Shomer Peta'im Hashem - "The Lord Preserves the Simple," Part 1
TOPICS IN HALAKHA
SHOMER PETAIM HASHEM THE LORD PRESERVES THE SIMPLE, PART I
HaRav Yehuda Amital, zt"l
Even though a person it is forbidden for a person to place himself into a situation of danger, and this may even be prohibited by Torah law, as will be clarified below, we find instances where Chazal granted an allowance to enter into a perilous situation, based on the verse, "Shomer peta'im Hashem," "The Lord preserves the simple" (Tehillim 116:6). This notion appears in several Gemarot.
The Gemara in Avoda Zara (30b) deals with regulations related to the danger of snake venom, and says: "The opening of a fig does not come under the rules relating to [liquids] left uncovered . For it has been taught: Rabbi Eliezer says: One may eat grapes and figs at night without suspecting any harm, for it is stated: 'The Lord preserves the simple.'" And in Nidda (31a) we read: "It was taught: He who indulges in marital intercourse on the ninetieth day [of pregnancy] is as though he had shed blood. But whence could one know this? Rather, Abaye said: One carries on marital intercourse in the usual manner and 'the Lord preserves the simple.'" And in Yevamot (72a): "Rav Pappa said: Hence, no circumcision may be performed on a cloudy day or on a day when the south wind blows; nor may one be bled on such a day." And the Gemara adds: "At the present time, however, since many people are in the habit of disregarding these precautions, 'the Lord preserves the simple.'" And similarly in Shabbat (129b): "He who possesses ancestral merit may let blood on Monday and Thursday, because the Heavenly Court and the human court are alike then. Why not on Tuesday? Because the planet Mars rules at even-numbered hours of the day." There too the Gemara adds: "But on Friday too it rules at even-numbered hours? Since many people are in the habit of disregarding this precaution, 'the Lord preserves the simple.'"
A question may be raised regarding this allowance: Is the permit based purely on the fact that many people disregard the relevant precautions though the danger remains, or does the fact that many people disregarding the precaution defined the situation as one that does not pose a danger? This question might have practical ramifications regarding a person who does not want to rely on the principle of shomer peta'im. Regarding such a person, do we consider the situation as one of danger which can set aside a mitzva or a prohibition because of possible piku'ach nefesh (saving a life), or do we say that the situation is free of all danger to life? Another practical ramification relates to the question whether reliance on shomer peta'im is considered proper and recommended behavior, for in such a case there is no danger, or whether pious conduct demands that one not should rely on it. This question depends on what the Terumat ha-Deshen writes (no. 211, cited by the Bet Yosef, Even ha-Ezer, no. 9) regarding marrying a woman whose was widowed twice:
The matter requires further study, whether the principle of shomer peta'im applies to a Torah scholar who knows and recognizes, and is regarded as distinguished in his generation. And even regarding an ordinary person it is difficult to issue an allowance, as there is concern about danger.
The implication is that according to the Terumat ha-Deshen, since it is appropriate for a Torah scholar to refrain from relying on the principle of shomer peta'im, he clearly maintains that the danger continues to exist, only that shomer peta'im allows a person to enter into that danger. It should be noted, however, that the Terumat ha-Deshen implies that it is only about a scholar who is "distinguished in his generation" that we say that it is fitting that he refrain from relying on shomer peta'im.
A commonly asked question is whether one is permitted to expose oneself to some remote danger for the sake of a pleasure trip or some other optional activity. Regarding this matter, Rav A.Y. Kook wrote to his son R. Tzvi Yehuda (Iggerot Ra'aya, III, no. 852, p. 132):
Regarding an excursion in a place where there is even a remote concern about danger, God forbid, I have already expressed my opinion, I believe in one of our letter exchanges, that it is not proper.
The Iggerot Moshe (Orach Chayim II, no. 59), on the other hand, implies that under such circumstances one is permitted to expose oneself to the danger:
So too when a person goes off on a journey where the possibility exists that he will be exposed to a certain danger, but nevertheless he decides to go for some necessary purpose or even for pleasure this is permitted with respect to the issue of possible danger, because it is a very remote danger
This question arises even beyond the context of shomer peta'im. If an individual is worried about some danger that people don't generally worry about, e.g., he wants to raise the security level at his house or in his community, more than is commonly accepted is it permitted for him or others to desecrate Shabbat because of this concern (to turn on a light, to send out an additional security vehicle, or the like)? On the other hand, one may ask: What is the level of danger beyond which one is forbidden to enter? Is the same criterion of danger for which one may desecrate Shabbat to be applied to determine what is considered a danger to which one is forbidden to expose oneself? Or can we distinguish between piku'ach nefesh with respect to mitzvot and the definition of danger with respect to the prohibition to endanger oneself, and say that one is permitted to expose himself to certain dangers for which one would be permitted to desecrate Shabbat?
