Shiur #7: "Mekalkel be-Chabura"

  • Rav Yair Kahn

 

             In order to properly understand this sugya, we must discuss several broad sugyot in hilkhot Shabbat, such as "melakha she-eina tzerikha le-gufa," "davar she-eino mitkavein," "pesik reisha," and others.  Needless to say, this context does not allow for a comprehensive treatment of all these topics.  It will suffice for us if amidst our study of this sugya we gain an understanding of the basic concepts underlying these halakhot.  Let us therefore begin looking at our sugya with this goal in mind.

 

1.  Davar she-eino mitkavein be-chabura

 

            The Gemara raises the question of relations with a virgin on Shabbat.  According to the first approach, the Gemara is not concerned that a "chabura," or wound, is caused because the blood is "mifkad pakid" - collected and from the outset ready to leave the skin.  According to the second approach, by contrast, the blood is "mechubar" (absorbed in the flesh), thus giving rise to the potential prohibition of chabura, making a bloody wound on Shabbat.  The Gemara's discussion works off the assumption that the man has no intention to make this wound.  Therefore, we can permit the relations according to the view of Rabbi Shimon, who permits on Shabbat a "davar she-eino mitkavein" - an action that may incidentally result in an unintended violation.  The Gemara says: "If you say that he is interested in his own enjoyment, and the blood emerges incidentally, does the halakha follow Rabbi Yehuda [who forbids a davar she-eino mitkavein] or Rabbi Shimon [who permits it]?"  The Gemara then claims that even Rabbi Yehuda might rule leniently in this case, if we consider the wound a negative phenomenon.  The Gemara hinges this claim on a different debate between Rabbi Yehuda and Rabbi Shimon, concerning a case of "mekalkel be-chabura" - the infliction of a wound in a destructive manner: "If you say the halakha follows Rabbi Yehuda, does this constitute mekalkel be-chabura [a destructive wound] or metaken be-chabura [a constructive wound]?  If you say it constitutes mekalkel be-chabura, in a case of mekalkel does the halakha follow Rabbi Yehuda or Rabbi Shimon?"

 

            We see from this discussion mekalkel be-chabura is relevant only if we rule that davar sheino mitkavein is prohibited, however, Rabbi Shimon, who holds one liable in a case of mekalkel be-chabura, would permit a destructive wound in a situation of davar she-eino mitkavein - if the individual intends for another purpose, and has no intention to cause the injury.  This conclusion, however, requires further clarification.  After all, Rabbi Shimon holds one liable not only in a case of mekalkel be-chabura, but also in a situation of "mit'aseik be-chabura" - the incidental infliction of a wound, as opposed to all other melakhot, regarding which halakha exempts a mit'aseik (one who violates incidentally, without any intention to perform the given action as opposed to davar she-eino mitkavein where the act is intentional, mit'aseik deals with a situation in which the act was not intended).  This point is explicitly established in Masekhet Keritut (19b): "Since a mekalkel be-chabura is liable, a mit'aseik be-chabura is likewise liable."  In light of this Gemara, we see that according to Rabbi Shimon, the standard exemptions of hilkhot Shabbat do not apply to the melakha of chabura.  Yet, it emerges clearly from our sugya that Rabbi Shimon's leniency permitting a davar she-eino mitkavein pertains to chabura just as it does to other melakhot.  Tosefot (s.v. "im timtza lomar" - the second) indeed ask why Rabbi Shimon does not hold one liable for davar she-eino mitkavein as he does for mit'aseik, and they offer the following explanation:

 

"A mit'aseik, who intends for the melakha, is exempt on Shabbat only because this does not constitute a melekhet machashevet [intentioned creative activity - a prerequisite for a given action to be considered a Torah violation of Shabbat]; therefore, a mit'aseik be-chabura is liable, according to Rabbi Shimon, just as Rabbi Shimon holds a mekalkel be-chabura liable even though it does not qualify as a melekhet machashevet.  We attribute it to mekalkel, because the reason for both exemptions is the need for melekhet machashevet.  But [in a case of] she-eino mitkavein, the reason why one is exempt is not because of the need for melekhet machashevet, for in other areas [of halakha, besides hilkhot Shabbat], one is also exempt [in a case of] eino mitkavein, such as regarding kilayim, those who sell clothing [and carry the merchandise by wearing them] may sell as usual so long as they have no intention [of wearing the clothing as garments]… A mishna also states, 'A nazir may wash and comb [his hair, despite the fact that some hairs may incidentally come out in the process]'… Therefore, regarding chabura, too, it is permitted." 

