Siman 169 The Shamash (Waiter)
Mishna Berura
Yeshivat Har Etzion
SHIUR
#105:
Siman 169
By
Rabbi Asher Meir
CHAPTER
169 - THE SHAMASH (WAITER)
GIVING
FOOD TO SOMEONE WHO DOES NOT MAKE BERAKHOT
The
following passage provides the background for the end of se'if 1 and for se'ifim
2 and 3:
It
was asked: does someone who is fed have to wash [for bread]? Hear what Rebbe Zeira said in the name
of Rav: Don't put [bread] into the shamash's [waiter's] mouth unless you are
sure he washed. The waiter must
make a new blessing on each cup, but not on each slice of bread. And Rebbe Yochanan said, he makes a new
blessing on each slice.
Rav
Pappa said, it's easy to reconcile Rav and Rebbe Yochanan: The former is when
there is a great man, the latter when there is no great man. But at any rate we must know that he
washed [proving that even one who is fed must wash]! A waiter is different, since he is
preoccupied [and will eat even when not fed].
The
Rabbis taught [in a beraita]: Don't give a slice of bread to the waiter if the
cup is in his hand or in that of the host, so that there shouldn't be a mishap
in the meal. And if the waiter
didn't wash his hands it is forbidden to put a slice of bread in his mouth.
(Chullin
107b)
As
we already learned in siman 163:2, the conclusion of this passage is that
washing is required even for someone who does not touch the food because someone
else is feeding him.
Rabbeinu
Yona quotes an opinion that extends this prohibition in two
ways:
1.
It is also forbidden to put the bread in someone's hand.
2.
It is also forbidden to feed someone who will not make a
berakha.
The
first extension could be considered a "kol she-ken" (a deduction based on the
logic of "all the more so"): the infraction being abetted is more severe than
feeding someone who has not washed, since eating without washing is more severe
if the bread is handled (Bach). But in a way, this extension is surprising since
the role of the giver in the transgression is indirect. When the bread is in the
waiter's hand, he can easily put down the bread and wash before eating it. But
when it is put in his mouth, we hardly expect him to spit it out or even hold it
in his mouth until he washes (Beit Yosef).
The
second extension is straightforward. So, once we accept the extension to putting
bread in the waiter's hand, the further extension to berakhot seems evident.
GIVING
TZEDAKA
But
Rabbeinu Yona adds a reservation: if the bread is being given as tzedaka
(charity) it's permissible, since the intention is to perform a mitzva. Why
should the mitzva of tzedaka override the transgression of abetting? Here are
two explanations:
1.
The Taz writes that it is not certain that the poor person will not make a
blessing. The Magen Avraham adds that if we ARE certain, then we may not give
food to him. See MB end of s.k. 11.
2.
The Bach explains that the mitzva of tzedaka is being fulfilled immediately,
whereas "lifnei iver" (enabling a transgression) is not immediate. What does this
mean?
i.
One possibility is that delayed "lifnei iver" is not problematic; this seems to
be the Magen Avraham's understanding of the Bach. (See Chelkat Ya'akov OC
141.)
ii.
True "lifnei iver" applies even with a delay, but here there is a doubt if the
recipient really intends to do an aveira (transgression). Maybe he will wash or make a
berakha. In this case, the Bach
basically agrees with the Taz and Magen Avraham. If we were sure no berakha would be
made, then it would be forbidden.
Whichever
understanding we adopt, giving the bread does not involve "lifnei iver." It is only ABETTING a transgression,
called "misayeya." The lighter
prohibition of "misayeya" is waived in favor of the mitzva of
tzedaka.
DO
WE RULE LIKE RABBEINU YONA?
The
Beit Yosef objects that giving food to the waiter is also a mitzva; the Bach
rejects this comparison. On what
grounds can we distinguish?
One
possibility is that there is no distinction, and it would indeed be permissible
to put the bread in the waiter's hand.
After all, the gemara only forbids putting it into his mouth. However, the Tur does extend the
prohibition to putting food in the waiter's hand.
The
Prisha gives the following explanation: Fundamentally, it would be proper to
give the waiter bread even if he didn't wash, for the very reason the Beit Yosef
mentions - that this is indeed a mitzva.
But since the waiter is preoccupied, he will come to eat other bread also
without washing, just as the gemara above responds to Rav Pappa. The Prisha
evidently feels that since the waiter will be eating other bread, there is no
mitzva. This problem does not apply to a poor person - presumably because
anything we give him is a mitzva.
The
Taz also agrees that fundamentally Rabbeinu Yona's leniency applies even to a
waiter. But since a waiter is in my
employ, I can compel or at least instruct him to wash or make blessings. Since I
don't need to choose between fulfilling the mitzva and abetting the aveira, I
can't favor one over the other. But a poor person will be offended by having
conditions put on the tzedaka, and the mitzva will be spoiled. (The Taz says the
mitzva will be spoiled because the poor person will refuse to take the food.
Another possibility is that the mitzva will be spoiled because of insensitivity
to the recipient, as mentioned in SA YD 249:3 and 249:13.)
The
SA follows his opinion in the Beit Yosef and does not mention the leniency of
Rabbeinu Yona; the Rema rules like the Bach.
The
summary so far:
1.
Putting food into someone's mouth is "lifnei iver" (enabling) for a rabbinical
prohibition (i.e., eating without washing or without making a berakha). This is forbidden even in the place of a
mitzva.
2.
Putting the food into the hand involves the lighter problem of "misayeya"
(abetting). The leniency is due to
the delay or doubtful or optional nature of the transgression. This prohibition is overridden by the
fulfillment of the Torah mitzva of tzedaka.
3.
