PESACHIM 26 (Tisha b'Av) - Dedicated by Rabbi Dr. Eli Turkel of Ra'anana, Israel, in memory of his father, Reb Yisrael Shimon ben Shlomo ha'Levi Turkel. Isi Turkel, as he was known, loved Torah and worked to support it literally with his last ounce of strength. He passed away on 10 Av 5740.


BENEFIT WITHOUT INTENT [Hana'ah :without intent]




25b (Abaye): If one benefits [from Isurei Hana'ah] against his will, it is permitted;


(Rava): It is forbidden.


Version #1: If one intends to benefit, all forbid;


If he could not avoid benefit, and does not intend to benefit, all permit;


They argue about when he could avoid benefit, and does not intend to benefit;


According to R. Yehudah, who forbids Davar she'Eino Miskaven, all forbid. They argue according to R. Shimon;


Abaye permits, like R. Shimon;


Rava says that R. Shimon permits only when he cannot avoid benefit.


Version #2: R. Yehudah and R. Shimon argue about one who could avoid benefit, and does not intend to benefit;


If he could not avoid benefit, and does not intend to benefit, both of them permit;


Abaye and Rava argue about when he cannot avoid benefit, and intends to benefit;


According to R. Shimon, who says that it depends on intent, all forbid. They argue according to R. Yehudah, who equates intent and lack of intent. If he could avoid it, it is forbidden;


[When he cannot avoid benefit,] Abaye permits, like R. Yehudah;


Rava says, R. Yehudah equates intent and lack of intent to be stringent when one could avoid benefit, but not to be lenient when one cannot avoid benefit.


Avodah Zarah 48b (Mishnah): One may not sit in the shade of an Asherah.


Question: This is obvious!


Answer (Rabah bar bar Chanah): The Mishnah forbids sitting in a weak (long) shadow.


(Mishnah): One may not pass under it. If he did, he is Tamei.


(R. Yitzchak ben Elazar): The text is 'he may pass' (l'Chatchilah).


Answer #2 (R. Yochanan): It says 'if he passed' (b'Di'eved).


They do not argue. Both forbid only if there is another path.


(Mishnah): If a tree was stealing from (its foliage was overhanging) a Reshus ha'Rabim and he passed under it, he is Tahor.


Rav Sheshes [was blind. His servant transported him. He] told his servant 'when we pass under the Asherah, hurry'!


Question: If there is no other path, it is permitted. He need not hurry;


If there is another path, it is forbidden even if he hurries!


Answer: Really, there was no other path. An important person should be stringent to hurry.


Shabbos 3a (Shmuel): The Mishnah exempts one who 'traps' a deer [that is already trapped]. Really, it is permitted.


107a (Mishnah): If one traps a snake on Shabbos so it will not bite him, he is exempt. If he trapped it for Refu'ah (to use it for a cure), he is liable.


Bava Metzi'a 32b - Question (Beraisa): If an animal was carrying forbidden wine, he is exempt [from unloading it].


We understand this if pain to animals is not mid'Oraisa.


However, if it is mid'Oraisa, what is the reason?


Answer: The Beraisa exempts from loading forbidden wine [but he must unload it].




Rif (Avodah Zarah 21a): Rav Sheshes told his servant 'when we pass under the Asherah, hurry'!


Ran (DH Haysah): The Tum'ah underneath is mid'Rabanan. Chachamim did not decree when it steals from the Rabim. We forbid sitting in its shade. Presumably, one may pass through. Letter of the law, even sitting without intent [for benefit] is permitted, for it is possible and he does not intend. We permit this. We decree to forbid sitting, lest he delay and come to intend. This concern does not apply so much to passing through its shade. Passing underneath is forbidden due to Tum'as idolatry. Alternatively, we forbid sitting in its shade only when he intends. If not, it is permitted. The Gemara asked 'this is obvious!' If we forbid even without intent, this is a big Chidush! Letter of the law it is permitted. If so, there is no difference between sitting and passing. Without intent, both are permitted. It seems that with intent both are forbidden. The Gemara discussed the usual case, in which one who intends to benefit from the shade sits. However, perhaps one may pass under even with intent to benefit, for this is not an important Hana'ah, just like it seems that the Rambam and Rif permit shade of shade. However, perhaps the Gemara asked ''this is obvious!' against the opinion that forbids even without intent. Also for the one who permits without intent, and establishes the Mishnah to be with intent, this is obvious. Indeed, we could have answered according to the Halachah that our Mishnah is without intent, and mid'Rabanan. It would teach a big Chidush. Rather, we prefer an answer that both can agree to. However, we can still ask, since according to the Halachah, the Gemara holds that the Mishnah discusses intent, and we ask that this is obvious, what is the source to be Mechadesh an Isur without intent? It is difficult to say that we asked according to one opinion, unlike the Halachah. (I.e. therefore our Mishnah permits without intent.)


