Shiur #04: The Order of Priority When One Must Violate Shabbat (Part I)
Halakha: A Weekly Shiur In Halakhic Topics
Yeshivat Har Etzion
Shiur #04: THE ORDER OF PRIORITY WHEN ONE MUST VIOLATE SHABBAT* (PART I)
Based on a shiur by Rav Mosheh Lichtenstein
Question: In a situation where it is necessary to desecrate Shabbat for a reason that does not involve immediate pikuach nefesh (saving of a life), e.g., to prevent the suffering of an animal or for the sake of a sick person who is not in danger, and it is possible to choose among various alternatives the manner in which Shabbat will be desecrated, what are the criteria for choosing between them?
Answer: There are various ways of diminishing the severity of violating a Shabbat prohibition and performing a melakha (forbidden labor). One might employ gerama (indirect action), shenayim she-asa'uha (two people performing the forbidden melakha together), shinui (performing the melakha in an unusual way), amira le-goi (telling a non-Jew to do it), or amira le-katan (telling a minor to do it). This, however, is not the framework to discuss all of these possibilities. We will, therefore, focus on choosing between the option of performing the melakha with a shinui and that of telling a minor or a non-Jew to do it, these being the two most practical and common solutions.
It should be noted from the outset that two very important factors will not be considered in the present discussion: 1) the possibility of combining two of the aforementioned solutions, e.g., telling a non-Jew to perform the melakha with a shinui; 2) the level of the original prohibition: Torah law or rabbinic decree. These two factors will, of course, greatly influence the practical decision-making process, but we will focus on the question of choosing between a shinui and performing the labor by way of a non-Jew or a minor.
The performance of a forbidden labor on Shabbat is comprised of two factors: the person who performs the action and the action itself. Thus, two paths are available to us when we come to diminish the severity of the prohibition and bring it down from a Torah prohibition to a rabbinic prohibition. The first is to change the person performing the action, that is to say, to tell a non-Jew or a child to do it; the second is to alter the performance of the action, that is to say, to perform the action in an unusual manner. We will analyze each option independently in order to see which is the better way to distance oneself from the original prohibition.
The main source pertaining to our discussion is a Talmudic passage at the end of Shabbat (153a), which discusses a situation in which the rabbis decided to permit a labor forbidden by rabbinic law in order to prevent financial loss. It presents a scale of preferences regarding how to perform the labor:
Mishna: If darkness falls upon a person on a road, he entrusts his purse to a non-Jew; but if there is no non-Jew with him, he places it on the donkey
Gemara: The reason is that there is no non-Jew with him; if there is a non-Jew with him, he must give it to him. What is the reason? As for an donkey, you are under an obligation that it rests; but as for a non-Jew, you are under no obligation [to ensure] that he rests.
[Between, on the one hand] a donkey, and [on the other] a deaf-mute, mental incompetent or minor, he must place it on the donkey and not give it to the deaf-mute, mental incompetent or minor. What is the reason? The latter are human beings, whereas the former is not. [Between] a deaf-mute and a mental incompetent, [he must give it] to the mental incompetent; [between] a mental incompetent and a minor, to the mental incompetent. The scholars asked: "What of a deaf-mute and a minor?"
As we see, the proposed solutions focus on lowering the level of culpability of the one performing the action. Later in the passage, the Gemara raises the possibility of performing the labor in a less efficient manner:
if neither a non-Jew, donkey, deaf-mute, mental incompetent nor a minor is
The wording of the Gemara implies that one may carry the purse in stretches of less than four cubits only in a case where there is no non-Jew or the like. Thus, we may conclude that it is preferable to desecrate Shabbat through a non-Jew, rather than by performing the labor in a less efficient manner. This, however, is not explicitly stated, for the Gemara's answer is that the sages did not wish to reveal the possibility of carrying the purse in stretches of less than four cubits, lest one come to a more severe desecration of Shabbat. All that may be concluded from this is that they did not want to publicize this solution, not necessarily that it is an inferior solution for one who is familiar with it. Even if we assume that owing to this concern, it is preferable not to carry in this manner, this decree might be unique to the case under discussion, so that nothing may be inferred from here regarding other cases.
