Tuesday, June 9, 2015

Shlach, Bamidbar 15:35. Kashering Chillul Shabbos

This was originally posted in 2011.  I am re-posting because of an important addition, number VI below.

Synopsis:
Doing Melacha on Shabbos is a capital aveira.  But doing melacha to save a life is not only allowed, it is a mitzva.  Two questions arise.  Why doesn't the rule of Ho'il allow all melacha on Shabbos since the fruit of the melacha might be used for a sick person?  Also, even assuming that Ho'il does not allow melacha on Shabbos, what if a person was intentionally mechallel Shabbos, but in fact the fruit of his melacha was needed for and used by a sick person?  Would this retroactively kasher/excuse his chillul Shabbos?

If you're looking for chizuk in hashkafa or mussar, this is not it, but you could go to here or here.

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Our parsha tells us of the M'kosheish, a man that openly and rebelliously was mechallel Shabbos, and that he was found guilty of this crime and executed.


Chillul Shabbos is a capital aveira. The punishment is not merely theoretical, it can actually be carried out where there was hasra'a and zadon. There are two fundamental questions about what might excuse a mechallel Shabbos be'meizid.


I

Question one: 
While it is permitted to cook on Yomtov for a Yomtov meal, it is prohibited to cook on Yomtov in preparation for a weekday meal.  The rule called "Ho'il" relaxes this prohibition, because even though he intends to use the food for the weekday meal, if unexpected guests were to come on Yomtov, he would serve what he cooked to his guests on Yomtov, so the cooking is viewed as if it were for Yomtov use..  Ho'il allows us to say that as long as guests could possibly come, the issur of Yomtov is removed.  We don't care if guests actually come or not: as long as they could come, and there is a potential that the cooking you are doing on Yomtov will be needed for Yomtov, you're off the hook.  The issur of cooking on Yomtov for a weekday only applies, then, if you cook right before the end of yomtov, when it is impossible for guests to come and eat.

Pikuach Nefesh is Docheh Shabbos.  If there were a sick person who needed whatever the Mekosheish was being mekosheish, it would be muttar- indeed a mitzvah- to do it.  So why don't we apply the rule of Ho'il?  As long as what the mechallel Shabbos is doing might possibly be necessary to save a choleh, he should be pattur.

Tosfos asks this question in two places.  
First, it's important to see the Gemara in Menachos 64a
דאיתמר שמע שטבע תינוק בים ופרש מצודה להעלות דגים והעלה דגים חייב להעלות דגים והעלה דגים ותינוק רבא אמר חייב ורבה אמר פטור ועד כאן רבה לא קא פטר אלא כיון דשמע אמרי'  נמי דעתיה אתינוק אבל לא שמע לא ואיכא דאמרי א"ל היינו פלוגתייהו דרבה ורבא דאיתמר (לא) שמע שטבע תינוק בים ופרש מצודה להעלות דגים והעלה דגים חייב להעלות דגים והעלה תינוק ודגים רבה אמר פטור ורבא אמר חייב רבה אמר פטור זיל בתר מעשיו ורבא אמר חייב זיל בתר מחשבתו 

A.  In Menachos 64a Tosfos DH Le'haalos he says
להעלות  דגים והעלה דגים ותינוק:  לא דמי לאופה מיו״ט לחול דבפרק אלו  עוברין דפטרינן מטעם הואיל ומקלעי ליה אורחין ונימא  הכא נמי הואיל ופטר ליה אתינוק פטור נמי אדגים דהתם הוא דאפייתו חזיא לצורך יו״ט אבל הכא צידת דגים לא חזיא בשבת
He seems to mean that ho'il only helps when there is one act and one result, but if the one act had two results, and one of the results is not excused by the ho'il, then he is chayav.

B.  In Pesachim 46b Tosfos says 
א"כ ביטלת כל מלאכת שבת הואיל וראוי לחולה שיש בו סכנה וי"ל  כיון דלא שכיח כלל לא אמרינן הואיל
Here, Tosfos simply says that ho'il won't work where the excuse-event is extremely unlikely.  This is similar to the Tosfos' (Gittin 33a) teretz on hasra'as safek because you might be sho'eil.

The two teirtuzim are completely different and have different ramifications le'halacha.


II
Question two:
Let's assume that Ho'il does not apply to Melacha on Shabbos.  Even so, there ought to be a way to kasher chillul Shabbos.
If a person was willfully mechallel Shabbos, and as it turned out, the fruit of his chillul Shabbos was actually needed to save someone's life, such that if he hadn't done the melacha, it would have been a mitzva to do it, is he pattur?  Does this circumstance, which the malefactor was not aware of but which did exist at the time of the chillul kasher his chillul Shabbos, or does pikuach nefesh require awareness of the hetter to be invoked?  Is unwitting pikuach nefesh docheh Shabbos?



