How Not to Desecrate Shabbos

Question:

“I was once told that the mekosheish was a frum Jew who did not really desecrate Shabbos. What does this mean?”

Foreword:

The story of the mekosheish, the man caught gathering wood on Shabbos, in Parshas Shelach, contains a host of conflicting and unusual midrashim. The story also serves as a springboard for many halachic and hashkafic issues. In order to appreciate fully these issues and midrashim, we must first analyze what the Torah tells us about this story, what Chazal derive from the pesukim, and some more halachic detail that is germane to the story. Then we will be in a position to discuss the question raised above.

The words of the Chumash

“When the Bnei Yisroel were in the Desert, they discovered a man gathering wood on Shabbos. Those who found the woodgatherer brought him to Moshe, Aharon and the rest of the community, and he was placed in custody, because it had not been explained what to do with him” (Bamidbar 15:32-34). The posuk then describes the punishment meted out to the woodgatherer. This was the first instance in history of beis din, a Jewish court, carrying out a ruling because someone defiled Shabbos.

Desecration of Shabbos is punishable by beis din only when many requirements are met, including that the perpetrator acknowledges that he is violating one of the 39 melachos of Shabbos, and that he accepts the punishment that the Torah metes out. The Gemara (Sanhedrin 41a) notes that the words of the Torah they found him gathering implies that the woodgatherer was caught in the middle of his act of violating Shabbos, and he continued desecrating Shabbos even after being warned that his action was liable to punishment by beis din.

Which melacha?

When the Mishnah lists the 39 melachos (Shabbos 73a), it does not include “gathering wood.” Indeed, which of the 39 melachos of Shabbos did the woodgatherer violate? Since the halacha requires that the desecrator be warned which melacha he is violating (see Shabbos 138a), this is important information to ascertain.

The Gemara (Shabbos 96b) cites three opinions concerning which melacha the mekosheish performed. According to Rav Yehudah, he carried through a public area on Shabbos. According to a second opinion, he was chopping down trees, thus violating the melacha of kotzeir, reaping, or, more accurately, disconnecting growing items from the ground. According to a third opinion, he violated the melacha of me’ameir, gathering things from where they grow or fall. This third opinion is also cited in the ancient commentary on Chumash, usually, but inaccurately, called the Targum Yonasan. Each of these three approaches requires some explanation.

Hotza’ah

One violates carrying on Shabbos min haTorah by transporting an item from a reshus harabim, an area meant for public use, into a reshus hayachid, an enclosed area, or vice versa. Alternatively, one can violate carrying by transporting an item more than four amos (about seven feet) through a reshus harabim. There are other details that need to be met that we will not discuss in this article.

However, this presents us with a conundrum. Since a desert is not a public thoroughfare or marketplace, carrying there should not violate Shabbos min haTorah. Rather, it should have the halachic status called a karmelis, an open area not meant for public use, in which carrying on Shabbos is prohibited only because of rabbinic injunction, which would leave the mekosheish exempt from violating the Torah prohibition of carrying on Shabbos.

The explanation is found in the following passage of Gemara (Shabbos 6a-b):

What qualifies as a reshus harabim? A street, a large marketplace, or a side road that is open on both sides…. But why does the Tanna not include a desert, since a different beraisa states, “What qualifies as a reshus harabim? A street, a large marketplace, a side road or the desert.” Abaya explains that there is no contradiction between these two statements, the latter beraisa is discussing the era when the Jews were living in the desert, and the first statement is discussing today. In other words, although a desert is usually considered a karmelis, when a large population, such as the entire Jewish people, is living in a desert, it qualifies as a “public area” for Shabbos purposes. Once the desert path on which the Bnei Yisroel were traveling is considered a reshus harabim, every part of that desert is now considered a reshus harabim (Biur Halacha, 345:7). Therefore, when the mekosheish carried there, he was carrying in a reshus harabim and violating the laws of Shabbos min haTorah.

Kotzeir

A second opinion that we quoted above held that the mekosheish was chopping down trees and thereby performed the melacha of kotzeir, reaping. The Gemara explains that someone harvesting wood on Shabbos violates the melacha of kotzeir (Shabbos 73b). According to this approach, it is curious that the Torah describes the mekosheish as “gathering wood,” not as chopping down trees.

Me’ameir

The third opinion explained that the mekosheish violated me’ameir, the fourth of the 39 melachos, according to the order in the Mishnah. This melacha prohibits gathering together items from where they grow or fall naturally. The Rambam mentions cases of someone who gathered food, feed or kindling, and also mentions someone who created a figcake or strung together figs, as acts that violate me’ameir min haTorah. According to many early authorities, these last two cases refer only to someone who took figs from where they fell near the tree and pressed or strung them together (Kesef Mishneh, Hilchos Shabbos 8:6, quoting Remach; Semag). However, many authorities disagree (Ma’aseh Rokei’ach; Nishmas Adam 13:1; Graz 340:15; Mishnah Berurah 340:38, and Eglei Tal 2:3 ff.), contending that, in these instances, for reasons beyond the scope of this article, one can violate me’ameir even when the fruit is not in its original location.

By the way, since people are less familiar with the melacha of me’ameir, someone could violate the melacha without realizing. For example, someone who collects fallen fruit in an orchard on Shabbos and throws them into a basket violates the melacha min haTorah (Mishnah Berurah 340:37).

The Gemara quotes a dispute whether me’ameir applies min haTorah to someone who gathers sea salt from its evaporation pits. Rava (or Rabbah, depending on a variant text) contends that this violates Shabbos min haTorah, whereas Abaya disagrees, contending that me’ameir is limited to items that grow from the ground (Shabbos 73b). There is a dispute among rishonim concerning how we rule. The Rambam rules that me’ameir is limited to items that grow from the ground (Hilchos Shabbos 8:5), whereas the Remach rules that me’ameir applies even to items that do not grow from the ground. Most later authorities conclude like the Rambam (Kesef Mishneh; Shulchan Aruch, Orach Chayim 340:9, Elya Rabbah, Graz and Mishnah Berurah; Chayei Adam 13:1; however, see Eglei Tal 2, who treats this matter as an unresolved dispute).

In conclusion, since lumber and kindling wood both grow from the ground, it is easy to understand that the mekosheish may have been violating the melacha of me’ameir by gathering fallen wood (Shabbos 96b).

We now understand the three opinions that the mekosheish may have been carrying in a reshus harabim, may have been cutting down trees, or may have been gathering fallen wood and violating the melacha of me’ameir. Now that we have discussed which melacha he violated, for a fuller understanding of the story we may want to attempt to identify who the mekosheish was!

Was he Tzelafchad?

The Torah (Bamidbar 27 1-7; 361-11) recounts the story of the daughters of Tzelafchad. Tzelafchad participated in the Exodus from Mitzrayim but did not make it to Eretz Yisroel. The posuk tells us that Tzelafchad left five daughters, but no sons. Rabbi Akiva, quoted in a passage of Gemara (Shabbos 99b), is of the opinion that the woodgatherer described above was Tzelafchad. To quote the passage of Gemara:

Our sages taught: The mekosheish was Tzelafchad, as the Torah says, And the Bnei Yisroel were in the Desert, and they found a man gathering wood on Shabbos,’ and later on it says, Our father died in the Desert. Just as the second verse refers to Tzelafchad, so does the first.’ This is the opinion of Rabbi Akiva. Rabbi Yehudah ben Beseira said to him, ‘Akiva, either way you will be punished for saying this. If you are correct, the Torah hid this information and you had the audacity to reveal it! And if you are incorrect, you are spreading lies about a tzadik!’”

Midrashim take sides

Our Gemara does not say explicitly whether Rabbi Yehudah ben Beseira agreed with Rabbi Akiva or not. His criticism of Rabbi Akiva was for recounting the information. However, there are many midrashim that weigh in on this issue, some agreeing with Rabbi Akiva, including the Zohar, whereas others dispute his claim. For example, we find the following statement in Sifrei Zuta (Bamidbar 15, 32): “Rabbi Shimon said, ‘It is impossible to say that the mekosheish was Tzelafchad.’

The Yalkut Shimoni, a collection of reliable early midrashim, many of them no longer extant anywhere else, quotes a different tanna who also disagrees with Rabbi Akiva (#749).

Response of Rabbi Akiva

Although the Gemara does not cite a response of Rabbi Akiva to Rabbi Yehudah ben Beseira’s criticism for revealing information that the Torah kept hidden, there is a Midrash that cites a very interesting approach, explaining more about Tzelafachad and what he wanted to accomplish. I will present this approach, as explained by the Maharsha — but first we need a rather extensive introduction.

Although Shabbos is a very strict mitzvah, the laws of Shabbos contain some very interesting rules. One of these rules is called melacha she’einah tzericha legufah, which translates literally as a work activity that is not necessary for itself, an expression that is almost meaningless in English. There are many different approaches how to explain this concept, variant ways to explain the words, and a dispute what the halachic status is, all of which combine to create a confusing discussion. I will endeavor to explain melacha she’einah tzericha legufah as it applies to our discussion.

To begin with, let us examine one of the approaches to explain the concept.

The 39 melachos of Shabbos are derived from the activities performed in the building of the Mishkan in the Desert. Notwithstanding the importance of constructing the Mishkan as quickly as possible, it was strictly prohibited to perform any aspect of its building on Shabbos. From this we see that whatever was necessary for building the Mishkan could not be done on Shabbos, and so we are being told, indirectly, what the Torah forbade on Shabbos.

Tosafos (Shabbos 94a s.v. Rabbi Shimon) explains melacha she’einah tzericha legufah that, not only do we derive the definitions of the 39 melachos from the construction of the Mishkan, but that the prohibition min haTorah includes only activities whose purpose is similar to the purpose for which this melacha activity was performed in the Mishkan. Here are some examples to clarify what Tosafos means.

One of the 39 melachos of Shabbos is gozeiz, shearing, which includes any act that removes something from a living creature. The construction of the Mishkan required obtaining wool, which requires shearing it off sheep; this is a classic example of gozeiz. In this instance, the purpose of the shearing is to obtain usable material that is removed from the creature.

The question we will now ask is whether the melacha is violated min haTorah when gozeiz is performed not for the purpose of using the material that is removed. For example, when someone receives a haircut or clips his nails, he is removing something from a living creature, but he is not interested in the hair (with the exception of someone harvesting hair to sell for wig manufacture) or the nails. Is having a haircut or trimming nails prohibited min haTorah on Shabbos under the heading of gozeiz, or is it prohibited only miderabbanan, and the Torah prohibition of gozeiz is violated only when someone “shears” something that is usable, such as wool or hair suitable for wig manufacture?

According to Tosafos, this is the question of melacha she’einah tzericha legufah, which, the Gemara teaches, is the subject of a dispute among tanna’im. According to Rabbi Shimon, trimming hair or cutting nails is prohibited only as a rabbinic prohibition, since we do not use the trimmed items (Tosafos, Shabbos 94b s.v. aval). The disputing tanna, Rabbi Yehudah, rules that someone who performs a melacha she’einah tzericha legufah on Shabbos is culpable min haTorah. In his opinion, the fact that we do not use the trimmed nails or hair is irrelevant in defining the act as a melacha, as long as the results of the melacha are positive. In this instance, because of asthetic reasons the trimmed nails or hair is a desired outcome. Therefore, these acts violate Shabbos min haTorah, notwithstanding that one’s purpose was qualitatively different from the goal of this melacha in the construction of the Mishkan.

Here is another example of melacha she’einah tzericha legufah: Digging a hole in the ground only because someone needs the earth, but he has no need for the hole. The plowing performed in the building of the Mishkan was in order to plant, whereas digging a hole to obtain earth is qualitatively different from why this melacha was performed for the purpose of building the Mishkan. Therefore, this act qualifies as a melacha she’einah tzericha legufah, and it is exempt from desecrating Shabbos min haTorah according to Rabbi Shimon.

Among the rishonim, we find many other approaches to explain the concept of melacha she’einah tzericha legufah, but for clarity’s sake, we will limit our discussion to the approach of Tosafos.

Returning to the mekosheish

What does the purpose for which we do a melacha have to do with the mekosheish?

Based on his analysis of a midrash, the Maharsha (Commentary to Bava Basra 119a) explains that the mekosheish’s goal was not to perform the melacha, but to become an educational tool.The punishment he would receive for violating Shabbos would teach the Bnei Yisroel the stringency of observing Shabbos. Since he was not interested in the results of his melacha activities, they had the halachic category of melacha she’einah tzericha legufah. According to the authorities who rule that melacha she’einah tzericha legufah is not a Torah violation, the mekosheish never desecrated Shabbos, but instead was creating greater respect for Shabbos. Thus, the answer to the question posed to Rabbi Akiva — how could you reveal negative information about a tzadik — is that the mekosheish was not doing an aveirah, but a mitzvah!

We should note that, even if Tzelafchad was permitted to perform the specific melacha activity that he did, we would not be permitted to perform this activity because it is now prohibited by a rabbinic injunction. This prohibition had not yet been created in the days of Tzelafchad.

Why was he punished?

If, according to the Maharsha, Tzelafchad had technically not violated Shabbos, why was he punished by the beis din as if he had?

The Maharsha explains that since his thoughts of educating Bnei Yisroel were not known, the witnesses and the beis din dealt only with his actions, which is exactly what Tzelafchad wanted.

Thus, we can answer our opening question: “I was once told that the mekosheish was a frum Jew who did not really desecrate Shabbos. What does this mean?”

The answer is that, according to the approach suggested by the Maharsha, the mekosheish was a good guy, whose goal was to strengthen the commitment of Klal Yisroel to the observance of Shabbos, a mission that he accomplished. According to this suggestion, we can readily understand how he fathered such exemplary daughters.

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 purpose and accomplishment. On Shabbos, we refrain from constructing and altering the world for our own purposes. The goal of Shabbos is to emphasize Hashem’s rule as the focus of creation by refraining from our own creative acts (Shemos 20:11). Understanding that the goal of our actions affects whether a melacha activity has been performed demonstrates even more so the concepts of purpose and accomplishment.

Like Pulling Teeth

In honor of the Aseres Hadibros:

Question #1: Pulling Teeth

May I pull teeth on Shabbos?

Question #2: Clipping Fingernails

Does clipping fingernails on Shabbos involve a Torah prohibition?

Question #3: Digging Up

On Yom Tov, may I dig up earth to perform the mitzvah of kisuy hadam?

Introduction:

Each of our opening questions involves a complicated and often misunderstood concept of the laws of Shabbos, called melacha she’einah tzericha legufah. This topic is the subject of a machlokes between the tanna’im Rabbi Yehudah and Rabbi Shimon, as to whether it is forbidden min haTorah or miderabbanan: Rabbi Yehudah contends that it is prohibited min haTorah, and Rabbi Shimon rules that it is prohibited only as a rabbinic decree. I deliberately did not yet translate the term melacha she’einah tzericha legufah, since this might bias the reader toward one interpretation over another.

What we do need to understand is that the laws of Shabbos and Yom Tov are qualitatively different from most other mitzvos and prohibitions of the Torah; regarding these laws the motive is a factor as to whether an action is prohibited.

At this stage, the basic questions we must resolve include:

  • What is the definition of melacha she’einah tzericha legufah?
  • Since all opinions agree that melacha she’einah tzericha legufah is prohibited, what difference does it make whether the prohibition is min haTorah or miderabbanan?

Some examples

As is typical, the Gemara does not define melacha she’einah tzericha legufah, but does provide numerous instances of the principle. This article will present some of the cases and endeavor to illustrate how some rishonim explain the concept. I will then explain some of the halachic differences that result.

Here are some cases that the Gemara cites of melacha she’einah tzericha legufah. In all of them, Rabbi Yehudah ruled that they are prohibited min haTorah, whereas Rabbi Shimon prohibited them only miderabbanan.

  • Carrying a corpse out of a building so that a kohen may enter (see Mishnah Shabbos 93b).
  • Extinguishing a fire to help someone fall asleep (Mishnah Shabbos 29b and Gemara Shabbos 30a). In modern times, we would talk about turning off a light for the same purpose.

There are also some cases that most, but not all, authorities consider to be cases of melacha she’einah tzericha legufah:

  • Lancing an infection to allow the pus to drain (Shabbos 107a).
  • Catching a snake to prevent it from biting someone (Shabbos 107a). All agree that this is permitted if it is a life-threatening emergency. The case in question is where the snake bite cannot kill, but may be very painful.

In the last two cases, some contend that these are permitted only in a life- threatening emergency, whereas others contend that the prohibition is only rabbinic, and therefore permit it. This is because, when the prohibition is only a rabbinic injunction, Chazal permit these measures for safety or medical reasons, even when the situation poses no threat to life.

