ישיבת כרם ביבנה

Pesik Reishei Delo Nicha Lei

הרב משה סתיו

Tosfot (Ketubot 6a s.v. hai) explain that sechita (squeezing liquids) is not prohibited on shabbat in a situation where the liquid goes to waste, since a pesik reishei delo nicha lei (PRDLNL - a permitted action which inevitably results in a prohibited action that the person has no interest in) is permitted. The Arukh agrees, and proves his opinion from the fact that R. Shimon, who allows a davar she'aino mitkavein (an unintended result), permits sprinkling wine on the fire of the altar. (Zevachim 91b) Even though it is a pesik reishei that this will partly extinguish the fire, which is prohibited, since he has no desire to extinguish - it is permitted. Tosfot, however, subsequently claim that perhaps a PRDLNL is prohibited. They refute the Arukh's proof by suggesting that R. Shimon allows sprinkling the wine on the fire only because "a mitzva is different." The simple meaning of this statement is that we are dealing with a rabbinic prohibition, and the Rabbis were lenient here for the purpose of a mitzva. We would like to show that this understanding is difficult, and to offer a novel, alternate, explanation.

This dispute between Tosfot and the Arukh can be explained in two different ways:

1. They argue fundamentally regarding the law of a PRDLNL. According to the Arukh, the fact that lo nicha lei (he is not interested) renders the resulting action a davar she'aino mitkavein, whereas according to Tosfot, since it is a pesik reishei (inevitable result) it is considered a davar hamitkavein (an intended action). According to this approach, their dispute is on the deoriyta level, whether an unintended action which is a pesik reishei but lo nicha lei is prohibited by the Torah.

2. Both agree that fundamentally the Torah does not consider a PRDLNL as having intent so as to prohibit the action mideoriyta, and they only argue whether it is prohibited miderabanan.

We should note that according to the first possibility, as well, even if a PRDLNL is considered as having intent by Torah law, in regards to shabbat it would be considered a melacha she'aina tzericha legufa (a work-act not required for its own purpose), and would therefore only be prohibited miderabanan, as will be explained later.

We can now return to the difficulty with Tosfot's statement that "a mitzva is different." From the sugya which allows sprinkling the wine it is possible, indeed, to prove that where he is not interested in the resulting action it is not considered as having intent, and is permitted by the Torah (as explained according to the first opinion). However, it is impossible that the prohibition there to sprinkle the wine is only rabbinic, since the sugya is dealing with pesukim, and hence we cannot say that the Rabbis were lenient for the purpose of a mitzva.

Thus, Tosfot's claim that sprinkling the wine is permitted because "a mitzva is different" is difficult according to either explanation. If Tosfot intend to argue with the Arukh fundamentally, and say that a PRDLNL is considered as having intent - just that on shabbat it is a melacha she'aina tzericha legufa[1] and prohibited only miderabanan - then the rationale of "a mitzva is different" would be insufficient to allow diminishing the fire of the altar, where there is no exemption of melacha she'aina tzericha legufa and so it remains an issur deoriyta. And if they agree to the opinion of the Arukh on the Torah level - just that they claim that in general there exists a rabbinic prohibition - then sprinkling the wine does not pose a difficulty in the first place, since we are dealing there on the deoriyta level, and the rationale of "a mitzva is different" would be superfluous!

A further difficulty exists in the words of the Rosh in masechet shabbat. In ch. 12 (siman #1), he brings the Arukh's proof from sprinkling the wine that a PRDLNL is permitted, and rejects it by claiming that it is not a pesik reishei at all, since it is possible that the wine will fall on the logs and will not diminish the fire. In ch. 14 (siman #9), however, he explains that the Arukh's leniency is limited to shabbat where there is a rule of melechet machshevet, whereas in other areas of halacha this law would not apply. Ironically, he proves this from the discussion concerning sprinkling the wine, which is a PRDLNL, and nonetheless, the gemara asks, "But he is surely extinguishing!," indicating that it is prohibited. These two passages in the Rosh contradict each other!

