Makeh Be-Patish Infractions for Halakhic Status Changes

  • Rav Moshe Taragin

In a previous shiur, we discussed the prohibition of makeh be-patish, which literally refers to the final stages of hammering out metal. One view determined that makeh be-patish prohibits activities that entail the culmination of a manufacture or crafting process. The very “blow” by which or through which an item evolves is prohibited on Shabbat. Alternatively, this melakha of makeh be-patish may prohibit minor or peripheral adjustments that typically accompany the conclusion of the manufacture process. Several gemarot discuss makeh be-patish in the context of halakhic changes, and this shiur will address this scenario.

The gemara in Shabbat (106a) discusses whether the melakha of chovel is prohibited even if it yields no enhancement. The gemara, at least according to Rashi's reading, indicates that the performance of mila violates makeh be-patish, since it renders a halakhic change to the baby. This is the first indicator that makeh be-patish may be violated when an activity enables a change in halakhic status. Not all Rishonim read the gemara in this fashion, perhaps implying that they disagree and maintain that only physical changes qualify as makeh be-patish violations.

At first glance, the extension of makeh be-patish to halakhic status changes suggests that makeh be-patish is defined as completing a manufacture process. If the melakha is defined in this way, perhaps enabling a halakhic change can be cast in a similar light since it entails the conclusion or completion of a “process.” The baby is fully defined as Jewish only after his mila, and this resembles the material completion of a manufactured item.

A second gemara (Beitza 17b) discusses the prohibition of mikve immersion for utensils on Shabbat. The gemara lists several reasons for the prohibition, concluding with Rava's suggested logic: Immersing utensils in a mikve resembles makeh be-patish.  Presumably, this gemara reinforces the assertion of the aforementioned gemara in Shabbat that rendering halakhic changes violates makeh be-patish. Rava's language is ambiguous, however, possibly prohibiting immersion only because it appears similar to classic makeh be-patish (and is therefore only prohibited Rabbinically). Even if Rava classifies immersion as classic makeh be-patish, many other Amora’im suggest alternate reasons for the prohibition of immersion on Shabbat, and they presumably deny the applicability of makeh be-patish to halakhic changes. In fact, the Rif appears to side with this latter option, citing the opinion of the other Amora’im who assign different reasons to the issur. The Rosh, however, rules as Rava did, writing that immersion is prohibited on Shabbat because of makeh be-patish.

If we read Rava literally, it would appear that creating a halakhic status is an act of makeh be-patish. By extension, makeh be-patish would then be defined as completing an act of manufacture.

Alternatively, the makeh be-patish status of immersion (if it exists at all) may be based on a different factor. Unlike mila, which is exclusively a halakhic change, utensil immersion enables benefit by allowing the use of the utensil. Perhaps makeh be-patish in general is defined not as completing a manufacture process, but as performing post-production adjustments that yield certain improvements. Any time adjustments that yield benefit are performed toward the conclusion of a process, makeh be-patish is violated. It is not the status change per se that violates makeh be-patish, but rather the end-stage activity that yields significant benefits.

This reading is supported in the continuation of the gemara, in Beitza, which permits human immersion in a mikve on Shabbat because the person appears to be swimming in order to cool down. Had mikve immersion been prohibited based upon the halakhic change per se, the appearance of the process would be inconsequential. However, if utensil immersion is considered makeh be-patish because it resembles post-production activity meant to yield expanded benefit, however, perhaps activities that do not resemble adjustments, but instead appear to be hygienic treatment, would not be forbidden.

The Mishna Berura appears to read the gemara in this fashion when he distinguishes between immersion of impure vessels, which the gemara bans, and the immersion of new utensils, which the gemara does not discuss and which is not prohibited mi-de’oraita. Immersing impure utensils allows their use and is therefore considered makeh be-patish. By contrast, immersion of new vessels provides no new utility; food placed in new vessels that have not yet been immersed may still be eaten. This type of immersion is not considered makeh be-patish. Evidently, it is the benefit yielded that violates makeh be-patish, rather than the halakhic status change.

