Defining the Melakha of Bishul (Part 3)

The Israel Koschitzky Virtual Beit Midrash

The Laws of Shabbat
Yeshivat Har Etzion

---

Shiur #04: Defining the Melakha of Bishul (Part 3)

By Rav Baruch Gigi

Translated by David Silverberg

 

 

            In the previous two shiurim, we established the definition of the melakha of bishul as it pertains to foods and other items, and we addressed the need for the involvement of fire for an act to qualify as bishul, and the ramifications of this prerequisite.  In this shiur, we will focus our attention on two important points:

 

1)      The possibility of applying the melakha of makeh be-patish to foods;

2)      The status of cooking fruits and vegetables that can be eaten raw.

 

Applying Makeh Be-patish to Foods

 

            In the previous shiur, we concluded that food preparation does not qualify as bishul unless it occurs through heat generated from fire.  However, we might consider holding one liable for cooking food without fire or a derivative of fire for an entirely different reason – the melakha of makeh be-patish (giving the 'finishing touch') (literally, "banging with a hammer"), which forbids completing the fashioning or preparation of an item on Shabbat.

            The Mishna in Masekhet Shabbat (145b) states:

 

Anything that had been in hot water [meaning, that had been cooked] before Shabbat may be soaked in hot water on Shabbat, and anything that had not been in hot water before Shabbat may be rinsed in hot water on Shabbat, with the exception of meli'ach ha-yashan and kulias ha-ispinin [two types of small fish], whose rinsing constitutes its final preparation.

 

Many Rishonim interpret the term gemar melakha ("final preparation") in this Mishna in terms of bishul.  Rashi, for example, explains, "For this constitutes its final preparation, and it is [therefore] bishul."  Rabbenu Chananel, however, in his commentary to the Mishna, writes:

 

But meli'ach ha-yashan and kulias ha-ispinin – if there were not brought in hot water before Shabbat, then it is forbidden to even rinse them [in hot water] on Shabbat.  If one violates [this prohibition] and rinsed them, he is obligated [to bring] a sin-offering for he has completed a task [she-gamar melakha].

 

These comments might be understood to mean that Rabbenu Chananel refers to the melakha of makeh be-patish, though this reading is not conclusive.  Indeed, several Acharonim explain this Mishna in reference to makeh be-patish.  The Rav Pe'alim (2:52) writes:

 

However, if this bread is very hard because it had sat for many days, to the point where it cannot be eaten at all without being soaked in soup, then this is forbidden because it constitutes gemar melakha, and one would be liable for makeh be-patish, and not for mevashel, as the Shulchan Arukh writes (318:4), "An item that was previously cooked and is dry – one may soak it in hot water on Shabbat.  But if it is a dry item that had not been cooked before Shabbat, one may not soak it in hot water on Shabbat, but one may rinse it in hot water on Shabbat, except for meli'ach ha-yashan and the species of fish called kulias ha-ispinin, which require minimal cooking, and thus their rinsing constitutes their final preparation."  And the Rema z"l wrote in his glosses, "This applies as well to any solid item that cannot be eaten without soaking; one may not soak it on Shabbat, as this constitutes its final preparation"… A dry item that cannot be eaten at all without soaking – regarding this our rabbi Moshe z"l wrote that one may not soak it on Shabbat, because it constitutes the final preparation.  And even regarding this he did not write that one is liable for mevashel; he rather wrote, "because it constitutes its final preparation," and thus one is liable for makeh be-patish.

 

We might conclude, then, that any procedure performed to prepare an item for consumption that does not meet the criteria of mevashel, would nevertheless be forbidden on the grounds of makeh be-patish.[1]  The Levush (318:4) indeed writes: "Similarly, any item that is solid and not suitable for consumption at all without soaking – one may not soak it on Shabbat, because this constitutes the final preparation.  Even though one does not cook, he is liable for makeh be-patish."

 

            Some Acharonim attempted to draw proof to this theory – that the melakha of makeh be-patish applies to food items – from the Talmud Yerushalmi (Shabbat, chapter 7).  On the other hand, many Acharonim demonstrated from several passages in the Bavli that one cannot transgress makeh be-patish by completing the preparation of a food item.  We will very briefly present the various proofs brought for both sides of the issue, before reaching our own conclusion on this subject.

