When Faced with Inevitable Transgression | Rabbi Zalman Baruch Melamed | Beit Midrash

Mishna and Talmud
Various Shiurim

קטגוריה משנית

The Torah study is dedicatedin the memory of

Asher Ben Haim

1. Setting Sail before Sabbath
2. A Supporting Proof for Rif
3. Explaining Baal HaMaor
4. Further Discussion of Baal HaMaor's Position
5. Wearing Tzitzit that Were Torn on Sabbath
6. How much should a person invest?
7. The Nighttime Burglar

Setting Sail before Sabbath
We find the following Baraita in the Talmud (Shabbat 19a):
"One may not set out in a ship less than three days before the Sabbath. This was said only [if it is] for a voluntary purpose, but for the sake of a commandment, it is permitted; he stipulates with him that it is on the condition that he will rest [on the Sabbath], yet he does not rest: this is Rabi's view. R. Simeon ben Gamaliel said: It is unnecessary."

Early authorities disagree over the reason for the prohibition against setting sail. Rabbi Yitzchak Aslfasi (known as the Rif) cites an opinion which claims that our Baraita is actually referring to a ship which is in low waters, lower than ten handbreadths. If the ship leaves this area there is a problem of exceeding the Sabbath limits (techumin), and this is the reason that the rabbis prohibited this.

The Rif himself, however, rejects this interpretation, for the Baraita draws no distinction between large ships and small ships. He also rejects it on the grounds that if we are dealing with a case of possible Sabbath violation, it should have been prohibited to set sail even more than three days before the Sabbath.

Therefore, the Rif explains that the Baraita is not dealing with a situation in which there is a risk of violating the Sabbath, but a situation in which one runs the risk of abrogating the commandment of Sabbath joy. Generally, when on a ship, a person suffers for the first three days from sea sickness (nausea, loss of appetite, ect.) but after this period the sickness passes, therefore it is forbidden to set sail three days before the Sabbath.

Rabbi Zerachyah HaLevi of Gerona (known as Baal HaMaor) sides with the position rejected by Rif. He explains that the three days prior to the Sabbath are called "before the Sabbath," and one who boards a ship during this period appears to be making a condition to override the Sabbath. During these three days, a person is responsible for preparing for the Sabbath. Before the onset of these three days, one can board a ship even though he will eventually be forced to violate the Sabbath due to life preserving measures (pikuach nefesh).

From the wording of Baal HaMaor - he writes that such a person "appears to be making a stipulation to suspend the Sabbath" - it is clear that the prohibition against setting sail and thus placing oneself in a situation where life preserving measures must be taken on the Sabbath is not a Torah prohibition. This is also evidenced by the fact that it is permissible to set sail on the first three days of the week, and by the fact that for the sake of a commandment it is permissible to set sail even on the day before Sabbath. If the prohibition were biblical in origin there would be no room for such delineations.

A Supporting Proof for Rif
As said, Rif is of the opinion that where there is risk of Sabbath violation, it is forbidden to board a ship even at the beginning of the week. Baal HaMaor's approach, on the other hand, calls for examination: on the face of things, it is possible to prove from the Talmud that the prohibition against putting oneself in a situation which will lead to the annulment of a commandment is biblical in nature.

The Sages of the Talmud (in tractate Succah 25a) deliberate over the principle which teaches that "one who is occupied with one commandment is exempt of another commandment." One of the sources of this rule is the Torah portion dealing with the second Passover (Numbers 9:6ff). There we are told that "there were certain men who were defiled by the dead body of a man so that they could not keep the Passover on that day." The Talmud explains that those individuals were occupied with tending to a corpse for which nobody was available to bury ("met mitzvah"). Therefore, they were unable to offer the Passover sacrifice.

From here the Talmud learns that "one who is occupied fulfilling one commandment is exempt of another commandment," for it was permissible for them to become defiled by a corpse despite the fact that this would cause the abrogation of the commandment to offer the Passover sacrifice. From here we see that there is a specific verse which teaches us that it is permissible, and even obligatory, to care for a "met mitzvah," even though by doing so one is prevented from offering the Passover sacrifice. It is further explained there that where a person is not occupied fulfilling a commandment it is forbidden for him to put himself in a situation which will effectively prevent him from being able to fulfill a commandment.

Explaining Baal HaMaor
How, then, can we explain Baal HaMaor's position which says that the prohibition against putting oneself into a situation of pikuach nefesh on Sabbath is rabbinical, not biblical?