Rambam (Hilchos Avodah Zarah 7:11): One may not pass under an Asherah if there is another path. If there is no other path, he passes underneath while running.


Tosfos (Pesachim 22b DH v'Ever): We forbid passing to a Nochri Ever Min ha'Chai that belongs to him, only due to "v'Lifnei Iver." How does this show that one may benefit from it? Since one may not profit through Isurei Hana'ah, even though b'Di'eved the wage is permitted, l'Chatchilah it is forbidden even for free, for the Nochri will have gratitude. This is considered wages. In Bava Metzi'a, we said that if Tza'ar Ba'alei Chayim is mid'Oraisa, one must unload an animal laden with Yayin Nesech. Even though this is like profiting through Isurei Hana'ah, even if it is for free, since he does not intend for gratitude, due to Tza'ar Ba'alei Chayim, this is considered like "impossible, without intent", which is permitted. Alternatively, "he is exempt" connotes even when the Nochri is not there, and will not have gratitude.


Ran (38a DH l'No'el): The Rashba brings from the Yerushalmi that if one wanted to lock his house, and saw a deer inside, he may intend also for the deer. If he saw a child drowning, and he intended to take him and fish out of the water, it is permitted. This is unreasonable. How can we permit trapping just because he wants to lock his house? Even R. Shimon forbids a Pesik Reishei! Rather, the Yerushalmi means that if he intended only to lock his house, and afterwards found a deer inside, he need not let it out. However, regarding the child he may intend for Melachah of Reshus together with Piku'ach Nefesh. It is permitted, for it is Melachah of a Mitzvah. He is obligated to do it. Chachamim permitted to also intend for Melachah, lest he refrain from his obligation.


Rosh (Avodah Zarah 3:8): The case is, there was no other path, but an important person should be stringent.


Tosfos (48b DH Iy): 'There is another path' refers to a path as short as the path under the Asherah. If not, there is always another path!




Shulchan Aruch (YD 142:9): One may not pass under an Asherah if there is another path. If there is no other path, he runs under it.


Beis Yosef (DH u'Mah): The Rif and Rosh did not bring the conclusion that an important person should be stringent. (Note: This is in our text of the Rosh!) Also the Rambam did not bring this distinction. The Ran questioned why they didn't distinguish.


Shach (20): The Gemara connotes that it is permitted only if it steals from the Rabim.


Gra (20): The Shulchan Aruch cites the Rambam. He omitted 'if it steals from the Rabim', for he explains this to mean that the road is underneath it, and this is included in 'there is no other path.' The Ra'avad explains 'it steals from the Rabim' to mean that the road preceded the idolatry.


Shulchan Aruch (OC 316:7): On Shabbos one who traps snakes or other Remasim that damage, if it was for Refu'ah, he is liable. If he intended so they will not bite him, it is permitted.


Bi'ur Halachah (DH ha'Tzad): In places where they regularly kill, perhaps even if he intends for Refu'ah, he is exempt, since it is a Mitzvah to eradicate them from the world, lest they kill people, like in Sa'if 10. We find that if a child was drowning in a river, and one spread a net and saved him, even if he intended to trap fish (he is exempt - Yoma 84b). One can reject this proof. Here he intends only for the cure. When it is impossible [to avoid benefit from Isur] and he intends to benefit; it is forbidden. The Sugya forbids spreading out an Aveidah (for his benefit), even though one must spread it out [lest it get moldy]. Also here, even though the action itself is a Mitzvah where snakes often kill, it is worse due to his added intent.


Rema (OC 450:6): One may not buy Chametz for a Nochri during Pesach, even with the Nochri's money.


Magen Avraham (10): There is no Shelichus for Nochrim, so the Yisrael buys for himself. Also, perhaps he will eat it. Also, he wants the Chametz to exist. See YD 133:6. Tosfos (Pesachim 22b) says that in front of the Nochri, the gratitude the Nochri will have is considered wages. Tosfos connotes that if a Nochri's animal was loaded with Chametz, one may not unload in front of him. The first opinion permits, because Tza'ar Ba'alei Chayim is mid'Oraisa, and he does not intend for the gratitude. This is impossible, and he does not intend, which we permit. The Tur says so in CM 272.

See Also:

Other Halachos relevant to this Daf: