Choresh (Part 1) Defining the Melakha

  • Rav Yosef Zvi Rimon

THE LAWS OF SHABBAT

By Rav Yosef Zvi Rimon

 

Shiur #30:

Choresh, Part I

 

 

May children play in a sandbox on Shabbat?  Is there any problem in pulling a wagon over dirt?  May one sweep the floor of a house or a yard?  May one wash a floor that has become dirty?

 

I) Defining the Melakha

 

The Mishna (73a) counts the melakha of choresh (plowing; the action is known as charisha) as one of the thirty-nine melakhot: “The primary labors are forty less one: sowing, plowing…”  One would have thought that the order should have been reversed – first choresh and then zoreia, since plowing generally precedes sowing.  The Gemara (73b) explains that the Mishna is dealing with the land of Israel, where the practice is to plow twice: once before sowing (zeria), and another time after sowing, in order to cover the seeds with dirt.  The Mishna teaches us that even the charisha which comes after zeria is forbidden because of choresh.

 

The Gemara continues and says: “Plowing, digging, and trenching are all the same melakha.”  Rashi explains: “All of them serve to soften the ground.”  According to this explanation, choresh includes every act which comes to loosen the soil and soften the ground; consequently, digging and trenching, which also break up the ground, make one liable because of choresh. 

 

It appears that Rashi derives this definition from the words of the Gemara in Mo’ed Katan (2b).  In the Gemara there, Rabba determines that one who waters seeds on Shabbat is liable because of choresh: “Just as the way of plowing is to soften the ground, these too soften the ground.”  According to him, the irrigation causes a loosening of the soil, and this is precisely the essence of choresh, to soften the ground.  (Rav Yosef, on the other hand, argues and believes that one who waters is liable because of zoreia, since the irrigation promotes plant growth; see our series on the melakha of zoreia).

 

Later on in the passage in Shabbat, the Gemara states that the classification of removing a mound (a protrusion from the surface of the ground) varies: in a house (i.e., the dirt floor of a dwelling), one is liable for boneh (building); in a field, one is liable for choresh.  Rashi explains here as well that one is liable for choresh in a field because this act softens the ground.

 

The continuation of the Gemara states that the classification of sealing a hole in the ground also varies: in a house, one is liable for boneh; in a field, one is liable for choresh.  This apparently has no connection to softening the ground.  Rashi explains:

 

If one has a hole and fills it with dirt, this is choresh, because the dirt with which one fills it is loose and good for sowing, and one smoothes the patch and makes it level with the ground which is to be sown in the field. 

 

In other words, the essence of the melakha of choresh is preparing the ground for sowing, and the condition for this is that the ground must be soft, because only such ground accommodates sowing.  Therefore, whether one makes the ground soft or whether one puts loose dirt into a hole in the ground, one is liable because of choresh.

 

Another approach to the definition of the melakha of choresh emerges from Rabbeinu Chananel (74a), based on the Yerushalmi (7:2).  Rabbeinu Chananel writes as follows:

 

Plowing, trenching and digging are all the same melakhaAnything which serves to improve the terrain in the field renders one liable because of choresh, and anything which is done in the house in order to level [the floor] renders one liable because of boneh.  [That which is done] in order to level the terrain of a field renders one liable because of choresh, as it says (Yeshayahu 28:25) “When he has leveled the surface…”  And anything which serves to benefit of the terrain renders one liable because of choresh, as is explicitly mentioned in the Yerushalmi.  This is similar to what Rabba says about filling in a hole; this too is smoothing the surface of the ground. 

 

According to this approach, the melakha of choresh does not relate specifically to softening and loosening the dirt, but rather to every action which beautifies and improves the ground.[1]  Filling a hole does not soften the ground, but it does cause the surface to be level, and this improves the terrain, as can be seen from the verses referenced from Yeshayahu (28:24-25): “When a farmer plows for planting, does he plow continually?…  When he has leveled the surface, does he not sow caraway and scatter cumin?”