Shinui Performing the Labor in an Unusual Manner
In order to properly understand this issue, we must explain the exemption from liability that applies when one performs a melakha with an alteration (shinui) from the usual manner. If we take the example discussed in the aforementioned Talmudic passage the exemption in the case where a person carries in stretches of less than four cubits at a time there are two basic approaches to this law. Some view it as a qualitative impairment of the prohibition, owing to the fact that carrying in stretches of less than four cubits at a time does not fall into the category of carrying in the public domain and is therefore forbidden by rabbinic decree only. Others argue that this is regarded as a melakha that is forbidden on Shabbat, but someone who acts in this manner is exempt, because his action lacks the amount that is necessary for liability. Using classic yeshiva terminology, the question is whether we are dealing here with a "chatzi shiur" (half-measure) or a "chatzi melakha" (half-labor). In modern parlance, the question is whether the deficiency is qualitative or quantitative.
This model of thought should also be adopted when we come to discuss the other exemptions from liability on Shabbat. It is possible to bring many examples and ramifications, but we will restrict the discussion to an examination of the matter with respect to a melakha performed with a shinui.
The Mishna and the Gemara establish in several places that performing a forbidden labor with a shinui lowers the level of the prohibition to that of a rabbinic decree (Shabbat 92a, 104b; Pesachim 66b; Ketubot 60a, et. al.). These sources, however, do not discuss the foundation of the exemption by Torah law. We may suggest two explanations: 1) Tosafot maintain that the exemption for melakha she-eina tzerikha le-gufah ("labor not for its own purpose," such as trapping a snake not for its hide, but so that it will not bite) is based on our derivation of all of the forbidden labors of Shabbat from the acts necessary to construct the Mishkan (Tabernacle). Similarly, we may argue that a melakha altered in its performance, if not in its purpose, still fails Tosafot's criterion of being "similar to the Mishkan." According to this, the exemption is a Scriptural decree. 2) The shinui imposes a qualitative change on the manner in which the labor is performed. The second possibility itself divides into two: either the change removes the action from the category of melekhet machashevet (thoughtful labor, Shemot 35:33 and Beitza 13b), or perhaps it entirely removes it from the category of melakha.
The Ramban relates to this question. See Torat ha-Adam, Sha'ar Ha-michush (ed. Chavel, p. 21), where he distinguishes, with respect to the treatment of a moderately ill person, between performing a forbidden labor in an unusual manner ("with a change, not in the manner of forbidden labors"), which he permits; and performing a labor forbidden by rabbinic decree in the usual manner, which he forbids. The Ran echoes this (Rif, Shabbat 61a, s.v. U-vamakom [end]).
This question has a simple ramification: performing an action in an unusual manner in other halakhic realms. This issue has already been raised by the Rishonim. Let us consider the view of the Sefer Ha-teruma (No. 205) with respect to writing sacred documents in an unusual manner:
In this manner one may write a Torah scroll, tefillin, a mezuza or a megilla, for "writing" is mentioned with respect to all of them. For you cannot say that it is only on Shabbat, where we learn from the Mishkan, that [writing] in an unusual manner is not considered valid [writing], but in general it is valid. There is no logic to say that a person could write a Torah scroll, tefillin or a mezuza as halakhically required on Shabbat and not be liable! Regarding ritual slaughter, however, it says, "And you shall slaughter" (Devarim 12:21) and we have learnt (Chullin 31a): "'If a knife fell and slaughtered this is invalid,' so we infer that the reason is because it fell, but if a person made it fall, it is valid" even though the slaughter was performed in an unusual manner. Nevertheless, he is exempt on Shabbat, because he did it in an unusual manner.
As we see, the Sefer Ha-teruma's inclination is that an action performed in an unusual manner is not considered an act. Accordingly, one who writes in an unusual manner falls into the category of mitasek (unconscious action, e.g., leaning on a wall and hitting a light switch) and his action is not regarded as one of writing. The Sefer Ha-teruma has reservations, however, because of the law that ritual slaughter performed in an unusual manner is indeed regarded as valid.
