an apple. This position is not accepted by most authorities, who rule that only the third meal may have this lenience (Tosafos, Pesachim 101a s.v. te’imu; Tur Orach Chayim 274). Those who have difficulty eating grain products can explore with their rav or posek the possibility of relying upon the Rashba’s approach.

6. There is, possibly, yet a sixth opinion, quoted in the name of the Zohar (Parshas Emor), that Rabbi Shimon bar Yochai fulfilled the mitzvah of seudah shelishis on Erev Pesach by learning Torah. It is unclear if this Zohar is meant to be understood literally as a halachic opinion, and, even if it is, is it meant to reflect something specifically related to Erev Pesach. Nevertheless, since I have seen it quoted in a halachic context, I share this with our readers.

At this point, we can address one of our opening questions: What is required to be eaten for the third meal on Shabbos?

According to the accepted conclusion of Shulchan Aruch, the third meal of Shabbos for both men and women should include bread. By the way, it should also have two whole loaves on the table, lechem mishneh. This latter halacha applies equally to women and men (Ran, Shabbos).

Under extenuating circumstances, to be discussed with an individual’s rav or posek, it may be permitted to eat mezonos, meat, fish or fruit instead of a full seudah and thereby fulfill the mitzvah of seudah shelishis, which, as we noted above, might be a requirement min haTorah. Someone who has medical issues that preclude his consuming bread at the third meal of Shabbos, or on Erev Pesach, when having three bread meals presents a challenge, can discuss with his rav or posek what to do.

Shaloshudis?

We can also address, at this point, another of our opening questions: Why do most people slur the word and pronounce it as shaloshudis? Should it not be called seudah shelishis?

Indeed, the correct pronunciation of this meal is seudah shelishis, or, in Sefardic and Israeli pronunciation, seudah shelishit. The history of its being called shaloshudis appears to be as follows:

Although having three meals on Shabbos, one on Friday night and two on Shabbos day, should not be a difficult mitzvah to fulfill, many viewed eating bread to fulfill the third meal as a burden. They stated quickly, “we need to fulfill shalosh seudos,” a tongue twister, which easily slurs into shaloshudis. (Similar slurrings occur when people wish one another “a guten yontif,” instead of a guten Yom Tov, or when reading the posuk in Hallel as “ki le’olam chazdo,”instead of ki le’olam chasdo, as the posuk states.)

Kiddush bimkom seudah

It should be noted that a dispute similar to the machlokes rishonim I cited above regarding what one is required to eat for seudah shelishis, exists regarding kiddush bimkom seudah. This means that when one recites kiddush on Friday night or Shabbos morning, one fulfills the mitzvah of kiddush only when he intends to eat a meal at the same time and place (Pesachim 101a; Shulchan Aruch¸Orach Chayim 273 and 289:1). (The details of the laws of kiddush bimkom seudah are quite extensive and will be dealt with at a different time.) The question is: What constitutes a meal?

There are four major opinions:

1. A bread meal (Maasei Rav #122;see also Biur Halacha 273:5 s.v. kosvu).

2. Mezonos (Rabbi Akiva Eiger commentary to Shulchan Aruch Orach Chayim 273:

3. Wine or mezonos (Shulchan Aruch Orach Chayim 273:5; Magen Avraham 273:11).

4. Fruit (Shiltei Hagiborim, quoted by Magen Avraham 273:11; and accepted as definitive by Rav Yitzchak Elchanan Spector, Shu’t Ein Yitzchak, Orach Chayim #12).

We should note that the Shulchan Aruch quotes only the third opinion. Following this approach, standard practice on Shabbos morning is to recite kiddush and then eat mezonos to accomplish kiddush bimkom seudah. There are individuals who may wish to be stringent and follow opinion #1, and make sure to eat hamotzi when they recite kiddush Shabbos morning. This is mentioned by his disciples as the Vilna Gaon’s personal practice, but is a personal stringency that may be followed only in a completely unobstrusive way and only after discussion with a gadol baTorah. I refer the reader to the insightful statement of Rav Eliyahu Dessler, Michtav Mei’eliyahu, Volume III, page 294, regarding the status of observing personal chumros that are not halachically mandated.

The fourth, and very lenient, opinion is quoted by some major halachic authorities, but is not usually considered a halachic position on which one can rely. However, someone may receive a special dispensation from their rav or posek to rely upon this approach and eat only fruit and consider it to be kiddush bimkom seudah. This will certainly be understandable for someone suffering from celiac, a food allergy or other medical situation in which consumption of any grain product is counterindicated.

Women and three meals?

Are women obligated to eat three meals on Shabbos, when it is a time-bound mitzvah?

Although the Gemara teaches that women are exempt from time-bound, positive mitzvos, the early halachic authorities require women to eat three meals on Shabbos. Nevertheless, we find a critical dispute as to why this mitzvah is an exception to the rule. Rabbeinu Tam rules that women are obligated because of the principle, af hein hayu be’oso haneis¸ they were also the beneficiaries of the miracle that is the basis of this mitzvah observance, since they also received the mann, upon which the three meals of Shabbos are based. On the other hand, the Ramban and the Ran rule that there is a more basic reason why women should observe this mitzvah: the two different references to the observance of Shabbos in the two versions of the Aseres Hadibros — zachor, remember,and shamor, observe –teach that in all mitzvos of Shabbos, men and women are equally obligated. In other words, we have a general principle that the laws of Shabbos are exceptions to the rule that women are not obligated in time-bound mitzvos. (There are practical halachic differences that result from this dispute. Those who would like to research them can look, for example, at Shu’t Rabbi Akiva Eiger #1.)

Conclusion

In reference to the pasuk from Yeshayahu, vekarasa laShabbos oneg, likdosh Hashem mechubad, “And you shall call Shabbos a delight, that day which is holy to Hashem should be honored”, the Ramban (Shemos 20:8) explains that observing Shabbos is not simply a day of rest, and it is certainly not intended to be a day of recreation. It is meant to be a day of holiness, where we draw our attention away from temporal and temporary involvement, ideas and values and, instead, provide pleasure for our bodies, lives and souls in the service of Hashem. This includes emphasizing Torah study, and spending time with Torah scholars, to hear what Hashem wants from us in our daily lives. As I explained at the onset of this article, celebrating Shabbos according to the Torah’s dictates is part of the Torah’s instruction for the proper observance of this Holy day.