Tosafos’ definition

At this point, I will provide three approaches to explain melacha she’einah tzericha legufah. Tosafos (Shabbos 94a s.v. Rabbi Shimon; Chagigah 10b s.v. meleches) explains that melacha she’einah tzericha legufah means that the activity was performed for a purpose that is different from the purpose of this melacha when the Mishkan was built. For example, in the Mishkan, all carried items were transported because they were needed in the place to which they were brought. Thus, carrying an item in order to remove it from its current place, and not because you want it in its new location, qualifies as a melacha she’einah tzericha legufah. Therefore, when you want a kohen to be able to enter a building and, to allow this, you carry the meis outdoors, that is a melacha she’einah tzericha legufah. Your reason for moving the meis is not so that it will be outdoors, but rather so that it will not be in the house.

Clipping fingernails

Clipping fingernails and all other cases of removing something from a living thing are prohibited on Shabbos because of the melacha of gozeiz, shearing sheep; building the Mishkan required wool. In the Mishkan, sheep were shorn in order to use the wool. Therefore, removing the horn of a rhinoceros or the tusks from an elephant, in order to use them, is prohibited min haTorah as a form of gozeiz. (There is discussion among halachic authorities whether gozeiz applies if the animal is dead. According to those who contend that it does not, you would be in violation of gozeiz only by removing horns or tusks from living rhinos or elephants — probably not such a good idea, even on a weekday.)

In the case of clipping nails, the melacha “benefits” the body, not the nails, which is different from the melacha of gozeiz as performed in the Mishkan. Therefore, Tosafos explains that, according to Rabbi Shimon, clipping fingernails on Shabbos is prohibited only miderabbanan,but not min haTorah. (We should note that another rishon,the Rivosh, agrees with Tosafos’ definition of melacha she’einah tzericha legufah, but disagrees with this application. He contends that clipping fingernails is prohibited min haTorah, even according to Rabbi Shimon, because some cases of gozeiz in the Mishkan involved benefit to what is being shorn and not exclusively to the item being removed – Shu”t Harivosh #394.)

According to Tosafos, the words melacha she’einah tzericha legufah mean a melacha that was not for the purposes of the Mishkan.

Ramban’s approach

Although some rishonim understand melacha she’einah tzericha legufah the way Tosafos does, most do not. The Ramban (Shabbos 94b) explains melacha she’einah tzericha legufah as: you are not interested in the specific result. In the case of carrying the meis out of the house, although you are carrying it from an enclosed area (a reshus hayachid) to an open area meant for public use (a reshus harabim), your goal is to remove the meis from the house. If you could have it disappear completely, your immediate needs would be addressed. You are carrying the meis into a reshus harabim only because this is the simplest way to resolve the issue, not because you have any interest in performing an act of carrying into a reshus harabim on Shabbos.

The subtle difference between Tosafos and the Ramban can perhaps best be explained by providing an example: According to the Ramban, clipping fingernails is prohibited min haTorah, even according to Rabbi Shimon, because your goal is to remove the nails from your fingers, and that is what you are doing. The fact that, in the Mishkan, this melacha was performed to use the item clipped off is not relevant. According to the Ramban, the words melacha she’einah tzericha legufah mean that the person doing the melacha she’einah tzericha legufah gains nothing from the result of the melacha activity. He is doing the act of the melacha to remove a problem, not because he has any need for the result.

Here is another case in which Tosafos and the Ramban would disagree: Let’s say someone picks a fight with an enemy on Shabbos and mauls him with a mean uppercut, drawing blood. According to the Ramban, this is prohibited min haTorah, according to all opinions. The reason is that his goal when he punched was to draw blood, and he successfully accomplished his purpose. However, according to Tosafos, this is a melacha she’einah tzericha legufah, since in the Mishkan the purpose of drawing blood was to make the animal into a useful “implement,” which is a different intent from that of the puncher.

Here is a case where both Tosafos and the Ramban agree on the halacha, but disagree as to why this is a melacha she’einah tzericha legufah. Building a fire or burning wood, according to both of them, does not qualify as a melacha she’einah tzericha legufah; it is prohibited min haTorah, even according to Rabbi Shimon. The reasons Tosafos and the Ramban conclude this are slightly different. According to Tosafos, the reason is because kindling and burning were performed in the Mishkan in order to process the vat dyes that were used: techeiles, argaman, and tolaas shani. Therefore, burning wood to cook is a similar activity to what was performed in building the Mishkan. According to the Ramban, Rabbi Shimon considers this a melacha min haTorah because the goal when performing the melacha is to burn the wood, and that is the forbidden outcome.

Opinion of the Baal Hama’or

A third opinion, that of the Baal Hama’or (Shabbos 106a), is that melacha she’einah tzericha legufah means a melacha performed when the improvement occurs not to the item on which the melacha is performed, but to a different item. In his opinion, the words melacha she’einah tzericha legufah mean an act in which the item upon which the melacha is performed does not improve because of the action.

Thus, clipping one’s nails is a melacha she’einah tzericha legufah and, according to Rabbi Shimon, is not prohibited min haTorah, since the nails are not improved by the clipping. Thus, in this particular case, the Baal Hama’or agrees with Tosafos and disagrees with the Ramban.

On the other hand, here is a case that the Baal Hama’or and the Ramban agree that even Rabbi Shimon considers a violation of Shabbos min haTorah, whereas Tosafos disagrees. Among some populations, livestock are used for an interesting harvesting operation. The owners draw blood, which is a highly nourishing beverage, from their livestock, in a way similar to the method in which we humans donate blood. They then drink the blood, either straight or mixed with milk. (By the way, it is permitted for a non-Jew to harvest and drink blood this way, which is a topic for a different time.) Our question is whether this action would violate melacha on Shabbos min haTorah or only miderabbanan.

According to Tosafos, since blood was not drawn for this purpose in the Mishkan, it is prohibited miderabbanan, according to Rabbi Shimon. However, according to both the Baal Hama’or and the Ramban, this is prohibited min haTorah even according to Rabbi Shimon, although there is a subtle difference as to why. According to the Baal Hama’or, this is prohibited min haTorah because the melacha is performed on the blood, and this is a positive result (from a human perspective) because you now have access to the blood. According to the Ramban, this is also prohibited min haTorah, because the perpetrator’s goal is to have blood at his disposal, and he has accomplished this.

Bad odor

Here is an example where all the opinions quoted agree that it is a melacha she’einah tzericha legufah: Moving 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. Although moving something from a reshus hayachid into a reshus harabim constitutes the melacha of carrying, moving the foul-smelling item from a house to a reshus harabim does not constitute a melacha min haTorah, according to Rabbi Shimon, because the purpose of the carrying for the Mishkan was to move the item to an accessible location. 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, but rather a convenient place to deposit unwanted material. I note that although all three rishonim that I have quoted are in agreement regarding this ruling, there is at least one early authority, Rav Nissim Gaon (Shabbos 12a), who disagrees and considers this action to be a Torah prohibition even according to Rabbi Shimon.

Clipping fingernails

At this point, we can address one of our opening questions: Does clipping fingernails involve a Torah prohibition on Shabbos?

According to Tosafos’ understanding of Rabbi Shimon’s opinion, and also according to the Baal Hama’or,this is prohibited only miderabbanan. However, according to the other opinions we have mentioned, this is prohibited min haTorah, even according to Rabbi Shimon.

In practical halacha, the question is: When there is a pressing but not life-threatening need to clip or trim nails on Shabbos, is it permitted to have a non-Jew do so? (See Nekudos Hakesef, Yoreh Deah 198:21; Biur Halacha 340:1 s.v. vechayov.)

I am limiting this discussion about melacha she’einah tzericha legufah to these three approaches, notwithstanding that there are many opinions how to explain the concept, with many differences in halacha (see, for example, Rav Nissim Gaon, Shabbos 12a; Tosafos Rid, Shabbos 107b and 121b; Meginei Shelomoh, Shabbos 94a; Mirkeves Hamishneh, beginning of Hilchos Shabbos; Yeshu’os Yaakov, Orach Chayim 319:1).

How do we rule?

Does the halachic conclusion follow Rabbi Yehudah or Rabbi Shimon? This, itself, is a major dispute among the rishonim. The Rambam and others rule that melacha she’einah tzericha legufah is prohibited min haTorah, following Rabbi Yehudah, while others rule that melacha she’einah tzericha legufah is prohibited only miderabbanan, following Rabbi Shimon. It is even unclear which way the Shulchan Aruch and the later poskim rule.

What difference does it make?

We find that Chazal were lenient in several halachic issues that involve melacha she’einah tzericha legufah. For example, under certain circumstances, because of pain or illness, they permitted performing a melacha she’einah tzericha legufah. (Those who rule that melacha she’einah tzericha legufah violates a Torah law permit this only when the situation is life threatening, or because of a different halachic reason).

Here is another situation in which many halachic authorities are lenient. As we are aware, most food preparation activities are permitted on Yom Tov, at least min haTorah. We may find it strange, but it is permitted to shecht on Yom Tov. Prior to the discovery of refrigeration, this was the easiest way to supply fresh meat for Yom Tov. (Although this may sound a bit pessimistic, life is the world’s best preservative.)

The halachic question we will address is the following: When shechting fowl or deer (or any other species of chayah), the halacha requires that we perform a mitzvah called kisuy hadam, which means covering the blood of the shechitah, both below and above, with earth or something similar, such as sawdust. The question is whether it is permitted to dig up earth, under certain circumstances, in order to perform kisuy hadam on Yom Tov.

If melacha she’einah tzericha legufah is prohibited min haTorah, as is the opinion of Rabbi Yehudah, or if the act does not qualify as a melacha she’einah tzericha legufah but is a regular melacha activity, it is prohibited to dig up earth in order to perform the mitzvah of kisuy hadam. However, if we rule according to Rabbi Shimon, one would be allowed to dig up earth (which is a melacha she’einah tzericha legufah) to perform the mitzvah of kisuy hadam, at least under certain circumstances (Maharsha, Beitzah 8a s.v. Tosafos ve’eino; Machatzis Hashekel 498:25; Nesiv Chayim ad loc.).

At this point, we can return to our opening question:

Pulling Teeth

May I pull teeth on Shabbos?

Let us first analyze whether this is a melacha she’einah tzericha legufah. According to Tosafos’ opinion, the melacha in the Mishkan this would fall under is gozeiz, and gozeiz was performed only to use the item being shorn. In my experience, a tooth is never pulled in order to use it. Therefore, this is a melacha she’einah tzericha legufah and prohibited only miderabbanan according to Rabbi Shimon. However, should the market price on tooth enamel go through the roof, and someone choose to remove his tooth for his huge resale value, pulling the tooth would be prohibited min haTorah.

According to the Ramban, the tooth is being pulled because it is painful, not because I want the tooth itself. If I could get the tooth to disappear, that would be even more helpful, since I would avoid the pain and risk of infection that pulling it entails. Thus, the Ramban also categorizes this as a melacha she’einah tzericha legufah.

According to the Baal Hama’or, no benefit is gained from the tooth, and so, just as we explained according to the Ramban, this is a melacha she’einah tzericha legufah. As mentioned above, should circumstances change such that the removal of the tooth is performed for fnanical benefit, the act would become Torah prohibited also according to the Ramban and the Baal Hama’or.

Thus, all three rishonim we quoted do not consider pulling a tooth on Shabbos to be a Torah violation. Therefore, in a situation where a dentist wants to pull a tooth and the patient is in intense pain, all three of these rishonim would agree that this is permitted, according to Rabbi Shimon, even if the dentist is Jewish.

We also need to deal with the bleeding that will, undoubtedly, result when pulling a tooth. Again, according to Tosafos, this bleeding is not comparable to the reason that this melacha was performed in the Mishkan. According to both the Baal Hama’or and the Ramban, this would also qualify as a melacha she’einah tzericha legufah.

Thus, it would seem that according to those rishonim who rule that melacha she’einah tzericha legufah is prohibited only miderabbanan, this should be permitted (Mishnah Berurah 316:30; Biur Halacha ad loc.; Nimla Tal, Shocheit #53; however, cf. Magen Avraham 328:3).

In conclusion

Rav Samson Raphael Hirsch (Shemos 20:10) notes that people mistakenly think that work is prohibited on Shabbos, in order for it to be a day of rest. He points out that the Torah does not prohibit doing avodah, which connotes hard work, but melacha, activities or actions that achieve purpose and accomplishment. The concept of melacha she’einah tzericha legufah bears this out. It is no harder to perform a melacha hatzericha legufah, which is prohibited min haTorah according to all opinions, than to perform a melacha she’einah tzericha legufah. Yet, according to Rabbi Shimon, the latter is prohibited only because of a rabbinic injunction. This is because this action is not considered to provide “purpose,” as explained above.

Shabbos is a day when we refrain from altering the world for our own purposes, and the melacha she’einah tzericha legufah type of activity is not considered our own purpose. The goal of Shabbos is to allow Hashem’s rule to be the focus of creation, by refraining from our own creative acts.

Carrying Nitroglycerin on Shabbos

The Torah’s concern for the protection of life and health is axiomatic. In virtually all instances, Torah restrictions are superseded when a life-threatening emergency exists. If the situation is extenuating, but not life-threatening, then the rule of thumb is that the Torah restriction remains in force. Sometimes, however, mitigating factors allow the overriding of a rabbinic injunction because of extenuating circumstances.

A contemporary halachic question that relates to this issue is as follows: Is there a way whereby a person suffering from angina or other heart disease may carry his medication on Shabbos through a public thoroughfare? In case of a sudden attack, there would indeed be a life-threatening need that permits procurement of such medication through any necessary means. However, there is no medical reason that compels the patient to leave his home where his medicine is kept. Is there halachic basis to allow him to leave his house with his medication, since the possible medical emergency can be completely avoided by staying home? Granted that this would result in a great hardship by making the patient housebound on Shabbos, yet this deprivation would not constitute a life-threatening emergency and would not be grounds for overriding a Torah-proscribed Shabbos prohibition.

The halachic question is two-fold: Can carrying the medicine be considered a rabbinic violation, as opposed to a Torah violation, thus making it more acceptable? Does halachic basis exist to permit overriding a rabbinic prohibition because of hardships?

The same principles can be applied to other medical situations. For example, the diabetic who receives insulin injection is usually medically advised to carry with him some food items containing sugar as a precaution against insulin shock; and certain asthmatics and other allergy sufferers are advised never to go anywhere without their medication available. Would these patients be allowed to carry their sugar or medicine on Shabbos in a way that involves violating only a rabbinic decree?

Most contemporary authorities who address this issue base their discussion on a responsum of Rav Shmuel Engel, dated 9 Tammuz 5679 (July 7, 1919).[1] At the time of this question, there was a government regulation in force requiring the carrying of identification papers whenever one walked outside, with serious consequences for those apprehended in violation. Rav Engel was asked if a person could place his identification papers under his hat on Shabbos while walking to shul. Rav Engel’s analysis of the halachic issues involved will clarify many aspects of our question.

Shabbos violations fall under two broad headings: those activities that are forbidden

min hatorah (Torah-mandated), and those that are forbidden by rabbinic injunction, but do not qualify as melacha (forbidden work) according to the Torah’s definition.

Torah law is not violated unless the melacha is performed in a manner in which that activity is usually done. An act performed in a peculiar way, such as carrying something in a way that such an item is not normally carried, constitutes a rabbinic violation, but is permitted under Torah law. This deviation from the norm is called a shinui.[2]

Rav Engel points out that carrying identification papers in one’s hat would constitute a shinui, thus allowing a possibility of leniency. He quotes two Talmudic sources that permit melacha with a shinui on Shabbos due to extenuating, but not life-threatening, circumstances.

Rabbi Marinus said, “One who is suffering is allowed to suck milk directly from a goat on Shabbos. Why? [Is not milking an animal on Shabbos a violation of a Torah prohibition?] Sucking is considered milking in an unusual way, and the rabbis permitted it because of the discomfort of the patient.[3]

Tosafos notes that the leniency is allowed only if the suffering is caused by illness and not simply by thirst. The Talmudic text and commentary of Tosafos are quoted as halachic decision by the Shulchan Aruch.[4]

The above-quoted Talmudic text includes another case:

Nachum of Gaul said, “One is allowed on Shabbos to clean a spout that has become clogged by crushing [the clogged matter] with one’s foot. Why? [Is it not forbidden to perform repair work on Shabbos?] Since the repair work is done in an unusual manner, the rabbis permitted it in a case of potential damage.”

Based on these Talmudic sources, Rav Engel concludes that the rabbis permitted the performance of melacha with a shinui under extenuating circumstances, even though rabbinic prohibitions are not usually waived in these situations. Furthermore, he points out two other mitigating factors to permit carrying identification papers: According to most opinions, the prohibition to carry on Shabbos in our cities (even in the usual fashion) is rabbinic, because “our public areas do not constitute a public domain according to Torah law.” And, carrying identification papers would constitute a melacha done without any need for the result, which would also provide a reason to be lenient, as will be explained.