In order to explain this issue, we will quote the exact words of the Arukh (entry "psak") in explaining the term pesik reishei:

Meaning, one who cuts [off] someone's head, everyone knows that by cutting off his head he will die. If he says, "I do not intend for his death, just to draw blood from him for some purpose," his claim is invalid. Rather, he is considered as intending to kill him, and he is a murderer.

Where, then, does R. Shimon [who holds that a davar she'aino mitkavein is allowed] argue? [In a case] such as dragging [a bed, chair, etc.] (Shabbat 29b) where it is possible that he may not make a ditch, and even if he does, it is possible that he has no interest in it. Similarly, when he removes [the hide of the animal] by puncturing it, where he has no interest [in the hide]. (ibid. 117a) ... Similarly, [in regards to performing a brit milah when the son has tzaraat] that if there is someone else, he should do it and not the father. (ibid. 133a) Similarly, the case where one [pulls the berries off a hadas branch to eat them on Yom Tov, and thereby renders it usable, but he] has another branch. (Succah 33b) However, cutting off his head - pesik reishei - he will undoubtably die, and he certainly has an interest [in the victim's death], because if he were not interested, how could he have cut off his head?!

It is clear from the Arukh's language that every pesik reishei is considered as nicha lei (having interest), since if he did not have an interest, why did he do it?

We can explain the Arukh's position in the following manner. The exemption of davar she'aino mitkavein is based on the fact that since the person did not intend for this action, it is considered as if the action were done by itself, and only caused indirectly (grama) by the doer. Nonetheless, in a situation where it is a pesik reishei, where the result must occur, it is considered as if he also intended for the result.

Now, it seems clear that in a situation where someone does an action and is interested in the result or intends for it, even though the ensuing result is not definite, it is considered as a melacha and a legally valid act. We do not care that it is not a pesik reishei so long as he intends for the act itself, and it is like any activity which is not guaranteed to succeed. Only in a case that he does not intend for the result, then if it is not a pesik reishei it is permitted because of the fact that it is done without intent. (This seems obvious logically, and can also be found explicitly in the Ramban Ketubot 6b s.v. e nami and in Shut Rivash #394, regarding combing with the intention to remove loose hairs and sweeping.)

The prohibition against murder, for example, is not only if one is interested in the result. Rather, through the act of murder itself one is considered as a murderer with intent, even if he intends for some other purpose. Since he did the act of murder with full intention for the action, and with knowledge that this would be the result, he is considered as having intent for and interest in the result.

If so, it would seem that there is no possibility of a pesik reishei that is not nicha lei, since the prohibition is not dependent at all on his desire. Why, then, does the Arukh permit a PRDLNL on shabbat and by sprinkling the wine?

In order to answer this, we will introduce the sugya (Zevachim 91b):

Shmuel says, one who donates wine brings it and sprinkles it on the fires. What is the reason? The Torah says, "You shall bring wine for libation, a fire-offering. (Bamidbar 15:10) ... But he is surely extinguishing! ... Extinguishing for [the purpose of] a mitzva is different.

The sugya proceeds to pose a question to Shmuel from a b'riyta, and offers a resolution:

Come hear: Is wine of libation for the cups or rather for the fire? He may not extinguish, [so it me for the cups]!

It is not a contradiction. This one [Shmuel] is [like] R. Shimon, and this one [the b'riyta] is [like] R. Yehuda.

This sugya appears difficult. If there is a verse which teaches that sprinkling is required - then its mitzva is in that manner, and why are we concerned about the prohibition against extinguishing? After all, when taking down coals from the altar for the purpose of the incense, the remainder of the coals are thrown aside into the amah (a water channel running through the Temple) and extinguished, notwithstanding the prohibition?! Clearly, regarding anything whose mitzva in this manner, the prohibition of extinguishing is irrelevant. Furthermore, how is the libation of wine different from any burning of fats on the altar which would also extinguish coals when placed on them?