            The Yerushalmi (Shabbat 7:2) delineates various stages in the processing of grain, identifying the specific melakha one violates with each stage.  It concludes, "Gamra melakhta – mishum makeh be-patish" – when one completes the processing, he is liable for makeh be-patish.  This very clearly suggests that the final act in preparing a food item renders one liable for makeh be-patish.

 

            In the Bavli, by contrast, we find many indications that one may prepare foods on Shabbat, and doing so would not violate makeh be-patish.  Firstly, the Gemara (Shabbat 155a) states that although one may not exert himself in the preparation of already edible fodder for his animals, he may exert himself to make fodder edible.  The Gemara does not ban making the food edible on the grounds of makeh be-patish.  Secondly, earlier in the Masekhet (39a), the Gemara explicitly allows cooking food in the sun, and forbids cooking with toledot ha-chama (derivatives of solar heat) only by force of rabbinic enactment.  No mention is made of makeh be-patish as a basis for forbidding this method of food preparation.  Some writers, however, dismissed these proofs, claiming that in the first instance, the Gemara deals with the mere slicing of vegetables for animals, which entails no significant act that can be deemed makeh be-patish.  And in the second Gemara, they argued, one does not violate a Torah prohibition because he cooks in an unusual fashion ("ein derekh bishul be-khakh"), and only for this reason would makeh be-patish not apply.

 

            Conversely, the work Pitchei Da'at dismisses the proof from the Yerushalmi.  The Pitchei Da'at claims that the Yerushalmi applies makeh be-patish to food preparation because in a different context, it maintains that "ein bishul ela ke-she-ha-or mehalekh tachtav" – one violates bishul only when cooking with actual fire.[2]  In order to explain the Mishna's ruling that one is liable for rinsing meli'ach ha-yashan and kulias ha-ispinin in hot water, the Yerushalmi was compelled to apply to this context the melakha of makeh be-patish.  The Yerushalmi's position would thus have no bearing on normative Halakha, which allows for bishul violation with even derivatives of fire (such as boiling water).

 

            The Bei'ur Halakha (318, s.v. she-hadachatan) concludes that the melakha of makeh be-patish does not apply to food preparation, in accordance with the straightforward implication of the Bavli.

 

            Furthermore, I believe that a closer analysis of the underlying concepts of makeh be-patish will reveal that the Yerushalmi provides no proof that this melakha can apply to food preparation.  The melakha of makeh be-patish consists of two categories.  The first is that of tikun keli – any action that prepares any sort of utensil for its function.  Our discussion involves this category of makeh be-patish, and addresses the question of whether or not it pertains to the preparation of foods.  In this respect, even the Yerushalmi agrees that it does not.  The Shita Mekubetzet (Beitza 18a) discusses the distinction between immersing utensils on Yom Tov to render them usable, which Halakha forbids on the grounds of tikun keli, and purifying water that had become tamei by bringing it in contact with water in a mikveh, which is permissible on Yom Tov.  The Shita Mekubetzet writes, "They [Chazal] said this only with regard to utensils; impure water, however, are not subject to [the prohibition of] tikun, because tikun applies only to utensils."[3] Accordingly, in our case, too, we would not define food preparation as tikun keli, since it does not involve a keli (utensil).

 

            There is, however, a second category included under the melakha of makeh be-patish.  When one embarks on a process of production entailing several stages, the action that completes the entire process is considered the gemar melakha, the completion of the given task, and renders one liable for makeh be-patish.  This category may, indeed, pertain to food preparation, and it is to these kinds of cases that the aforementioned passage in the Yerushalmi refers.

 

            In other words, the first form of makeh be-patish involves the completion of the item, and applies only to keilim, and the second category relates to the final action required by the individual.  This second type would apply to foods, since it focuses on the individual, rather than the object.

 

            We might draw proof to the application of makeh be-patish to foods from the comments of the Sefer Ha-pardes, cited in the Bet Yosef (318):

 

But tarit [a type of salty fish] – I say that it is permissible to wash it in some cold water on Shabbat and eat it, since it resembles washing cups and bowls, which one may do on Shabbat.  And rinsing the tarit does not constitute gemar melakha, such that its rinsing would be forbidden on Shabbat, because it can be eaten with its salt[4], and anything that can be eaten with its salt, its rinsing does not constitute the completion of its preparation.  And kulias ha-ispinin is a very salty fish that cannot be eaten with its salt, until it is rinsed in hot water.