PLEASE note that Questions one and two are different.  Question one is why doesn't ho'il patter chillul Shabbos: in other words, regardless of whether the fruit of the melacha was needed, the possibility that it might be needed is enough to allow bishul on Yomtov, and so why doesn't the possibility it might be needed for pikuach nefesh allow most melachos on Shabbos.  Question two is, assuming there's no din of Ho'il on Shabbos, what if in fact someone ran into the house of the mechallel Shabbos and said "Baruch Hashem you cooked soup, because Shmerel the Choleh is dying for chicken soup!"  Would this excuse the sheigitz that cooked the soup?

The discussion among the Achronim regarding Question two is as follows.

A.  Rav Yosef Dovid Zintsheim (in his Yad Dovid on Menachos, available from Machon Yerushalayim,) writes that this hangs on the Machlokes Rabba and Rava in Menachos 64a (that we brought down in Section I,) and that according to Rabba, if you end up using the cooked food for the sick person, the chillul Shabbos will be kashered.  In other words, it will lemafrei'a not be called chillul.

B.  Reb Meir Simcha (Ohr Sameiach 2 Shabbos 16) modifies this slightly, and says that Rabba in the Gemara in Menachos is only saying he's pattur from Skila, that there won't be missas beis din, but certainly the person needs kapara no less than the woman in "va'hashem yislach lah," in Nazir 23a, where the Gemara says that a person who thought the food was treif and ate it anyway, and it turned out it was kosher, this person needs kapara and even is chayav Makkas Mardus.

C.  Reb Meir Don Plotzki (Kli Chemda in Vayechi) says that Rabba in the Gemara in Menachos is only saying he does not/can not bring a Korban for a Shogeig, but even Rabba agrees that the malefactor is chayav Missas Beis Din, or at least Kareis. 

What a difference between Reb Meir Simcha and RMDP!

D.  Reb Elchonon in Kovetz Shiurim Pesachim 193, to Daf 46b, and the Meiri he brings there, who says that even according to Rav Chisda, who doesn't hold of Ho'il, if guests do show up he's pattur; the same would apply to Shabbos and Pikuach Nefesh.  (Don't tell me that there's a difference between cooking on Yomtov and pikuach nefesh on Shabbos.  The Gemara in Pesachim 47b makes it clear that the rationale of Ho'il applies to cases of Dechiya.)  In any case, Reb Elchonon disagrees with the Meiri.

III
Question two has an interesting permutation.  Borer, separating good from bad, is muttar only if you are going to eat/use the good now.  If you are putting it away for another time, e.g., you are being borer Friday night for use at Seuda Shlishis, that is pure Borer and is Chillul Shabbos.  Reb Yosef Chaim of Baghdad (Rav P'alim OC 1:12) discusses a case where the person was borer good from bad to eat later, but then he changed his  mind and ate it right away.  Pattur or Chayav?  Also, what if he was borer to eat right away, but then didn't.  Pattur or Chayav?  You can see that the issue is similar.

A.  Rav Yosef Chaim says that all that matters is what he was intending when he did the breira.  Unlike Yomtov, there is a din of M'leches Machsheves on Shabbos.  This rule can apply to say that if he did the melacha with the intent that is part of the definition of the melacha, then it is a melacha, and nothing that happens later will change that.  Furthermore, this case is not exactly like the Gemara in Menachos.  In Menachos, what he did was an act that was muttar, although he did not know it.  Here, the act is assur.  What he does later does not change the nature of the act retroactively.

B.  He says that if not for this answer, we would have a conundrum.  How can any borer be chayav when the rule of Ho'il would say that since he might eat it right away, it should be muttar whether he does or doesn't eat it now.  Tosfos in Pesachim will not help us, because this is obviously not uncommon.  We must say, therefore, that Ho'il is totally inapplicable to Shabbos, because the rule of M'leches Machsheves defines the melacha on the basis of intent, irrespective of what he could have planned and what might happen.

C.  I have a little trouble understanding what he is saying.  As I understand it, the cases where Boreir is muttar are based on Derech Achila.  Derech Achila requires intent at that moment.  If the intent was not as Derech Achila, nothing you do later will matter.  Conversely, if the intent was Derech Achila, it doesn't matter whether you ate or did not eat.  

IV
There was a Rov in Chicago many years ago by the name of Rabbi Yosef Kagan.   He was a grandson of the Chafetz Chaim, whose daughter married a man named Kagan, just like her own name.  He was a great talmid chacham, but was not the type to seek out people to talk to.  In 1961 he printed a little sefer called עיוני הלכה והגיונות, and one of the divrei Torah is on our sugya.  He also talks about how Meleches Machsheves plays out in the Gemara in Menachos.  He reads the following into the Binyan Shlomo: that even Rava who holds that one who caught fish and saved a drowning child is chayav, that is only when he intended to catch fish and he caught fish, and the child was not what he had in mind.  Only then does Rava hold that Meleches Machsheves makes him chayav.  But if he cooked something to eat on Shabbos, and it turned out to be needed by a choleh, everyone would agree that he is pattur.  To the omniscient view, his entire act was muttar.  Only where he also caught fish, or by korbanos, where the din of Hiddur requires awareness of Hiddur, does Rava argue.  He then uses Meleches Machsheves just like Rav Yosef Chaim, to eliminate Ho'il from Shabbos calculations.  He  reads this pshat into the Tosfos there DH L'haalos.