This sugya appears difficult. If there is a verse which teaches that sprinkling is required - then its mitzva is in that manner, and why are we concerned about the prohibition against extinguishing? After all, when taking down coals from the altar for the purpose of the incense, the remainder of the coals are thrown aside into the amah (a water channel running through the Temple) and extinguished, notwithstanding the prohibition?! Clearly, regarding anything whose mitzva in this manner, the prohibition of extinguishing is irrelevant. Furthermore, how is the libation of wine different from any burning of fats on the altar which would also extinguish coals when placed on them?

We must answer that this itself is precisely the debate, whether or not sprinkling the wine on the fire is the required form for the fulfillment of this mitzva. R. Yehuda, because of the prohibition, "[The fire] should not be extinguished," (Vayikra 6:5) maintains that the mitzva is to pour the wine into the cups of the altar, and is forced to explain the word ishe (a fire-offering) in some other way. According to R. Shimon, however, since a davar she'aino mitkavein is permitted and he has no intent to extinguish, there is no reason to alter the verse from its simple meaning. (Rashi on the sugya explains the same way.)

This, then, is the meaning of the gemara in its initial defense of Shmuel, "Extinguishing for [the purpose of] a mitzva is different," that when he is involved in fulfilling a mitzva the extinguishing is considered as incidental.

With this we can begin to explain the dispute between the Arukh and Tosfot. The Arukh's proof is from the conclusion of the sugya, from the fact that R. Shimon is willing to interpret the verse simply, despite the fact that extinguishing is actually occurring. This shows that a pesik reishei which he truly has no interest in, such as when he does it in order to fulfill a mitzva, is not considered as intending to extinguish. However, if we were to assume that a pesik reishei is considered an act even when he has no interest, there would be no reason to differentiate between R. Yehuda and R. Shimon. The sprinkling would be considered a full act of extinguishing according to both of them, and the fact that he is involved in a mitzva would not matter [2].

We would like to suggest that Tosfot's intention in their refutation of the Arukh, that "a mitzva is different," is as we explained above. His involvement in performing the mitzva in its required form completely removes the title of "extinguishing" from the act. Only there is a PRDLNL not considered as having intent. However, in other situations not involving a mitzva, so long as the person knows the result, he is considered as fully intending.

According to this, however, that except for cases of mitzva every pesik reishei is considered as intending even according to the Arukh because of the logic of "Why did he do it?", how can the Arukh bring this sugya as proof regarding shabbat?

In order to answer this we need to clarify the notion of intent in regards to melacha on shabbat. We find a number of exemptions which stem from the notion of intent, amongst them:

1. Davar she'aino mitkavein, which R. Shimon and R. Yehuda argue about.

2. Melacha she'aina tzericha legufa, which R. Shimon and R. Yehuda also argue about.

It is clear from a number of sources that these disputes are not connected, and that there is a distinction between them. The dispute regarding davar she'aino mitkavein is a general dispute in all areas of the Torah, whereas the dispute regarding melacha she'aina tzericha legufa is limited to melacha on shabbat.

It is also clear that on shabbat there is a requirement of melechet machshevet ("work of thought"), which must be defined. Is this a requirement in the manner of the work, that it must be done in a normal, professional manner, in which case it would also be a unique law for melechet shabbat? Or is it a requirement in intent, that on shabbat, besides intent for the act itself it is necessary to intend for the "melacha" (i.e., the primary purpose of the work), and if he did not have that intent it is still considered a davar she'aino mitkavein? In this case, the concept of melechet machshevet is not a fundamentally new one, but rather an expansion of a general principle. [In other words, in all areas of Torah, the very act is prohibited, and so long as one intends for it he is considered as having intent. On shabbat, however, it is insufficient just to intend for the act, rather we require intent for the "melacha," and otherwise it remains a davar she'aino mitkavein.]

This issue turns out to be a dispute amongst the rishonim. Rashi (Beitza 13b) explains melechet machshevet as "melechet umnut" - professional work. However, elsewhere (Bava Kamma 26b and Hagiga 10a) he explains melechet machshevet to mean that he intended to do the melacha. This position is more explicitly stated in R. Chananel, "He is not guilty of melacha until he intends to do that melacha." Similarly, Tosfot write (Yoma 34b s.v. vehani mili), "But here - i.e., on shabbat where it says melechet machshevet - we require that he thinks to do the melacha that he does."

