1) THE "SHECHITAH" OF A SHABBOS-DESECRATER
QUESTION: The Mishnah states that Shechitah performed on Shabbos is valid, even though the Shochet desecrated Shabbos when he performed the Melachah of Shechitah. The Gemara (15a) says that the Shechitah is valid even if the Shochet desecrated Shabbos intentionally (b'Mezid) by slaughtering the animal.
Why is one permitted to eat from such a Shechitah? The Shochet, who slaughtered the animal intentionally on Shabbos, is a "Mumar l'Chalel Shabbos" whose Shechitah is invalid (see 5a). (TOSFOS)
(a) TOSFOS answers that the Mishnah refers to a Shochet who slaughtered an animal on Shabbos in private. A person becomes a "Mumar l'Chalel Shabbos" only when he desecrates Shabbos in public.
(b) Tosfos answers further that a person does not become a Mumar by a single, isolated incident of Shechitah on Shabbos. Only when he slaughters two times on Shabbos is he considered a Mumar.
(c) The RAN maintains that one does become a Mumar with just one Shechitah on Shabbos. However, he explains that the status of Mumar takes effect only after the Shechitah has been completed. Before the Shechitah is completed, the cut in the neck of the animal is Mekalkel, a destructive act, for which one is not Chayav mid'Oraisa on Shabbos. Consequently, at the time of the Shechitah the person was not yet a Mumar.
(d) The RAMBAM (in Perush ha'Mishnayos) writes that if the Shochet slaughtered on Shabbos intentionally, the Shechitah indeed is not valid. The Shochet is considered a Mumar from the moment he begins to cut the esophagus or the trachea.
REBBI AKIVA EIGER (YD 2:5) suggests that the Rambam may be of the opinion that one who transgresses an Isur d'Rabanan on Shabbos becomes a Mumar mid'Rabanan. Therefore, even if he is only Mekalkel (which is Asur mid'Rabanan) at the beginning of the Shechitah, he is considered a Mumar and the ensuing Shechitah is Pasul. (It is not clear how the Rambam understands the Gemara later (15a) that says that the Mishnah's ruling applies even when the Shechitah was done on Shabbos intentionally. See CHASAM SOFER there.) (Z. Wainstein)
2) CUTTING GOURDS FOR ANIMALS ON SHABBOS
QUESTION: The Gemara quotes the Mishnah in Shabbos (156b) that states that a person may slice gourds for animals, and cut up a carcass to feed to dogs, on Shabbos.
Why would one have thought that slicing gourds for animals is prohibited, such that the Mishnah needs to teach that it is permitted?
(a) RASHI here (DH Es) and in Beitzah (2a, DH Mechatchin) writes that one might have thought that it is prohibited because the preparation of fodder involves unnecessary hard work, and unnecessary hard work is prohibited on Shabbos (Shabbos 155a). The Mishnah is teaching that cutting gourds does not involve excessive exertion, and thus it is not in this category of prohibited work. This is also the approach of TOSFOS here (end of DH Mechatchin) and in Beitzah.
(b) TOSFOS quotes RABEINU TAM who asserts that the Mishnah refers to gourds that were cut from their stems on Shabbos. The Mishnah is teaching that the gourds are not Muktzah, even though they were picked on Shabbos, because the owner could have fed the gourds to his animals even while they were still attached to the ground, before they were picked. The Mishnah is also teaching that the gourds are not included in the Isur d'Rabanan that prohibits eating fruit that fell from a tree on Shabbos.
According to both of these explanations, Rebbi Yehudah -- who says in the Mishnah in Shabbos that one may not cut up a carcass on Shabbos to feed to dogs -- agrees with the first part of the Mishnah and permits slicing gourds on Shabbos.
(c) RASHI in Shabbos (156b) suggests that gourds, before they are cooked, are too hard for people to eat; they can be eaten raw only by animals. However, people do not generally feed gourds to animals (perhaps because they are too expensive). Since gourds are "Muchan l'Adam" and not "Muchan l'Behemah" (they are designated for human consumption and not for animals), the Tana Kama -- who does not require that an object be specifically designated before Shabbos for use on Shabbos -- permits feeding them to animals, while Rebbi Yehudah -- who requires that an object be designated before Shabbos for use on Shabbos -- prohibits feeding them to animals, and they follow their respective opinions in the case of an animal that died on Shabbos. (See also TOSFOS to 15b, DH Kegon, and GILYON HA'SHAS.)