 

It emerges that if the fish requires rinsing to become suitable for consumption, then rinsing it even in cold water would be forbidden.  After all, the Sefer Ha-pardes permits rinsing the tarit in cold water only because it can be eaten even after its salt is rinsed out, indicating that otherwise, even rinsing in cold water would be forbidden.  We can accept this position only if we accept one of the following two assumptions: either that any preparation of food for consumption violates bishul regardless of the heat source[5], or that rinsing in cold water would be forbidden on the grounds of makeh be-patish.  Indeed, the Peri Megadim adopted the second approach in understanding the position of the Sefer Ha-pardes.  The Bet Yosef appears not to accept the ruling of the Sefer Ha-pardes.[6]  In any event, this issue is clearly subject to a debate among the Rishonim.  However, the decision of most Acharonim, including the Mishna Berura (in Bei'ur Halakha) and Rav Ovadya Yosef, is that the melakha of makeh be-patish does not apply to food items.

 

Cooking Fruits or Vegetables That Can be Eaten Raw

 

            The Gemara in Masekhet Avoda Zara (38a) cites the ruling of Rav that the prohibition of bishul akum – partaking of food cooked by gentiles – does not apply to cooked foods that could be eaten raw.  Although Chazal enacted a prohibition against eating bishul akum so as to prevent excessive social contact with non-Jews[7], they did not apply this prohibition to foods that could be eaten without cooking.  Some authorities[8] extracted from this ruling that cooking such foods does not formally constitute bishul, and thus one would not violate the melakha of mevashel by cooking this kind of food on Shabbat.  These authorities drew proof to this position from the Rambam's comment (Hilkhot Shabbat 9:3), "One who cooks over fire an item that is fully cooked or that does not require cooking at all, is not liable."  They explained this ruling as referring to fruits that can be eaten raw and do not require cooking.  However, the Magid Mishneh writes regarding this ruling of the Rambam:

 

That which he [the Rambam] wrote, "and also an item that does not require cooking" is straightforward, and derived from the debate in the chapter Kira (Shabbat 42b) as to whether or not oil is subject to bishul, indicating that according to all views something that does not require cooking is not subject to bishul.

 

According to the Magid Mishneh, the Rambam did not arrive at this ruling based on the halakha mentioned in Avoda Zara regarding bishul akum, and thus that ruling would not necessarily apply to bishul on Shabbat.  It is possible that cooking an item that is edible raw would, in fact, constitute bishul, but the prohibition of bishul akum does not extend to these kinds of foods since there is no concern for close interaction when dealing with such foods.  According to the Magid Mishneh's reading, the Rambam refers to items upon which the cooking process has no effect at all, meaning, cases where cooking plays no role in preparing the food for consumption.  Later we will define this category more precisely.

 

            Some Acharonim sought to prove the inapplicability of bishul to cooking fruit from Tosefot's comments in Masekhet Shabbat (48a, s.v. de-zeitim):

 

Rabbenu Shemuel says that one is permitted to place apples near the fire before dark [late in the day on Erev Shabbat] even if they will not be roasted by the end of the day, because they are eaten raw more commonly than foods are eaten at the point of ma'akhal Ben Derusai [half-cooked], which is permissible.

 

Tosefot appear to equate raw apples with foods cooked to the point of ma'akhal Ben Derusai, and thus according to the view that a food cooked to this point is no longer subject to bishul[9], bishul would likewise not apply to fruits.  The Minchat Kohen makes this inference from Tosefot, but the Iglei Tal disagrees, explaining that Tosefot equate raw apples to ma'akhal Ben Derusai only with respect to the prohibition of shehiya – leaving uncooked food on the fire before Shabbat to finish cooking on Shabbat.  Chazal enacted this prohibition out of concern that one might stir the coals under the pot to expedite the cooking process, and thus it does not apply to foods that have already been cooked to the point of ma'akhal Ben Derusai, since one will not need to hasten their cooking.  Accordingly, Tosefot reason that regarding raw apples, too, which can be eaten raw, the shehiya prohibition would not apply.  With respect, however, to the melakha of bishul – the prohibition against cooking on Shabbat itself – raw fruit has the same status as all uncooked foods, and is subject to bishul.  We might draw proof to the Iglei Tal's reading from Tosefot's comments later in this passage:

 

If one covered apples together with the pot [with cushions to retain their heat], he may not return the pillows and cushions onto the pot that is with them… Even though this is permissible when there are no apples, [nevertheless,] when there are apples with the pot this is forbidden, because if one returns [the cushions before they [the apples] are cooked, he will have cooked on Shabbat.