Melacha She’einah Tzericha Legufah

In several places,[5] the Gemara records a dispute between Rabbi Yehudah and Rabbi Shimon as to whether a melacha she’einah tzericha legufah, an action done intentionally and in the normal fashion, but without a need for the result of the action, is forbidden by the Torah or if it is a rabbinic injunction. (Note: an article that I will be issuing in a few weeks discusses this topic in greater detail.) For example, carrying a corpse from a private domain into a public domain would not constitute a Torah desecration of Shabbos according to Rabbi Shimon, since one’s purpose is to remove the corpse from the private domain and not because he has a need for it in the public domain.  Similarly, snaring or killing a predator insect or reptile when one’s concern is only to avoid damage is a melacha she’einah tzericha legufah, and therefore constitutes only a rabbinic violation according to Rabbi Shimon. Since one has no need for the caught reptile, Rabbi Shimon considers the violation rabbinic.

Both of these cases violate Torah prohibition according to Rabbi Yehudah, who opines that a melacha she’einah tzericha legufah is a Torah prohibition.

Although the Rambam[6] follows the opinion of Rabbi Yehudah, the majority of halachic authorities follow the opinion of Rabbi Shimon.

Rabbi Engel considers carrying identification papers in one’s hat to be a melacha she’einah tzericha legufah, because the carrier has no personal use for the papers and is carrying them merely to avoid injury or loss. He compares this to the killing of a snake, where the intent is to avoid injury. Although his point is arguable, as evidenced by a later responsum,[7] Rabbi Engel reiterates his position that this situation qualifies as a melacha she’einah tzericha legufah.

Furthermore, there is a basis to consider carrying only a rabbinic prohibition, because no public domain according to the Torah definition – reshus harabim – exists today. (It should be noted that notwithstanding Rav Engel’s statement on this subject, this position is strongly disputed by many authorities who contend that there is a reshus harabim today.) Because of these two mitigating reasons, Rabbi Engel permitted carrying the identification papers in one’s hat, which is an indirect method of carrying, in order to attend synagogue or to perform a different mitzvah.

As we will see shortly, some later authorities quote this responsum as a basis to permit our original question, although certain aspects of our case differ significantly from those of Rav Engel’s. Firstly, whereas in Rav Engel’s case, the identification papers had no inherent worth to the carrier, the nitroglycerin tablets do have intrinsic value to the patient. This would render them a melacha hatzericha legufah, a melacha performed with interest in the results being done, which constitutes a Torah-forbidden melacha. Thus, one of the reasons for being lenient is nullified.

Secondly, whereas our question includes carrying medication for social or other reasons, Rav Engel permitted the carrying of the identification papers only for the performance of a mitzvah. Would he have allowed a greater leniency for someone who is ill and permitted it even for social reasons? Bearing in mind the case of Rabbi Marinus, where permission is based on medical needs, could leniency be extended to allow carrying with a shinui, even for social or other reasons?

Several later halachic works discuss the question of a patient carrying medication with a shinui as a precaution against a sudden attack. Rav Yekusiel Y. Greenwald[8] suggests that a sugar cube be sewn into the pocket of a diabetic’s coat before Shabbos, so that he would not be carrying in the usual manner on Shabbos. Rav Greenwald bases his opinion on the Gemara[9] that allows the carrying of an amulet on Shabbos as a medicinal item, and the responsum of Rav Shmuel Engel quoted above. Unfortunately, the comparison to the law of kemeiya (amulet) seems strained. The halacha clearly states that the kemeiya must be worn in the way that it is normally worn, and that it can be worn only if it is a proven remedy. Under these circumstances, the kemeiya is considered to be like a garment. There does not seem to be a basis in these considerations to allow carrying an item. Furthermore, Rav Greenwald allows the diabetic to go outside with a sugar cube sewn into his garment, even for non-mitzvah-related activities, whereas Rav Engel permitted the carrying of identification papers only when going outside for mitzvah purposes.

Rav Eliezer Yehuda Waldenberg[10] cites the responsum of Rav Greenwald, but disputes his conclusions sharply. In addition to the difficulty we have noted, he also disputes two of Rav Greenwald’s assumptions.

1. Whereas Rav Greenwald assumes that these circumstances permit sewing a sugar cube or medicine tablet into a garment in order to carry it, Rav Waldenberg does not feel that the circumstances justify carrying an item in this fashion.

2. Rav Waldenberg writes that the only situation in which Rav Engel permitted carrying with a shinui was when the activity would have constituted a melacha she’einah tzericha legufah. This applies to carrying identification papers, where the carrier has no personal need for the papers and is carrying them only to avoid being apprehended. It does not apply to the case for medication, where the patient wants the medicine available for his own use.

Rav Waldenberg concludes that the leniency proposed by Rav Engel does not apply to the situation at hand, and that this patient would not be allowed to carry his medication outside, even when using a shinui. A mediating position is taken by Rav Yehoshua Neuwirth.[11] Although he equates the situation of the person carrying identification papers to the one carrying medication, and does permit the carrying of medication  with a shinui for the propose of performing a mitzvah, Rav recommends other specific guidelines that would reduce the violations. The reader is encouraged to see Rav Neuwirth’s entire ruling, and also see Igros Moshe, Yoreh Deah, Volume 1 #248, who understands the Gemara’s discussion in Kesubos in a way that preempts the basis for Rav Engel’s lenient ruling.

A responsum by Rav Menashe Klein[12] concludes that a patient is allowed to carry nitroglycerin tablets with a shinui for the purpose of going to shul or a different mitzvah. He bases himself on the following two rationales:

1. There is currently no public domain according to Torah definitions.

2. He considers this carrying to be a melacha she’einah tzericha legufah, a point that is certainly disputed by the other authorities quoted.

An interesting comment quoted in the name of the Chasam Sofer by the Levushei Mordechai[13]should also shed light on this issue. Levushei Mordechai reports that the Chasam Sofer was in the habit of carrying a handkerchief tied around his wrist outside of the eruv on Shabbos, because he considered this to be carrying with a shinui that is permitted because of the need for the handkerchief. The prohibition of rabbinic origin is overridden by the need for personal dignity (kavod haberiyos). No stipulation is made by Levushei Mordechai that the walking is done exclusively for the purpose of performing a mitzvah.

One would think that the discomfort of staying home on Shabbos provides greater reason to be lenient than the concept of personal dignity, and that this responsum could therefore be utilized as a basis to allow carrying of nitroglycerin with a shinui. However, few later poskim refer to the comment of the Levushei Mordechai.[14]

Having presented the background and references on this issue, I leave it to an individual who finds himself in these circumstances to discuss the question with his or her individual posek.

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 melachah, which implies purpose and accomplishment. On Shabbos, we refrain from constructing and altering the world for our own purposes. The goal of Shabbos is to emphasize Hashem’s rule as the focus of creation by refraining from our own creative acts (Shemos 20:11).


[1] Shu’t Maharash Engel, 3:43

[2] See Shabbos 92a, 104b

[3] Kesubos 60a

[4] Orach Chayim 328:33

[5] Shabbos 12a, 31b, 73b, etc.

[6] Hilchos Shabbos 1:7

[7] Shu’t Maharash Engel, 7:20

[8] Kol Bo on the laws of Aveilus, Volume 2, page 20

[9] Shabbos 60a, 67a

[10] Shu’t Tzitz Eliezer 13:34

[11] Shemiras Shabbos Kehilchasah, Chapter 40 #7

[12] Shu’t Meshaneh Halachos 7:56

[13] Shu’t Levushei Mordechai #133

[14] It is quoted by Shearim Hametzuyanim Bahalacha 84:13 and by Lev Avraham Volume 1, Chapter 6.

Carding, Combing and Disentangling

Question #1: Shabbos Prohibitions

“Does every av melacha of Shabbos have tolados?”

Question #2: Sinews

“How are sinews like wool?”

Question #3: Dog Grooming

“Is it prohibited min haTorah to comb out my dog’s hair on Shabbos?”

Introduction:

The Mishnah in the seventh chapter of Mesechta Shabbos lists the 39 avos melachos, or major categories of work, prohibited on Shabbos. These melachos were all involved in the building of the Mishkan, which is a major factor in determining whether something is prohibited on Shabbos min haTorah.

There is another rule that each av melacha has at least one toladah (see Bava Kama 2a). A toladah is an activity that is prohibited min haTorah, and is derived from one of the avos melachos.

The Talmud Yerushalmi (Shabbos 7:2) tells us a fascinating story how the great amora’im,Rabbi Yochanan and Reish Lakeish, studied diligently this one chapter of Mishnah, the seventh chapter of Mesechta Shabbos, for three and a half years! As a result of their studies, they discovered 39 tolados for each av melacha. We find this incredible, since, for some of the avos melacha, finding more than one or two tolados is difficult. Several of the rishonim, particularly the Rambam, the Sefer Yerei’im and the Semag, endeavor to find tolados for the melachos. Yet, even with all their considerable efforts, we often find no more than one or two tolados for a particular av melacha.

There are a few reasons why it is important to know how many melachos there are and how to categorize them. One reason is because a person who negligently violated one of the melacha categories on Shabbos is required to offer a korban chatos as atonement. Of course, we have no way of fulfilling this today, but, soon, when the Beis Hamikdash is rebuilt, this mitzvah will again become incumbent upon us.

This requirement to offer a korban chatos is only if the violation was min haTorah. There are many conditions that need to be met for a melacha activity to be a Torah prohibition. For example, someone who performed a melacha activity, but did so in an unusual way, does not violate Torah law. This is sometimes referred to as ein darko bekach, not the usual way of performing the particular activity. At other times the Gemara calls this, batlah da’atan eitzel kol odom, since most people do not consider this the normal way (Shabbos 92b).

Here is an example of this rule. Rabbah bar bar Channah, quoting Rabbi Yochanan, said, “One who twists wool into thread on Shabbos while it is still on the back of an animal is in violation of three melachos, one for shearing, one for menapeitz (I will explain this melacha shortly), and one for spinning thread.” Rav Kahana disagreed with Rabbah bar bar Channah, explaining that performing these activities while the wool is still attached to the animal is an atypical way of performing them. The Gemara then questioned Rav Kahana on the basis of a statement of an earlier authority, the tanna Rabbi Nechemyah, who noted that the women who spun the goat hair used for the Mishkan indeed spun the hair while it was still attached to the goats. Thus, if this was the way the melacha was performed when the Mishkan was built, it should automatically qualify as a melacha min haTorah! The Gemara retorts that, notwithstanding that the Mishkan was indeed constructed this way, Rav Kahana is correct that this is an atypical way to spin thread and therefore exempt from being a Torah violation of melacha. Since this method involves an unusually high level of skill, and, other than for the Mishkan, was certainly not the typical manner in which the melacha was performed, the way it was done in the Mishkan does not define what is a Torah violation of performing this melacha (Shabbos 74b).

Disentangling

The rest of this article will discuss the melacha called menapeitz, often translated as disentangling, combing or carding, but none of these terms explains the melachah adequately. When the Mishnah inventories the 39 melachos, it lists menapeitz in between melabein, which means either laundering or bleaching, and toveh, which is spinning fiber into thread.

As we see from several places in the Gemara, after wool and similar fibers were shorn from the animal and cleaned, they were combed or untangled in order to be able to continue processing them into cloth. The wool shorn from a sheep cannot be used immediately because it is filthy and very tangled. Cleaning it involves the melacha of melabein, which we will not discuss in this article. Menapeitz includes untangling the wool. Yet, as we will soon see, some authorities describe menapeitz in other ways, and, certainly, not all disentangling is menapeitz.

Tzadi or samach?

There is even a question as to whether the correct name for the melacha is menapeitz, with a tzadi at the end, or menafeis, with a samach, which is the way it is spelled by the Aruch. Rav Nosson ben Yechiel ben Avraham, was an early rishon who lived in Rome in the eleventh century. He was the head of a yeshivah located there, and authored a work called the Aruch, which is probably the earliest dictionary of Aramaic. In it, he quotes, at times extensively, various sources in the Gemara in which a term is used, translates the word into Hebrew and often explains the Gemara and other halachic concepts. The work, which is quoted by his contemporary, Rashi (see Shabbos 13b), and many times by Tosafos, had several addenda added to it in the centuries following, by such prominent poskim as the sixteenth-century Yerushalayim gadol Rav Menachem di Lunzano, and the nineteenth-century German dayan Rav Aharon Fuld. At times, only a seasoned reader can figure out which comments are from the original Aruch and which are additions from these latter figures. Other additions are from the seventeenth-century physician and philologist Binyomin Musafia, whose work was called originally Musaf Ha’Aruch, and from the renowned eighteenth-century Talmud chacham and editor Rav Yeshayah Pik.

Menapeitz in Tanach

Let us examine the root meaning of the word menapeitz in Tanach, and then see how the word is used in the context of the laws of Shabbos. The earliest use of the word is in parshas Noach (Bereishis 9:19), where the posuk says, “sheloshah eileh bnei Noach, umei’eileh noftzah chol ha’aretz, These are the three sons of Noach, and from them spread (the population) of the world.” We also find the word meaning to shatter, such as in the pasuk, “ki’chli yotzeir tenapetzeim, You will shatter them like a potter’s vessel” (Tehillim 2:9). The word conveys the same idea in Shoftim (7:19), “venafotz hakadim asher biyadam, They smashed the jugs that were in their hands,” and in Yirmiyohu (48:12) “venivleihem yenapeitzu, They will smash their barrels.” We find it used in a more figurative sense in Yeshayohu (33:3), “mei’romemusecha noftzu goyim, From Your loftiness, nations have dispersed.”

Furthermore, the Aruch provides three Talmudic references for the root nofatz: Shabbos 140, Avodah Zarah 7, and Chullin 72.

We now have a question on the Aruch. If the melacha on Shabbos is spelled with a samach, and there is clearly a word, both in Tanach and in Chazal, spelled with a tzadi,. why does the Aruch spell it with a samach? Are the letters samach and tzadi interchangeable, as we find occasionally? One could explain the variant spellings this way, although it is clear from the Talmudic references above that the Aruch himself understood that there are two roots with similar meanings. The root with a tzadi means to shatter, smash or disperse, whereas that with a samach means to disentangle.

Rishonim on the melacha

In his commentary to the Mishnah discussing the melacha of menapeitz, the Rambam (Shabbos 7:2) describes the melacha as beating wool with a stick. In the monumental recent work, Ma’aseh Oreg, which elucidates the various processes used in the days of Chazal to make cloth, Dayan Yisroel Gukovitski explains that after wool was washed and bleached, it was placed on a table and beaten with rods, which loosened the fibers and crushed any matter that prevented the wool from disentangling. This was an important stage in preparing the wool to be spun into thread or pressed into felt.

Rishonim other than the Rambam explain menapeitz in other ways. For example, in the context of the law of a nazir combing his hair, Rashi explains the word menapeitz to mean disentangling hair (see Rashi, Shabbos 50b; see Mishnah, Nazir 42a). In the context of the melacha menapeitz, Rashi understands this to mean picking apart and separating the clumped wool into fibers that can be properly spun.

Other authorities explain the melacha to mean combing the wool out with an iron comb (Meiri, Shabbos 73b; Chayei Odom 23:1). This is a later step in the processing of the fibers to make them ready for spinning into thread. By the way, Rashi (Bava Basra 19a s.v. Tzipei) also describes the act of menapeitz as combing, although that context is not discussing the laws of Shabbos.

It is unclear that there is any halachic dispute among these different approaches. They may simply be describing different stages in the melacha, and that the melacha includes any or all of these processes.

Carding

Some late commentators translate menapeitz as carding,because the word card as a verb

means to disentangle fibers. (The word card can also mean the specific brush used to disentangle fibers prior to spinning them.) This seems to fit Rashi’s old French word, carpir (Shabbos 73a, see Avnei Neizer 170:8 and Targum Hala’az #1618).

However, at this stage we are faced with a question asked by one of the great late acharonim, the Avnei Neizer (170:9). There are two steps involved in preparing clean fibers so that they can be spun into thread. First, one disentangles the wool; then, one combs the fibers together evenly so that they can be spun. Since we now know that menapeitz means disentangling, why isn’t the second step, combing it into a form that can be spun, a separate melacha? In other words, there should be two melachos – one called menapeitz and another called soreik, combing – between the melacha of melabein, which is laundering or bleaching, and the next melacha, toveh, spinning.

The Avnei Neizer (170:9) answers that since this is all one process, it is all included as one melacha, notwithstanding that it can be subdivided into two steps. He then asks why the melacha is called menapeitz and not soreik, combing, which is the final stage? To this he answers that combing is performed with an implement, whereas the disentangling can be performed either with an implement or by hand. The Mishnah called the melacha menapeitz so that we would realize that disentangling by hand is also considered the primary melacha.

