1)

TRANSGRESSING TO SAVE OTHERS FROM TRANSGRESSION [Aveirah: saving others]

(a)

Gemara

1.

(R. Chanina of Tirasa - Beraisa): If four lambs were slaughtered for two loaves, we throw the blood of two lambs Lo Lishmah (to permit Haktaras Eimurim and eating the meat.)

2.

Question (R. Yochanan): Do we transgress (Zerikah Lo Lishmah) in order to gain (salvage the other lambs)?!

i.

If limbs of a Chatas were mixed with limbs of an Olah, Chachamim do not permit to burn all of them, in order to gain (burn the limbs of the Olah)!

3.

Answer: We transgress in a Chatas in order to gain in a Chatas (the same matter). We do not transgress in a Chatas in order to gain in an Olah.

4.

Shabbos 4a - Question (Rav Bivi bar Abaye): If Reuven stuck a dough in an oven on Shabbos, may he remove it before it bakes, to avoid a Chiyuv Chatas?

5.

(Rav Shila): He was Shogeg. The question is whether someone else may remove it to exempt him.

6.

Objection: One may not sin in order to save someone else from sin!

7.

Eruvin 32a (Beraisa - Rebbi): If a Chaver (someone trustworthy about Ma'aser) said 'go fill this basket with dates from my tree', Shimon may eat without tithing. (Surely, the Chaver took Terumah.)

8.

R. Shimon ben Gamliel says, he may not eat until tithing Vadai. A Chaver would not separate Terumah Lo Min ha'Mukaf (far from the Peros it exempts).

9.

32b: Rebbi holds that it is better for a Chaver to transgress a minor matter (Lo Min ha'Mukaf), lest an Am ha'Aretz transgress a severe matter (eating Tevel). R. Shimon ben Gamliel disagrees.

10.

Gitin 38b (Rav Yehudah): One who frees a slave transgresses an Aseh - "forever you will make them work for you."

11.

Question (Beraisa): A case occurred in which R. Eliezer found only nine men in a Beis ha'Keneses, and he freed his slave to complete the Minyan.

12.

Answer: Rav Yehudah agrees that one may free a slave if needed for a Mitzvah.

13.

38a: Men were sinning with a Shifchah in Pumbadisa.

14.

Abaye: If not for Rav Yehudah's law, I would force her master to free her.

15.

Ravina: Rav Yehudah agrees that one may free a slave to prevent transgression!

16.

41a (Mishnah - Beis Shamai): A half-slave cannot marry a Shifchah, nor a Bas Yisrael. "Lasheves Yetzarah" (the world was created for procreation)! Rather, for Tikun ha'Olam, we force his master to free him, and the half-slave writes a document obligating himself to pay half his value to his master.

17.

Beis Hillel agreed to Beis Shamai.

(b)

Rishonim

1.

Rif and Rosh (Gitin 4:23): We free even a full Shifchah if she is sinning with men.

2.

Rosh: We permit freeing a slave also for a Mitzvah of the Rabim.

3.

Rambam (Hilchos Avadim 9:6) One may free a slave even a Mitzvah mid'Rabanan, e.g. to complete a Minyan. If men treat a Shifchah like Hefker, we force her master to free her, so she will marry and men will not sin through her.

i.

Tosfos (4a DH v'Chi): It is better that a Chaver transgress a small matter so that an Am ha'Aretz not eat Tevel through the Chaver (Eruvin 32b). When the Isur is not through Ploni, Ploni should not do even a small Isur to save another from a severe Isur. For the great Mitzvah of Peru u'Rvu, we force a master to free his half-slave. R. Eliezer freed a slave for the sake of a Mitzvah of the Rabim. Further, we can say that one may not do a light sin to save another who transgressed from a bigger sin (but one may sin to save someone blameless). They forced a master to free his half-Shifchah because she made herself available for Zenus, and it is as if men were coerced, so it was like a Mitzvah of the Rabim.

ii.