3) THE RESULT OF AN ACT THAT UTILIZES "BEREIRAH"
OPINIONS: The Mishnah states that Shechitah performed on Shabbos is valid, even though the Shochet desecrated Shabbos when he performed the Melachah of Shechitah. Rav explained that the Mishnah means that although the Shechitah is valid, the animal may not be eaten on that day. The scholars of the Yeshiva asserted that that Rav was explaining the Mishnah according to the view of Rebbi Yehudah. The Gemara asks which ruling of Rebbi Yehudah demonstrates that he maintains that an animal slaughtered on Shabbos is prohibited to be eaten on that Shabbos.
Rebbi Aba suggests that the Mishnah is like the teaching of Rebbi Yehudah in Shabbos (156b) with regard to preparation of food before Shabbos. Rebbi Yehudah maintains that one may not cut up a carcass on Shabbos to feed to dogs if the animal died on Shabbos. Only if the animal died before Shabbos may one cut it up to feed to dogs. It is evident from there that Rebbi Yehudah prohibits the use of something on Shabbos that was not prepared before Shabbos. Although Rebbi Yehudah permits slaughtering an animal on Yom Tov (when there is no Isur of Shechitah) even though the animal apparently was not designated for that purpose, that is because the slaughtering of the animal on Yom Tov clarifies retroactively that it indeed was designated for that purpose. In contrast, since slaughtering an animal on Shabbos is forbidden, when Shabbos arrives and the animal is alive that animal is not designated for consumption (but rather for keeping alive to produce offspring). If it is then slaughtered on Shabbos, it may not be eaten since it was not designated for that purpose before Shabbos.
The Gemara asks that Rebbi Yehudah rules "Ein Bereirah." The principle of "Ein Bereirah" means that when the status of an object is not clear at the present time, a future occurrence cannot determine its status retroactively. Consequently, Rebbi Yehudah should not permit slaughtering an animal on Yom Tov, since before Yom Tov the animal was not actually designated to be slaughtered. It can be considered designated for slaughter only retroactively, because of "Bereirah," but since Rebbi Yehudah rules "Ein Bereirah," slaughtering the animal on Yom Tov cannot determine retroactively that it was designated for slaughter.
The Gemara searches for the source that Rebbi Yehudah rules "Ein Bereirah." It concludes that the Mishnah in Eruvin (36b) is the source for his opinion (and Rebbi Yehudah permits slaughtering an animal on Yom Tov for a different reason).
In the various Sugyos that discuss the topic of Bereirah, it is unclear what the result is when a person utilizes Bereirah to determine a status retroactively, according to the opinion that rules "Ein Bereirah." (The Halachah follows the opinion that rules "Ein Bereirah" with regard to matters that are mid'Oraisa.)
(a) RASHI (DH Osrin) explains that in the case in which a person announces that he will separate a certain amount of wine as Terumah later, when Rebbi Yehudah rules that one may not drink the wine now it is because he is concerned "that the person will be drinking wine of Terumah." Why does Rashi say that Rebbi Yehudah's reason is that since Bereirah does not work, the person will be drinking wine that is Terumah? If Bereirah does not work, then no Terumah was separated from the wine, and the person will be drinking Tevel, not Terumah!
It is clear from the words of Rashi here and in a number of other places (Gitin 24b, DH l'Eizo, and Gitin 73b, DH u'Meshani) that Rashi maintains that even if the Halachah is "Ein Bereirah," the change of status still takes effect, but the details which depended on the outcome of the future event remain in doubt. For example, when a person has two fruits of Tevel and says, "If it rains tomorrow, the one on the left will be Terumah for the one on the right, but if it does not rain tomorrow, the one on the right will be Terumah for the one on the left," according to Rashi one of the two fruits certainly becomes Terumah, but which one it is remains in doubt. According to the way most Rishonim understand "Ein Bereirah," neither fruit becomes Terumah because "Ein Bereirah" dictates that a present status cannot take effect based on a future event. According to Rashi, however, one of the fruits is Terumah, but exactly which fruit is Terumah remains in doubt. The change of status is effected, but the details that depended on the future event remain in doubt even after the future event occurs.
Rashi understands that when one makes a Kinyan dependent on a future event, the Kinyan does not depend on what actually happens in the future (since the Kinyan must take place now). Rather, it depends on what is destined -- at this point in time -- to happen in the future. Even if it actually does rain tomorrow (in the example above), those who rule "Ein Bereirah" maintain that the Kinyan does not take effect because it was impossible to know on the previous day, when the condition was stipulated, that it was destined to rain the next day. (TOSFOS to Eruvin 37b, DH Ela, cites a similar ruling in the name of MAHARI. See CHIDUSHEI REBBI AKIVA EIGER in Ma'arachah #4 to Eruvin 38a, DH v'Nir'eh d'Vein. See also Insights to Eruvin 37:1, Yevamos 67:1, Gitin 25:1, Gitin 73:2, and Zevachim 3:1.)