According to this, it is possible that the Arukh permits a PRDLNL on shabbat, such as squeezing to waste, because it reverts to being a davar she'aino mitkavein which is totally permissible. Even though in other areas of halacha every pesik reishei is considered as having intent, regarding shabbat we learn from melechet machshevet that so long as he does not intend for melacha it is not considered as mitkavein. The Ramban on our sugya writes in this vein, "Since he has another hadas branch it is like a davar she'aino mitkavein, because melechet shabbat is subjective, since the Torah prohibited [only] melechet machshevet."

With this we can understand the Rosh's claim that even according to the Arukh shabbat is different than all other prohibitions, and therefore when the gemara initially asked, "But he is surely extinguishing?!" they did not answer that he is not interested in extinguishing. [The Arukh's proof was only from the conclusion of the sugya, as explained above.] Without a pasuk teaching that sprinkling on the fire is a mitzva, the rationale of lo nicha lei alone is not a permitting factor in other areas of halacha where there is no concept of melechet machshevet. For this reason the Rosh (ch. 14 siman #9) prohibits drinking a cup of medicine that causes sterility as a undesired side-effect, because in all other areas of Torah every pesik reishei is considered as having intent and interest, since he does the action despite the fact that he is aware of the inevitable outcome.

There still remains an additional point to clarify. It is evident from Tosfot that a davar she'aino mitkavein is completely permissible, while a melacha she'aina tzericha legufa is exempt, but nonetheless rabbinically prohibited. This distinction is because melacha she'aina tzericha legufa is a concept unique to shabbat, whereas davar she'aino mitkavein is a general rule. Their dispute with the Arukh revolves around this very point, whether a PRDLNL reverts to a davar she'aino mitkavein, and is therefore permitted, or to a melacha she'aina tzericha legufa, and is therefore prohibited rabbinically. However, we have explained that even if a PRDLNL reverts to a davar she'aino mitkavein, it is still a halacha unique to shabbat because of the concept of melechet machshevet, and even so the Arukh permits it! There is room, however, to suggest that it should be prohibited miderabanan anyway!

A careful reading of the Rosh would indicate that he argues with Tosfot on this point. Tosfot emphasize that PRDLNL is considered a melacha she'aina tzericha legufa and therefore not allowed miderabanan. The Rosh, however, seems to admit to the Arukh that it is considered a davar she'aino mitkavein, but nonetheless prohibits it, since it is a dispensation unique to shabbat.

Based on our explanation of the unique nature of melechet shabbat, we can also explain a difficult line in R. Chananel (Yoma 34b). He explains there why R. Yehuda permits placing hot iron lumps into the mikva on Yom Kippur, and is not concerned about hardening them (metzareif, a violation included in makeh bapatish), even though R. Yehuda prohibits a davar she'aino mitkavein. He writes:

We answer according to Abaye: "These words" - that R. Yehuda holds that a davar she'aino mitkavein is prohibited - "is in all [other] areas of the Torah, but here" - on Yom Kippur - "hardening" - of this sort - "is [only] Rabbinic." Why? Because is it not a melacha she'tzricha legufa.

This explanation is extremely difficult, since according to R. Yehuda, a melacha she'aina tzericha legufa is also prohibited by the Torah!

However, according to our definition it is understandable. One who digs a hole and only needs the dirt is exempt even according to R. Yehuda because he is ruining the land. (Shabbat 73b) It seems from R. Chananel, though, that this is only when he does not intend for melacha at all, as he writes (Shabbat 105b):

"Where do you find that according to R. Yehuda melacha she'aina tzericha legufa is guilty? When he improves" - because even though he did not intend, since it results in a melacha that he is interested in, he is guilty! - "But is if he ruins, where do we find that he holds [this way]?"