It would appear that we must draw a distinction between the abrogation of a commandment on account of compelling circumstances on the one hand, and its abrogation on account of life endangerment on the other. When it comes to compelling circumstances, the commandment continues to exist but it cannot be fulfilled. However, in a life-threatening situation, the commandment to protect life nullifies altogether the commandment to observe the Sabbath - the laws of Sabbath were not intended to apply in such circumstances.

It is possible to liken the situation wherein life endangerment overrides the Sabbath to a situation wherein a positive commandment overrides a negative one. There is no prohibition against entering into a situation wherein a positive commandment overrides a negative one even if a person is not bound by the positive commandment. We learn this from the source of the principle that "a positive commandment overrides a negative one" - the placement of woolen thread on a linen garment.

The Torah teaches that the prohibition against forbidden mixtures is overridden in the case of tzitzit (tassels) because "a positive commandment overrides a negative one." And despite the fact that a person can refrain altogether from fulfilling the obligation to wear tzitzit (one need not necessarily wear tzitzit; one can round the corners of the garment so that it be rendered exempt from tzitzit), such abstention is not required. When the Torah tells us that "a positive commandment overrides a negative one," it is telling us that the negative commandment is being abrogated, and it follows that it is permissible to put oneself into such a situation.

Another example of this principle can be seen in the obligation to return lost objects. The Mishnah teaches us that it is forbidden for a Kohen to enter a graveyard in order to retrieve a lost article. The Talmud asks: why does the positive commandment to return a lost object not override the prohibition against a Kohen becoming defiled? The answer is that the prohibition against priestly defilement is not only a negative commandment, it is also positive - "you shall by holy."

According to Ramban, the obligation to return a lost item only takes effect after one has lifted the lost item; before lifting the item all that applies is the prohibition, "you may not ignore it." And despite this, the Talmud says that if the prohibition against defilement were only a negative commandment, the Kohen would be enjoined to place himself in a position wherein he would be obligated to return the lost item, despite the fact that by doing this he causes himself to abrogate the prohibition against priestly defilement.

In sum, the validity of the principle that "a positive commandment overrides a negative one" is not limited to a situation wherein a person already finds himself in the midst of a positive obligation, rather, it involves a forthright dispensation to put oneself into such a situation.

On the face of things, the same is true when it comes to life endangerment on the Sabbath, for life endangerment is itself a positive commandment when a person's life is endangered. When a person takes a long sea journey, he puts himself into a situation wherein he will bound by divine command to violate the Sabbath. And because the abrogation results from a commandment, it is comparable to the "a positive commandment overrides a negative one" principle, and not to the abrogation of a commandment in compelling circumstances.

Further Discussion of Baal HaMaor's Position
We might very well want to explain Baal HaMaor's position in the above manner, except for the fact that Baal HaMaor himself does not say it. He appears to say, as we shall see, something else.

In the past, it was believed that after circumcision a baby must be washed in hot water as a necessary health measure. In a case where there is no hot water for this purpose the early authorities are at ends as to what should be done: Ramban holds that after the infant has been circumcised it becomes permissible to heat water on Sabbath as a life preserving measure; Baal HaMaor, however, writes that the infant should not be circumcised so as not to enter into a situation of life endangerment which will override the Sabbath.

Beit Yosef explains that these early authorities disagree over whether labor is rendered permitted on Sabbath where human life is at risk or its prohibition is merely overridden. Ramban is of the opinion that labor is permitted in a case of life endangerment on the Sabbath, and in such a case the laws of Sabbath simply do not exist; therefore there is no problem getting oneself into such a situation. Baal HaMaor, on the other hand, holds that when the protection of human life collides with the laws of Sabbath, the laws of Sabbath are overridden, and this means that only where there is no choice is it permitted to violate the the Sabbath (and this is different than the principle that "a positive commandment overrides a negative one").

And from here the question returns to the Baal HaMaor: Why is it prohibited to circumcise on Sabbath where such a step will lead to life endangerment which will call for violating the Sabbath yet at the same time it is permitted to set sail on a ship on the day before Sabbath for the sake of fulfilling a commandment, despite the fact that this will lead to the the violation of Sabbath?

It appears that a distinction must be drawn between Friday and Sabbath. On Friday, because an individual has not yet become bound by the commandment to keep Sabbath, there is no Sabbath prohibition and it is permissible to put oneself into a situation of life endangerment which will lead to the violation of Sabbath.

However, this only applies where one takes such a step for the sake of fulfilling a commandment. Where one wishes to put himself into such a situation for other reasons there is no such dispensation, and the Sages decreed that one must begin to act more than three days before Sabbath. Otherwise, a person appears to be planning to violate the Sabbath. If one acts more than three days before Sabbath it is outright permissible, for the Sages did not forbid sailing long distances at sea.