Menapeitz times two

Now that we understand the basics of this melacha, we will discuss some of its details.

According to some authorities, one can violate the melacha of menapeitz twice on the same material. Certain methods of processing wool involve combing out the material and then soaking it in a special solution, so that it will absorb dye better. This soaking causes the wool to clump again, and one needs to comb it out a second time. According to the Maasei Rokei’ach, if both of these actions were performed on Shabbos, this second combing would be another Torah violation of the melacha of menapeitz (Hilchos Shabbos 9:12).

Sheep and other animals

Although the prohibition of shatnez applies min haTorah exclusively to the wool of sheep and not to the hair or wool of other animals, such as goats, camels, llamas and rabbits (see Kel’ayim 9:1), all opinions agree that menapeitz applies to the wool of all animals that may be used for clothing. By the way, the difference between wool and hair, the two English words that describe what grows on an animal, is that wool is hair that is soft and therefore suitable for clothing. Some goats, such as cashmere and angora varieties, produce soft wool, whereas others produce coarser hair, suitable for making into burlap sacks but not into clothing.

Carding coarser material unsuitable for cloth manufacture, but usable as burlap, also violates menapeitz.

Linen and cotton

There appears to be a dispute among rishonim whether the melacha of menapeitz applies min haTorah to textile materials that grow from the ground (plant-based), such as cotton, jute, or flax (which is processed into linen). Rashi seems to hold that menapeitz applies only to materials that do not grow from the ground (Rashi, Shabbos 73b; see also Meiri ad locum), whereas the Rambam (Hilchos Shabbos 9:12) and the Semag rule expressly that menapeitz applies to all materials. The Chayei Odom rules that menapeitz applies also to plant-based textiles.

Even according to those who accept the Rambam’s opinion that menapeitz applies to plant-based textiles, there is a further dispute whether beating a flax plant to soften and loosen its fibers violates menapeitz or tochein, grinding. In his commentary on the Semag, the fifteenth-century posek, Rav Isaac Stein, rules that beating flax violates the melacha of menapeitz. On the other hand, the Maharshal, in his comments on the Semag, disagrees, contending that menapeitz must involve disentangling and not simply beating.

Cottonseed

According to several rishonim, combing out cotton, which removes the seeds, violates a different melacha, dosh, threshing, because it separates the usable textile material from the seeds, which are unusable as clothing (Rashi, Shabbos 73b, Ran and Meiri ad locum). (Cottonseed is crushed for its oil. At the time of the Gemara, cottonseed oil was used as inferior kindling oil [see Rashi, Shabbos 21a s.v. Mish’cha]. Today, it is a source of cooking oil, used, for example, in the production of potato chips.) The melacha of dosh is violated when one breaks the natural, physical connection between two items that are dissimilar in their use, thus creating a product that can be used easily. For example, threshing breaks the connection between the kernels and the chaff, thus making the kernels usable; squeezing separates the juice or oil from the fruit. Since the Chayei Odom ruled like the Rambam that menapeitz is applicable to plant-based textiles, he concludes that combing out cotton or similar textiles, thereby removing the seeds while preparing the fibers for spinning into cloth, violates two melachos, dosh and menapeitz. However, the Bris Moshe disagrees (Commentary to Semag 65:134). It is beyond the topic of this article to explain the significance of an action violating two different melachos.

Sinews

Let us return to our second question, “How are sinews like wool?”

The halacha requires that Sifrei Torah and tefillin be sewn by a strong, very special type of “thread” made of sinew. The processing of these sinews so that they can be used as thread is also considered an act of menapeitz (Rambam, Hilchos Shabbos 9:15). The way these “threads” are processed is as follows: The thick sinews of an animal are dried and then smashed with a hammer, which makes them form a mushy mass, somewhat similar to the way wool appears after it has been carded. The beaten sinew can then be spun into thread, which constitutes the melacha of toveh.

The Avnei Neizer (170:6) asks why the hammering process that precedes the spinning of the giddin (sinews) is not a violation of a different melacha, tochein, grinding, since one is thereby pulverizing the dried sinew. He concludes that, indeed, both melachos are violated, tochein and menapeitz. The Rambam simply told us that the spinning is a toladah of menapeitz, but did not discuss the fact that one violated Shabbos already when hammering the sinew.

Combing hair

While showering, many people use hair conditioner to facilitate combing the tangles and knots out of their hair. Realize how much more difficult this is for a sheep, whose hair is much curlier, and it has been quite a while since it last brushed its hair! And it certainly didn’t use conditioner!

The halachic authorities discuss whether a woman can disentangle her hair on Shabbos, all ruling that this is permitted provided she does not do it in a way that will be a psik reisha whereby she definitely pulls out hair (end of Orach Chayim, 303). Pulling out hair is forbidden because of a different melacha, gozeiz, shearing. However, if, as we explained, any type of disentangling involves the melacha of menapeitz, why is disentangling hair not forbidden as menapeitz?

The answer is that the melacha of menapeitz is preparing material so that it can be spun into thread or made into cloth (Avnei Neizer, Orach Chayim 170:2, 171; Chayei Odom). Unless a woman is planning to spin her hair into cloth, it will not be prohibited as menapeitz.

Dog grooming

Thus, we can now address the third of our opening questions: “Is it prohibited min haTorah to comb out my dog’s hair on Shabbos?”

Unless one intends to use its hair as a textile, there is no melacha of menapeitz involved. It is presumably still prohibited because of muktzah,and because of a concern that someone will likely pull out hairs while combing.

In conclusion

Rav Samson Raphael Hirsch (Shemos 20:10) notes that people mistakenly think that work is prohibited min Hatorah on Shabbos so that it be a day of rest. He points out that the Torah does not prohibit doing avodah, which connotes hard work, but melacha, activities or actions which bring purpose and accomplishment. Shabbos is a day that we refrain from constructing and altering the world for our own purposes. By refraining from our own creative acts on Shabbos, we allow Hashem’s rule to be the focus of creation (Shemos 20:11).

Pouring While It’s Hot

Photo by Adam Davis from FreeImages

The end of the article answers the question: “Why are we discussing this topic the week of Parshas Matos?”

Question #1: Warming bottles

“On Shabbos, may I pour hot water onto a baby bottle containing milk or formula?”

Question #2: Sinks

“May I use my sink for both milchig and fleishig?”

Question #3: Iruy into liquids

“Does iruy cook when it falls into a liquid?”

Question #4:

“Why are we discussing this topic the week of Parshas Matos?”

Introduction:

Although our opening questions may appear unconnected, they all relate to a halachic topic called iruy kli rishon. This term refers to the halachic status of food or vessels that were heated by having hot liquid poured on them. For example, preparing a cup of tea by pouring hot water from a kettle or urn into a cup containing a tea bag is a typical case of cooking by use of iruy. Pouring hot chicken soup directly from the pot into a milchig bowl is another situation of iruy kli rishon. The word iruy means pouring,and the term iruy kli rishon means that the liquid was poured from a pot or pan that was heated directly by the heat of a fire. This article will discuss the background and the basic rules of iruy kli rishon and some halachic ramifications. As usual, our purpose is not to paskin everyone’s halachic queries. That is the role of each individual’s rav or posek.

Iruy kli rishon affects many common situations, including, for example:

The status of milchig and fleishig items in your kitchen.

How one may warm food on Shabbos.

Whether a food or utensil became non-kosher.

How to kasher utensils that became non-kosher.

Kashrus Jargon

To make this presentation clearer, let us clarify four relevant terms:

Yad soledes bo

Whenever in this article we mention something is hot, it means that it is at least yad soledes bo, meaning that it is hot enough that a person pulls his hand back, instinctively, when he touches it. There is much dispute among halachic authorities how we measure this in degrees, which is a subtopic that we will leave for a different time.

Kdei kelipah

At times, we will refer to something being cooked or absorbed kdei kelipah. For the purposes of this article, this means that, at the point of contact of the heat, some cooking or flavor absorption transpires, but does not extend further.

Kli rishon

A kli rishon is a pot, pan or other vessel that was heated directly from a source of heat, such as on a stove, inside an oven, or any other way.

Kli sheini

A kli sheini is the platter or bowl into which food is poured from a kli rishon.

An anecdote from the Gemara will clarify the status of a kli sheini.

Although most forms of hot bathing are prohibited on Shabbos, it is permitted to bathe in hot natural springs, such as those found in Iceland, Teverya, and Hot Springs, Arkansas. The Gemara (Shabbos 40b) records that Rabbi Yehudah Hanasi, also known as Rebbe, was bathing in the hotsprings of Teverya on Shabbos and was being waited on by his disciple, Rav Yitzchak bar Avdimi. Rav Yitzchak bar Avdimi had a flask of oil for Rebbe to use for anointing after he finished bathing, and Rav Yitzchak wanted to warm the flask so that the oil would be more comfortable. Rav Yitzchak asked Rebbe whether he could warm the oil in the hot spring; Rebbe replied that he may not. Then Rebbe suggested a different approach: Rav Yitzchak bar Avdimi could fill a container with hot spring water, then place the container of oil inside the larger container of hot water.

Tosafos (ad loc.) asks why the latter procedure is permitted, whereas placing the flask of oil directly in the hot spring is prohibited. In both instances, the oil is heated by water from a natural hot spring. Tosafos answers that when the vessel itself is on the fire or inside the oven, the heat of the liquid is maintained by the hot walls of the vessel, and that is why bishul occurs. However, when the container itself was never directly warmed – what we call a kli sheini – the walls of the vessel diminish the heat. As a result, the oil will not cook from the heat of the water. In other words, cooking in a vessel requires not only sufficient heat, but that the walls of the pot or vessel maintain the heat. Therefore, cooking can occur in a kli rishon but not in a kli sheini.

The Mishnah

Here is another distinction between kli rishon and kli sheini: The Mishnah (Shabbos 42a) teaches that if a pot was removed from the fire on Shabbos, one may not add spices, because this constitutes bishul. However, one may add spices to a platter containing food that was poured out of the original pot. The second case is a kli sheini, meaning that the platter itself was never on the fire. Again, the indication is that cooking requires the walls themselves to have been heated.

Iruy kli rishon

We see that whereas a kli rishon is capable of cooking, a kli sheini is not. What about pouring from a kli rishon, which is an in-between level? The hot stream coming from iruy kli rishon has no vessel walls to maintain its heat – but it also has no walls cooling down the heated product.  Do the heated walls of the kli rishon cause the cooking, in which case iruy kli rishon would not be considered cooking, or is it the cooling kli sheini’s walls that prevents cooking from transpiring, in which case iruy kli rishon would be considered cooking? This question is debated extensively by the rishonim and early poskim.

Sibling rivalry

Among the main players who weigh in on the discussion are two of Rashi’s illustrious grandsons, the Rashbam and Rabbeinu Tam (Tosafos, Zevachim 95b). The Rashbam maintained that iruy does not cook, just as a kli sheini does not. His younger brother, Rabbeinu Tam, disputed this, and contended that iruy kli rishon can cook, at least to a certain extent.

Among the Baalei Tosafos, we find a further dispute regarding whether Rabbeinu Tam held that iruy kli rishon cooks and causes absorption of flavor through the entire product or only kdei kelipah. We will be assuming the second of these approaches, which is held by the majority of authorities.

The background behind this discussion takes us to a different passage of Gemara.

Who wins?

Within the context of a hot substance falling on a cold one, or vice versa, we find a dispute in the Gemara (Pesachim 75b-76a) between the great amora’im, Rav and Shmuel, as to who “wins” – the one on top or the one on the bottom. As explained by Rashi, the Gemara teaches:

If hot food fell into hot food, such as hot meat fell into hot milk, or when one item was kosher and the other not, everyone agrees that the resultant mixture is non-kosher. The flavors of the two products became mixed because of the heat, and the result is no longer kosher.

If both food items were cold, and one can separate the two products, that which was originally permitted remains so.

The dispute between Rav and Shmuel is when one food is hot and the other cold. Rav contends that when the upper one is hot, the flavor of one food mixes into the other, rendering them both non-kosher; however, when the lower one is hot and the upper is cold, the flavors do not mix. Therefore, if the foods did not become mixed, the kosher one remains kosher. This is referred to as ila’ah gavar, literally, the upper one is stronger.

Shmuel rules that when the lower item is hot, we rule that the flavors mix, and everything becomes non-kosher. However, when only the upper one is hot, it cools off when it mixes into the lower one. This is referred to as tata’ah gavar, meaning, “the lower one is stronger.” The Gemara concludes that, according to Shmuel, when a hot substance falls into a cold substance, there is a mixing of flavors on a thin layer of the food, which is called kdei kelipah. Therefore, a thin layer is sliced off the food at the point of contact, since that layer absorbed non-kosher flavor. The rest of the food remains kosher. This ruling will be a major factor in our discussion.

Rashi notes that, although in matters of kashrus and other laws called issur veheter we usually rule according to Rav and against Shmuel, in this particular debate we rule according to Shmuel. The reason is because the Gemara notes that two different beraisos, teachings from the tanna’im, ruled like Shmuel. Thus, most of the rest of our discussions assume that tata’ah gavar.

Let us now return to the dispute between Rabbeinu Tam and his older brother, the Rashbam, concerning whether iruy is considered to have cooked something. Some authorities, following the approach of Rabbeinu Tam, contend that just as Shmuel ruled that when one pours a hot food onto a cold one, we assume that kdei kelipah became absorbed, when pouring hot water onto a cold food (such as a teabag) on Shabbos; we must assume that a kdei kelipah becomes cooked. Thus, it is forbidden, according to Rabbeinu Tam, to pour hot water onto cold, uncooked food on Shabbos. The consensus of halachic authority is to accept this ruling and to prohibit pouring hot water from a kli rishon onto cold, uncooked food on Shabbos.

Kdei kelipah

Above, we noted that when a hot substance falls into something cold, the hot substance is absorbed into the cold one to a depth of a thin layer of food. One question to resolve is whether this ruling is min haTorah oronly miderabbanan. A prominent early acharon, the Magen Avraham (467:33), contends that this ruling (that a layer of the cold food becomes prohibited) is only a chumra be’alma, meaning that min haTorah no absorption takes place, but that Chazal prohibited kdei kelipah.

Despite the Magen Avraham’s position, it is evident from many rishonim that they understood that kdei kelipah is prohibited min haTorah.

Baby bottle

At this point, let us examine our opening question:

“On Shabbos, may I pour hot water onto a baby bottle full of milk?”

We have learned that when pouring hot water from a kli rishon, the outer surface of the food may become cooked.

However, let us think for a moment about our question. Iruy potentially can cook only the outer surface, which, in this case, is the bottle itself. Observation tells us that, even assuming that vessels can become “cooked,” bottles do not become cooked by pouring boiling water on them, since they are too hard to become changed, either physically or chemically, by this amount of heat. Furthermore, the milk inside the bottle is not in the surface kdei kelipah, and, therefore, although the milk inside the bottle will become warm or even hot, it is not being cooked. Consequently, it is permitted to warm baby’s bottle on Shabbos by pouring hot water onto the outside of the bottle.

Iruy into liquids

Let us move on to the next of our opening questions: “Does iruy cook when it falls into a liquid?”

We learned that iruy kli rishon causes a small degree of absorption, and, according to Rabbeinu Tam, it also cooks. At this point, I raise a question: Perhaps this is true only when the hot water is poured onto a solid food or a vessel? Could one argue that no cooking takes place when one pours from a kli rishon into a bowl of liquid?

Why should there be a difference between a solid and a liquid? When one pours directly into a liquid, what one pours immediately disperses into the liquid into which it falls. Perhaps all the heat that would cause absorption kdei kelipah dissipates throughout the liquid and, consequently, no cooking takes place. Indeed, we find rishonim who espouse this position (Tosafos, Pesachim 40b s.v. Ha’ilpeis). Nevertheless, this is not a universally held position, and the consensus of later authorities is that we do not differentiate between liquids and solids: In all instances, we conclude that iruy kli rishon does cause some cooking (Pri Megadim, Mishbetzos Zahav, Yoreh Deah 68:9 s.v. Hadin Hashelishi).

Hot potato

At this point, we can explain a different halachic question: A hot potato is on my plate, which is a kli sheini since it was not on the fire. May I place uncooked seasoning onto the potato on Shabbos?

We learned above that I am permitted to put uncooked spices into a kli sheini. It would appear, then, that I am permitted to add raw spices to my hot potato, which is sitting in a kli sheini. Indeed, we find major authorities who seem to agree that this is considered a case of a kli sheini (see, for example, Rema, Yoreh Deah 94:7).

Nevertheless, many authorities disagree with this conclusion (Maharshal, Yam shel Shelomoh, Chullin 8:71). They note the following: Tosafos explained that the difference between a kli rishon and a kli sheini is that the cooler walls of the kli sheini are reducing the heat; this prevents cooking from taking place.