V
The Gemara in Pesachim 47b asks, if we use Ho'il, then why is a person who plows on Yomtov chayav?  Plowing would be muttar if he were doing it to turn over soil to use for Kisui HaDam, so even if he's doing it for a different reason, ho'il should be mattir- Ho'il if he were to shecht a bird he would need it for kisui, under which circumstances charisha would be muttar.

Tosfos brings that the Rashbam understands the Gemara to mean that Charisha for Kisui is a Melacha She'eina Tzricha LeGufa.  If he would use the dirt for Kisui, it would turn out that the Charisha was muttar because it was a Melacha She'eina Tzricha LeGufa.  The R'i argues on the Rashbam.  He says that if you say "Ho'il that I could have done it as an eina tzricha legufa it would be muttar, so it's muttar now too," then "ביטלת כל מלאכת שבת" once again.  So Tosfos says a different pshat.  But this leaves us to wonder, why indeed don't you say a hetter of Ho'il on all melachos Shabbos, Ho'il I could end up using the fruit of the melacha in a way that makes the melacha eina tzricha le'gufa?

Reb Meir Simcha in the Ohr Sameach (1 Yomtov 7, last paragraph) says an amazing yesod:
Ho'il works only when in either case it is a melacha, but in the ho'il case, it is a melacha that is muttar.  But kavana of eina tzricha le'gufa is not a melacha at all; what you did was a melacha, and ho'il cannot reclassify what you did as a non-melacha.

Perhaps we can say the same thing to explain why ho'il won't work to be mattir on the basis of using it for a choleh.  It could be that just like hana'a from a mitzva is not called hana'a, so too, melacha for a choleh is not in the hagdara of melacha at all.  Ho'il cannot take a melacha and make it into a non-melacha.  I know this is highly debatable, but if Rav Shach's Avi Ezri can be full of svaros like this, why can't I say them once in a while?

VI
Reb Akiva Eiger in Tshuvos 5, Chasam Sofer in Tshuvos 79.  If you've gotten this far, look them up yourself.


Addition June 2015
VII
I just realized that this question is directly related to something we had once written about- Reb Shlomo Zalman's warning about which doctor should do pikuach nefesh on Shabbos.  The tzushtell is good, but it causes so many problems that I think we have no choice but to accept the svara from Reb Meir Simcha above in V and II B.

This is what I had in the other piece, which is relevant to this discussion.Regarding פקוח נפש on Shabbos, Harav Shlomo Zalman Auerbach  zt”l's psak is quoted by HaRav Yehoshua Yeshaya Neuwirth zt”l as follows:  (SSK 32:130)


ושמעתי מהגרש"ז אוירבעך זצ"ל , דנראה דעדיף טפי לעשות המלאכה ע"י שומר מצוות שכוונתו למצווה, כי ע"י עבריין אשר כוונתו רק עבור בצע כסף, אע"ג דקעביד מצוה, מ"מ הו"ל כנתכוין לבשר חזיר ועלה בידו בשר טלה, דמבואר בקידושין לב. תוד"ה דמחיל, דגם ע"ז יש משום "ולפני עור" וגם אפשר דבני"ד גרע טפי, כיון שבאמת יש כאן חילול שבת, ויתכן שהרופא נחשב כאינו מחלל שבת רק אם כוונתו להצלה ולא אם מכוון  לתשלום, וראה גם בספר בית הלוי עה"ת פרשת שמות. על הפסוק ״וירא אלוקים את בני ישראל״ל

Here is the Beis Halevi:
ומזה יצא למי שהיא פרוץ באחת ממצות ה׳ , אע״נ דלפעמים נתרחש לו אונס שלא יכול לקיימה מ״מ לא מקרי אונס  וכמו בשמירת שבת ונדומה דלפעמים אנוס הוא לעשות מלאכה או עבור חולה ר״ל וכדומה מ״מ לא מקרי אונס רק לאותם שהיו שומרים אותו אם לא היה האונס, אבל המחלל שבת כשאינו אנוס, גם במלאכה שהוא אנוס מקרי מחלל, וכן הוא בכל האיסורים
As we (not the royal we; I refer to the numerous contributors to that particular piece,) discussed, it is clear that RSZ is saying that the hetter of Pikuach Nefesh requires that the motivating intent is to save a life.  Where the motive is self-interest, it appears that there is no hetter of pikuach nefesh even where a life is saved.  Obviously, this is a shocking chiddush, which we discussed there at length.  But as far as the question of the day, according to RSZ, you couldn't kasher chillul Shabbos.  The hetter of dechiyah only applies where the melacha was done with the intent of saving a life.  Why?  We have to say like Reb Meir Simcha, despite all the problems it causes.

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