Logically it might be argued that the rationale underlying all the above-mentioned talmudic passages is that "many people disregard those precautions," even where this rationale is not explicitly mentioned, with the fact that many people disregard those precautions proving that there is no danger in those situations. This is implied in the words of the Rosh (Avoda Zara, chap. 4, no. 7):
Nevertheless, there is reason for leniency regarding [wine touched by] gentiles in our time, since they do not intend to dabble [in the wine] whatsoever. And furthermore, since non-Jews do not offer libations in our times, an allowance should be granted. This is similar to exposed liquids, about which we are not concerned, because snakes are not common among us. [This is true] even though this is not absolute proof, for libations was a decree enacted by a quorum, and another quorum is needed to permit it, even though the reason no longer applies. And it is not like exposed liquids, where the prohibition was enacted only because of the danger, and they made no decree for in a place where there is no danger. And regarding many matters we do not take precautions, as it is stated: "The Lord preserves the simple."
Note that the Rosh proves from the fact that there are numerous matters where we do not take precautions that there is no need to be concerned about matters where the reason for the prohibition no longer applies. Thus, it is clear that he understood that the principle of shomer peta'im allows a person to expose himself to apparent danger, because it is not considered to be a danger, just as we are not concerned about exposed liquids, because snakes are not common among us. On the other hand, in the next shiur we shall discuss in detail the passage in Ketubbot (39a) regarding women who may use an absorbent during sexual relations, where the Gemara's wording seems to imply otherwise. The Gemara there states: "And mercy will be vouchsafed from heaven, as it is stated, 'The Lord preserves the simple,'" which implies that a danger exists, but that we rely on the principle of shomer peta'im nonetheless.
It seems that the question whether the principle of shomer peta'im permits a person to expose himself to danger, or merely defines such a situation as one that does not involve danger, depends on the source of the prohibition to expose oneself to danger. If the prohibition is by Rabbinic decree, it may be suggested that in a situation of shomer peta'im, Chazal permit a person to expose himself to danger. But if the prohibition is from the Torah, we must say that shomer peta'im does not permit a Torah prohibition, but rather it states that such a situation is not defined as one of danger.
The Rambam writes (Hilkhot Rotze'ach u-Shemirat ha-Nefesh 11:4):
[The requirement to build a guardrail] applies to a roof and to any place that might present a danger and cause a person to stumble and die. For example, if a person has a well or a cistern in his courtyard, he must erect embankment ten handbreadths high around it or make a cover for it, so that a person will not fall in and die.
Similarly, it is a positive mitzva to remove any obstacle that could pose a danger to life, and to be very careful regarding these matters, as it is stated (Devarim 4:9): "Take heed to yourself, and keep your soul diligently." If a person leaves a dangerous obstacle and does not remove it, he negates the observance of a positive commandment, and violates the negative commandment: "Do not cause blood to be spilled" (Devarim 22:8).
It would seem that, according to the Rambam, one is obligated by Torah law to take precautions against any danger to life. On the other hand, in the next two halakhot (5-6), he writes:
Our Sages forbade many matters because they involve a threat to life. Whenever a person transgresses these guidelines, saying: "I will risk my life, what does this matter to others," or "I am not careful about these things," he should be punished by lashes for rebelliousness. They include: A person should not place his mouth over a conduit through which water flows and drink. Nor should he drink at night from rivers and lakes, lest he swallow a leech without seeing. Similarly, a person should not drink water that was left uncovered, lest a snake or other poisonous crawling animal might have drunk from them, and as a result, the person would die.
It may be asked: What is the difference between the things mentioned in halakha 4, which are forbidden by Torah law, and the things mentioned in halakhot 5-6. which are forbidden only by Rabbinic decree? The distinction may be understood in two ways: 1) It is possible that the prohibition to endanger others is by Torah law, but the prohibition to endanger oneself is only by Rabbinic decree. 2) To endanger oneself is also forbidden by Torah law, but the Sages spelled out certain cases that are included in this prohibition due to the higher degree of danger involved, while those cases mentioned in halakhot 5-6 are forbidden only by Rabbinic decree, since the danger involved in them is of a lesser degree.
The Be'er ha-Gola (Choshen Mishpat 427:10) cites a dispute as to whether the prohibition to expose oneself to danger is by Torah law or by Rabbinic decree. The Tevu'ot Shor (13:2) quotes from the Levush in Yoreh De'a (116:1) that the prohibition is Rabbinic in origin. It would seem that the reference is to what the Levush says there:
The verse states: Take heed to yourself, and keep your soul diligently (Devarim 4:9), and it says: Take good heed to yourselves (ibid. v. 15). These formulations imply that a person must take care of himself, so as not to bring himself to danger. Even though this is not the plain meaning of these verses, nevertheless Chazal relied on these verses and forbade all things that bring a person to danger.