 

Tosefot explicitly apply the bishul prohibition to apples, and thus their earlier comparison between apples and foods at the point of ma'akhal Ben Derusai referred only to the prohibition of shehiya, which stems from the concern that one might stir the coals to hasten the cooking. 

 

            The question, however, remains, why should bishul apply to foods that can be eaten in their current state?  The definition of the melakha of bishul – preparing an item for consumption – appears to limit the application of this melakha to foods that require the cooking process to become suitable for consumption.

 

            Two answers may be offered:

 

1)      Any action resulting in the enhancement of the food's suitability for consumption constitutes a violation of bishul, since the melakha involves the process of improving a given item's taste.

2)      Even if we insist that the melakha involves only preparing an item for consumption, whereas in our case the item is already prepared, we might claim that the cooked item is of an entirely different quality and nature, for which the food is not prepared in its initial, uncooked state.  Apples, for example, are suitable for consumption as fruits, but once they undergo the process of cooking, they become compote – a different type of food altogether.  Preparing a fruit for consumption as compote indeed constitutes a violation of bishul.  Said otherwise, with respect to compote, the apple is not food, but rather the "raw material" which must undergo the process of cooking to transform into compote.

 

As for the final halakha, the Shulchan Arukh (254:4) codifies Tosefot's position:

 

Fruits that can be eaten raw – one may put them around the pot even if they cannot be roasted before dark.  However, one must ensure not to return the cover if it came off after dark, and not to add onto it [the covering] until they are roasted, since this hastens the completion of their cooking on Shabbat.

 

Two conclusions emerge very clearly from the Shulchan Arukh's ruling:

 

1)      Raw fruits have the same status as any other uncooked food with respect to the melakha of bishul, and thus one who cooks them or accelerates their cooking on Shabbat is liable for bishul.

2)      With regard to leaving raw fruits near a pot before Shabbat, they have the same status as food cooked to the point of ma'akhal Ben Derusai, which one may leave on the fire before Shabbat, since there is no concern that he will stir the coals to hasten their cooking.

 

Foods that Do Not Require Cooking at All

 

Earlier, we mentioned the Rambam's comment that one is not liable for cooking foods that do not require cooking.  Recall that the Magid Mishneh explained the Rambam's remarks in light of the sugya in Masekhet Shabbat 40b.  We cite here the relevant passage in the Gemara:

 

Rabba and Rav Yosef both ruled leniently: oil, even to the point of yad soledet bo [where one's hand would instinctively recoil on contact], is not subject to bishul.  The first Tanna [cited in a previously recorded Berayta] maintains that oil is not subject to bishul.  Rabbi Yehuda comes and says that oil is subject to bishul, but [merely] warming it [as opposed to heating it directly over a flame] does not amount to bishul; and Rabban Shimon Gamliel comes and says that oil is subject to bishul, and [merely] warming it constitutes bishul.

 

The Gemara thus delineates three positions among the Tanna'im regarding oil: 1) it is not subject to bishul at all, since it undergoes no change as a result of the cooking process; 2) oil resembles all other liquids, in that one violates bishul by heating it to the point of yad soledet bo; 3) warming oil, even without actually heating it, transgresses bishul, since oil is intended primarily for smearing, and warming it prepares it sufficiently for this function[10].

 

            With regard to oil, the Rambam follows Rabbi Yehuda's position, which equates oil with other liquids, the cooking of which constitutes bishul once they reach the point of yad soledet bo.  Nevertheless, the basic principle that emerges from the sugya, namely, that there can be foods that are not subject to bishul at all, very likely remains valid.

 

            Indeed, the Or Zaru'a (62) cites the following comments of the Riva:

 

It appears to me that wine is likewise not subject to bishul when one warms it for drinking.  But one who cooks it with honey and spices and makes it into a drink – this certainly constitutes bishul, since it transformed into a different taste as a result of fire.  And vegetables that can be eaten raw, such as leeks and turnips, and also fruits, such as apples and other fruits, even though they are eaten raw, they are subject to bishul because their taste is sweetened and transformed to a different taste when they are cooked.  And although with regard to bishul akum we say, "Anything that is eaten raw is not subject to bishul akum" – since bishul akum was enacted by the Rabbis, the Rabbis treated it leniently.  Regarding Shabbat, however, it makes no difference [whether or not the food item can be eaten raw], for they say in Masekhet Avoda Zara that hot water is not subject to bishul akum, and yet here [in Masekhet Shabbat], it appears that according to all views water is subject to bishul, and one who cooks it must bring a sin-offering.

 

According to the Riva, merely warming wine does not violate bishul because the wine undergoes no change as a result[11], whereas cooking it with honey or fruits does constitutes bishul, since their taste changes as a result of this process.

            As far as the Rambam is concerned, we do not know his view concerning the cooking of wine or other products.  He clearly maintains that there are foods that undergo no enhancing transformation as a result of cooking[12], but since he does not give specific examples, we cannot be certain about his view regarding any particular food item.

 

            With regard to water, the sugya in Masekhet Shabbat (40b) states explicitly that one transgresses bishul by heating water to the point of yad soledet bo, but it does not specify whether this constitutes a Torah prohibition or was enacted by Chazal.  The Rambam, however, writes (in Hilkhot Shabbat 9:1) that one who heats water is chayav ("liable," clearly referring to a Torah prohibition).  It stands to reason that bishul applies to water not because of its transformation of taste, but rather due to the heating itself, as indicated by the Rambam's formulation, employing the word "ha-mechamem" ("one who heats…"), as opposed to "ha-mevashel" ("one who cooks").[13]  Cooking water is intended primarily for the purpose of bathing, as indicated by the Rambam's discussion of the minimum quantity required to violate bishul.  Generally speaking, the violation of bishul requires a minimum amount of a gerogeret of food, or a revi'it of liquids.  When it comes to water, however, the Rambam writes that one violates bishul by heating the amount required to wash a small organ of the body.  It thus appears that bishul as it applies to water forbids heating water for bathing purposes, and thus the prohibition is violated by virtue of the rise in the water's temperature, despite the absence of a substantive change in taste.  One might, however, argue that regarding water bishul applies on two levels – in terms of heating for bathing, and heating for consumption – and the Rambam mentioned the first only because it is the smaller of the two quantities.

 

            Of course, the question arises in light of this theory as to why one violates bishul by heating water specifically to the point of yad soledet bo, given that people generally bathe in water that has not reached this level of heat.  The book Shevitat Ha-Shabbat (introduction to Mevashel, #17) addresses this question and writes that even though a person derives benefit from water at a lower temperature, raising water to that temperature does not cause a transformation in the water, and is thus permissible.  Heating water to the point of yad soledet bo, however, indeed transforms the water and is therefore forbidden.  In my opinion, this explanation is difficult to accept.  A more likely answer is that although people bathe in water at a lower temperature, the water is initially heated to the level of yad soledet bo so that when the individual enters the water it is at a suitable temperature.  However, this issue still requires further analysis.

 

            Conversely, one might contend that for cooking water we should demand a higher temperature than yad soledet bo, since hot water is usually drunk only after it has been brought to a boil.  We might explain that since the water becomes suitable for bathing at the point of yad soledet bo, this suffices to render one liable, particularly in light of the Rambam's position discussed earlier, that bishul in reference to water involves mainly the heating itself, and not the preparation for consumption.[14]  The question remains, however, according to the possibility we raised earlier that regarding water bishul is defined in terms of both bathing and drinking, whether one violates bishul by bringing to a boil water currently at the point of yad soledet bo.[15]  One might suggest that in Talmudic times hot water was not brought to a boil for drinking, and was rather drunk at the point of yad soledet bo, as the Rashba writes (Shabbat 42a, s.v. notein), "because it is made for drinking, and a person does not drink very hot water, but rather lukewarm [water]."

 

            In any event, the authorities all assume that one violates bishul by heating water to the point of yad soledet bo, and no violation is committed by bringing water at this temperature to a boil.

 

Practical Conclusions that Emerge from This Shiur

 

1. Most poskim maintain that the melakha of makeh be-patish does not apply to food items, and it is therefore permissible to prepare a food item for consumption in a manner that does not involve fire-generated heat (provided, of course, that this does not violate any of the other melakhot).
2. A salty fish that requires rinsing in cold water to render it suitable for consumption may be rinsed even in hot water.  If, however, it requires rinsing specifically in hot water, then one who does so violates the Torah prohibition of bishul.
3. Halakha follows the view that the Torah prohibition of bishul forbids cooking even fruits and other items that are edible raw, so long as the cooking process enhances them and introduces new flavor.
4. The Torah prohibition of bishul forbids heating water, oil or wine to the point of yad soledet bo.

 

Notes:

 

[1] One might ask why anytime a person violates bishul he does not transgress as well the melakha of makeh be-patish.  We could explain that the entire concept of makeh be-patish is work performed outside the parameters of the other melakhot.

[2] We will iy"H address this issue at length in a later shiur.

[3] This issue likely relates to a much broader discussion as to whether the melakhot of ibud (tanning), memachek (erasing), mechatekh (cutting) and tzovei'a (coloring) apply to foods.  It all may very well depend on the point we develop here in this shiur, though obviously further analysis is required.

[4] Meaning, it can be eaten despite the large quantity of salt on the fish, even without rinsing.

[5] See our discussion in the previous shiur.

[6] The Bet Yosef's primary argument against the Sefer Ha-pardes relates to the issue of rinsing a tarit in hot water, which the Sefer Ha-pardes forbids, despite the fact that the fish is suitable for consumption without rinsing.  Indeed, the Derisha understood the Pardes to mean that one may rinse the tarit even in hot water.  The Derisha writes, "Since hot water is not required for its preparation [for consumption], and in cold water it is clearly permissible to rinse it and prepare it for consumption – so since it is rendered suitable even [by rinsing] with cold water, it is therefore permissible with hot water, since hot water is not required for its preparation."

[7] Rashi there writes, "So that a Jew will not frequently spend time with him eating and drinking, and he might feed him something non-kosher."  The Rambam writes (Hilkhot Ma'akhalot Asurot 17:9), "in order that we be distanced from the gentiles to the point where Jews will not mingle with them and come to marry them."

[8] Rabbi Akiva Eiger, 254; Magen Avraham, 254:14; Minchat Kohen; see also Radbaz, 1:213, who writes that the prohibition is rabbinic in origin.

[9] Indeed, there are those who hinge the question of cooking fruits and the like on the issue of whether one may cook foods that have already been cooked to the point of ma'akhal Ben Derusai.  Clearly, however, Tosefot here compare the two only with respect to the rabbinic prohibition of shehiya, and not to actual bishul.

[10]  Some, however, claim that this position, which forbids the mere warming of oil, does so only on the level of rabbinic enactment, and not of the Torah prohibition of bishul.  See Sefer Ha-teruma, 231; and Penei Yehoshua, Shabbat 40b.

[11]  Later, however, the Or Zaru'a writes that the Riva ultimately retracted this ruling and held that bishul indeed does apply to wine.

[12] See also Iglei Tal – Melekhet Ha-ofeh, 19:8 and 19:21.  The Sha'ar Ha-tziyon (318:114) comments, "It seems obvious, in my humble opinion, that this refers to something that is not enhanced at all through cooking, to the exclusion of fruits and the like, which is enhanced as a result of cooking."

[13] The Rambam perhaps detected this notion in the sugya on 40b, which says regarding water, "A person may bring a ladle of water and place it opposite a fire not to heat it, but rather that it will thaw."  In the corresponding passage concerning oil, however, the Gemara employs the term bishul, rather than chimum (warming).  This subtle shift in terminology perhaps indicated to the Rambam that when it comes to water, the melakha of bishul is defined as heating water for bathing, and not for drinking.

[14] For further discussion on this point, see Shevitat Ha-Shabbat, introduction to Mevashel, #18 and the VBM article, Cooking Liquids on Shabbat" by Rav Elyakim Krumbein at http://www.vbm-torah.org/halak56.html.

[15] There is one view in the Rishonim that indeed holds one liable for bringing water from the point of yad soledet bo to a boil, but for an entirely different reason, as we will discuss be"H in the next shiur.