(b) TOSFOS (Eruvin 37b, DH Ela, see also Tosfos to Gitin 73b, DH Tana) and most Rishonim explain that "Ein Bereirah" means that one cannot effect a Kinyan, or a change of status, at the present moment based on the outcome of a future event. A Kinyan must take effect completely at the time that the Ma'aseh Kinyan is performed. If one attempts to make a Kinyan dependent upon a future event, the Kinyan will not take effect at all (see RAN in Nedarim 45b). This is in contrast to the view of Rashi, who says that the Kinyan does take effect but a doubt remains about which way it takes effect.
This also seems to be the opinion of the RAMBAM (Hilchos Ma'aser 7:1). The Rambam quotes the case mentioned in the Gemara here of one who announces that he will separate a certain amount of wine as Terumah later. The Rambam rules that one may not drink the wine after such an announcement. Rather, he must separate Terumah properly and then he may drink the wine. The fact that the Rambam says that one may perform a second act of separating Terumah and then drink the wine indicates that the wine does not become Safek Terumah after the first announcement, but it remains Tevel and can be rectified with a proper act of Hafrashas Terumah. (See Insights to Eruvin loc. cit., and Gitin loc. cit. for further discussion of this subject.)
The KEHILOS YAKOV (#8) has difficulty with this opinion. There are many cases in the Gemara in which the future action does have an effect on the present status, even according to those who maintain "Ein Bereirah." For example, the Gemara in Gitin (25a) says that Rebbi Yochanan rules "Ein Bereirah," and yet in Menachos (78b) Rebbi Yochanan rules that when one brings eighty Chalos for a Korban Todah (which requires only forty Chalos) and declares that forty of the eighty Chalos should be Kadosh, Rebbi Yochanan agrees that his words take effect and the forty Chalos that he later designates are Kadosh. How can his words take effect, if the declaration of the Kedushah of the forty Chalos depends on the future act of designating which Chalos he intended?
Similarly, the Gemara in Menachos (108b) says that if one has three animals and is Makdish one of them without specifying which one, the largest of the three animals is definitely Kadosh, and the middle animal is considered Kadosh as well out of doubt (see Insights to Menachos 108:2
). If -- at the moment that the person declares that one of the three animals is Kadosh -- it is unclear which animal is becoming Kadosh, then why should any of them become Kadosh?
The Kehilos Yakov cites many other examples of cases in which Bereirah has an effect, even according to those who maintain "Ein Bereirah." The Kehilos Yakov quotes the KESONES PASIM's alternative way of learning the Rambam, seemingly in an effort to answer these questions.
The Kehilos Yakov answers that Tosfos agrees that there are times when Bereirah is effective. When a person says that a portion of a larger amount should have a certain status (for example, forty out of eighty Chalos should become Kadosh), his designation is effective. This is because his statement involves no designation of any specific, exact items, but rather it involves merely a quantity. In contrast, when a person says, "The two Lugin that I will separate later should be Terumah," he is describing a specific item -- the Lugin that he will separate. It is impossible to identify those Lugin now. The specific description of the object in his statement makes it impossible to identify now, before he has separated the two Lugin, which Lugin are Terumah. In such a case, Bereirah has no effect at all. Similarly, in the case of the fruits in Eruvin (37b), the person says that if it rains tomorrow, then "this one should be Terumah for the other one." The combination of a reference to a specific fruit with an uncertain situation which cannot be clarified until later renders the Bereirah ineffective. However, the Kehilos Yakov says, if a person generalizes his statement in a way in which there will never be any distinguishing qualities, and he simply says that some of a mixture should have a certain status, even Tosfos agrees that Bereirah works. (Y. MONTROSE)
4) HALACHAH: IS A BUTTON "MUKTZAH" ON SHABBOS?
OPINIONS: The Gemara quotes the Mishnah in Shabbos (124b) that discusses the status of pieces of broken utensils on Shabbos. The Tana Kama says that these pieces are Muktzah, unless the pieces themselves can be used as a utensil for some purpose, even if it is not the original purpose of the utensil. Rebbi Yehudah argues and maintains that the pieces must serve a purpose similar to that of the original function of the utensil in order not to be Muktzah. It seems that everyone agrees that a piece that has no practical purpose, such as a button which falls off an article of clothing, is Muktzah.
