Tuesday, April 25, 2006

violating a derabbanan to avoid a d'oraysa (II)

In the comments to the previous post, Bill Selliger suggested that the case in Shabbos is distinct from the Rambam’s case because in the Rambam’s case no aveira was yet done, while in the case of one who placed bread in the oven the ma’aseh issur is already done - enforcing the issur derabbanan of "rediyas hapas" to prevent removing the bread just forecloses the opportunity to undo the crime. I would agree, but have one hesitation: is placing the bread in the oven really a ma’aseh aveira? Yes, it inevitably leads to the bread baking and chilul shabbos (there is no ptur gerama here, see B”K 60), but couldn’t one argue that chilul shabbos is in the conclusion of the baking, not the act of placing dough in the oven (this is raised by achronim)? If so, until the baking occurs, why not undo the neutral act of having placed the bread in the oven?
The gemara in Shabbos (4a) adds a wrinkle to the equation and asks whether someone else can remove the bread dough in violation of the derabbanan of "rediyas hapas" so that our baker should be saved from an issur d’oraysa – do we allow “chatei b’shvil she’yizkeh chaveirecha”, doing a minor aveira to spare someone else a greater wrong? The gemara rules no. Tosfos quotes a contradictory gemara (Eiruvin 32) which says a cheveir may violate the “minor” prohibition of separating terumah “shelo min hamukaf”, without the bulk of tevel being present, so that someone else does not come to violate the more stringent issur of eating tevel. Asks Tosfos: isn’t this an example of “chetei b'shvil sh’yizkeh chaveirecha”, of committing a minor sin to save one’s friend from a greater wrong? The Riva”s answers in parallel to the approach suggested: in our case of the bread stuck to the oven, the baker committed the ma’aseh aveirah already and just needs a way out; by the tevel case, the person who stands to eat the tevel has not done anything wrong. Yet, Tosfos offers a second answer as well: by the case of tevel, it was the chaveir who offered his neighbor a basket of fruit and is the cause of the potential violation of achilas tevel - he must therefore find a way to undo the act and help his friend. By the case of the bread in the oven, the person who wants to remove the bread was not the cause of it being placed there.
Are these simply two possible answers, or is Tosfos debating the issue of whether placing the dough alone is the ma’aseh aveira, or is there perhaps some other issue involved?
Tosfos further asks how one could be chayav for ofeh when there is always the possibility of “rediyas hapas”, removing the bread from the oven before it bakes. Riv”a answers that the ma’aseh aveira is putting the dough in the oven; rediyas hapas just undoes the aveira. Is this the Riv”a l’shitaso of the previous debate, or not?

8 comments:

  1. Bill Selliger5:28 PM

    As long as we're on the topic, I have a related question:

    Why is the gemara in Shabbos danning in "chatei bishvil shiyizake chaveirecha" for the second guy (the "Rodeh"), isn't the gemara there trying to figure out if the chachomim were even gozer in that case? If so, there is no cheit?!

    Also, regarding the general diyun of when the issur shabbos takes place, what would you say about the melacha of zriah? Al karchach the issur has to be when it's planted, but it doesn't grow until days later (not on Shabbos). How can you be over an issur-Shabbos on Tuesday?!

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  2. I thought there was a gezeirah of rediya, just a question of whether it is lifted in this place. With respect to zeriya, I think the Afikei Yam has an analysis of that issue (I have to take a look - I don't have the sefer with me now). But one can be mechaleik and say that by zeriya the melacha can never be finished on shabbos so by definition the ma'aseh aveira is the planting; by afiya it can be completed. Nafka mina would be if you put bread in the oven at the end of Shabbos and it won't cook until after Shabbos is over (Eglei Tal discusses).

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  3. Bill Selliger6:40 PM

    How mistaver is it to say there's a difference in the etzem ma'aseh melacha by different melochos shabbos? L'chora, what constitutes a ma'aseh melacha by one should hold true for the others. If by zriah i'm chayiv immediately, that should also be the case by afiya. I think that's just common sense.

    Also, if pshat is like you're advancing, you're going to have to do lumdishe gymnastics to explain how I get malkus (assuming I was musra for malkus), because there's really no ma'aseh aveira. At the time of placing the bread in the oven, it's a ma'aseh heter, and at the time it bakes I didn't do anything! You're going to have to be miyaches my initial ma'aseh with the chalos aveira - which is not pashut (I think the Shaagas Aryeh has such a cheshbon regarding livashas tzitzis, but it's a stretch). And now you're saying that every issur Shabbos is like that?! I think it's much more pashut to say that the act of placing it in the oven is the ma'aseh issur, but there's an opportunity to save the aveira from happening after the fact. I'd like to think of examples, but I have to change diapers and patch tuchuses now. It's bed time.

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  4. I would say that it is just like isho m'shum chitzav, where you are chayav for the initial act based on the potential outcome. That's why (says the Nimukei Yosef) you can light Shabbos candles on Friday even though it is a ma'seh hava'arah on Shabbos - it is not a continuous ma'aseh for the duration of the buring, but a one time event. The Minchas Chinuch also discusses the sha'as hamechayeiv by the melachos. I need to make time to look back at all this stuff and digest it now!

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  5. Anonymous7:57 PM

    Did you look at the Tshuva by the Har Tzvi posted by YGB a while back (with regard to a "contradiction" between the Yerushalmi and Bavli)? It deals specifically with the melacha of afiah and other melachas that take time to proceed to completion, the issue of aisho mishum chitzav and the Nemukei Yosef.

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  6. yes, mr. anon, I intend to go back to that discussion if there is time. I did not look at the Har Tzvi, but would like to revisit the Birchas Shmuel in B"K. Bill Selliger - take a look at the Afikei Yam II:4 who is mechaleik between ofeh and zorea like I wanted to do because zorea can only take place after Shabbos so by definition it is different, and he calls this a "ra'aya muchrachas" (even though it is a sevara, and you will be happy to know the minchas chinuch holds even by zeriya you are chayav immediatly). More to come when I get a chance...

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