The plain meaning of this citation indeed supports the Tevu'ot Shor's understanding that according to the Levush, that the prohibition to endanger oneself is by Rabbinic decree. However, the Levush in Choshen Mishpat (426:11) states explicitly that whenever a person transgresses these guidelines, saying: "I will risk my life, what does this matter to others," or "I am not careful about these things," he is punished by lashes for rebelliousness, for he has transgressed a Torah prohibition, as it is written: "Take heed to yourself, and keep your soul diligently." A comment of the Sema also implies that this is a Torah prohibition. Regarding the Shulchan Arukhs statement on this topic (427:9): "Our Sages forbade many matters," the Sema writes: "As it is written: 'Take heed to yourself, and keep your soul diligently.'" On the other hand, see the Darkhei Teshuva (Yoreh De'a 116:57), who cites Acharonim who maintain that the prohibition to expose oneself to danger is Rabbinic in origin. He also writes that the Levush changed his position on the matter, and he cites the Shem Aryeh who distinguishes between the danger of a threatening wall or a shaky bridge, where the prohibition is from the Torah, and the things that the Rabbis forbade which are only possible dangers, and are like other Rabbinic prohibitions.
It stands to reason that the prohibition to expose oneself to danger is only by Rabbinic decree, because the source that the Rambam cites for the prohibition, "Take heed to yourself, and keep your soul diligently," does not deal with protecting one's body, but rather it warns against forgetting what happened at Mount Sinai. See Minchat Chinnukh (mitzva 546, s.v. od katav ha-Rambam), who raises this objection. Furthermore, the Rambam here treats this verse as a positive commandment, whereas the Gemara treats this verse in various places as a negative commandment regarding other laws. See Menachot (99b), where it is the source of a prohibition regarding one who has forgotten some of his learning, and Shevu'ot (36a) where it teaches a prohibition regarding one who pronounces a curse on himself. Indeed the Rambam himself (Hilkhot Sanhedrin 26:3) rules that one who curses himself receives lashes, based on this same verse.
Thus, it seems that this verse is a negative commandment and not a positive one (though it should be noted that it may be that the prohibition to curse oneself is really a function of the prohibition to curse another person, and the derivation from this verse is only an asmakhta, a source of secondary support). It is possible that the Rambam does not mean that one who endangers another person transgresses the positive commandment of "take heed to yourself," for that verse is merely an asmakhta; rather, the person transgresses the positive commandment to build a railing. Indeed, the Rambam in his Sefer ha-Mitzvot does not count "take heed to yourself" as a separate commandment.
Yet, we find support in the Gemara for using this verse in connection with a threat to life. The Gemara in Berakhot (32b) states:
Our Rabbis taught: It once happened that a certain pious man was praying by the roadside, when an officer came by and greeted him and he did not respond to the greeting. So he [the officer] waited for him until he had finished his prayer. When he had finished his prayer he [the officer] said to him: Fool! Is it not written in your Torah: "Only take heed to yourself and keep your soul diligently," and it is also written: "Take you therefore good heed of yourselves?
One could claim that this was the mistaken understanding of the gentile. However, this cannot be dismissed entirely, for we find that one of the Rishonim included the commandment of "take good heed to yourselves" as the source for piku'ach nefesh (Tashbetz Zohar ha-Raki'a 118).
(Translated by David Strauss)
 This question is particularly relevant to those situations in which people disregard precautions, even though the dangers are well-known, e.g., smoking cigarettes, which all agree poses a danger to one's health. Here we can use the argument of shomer peta'im only if we say that it provides an allowance to enter into danger (the first approach), but it cannot be used if we say that it defines the situation as not dangerous (the second approach).
 See the responsum there where he utilizes this distinction to reconciles a discrepancy between the Yerushalmi and the Bavli. See also Beiur ha-Gra, Orach Chayim, 531:4, and Damesek Eliezer, no. 8. It seems that Rav Kook is of the same position as the Vilna Gaon on this matter.
 As for the question whether or not one is obligated to save a person who intentionally entered himself into a dangerous situation, see Even ha-Ezel, Hilkhot Yesodei ha-Torah 5:9, regarding the Rambam's ruling about a man who is love-sick with a woman and the doctors say that he has no remedy but to engage in sexual relations with her, that he should be allowed to die rather than engage in sexual relations with her. The Mirkevet ha-Mishneh writes that this is because he brought the problem upon himself. The Even ha-Ezel argues that this explanation does not suffice, because now he is in danger. See also R. Y. Kutner, Yeshu'ot Yisrael (Choshen Mishpat, no. 21, 1).
 He says this in the name of the Bet Yosef (Yoreh De'a 116), who cites a dispute as to whether the prohibition is by Rabbinic decree or by Torah law, but it should be noted that the discussion there is related to the prohibition of "bal teshaktzu," regarding eating foods that are loathsome. See Shem Aryeh, Yoreh De'a 27, cited by Darkhei Teshuva 116:57.
 This approach is taken in Responsa Rabbi Azriel Hildesheimer (II, Even ha-Ezer, Choshen Mishpat and Milu'im, no. 184): "That a person must not endanger himself is only a Rabbinic prohibition, as is explained by the Rambam, Hilkhot Rotze'ach 11:5, and Shulchan Arukh, end of Choshen Mishpat."
 The Vilna Gaon (Beiur ha-Gra, Shulchan Arukh, Choshen Mishpat 427:6) cites this Gemara as the Rambam's source.