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.