However, there seems to be a contradictory implication in the previous Mishnah in Shabbos (122b). The Mishnah there states that "all utensils may be carried on Shabbos, and their doors with them, even though the doors have become detached." The Gemara explains that this law applies whether the door became detached before Shabbos or during Shabbos. The Mishnah is saying that the door of the utensil, which is no longer connected to the utensil, is not Muktzah. This seems to contradict the Mishnah later that says that a piece of a broken utensil that no longer serves any purpose is Muktzah!
(a) TOSFOS in Shabbos (122b, DH Aderabah) explains that the door "is still considered a utensil, since it is still fit for its original purpose, and it is fit to be reconnected to the utensil." Tosfos implies that the doors of utensils are considered utensils themselves (and thus are not Muktzah) because they are fit in their present state to be reconnected to the utensil. The MISHNAH BERURAH (OC 308:35) writes that according to Tosfos, even if they are completely useless in their detached state on Shabbos, they are not Muktzah and may be moved (this does not apply to doors or windows of a house; see Mishnah Berurah there).
The Mishnah Berurah's logic seems to be applicable to a button that falls off an article of clothing and can be sewn back on (as opposed to a button that was never sewn on clothing, or a button that falls off and will not be returned to this article of clothing; see BADEI HA'SHULCHAN 109:8). Even if it is not fit for any use on Shabbos, it should not be Muktzah since it will be sewn back onto the garment after Shabbos, and it should have the same status as the garment, which is not Muktzah. The MINCHAS SHABBOS (88:2) indeed rules that such a button that falls off clothing is not Muktzah.
(b) RASHI in Shabbos (126b, DH Hachi Garsinan), the ME'IRI, CHIDUSHEI HA'RAN, RI MI'LUNIL (on the Mishnah in Shabbos) and other Rishonim maintain that the reason why the door of the utensil is not Muktzah is that it serves a useful purpose in its present state. It can be used as a mat to sit on, or as a cover for a utensil, and so on. In that way it differs from a piece of a broken utensil mentioned in the Mishnah later in Shabbos, which has no useful purpose in its present state. Accordingly, only something that has a useful purpose in its present state is not considered Muktzah. A button that falls off a garment should be Muktzah, since it has no use in its present state.
There is also reason to say that even according to Tosfos a button is not the same as a vessel. The SHALMEI YEHUDAH (4:2, note 3) quotes RAV Y. S. ELYASHIV shlit'a who says that a button is not comparable to the door of a utensil. The door of a utensil is usually returned with ease to its utensil, and that is why it is considered part of the utensil even when it is not attached. A button, however, requires considerable effort to sew it back onto the clothing, and thus it is not clear that the button should be considered part of the clothing when it needs so much effort to be reconnected to its "utensil."
Moreover, HE'OROS B'MASECHES CHULIN quotes RAV ELYASHIV shlit'a who says that there is another reason to differentiate between the detached doors of a utensil and the fallen button of a garment. Returning the doors to their utensils requires only a Melachah d'Rabanan to snap them back on (because "Ein Binyan b'Kelim"). Therefore, they are considered a part of their utensil even when they are detached. A button, however, requires a Melachah d'Oraisa of sewing in order to be reconnected to the clothing. (The source for this difference seems to be the TOSFOS RID on the Mishnah in Shabbos 122b.)
HALACHAH: What is the Halachah with regard to a broken part of a larger item that has no use in its present state, but has potential use if it is reconnected to the larger item, such as a button that fell off an article of clothing?
The Shalmei Yehudah and SHEMIRAS SHABBOS K'HILCHASAH (15:68) conclude that a button is not Muktzah, but it is "appropriate" and "good" to be stringent and not to handle the button. The KITZUR HILCHOS SHABBOS (p. 139, #36) also concludes that it is good to be stringent. The AZ NIDBERU (7:46), however, rules that a button is not Muktzah and one does not have to be stringent. (Y. MONTROSE)
5) THE DIFFERENCE BETWEEN "BEREIRAH" AND A NORMAL CASE OF A "TENAI"
QUESTION: The Gemara quotes the ruling of Ayo, who says that one may make an Eruv Techumin with a stipulation only with regard to one side of town or the other. He may stipulate that whichever side of town is visited by the Chacham is the side on which the Eruv should take effect. He may not say that if two Chachamim come (one on each side of town), then he reserves the right to choose, on Shabbos, the side on which his Eruv will take effect.
The Gemara points out that, in both cases, the person utilizes Bereirah. Why, then, is the stipulation in the second case not valid while the stipulation in the first case is valid? The Gemara answers that in the first case, the Chacham has already arrived in one of the towns, and therefore the location of the Eruv will not be determined by a future event. Rather, it is determined by the present location of the Chacham (which will become known only when word of his arrival reaches this town).