Tosfos (48a DH Chet): One may not transgress the Lav of burning Shirayim of a Chatas for the sake of an Olah, but it is permitted for the sake of a Chatas. We do not transgress breaking a bone of Pesach in order to merit eating the marrow inside (Pesachim 85a), for eating does not fix the Korban as much as burning the limbs (of an Olah). Even fixing a Korban is permitted only if it was already slaughtered. If Shtei ha'Lechem was lost, one may not slaughter the lambs Lo Lishmah. If a Todah was mixed with a Temurah, one may not transgress even Chulin b'Azarah in order to fix it (Menachos 80a). However, if Dam ha'Nefesh was mixed with Pasul blood, we do not put it on the Mizbe'ach to merit with the Kosher blood (Zevachim 78a)! That is a decree, like it says there. If a Kometz was mixed with the Shirayim, we do not sin (burn) the Shirayim to fix the Kometz (Menachos 23a), because they have different names (it is like sinning for the sake of a different matter).

(c)

Poskim

1.

Shulchan Aruch (OC 306:14): If Reuven heard that his daughter was taken on Shabbos to uproot her from Yisrael, it is a Mitzvah to pursue to save her. He leaves even the Techum of three Parsa'os. If he does not want, we force him.

i.

Beis Yosef (DH Nish'al): The Rashba (7:267) was unsure whether this is permitted according to the opinion that the Techum of three Parsa'os is mid'Oraisa, and whether one may bring documents to save her. He leaned to forbid, for Levi may not violate even a light matter to save Ploni from a big sin, unless it is due to Levi. Tosfos permits for the sake of a big Mitzvah, or when Ploni is blameless. Both answers permit here. If he does not want, we force him, like we force a master to free a half-slave. It seems that we permit even Chilul Shabbos mid'Oraisa. This is a small Isur compared to a girl becoming an apostate and transgressing her entire life.

2.

Rema: See Siman 328:10.

i.

Question (Bach DH Kosav): In Siman 328, the Rema rules like the Rashba, who forbids one to be Mechalel Shabbos to save another who is being coerced to be Mechalel Shabbos. There, the Rema references here, in which the Shulchan Aruch rules like Tosfos. This connotes that the Halachah follows both of these!

ii.

Answer #1 (Bach): Here, we fear lest Nochrim scare her into becoming an apostate and sinning. There, he will be forced to transgress. Even if he serves idolatry, this is not an Aveirah. The Torah exempts Ones! We do not even change an enactment of Chachamim (that virgins get married on Wednesday) to avoid Ones (being raped by the governor)!

iii.

Rebuttal (Magen Avraham 29): We are more lenient to save one who was Ones than one who transgressed b'Mezid! The Rema (329:8) says that also Siman 306 discusses Ones!

iv.

Answer #2A (Magen Avraham): The Beis Yosef permits here because one Chilul Shabbos is small compared to a lifetime of sin. One may not desecrate Shabbos to prevent one sin, even idolatry, for Chilul Shabbos is like idolatry.

v.

Answer #2B (Taz 5): There he will sin only once b'Ones. Here she will be an apostate forever.

vi.

Mishbetzos Zahav: The distinction is between whether the person will transgress forever, even b'Ones, or only once.

vii.

Gra (DH Mi): We permit only when both answers of Tosfos apply. It is not a great Mitzvah to save someone who will be forced to sin only once.

viii.

Answer #3 (Malbushei Yom Tov 328:4): The text of the Rema in Siman 328 is not 'Ein Mechalelim' (we are not Mechalel), rather, 'Im Mechalelim' (whether we are Mechalel, i.e. the Rema says that this is explained in Siman 306).

ix.

