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Zevachim, 92


QUESTION: The Gemara establishes that the opinion of Shmuel is that of Rebbi Shimon, who maintains that a "Davar she'Eino Miskaven" is permitted. A "Davar she'Eino Miskaven" is an act that is done for a certain permitted purpose, but which *may* result in a transgression being inadvertently performed. The Gemara asks that this is not consistent with the position of Shmuel regarding a "Melachah she'Einah Tzerichah l'Gufah," a Melachah that one performs on Shabbos but not for the normal purpose for which the Melachah is done (see Insights to Chagigah 10:2). Shmuel rules like Rebbi Yehudah, who says that a Melachah she'Einah Tzerichah l'Gufah is Asur mid'Oraisa, and not like Rebbi Shimon, who says that it is Asur mid'Rabanan (see TOSFOS DH Aval, who asks why the Gemara assumes that the two concepts are interdependent). The Gemara answers that Shmuel holds like Rebbi Shimon regarding a Davar she'Eino Miskaven, and like Rebbi Yehudah regarding a Melachah she'Einah Tzerichah l'Gufah.

TOSFOS (DH b'Melachah) quotes the BA'AL HALACHOS GEDOLOS who asks that in Shabbos (3a), Shmuel says that whenever the word "Patur" ("exempt") is used with regard to the laws of Shabbos, it means "Patur Aval Asur" -- one is exempt from punishment, but the act is still prohibited -- except in three cases. Those three exceptions are as follows. First, a person who sits directly behind another person who is completely blocking the doorway of a house in which a deer is confined is permitted to remain in his position even after the first person leaves, and it is not considered to be a transgression of the Melachah of hunting on Shabbos and is completely permitted. Second, a person who traps a snake so that it not bite him is exempt from punishment, and the act is permitted l'Chatchilah. Third, a person who opens a blister in order to let out the puss is exempt, and the act is permitted l'Chatchilah.

In the last two cases, the Ba'al Halachos Gedolos states, the reason why the person is exempt is because the Melachah is not being done in order to achieve the normal result of the Melachah (for example, the person who traps the snake is not interested in having the snake itself, but rather he wants to insure that it does not hurt him). Since his intention makes his act of trapping into an Isur d'Rabanan according to Rebbi Shimon, it is permitted l'Chatchilah in a situation where the snake might cause serious harm to the person. Similarly, releasing puss from a blister is permitted because it is a Melachah she'Einah Tzerichah l'Gufah, which is permitted when it prevents or takes away serious pain.

However, according to our Gemara that says that Shmuel maintains that a Melachah she'Einah Tzerichah l'Gufah is a Torah prohibition, this logic is not applicable. How, then, can Shmuel maintain that a Melachah she'Einah Tzerichah l'Gufah is Asur mid'Oraisa, and at the same time maintain that it is permitted to capture the snake and to release puss from a blister?


(a) TOSFOS quotes RABEINU TAM who answers that Shmuel indeed maintains that a Melachah she'Einah Tzerichah l'Gufah is a Torah prohibition. When he says in Shabbos that it is permitted to trap a snake and to open a blister, he does not mean that *he* permits doing so. Rather, he is simply stating a rule that whenever we see the word "Patur" as the Halachah, we should know that in these three cases the author of the statement maintains that the act is permitted. According to Tosfos, Shmuel himself seems to rule that one may not trap a snake even to ensure that it does not bite him (unless, of course it is a matter of Piku'ach Nefesh), and one may not open a painful growth of puss.

(b) Before he quotes the answer of Rabeinu Tam, TOSFOS mentions that the Ba'al Halachos Gedolos gives a forced answer. The answer of the Ba'al Halachos Gedolos is that Shmuel does agree with all of these Halachos.