However, a hot potato on a plate is not being cooled down by the plate. Since it touches the plate on only a minimal amount of its area, perhaps the potato itself retains the halachic status of a kli rishon. This is referred to as davar gush, a solid food not having the halachic advantages of a kli sheini. Most of the commentaries on the Shulchan Aruch rule that, generally, we should be concerned about both approaches: that of the Rema,who considers this a kli sheini; and that of the Maharshal, who considers this a kli rishon. As a practical matter, this means that one usually treats a davar gush not as a kli sheini but as a kli rishon (Shach, Yoreh Deah 105:8; Taz, Yoreh Deah105:4; Magen Avrohom, Orach Chayim 318:45).

Sinks

At this point, let us examine another of our opening questions:

“May I use my sink for both milchig and fleishig?”

The question here is as follows: A sink does not have its own heating element. As such, it is never a kli rishon, but qualifies either as an iruy situation or as a kli sheini. We learned above that iruy can cause cooking and absorption, at least kdei kelipah. For these reasons, many authorities contend that someone who has only one sink in the kitchen should treat it as treif and use either dishpans or something similar and avoid putting dishes directly onto the sink surface (see, for example, Shu”t Minchas Yitzchok 2:100). On the other hand, based on an extensive analysis of the halachic sources, one major authority concludes that using a sink for both milchig and fleishig does not meet the characteristics of iruy kli rishon and is permitted (Shu”t Igros Moshe, Yoreh Deah 1:42). I refer our readers to their own halachic authority for a practical ruling.

Koshering

At this point, let us examine the last of our opening questions:

Why are we discussing this topic the week of Parshas Matos?

After the Bnei Yisroel’s miraculous victory over the nation of Midyan, they were commanded regarding the spoils that they had now acquired: Concerning the gold and the silver; the copper, the iron, the tin and the lead: any item that was used in fire needs to be placed in fire to become pure – yet, it must also be purified in mikveh water. And that which was not used in fire must pass through water (Bamidbar 31:22-23). Here the Torah introduces the concept of kashering vessels that have absorbed non-kosher foods. In this instance, the vessels of Midyan had been used for non-kosher; could the Jews use them? The answer is that they could kasher each item in a way that expunges the non-kosher absorption, and the vessel would become kosher. As Rashi explains the posuk, any item that was used directly in fire needs to be placed directly in fire to become kosher. And that which was not used in fire directly, but was used to cook with hot water on top of the fire must pass through water that was heated directly by a fire, to kasher it.

Does something that absorbed non-kosher via iruy require kashering? According to the conclusion above, it does – since we assume that iruy kli rishon causes some absorption into the walls of the vessel. But it can be kashered through iruy kli rishon (Tosafos, Shabbos 42b s.v. Aval).

Conclusion

We now have some understanding of a complicated halachic issue with all sorts of ramifications. It provides an appreciation how much one’s rav or posek must keep in mind every time he answers one of our questions. Certainly, this is a time to value his scholarship and his making himself available when we need him.

Erasing on Shabbos

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Question: Erasing off my hand

On Friday, I wrote a short reminder on my hand. May I rub it off on Shabbos?

Introduction:

In a previous article, we analyzed the prohibition of writing on Shabbos. We discovered that this melacha was performed in the process of building the mishkan – either when they marked the boards, to make sure that they were placed in the proper location, or, according to another opinion, when they kept records. This does not explain why the activity of erasing, mocheik, is a melacha. Rashi (73a) explains that erasing is a melacha because sometimes the person doing the marking made an error that required correction. Thus, the erasing was in order to write the correct numbering. This leads directly to our next point:

Erasing in order to write

When the Mishnah lists the various melachos of Shabbos, it states, “There are 39 categories of melacha: Someone who plants, or plows, or reaps, or gathers, or threshes, or winnows, or selects, or grinds, or sifts, or kneads, or bakes. Someone who shears wools, or launders it, or cards it, or dyes it, or spins… someone who traps a deer, or slaughters it, or skins it… or tans the hide, or smooths it, or cuts it to size, or writes two letters, or erases with the intent of writing two letters, or builds, or razes, or extinguishes, or someone who kindles.” The amount of detail for the melacha of erasing, relative to the other melachos, stands out; most of the melachos are described in Hebrew by one word, without referencing another melacha or a quantity. Yet, when mentioning the melacha of mocheik, erasing, the Mishnah limits the melacha to someone who “erases with the intent of writing two letters.” To explain why the Mishnah uses this unusual way of describing mocheik requires some introduction:

1. When discussing the laws of Shabbos, Chazal were careful to use two terms: chayov, culpable, and patur, exempt. Chayov means that, when the Sanhedrin was fully functional, these acts were punishable, and, when performed negligently, require the offering of a korban chatos.

2. A principle germane to all the laws of Shabbos is that someone violates Shabbos min haTorah only when the action has a direct, positive result. If the act appears to be unconstructive, it is prohibited only because of a rabbinic injunction and not min haTorah. For example, digging a hole because of a need for fill dirt to cover a spill or the exposed roots of a plant is exempt min haTorah from violating the melacha of choreish, plowing. This is because creating this hole in the ground is not a positive act. Digging a holeis a Torah violationonly when it is either part of an act of plowing – in order to plant or otherwise benefit a plant –  in which case it constitutes the melacha of choreish;or when it is part of a construction, in which case it constitutes the melacha of boneh, building. In both of these instances, the hole is itself beneficial.

Erasing does not, in and of itself, provide benefit. It is considered beneficial when (1) you are interested in writing on the paper and to do so you need to erase something, or (2) when there is a mistake on the paper that you need to correct by erasure. When the erasing itself does not provide benefit, the act violates Shabbos only because of a rabbinic injunction. This is why the Mishnah states that erasing is chayov when it is performed in order to write. This type of erasing is a positive act and, therefore, a Torah violation.

–When the erasure is “positive,” but you do not intend to write anything – as in the second case mentioned above – is that chayov for the melacha of erasing? That is a dispute among poskim that we will discuss shortly.

Why two letters?

The Mishnah states that violating the melacha of erasing requires the intention to write two letters on the erasure. As the Mishnah states, someone is chayov for violating the melacha of koseiv only when he writes two letters. Writing less than two letters is not substantive enough for a person to be culpable. Since erasing alone is not considered a constructive act, the person is liable only when the erasure clears enough area to write two letters.

Note that it does not state in the Mishnah how many letters must be erased to violate the melacha. It states how much space must be erased – enough space to write two letters.

What is the halacha if someone erased just one letter, but it was large enough to write two letters in its place? Is the person who performed this act guilty of violating the melacha? The Mishnah implies that this act would be chayov.

This question is raised by the Tosefta, which states that, indeed, someone who erased a letter large enough to write two letters, is culpable for violating the melacha when his intention is to write two letters in its place. The Tosefta (Shabbos 12:7, quoted by the Gemara) notes that this results in an anomalous conclusion: “Someone who writes one large letter, even though it is as big as two letters, is exempt from having committed a transgression on Shabbos, whereas someone who erases one letter that is as big as two letters desecrates Shabbos. Rabbi Menachem berabbi Yosi said: This is a stringency of erasing that does not exist with writing.”

Erasing stricter than writing?!

The Tosefta is emphasizing that although, in general, there are more ways of violating the melacha of writing than there are of violating the melacha of erasing, this is an instance in which someone could be chayov for erasing, whereas a parallel act of writing would not be chayov.

Erasing scribble

Actually, there are at least two other instances when erasing is treated more strictly than writing. One situation is that of someone who erased scribble in order to write in its place. Since the goal of the melacha of erasing is to write, it makes no difference whether someone erased letters or scribble – in both instances he is chayov for violating the Torah’s melacha (Rosh, Shabbos 7:9; Tur, Orach Chayim 340). On the other hand, someone who scribbles does not violate the melacha of writing min haTorah, since he did not write any form of communication.

Left-handed erasing

Here is yet another case in which erasing is treated more strictly than writing. Although we learned in a previous article that someone who writes with his non-dominant hand has not violated the Torah prohibition of writing, since this is not the usual way to write, this rule applies only to melacha activities that require dexterity. According to most authorities, erasing is not considered a melacha that requires such dexterity, and, therefore, someone who erases with his non-dominant hand violates the melacha min haTorah, assuming that he is erasing for the purpose of writing two letters (Chayei Odom 9:2; Mishnah Berurah 340:22; Shu”t Avnei Neizer, Orach Chayim 209:9). We should note that one early acharon, the Elyah Rabbah (340:11), appears to disagree, suggesting that there is no difference between writing and erasing in this regard.

Permanence

Germane to writing, the Mishnah (Shabbos 104b) teaches: “Someone who writes two letters… is chayov, whether he writes with ink, with a paint pigment, with sikra [a red dye], with tree-exudate gum, with ferrous sulfate, or with anything else that makes a permanent impression.”

This requirement – that one is chayov for the melacha only if performed with, or on, an item that results in permanent writing – holds true both for the melacha of writing and for the melacha of erasing. In other words, someone who erased writing that is temporary, or that was written on material that is not lasting, does not violate the melacha of erasing min haTorah. For example, if someone erases writing on a leaf that soon will dry up, he violates a rabbinic injunction but is not chayov (see Tosefta, Shabbos 12:7).

There is a halachic curiosity here: Since the melacha of erasing is for the purpose of writing, or alternatively, when the erasing itself creates something positive, why is this melacha violated only when erasing permanent writing? Erasing temporary writing is also necessary, sometimes, to accomplish a positive result, whether it is to write in its place or for a different positive purpose.

I have not found this question asked by the traditional authorities. It seems to me that the answer is that erasing something temporary is not significant enough to constitute a violation of a Torah law.

Erasing one letter

I mentioned above that the Mishnah implies, and the Tosefta states explicitly, that someone who erases one letter that is large enough to write two letters in its place, with the intent of writing two letters there, is liable for erasing on Shabbos. The Sefas Emes (Shabbos 75b) queries whether someone who erased a space large enough to write two letters, but his intention is to write only one letter, is chayov or not. He does not reach a definite conclusion.

Correction fluid

Using correction fluid (often called “Wite-Out,” which is the brand name of one such product), when done to enable rewriting, is prohibited min haTorah.

Coating white

The Pri Megadim (Mishbetzos Zahav 340:1) rules that if someone takes a dark piece of wood or other material and whitewashes its surface so that he can write on it, he violates mocheik min haTorah – because this act is equivalent halachically to erasing a dark surface for the purpose of writing on it.

Erasing a tattoo

One acharon discusses whether erasing a tattoo on Shabbos violates the melacha of mocheik. He rules that to do this on a Jew is a violation of Shabbos min haTorah – according to the authorities who hold that an erasure for a positive benefit other than writing is chayov. However, erasing a non-Jew’s tattoo is not a violation of mocheik, according to the Minchas Chinuch. (I am unsure how a tattoo can be erased. I have been told that there are several methods, such as using lasers to break down the ink, or rubbing salt or lemon juice and then applying some ointment.)

Ink on sikra

The Gemara (Gittin 19a) teaches that someone who writes with dark ink on top of writing that was red violates two melachos: erasing and writing. His act is considered to have erased the original red writing and then to have written in dark ink on top of the erasure.

Ches and two zayins

In the Ashkenazi script used for sifrei Torah, the letter ches is written as two zayins with a tiny cap (similar to an upside-down “v”) connecting them. The Gemara rules that someone who removes this “cap,” thereby creating two zayins, is chayov. The Bavli (104b) rules that he violated one melacha, whereas the Yerushalmi (7:2) rules that he violated both koseiv and mocheik in doing this. Similarly, the Yerushalmi holds that someone who scraped off the corner of a dalet, thereby making it into a reish, violated both melachos, koseiv and mocheik.

Crying over spilled ink

Someone spilled ink intentionally onto a written passage so that it can no longer be read. Does this constitute the melacha of erasing min haTorah? It would appear that it violates the melacha only as a rabbinic injunction, since no improvement resulted from his action (Shu”t Maharshag 2:41).

Erasing wet ink

The authorities disagree as to whether erasing ink or other pigment that has not yet dried violates the melacha of erasing min haTorah. Some contend that this is not chayov, because the writing is not yet permanent; at this stage, it can easily smear and become illegible (Minchas Chinuch, Koseiv #10; Shu”t Har Tzvi, Orach Chayim 1:65).

Erasing on Yom Tov

Writing and erasing are both prohibited on Yom Tov, although kindling a fire for warmth or cooking is permitted. This has an interesting application: Is it permitted to use newspaper to kindle a fire on Yom Tov? Is burning the writing on the paper considered erasing? Certainly, this does not constitute erasing min haTorah, since you will not have any paper to write on when you are finished, and therefore the results are not considered positive, as explained above. Despite that fact, the Pri Megadim (Mishbetzos Zahav 511:2) prohibits burning paper that has lettering on it on Yom Tov, because it is considered mocheik miderabbanan.Although cooking and related food preparatory melachos are permitted on Yom Tov, erasing for a non-food purpose is not.

Only in order to write?

Above, I quoted a statement of the Tosefta that erasing a large letter so that you can write two letters in its place is chayov. As a rule, erasing violates Shabbos min haTorah because it is a preparatory melacha to writing. Is this a concept unique to the melacha of erasing, or is it part of the general rule that a melacha must have a positive result to be chayov, and erasing does not usually have, in and of itself, a positive result?

This question appears to be the subject of a dispute between major authorities.

Here is an example of a case that is affected by this dispute. Someone has a mezuzah, sefer Torah or Tefillin in which an extra letter is written. As is, it cannot be used until the extra letter is erased, but once the letter is removed, it is perfectly kosher. Thus, erasing the letter is not for the purpose of writing, but renders a tikun, a positive result. The Pri Megadim (Eishel Avraham 340:7), suggests that erasing the letter is prohibited min haTorah, whereas, according to Tosafos, as explained by Rabbi Akiva Eiger (Gilyon Hashas, Shabbos 73b s.v. Vetzarich), it is not. Tosafos appears to understand that since the melacha of mocheik in the mishkan was in order to rewrite, that is the only category of erasing that is prohibited min haTorah; the Pri Megadim assumes that any erasing that produces a positive result is included in the Torah violation.

Evidence to the Pri Megadim’s position can be rallied from a passage of Gemara (Shabbos 149a) which prohibits reading a list of guests that you intend to invite on Shabbos or a list of courses that you intend to serve. This prohibition is because of a rabbinic concern that the host may realize that he invited too many guests (or have too many courses) and decide to erase a name from the list, so that the butler does not go to invite that guest. (Apparently, invitations were neither printed nor delivered before Shabbos, but were delivered orally via courier on Shabbos itself.)

The Gemara’s statement implies that the erasing would be prohibited min haTorah because it produces a positive result. If not, and the erasing is prohibited only miderabbanan, we would not make a gezeirah in this instance since the concern is only that someone will violate a rabbinic prohibition (Chazon Yechezkel 12:7; see there that he endeavors to answer the question).

Wiping ink off your hands

Is wiping ink off your hands prohibited because of mocheik?

There is a dispute among late poskim whether wiping writing or even smudges off your hands is prohibited because of mocheik. The Chayei Odom (Hilchos Netilas Yadayim 40:8) rules that if your hands are smudged on Shabbos, say, from pots, and there is a concern that washing netilas yadayim upon arising in the morning or prior to eating bread might remove the stains, it is still permitted to wash them since you are not trying to remove the smudges and it is not definite that they will be erased. (This is referred to in halachic parlance as eino miskavein without a pesik reisha.) The Chayei Odom forbids scrubbing your hands clean, because this constitutes mocheik – although he agrees that this does not violate mocheik min haTorah, but only miderabbanan, because you are not wiping off the smudge in order to write on your hands. (Indeed, if you were wiping your hands clean in order to write on them, this scrubbing would be prohibited min haTorah as mocheik.)

In a similar vein, the Minchas Shabbos (80:199) rules that on Friday you should be careful not to use ink or dyes that will remain on your hands on Shabbos. If you did use such ink or dye, and it is still on your hand on Shabbos, and you are embarrassed by it, he permits you to remove it on Shabbos because of kavod haberiyos, the basic dignity to which human beings are entitled. He quotes other authorities who prohibit removing the ink from your hands and even prohibit washing the stained parts of your hands under these circumstances, ruling that you should wrap the writing in cloth or bandages. (From a netilas yadayim perspective, this is permitted when you have an injury that you want to keep clean. It is a chiddush to apply that law to this case.)

However, the Maharsham (Kuntrus Ahavas Shalom, end of Minchas Shabbos #4) disagrees with both the Chayei Odom and the Minchas Shabbos, contending that although it is prohibited miderabbanan to erase any ink or smudges, even when you have no intent to write on that place, the rabbinic prohibition applies only to removing ink or dye, but not to removing dirt, which would usually be considered cleaning and not erasing.