Clearly, R. Yehuda only holds one culpable for a melacha she'aina tzericha legufa in a case where ultimately he is interested in the melacha itself, and it is an improvement - then it is considered melechet machshevet. However, in a case that the melacha itself is ruinous, he is exempt even according to R. Yehuda. Therefore, since he does not intend for hardening, nor does he have any no interest whatsoever in it, it is considered as not intending in regards to hardening and ain tzericha legufa, and this would exempt him even according to R. Yehuda.

This idea can answer, as well, a question of R. Akiva Eiger. Tosfot challenges the Arukh from the law of mafis mursa (puncturing a puss-pimple), which is only allowed in order to alleviate pain, even though there he has no interest at all in forming an opening! R. Akiva Eiger objects to this, however, because there it is not a davar she'aino mitkavein at all, but rather a melacha she'aina tzericha legufa since he intends for the act itself!

Based on our approach, however, we can answer that although it is not exactly like a davar she'aino mitkavein, a melacha she'aina tzericha legufa where he has no interest is also considered as not having intent (as we just explained in R. Chananel's opinion about hardening)[3].

We can also answer, that in fact the reason that mafis mursa is considered a melacha she'aina tzericha legufa and not a davar she'aino mitkavein is precisely because he is doing the act of puncturing, which is the very act of forming an opening. Tosfot's reasoning therefore runs as follows. If every act of pesik reishei is considered as intent (as Tosfot argue), it should be like intending to form an opening, just since it is unnecessary it is a melacha she'aina tzericha legufa, and it is understandable that it is allowed only to alleviate pain. However, if lo nicha lei is considered as not intending (as the Arukh argues), then it should have been considered as a davar she'aino mitkavein and totally permissible, since on shabbat so long as he does not intend for the melacha, even though he intends for the act it is considered a davar she'aino mitkavein, as proven above. It would seem to appear this way from the language of the Rosh as well, "Even though he neither benefits from the building of the opening, nor does he intend for the building of the opening, just to puncture ..."

Notes: (click on numbers to return to article)

1. And is therefore exempt on shabbat, as they refuted the proofs of the Arukh from one who detaches endives ("ulshin") and one who fixes a hadas branch. (Shabbat 103a s.v. lo)

2. Based on this, it is possible that the Arukh's proof that lo nicha lei is not considered as intent would remain even if it were possible to sprinkle in a way that extinguishing was not inevitable, such as with droplets. It is clear from the beginning of the sugya that it is prohibited to sprinkle even in such a manner (from the fact that the gemara did not immediately offer this solution), since the very sprinkling would be considered as extinguishing with intent. The fact that it is permitted only for the purpose of a mitzva shows that the lack of desire revokes the assumption of intent. This requires further clarification.

3. Although it is still prohibited rabbinically there, that is because extinguishing glowing metal is not allowed, and as far as extinguishing is involved it is considered as having intent.

 

 

קוד השיעור: 4018

סרוק כדי להעלות את השיעור באתר:

לשליחת שאלה או הארה בנוגע לשיעור:




הרב משה סתיו
הרב משה סתיו
ע K
הרב משה סתיו
הרב משה סתיו
ע K
הרב משה סתיו
הרב משה סתיו
ע K
הרב משה סתיו
הרב משה סתיו
ע K
הרב משה סתיו
הרב משה סתיו
ע K
הרב משה סתיו
הרב משה סתיו
ע K
הרב משה סתיו
הרב משה סתיו
ע K
הרב מרדכי גרינברג <br> נשיא הישיבה
הרב מרדכי גרינברג
נשיא הישיבה
ע K
הרב משה סתיו
הרב משה סתיו
ע K
הרב מרדכי גרינברג <br> נשיא הישיבה
הרב מרדכי גרינברג
נשיא הישיבה
ע P
הרב זלמן נחמיה גולדברג
הרב זלמן נחמיה גולדברג
ע 2
הרב זלמן נחמיה גולדברג
הרב זלמן נחמיה גולדברג
ע 2
הרב זלמן נחמיה גולדברג
הרב זלמן נחמיה גולדברג
ע 2