While, in most cases, he rules like Rebbi Yehudah that a Melachah she'Einah Tzerichah l'Gufah is a Torah prohibition, he maintains that when serious pain or the danger of the public is involved, even a Melachah she'Einah Tzerichah l'Gufah is permitted. This means that without the danger to the public, he would rule that there is a Torah prohibition against extinguishing a burning piece of metal as well. The Ba'al Halachos Gedolos explains that a burning piece of metal is not easily discernible as being so hot (in contrast to a burning piece of wood, which people know to avoid). This is why Shmuel permits extinguishing the metal but not the wood. Similarly, Shmuel permits trapping the snake to prevent it from biting, and opening the painful blister to alleviate the pain. However, without the extenuating factors of danger and pain, he would hold that these acts are forbidden mid'Oraisa as a Melachah she'Einah Tzerichah l'Gufah.

Tosfos' difficulty with the Ba'al Halachos Gedolos seems to be that we do not usually find, in the laws of Shabbos, that a Torah law is suspended for the sole reason of pain, or possible pain, when there is no question of Piku'ach Nefesh.

(c) The RAMBAM (Hilchos Shabbos 10:25) rules like Rebbi Yehudah and says that a Melachah she'Einah Tzerichah l'Gufah is a Torah prohibition. However, he also rules that one is allowed to trap a snake if his intention is to prevent it from biting him. The Rambam's rulings seem contradictory. Many commentators (for example, see ARUCH HA'SHULCHAN OC 316:19) explain that the Rambam maintains that even Rebbi Yehudah agrees that it is permitted to trap a snake to prevent it from causing harm, and it is not in the category of a Melachah she'Einah Tzerichah l'Gufah. In order for an act to be classified as a Melachah she'Einah Tzerichah l'Gufah, the nature of the act must be the same as it is when it is Tzerichah l'Gufah, but it is merely being done for a different purpose. In the case of trapping, the nature of the act is to attempt to confine the animal in order to use it. That is, intrinsic to the act of Melachah of hunting is the purpose of wanting to have the animal. Accordingly, *not* wanting to keep the animal, but rather wanting the animal to go away, is certainly not included in the Melachah of trapping. Even though the method used for getting the snake away from oneself is trapping, since it is done for the opposite purpose, it is not called hunting at all, and it is not even a Melachah d'Rabanan. (Y. Montrose)


QUESTION: The Mishnah (92a) teaches that if the blood of a Chatas Behemah splashes onto a garment, it must be washed. The Gemara quotes Levi who asks whether this also apples when the blood splashes onto one article of clothing and then continues from there onto a second article of clothing. Does the second garment need to be washed? Rebbi answers that the second garment certainly needs to be washed. His reasoning is that if we hold that blood that spills may be gathered up and used for Zerikah, then this blood, when it splashes onto the second garment, is still valid to be used for Zerikah, and thus it is subject to the requirement of washing. Even if we hold that blood that spills is disqualified from Zerikah, we rule like Rebbi Akiva who says that blood that, at one point, was valid for Zerikah and then became Pasul, still makes a garment upon which it splashes require washing. This is the only opinion offered on the subject in our Gemara.

The RAMBAM (Hilchos Ma'aseh ha'Korbanos 8:9) rules that in such a case the second garment does *not* require cleaning. What is the source for the Rambam's ruling?


(a) The MAHARI KURKAS explains that the Rambam maintains that the Halachah does not follow the opinion of Rebbi Akiva. Rather, the Rambam rules that blood that is Pasul does not require a garment to be cleaned, even if the blood at one time was valid. Indeed, this is the position of many Amora'im in the Gemara later (93a). Even though the Gemara here mentions the possibility that perhaps the blood that spills remains valid for Zerikah and, therefore, the blood that splashes from one garment to another should require the second garment to be cleaned even according to the opinion that argues with Rebbi Akiva, the Rambam must maintain that any blood which is splashed onto a garment from a Kli Shares may no longer be used for Zerikah. The reasoning for this is that since the blood now needs to be cleaned from the garment, it no longer retains its status of blood that is fit to be spilled onto the Mizbe'ach and attain atonement. Accordingly, once it reaches the first garment, it no longer can make another garment require cleaning, since it has become Pasul blood. Even though Levi was uncertain about this, once we do not rule like Rebbi Akiva, and we have a doubt whether the blood is still valid once it reaches the first garment, we must be stringent and rule that the blood is Pasul. Although this ruling (that the blood that spills onto the first garment becomes Pasul) results in the Korban having less valid blood for Zerikah, it also results in the Rambam's leniency that the second garment does not need to be washed. (See also LECHEM MISHNEH).

