The Melakha of Ha'avara: Transporting an Item in a Public Domain

  • Rav Moshe Taragin

The first mishna in Shabbat spotlights the melakha of hotza'a (transporting items from a private domain to a public one) by delineating four test cases of transfer of tzedaka monies. Though the mishna introduces this list with the heading, "yetziot ha-Shabbat," which literally refers to hotza'a – bringing items outside one's private home to the public domain, it is clear from the mishna's ensuing examples that hakhnasa – relocating from a reshut ha-rabim to a reshut ha-yachid – is more or less equivalent to hotza'a. Whether hakhnasa qualifies as an 'av' parallel to hotza'a, or as a tolada (derivative) of hotza'a, is a debate among several amoraim. Interestingly enough, the mishna makes no mention of HA'AVARA - transporting an item four amot within a reshut ha-rabim. Later in the masekhet (96b) the gemara classifies ha'avara as a halakha le-Moshe mi-Sinai, as opposed to hotza'a, which stems from various pesukim. But the gemara does not identify more specifically the relationship between hotza'a/hakhnasa and ha'avara. This shiur will attempt to assess this relationship.

An interesting machloket between Rashi and Tosafot may shed light upon the nature of ha'vara. A gemara in Shabbat (5b) establishes that hotza'a is violated only if the act was performed with original intent to relocate. If, for example, an item was moved in a reshut ha-yachid with intent to relocate within that reshut ha-yachid, but subsequently the item was transported to reshut ha-rabim, no melakha has been violated. Tosafot in Sukka lodge a similar claim regarding ha'avara - it is violated only if the action commenced with intention to transport the item four amot. Rashi in Sukka, however, disagrees, claiming that unlike hotza'a, ha'avara does not require this premeditation.

Presumably, Rashi and Tosafot debate the correspondence between hotza'a and ha'avara. Is ha'avara fundamentally different from hotza'a, in that the latter act involves the item's RELOCATION, whereas ha'avara does not relocate, and is forbidden merely as an act of MOVEMENT? Or, does ha'avara RELOCATE as well - moving the item across a width of four amot? In his comments to the gemara (96b), the Ba'al Ha-ma'or invokes the principle of 'daled amot shel adam ke-shelo' - the immediate radius of four amot surrounding an individual is akin to his 'chatzer.' As such, transferring an item from that four-ama radius to another location is functionally equivalent to relocating it from one 'chatzer' to another. Tosafot apparently concurred with the Ba'al Ha-ma'or: since ha'avara is comparable to hotza'a, it requires original lifting with intent to effect the transfer. By contrast, Rashi distinguished between hotza'a and ha'avara. The former act is forbidden as one of relocation, and for this relocation to be fully cognitive it must be originally intended (see Rashi to Shabbat 5b). Ha'avara, however, entails mere MOVEMENT, and no intent of repositioning is necessary.

Acknowledging this difference between hotza'a and ha'avara, and noting the viability of a 'non-premeditated' removal, might enable us to understand an even more extreme position staked by a Tosafot in Eiruvin (33a), that ha'avara does not require removal and placement in reshut ha-rabim. Typically, hotza'a requires removal from a reshut ha-yachid and repositioning in a reshut ha-rabim. In fact, the entire purpose of the first mishna is to provide scenarios to highlight these dual requirements. Tosafot claim that if an item were removed from a reshut ha-yachid, transferred four amot in a reshut ha-rabim and replaced in a different reshut ha-yachid, ha'avara would be violated. The Rashba rejects this approach, claiming that ha'avara is violated only if removal from, and replacement in, reshut ha-rabim occurs. Clearly, Tosafot in Eiruvin follow the logic underpinning Rashi's view in Sukka and apply it more radically. If ha'avara is dissimilar to hotza'a and entails not REPOSITIONING, but rather sheer MOVEMENT, it should perhaps make no difference from where the item was removed or where it was replaced, as long as it was moved a distance of four amot in a reshut ha-rabim. Rashi in Sukka did not suggest this concept; he merely claimed that premeditated intent was not mandatory. Tosafot in Eiruvin claim that neither removal from a reshut ha-rabim nor replacement in a reshut ha-rabim is necessary.

Perhaps the most famous distinction between ha'avara and hotza'a was developed by Rav Chayim of Brisk (in the recorded chiddushim known as the "stencils"). The gemara in Ketuvot (31a) discusses the rule of kim lei be-de-rabba minei – when a crime which yields capital punishment is committed, accompanying financial penalties are waived. This waiving applies only if the monetary penalties stem from actions which occurred simultaneous to crimes warranting capital punishments. Yet, the gemara claims that if a person fires an arrow four amot in a reshut ha-rabim on Shabbat and the arrow tears an article of clothing in its trajectory, the monetary payments are waived. Even though the tearing of the garment did not technically occur simultaneous to the shooting of the arrow, nevertheless, the entire process is considered one continuous event, the two events(movement of four amot and tearing the garment) are considered simultaneous. A parallel gemara in Bava Kama (70b), however, discusses a situation whereby a thief consummates his act of theft by hurling the stolen item from a reshut ha-rabim into a reshut ha-yachid on Shabbat. The gemara does not apply kim lei in this instance, since the Shabbat violation occurs only when the item lands in reshut ha-rabim, while the theft and the monetary penalty has concluded when the stolen item reaches the airspace of the thief's courtyard. Since the monetary penalty precedes the capital one, it is not waived. Tosafot in Bava Kama question why the gemara does not apply the same principle of Ketuvot: since both the monetary and criminal penalties emerge form the same integrated process, they should be considered simultaneous and kim lei should be applied.

Rav Chayim distinguished between the gemara in Ketuvot, which discusses the Shabbat violation of ha'avara, and the gemara in Bava Kama, which addressed the violation of hotza'a. In the latter situation, the issur is one of relocation. The critical stages are the removal and replacement of the item, while the movement from one zone to another is merely incidental: until the item has been moved to the next zone, it cannot be repositioned in another area. However, the 'endpoints' of this act are the critical stages of the violation. Accompanying monetary penalties which accrue DURING the act of movement are not integrated with the critical endpoints of removal and replacement of item. Since they are not integrated, they are not considered halakhically simultaneous, and the principle of kim lei does not apply. However, in the scenario of Ketuvot, it is the melakha of ha'avara which is being considered. As developed earlier surrounding the views expressed by Rashi in Sukka and Tosafot in Eiruvin, this violation is based upon not relocation, but rather sheer movement. The essence of this Shabbat violation is not its endpoints, but the intervening movement. Any accompanying monetary penalty which occurs during the process of that movement is thus fully integrated in the Shabbat violation and considered simultaneous. Garments torn while the arrow MOVES through the four-ama distance are an integral aspect of the Shabbat violation and are therefore subject to the exemption of kim lei. Rav Chayim's distinction, applied to kim lei, is in concert with the opinions of Rashi and Tosafot, both of whom viewed ha'avara as a distinct melakha, structurally dissimilar to hotza'a.