 

Tosefot explain that the exemption of davar she-eino mitkavein is not unique to hilkhot Shabbat, a result of the melekhet machashevet prerequisite, and they draw proof from the fact that it applies in all areas of halakha.  Therefore, it pertains even to chabura, event though the requirement of melekhet machashevet which is unique to Shabbat was suspended.

 

            To explain this position, we may claim that in a situation of davar she-eino mitkavein, we do not attribute the aveira act to the individual, since he had intended for a different action.  We indeed find that Rabbi Shimon does not limit the davar she-eino mitkavein exemption to hilkhot shabbat, but applies it to many other areas of halakha as well.  (See Nazir 42a, Kilayim 9:5, and Shabbat 133a).  Wherever an act of aveira is necessary for punishment, davar she-aino mitkavein applies.  In a case of mekalkel, however, nothing is deficient in the aveira act, because in all areas of halakha one is liable for mekalkel; only in hilkhot Shabbat do we exempt a mekalkel because of the melekhet machashevet provision which demands creativity.  When it comes to chabura which is destructive, to which the exemption of mekalkel does not apply, we may attribute this halakha to the fact that chabura does not require the general standard of melekhet machashevet we normally demand in hilkhot Shabbat.  We therefore hold one liable for chabura even under circumstances which would not qualify as a violation for other melakhot, due to a lack of melekhet machashevet.  But the exemption of davar she-eino mitkavein applies in all areas of halakha, since in such a case we do not attribute the action to the individual; even with regard to chabura, therefore, this exemption applies.

 

2.  Malakha she-eina tzerikha le-gufa be-chabura

 

            According to this approach, we must discuss a different provision in hilkhot Shabbat, melakha she-eina tzerikha le-gufa (the definition of which we will soon discuss).  Rashi (Chagiga 10a) attributes this exemption to a lack of melekhet machashevet.  Accordingly, Rabbi Shimon would hold one liable in a case of a chabura caused through melakha she-eina tzerikha le-gufa.  The Gemara in Sanhedrin (84b), however, exempts one who removes a splinter with a needle (thereby causing a chabura) on the grounds of melakha she-eina tzerikha le-gufa.  This would seemingly prove that the melakha she-eina tzerikha provision applies to chabura.  Tosefot in Masekhet Shabbat (75a, s.v. "tefei") indeed raise this question.

 

            In order to resolve this difficulty, we must consider the debate between Rashi and Tosefot as to how to define melakha she-eina tzerikha le-gufa.  Rashi in Masekhet Shabbat (93b) defines it as an unwanted melakha: "It [the violation] did not occur of his own volition, and he did not need it; therefore, Rabbi Shimon does not consider it a melekhet machashevet."  Tosefot (94a, s.v. "Rabbi Shimon poter") cite the Ri who argues on this definition:

 

"It appears to the Ri that a melakha she-eina tzerikha le-gufa is when one performs a melakha but has no need for a purpose similar to the purpose for which it was needed in the Mishkan, but rather for a different matter - for the purpose for which the melakha was performed in the Mishkan constitutes the essence and root of the melakha." 

 

Thus, the melakha she-eina tzerika exemption is rooted in the lack of melekhet machashevet only according to Rashi's opinion.  According to the Ri, by contrast, it relates to the very definition of the melakha prohibited on Shabbat.  Meaning, the Torah forbade this melakha only because of a specific result it yields; therefore, one who performs the melakha for a different purpose has not, according to Rabbi Shimon, violated the Torah prohibition.  Needless to say, Tosefot's question (in Shabbat 75a) regarding chabura presumes Rashi's view, that the melakha she-eina tzerikha exemption is due to a lack of melekhet machashevet.  And indeed, Rashi's position requires explanation in light of the sugya in Sanhedrin.