As noted, all of this applies before Sabbath enters, but on the Sabbath itself, wherein a person is already bound by the laws of Sabbath, it is forbidden to put oneself into a state of life endangerment.

Parenthetically, it should be pointed out that from the words of Baal HaMaor it is not clear whether the prohibition on Sabbath is biblical or rabbinical. From the words of Beit Yosef who writes that Sabbath is overridden in a case where life is in danger it appears that the prohibition is biblical in nature, but it is also possible that it is rabbinical, and this question calls for further study.

At any rate, all this relates to a case of life endangerment. However, all agree that it is biblically forbidden to put oneself into a situation in which one would be forced to abridge a Torah commandment for the sake of a non-compulsory act. We learn this from the verse which permits a Kohen to become defiled by a corpse for the sake of fulfilling a commandment (where this will lead to the abridgment of the commandment to offer a Passover sacrifice).

An example of this is the commandment to cover the blood of a slaughtered kosher animal. Shulchan Arukh rules that "one who lacks soil for covering [the blood] cannot slaughter." If a person does not have the soil necessary to fulfill the commandment to cover the animal's blood it is forbidden for him to slaughter, because by slaughtering he will be forced to abridge a commandment.

The same goes for Festivals - if one did not prepare earth before the onset of the Festival (so that it not be rendered muktzeh with the onset of the Festival) it is forbidden to slaughter, despite the fact that after slaughtering he will become compelled to leave the blood uncovered.

Wearing Tzitzit that Were Torn on Sabbath
One of the principal forbidden labors of Sabbath is tying. The question arises: is it permissible, on Sabbath, to wear a garment which lacks tzitziot (tassels) such that after it has been donned the wearer will be unable to tie tzitziot to it?

Early authorities disagree on this issue. Mordechi, in the name of Rabbi Shlomo from Troyes, says that this is forbidden. Rabbi Yitzchak bar Shmuel (known as the Ri), on the other hand, explains that the obligation is "to put tassels on it when one wears it." In other words, the commandment to wear tzitzit is not a prohibition against wearing a garment which lacks tzitzit but a positive commandment to put tzitziot on a garment which has four corners. Therefore, on Sabbath, when a person is unable to tie tzitziot on a garment, there is no commandment to do so.

Rabbi Shlomo from Troyes, then, accords with what we have seen so far, that it is forbidden to put oneself into a position where fulfilling a commandment is impossible. However, how shall we understand the opinion of the Ri? Why, according to the Ri, is it forbidden to slaughter when there is no soil? After all, the commandment to cover blood is not a prohibition but a positive obligation.

It would appear that we need to draw a distinction between the commandment to cover the blood of a slaughtered animal and the commandment of tzitzit. Regarding the commandment to cover blood the law is that if the wind blew soil over the blood there is no need to cover it. From here we can see that the commandment is essentially that the blood not be left uncovered. However, regarding tzitzit, the commandment is fulfilled through the act of tying, and on Sabbath this obligation does not exist, for the Torah does not obligate to tie tzitzit on Sabbath. At any rate, this question calls for additional investigation.

In sum, the main principle is that it is forbidden to put oneself into a position where one is unable to fulfill a commandment. To the contrary, a Jew is commanded to put himself into a situation wherein he becomes obligated, and in the Talmud we are told that if a person avoids the commandment of tzitzit and opts for wearing clothes which lack four corners, he will end up paying the price for this in his hour of danger. This results despite the fact that he has not abrogated a commandment. Instead of running away from commandments, a Jew should run after them.

How much should a person invest?
Just how much must a person invest and exert himself in order to avoid getting into a situation where he must abrogate a commandment because of compelling circumstances or life endangerment? For example, what happens where somebody must care for a sick person on Sabbath and this calls for cooking food and turning on the light? If the neighbors have food and light, is it possible for the attendant to ask them to give all of their food to the sick person so that the he not have to violate the Sabbath by cooking for the sick?

Is a person obligated to incur loss in order to avoid pikuach nefesh and inevitable commandment violation in the same way that he must change the date of his ship departure in order to avoid getting into such a situation? Or do we say that because the obligation to protect human life is such an important commandment, there is no need to concede?

Rabbi Shlomo Zalman Auerbach and other authorities have addressed this question. Rabbi Auerbach says that a person who is not responsible personally for the sick person and is not occupied in preserving life is certainly not obligated to invest his own money in order that those who are caring for the ill not violate the Sabbath. He writes that it is possible to prove that even the one caring for the sick does not have to invest his own money for such a cause.