Conclusion

The Torah commanded us concerning the halachos of Shabbos by giving us the basic categories that are prohibited. Shabbos is a day on which we refrain from altering the world for our own purposes; instead, the rule of Hashem becomes the focus of all of creation. We contribute to this by refraining from any activity that implies that we have control over the universe (Rav Shamshon Raphael Hirsch’s Commentary to Shemos 20:10).

By demonstrating Hashem’s rule even over non-exertive activities, such as erasing, we demonstrate and acknowledge the true Creator of the world and all it contains.

Writing on Shabbos

Question #1: Writing with my mouth!?

Is writing with a pen in my mouth considered writing?

Question #2: Disappearing ink

May I use disappearing ink on Shabbos?

Introduction:

Writing was one of the 39 melachos performed in the construction of the mishkan. According to most opinions, writing was performed when the boards of the mishkan were marked (see Shabbos 103a,b; Rashi 73a). The Mishnah (103a) mentions that the boards were marked in order to remember exactly in which location each board was placed.

Why mark?

The question is: Since the mishkan’s boards were identical, what difference should it make where each board is placed? This question is already raised by the Talmud Yerushalmi (Shabbos 12:3), which explains that there is halachic importance that each board be in the exact same place whenever the mishkan was reassembled.

Recordkeeping

There is a minority opinion that contends that the melacha of writing is derived from the recordkeeping performed for the mishkan (see Shu’t Avnei Neizer, Orach Chayim 199:10).  Since the Mishnah already mentions the marking of the boards as a source for the melacha, how and why can any commentary suggest a different reason?

The answer is that this approach was suggested in order to resolve a conundrum. There are rishonim who clearly did not use the Mishnah’s example of marking the mishkan boards as the source of the melacha of writing. The acharonim who discuss this question note the following:

When the Mishnah states that the melacha of writing is derived from the labeling of the boards, it is explaining the opinion of a minority tanna, Rabbi Yosi, who holds that there is a melacha called rosheim, or marking. The Avnei Neizer demonstrates that there are rishonim who definitely hold that the tanna kamma who disagrees with Rabbi Yosi did not derive the melacha of writing from the boards; therefore, these rishonim must have another option from which the melacha of writing is derived. The Avnei Neizer suggests that the melacha was derived from the necessity of keeping good records regarding the contributions donated to the construction of the mishkan.

Minimum shiur

In general, there are two levels for violating any of the melachos of Shabbos. There is a greater degree of violation, called chayov, which includes performing a melacha with the minimum amount necessary, called the shiur. There is also a lesser degree of violation, called patur, which includes performing the melacha activity but in a quantitatively smaller way, called pachus mi’keshiur, literally, less than the minimal amount. Patur also includes activities that are forbidden to perform because of rabbinic injunction.

What difference does it make whether something is chayov, punishable, or patur, non-punishable? There are several halachic differences that result. Here are three:

1. At the time that the Sanhedrin existed, a special beis din, composed of 23 judges, would take forceful legal action against someone who desecrated Shabbos in a punishable way, but they would not take action if the act was non-punishable.

2. Is someone who violates Shabbos negligently required to offer a korban chatos as atonement? If the act is chayov, the perpetrator is obligated to offer a korban chatos. If not, it did not cross the threshold required to offer a korban chatos, notwithstanding that it violated a Torah law.

3. Under certain circumstances, it might be permitted to ask a gentile to perform the act.

Two letters

Regarding the melacha of writing, the violation of the higher degree is when someone writes two letters of the alphabet. Someone who writes only one letter has performed a non-punishable offense, unless his one letter completed a work, such as it was the last letter of a sefer Torah (Shabbos 104b).

Someone who writes one letter is not chayov for violating the melacha even when it is an abbreviation of a word. For example, in the time of the Mishnah, someone might mark a bin containing maaser produce with a single letter mem מ. Despite the fact that everyone seeing this single מ on a bin will realize that this is a code for an entire word, someone who marked the bin with a letter מ is not chayov for Shabbos desecration, but is guilty of a lesser prohibition, that of writing pachus mi’keshiur.

Notwithstanding that writing less than the shiur is deemed non-punishable, it is forbidden, and its violation should not be treated lightly.

Writing with my mouth!?

At this point, we can discuss our opening question: Is writing with a pen in my mouth considered writing?

The Mishnah (Shabbos 103b) mentions other instances in which the act is not chayov; for example, someone wrote two letters in different places in a way that they cannot be read together, or he wrote in a way that people usually do not write, such as by holding the pen in his mouth.

Writing with your mouth

We have all heard of extremely talented artists who succeed in doing things that we would consider well-nigh impossible, such as drawing paintings with their toes or with a quill held between their teeth.

Actually, this incredible skill is not new. In the days of the Rama of Fanu, an early- seventeenth century Italian gadol, mekubal, and posek, there was a scribe who wrote sifrei Torah, tefillin and mezuzos by holding the quill in his mouth. He wrote gorgeous sifrei Torah, tefillin and mezuzos, but the halachic question was whether they were kosher. Some background to the issue is necessary:

Write right

The Mishnah (103b) lists many cases that are not prohibited min haTorah, including writing by holding the pen between the toes, with one’s mouth, by holding it in the joint between his forearm and upper arm (the opposite side of the elbow), or by holding a pen upside-down (thus, writing by twisting your arm backwards – don’t try it, it is a rather uncomfortable way to write). The Gemara adds that someone who writes with his weaker hand, such as a right-handed person who writes with his left hand, is patur from performing a punishable melacha.

Our opening question is now clearer. The poskim rule that just as writing in an unusual fashion does not qualify as an act of writing to desecrate Shabbos (min haTorah), sifrei Torah, tefillin and mezuzos written this way are not written correctly and are invalid. Similarly, the Rama of Fanu ruled that the beautiful sifrei Torah, tefillin and mezuzos written by holding the quill in the sofer’s mouth are not kosher.

Can you write by erasing?

There are circumstances in which a letter is created by erasing. For example, the Hebrew letter reish needs to be written, and at the moment its place is taken by a dalet or a tav. If you erase the extra piece and thus create a reish, have you desecrated Shabbos?

Let me explain this question in more detail: There is a principle germane to the laws of sifrei Torah, tefillin and mezuzos that the letters must be written and cannot be scraped into existence. This case shows a perfect example: someone wrote a dalet where a reish is required, then scraped off the extension and point of the dalet to construct a reish. This is referred to as chok tochos and, unfortunately, sifrei Torah, tefillin and mezuzos so made are invalid.

The question is: Does the creation of a letter on Shabbos by chok tochos constitute writing germane to the laws of Shabbos, or does it constitute only a rabbinic violation?

The answer:

Several authorities, both rishonim and acharonim, rule that a letter written by erasing violates the melacha of writing on Shabbos min haTorah (Ran, Or Zarua, Shu’t Avnei Neizer, Orach Chayim #207).

How were the boards marked?

I mentioned above the Mishnah that teaches that the boards were marked to be able to tell where each board should be placed when the mishkan was reassembled.

There is an interesting dispute between Rashi and the Rambam regarding how the boards of the mishkan were marked. According to Rashi (Shabbos 73a), each board was marked with a letter or symbol, with the two boards that were to be inserted into the same silver socket carrying the same symbol. The melacha is derived from the juxtaposition of two letters providing knowledge how to place the two boards.

The Rambam’s opinion is that the boards were numbered consecutively, using the same system we would use today to write numbers using Hebrew letters. Thus the eleventh board was mark יא and the nineteenth יט (Commentary to Mishnah Shabbos 12:3). He does not explain why we cannot derive that writing even one letter is chayov, since the first ten boards were identified with only one letter. It seems that, in his opinion, Chazal understood that one letter, which does not form a word in Hebrew, cannot be enough writing to be chayov. According to Rashi, the requirement to write two letters to be chayov is itself derived from the construction of the mishkan.

Writing other than Hebrew

Some rishonim contend that the prohibition against writing on Shabbos is violated min haTorah only when using Hebrew characters (Rabbeinu Yoel Halevi, quoted by Or Zarua, Hilchos Shabbos #76, and Hagahos Maimoniyos, Hilchos Sefer Torah 7:40 and Hilchos Tefillin, 1:70). According to these rishonim, writing in other alphabets is prohibited only because of a rabbinic injunction. Although most rishonim, including both Rashi (Shabbos 103a) and the Rambam (Hilchos Shabbos 11:10), clearly dispute this, contending that writing in any alphabet is prohibited min haTorah, the Rema (Orach Chayim 306:11) rules according to the Or Zarua that writing in other alphabets is prohibited only because of a rabbinic injunction (cf. Beis Shmuel 126:1 and Magen Avraham 340:10). Upon this basis, some later poskim permit having a non-Jew use a western alphabet on Shabbos for the benefit of a Jew (See Shu’t Noda Biyehudah, Orach Chayim 2:29).

Permanence

A requirement of most melachos is that the act involved must have a lasting result. For example, tying a knot that can last for only a matter of hours is not prohibited on Shabbos.

Germane to the melacha of writing, the Mishnah (Shabbos 104b) discusses this topic:

Someone who writes with ink, with a paint pigment, with sikra (a red dye), with tree-exudate gum, or with ferrous sulfate, or anything else that makes a permanent impression (is chayov).

The Tosefta (Shabbos 12:6) and other authorities add several other instances that are considered permanent: writing with pencil, coal, paint, shoe polish, tree sap, pomegranate peels, or congealed blood. (It is perhaps significant that the Rambam omits the case of congealed blood, a point raised by the Biur Halacha [340:4 s. v. bamashkin]. Biur Halacha leaves this issue unresolved.)

Temporary writing:

On the other hand, the Mishnah also mentions several types of writing that are deemed temporary and therefore only rabbinic violations of Shabbos. The Mishnah (103b) records the following instances of writing that qualify as temporary: “Someone who wrote with liquids (Rashi explains this to mean a berry juice with a black color), with fruit juices, with mud (or, alternatively, he used his finger to mark lettering in dust [Rashi]), with the residue left in an inkwell, or with any other substance that does not last is patur.”

How permanent?

Two great recent authorities apparently were involved in debating this exact question. Sometime in 1977, Rav Shlomo Zalman Auerbach paid a house visit to the posek of the eidah hachareidis, Rav Yitzchak Yaakov Weiss, and the two great authorities began discussing the question concerning how long a period of time must writing last to be considered permanent. Notwithstanding that both great leaders viewed one another with utmost respect, they disagreed very strongly over the halachic conclusions to be drawn from the evidence.

In a previous article discussing the laws of dyeing, we discussed how permanent you must color something to violate the laws of Shabbos min haTorah. Most authorities contend that violating the law min haTorah requires that the color last only to the end of Shabbos. Germane to the laws of writing, many authorities rule that the definition of permanent is the same: Any writing that will last until Shabbos is over is prohibited (see Shu’t Minchas Yitzchok 7:13-15). However, other authorities rule that writing is more lenient than dyeing, which means that the length of time that a written message needs to last to violate a Torah prohibition is longer than the length of time required for a dye (Minchas Shlomoh 1:91:11; Rashba, Shabbos 115b; Biur Halacha, 340:4 s. v. Bemashkin).

Why should writing require a longer amount of time to be prohibited min haTorah than dyeing?

In writing, the goal is to provide communication, either to yourself as a reminder, or to someone else. If a person is writing a reminder, he probably needs the information to last for a few days, and therefore writing in a way that will not last this long does not violate the Torah prohibition.

The Shab-eit

I have in my possession a pen called a Shab-eit. This product was manufactured to assist security or medical personnel who are required to write on Shabbos because of pikuach nefesh situations. The instructions on the pen quote the words of the Mishnah, “Someone who wrote with liquids, with fruit juices, with mud, with the residue left in an inkwell, or with any other substance that does not last is patur,” with the notation that usage of the Shab-eit is prohibited miderabbanan on Shabbos. The package insert explains that state that anything written with the pen will become hard to read and will completely disappear within a few days, depending on the type of paper on which it is written. They note that, based on the company’s experience, the writing will remain on regular writing paper for about three days, and therefore use of the Shab-eit is advised for medical and security personnel required to write things on Shabbos because of life-threatening emergencies. The recommendations are to write on Shabbos in as limited a way as one can using this marker, and after Shabbos to rewrite or photograph what was written. They also suggest checking before Shabbos to see how long it lasts on the type of paper that will be used. As I discovered, on some types of paper this ink will disappear within hours, potentially rendering it useless.

The package includes a note that using this pen on Shabbos in the above-mentioned circumstances is based on piskei halacha of Rav Shlomoh Zalman Auerbach and Rav Mordechai Eliyahu, whose responsa on the subject they reference.

Prickly writer

The Mishnah (104b) teaches: “Someone who writes on his own skin is chayov. Someone who scratches on his skin: Rabbi Eliezer rules that he is chayov, whereas the Sages rule that he is patur.”

What is the dispute between Rabbi Eliezer and the Sages?

According to most opinions (Rashi on Rif, Ran, Reshash), they are discussing someone who took a pin or thorn and “wrote” by scratching some letters or a brief message into his skin. Rabbi Eliezer considers this to be an act of writing, whereas the Sages rule that he is exempt from a Torah violation for writing since this is not considered a normal way to write (Rambam, Ran). The halacha follows the Sages that he is exempt from a Torah violation (Rambam), although this is prohibited on Shabbos as a rabbinic injunction. It is also a valid question why this is not chayov for the Shabbos violation of drawing blood. I hope to answer this question in a future article.

Conclusion

The Torah commanded us concerning the halachos of Shabbos by giving us the basic categories that are prohibited. Shabbos is a day that we refrain from altering the world for our own purposes, but instead allow Hashem’s rule to be the focus of creation by refraining from our own creative acts (Rav Shamshon Raphael Hirsch’s Commentary to Shemos 20:10). By demonstrating Hashem’s rule even over non-exertive activities such as writing, we demonstrate and acknowledge the true Creator of the world and all it contains.

When May I Ask a Non-Jew to Assist Me on Shabbos?

Photo by chopstix00 from FreeImages

While enslaved in Egypt, the Jews worked every day of the week, and one of the special days celebrated to commemorate our Exodus is Shabbos. Observing Shabbos includes not only keeping the mitzvos ourselves, but also knowing when I may ask a non-Jew to perform prohibited activity, and when I may benefit from work performed by a non-Jew on Shabbos.

Each of the following questions describes a situation that people have asked me:

Question #1: A non-Jew turned on the lights for me on Shabbos. May I use this light to read?

Question #2: It is chilly in our house. May I ask a non-Jewish neighbor to turn up the heat?

Question #3: There is a problem with our electricity — the lights have gone out, and my son is terrified. May I ask a non-Jewish electrician to repair the power on Shabbos?

Question #4: We left the air conditioning off, and it became very hot on Shabbos. May I ask a non-Jew to turn the air conditioning on?

Question #5: I did not realize that I parked my car in a place where it will be towed away. May I ask a non-Jewish neighbor to move it?

In general, a Jew may not ask a non-Jew to perform activity that a Jew himself may not do. Chazal prohibited this because asking a non-Jew to work on Shabbos diminishes our sensitivity to doing melacha ourselves. Furthermore, the non-Jew functions as my agent, and it is therefore considered as if I did melacha work on Shabbos.

One may not benefit from melacha performed for a Jew by a non-Jew on Shabbos, even if the Jew did not ask him to do the work (Shulchan Aruch Orach Chayim 276:1). Thus, if a non-Jew turned on a light for the Jew’s benefit without being asked, a Jew may not use the light.

This article will discuss when I may benefit from what a non-Jew does a melacha and when may I ask him to do melacha.

BENEFITING FROM NON-JEWISH LABOR

In general, if a non-Jew does melacha work for me on Shabbos, I may not benefit from what he did until enough time has elapsed after Shabbos for the work to have been performed after Shabbos (Beitzah 24b; Shulchan Aruch Orach Chayim 325:6). Thus if a non-Jew baked an apple for me on Shabbos, I may not eat it after Shabbos until the time it takes to bake an apple. This way I receive no benefit from the work he performed on Shabbos and I am not tempted to ask him to do melacha for me at a different time (Rashi and Tosafos, Beitzah 24b).

However, if a non-Jew did work specifically for himself or for another non-Jew, I may benefit from his work even on that Shabbos itself (Mishnah Shabbos 122a). Therefore, if he turned on a light to see where he is going or to be able to read, I may use the light to read. There is an exception to this lenience that I will explain shortly.

The Gemara tells us the following story: The great Amora Shmuel was visiting a man named Avin in the town of Torin, when a non-Jew entered the room and kindled a light. Shmuel assumed that the non-Jew had ignited the light for Shmuel’s benefit, which would make it forbidden to use the light. In order to point out the fact that he was not using the light, Shmuel turned his chair around, with his back to the light, so that it was obvious that he was not using it. Shortly thereafter, the non-Jew returned with a document that he proceeded to read. Shmuel now realized that the non-Jew had kindled the light for himself and that he (Shmuel) was permitted to read by the light (Shabbos 122b).

