Pesik Reisha D'Lo Nicha Lei
THE LAWS
OF SHABBAT
By Rav Doniel Schreiber
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DAYS OF DELIVERANCE: ESSAYS ON PURIM AND HANUKKAH
by Rabbi Joseph B. Soloveitchik
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Shiur #19: Issur Melakha and the Shabbat Day of Rest: Part IV
In the previous shiur we discussed the prohibition
to perform a "pesik reisha de-lo nicha lei," an action the inevitable
consequence of which is a Shabbat violation, despite the fact that one does not
desire this tangential outgrowth, in the context of a Torah proscription. As an addendum to this law, it is
important to note that some halakhic authorities rule that this is only true
when one merely does not care about the outcome of the act; however, where one
is actually unhappy about the outcome - i.e.
some harm is done - a pesik reisha is permissible (Tosefot, Shabbat 103a,
and Me'iri, Shabbat 29b). Other
posekim argue, asserting that even in such a situation pesik reisha is forbidden
in the context of a Torah violation (Tosafot, Shabbat 78a), and this indeed
appears to be the ruling of the later posekim (see Chazon Ish 51:14).
For further study:
1.
Is lo nicha lei
defined objectively as an outcome that people generally do not view as a
benefit, or subjectively as a result that the person in consideration does not
view as a benefit? See Minchat Shlomo, by Rav Shlomo Zalman Auerbach, pp. 548-549, where he adopts the former
option; however, compare this with Bei'ur Halakha 320:18, who might accept the
latter opinion. The practical
difference is whether opening a refrigerator door, which will turn on a light,
is considered lo nicha lei when one closes his or
her eyes.
2.
Is lo nicha lei
defined leniently as an act which will yield no benefit on Shabbat, or
stringently as an act which will never, under any circumstances, yield a
benefit? See Yalkut Yosef 4, vol.
5, pp. 201-202, note 19,
where Rav Ovadya Yosef seems to prefer the former opinion. The practical difference is whether
turning on the motor of a refrigerator through a pesik reisha is considered lo
nicha lei, since even if the motor would not go on during Shabbat the food would
remain unaffected until sometime after Shabbat.
The former approach would consider it lo nicha lei, whereas the latter
opinion would consider it "nicha lei" or desirable.
What is the law in a case of a pesik reisha de-lo
nicha lei in the context of a rabbinical violation? This is a major dispute
amongst the posekim. Many halakhic
authorities are lenient in this case and permit it, for an assortment of
reasons. For instance, Tosafot
(Shabbat 103a, s.v. Lo tzerikha)
explain that a pesik reisha de-lo nicha lei is rabbinically forbidden in the
context of a Torah prohibition, since, were it permitted, one might come to
perform a pesik reisha where there is benefit and thereby violate a Torah
prohibition. However, the Sages did
not see fit to prohibit a pesik reisha de-lo nicha lei in the context of a
rabbinical prohibition, since it is unnecessary to prohibit an action that might
lead to a rabbinical violation. See
also Tosafot, Shabbat 41b, s.v.
Meicham and Maharsham 5:48, as well as Be'er Yitzchak, appendix to chapter 15,
who rules leniently where there is no other alternative.
Other lenient opinions assert that this case is an
instance of sefeik sefeika le-kula (double doubt in favor of leniency), inasmuch
as some posekim rule that a pesik reisha de-lo nicha lei is permitted even in
the context of a Torah prohibition, and many other decisors rule that as pesik
reisha in the context of a rabbinical prohibition is permitted. Thus, since two different lenient
rulings overlap in this case, a majority of posekim emerge with a permissive
ruling. See Yechaveh Da'at 2:46.