His proof is that if a Kohen is going along his way and comes across a corpse which needs to buried ("met mitzvah"), the Kohen must defile himself in order to care for the corpse. And even if he can hire workers to do this, the letter of the law does not oblige him to do this. A positive commandment overrides a negative one, and therefore he can care for the dead himself.

Rabbi Auerbach's proof is based upon a comparison between the principle that "a positive commandment overrides a negative one" and the principle that "life endangerment overrides Sabbath" though we (earlier) suggested that perhaps a distinction should be drawn between them. In abridging a commandment because "a positive commandment overrides a negative one" it is altogether permissible to enter into a positive commandment, for a positive commandment is completely permitted, but when it comes to abridging a commandment because of life endangerment, this depends apparently on the answer to the question of whether Sabbath labor is permitted or overridden when it comes to life endangerment.

Rabbi Auerbach continues, explaining that if his position is not accepted then we would have to conclude that every woman who enters her ninth month of pregnancy must rent an apartment in the proximity of the hospital in order to avoid putting herself into a situation of life endangerment which would cause her to travel on Sabbath. Furthermore, we would have to conclude that a sick person would be obliged on Yom Kippur to receive food intravenously. However, we have never heard of such a thing.

Yet, really, this issue really ought to be addressed, for who says that this is not the correct approach?

The Nighttime Burglar
At any rate, Rabbi Auerbach is of the opinion that because preserving life is a commandment, a person need not invest money in order to prevent a commandment's violation, and he wants to bring more support for this from the case of a nighttime burglar.

The law says that if a thief breaks into a house in the middle of the night it is permissible for the homeowner to get up and kill him, for when the homeowner rises he is in a situation of life endangerment and the thief has the status of a assailant. Despite the fact that if the homeowner stays in his bed and makes out to be sleeping the thief will take what he likes and nothing will happen, it is permissible for the homeowner to rise and by so doing create a situation where the burglar becomes an assailant and liable to death. Rabbi Auerbach adds that there is even an obligation to act in such a manner, for if not, burglars will multiply, and there will be no end to it.

However, Magen Avraham has a different understanding of things. According to him, the law which allows for killing the burglar relates to other people, not the homeowner. The fear is that the homeowner will in fact rise, for it is very difficult for a person to be indifferent and to sit back and watch while a burglar steals his belongings. However, it is forbidden for the homeowner himself to rise.

"This calls for further investigation," writes Magen Avraham, "for he should be left to steal the goods rather than violate the Sabbath, yet perhaps we are concerned because a person does not remain indifferent regarding his wealth." Shulchan Arukh HaRav rules according to Magen Avraham and Mishnah Berurah brings this opinion as the final ruling.

Shulchan Arukh HaRav believes that the words of Magen Avraham are tied to the disagreement between Ramban and Baal HaMaor regarding circumcision on Sabbath when no hot water is available. As said, according to Ramban the circumcision must be carried out despite the fact that this involves life endangerment; according to Baal HaMaor, it is forbidden to circumcise under such circumstances.

Just as according to Baal HaMaor the commandment to circumcise must be abridged in order to avoid entering into a scenario of life endangerment, so too one must forgo his belongings in order to avoid life endangerment. Losing the fulfillment of a commandment is no less significant than the loss of belongings. However, according to Ramban, who says that the Torah obligation overrides the prohibition, here too it is possible that one need not part with his wealth, because the protection of life overrides all else.

Kovetz He'arot brings a similar question with relation to the principal that a positive commandment overrides a negative commandment. The rule is that for fulfilling a positive commandment a person must be willing to expend a fifth of his assets, but in order to avoid a prohibition a person give all of his money. Now, if a person, on Passover night, only has an olive's-worth of matzah from the chadash (the new harvest from which it is yet forbidden to eat), the positive commandment to eat matzah overrides the prohibition against eating chadash.

In light of this, the question arises, what is the law when a person can buy wheat from the old crop yet this will cost more than a fifth of his assets? Regarding the commandment to eat matzah, he need not spend more than a fifth. However, if he does not buy from the old he will need to eat from the new, thus violating a prohibition - but one must spend all of his money in order to avoid a prohibition. The Kovetz He'arot cites the opinion of his father-in-law, Rabbi Meir Atlas, who says that a person can fulfill a positive commandment from the chadash and does not have to spend more than a fifth, for, as noted, a positive commandment overrides a negative one outright.

Various Shiurim