Sometimes I may not benefit from work performed by a non-Jew even though he performed the work to benefit a non-Jew. This is in a case where there is concern that my benefiting from the activity might encourage the non-Jew to do more work than he needs for himself in order to benefit me. For example, if a non-Jew who knows me heated up a kettle of water because he wants a cup of coffee, I may not use the hot water. The reason is that, at some time in the future, he might decide to add extra water to the kettle that he is heating so that I can benefit (Shabbos 122a).

REMOVING IMPEDIMENTS

If a non-Jew did work that results in removing an impediment that was disturbing a Jew, I need not be concerned about benefiting from the non-Jew’s melacha activity. For example, if he turned off the light so that a Jewish person can sleep, one may go to sleep in that room. This is not considered as receiving benefit from a non-Jew’s Shabbos activity, since extinguishing the light only removed an obstacle and created nothing positive.

PARTIAL BENEFIT

Another instance that is not considered as receiving benefit from melacha activity is when I could already benefit before the non-Jew performed the melacha, and his melacha only makes it easier to do what I wanted. For example, if there is enough light to read, and a non-Jew turns on additional light, I may continue to read even though it is now easier to read. This is not considered as benefiting from the non-Jew’s melacha since I could have read even if he did not do the melacha (Shulchan Aruch Orach Chayim 276:4). Similarly, one may eat a meal by the light that he provides, if one could eat even without the additional light. (Note that one may not ask the non-Jew to turn on the light in any of these instances.)

The poskim dispute whether in the above scenario I may continue reading after the original light burns out. Some contend that once the light has gone out, I may no longer read in the room since I am now benefiting from what the non-Jew kindled on Shabbos (Shulchan Aruch Orach Chayim 276:4; Bach; Magen Avraham). Others contend that since I was permitted to read when the light was kindled, I may continue to read even after the original light extinguished (Taz, Orach Chayim 276:3). Mishnah Berurah concludes that one should follow the first opinion.

I once spent Shabbos in a kosher hotel for a family simcha. I arrived early for davening Shabbos morning, intending to learn beforehand, only to discover that the lights were still out in the shul. I assumed that the lights were set to go on by a Shabbos clock and sat down near a window to learn in the interim. Fifteen minutes before davening started, a non-Jewish employee of the hotel arrived and turned on all the shul lights. This involved two prohibitions: 1. Since the non-Jew was an employee of the Jewish-owned hotel, the hotel should not have arranged for him to do melacha on Shabbos. 2. One may not benefit from the work he did. Thus, it is forbidden to read in the shul if you need the light to read.

However, as long as enough light came in through the windows to read, I could continue to read using the artificial light, since I could in any case read near the window. However, I could not read anywhere else in the shul. Furthermore, once it would get dark outdoors, and I could no longer read by the natural light, most authorities would prohibit reading by the kindled light.

MUST I LEAVE HOME?

According to what we have just explained, it would seem that if a non-Jew turns on the light in a house because he wants to benefit a Jew, one may not benefit from the light — and would have to leave the house. However, Chazal ruled that one is not required to leave one’s house if one did not want the non-Jew to turn on the light. Although one may not benefit from a non-Jew’s melacha on Shabbos, one is not required to leave one’s house in order to avoid benefiting from melacha done against one’s will (Rama 276:1, quoting Yerushalmi). In all instances like this, one should tell the non-Jew that you do not want him to do the melacha.

WHEN MAY I ASK A NON-JEW TO WORK ON SHABBOS?

Under certain extenuating circumstances, Chazal permitted asking a non-Jew to do melacha that a Jew may not do himself. I will group these situations under the following categories:

I. Situations when I may ask a non-Jew to perform work that would be prohibited min haTorah for a Jew.

II. Situations when I may ask a non-Jew to perform work that is prohibited miderabbanan.

I. There are a few situations where I may ask a non-Jew to perform something that would be a Torah prohibition if I did it myself. I may ask a non-Jew to perform a melacha for someone who is “choleh kol gufo,” literally, his entire body is sick. This means that although the person is in no danger, his illness is more than just a minor annoyance but it affects his entire body (Shabbos 129a; Shulchan Aruch 328:17). For example, I may ask a non-Jew to drive this person to a doctor, to pick up a prescription, or to turn a light on or off. This leniency applies to someone whose illness affects his entire body, or who is sick enough to be bedridden. Later in the article, I will discuss the halachos that apply to someone who is not well but who is feeling better than the person just described.

CHILDREN

Since children often get sick and are generally weaker than adults are, halacha considers a child as choleh kol gufo (Rama 276:1) when there is a great need (Mishnah Berurah ad loc.). Therefore, if it is cold indoors, one may ask a non-Jew to turn on the heat for the sake of a child, and then an adult may also benefit from the heat.

Until what age do I consider a child a choleh kol gufo? Many poskim contend that any child under the age of nine is in this category (Shu’t Minchas Yitzchok 1:78), although other poskim are less lenient.

Halacha treats a child who is afraid of the dark as a choleh kol gufo (Ketzos Hashulchan 134:18). Therefore if the light went out and a child is afraid, one may ask a non-Jew to rectify the problem.

We can now answer Question #3 above: “There is a problem with our electricity — the lights have gone out, and my son is terrified. May I ask a non-Jewish electrician to repair the power on Shabbos?” Under these circumstances, one may do so.

COLD ADULTS

When it is very cold, one may ask a non-Jew to turn on the heat even for adults, even if this involves doing a Torah prohibition. This is because everyone is considered sick when it comes to the cold. When it is chilly but not freezing, the poskim dispute whether I may ask a non-Jew to turn on the heat for the sake of adults when there are no children or ill people around (Shulchan Aruch 276:5 and commentaries).

Thus, we can now answer Question #2: “It is chilly in our house. May I ask a non-Jewish neighbor to turn up the heat?” The answer is that it depends on how cold it is and who is affected by the lack of heat.

WIDESPREAD TRANSGRESSION

Another situation where one may ask a non-Jew to do melacha that is prohibited min haTorah, is when it is necessary to prevent many people from transgressing the Torah. For example, if one discovered that the eruv is down, one may ask a non-Jew to repair it on Shabbos, even though he will have to perform activities that would be prohibited min haTorah (Mishnah Berurah 276:25), such as driving his car, tying a knot, or carrying in a reshus harabim min haTorah.

II. Situations when I may ask a non-Jew to perform work that is prohibited miderabbanan.

SHVUS DE’SHVUS

Under certain other circumstances, Chazal permitted asking a non-Jew to do something that would be prohibited miderabbanan for a Jew. The poskim usually refer to this lenience as shvus de’shvus. In general, this is permitted in any of the following situations:

(A) If a person is slightly ill.

(B) There is a major need.

(C) In order to enable a Jew to fulfill a mitzvah (Shulchan Aruch Orach Chayim 307:5).

I will now explain these three situations:

(A) Earlier, I noted that if someone is ill to the extent that the illness affects his entire body, or if he is sick enough to go to bed, one may ask a non-Jew to do something that would involve a Torah prohibition for a Jew. If the person is less ill, one may ask a non-Jew to do something that involves only a rabbinic prohibition, but not a Torah prohibition.

Included under this category is if the person is suffering from considerable pain (Gra, Orach Chayim 325:10; Aruch Hashulchan 307:18). Thus, someone who caught his finger in a door may ask a non-Jew to bring ice through an area without an eruv, if he has no ice in his house. Similarly if an insect bit him, he may ask a non-Jew to buy medicine to alleviate the pain.

Based on the above heter, may one ask a non-Jew to turn on the air conditioner if it gets very hot? Does this qualify as alleviating a great deal of suffering? And is operating the air conditioning considered a Torah violation or a rabbinic violation, for which we may be lenient because of shvus de’shvus?

This question was the subject of a dispute by the last generation’s poskim. Minchas Yitzchok (3:23) permits asking a non-Jew to turn on the air conditioning, quoting Levush who explains that once people are unaccustomed to the cold, halacha considers them to be ill even if it is not that cold. Therefore, one may ask a non-Jew to kindle a fire for them. However, he then quotes sources that contend that being too hot is not the same as being too cold. He concludes that someone who is accustomed to moderate weather suffers when it is very hot and humid and may therefore ask a non-Jew to turn on the air conditioning because it is shvus de’shvus bimkom tzaar (to alleviate suffering). Similarly, his mechutan, the Chelkas Yaakov (3:139) permitted having a non-Jew turn on the air conditioning because of shvus di’shvus bimakom tzaar.

On the other hand, Rav Moshe prohibited asking a non-Jew to turn on the air conditioner because it is benefiting from work performed by a non-Jew on Shabbos (Shu’t Igros Moshe, Yoreh Deah 3:47:2). Rav Moshe forbids benefiting even if one did not ask the non-Jew to turn on the air conditioning, but merely hinted, such as by telling him, “It is really hot here!” hoping that he catches the hint. Evidently, Rav Moshe did not consider this as a makom tzaar that permits benefiting from a non-Jew’s activity on Shabbos.

Thus, in answer to Question #4 — “We left the air conditioning off, and it became very hot on Shabbos. May I ask a non-Jew to turn the air conditioning on?” We see that the poskim dispute whether this is permitted or not.

(B) One may ask a non-Jew to perform an issur derabbanan in case of major need. There are three opinions as to how much financial loss this must entail to be considered a major need.

(1) Some rule that one may ask the non-Jew even if there is no financial loss, as long as there is a great need (Shulchan Aruch Orach Chayim 307:5; Graz 307:12). According to these poskim, if one’s clothes became torn or dirty on Shabbos and he is embarrassed to wear them, he may ask a non-Jew to bring him clean clothes through an area not enclosed by an eruv.

(2) Other poskim rule more strictly, contending that one may be lenient only if a major financial loss will result (Magen Avraham 307:7). According to these poskim, if one discovered that the plug of one’s well-stocked freezer is disconnected, one may ask a non-Jew to reconnect it on Shabbos.

(3) A third opinion contends that major financial loss is not sufficient reason to permit shvus de’shvus unless there is some physical discomfort as well (Elyah Rabbah 307:14). We usually follow the second opinion quoted and permit a shvus di’shvus in case of major financial loss. Furthermore, we allow shvus de’shvus even if it is uncertain that a major loss will result, but it is a good possibility (see She’eilas Yaavetz 2:139). As a result, one may ask a non-Jew to plug in the freezer even if one is uncertain whether the food will go bad.

Note that the opinions I quoted above permit asking a non-Jew only to perform a melacha derabbanan to avoid financial loss, but none of them permit asking him to violate a Torah law. Thus, this would answer Question #5 that I mentioned above: “I did not realize that I parked my car in a place where the city will tow it away. May I ask a non-Jewish neighbor to move it?” The answer is that one is not allowed to ask him. However, one may hint to the non-Jew in an indirect way by saying, “My car is parked in a place where it might get towed,” as I explained in a previous article on this subject.

(C) I may ask a non-Jew to do something that is only an issur derabbanan in order to enable me to perform a mitzvah. For example, having a guest who is visiting from out of town, or a guest who otherwise would have nowhere to eat, fulfills the mitzvah of hachnasas orchim. (Inviting a neighborhood family over for a Shabbos meal may be a very big chesed for the wife of the guest family, but it does not qualify as the mitzvah of hachnasas orchim [Rama 333:1].) Therefore, if one realizes on Shabbos that one does not have enough chairs for all the guests to sit at the table, he may ask a non-Jew to bring chairs from a neighbor’s house even when there is no eruv. Other poskim are more lenient, permitting asking a non-Jew to bring any food or beverage that enhances Shabbos (Aruch Hashulchan 307:18).

Some authorities permit asking a non-Jew to perform a Torah melacha in order to allow the observance of a mitzvah. This is a minority opinion and should not be followed. However, there was an old custom among European Jewry to permit asking a non-Jew under these circumstances. This custom has halachic sources in the following Rama:

“Some permit telling a non-Jew to kindle lights for the sake of the Shabbos meal, because they contend that in order to fulfill a mitzvah (such as having a nice Shabbos meal) one may ask a non-Jew to perform even a real melacha that would be forbidden for a Jew to do min haTorah. Following this approach, many are accustomed to be lenient and command a non-Jew to kindle lights for the purpose of the Shabbos meal, particularly for wedding and bris meals, and no one rebukes them. However, one should be strict in this matter when there is no extenuating need, since most of the halachic authorities disagree” (Rama 276:2).

In conclusion, we have discovered that in certain extenuating instances, Chazal permitted melacha performed by a non-Jew, but that one should not extend these heterim to other situations. When using a non-Jew to do normally forbidden work, one should focus that one’s intent is not, chas vesholom, to weaken the importance of Shabbos, but, rather, to enhance kavod Shabbos.

When May I Ask a Non-Jew for Help on Shabbos? Part II

Photo by s s from FreeImages

Each of the following questions is an actual situation about which I was asked:

Question #1: My friend lives in a neighborhood that does not have an eruv. She arranges before Shabbos for a non-Jew to push the baby carriage on Shabbos. May she do this?

Question #2: “If this contract does not arrive at its destination ASAP, I could suffer huge losses. May I mail it as an express mail package on Friday?”

Question #3: “If a registered letter arrives on Shabbos, may I ask the letter carrier to sign for me?”

As I mentioned last week, the topic of amira lenachri what I am permitted to ask a non-Jew to do for me that I am not permitted to do myself, is very complicated and often misunderstood or misapplied. As I noted last week, these laws are not restricted to the laws of Shabbos, but apply to all mitzvos of the Torah, and, therefore, I may not ask a non-Jew to graft fruit trees for me, nor may I ask him to do prohibited work on Chol Hamoed (Moed Katan 12a).

As we learned last week, these are some of the factors that we must consider:

A. Is the non-Jew my employee or is he an “independent contractor”?

B. What type of benefit do I receive from his work?

C. Did I ask the non-Jew directly or indirectly?

D. If a Jew were to perform the work, would it be prohibited min haTorah or only miderabbanan?

E. Why do I want him to do this work?

F. Could I do the work myself, albeit in a different way from how the non-Jew is likely to do it?

Last week, we discussed the difference between asking directly from the non-Jew to do something that I am prohibited from doing, versus, hinting this to him. May I hint to a non-Jew that I would like him to perform a prohibited activity on Shabbos? The poskim dispute this issue. As we learned last week, the majority of poskim rule that, although one may not hint to a non-Jew on Shabbos, one may hint to him on a weekday (Smag). Thus one may ask him on Friday, “Why didn’t you do this last Shabbos? but one may not ask him this on Shabbos (Shulchan Aruch Orach Chayim 307:2; Rema Orach Chayim 307:22). However, the poskim agree that one may tell a non-Jewish mailman on Shabbos, “I cannot read this letter until it is open.” What is the difference between the two types of hinting?

The difference is that the forbidden type of hinting implies either a command or a rebuke, whereas the permitted type does not (Magen Avraham 307:31). Telling a non-Jew to clean something up in a dark room on Shabbos is, in essence, commanding him to perform a prohibited activity — turning on the light. Similarly, when you rebuke him for not doing something last Shabbos, you are basically commanding him to do it the next Shabbos. However, one may make a statement of fact that is neither a command nor a rebuke. Therefore telling the non-Jew, “I cannot read this letter unless it is open” does not command him to do anything, and for this reason it is permitted.

However, if the non-Jew then asks me, “Would you like me to open the letter for you?” I may not answer “Yes,” since this is itself a command. (It is as if you said, “Yes, I would like you to open the letter for me.”) I may tell him, “That’s not a bad idea,” or “I have no objections to your opening the letter,” which does not directly ask him. I may even say, “I am not permitted to ask you to open it on my Sabbath.”

PUSHING THE BABY CARRIAGE

At this point, we can discuss our opening question: My friend lives in a neighborhood that does not have an eruv. Before Shabbos, she arranges for a non-Jew to push the baby carriage on Shabbos. May she do this? (See Mishnah Berurah 308:154.)

Let me address this issue with the following shaylah that I was asked recently: Someone moved to a community where the rav permits people to have a non-Jew carry the baby on Shabbos by arranging remizah (hinting) from before Shabbos. This means that one would tell a non-Jew before Shabbos, “I would like to go to shul on Shabbos, but I cannot leave the baby behind.” The non-Jew then responds, “What time would you like me to arrive at the house?” or “What time would you like to leave the house?” neither party ever stating that you have asked the non-Jew what to do.

Personally, I have strong reservations about using this suggestion, since, eventually, one will end up commanding the non-Jew directly, such as, if the non-Jew asks, “Do you need me to take the baby’s blanket along?” If you answer “Yes,” you have commanded the non-Jew, which is a violation of the halacha.