In contrast, there are Acharonim who disagree. Thus, for example, writes the Chelkat Mechokek (EH 123:5) regarding a get (bill of divorce) written in an unusual manner:
This implies that, ex post facto, a get is valid if a person wrote it with his left hand, even if he is not ambidextrous. This is notwithstanding the fact that regarding Shabbat law, writing with one's left hand is not regarded as writing, and the Gemara compares a get to Shabbat regarding the law of overwriting. We may suggest that a get is not likened to Shabbat regarding all matters, for with respect to Shabbat we require melekhet machashevet similar to the Mishkan. Therefore, if a person writes in an unusual manner or with his left hand, it is not regarded as melekhet machashevet; nevertheless, it is regarded as writing with respect to a get.
The Eglei Tal, in his introduction (Letter 3), raises this question, and argues that a distinction must be made between two types of shinui. Certain changes make a qualitative difference with respect to the result, e.g., one who plants in an unperforated pot; in such a case there is no performance whatsoever of the melakha. Other changes affect the quality of the performance, e.g. writing with the left hand; in such a case, the melakha is performed, but there is no melekhet machashevet. He proves this from the law that states that a get written with one's left hand is valid.
The Eglei Tal's distinction is certainly correct. It would seem, however, that in the first half of his distinction, we are not dealing with a shinui that removes the action from the category of the melakha, but rather we face non-performance of the melakha. Writing without ink is not writing in an unusual manner; it is not writing at all. The issue that we have been discussing is not a qualitative change in the result that removes the action from the category of the melakha, but rather a melakha that is performed in an unusual manner. For example, removing the top of a barrel in order to open it on Shabbat is permitted, because there is no making of an opening, and it is therefore certainly permitted. However, making an opening with a shinui accomplishes the forbidden result in an unusual manner, and it is such a case that is the subject of our present discussion.
For our purposes, the question of the nature of an altered melakha is critical. If we are dealing merely with an exemption from liability, this will certainly not be the preferred manner of performing the melakha in a case of need; we would permit it very reluctantly, if at all, for a melakha that desecrates Shabbat is ultimately performed. On the other hand, if we understand that an altered melakha performed is not regarded as a melakha, it is much easier to permit it in a case of need, as it does not involve any desecration of Shabbat. Indeed, the Ramban and the Ran use this argument to explain Ketubot 60a, where the sages permit a sick person who is suffering to suck milk on Shabbat directly from an animal's udder and a person who might suffer a financial loss to crush with his foot the rubbish that has entered into his drainpipe: since no melakha is performed, we can be lenient, but nothing may be learned from this case regarding other rabbinic prohibitions.
It therefore seems that we should adopt the Eglei Tal's approach, according to which there are two types of shinui, though in a slightly different formulation. In some cases a shinui impairs the melakha itself, whether because the person is not in total control of his action, similar to mitasek, or because we are dealing with a different action that causes the melakha as a side-effect. Thus, for example, there is an essential difference between one who writes with his foot or with his mouth and one who writes with his left hand. The first one might in the end succeed to form letters, but he lacks control over his action, and the act is not regarded as a melekhet machashevet; on the other hand, the second one has reasonable control over his action, only it is not his usual manner of writing, so this is merely an exemption in the case of an action that is basically a melakha.
It seems, therefore, that the Ramban and the Ran are right regarding the examples cited in the Gemara in Ketubot 60a, because these are examples of a total change of the melakha. The sick person is not performing an action of detaching (mefarek), but rather one of eating. The Acharonim are also correct in validating a get written with one's left hand, as is implied by the mishna on Shabbat 104b, because writing with the left hand is merely an exemption. We should, therefore, say that where there is suffering or potential loss, we should not permit writing with the left hand, for in that case the rabbinic prohibition we are dealing with does indeed involve an action. So too, there is room to disqualify a get written with one's foot, even if we validate a get written with one's left hand.
We may bring another example from the gemara in Pesachim 66b, which discusses how the knife needed for the slaughter of the paschal offering should be transported when Erev Pesach fell out on Shabbat. The gemara concludes there that the knife should be inserted in the animal's wool or between its horns; this is regarded as carrying in an unusual manner, which when performed for the sake of a mitzva is not forbidden. Here the animal itself is not at all aware that it is carrying anything, as opposed to a donkey with a load on it its back and the like. Here too, we might argue that we would not permit a shinui that merely grants an exemption; the dispensation is based on the fact that the change removes the action from the category of melakha.