 

3.  Pesik reisha de-lo nicha lei

 

            To resolve this difficulty, we begin by recalling that Rabbi Yehuda and Rabbi Shimon debate not only the status of melakha she-eina tzerikha le-gufa, but that of davar she-eino mitkavein, as well, a debate that applies to all areas of halakha.  We should note, however, that even Rabbi Shimon holds one liable in a case where a necessary connection exists between the action performed and the forbidden, resultant melakha for which the individual had not intended.  This type of case is called "pesik reisha ve-lo yamut," and the Gemara informs us in many locations that Rabbi Shimon agrees with Rabbi Yehuda in cases of pesik reisha.

 

            The Gemara states in Masekhet Shabbat (103a):

 

"One who picks endives or cuts greens - if [he does so] for [human] consumption, [the amount required to render him liable is] ki-gerogeret [the size of a dried fig]; if [he does this] for animals, [then the minimum amount is] the fill of a goat's mouth; if [he does this] for firewood - the amount needed to cook a light egg; to smooth the ground - any amount.  Do not all of these smooth the ground?  Rabba and Rav Yosef both say: this was said with regard to a swampy area (where there is no benefit in smoothing the ground).  Abayei said: you may even say [that this applies] in a field, and not in a swamp, such as one who did not intend [to smooth the ground].  But did not Abayei and Rava both say: Rabbi Shimon agrees with regard to pesik reisha ve-lo yamut?  Rather, we speak of one who does this in his friend's field." 

 

According to this Gemara, Rabbi Shimon permits the performance of a given action even if it necessarily leads to the smoothing of his friend's field.  Tosefot there (s.v. "be-ar'a") understood that in such a case one does not violate a Torah prohibition because he has no interest in the improvement of the field, thus rendering his action a melakha she-eina tzerikha le-gufa.  The individual performs the melakha but is not interested in the actual melakha itself; according to Rabbi Shimon, such an action is prohibited only on the level of de-rabbanan (rabbinic enactment).

 

            But according to this approach, the exemption applies only according to Rabbi Shimon.  Rabbi Yehuda, who holds one liable for a melakha she-eina tzerikha le-gufa, would hold one liable in a case of pesik reisha even if the individual has no interest in the melakha itself.  Not all Rishonim, however, can accept such a conclusion, since some Rishonim, such as the Rambam, follow Rabbi Shimon's ruling only with regard to davar she-eino mitkavein, while accepting Rabbi Yehuda's position concerning melakha she-eina tzerikha le-gufa.  How, then, can the Rambam explain this sugya?

 

            According to many commentaries, the Rambam follows the position of the Arukh, who argues on the Ri and permits a pesik reisha if the individual has no interest in the melakha performed.  Tosefot in our sugya (6a, s.v. "hai mesukhraita") write: "Here [in the case of the plug in the barrel], Rabbenu Tam says, one cannot say it is forbidden on grounds of mefarek [extracting an item from within another], because that which is squeezed [from the cloth plug] goes to waste, even though this is a pesik reisha.  Indeed, the Arukh explained that any pesik reisha in which one has no interest is permitted."  Clearly, according to the Arukh, one who performs a pesik reisha with no interest in the resultant melakha is not exempt on grounds of a melakha she-eina tzerikha le-gufa - which is still forbidden mi-de-rabbanan.  In order to understand the underpinnings of this debate between the Arukh and the Ri, we must first deal with the difference between a melakha she-eina tzerikha le-gufa and davar she-eino mitkavein.