 

In other words, smoothing the surface of the ground is one of the actions of charisha, and afterwards it is possible to start the act of zeria and to scatter seeds (such as caraway and cumin) on the ground.[2]

 

A similar approach emerges from the Rambam (8:1):

 

One who plows any amount is liable.  One who weeds at the roots of trees… in order to improve the terrain, this is a subcategory of choresh… Similarly, one who levels the surface of a field by knocking down and smoothing out a hillock or filling up a dell is liable because of choresh. 

 

In any case, according to Rabbeinu Chananel and the Rambam, it is clear that not every activity which improves the terrain is included in the prohibition of choresh, but only something which prepares the ground for zeria.  The Or Zarua (Vol. II, Ch. 55) writes the same: “Anything which is for the benefit of the ground and improves it for the purposes of sowing renders one liable because of choresh,” and the Acharonim rule accordingly.

 

To sum up this section, according to Rashi, the definition of charisha is specifically softening the ground to prepare it for zeria, while according to Rabbeinu Chananel and the Rambam, charisha includes any actions which beautify and improve the terrain in preparation for zeria.

 

When One Does Not Intend to Sow

 

Does the prohibition of choresh exist only when the person actually intends to sow in that ground?  The Gemara simply states that “in a field, one is liable for choresh,” and it is implied that this matter does not depend on one’s intent.  The Chiddushim Ha-meyuchasim La-Ran writes (ad loc.):

 

“If a person has a mound… in a field, one is liable for a choresh” — because many times a person plows with the sole intent of turning over the soil to improve the field, not for sowing.  Thus, any improvement (tikkun) of the field is significant because of choresh.

 

However, if the terrain is totally unfit for sowing, the prohibition of choresh does not apply.  The Gemara in Pesachim (47b) indicates that the prohibition of choresh is not applicable to rocky ground, which cannot be sown, and the Or Zarua (cited above) and others write the same.

 

What is the rule for ground which is fit for zeria if it is not designated for sowing and there is no intent to sow it (for example, regular dirt in public spaces)?  The Gemara says, as we have noted, that one who levels the ground in a field is liable for choresh, while one who does so in a house is liable for boneh.  From the words of the Magen Avraham (526:10), it appears that in a place which is neither a field nor a house there is no prohibition from the Torah of choresh.  The Eglei Tal (Choresh, 16) believes that every place falls into the category of either “field” or “house:”

 

It is clear that the “house” is not a house per se, but any place of residence… The “field” denotes any place which is fit to be sown and is not designated as a residential area or a public thoroughfare.  In an area which is designated for residence, one is not liable for choresh, because if one were to sow in it, one would negate its residential status…  If so, it is not considered improvement to prepare the place for sowing, because if one sows there, it will ruin its current purpose…  According to this, every place must necessarily be one of the two, house or field, that if it is a residential area or a public thoroughfare, it is considered a house, and one is liable for boneh; if it is not residential, one is liable for choresh.     

 

According to him, if a tract of land is fit for zeria, even if it is not specifically designated as agricultural land, preparing it for zeria constitutes a tikkun, and such an act is included in the melakha of choresh.  Only when the ground is designated for residential use do we say that there is no issue of choresh in making it ready for zeria, as it were, since this is an act of kilkul (ruination), as the zeria precludes any residential use.  (Nevertheless, smoothing the surface of the ground is forbidden with this type of land as well because of boneh, since level ground is also better for residential purposes).

 

Halakhically, it makes sense to adopt the view of the Eglei Tal, that the prohibition of choresh applies also to ground which is not designated for zeria, because the Rishonim and Acharonim discuss various questions pertaining to incidental acts of choresh — e.g., dragging furniture, pulling wagons or playing marbles and the like, as we shall see below — but none of them notes that this melakha applies only to a field designated for agricultural use, which is not common in settled areas.  This silence indicates that the prohibition is applicable to normal dirt in a public place as well, since it is fit for zeria, even if it is not designated for this.[3] 


 

II) Trenching

 

One of the actions mentioned by the Gemara (73b) is trenching, making a rut in the ground.  This prepares the ground for sowing, and is forbidden by the Torah because of choresh.  Making a furrow in a house’s dirt floor, on the other hand, is generally forbidden rabbinically, since this is considered kilkul and not tikkun.  However, one who makes a rut or depression in the ground of the house in order to use it for any purpose is liable for boneh (Rashi, 73b, s.v. Patur, following the Gemara, 102b). 