EXPRESS MAIL

At this point, we can begin to discuss opening question #2: May I mail express mail on Friday?

At first glance, it would seem that one may not send an express mail package on Friday, since you are asking the non-Jew to transport and deliver the package on Shabbos. You are requesting that he do the job as quickly as possible, making this dissimilar to the case of bringing the car to the auto mechanic or clothes to the dry cleaner on Friday. In this case, you are insisting that he do the job on Shabbos, which is prohibited.

A similar shaylah to our express mail case was asked in Amsterdam hundreds of years ago of Rav Yaakov Emden. The questioner wanted to ship precious stones by asking a non-Jewish employee to deliver them to the post office on Shabbos, reasoning that his non-Jewish agent was carrying items within an eruv on Shabbos and therefore not doing any prohibited activity. Rav Yaakov Emden prohibited this, pointing out that the non-Jew would have to fill out paperwork at the post office to send off this shipment, and this would be considered having an agent work for him on Shabbos (She’eilas Yaavetz 2:139).

Although based on the above analysis it would seem that one may not send express mail on Friday, there is a different reason why one may — but only under extenuating circumstances, as I will explain.

I may not ask a non-Jew on Shabbos to hire other non-Jewish workers (Shabbos 150a; Shulchan Aruch 307:2). Some poskim contend that although I may not ask a non-Jew to hire workers, which is a prohibited activity, I may ask him to ask another non-Jew to do something that is prohibited on Shabbos. The rationale behind this heter, usually called amira le’amira, is that asking one non-Jew to ask another is permitted because I am asking a non-Jew only to talk, which is not considered an activity (Shu’t Chavos Ya’ir #46, 49, 53). Other poskim contend that just as one may not ask a non-Jew to hire workers, which is just talk, one cannot ask him to do any other activity that involves prohibited work (Avodas Hagershuni). Mishnah Berurah (307:24) rules that one may be lenient in a case of major financial loss; thus, under very extenuating circumstances, one could be lenient.

This dispute is interesting historically because the two seventeenth-century Torah giants involved in this dispute corresponded with one another. The Chavos Ya’ir permitted asking a non-Jew to ask another non-Jew to work on Shabbos, whereas the Avodas Hagershuni responded to him that this is forbidden. One can actually trace the give-and-take of their halachic debate on the issue, together with their lines of reasoning and proofs, simply by reading the correspondence published in their responsa. It is almost as if we are privileged to sit in their respective batei midrash and listen in as they each give shiur on the subject!

The dispute has many ramifications, one of which is our case of express mail, since you place an order with one person, but a different non-Jew does the actual traveling and delivering. Thus, we have a case of amira le’amira, which is permitted according to the Chavos Yair. There is also another reason to be lenient: Since one is arranging the express mail delivery before Shabbos, the situation is a bit more lenient than the above-mentioned dispute between the Chavos Yair and the Avodas Hagershuni. Indeed, the Chasam Sofer (Shu’t Orach Chayim #60) rules a compromise position between the two, permitting telling the non-Jew before Shabbos to ask the other non-Jew on Shabbos. Biur Halacha (307:2) disagrees, quoting Rashba. Therefore, one should not rely on this ruling unless the situation is extenuating.

The story behind the Chasam Sofer’s responsum on this issue is worth noting. During the Napoleonic Wars, a battle took place in Pressburg (today known as Bratislava), where the Chasam Sofer was rav, in which much of the Jewish area of town went up in flames. It was very important to rebuild the neighborhood before winter set in, and there was concern that the non-Jewish contractors would not construct the Jewish houses in a timely fashion if they were not allowed to work on Shabbos. One of the reasons that the Chasam Sofer ruled that they could allow the non-Jew workers to work on Shabbos was that the Jews hired a non-Jewish contractor, who in turn instructed his employees when to work. Thus it was a case of amira le’amira, which the Chasam Sofer permitted if the contractor received his instructions before Shabbos.

SHABBOS PICK-UP

If I hired a non-Jew to make a delivery for me, he may not pick up the item from my house on Shabbos (Shulchan Aruch Orach Chayim 307:4). Thus, if I contract with a delivery service, such as UPS, they must pick up the item before Shabbos.

Now we should be prepared to answer this last question.  What should I do if a registered letter arrives on Shabbos?

As explained above, I may not ask the non-Jewish delivery person to sign for me, even by hinting to him. However, I may tell him, “I cannot sign for this today because it is my Sabbath.” If he asks me, “Would you like me to sign for the delivery?” I may not tell him, “Yes.” However I may answer him, “It is fine with me if you would like to,” or “I may not ask someone else to do this on my Sabbath,” or “I do not mind receiving the delivery, but I may not sign for it.”

In conclusion, we have discovered that in certain extenuating instances, Chazal permitted melacha performed by a non-Jew, but that one should not extend these heterim to other situations. When using a non-Jew to do normally forbidden work, one should focus that one’s intent is not, chas v’sholom, to weaken the importance of Shabbos, but, rather, to enhance kavod Shabbos.

According to the Rambam, the reason that Chazal prohibited asking a non-Jew to do work on Shabbos is so that we do not diminish sensitivity to doing melacha ourselves. Refraining from having even a non-Jew work for me on Shabbos shows even deeper testimony to my conviction that Hashem created the world.

When May I Ask a Non-Jew for Help on Shabbos?

Each of the following questions is an actual situation about which I was asked:

Question #1: My car needs repair work, and the most convenient time to drop it off at Angelo’s Service Station is Friday afternoon. May I bring Angelo the car then, knowing that he is going to repair it on Shabbos?

Question #2: A gala Shabbos sheva brachos is being held at an apartment several flights of stairs below street level, a very common situation in hilly Yerushalayim. The kallah’s elderly grandmother arrived before Shabbos by elevator, intending to return home by using the Shabbos elevator (a subject I hope to discuss at a different time iy’H). Indeed, the building’s elevator actually has a Shabbos setting, but we discover on Shabbos that the Shabbos setting is not working. How does Bubby get home?

Question #3: My friend lives in a neighborhood that does not have an eruv. She arranges before Shabbos for a non-Jew to push the baby carriage on Shabbos. May she do this?

Question #4: “If this contract does not arrive at its destination ASAP, I could suffer huge losses. May I mail it as an express mail package on Friday?”

Question #5: “If a registered letter arrives on Shabbos, may I ask the letter carrier to sign for me?”

Many people are under the mistaken impression that one may ask a non-Jew to do any prohibited activity on Shabbos. This is not accurate. I know of many instances in which someone asked a non-Jew to do work in situations in which making such a request is prohibited. Our Sages prohibited asking a non-Jew to work for us on Shabbos out of concern that this diminishes our sensitivity to doing melacha ourselves (Rambam, Hilchos Shabbos 6:1). Also, Chazal considered the non-Jew to be my agent — thus, if he works for me on Shabbos, it is considered that I worked on Shabbos through a hired agent (Rashi, Shabbos 153a s.v. mai taama).

By the way, the halachos of amira lenochri, asking a non-Jew to perform a prohibited activity, are not restricted to the laws of Shabbos, but apply to all mitzvos of the Torah. Thus, it is prohibited to have a non-Jew muzzle your animal while it works (see Bava Metzia 90a; Shulchan Aruch Choshen Mishpat 338:6), ask him to graft fruit trees, nor  ask a non-Jew to do prohibited work on Chol Hamoed (Moed Katan 12a).

There are many complicated details governing when I may ask a non-Jew to do something on Shabbos and when I may not. These are some of the factors that one must consider:

A. Is the non-Jew my employee or is he an “independent contractor”?

B. What type of benefit do I receive from his work?

C. Did I ask the non-Jew directly or indirectly?

D. If a Jew were to perform the work, would it be prohibited min haTorah or only miderabbanan?

E. Why do I want him to do this work?

F. Could I do the work myself, albeit in a different way from how the non-Jew is likely to do it?

To show how these details affect a practical case, I will analyze the halachic issues involved in each of our cases mentioned above, starting with our first case — leaving the car over Shabbos at a non-Jewish mechanic. The important detail here is that I did not ask the non-Jew to do the work on Shabbos – it is prohibited to do so. Instead, I brought him the car and allowed him to decide whether to do the work on Shabbos. Is he now my agent if he works on Shabbos?

AGENT VERSUS CONTRACTOR

There is a halachic difference whether the non-Jew is working as my agent (or employee) or whether he is an independent contractor who makes his own decisions. If he is my agent, I may not allow him to do prohibited activity on Shabbos. However, if he is an independent contractor, under certain circumstances, I am not responsible if he actually does the work on Shabbos.

When is the non-Jew considered a contractor? If the non-Jew decides on his own when to do the work and I hired him by the job, he is a contractor. In these cases, I may give him work that he might decide to perform on Shabbos, provided that he could do the work on a different day and that he does the work on his own premises. (Under certain circumstances, the last condition is waived.)

What are examples of contractors? The mailman, the repairman who repairs items on his own premises, and the dry cleaner are all contractors. On the other hand, a regular employee whom I ask to do work on Shabbos is not a contractor unless I pay him extra for this job.

Thus, I may drop off my car at the auto mechanic before Shabbos and leave it over Shabbos, provided I allow him time to do the work when it is not Shabbos, either on Friday afternoon or Motza’ei Shabbos. Even though I know that the non-Jewish mechanic will not be working Saturday night and will actually do the work on Shabbos, I need not be concerned, since he could choose to do the work after Shabbos.

However, dropping off my car before Shabbos is permitted only when:

(1) He does the work on his own premises.

(2) He is paid a fee for the completed job.

(3) He decides whether or not he does the work on Shabbos. (It should be noted that some poskim prohibit doing this when the mechanic is closed Motza’ei Shabbos. Since I know that he is closed Motza’ei Shabbos, they consider it asking him to do the work on Shabbos, which is prohibited.)

In a similar way, I could bring dry cleaning in on Friday afternoon expecting to pick up the cleaned clothes Saturday night, provided enough time exists to clean the clothes before or after Shabbos.

We will now explore our second question:

An elderly woman cannot ascend the several flights of stairs necessary to get to street level. The building has a Shabbos elevator, but we discover on Shabbos that the Shabbos setting is not working. How does Bubby get home? Can we have a non-Jew operate the elevator to get her home?

Before answering this question, I want to share with you another story:

A DARK SIMCHAS TORAH SHABBOS

The following story occurred on a Simchas Torah in Yerushalayim that fell on Shabbos. (Although Simchas Torah outside Eretz Yisroel cannot occur on Shabbos, Shmini Atzeres, which can fall on Shabbos, is observed in Eretz Yisroel as Simchas Torah.) Just as the hakafos were beginning, the power in the shul went out, plunging the entire shul into darkness. The shul’s emergency lights went on, leaving the shul dimly lit — sufficient for people to exit safely and to dance in honor of Simchas Torah, but certainly making it more difficult to observe the usual Simchas Torah celebrations. The rav of the shul ruled that they could not ask a non-Jew to turn on the lights.

If any element of danger had been involved, one could certainly have asked a non-Jew to turn on the lights. But the rav felt that the situation was not dangerous, and therefore maintained that one may not ask a non-Jew to turn on the lights.

One of the congregants suggested a way to illuminate the shul. The same idea could get Bubby home! Before presenting his idea, I need to explain two concepts:

BENEFITING FROM A NON-JEW’S ACTION

If a non-Jew does melacha on Shabbos for his own benefit, a Jew may use the results. For example, if a non-Jew builds a ramp to disembark from a boat on Shabbos, a Jew may now exit the boat via the same ramp, since the non-Jew did no additional work in order to benefit the Jew. Similarly, if a non-Jew kindled a light so that he can read, a Jew may now use the light. One may use the light even if the non-Jew and the Jew know one another (Mishnah Shabbos 122a; Rambam 6:2; Shulchan Aruch Orach Chayim 325:11).

However, if the non-Jew gathered grass to feed his animals, the Jew cannot let his animals eat the leftover grass if the two people know one another. This is so that the non-Jew will not in the future come to do melacha for the sake of the Jew (Shabbos 122a).

WHAT IS THE DIFFERENCE BETWEEN THE RAMP AND THE GRASS?

Why are these cases halachically different? Why may the Jew use the light or the ramp, but may not allow his animal to eat the grass?

In the first cases, no additional work is necessary for the non-Jew to provide a ramp or light for the Jew. Once the non-Jew has built the ramp or kindled the light, any number of people can benefit from them without any additional melacha. However, cutting each blade of grass is a separate melacha activity. Thus, allowing one’s animal to eat this grass might tempt the non-Jew to cut additional grass for the Jew’s animal, which we must avoid.

So far, we have calculated that if we can figure out how to get the non-Jew to turn on the light for his own benefit, one may use the light. Thus, we might be able to turn lights on in the shul for Shabbos, or have a non-Jew ride the elevator up to the main floor and hopefully have Bubby in the elevator at the same time. However, how does one get the non-Jew to turn on the light or the elevator for his own benefit when one may not ask him to do any work on Shabbos?

HINTING

May I hint to a non-Jew that I would like him to perform a prohibited activity on Shabbos? The poskim dispute this issue. Some rule that this is prohibited (Tur Orach Chayim 307), whereas others permit it (Bach, Orach Chayim 307 s.v. uma shekasav rabbeinu). Thus, according to the second opinion, one may ask a non-Jew on Shabbos, “Why didn’t you accompany Bubby on the elevator last Shabbos?” even though he clearly understands that you are asking him to take the elevator with her today. According to the first opinion, one may not do this, nor may one ask a non-Jew to clean up something in a dark room, since to do so he must turn on the light.

However, the majority of poskim accept an intermediate position, contending that, although one may not hint to a non-Jew on Shabbos, one may hint to him on a weekday (Smag). Thus one may ask him on Friday, “Why didn’t you do this last Shabbos? but one may not ask him this on Shabbos (Shulchan Aruch Orach Chayim 307:2; Rema Orach Chayim 307:22). According to this last ruling, one could tell the non-Jew during the week, “Why did you leave Bubby downstairs without taking her up in the elevator?” but one could not mention this to him on Shabbos.

PERMITTED HINTING VERSUS PROHIBITED HINTING

However, the poskim agree that one may tell a non-Jewish mailman on Shabbos, “I cannot read this letter until it is open.” What is the difference between the two types of hinting?

The difference is that the forbidden type of hinting implies either a command or a rebuke, whereas the permitted type does not (Magen Avraham 307:31). Telling a non-Jew to clean something up in a dark room on Shabbos is, in essence, commanding him to perform a prohibited activity — turning on the light. Similarly, when you rebuke him for not doing something last Shabbos, you are basically commanding him to do it the next Shabbos. However, one may make a statement of fact that is neither a command nor a rebuke. Therefore telling the non-Jew, “I cannot read this letter unless it is open” does not command him to do anything, and for this reason it is permitted.

However, if the non-Jew then asks me, “Would you like me to open the letter for you?” I may not answer “Yes,” since this is itself a command. (It is as if you said, “Yes, I would like you to open the letter for me.”) I may tell him, “That’s not a bad idea,” or “I have no objections to your opening the letter,” which does not directly ask him. I may even say, “I am not permitted to ask you to open it on my Sabbath.”

How does this discussion affect our dark Simchas Torah or getting Bubby home?

The congregant suggested the following: One could create a situation whereby turning on the light is beneficial for the non-Jew, and then hint to him that if he wants to, he could benefit by turning the light on. One may do this because the non-Jew is turning on the light for his own use, and the Jew did not ask him directly to turn on the light. Thus, if you placed a bottle of whiskey or a gift of chocolate in the shul, and then notified the non-Jew that the bottle or chocolate is waiting for him there, you can show him how to turn on the lights so that he can find his present. This is permitted because the non-Jew is turning on the lights for his own benefit, and you did not ask him, nor even hint to him that you want him to turn on the lights. You simply notified him that if he wants to put on the lights, he could find himself a very nice present.

The same solution may help Bubby return home. Someone may invite a non-Jew to the sheva brachos, and then told him that a present awaits him in the building’s entrance foyer. Does it bother him if Bubby shares the elevator with him while he goes to retrieve his present?

A word of caution: If one uses this approach, one must be careful that the non-Jew is indeed doing the melacha for his own purposes, such as to get the present as mentioned above. However, one may not ask the non-Jew to accompany you on a tour of the dark shul, and then he turns on the light to see his way. This is prohibited because the non-Jew is interested in the light only in order to accompany you on the walk, not because he gains anything (see Shulchan Aruch 276:3).

We will continue this topic next week…

As I mentioned above, the Rambam explains the reason that Chazal prohibited asking a non-Jew to do work on Shabbos is so that we do not diminish sensitivity to doing melacha ourselves. Refraining from having even a non-Jew work for me on Shabbos shows even deeper testimony to my conviction that Hashem created the world.

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