 

4.  The difference between davar she-eino mitkavein and melakha she-eino tzrikha le-gufa

 

            We cite in this context the illuminating comments of the Kessef Mishneh (Hilkhot Shabbat 1:7): "I found written that the difference between a melakha she-eina tzerikha le-gufa and pesik reisha ve-lo yamut is that in a case of pesik reisha, one does not have the melakha in mind at all; it rather occurs inevitably.  For example, one closed the door to his house and there was a deer inside.  He did not intend to trap the deer, but the melakha came about necessarily.  But in a melakha she-eina tzerikha le-gufa, he intends for the actual melakha, only he does not intend for its purpose."  We may explain that in a melakha she-eina tzerikha le-gufa, the individual intends to perform the melakha, only he has no interest in the purpose the Torah assigned to that given melakha.  For example, one who digs a ditch because he needs the earth, has every intention to perform the melakha of chafira (digging), only his purpose involves not the ditch, the essence of the melakha, but rather the earth.  In a davar she-eino mitkavein, the individual has no intention even to perform the given melakha; he intends to perform a different action entirely.  Therefore, dragging a bench and as a result creating a ditch qualifies as a davar she-eino mitkavein, since he had no intention to dig at all, but rather to perform a different action - dragging.  According to this distinction, the issue in a melakha she-eina tzerikha le-gufa relates to the result of the melakha, a consideration unique to hilkhot Shabbat; the melakha act, however, is perfectly valid.  In a davar she-eino mitkavein, by contrast, the problem involves the melakha act, which, as we explained, cannot be attributed to the individual, and this exemption therefore applies in all areas of halakha, not merely hilkhot Shabbat.

 

            Tosefot (s.v. "im timtza lomar" - the first) suggest according to one answer that no prohibition exists at all in a case of both mekalkel and davar she-eino mitkavein, despite the fact that Rabbi Yehuda prohibits each one independently.  In light of what we have seen, we may provide the following explanation of this view.  In mekalkel, the problem lies in the result of the melakha; nevertheless, since a complete melakha act has been performed, a rabbinic prohibition exists.  By contrast, in a davar she-eino mitkavein, the problem lies in the melakha act, but so long as the person is interested in the action's result, we cannot necessarily identify any deficiency in the result; therefore, the rabbis forbade such an action.  But when we combine mekalkel together with davar she-eino mitkavein, we have neither a proper melakha act nor a result; hence, it cannot be forbidden.

           

5.  Pesik Reisha

 

            Now let us consider what happens in a case of pesik reisha - when a given action inevitably leads to a melakha.  Perhaps, in such a situation we cannot claim that the individual had no intention for the melakha act.  After all, he knew full well that the given action would inevitably result in the melakha, and therefore he must have had the melakha in mind.  This perspective, however, does not explain the view of the Ran in Masekhet Chulin (32a in the Rif), that the halakha of pesik reisha does not apply to issurei hana'a (situations where halakha prohibits the deriving of a certain benefit).  If we assume that in a case of pesik reisha the individual intended to derive the forbidden benefit, he clearly must be held liable regarding issurei hana'a as well.  Undoubtedly, then, the Ran understood this halakha of pesik reisha differently.

 

            In order to explain the Ran's position, we suggest that when an inevitable link exists between the two actions, we cannot distinguish between the two.  As far as halakha is concerned, we have here not two different actions, but rather a single action with two outcomes.  Thus, the halakha of pesik reisha means the streamlining of two different actions and their merger into a single act.  But this occurs only when we indeed deal with two distinct actions.  Regarding issurei hana'a, however, it may very well be that one is not liable for the action of deriving benefit; rather, the benefit itself constitutes the essential prohibition, but one is liable only when one benefits from the issur directly.  When, however, the benefit is derived indirectly, one is exempt from punishment (see Pesachim 25b).  Therefore, in the case of pesik reisha, one derives the benefit indirectly and hence earns an exemption.  Since we do not have two actions to merge into one, we cannot view the benefit as occurring directly.