Indeed, we may suggest that a terminological distinction should be made between the concept of shinui, "change," which denotes performing a melakha in an unusual manner, and the concept of "ki-le'achar yad," "as if with the back of the hand," which means that there is no performance of a melakha. However, the Rishonim do not make this distinction.
We must note an important comment of the Maharach Or Zarua about shinui which fits in with what we have said above. In a responsum (No. 30) dealing with performing a melakha with a shinui on a festival, the Maharach Or Zarua writes that placing a pot on the fire in an unusual manner does not constitute a shinui, because the cooking itself is done in the usual manner:
It also seems to me that a shinui only helps when the melakha itself is performed in an unusual manner, as in the case of sucking [from an animal's udder], which is [detaching] in an unusual manner, and the like. However, if it was Shabbat and he puts the pot on the fire in an unusual manner, but when [the food] cooks there is no shinui, he would be liable.
What he says here is similar to the distinction presented above, only that he distinguishes between something that is done in preparation of the melakha and the melakha itself. According to him, a shinui in the preparation for the melakha does not exempt when it is merely a stylistic change. Nevertheless, he might agree that if the food was placed on the fire in such a way that the placement of the food would not be regarded as the person's action, we could exempt him based on the law of shinui, for this is no worse than gerama or mitasek. The question might be raised, therefore, whether pressing buttons or the like is regarded as a shinui, for the forbidden action in the electrical circuits is performed in the usual manner. On the other hand, the connection between pressing the button and the electrical action is much closer than that between the placement of the food and its being rendered edible, which will take place much later.
We will, God willing, continue our examination of this issue next time.
(Translated by David Strauss)
* The shiur was given by Rav Mosheh Lichtenstein on Shabbat, Parashat Beha'alotekha, and it was summarized by Barukh Weintraub. [Rav Lichtenstein's comment: Many thanks to Rav Yoel Amital who shared with me a great amount of material that he had collected on this issue.]
 This suggestion is raised by the Acharonim. Personally, I would be concerned that one would have to examine the lineage of a non-Jew who has a "Jewish head" capable of understanding a request to perform a melakha with a shinui. More seriously, one must consider the danger of making the Torah appear ridiculous in the eyes of the non-Jew. A wise person will have the foresight to consider the circumstances.
 Theoretically, there is also a third factor, the result, e.g., melakha she-eina tzerikha le-gufah ("labor not for its own purpose," a concept we will discuss in the text) or a destructive melakha. There is, however, an explicit passage in the Gemara (Shabbat 30a) which states that a melakha she-eina tzerikha le-gufah is forbidden in the case of a sick person who is not in danger. Thus, this possibility is rejected. The Gemara (42a), however, establishes that one may perform a melakha she-eina tzerikha le-gufah in order to prevent damage to the community. This, however, is a special allowance because of the great need, similar to the danger of losing a limb that permits all rabbinic prohibitions. See the Ramban's Torat Ha-adam, Sha'ar Ha-michush (Ed. Chavel, p. 21), where he distinguishes between melakha ki-le'achar yad ("backhanded," see next section) and melakha she-eina tzerikha le-gufah. (See also ibid., pp. 78-79).
 As an illustration, see the disagreement between Rashi and Tosafot whether the principle of kim leih bi-derabba mineih, which states that one can be indicted only for the more serious of two or more crimes committed in one act, applies to a melakha she-eina tzerikha le-gufah (see Bava Kama 35a; Rashi, s.v. Rava; Tosafot, s.v. Matnitin).
 The very distinction between different rabbinic prohibitions is one of the foundations of the Ramban's teachings in Shabbat and appears in several places in his writings. Besides the passage cited above, see also Chiddushei Ha-Ramban 11b, s.v. Amar Abbayei; 94b, s.v. Shara Rav Nachman; 130b, s.v. Ke-sheim; and in Torat ha-Adam, Inyan Mi She-meito Mutal Le-fanav (Ed. Chavel, pp. 76-80).
 See also Beit Shemuel and Peri Chadash ad loc.
 Unless we take into account additional factors, similar to those mentioned in the Gemara cited above, regarding the concern that one come to permit, mistakenly, a melakha that is forbidden by Torah law.