Most Sephardic posekim, and many Ashkenazic posekim,
rule leniently in this case, on the basis of one of the above rationales; see
Yabi'a Omer 4:34. Such a position
leads to the following leniencies: One may walk past video cameras and LED or
LCD motion sensors (the operations of which are all rabbinical prohibitions)
where one accrues no benefit. See
Journal of Halacha and Contemporary Society, no. 21, Spring 1991, "The Use
of Electricity on Shabbat and Yom Tov" by Rabbi Michael Broyde and Rabbi Howard
Jachter, pp. 10-11, and ibid. no. 23, Spring 1992, "Modern Technology and the
Sabbath" by Rabbi Michael Broyde, p.
79.
Nonetheless, many posekim, such as Magen Avraham
(316:8), Dagul Mei-revava (340:3), and Chazon Ish (50:5), argue with the above
position, and rule stringently, forbidding a pesik reisha de-lo nicha lei even
in the context of a rabbinical prohibition.
This also seems to be the opinion of the Rema (316:3). [For further research: While the
Mishna Berura is quoted as concurring with this position (see Rabbi Shimon
Eider, Halachos of Shabbos, III F 8, note 91), he himself, in fact,
appears to equivocate on the matter.
See MB 321:57 and Sha'ar Ha-tziyun 68; Sha'ar Ha-tziyun 337:2,10; and MB
340:17.]
Mishna Berura (MB 316:15 and Sha'ar Ha-tziyun
316:18) explains in the name of the Peri Megadim, however, that this stringent
opinion would generally permit a pesik reisha de-lo nicha lei in the context of
two intersecting independent rabbinical prohibitions, such as covering a large
crate that contains flies.
Let us take a moment to explain this example. In the first place, the flies we
encounter are generally not of the type usually captured and therefore, catching
them is forbidden only rabbinically; beyond this, flies are not considered
completely trapped in a large crate, because one must still exert effort to
catch them, and thus using a large crate to trap small prey - even those
creatures normally hunted - is prohibited only rabbinically. Therefore, since one is uninterested
in catching the flies, but only in covering the crate, the action is a pesik
reisha de-lo nicha lei in a case of two independent rabbinical prohibitions.
See also Sha'ar Ha-tziyun (337:2), who cites the
Rema in 316:3 as agreeing with this position.
For further research, see MB (314:11) and Chazon Ish (52:15, 56:4), who
discuss the parameters of permitting this configuration, as in some cases the
custom is to forbid a pesik reisha de-lo nicha lei even in a case of three
intersecting rabbinical prohibitions.
While it appears that, according to those who rule
stringently in the application of a pesik reisha de-lo nicha lei to a rabbinical
prohibition, it would be forbidden to walk past a video camera, a possible
leniency has been suggested (see Modern Technology and the Sabbath, pp. 80-81). There is a tradition, cited in
Shulchan Arukh (OC 320:18), to rely on the opinion of the Arukh, who allows a
pesik reisha de-lo nicha lei even in the context of a Torah prohibition, when
there is at least a minority opinion which allows the intentional performance of
a given action.
For instance, many modern posekim allow the raising
or lowering of current in an electrical appliance (Yabi'a Omer 1:19; SSK 23:52;
Be'er Moshe Kuntres Electricity #56; "The Use of Electricity on Shabbat and Yom
Tov," ibid. pp. 34-35). While we do not rely on this lenient
opinion in practice, it would seem one may rely on it in a case of pesik reisha
de-lo nicha lei. Based on this
premise, it would also emerge that it is theoretically permissible to turn
electrical appliances on and off (where no incandescent lights are lit, as such
a result involves a separate issue beyond the problem of utilizing a circuit),
in a manner that is a pesik reisha de-lo nicha lei, since there is a minority
opinion which allows this action even when done
deliberately. (See "The Use of
Electricity on Shabbat and Yom Tov," ibid.
pp. 20-21.)
Next time, we will
discuss the case of sefeik pesik reisha.
Such a cases arises, for instance, if one does not remember if the
light-bulb in a refrigerator was disconnected before Shabbat, and he or she now
wants to open the door: is this action permissible? We will address this and the
other instances of sefeik pesik reisha in our upcoming shiur.
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