Issur Melakha and the Shabbat Day of Rest Part 4

  • Rav Doniel Schreiber



By Rav Doniel Schreiber





by Rabbi Joseph B. Soloveitchik






Shiur #19: Issur Melakha and the Shabbat Day of Rest: Part IV



In the previous shiur we discussed the prohibition to perform a "pesik reisha de-lo nicha lei," an action the inevitable consequence of which is a Shabbat violation, despite the fact that one does not desire this tangential outgrowth, in the context of a Torah proscription.  As an addendum to this law, it is important to note that some halakhic authorities rule that this is only true when one merely does not care about the outcome of the act; however, where one is actually unhappy about the outcome - i.e.  some harm is done - a pesik reisha is permissible (Tosefot, Shabbat 103a, and Me'iri, Shabbat 29b).  Other posekim argue, asserting that even in such a situation pesik reisha is forbidden in the context of a Torah violation (Tosafot, Shabbat 78a), and this indeed appears to be the ruling of the later posekim (see Chazon Ish 51:14).


For further study:

1.              Is lo nicha lei defined objectively as an outcome that people generally do not view as a benefit, or subjectively as a result that the person in consideration does not view as a benefit? See Minchat Shlomo, by Rav Shlomo Zalman Auerbach, pp.  548-549, where he adopts the former option; however, compare this with Bei'ur Halakha 320:18, who might accept the latter opinion.  The practical difference is whether opening a refrigerator door, which will turn on a light, is considered lo nicha lei when one closes his or  her eyes. 

2.              Is lo nicha lei defined leniently as an act which will yield no benefit on Shabbat, or stringently as an act which will never, under any circumstances, yield a benefit? See Yalkut Yosef 4, vol.  5, pp.  201-202, note 19, where Rav Ovadya Yosef seems to prefer the former opinion.  The practical difference is whether turning on the motor of a refrigerator through a pesik reisha is considered lo nicha lei, since even if the motor would not go on during Shabbat the food would remain unaffected until sometime after Shabbat.  The former approach would consider it lo nicha lei, whereas the latter opinion would consider it "nicha lei" or desirable.


What is the law in a case of a pesik reisha de-lo nicha lei in the context of a rabbinical violation? This is a major dispute amongst the posekim.  Many halakhic authorities are lenient in this case and permit it, for an assortment of reasons.  For instance, Tosafot (Shabbat 103a, s.v.  Lo tzerikha) explain that a pesik reisha de-lo nicha lei is rabbinically forbidden in the context of a Torah prohibition, since, were it permitted, one might come to perform a pesik reisha where there is benefit and thereby violate a Torah prohibition.  However, the Sages did not see fit to prohibit a pesik reisha de-lo nicha lei in the context of a rabbinical prohibition, since it is unnecessary to prohibit an action that might lead to a rabbinical violation.  See also Tosafot, Shabbat 41b, s.v.  Meicham and Maharsham 5:48, as well as Be'er Yitzchak, appendix to chapter 15, who rules leniently where there is no other alternative.


Other lenient opinions assert that this case is an instance of sefeik sefeika le-kula (double doubt in favor of leniency), inasmuch as some posekim rule that a pesik reisha de-lo nicha lei is permitted even in the context of a Torah prohibition, and many other decisors rule that as pesik reisha in the context of a rabbinical prohibition is permitted.  Thus, since two different lenient rulings overlap in this case, a majority of posekim emerge with a permissive ruling.  See Yechaveh Da'at 2:46.


Most Sephardic posekim, and many Ashkenazic posekim, rule leniently in this case, on the basis of one of the above rationales; see Yabi'a Omer 4:34.  Such a position leads to the following leniencies: One may walk past video cameras and LED or LCD motion sensors (the operations of which are all rabbinical prohibitions) where one accrues no benefit.  See Journal of Halacha and Contemporary Society, no. 21, Spring 1991, "The Use of Electricity on Shabbat and Yom Tov" by Rabbi Michael Broyde and Rabbi Howard Jachter, pp. 10-11, and ibid. no. 23, Spring 1992, "Modern Technology and the Sabbath" by Rabbi Michael Broyde, p.  79.


Nonetheless, many posekim, such as Magen Avraham (316:8), Dagul Mei-revava (340:3), and Chazon Ish (50:5), argue with the above position, and rule stringently, forbidding a pesik reisha de-lo nicha lei even in the context of a rabbinical prohibition.  This also seems to be the opinion of the Rema (316:3).  [For further research: While the Mishna Berura is quoted as concurring with this position (see Rabbi Shimon Eider, Halachos of Shabbos, III F 8, note 91), he himself, in fact, appears to equivocate on the matter.  See MB 321:57 and Sha'ar Ha-tziyun 68; Sha'ar Ha-tziyun 337:2,10; and MB 340:17.]


Mishna Berura (MB 316:15 and Sha'ar Ha-tziyun 316:18) explains in the name of the Peri Megadim, however, that this stringent opinion would generally permit a pesik reisha de-lo nicha lei in the context of two intersecting independent rabbinical prohibitions, such as covering a large crate that contains flies. 


Let us take a moment to explain this example.  In the first place, the flies we encounter are generally not of the type usually captured and therefore, catching them is forbidden only rabbinically; beyond this, flies are not considered completely trapped in a large crate, because one must still exert effort to catch them, and thus using a large crate to trap small prey - even those creatures normally hunted - is prohibited only rabbinically.  Therefore, since one is uninterested in catching the flies, but only in covering the crate, the action is a pesik reisha de-lo nicha lei in a case of two independent rabbinical prohibitions. 


See also Sha'ar Ha-tziyun (337:2), who cites the Rema in 316:3 as agreeing with this position.  For further research, see MB (314:11) and Chazon Ish (52:15, 56:4), who discuss the parameters of permitting this configuration, as in some cases the custom is to forbid a pesik reisha de-lo nicha lei even in a case of three intersecting rabbinical prohibitions.


While it appears that, according to those who rule stringently in the application of a pesik reisha de-lo nicha lei to a rabbinical prohibition, it would be forbidden to walk past a video camera, a possible leniency has been suggested (see Modern Technology and the Sabbath, pp.  80-81).  There is a tradition, cited in Shulchan Arukh (OC 320:18), to rely on the opinion of the Arukh, who allows a pesik reisha de-lo nicha lei even in the context of a Torah prohibition, when there is at least a minority opinion which allows the intentional performance of a given action.


For instance, many modern posekim allow the raising or lowering of current in an electrical appliance (Yabi'a Omer 1:19; SSK 23:52; Be'er Moshe Kuntres Electricity #56; "The Use of Electricity on Shabbat and Yom Tov," ibid.  pp.  34-35).  While we do not rely on this lenient opinion in practice, it would seem one may rely on it in a case of pesik reisha de-lo nicha lei.  Based on this premise, it would also emerge that it is theoretically permissible to turn electrical appliances on and off (where no incandescent lights are lit, as such a result involves a separate issue beyond the problem of utilizing a circuit), in a manner that is a pesik reisha de-lo nicha lei, since there is a minority opinion which allows this action even when done deliberately.  (See "The Use of Electricity on Shabbat and Yom Tov," ibid.  pp.  20-21.)


Next time, we will discuss the case of sefeik pesik reisha.  Such a cases arises, for instance, if one does not remember if the light-bulb in a refrigerator was disconnected before Shabbat, and he or she now wants to open the door: is this action permissible? We will address this and the other instances of sefeik pesik reisha in our upcoming shiur.