 

Dragging Objects

 

Is it permissible to drag objects on unpaved ground, which is likely to cause the creation of a trench in the dirt?  Since in this situation the person does not intend to make a furrow, this depends on a Tannaitic dispute about whether an unintentional act (davar she-eino mitkavven) is permitted.  In fact, this is exactly the situation of the Tannaitic dispute, as explained in the Mishna and Gemara, Beitza 23b:

 

Rabbi Yehuda says: “One may not drag any object, except for a wagon, because it compacts [the earth]…”

Rabbi Shimon says: “One may drag a bed, chair or bench, as long as one does intend to make a trench.” 

 

Rabbi Shimon’s view is accepted halakhically: a davar she-eino mitkavven is allowed, and therefore one is allowed to drag objects on the ground, if one has no intention to make a trench.

 

However, the Gemara notes in a number of places (75a, 103a, et al.) that Rabbi Shimon  concedes that such an act is forbidden in a case of pesik reisha, i.e., when there is certainty that the act done will bring about the result of a forbidden melakha.  Therefore, one should not drag objects in the dirt if this will definitely cause the making of a rut in the dirt.  This is how the Shulchan Arukh rules (337:1):

 

A davar she-eino mitkavven is allowed, as long as it is not a pesik reisha.  Therefore, one may drag a bed, chair or bench, whether large or small, as long as one does not intend to make a trench.

 

The Magen Avraham (ad loc., 1) points out that the allowance of the Shulchan Arukh to drag even large objects does not relate to particularly heavy objects, since these objects certainly make a trench in the ground.  This is what the Mishna Berura (ad loc., 4) writes in his name:

 

The Magen Avraham writes that the especially large objects may not be dragged on the ground, because it is a pesik reisha — they will certainly create a trench. 

 

One should note that making a trench in this situation is not forbidden on a Torah level, because it is not done normally, with a hoe and the like, but rather “backhandedly” (Rashi, 46b, s.v. Issura).  This is particularly true when this is done in the house, because then the act is considered kilkul (Rabbeinu Tam, Sefer Ha-yashar 233; Shaar Ha-tziyun 337:1); however, the law of pesik reisha applies even to labors forbidden only rabbinically (Magen Avraham, ad loc. 1). 

 

Similarly, one should not sit on a chair which stands on the ground if sitting on it will definitely cause the legs to make a trench in the ground.  However, it is permissible to remove an object which is stuck in the ground, since the trench existed even before the removal of the object (Gemara, 113a; Mishna Berura 498:91).

 

On Paved Ground

 

Is one allowed to drag heavy objects on paved ground?  From the words of the Gemara (29b), it would appear that dragging objects is even forbidden on such surfaces:

 

In an upper room with marble floors, Abin of Sepphoris dragged a bench before Rabbi Yitzchak ben Elazar, who said to him, “If I hold my peace… a disaster will result: there is a decree in a marble room because of an ordinary room.”

 

In other words, it is forbidden to drag heavy objects over a paved floor because of a rabbinical decree, lest one come to drag them over unpaved ground.[4]

 

However, as we shall see at length in our next shiur, there is an argument among the Rishonim about whether this decree is applicable in a locale in which all of the houses have paved floors.  According to Tosafot (29b, s.v. Gezeira), this decree only applies in a place where some houses are not paved, in which there is a concern that a person may come to drag objects even in these houses, but in a place in which all of the houses have paved floors, there is no reason to forbid it.  On the other hand, the Ramban (95a, s.v. Hakha) rules that one should not distinguish between different locales.

 

Halakhically, the Mishna Berura rules (Shaar Ha-tziyun 337:2) leniently in accordance with the view of Tosafot, taking into account additional factors that favor this leniency:

 

It makes sense that if the entire town is paved with stone or paneled with wood, one should be lenient about this… bearing in mind that even when it is not paved, there is no true dragging on a Torah level for many reasons.  First, the trench that one will make in this is digging backhandedly.  Furthermore, one damages the house by making ruts in it; one does not improve it.  Above all, one has no intention for this, and it is only an unwanted pesik reisha  As is explained above in the gloss to 316:3, the view of the Rema is clear: he holds, generally, that with regard to a doubly rabbinic prohibition [two mitigating factors that would each reduce the severity to rabbinic], an unwanted pesik reisha is allowed, even though here we are stringent about this….  In any case, if the whole town is paved, one should enlist the view of the Tosafot as well… that we do not make a decree in such a case because of that which is not paved…

 

His reasoning is as follows: Logically, one should have been lenient even in a case of unpaved ground, since this is an unwanted pesik reisha at the confluence of two mitigating factors that would reduce the severity of the act to a rabbinic prohibition (backhanded acts and acts of kilkul).  Though generally in such a case we are stringent, this confluence makes room to rely on Tosafot and to be lenient in a place that all of the houses are paved.

 

Dragging a Wagon over Dirt

 

From the abovementioned Mishna in Beitza, it is clear that, even according to Rabbi Yehuda, who forbids dragging objects even if there is no certainty that this act will make a ditch (since a davar she-eino mitkavven is forbidden), it is permitted to drag a wagon over dirt, “because it compacts [the earth]”.  This is because the wagon does not create a ditch by moving the dirt to the side, like the leg of a chair or a table; rather, it compresses and consolidates the earth under it.  Creating a rut in such a way is not forbidden because of choresh.

 

What is the significance of the manner in which a trench is formed?  According to Rashi’s approach, this is easily explained.  As cited above, Rashi explains that the basis of the melakha of choresh is softening the ground.  Thus, when one digs in the ground and moves the dirt to the side, the dirt crumbles and becomes soft; however, when one compacts and compresses the dirt below, there is no softening of the ground.

 

The explanation of the Rambam’s view seems to be that since the normal way of preparing the ground for zeria is by digging, the making of a trench by compaction is not derekh charisha, the normal way of plowing. As such, the tracks created bear no similarity to the standard furrow or ditch, and this is not included in the melakha of choresh, particularly when a person is not at all interested in the creation of a trench.

 

However, the Gemara indicates that this rule of pulling a wagon on top of dirt is subject to a later Tannaitic dispute: there are those who say that Rabbi Yehuda allows dragging a wagon on dirt because it compacts the earth, but there are those who say that Rabbi Yehuda is stringent about this.  However, according to Rashi ibid. (s.v. Trei), the dispute relates to a side question:

 

One believes that the wagon is like any other object in that one may make a trench by dragging it, as sometimes the wheels do not turn, and it is dragged and digs [into the ground].  The other one believe that this is uncommon, and it only compacts [the earth] as it rolls.

 

In other words, according to all views, the making of a trench through compaction is not forbidden because of choresh, and the dispute is about the question of whether one must be concerned about a situation in which the wheels of the wagon will become stuck and will make a rut in the manner of digging.

 

This statement of Rashi is very significant.  As mentioned, the halakhic consensus follows the view of Rabbi Shimon, that a davar she-eino mitkavven is allowed, and we do not forbid the dragging of objects unless there is certainty that they will make a trench.  Is it permitted to move a heavy wagon through dirt, when it is certain that this will create tracks in the ground?  In light of this Rashi, this should be permitted, as according to all views, making a trench by way of compaction is not forbidden because of choresh.  The Tannaitic dispute in the view of Rabbi Yehuda relates to a concern that the wagon will make a rut in the way of digging, and since this concern is not in the category of a pesik reisha, then halakhically, in accordance with the view of Rabbi Shimon, we need pay no attention to it.

 

Indeed a number of halakhic authorities have ruled in accordance with this approach (Kaf Ha-chayim 337:4; Chut Shani, Vol. I, p. 95, in the name of the Chazon Ish): one may move a heavy wagon over unpaved ground, since the wagon does not excavate the dirt but merely compacts it, and there is no act of choresh in this.  This lenient view can be taken as authoritative, especially given that this is, in any case, a rabbinic prohibition, since the charisha is backhanded, and generally also falls into the category of kilkul.[5]

 

A Sandbox

 

Unlike normal rocks, twigs or dirt, which would have the status of muktze and a rabbinic ban against moving them on Shabbat, the sand in a sandbox is not muktze, as this is designated for child’s play.  (Nevertheless, beach sand or construction sand and the like are forbidden because of muktze.)  However, one should warn children not to build or dig in the sand, as this would fall under boneh or choresh respectively.

 

If the sand is very soft, so much so that if one digs a hole, the sand falls back into it and fills it, there is no prohibition to build in it (Mishna Berura 308:143, following Tosafot 39a, s.v. Ikka).  In any case, one should warn children not to add water to a sandbox, since there may then be a problem of kneading.  Moreover, this will help stabilize the sand and prevent it from collapsing, and as such playing with it would then be forbidden because of boneh or choresh. 

 

These laws apply equally to a sandbox which has a solid bottom and is thus not attached to the ground, since the prohibition of making a depression applies equally to dirt detached from the ground and in a vessel (Mishna Berura 498:91).



[1]     This approach finds support in the Gemara’s ruling (103a) that one who plucks endives is liable even for a small quantity, if one intends to improve the terrain.  While the Ramban (111a) raises the possibility that the liability there is for harvesting, not for plowing, nevertheless, in his conclusion, he writes, following the Tosefta, that the liability is also because of choresh.  This is what the Me’iri (103a) writes as well.

[2]     The Yerushalmi (7:2) counts many other acts which improve the terrain as forbidden because of choresh: fertilizing the ground, removing stones from it, etc.

[3]     Nevertheless, the Mishna Berura indicates otherwise.  In the Shaar Ha-tziyun (336:18), he rules that it is forbidden to pour water only in a field which is designated for charisha, implying that if it is not designated for charisha, the prohibition of choresh is not applicable.  We have cited this in his name about zoreia as well.  (The source is the words of the Or Zarua, Vol. II, Ch. 54; however he does not say “designated for plowing”, but rather “normally plowed”, and his intent may be that it is fit for plowing). 

It may be that the Mishna Berura follows the view of the Magen Avraham mentioned here, not the view of the Eglei Tal; if so, there is more room for leniency in this regard.

However, the Orechot Shabbat (Ch. 18, n. 8) writes that it may be possible to integrate their views by distinguishing between different acts: acts which are characteristically part of charisha, such as leveling the surface, are forbidden even in a field which is not designated for charisha, while irrigation, which is not characteristically associated with charisha, is forbidden only in a field which is designated for charisha.  This answer is somewhat innovative, but because the Mishna Berura does not explain himself in the context of choresh, and since one may distinguish between irrigation and plowing, we have brought here the words of the Eglei Tal for the practical ruling. 

[4]     In fact, while the Gemara addresses the view of Rabbi Yehuda, who forbids a davar she-eino mitkavven, the same should apply according to the view of Rabbi Shimon regarding heavy objects since there is a pesik reisha of making a groove if it is dragged over unpaved ground. Indeed the Magen Avraham (337:1) and the Mishna Berura (337:4) rule accordingly.

[5]     The Az Nidberu (Vol. V, Ch. 21) writes that even if the wagon for some reason digs up the ground instead of flattening it, it is permissible to move it over roads, sidewalks, etc., since in our time the entire town is paved, and therefore one has no reason to be stringent about paved ground, as the Mishna Berura rules above.