This applies when the misayeya is necessary for and limited to the tzedaka. But in the case of the waiter, the
transgression of abetting overrides the mitzva, either because the waiter is
preoccupied (Prisha) or because he can be instructed to perform the mitzva
(Taz).
THE
EXPLANATION OF THE GRA
The
Gra on the Shulchan Arukh refers us to the mishna Demai 3:1, which says that the
charity collectors (gabba'ei tzedaka) can collect food indiscriminately and
distribute it indiscriminately. In
other words, even if a poor person is careless with tithes, the gabbaim don't
have to make sure that he receives only tithed food. They can give him the food they receive
that is "demai" produce that may or may not have been
tithed.
The
Gra cites the Rambam on the mishna who explains that even though it is forbidden
for poor people to eat demai at their own tables, as
explained in the Yerushalmi, the gabbaim may give it to them. The Yerushalmi explains that if we were
to divide up the produce of the donors among those who tithe and those who
don't, so as to give the untithed produce to recipients who will tithe the food,
those donors deemed careless with tithes would feel slighted and refrain from
giving. The Gra suggests that this is the source for Rabbeinu Yona (that
a person may give a poor person food as tzedaka even though the recipient may
not make a berakha).
There
is a bit of a puzzle here, since the Rambam on the mishna explains according to
the Yerushalmi. But the Bavli rules
that the poor MAY eat the demai, and this is the ruling of the Rambam (Mishne
Torah Ma'aser 10:11). Since we rule that the poor may eat demai, it is hard to
see what the Gra's proof is for Rabbenu Yona. The gabbaim are not abetting a
transgression (as in the case of the berakha) since the poor are permitted to
eat demai. Presumably the Bavli permits giving it to them only because it
permits them to eat it!
One
likely explanation: the Gra understands that there is no reason to view the
causality in this way. Rather, BOTH
the giving and the eating were permitted for the SAME reason. The Yerushalmi allows the gabbaim to
distribute demai; the Bavli further allows the poor to eat it. Either way, we see that there is a
special leniency to encourage giving tzedaka. In particular, if we forbid the poor to
eat demai, then some pious donors will be reluctant to give it to them, fearing
abetting a transgression. And if we forbid the gabbaim to give the poor demai,
then some ignorant donors will be reluctant to give, fearing the stigma of
having their donation set aside for special treatment.
Of
course, this recalls the reasoning of the Taz. Ideally we would like to stipulate that
the poor person make a berakha, but then he would decline the tzedaka. Better to allow giving without a
stipulation, at least in the case where there is some chance he will make a
berakha.
HAND
TO MOUTH
We
already discussed possible differences between putting food into someone's mouth
and putting it into his hands. This
is actually discussed in the Yerushalmi mentioned above. The conclusion is as follows (brought
down in Rambam Ma'aser 10:13):
1.
A doctor treating an am ha-aretz (a layman who is not scrupulous in his
observance) can put the am ha-aretz's own demai produce into his hand - not his
mouth. But tevel (food that has definitely not been tithed) can not be put into
his hand.
2.
If the demai belongs to the doctor, he must tithe it even before putting it in
the am ha-aretz's hand. (A "chaver" (a special category of scholar who is
careful in his observance) should not even have demai in his
possession.)
3.
If the patient is a non-Jew, the doctor may give him even sure isur (any
forbidden food) - such as eiver min ha-chai (meat from a living animal) - as
long as it belongs to the non-Jew.
These
rulings are all easily explained with three rules:
i.
Putting in the mouth is "lifnei iver," and in the hand is
"misayeya."
ii.
There is no lifnei iver with a person's own possessions, since we cannot
withhold them from him.
iii.
There is no prohibition of misayeya with a non-Jew.
A
fourth rule explains all of our examples:
iv.
The mitzva of tzedaka permits misayeya if the misayeya is limited to and
necessary for the mitzva.
NON-RELIGIOUS
JEWS
There
are many religious (shomer Shabbat) Jews who are careless with berakhot, but
these Jews are usually willing to make a berakha if reminded. At any rate they have a "chezkat
kashrut" it can be assumed they want to keep mitzvot (see BH on our
siman).
But
non-religious Jews may resent such a request. Can they be offered
food?
Rav
Shlomo Zalman Auerbach (Minchat Shlomo 35a) permits this in the case where
refusing to offer them food will create resentment against Torah-true Jews. The reason is not concern for our own
welfare, but rather because such resentment is itself even a greater
transgression than eating without washing and blessing. The answer particularly
refers to a non-religious person who is an ally of Torah scholarship, but from
the rest of the responsum it seems that this is not critical. Rather, it is usual that such a
benefactor would be our guest and expect hospitality.
We
could object that the consideration of resentment was already mentioned. The Taz explains that a poor person is
different from a waiter because he will resent being asked to bless. Even so, giving him food is only
permissible because of the mitzva of tzedaka. But the resolution is simple. There is a big difference between a poor
person who takes mild offense at being asked to make a blessing and refusing
tzedaka, and between a person who will develop general resentment towards Torah
Jewry, which is a serious transgression for him.
There
is an additional leniency mentioned in the Tzitz Eliezer 11:34 and 12:67.
Selling food in a bar or restaurant may be considered permissible because you
don't serve people food until it is already theirs, and then there is no
question of misayeya. This is similar to what we learned above, that a doctor
may put the patient's own demai into the patient's hand. This implies that
eating without a berakha or without washing is likened to eating demai, not
tevel.
This
leniency covers many situations, not only restaurants but also serving food in
the army where the food basically belongs to the soldiers. It works better in a
hotel where board is part of people's rooms than it does in a restaurant where
people don't pay until the end, but the Tzitz Eliezer seems to imply that it is
valid for all cases where food is sold.