SALT - 11 Iyar 5781 - April 23, 2021

  • Rav David Silverberg
 
            Yesterday, we noted the prohibition of “lo takifu pe’at roshekhem,” which forbids “rounding” the hair of a man’s head by removing the sideburns, as the Torah commands in Parashat Kedoshim (19:27).  As we saw, the Rambam (Hilkhot Avodat Kokhavim 12:1) follows the view in the Gemara (Makkot 20b) that if one removes another person’s sideburns, the one who performed the act is liable to punishment, whereas the person whose sideburns were removed is liable only if he actively assisted the process, such as by turning his head.  According to some Acharonim, the Rambam concedes that even if the person remained entirely passive throughout the process, he has violated the Torah prohibition, notwithstanding the fact that he is not liable to punishment since he performed no action.  However, Rav Yosef Karo, in his Kessef Mishneh commentary, maintains that in the Rambam’s view, one who passively allows his sideburns to be removed does not violate Torah law at all.  As we discussed at length yesterday, this understanding was followed later by the Noda Bi-yehuda (Mahadura Tinyana, O.C. 76)
 
According to this view, it would appear, one may summon a gentile to remove his sideburns, provided that he – the Jew – remains entirely passive and does not actively participate in the haircutting process at all.  Since the prohibition against removing sideburns is not binding upon non-Jews, this should be allowed according to Rav Yosef Karo’s understanding of the Rambam.  (Of course, even this view would forbid asking a fellow Jew to remove one’s sideburns, due to the prohibition of “lifnei iver lo titein mikhshol,” which forbids encouraging or facilitating sinful behavior.)
 
            Regardless, Rav Yosef Karo does not follow this view in his codification of the laws of haircutting in Shulchan Arukh (Y.D. 181:4).  There he writes explicitly that it is forbidden to even passively allow somebody to remove one’s sideburns, and thus one may not have this done even by a gentile.
 
            This question appears to be debated by the Shakh and Taz, in a different context.  Later in the Yoreh Dei’a section of the Shulchan Arukh (198:21), the Taz addresses the case of a woman who needs to immerse on Shabbat or Yom Tov, and failed to cut her nails before Shabbat or Yom Tov.  As the Rama (Y.D. 198:20) writes, it is customary for women to cut their fingernails before immersing, due to the possible presence of dirt behind the fingernail would could constitute a chatzitza (obstruction) and thus invalidate the immersion.  The Taz cites and disputes an opinion that if the woman must immerse on Shabbat or Yom Tov, when nail-cutting is forbidden, and she neglected to cut her nails before Shabbat or Yom Tov, she should ask a non-Jewish woman to cut her nails for her.  In the Taz’s view, this ruling is incorrect, for two reasons.  First, since removing the nails is not strictly required, we should not suspend for this purpose the rabbinic prohibition of amira le-nokhri (asking a gentile to perform on Shabbat an action forbidden for Jews).  Secondly, the Taz writes, the woman will most likely end up assisting the non-Jew by moving her hands to make the nails more accessible, in which case she would be in violation of Shabbat.  The Taz references the halakha that one who has his sideburns removed violates the prohibition of “lo takifu” if he assists the barber in any way, and draws a comparison between such a case and the situation of a woman having her nails cut by a non-Jew on Shabbat.  In the latter case, too, if the woman actively involves herself in the slightest way, she would be in violation of Shabbat.
 
            It seems clear from the Taz’s discussion that in his view, one whose sideburns are removed without his performing any action does not violate the Torah prohibition of “lo takifu.”  The Taz compares this case to that of a woman who has her nails cut by a gentile on Shabbat, and his concern is only the likelihood that she would assist in some way – clearly indicating that if she does not assist the gentile cutting her nails, she does not violate Shabbat.  As the Taz views this case as halakhically comparable to the case of having one’s sideburns removed, we may deduce that in his opinion, one violates the Torah prohibition only if he performs some action contributing to the process.
 
            The Shakh, in his Nekudot Ha-kessef critique of the Taz, strongly disagrees with the Taz’s view.  Among the arguments advanced by the Shakh is that the situation of removing sideburns is not comparable to having one’s nails cut by a gentile on Shabbat.  Citing Rashi’s comments to the Gemara’s discussion in Masekhet Makkot, the Shakh explains that the Gemara understood the command of “lo takifu” as directed towards both the person removing the sideburns and the person whose sideburns are removed.  The latter’s active involvement is needed only for liability to punishment, which (according to the majority view among the Tannaim) requires an action.  When it comes to other prohibitions, however, one who assists the violator is not considered to have transgressed the prohibition, and thus a woman who allows a non-Jew to cut her nails on Shabbat does not violate Shabbat even if she performs an action to help facilitate the nail-cutting.  It is clear from the Shakh’s understanding of the Gemara’s discussion in Masekhet Makkot that in his view, even passively allowing the removal of one’s sideburns is forbidden, and active involvement is needed only for liability to punishment.
 
            Rav Asher Weiss references these and other sources in a letter written to a patient who underwent surgery on his earlobe, and only once he was on the operating table was told that his sideburns would be removed to take skin to be grafted on the earlobe.  After the procedure, the man wondered whether he was in violation of the prohibition of “lo takifu” by allowing this to happen.  Rav Weiss noted that according to the Kessef Mishneh’s understanding of the Rambam’s ruling, no violation was committed, since the patient was under anesthesia during the entire procedure and thus clearly played no active role to assist in the removal of his sideburns.  And even according to the Shulchan Arukh’s ruling, that even passively allowing the sideburns’ removal is forbidden, it could perhaps be argued that one cannot, by definition, be guilty of wrongdoing which occurs while he is asleep (not to mention when he is under sedation).  Nevertheless, Rav Weiss concluded that this situation should certainly be avoided, and patients requiring such a procedure should request in advance that skin be grafted from somewhere else so their sideburns would not be removed.