Interestingly, Rabbenu Chananel may have prohibited halakhic change as makeh be-patish because of the benefits yielded, rather than the actual status change. Commenting on the gemara that prohibits mila as makeh be-patish (Shabbat 106), he explains that mila will allow the child to consume teruma (which is forbidden to uncircumcised males) and also permit his father to offer a korban Pesach (which is forbidden to a parent of an uncircumcised boy). By stressing the benefits of mila rather than highlighting the status change, Rabbenu Chananel appears to define the makeh be-patish component as end-stage adjustments that yield extra utility/benefit.

A third gemara discussing halakhic change and makeh be-patish may help sharpen the basis for the prohibition. The gemara in Beitza (36b) prohibits teruma processing on Yom Tov, presumably because it yields a halakhic change, once again confirming our initial suspicions that rendering halakhic status change per se is tantamount to material construction and in violation of makeh be-patish.  Consistent with this logic is a gemara in Shabbat that allows (at least according to R. Yehuda's opinion) the processing of teruma that has become mixed with permissible grains. This mixture – known as "meduma" – can only be repaired by introducing a 100:1 ration of permissible grain as well as removing a volume of grain equal to the original teruma. R. Yehuda allows this removal on Shabbat even though this process permits consumption of the mixture. As several Tosafot in Shas comment (see Tosafot, Gittin 31a and Bechorot 59a), processing the mixture is permissible because no real status changes entails. The non-teruma grains were never halakhically defined as teruma; they could not be eaten because they were submerged in a teruma mixture. Removing a volume equivalent to the original teruma adulteration does not change the halakhic status of the non-teruma grain, but practically allows it to be eaten. By contrast, assigning original teruma status changes non-teruma grains into teruma and is forbidden as makeh be-patish. This reading of the gemara corroborates the view of makeh be-patish as status alteration and explains the exemption for cases in which a status was not truly converted.

Despite this compelling logic, the gemara appears to draw a different distinction between permissible processing of teruma mixtures and prohibited teruma designation. Teruma designation requires an action, whereas removal of a column of grain can be effected through mental designation. In a pinch, a person can simply look to a certain area of the mixture and designate the requisite volume as teruma and designated for removal. Since the processing does not require an action, it cannot be prohibited as makeh be-patish. This logic does not evoke makeh be-patish based on completing a process of manufacture of halakhic rendering, as in that case the need for material action would be inconsequential. Apparently, makeh be-patish consists of end-stage adjustments, and only discernible activities can be prohibited. Activities that can be replaced by mental designation are not evocative enough to resemble end-stage adjustments and cannot be forbidden. Just as a human can immerse in a mikve on Shabbat because it appears as if they are merely swimming, unwanted grains can similarly be removed because they can me mentally marginalized. In both cases, no demonstrative action has been performed and no issur can entail.

Finally, the gemara in Sukka (34) discusses the processing of corrupted haddasim stalks that are incorporated into the lulav bundle. If the berries outnumber the leaves, the stalk is invalid. The gemara prohibits reducing the berries and one reading of the gemara indicates that this is forbidden due to actual makeh be-patish (see the Mordechai in Sukka). This reading of the gemara once again indicates the makeh be-patish can stem from any halakhic status change.

However, the continuation of the gemara asserts that if the owner possesses alternate haddasim stalks, the validation of this superfluous stalk does not violate makeh be-patish. This would indicate that makeh be-patish is based on the benefit accrued. If the owner derives no benefit, as he possesses sufficient alternate resources, makeh be-patish is not violated.

(The Arukh famously read this gemara differently, suggesting that the presence of alternate haddasim makes the act permissible based on a pesik reisha exclusion, thereby neutralizing this gemara as a an indicator source of makeh be-patish for halakhic transformations.)