 

            According to the understanding of pesik reisha as the union between two actions, we see the violator as having performed the melakha directly.  If he has no interest in the consequent melakha ("lo nicha lei"), then we consider the melakha a melakha she-eina tzerikha le-gufa, and is thus forbidden mi-de-rabbanan, according to the Ri.  One can accept the view of the Arukh only if pesik reisha does not merge the two actions, but rather leaves them distinct and separate.  Pesik reisha is forbidden according to the Arukh because the individual has the melakha act in mind, knowing that it will inevitably result from his action.  Quite possibly, according to this perspective, the pesik reisha provision applies only in a case of nicha lei - when the individual has interest in the resultant melakha.  Otherwise, in a situation of lo nicha lei, we may claim that he does not have the melakha in mind despite his knowledge of its inevitable occurrence.  Since he has no interest in this result, the pesik reisha has no effect and his action remains a standard davar she-eino mitkavein, which is permitted.

 

            Finally, we should note that Chazal were not always precise with their terminology; at times they employed the term "davar she-eino mitkavein" in reference to a melakha she-eina tzerikha le-gufa.  This appears to be the case in Masekhet Keritut (20a):

 

"One who stirs coals on Shabbat must bring a sin-offering.  Rabbi Shimon Ben Elazar says in the name of Rabbi Eliezer be-Rabbi Tzadok, he must bring two - because he extinguishes the upper [coals] and kindles the lower [coals]… Rav Ashi says, [this debate refers to a situation] such as if he intended to extinguish but they kindled by themselves.  The first view follows Rabbi Shimon's position, that one is exempt for a davar she-eino mitkavein; Rabbi Eliezer be-Rabbi Tzadok follows Rabbi Yehuda's position, that one is liable for a davar she-eino mitkavein." 

 

Tosefot raise a question on this Gemara that Rabbi Yehuda prohibits a davar she-eino mitkavein only on the level of de-rabbanan.  In Masekhet Keritut, however, the Gemara appears to apply Rabbi Yehuda's position on the level of a Torah prohibition - claiming that he would require a sin-offering for a davar she-eino mitkavein!  Tosefot answer as follows: "Here the reason is because of melakha she-eina tzerikha le-gufa, and Rabbi Yehuda and Rabbi Shimon follow consistently their respective opinions.  When the Gemara attributes the reason to davar she-eino mitkavein, it actually refers to melakha she-eina tzerikha le-gufa."  In truth, according to the aforementioned position of the Ri, we could claim that we deal here with a pesik reisha de-lo nicha lei, which has the status of a melakha she-eina tzerikha le-gufa.  But even so, this Gemara would still pose a difficulty, since, when all is said and done, the relevant debate between Rabbi Yehuda and Rabbi Shimon concerns melakha she-eina tzerikha le-gufa, and not davar she-eino mitkavein.  However, according to the Arukh, the Gemara is clearly imprecise in utilizing the term davar she-eino mitkavein although referring to melakha she-eina tzrikha le-gufa.  This emerges as well from the continuation of the sugya, which deals explicitly with the halakha of melakha she-eina tzerikha le-gufa:

 

"If one stirs coals on Shabbat to warm himself [through the act of stirring], and they lit by themselves - one berayta reads, 'he is liable'; another reads, 'he is exempt.'  The berayta which reads 'he is liable' holds that one is liable for a melakha she-eina tzerikha le-gufa; that which reads 'he is exempt' holds that one is exempt for a melakha she-eina tzerikha le-gufa." 

 

This implies that the action of stirring the coals constitutes an act of hav'ara (kindling, a forbidden melakha on Shabbat), and thus one who does so in order to warm himself resembles one who digs a ditch in order to collect earth; meaning, he performs the melakha for a different purpose.  The same halakha would thus apply to one who stirs coals in order to extinguish them and they ignite by themselves.