Nachalas Shiv'ah (83): The Beis Yosef permits only when the vistim was not negligent. I say that even if one decided on his own to renounce Judaism, one may be Mechalel Shabbos even mid'Oraisa to try to stop him. The Rashba did not decide the matter. I say that this is like a Choleh (sick person). It is better that we transgress one Shabbos, and he not transgress many. It is praiseworthy to rush (to save him). If one stops to ask, he murders. Many may be Mechalel Shabbos to save a Choleh; we do not say 'one may not sin to save another.' Do not say that this is because the Choleh was not negligent. No one dies without sin (if he is mortally sick, surely he sinned)! We are Mechalel Shabbos to unearth a house that fell even if there are many Sefekos (if we will save a Yisrael). If we do so to save from death, all the more so we do so to save from eternal death! Also according to Tosfos' first answer, this is a great Mitzvah. Chilul Shabbos is small in comparison. We are Mechalel Shabbos for a Choleh to enable him to observe many Shabbosos, even though if we do not save him, he will die and not transgress Shabbos. All the more so we are Mechalel to enable one to observe many Shabbosos, and many other Mitzvos the entire year, in a case where if we do not, he will transgress many Shabbosos! This is even if it is unsure if we can save him, and even if he was negligent, which is like Ones due to enticement; afterwards he will regret it.

x.

Shevus Yakov (1:16): A Rav permitted to leave the Techum to stop someone from being Moser (enticing authorities to take money of Yisre'elim). If this was only to save money, he erred. If it was to save the Moser from sinning, Rishonim argue about whether one should sin to help another. The Beis Yosef rules like Tosfos, who permits, but only if the victim was not negligent. The Rema said to see Siman 328, where he ruled like the Rashba, who forbids. Acharonim toiled to resolve the Rema. Except for the Bach (which the Magen Avraham refuted), they concluded that when the person sinned, we do not transgress even a light Isur of Shabbos for him. Even if Moser would be like ceasing to be a Yisrael, we do not transgress for him, since he was negligent. Nachalas Shiv'ah was lenient against the Rashba, Tosfos and Shulchan Aruch, without a source in Poskim. He relied on his own reasoning, which is wrong. 'There is no death without Chet' refers to Shogeg. Negligence is different. He said that we save a life, and all the more so we save from sin. Even though making someone sin is worse than killing him, we find that for (almost all) severe sins, one should transgress and not die. We do not sin for one who chooses to forfeit his world to come.

xi.

Mishnah Berurah (56,57): If she transgressed, one may not save her. Eliyahu Rabah permits regarding an Isur mid'Rabanan. If she is blameless, one may transgress Melachos mid'Oraisa to save her.

xii.

Kaf ha'Chayim (106): The Levush permits saving other relatives. Other Acharonim permit saving even strangers. It seems that we force him to do so, but Mishbetzos Zahav (5) says that we force only to save a daughter.

xiii.

Magen Avraham (20): It is not clear whether we transgress for the sake of a minor. The Rashba does not allow an individual to save the Tzibur, but all the Poskim disagree.

xiv.

Kaf ha'Chayim (328:62): One may be Mechalel Shabbos to save the Tzibur from a decree to be Mevatel a Mitzvah.

xv.

Mishnah Berurah (57): Eliyahu Rabah permits saving a minor, for if not she will be like a Nochris her entire life.

3.

Rema (328:10): If people want to force someone to do a great Aveirah, we are not Mechalel Shabbos to save him (see Siman 306).

i.

Gra (DH Mi): This is like the first answer in Tosfos. Peru u'Rvu is different. Otherwise, one may not transgress to save another even from a Chiyuv Misah.

ii.

Levush (13): We do not tell someone to sin to save another from any Aveirah other than the three great Aveiros (idolatry, incest or murder). For other Aveiros, the victim himself can save himself; he transgresses b'Ones. If the victim fears lest he be enticed and not save himself and transgress, we do not sin to help him.

iii.

Eliyahu Rabah (306:32): Malbushei Yom Tov, the Taz and Magen Avraham say that one transgresses only to save one who will transgress many times. The Levush is correct. The Rashba and Beis Yosef discussed when there is no mortal danger, i.e. they will not kill one who refuses to transgress.

iv.

Mishnah Berurah (31): We do not tell someone to sin to help another. However, if the victim will be forced to do one of the three Aveiros, and one estimates that the victim will forfeit his life, perhaps one must be Mechalel Shabbos so he will not come to this.

v.

Kaf ha'Chayim (61): All the more so, the victim himself may be Mechalel Shabbos to save himself from the need to be Moser Nefesh for one of the three Aveiros.

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