(b) Similarly, the KESEF MISHNEH answers that the Rambam does not rule like Rebbi Akiva because the Gemara's next statement implies that we do not rule like Rebbi Akiva. However, the Kesef Mishneh is still bothered by the fact that if we remain with a doubt whether or not the blood is valid for Zerikah when it spills on the garment, then why do we not rule stringently and require the garment to be washed? He answers that the verse states that the garment must be washed "b'Makom Kadosh" -- "in a holy place" (Vayikra 7:20, see 93b). Washing clothes is something which is not normally done in a holy place, and thus it is degrading for us to wash clothes which might not need to be washed in such a holy place.

(c) The KEHILOS YAKOV (#37) also mentions that the Rambam does not rule like Rebbi Akiva, but he is bothered by the fact that the blood still might be valid, requiring that the garment be cleaned even according to the Rabanan who argue with Rebbi Akiva. He gives a different answer than the Kesef Mishneh for this question.

He bases his explanation on the Gemara earlier (34b) that quotes Rebbi Yehudah that on Erev Pesach, a Kohen fills a cup with blood from the spilled blood of all of the Korbenos Pesachim that were offered, and he performs one Zerikah. The Gemara explains that this shows that even though the blood was spilled on the floor and seemingly disqualified from being used for Zerikah, since the Kohen is always able to pick up the blood and do Zerikah with it, the blood does not become pushed aside from being used for the Zerikah ("Kol sheb'Yado, Lo Havei Dichuy"). TOSFOS (34b, DH Kol) has difficulty with the Gemara there. We know that there is a Mitzvah of Kisuy ha'Dam, to cover the blood of slaughtered birds and undomesticated animals. However, the Gemara in Chulin (87a, and Avodah Zarah 47a) says that if the wind blew sand on top of the blood, one is not required to cover the blood more; the Mitzvah is considered to have been pushed off and it no longer can be done. Why do we not say in that case as well that because the person can uncover the blood, the Mitzvah has not really been pushed off? Tosfos answers that only when another Mitzvah mandates that the object of the Mitzvah be made fit for the Mitzvah do we consider the Mitzvah *not* to have been pushed off. In the case of the blood of the Korban Pesach, the fact that the blood of someone's Korban Pesach might have spilled and did not have Zerikah done with it gives us a Mitzvah to gather the blood, and thus the blood is not considered to have been pushed off from the Mitzvah. There is no Mitzvah, though, mandating us to pick up the dirt which has fallen onto the blood in the case of Kisuy ha'Dam, and, therefore, the Mitzvah is considered pushed off.

The Kehilos Yakov explains that the Rambam's ruling is based on the reasoning of this Tosfos. The only reason to say that blood that falls on a garment is not considered pushed off from the Mitzvah of Zerikah, just as blood that fell on the floor is not pushed off, is because there is a Mitzvah mandating us to pick it up. Since, in our case, the opposite exists -- a Mitzvah telling us to *leave* the blood on the garment and wash it out, the blood is definitely considered pushed off from being valid for the Mitzvah of Zerikah! Levi, who asked the question, probably did not agree with the Gemara in Chulin that says that Kisuy ha'Dam no longer can be done when the wind blew dirt on top of the blood. However, the Rambam himself does rule like the Gemara in Chulin, and thus he also rules that the blood that spills on the garment is Pasul and no longer can be used for Zerikah. (See Kehilos Yakov further, where he proposes that there is a possible alternative understanding of Tosfos.) (Y. Montrose)

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