 

            At this point we may return to the sugya in Sanhedrin which appears to exempt one who causes a chabura through a melakha she-eina tzerikha le-gufa.  We asked, since we do not apply to the melakha of chabura those exemptions resulting from the need for melekhet machashevet, how can we explain this exemption according to Rashi's view, attributing the halakha of melakha she-eina tzerikha to melekhet machashevet?  In light of what we have seen, we may easily claim that the sugya there refers not to melakha she-eina tzerikha le-gufa, but rather to pesik reisha de-lo nicha lei.  After all, removing a thorn and making a wound are two separate actions.  Since the person intends only to remove the thorn, we consider the extraction of blood a davar she-eino mitkavein; given the inevitability of the appearance of blood once the thorn is removed, this case classifies as a pesik reisha.  But the Gemara there speaks of a melaka she-eina tzerikha le-gufa - apparently supporting the position of the Ri, identifying pesik reisha de-lo nicha lei as a melakha she-eina tzerikha le-gufa.  According to the Arukh, we must claim that in truth the Gemara there refers to davar she-eino mitkavein, specifically a pesik reisha de-lo nicha lei, but employed imprecise terminology.  If, indeed, we speak here of a davar she-eino mitkavein, an exemption that does not stem from melakhet machashevet, then we may apply the exemption even to chabura, as the problem lies in the melakha act itself, not in the need for melekhet machashevet.  (However, Rashi himself, in Sanhedrin, explains the Gemara as referring to a melakha she-eina tzerikha le-gufa.  Accordingly, we must therefore distinguish between the different exemptions involving melekhet machashevet.)

 

Summary:

 

            The category of melakha she-eina tzrikha le-gufa applies when there is only one act which engenders two results.  The intended result is one which the Torah did not consider as a creative act prohibited on Shabbat and thereby exempts the person based on a requirement of melekhet machashevet which is unique to Shabbat.  Similarly the exemption of mekalkel is rooted in melekhet machashevet.

 

            In contrast the exemption of devar she-eino mitkavein applies when one act leads to the incidental performance of a secondary act.  Since the secondary act was not intended the halakha does not view the person as having performed it.  Therefore, this exemption can be applied in all areas where the act of aveira must be related to the person.

 

            When the incidental act inevitably flows from the primary act then the exemption of davar she-eino mitkavein does not apply.  This case known as pesik reisha can be explained in two ways:

 

1.  The incidental act was intended.

2.  The two acts in this context are inseparable and merge into one.

 

If we accept the first explanation then this may not apply to pesik reisha de-lo nicha lei.  Since the incidental act is unwanted there is no basis to assume intention despite its inevitability.  Accordingly we may consider pesik reish de-lo nicha lei as equivalent to devar she-eino mitkavein which is permitted.

 

            According to the second explanation only one act is performed.  Nevertheless, since the incidental occurrence is unwanted it is paramount to a melakha she-eina tzrikha le-gufa and is therefore prohibited according to rabbinic law.

 

SOURCES AND QUESTIONS FOR NEXT WEEK'S SHIUR:

 

Sources 1 and 2 below deal with the foundations of the halakha of "mi-tokh."  Analyze the dispute between Rashi and Tosefot, and see if you can determine the fundamental point of disagreement.

 

1.  Ketubot 7a -  "Rav Yehuda… ," Rashi, Tosefot, and Shita Mekubetzet s.v. "vz"l shita yeshana."

2.  Beitza 12a - mishna, Gemara and Tosefot; Beitza 21b - mishna: "Bet Shammai omrim…" Ran on the mishna (6a in the Rif); Ran on the Rif - Beitza 9b: "Lefikhakh nir'eh li… "

 

3.  Kiddushin 21b - "Iba'i lehu kohen mahu be-yefat to'ar."

4.  Tamid 31b - end of page, Peirush ha-Ra'avad - "Be-Menachot perek ha-tekhelet" until the colon.

 

When studying sources 5 and 6, determine how the Rambam and Ramban understood the permission granted on Yom Tov to prepare food.

 

5.  Rambam - Hilkhot Yom Tov 1:1-4, Magid Mishneh on halakha 4.

6.  Ramban's commentary to the Torah - Vayikra 23:7: "Aval peirush melekhet avoda… zeh leshono"; "ve-nir'eh li ki avoda… " until the end of the section.

 

 

Translated by David Silverberg