Why does the Gemara not suggest a very simple difference between the two cases of Ayo? Perhaps even when one stipulates, "If the Chacham comes to the east, my Eruv is to the east," the Eruv is valid, because it involves no more than a normal case of a "Tenai" (a "yes" or "no" condition). It is comparable to a case of one who says, "If you do this act, this Get will be valid, and if you do not do this act, the Get will not be valid." In contrast, when the person says, "If two Chachamim come, I will choose tomorrow where I want my Eruv to take effect retroactively," there is no condition. The issue in that case is one of Bereirah, and thus the Eruv is not valid. Why does the Gemara consider the first case to be a case of Bereirah and not a normal case of a Tenai?
(a) RASHI in Gitin (25b, DH ul'Chi Mayis) writes that a condition, a Tenai, works only because the ability to fulfill the condition is in the hands of one of the parties involved, and it was the person's intention that the condition be fulfilled at the time that he stipulated the Tenai. (That is, because he plans to fulfill it and he wants the transaction to be consummated, the event that is contingent upon the completion of the Tenai takes effect immediately, even before the Tenai is executed. If the Tenai ends up un-fulfilled, then the event is uprooted retroactively. It is not possible to cause an event to take effect retroactively.)
This is not how the condition works in the case of Eruv Techumin. The fulfillment of the condition (that the Chacham comes to one side) is not in the hands of the person who makes the statement. Rather, it depends on the Chacham, who has nothing to do with the Eruv. Since the Eruv depends on an act that is not in the person's hands to fulfill, it is considered a case of Bereirah.
(b) The RAMBAN in Gitin (25b) argues with Rashi. He explains that a case of a Tenai exists when there are only two possibilities: either the event will occur or it will not occur. In contrast, when an event can occur in one of several ways it is not a case of Tenai. Rather, it is a question of Bereirah. The case of the Eruv that is dependent on the Chacham's arrival can occur in one of two ways (he could arrive in the east or in the west). Therefore, it involves Bereirah.
One still may ask, however, why is the case of the Chacham a case of Bereirah? Perhaps the person's stipulation involves two completely separate conditions. The first condition is that if the Chacham comes to the east, then the Eruv will be to the east, and if he does not come to the east, then the Eruv will not be to the east. The second condition is that if the Chacham comes to the west, then the Eruv will be to the west, and if he does not come to the west, then the Eruv will not be to the west. (See REBBI AKIVA EIGER, Ma'arachah #4 to Eruvin 38a. TOSFOS (end of Yoma 56a) in fact asks this question on the explanation of the Ramban.)
Apparently, the Ramban maintains that the establishment of the two Eruvei Techumin cannot be viewed as two independent events. Rather, one event takes place (an Eruv is made), and there are two possibilities as to how it will take place (to the east or to the west). The reason for this is that one cannot make two Eruvim to be Koneh Shevisah in two places (since a person lives only in one place at a time). Therefore, when the person adds that if the Chacham comes to the other side then his Eruv will be to that side, it is viewed as an addendum to his first condition. (See also Insights to Eruvin 36:2, Yoma 56:1, and Gitin 25:2.)
6) AN "AV MELACHAH" THAT IS A "TOLDAH"
QUESTION: The Gemara quotes the Mishnah in Shabbos that forbids one from squeezing fruit on Shabbos in order to extract the juice. RASHI (DH Sechitah) comments that Sechitah "is an Av Melachah." As the marginal note points out, Rashi elsewhere (Beitzah 3a, Shabbos 143b) explains that squeezing fruit is not an Av, but rather it is a Toldah of "Dash" (threshing)! How are the words of Rashi to be reconciled?
ANSWER: Rashi here uses the term "Av Melachah" in a manner consistent with his opinion elsewhere. Rashi understands that the term "Av Melachah" does not always refer to an Av as opposed to a Toldah. Rather, it means "a category of Melachah which the Torah prohibits on Shabbos," and it includes both Avos and Toldos Melachos (see Rashi to Shabbos 68a, DH Av Melachah, and Shabbos 18a, DH she'To'anin). (See also Insights to Shabbos 2:2, Shevuos 5:3.)
Rashi here emphasizes that Sechitah is Asur mid'Oraisa in order to explain the next part of the Mishnah in Shabbos, which mentions the Gezeirah d'Rabanan that prohibits the use of juice that flowed from a fruit by itself on Shabbos. The basis of that Gezeirah is in order to prevent a person from transgressing the Isur d'Oraisa of squeezing the fruit.