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Davar She'aino Mitkavein

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Oct 18, 2006
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Davar She'aino Mitkavein: Actions with Unintended Results


When a person performs a specific action, he does so with the intent of achieving a certain result.  Sometimes, an action will produce a secondary result.  While the possibility of this secondary result may be known to the person at the time of performance of this action, he does not necessarily intend to achieve such a result.  This potential secondary result of a permissible action is known as davar she'aino mitkavein.  This article will discuss the parameters of davar she'aino mitkavein and the concept of pesik reishei.


The Concept of Davar She'aino Mitkavein


There is a dispute between R. Shimon and R. Yehuda regarding davar she'aino mitkavein.  R. Yehuda is of the opinion that davar she'aino mitkavein is prohibited.  R. Shimon maintains that it is permitted.  One of the examples provided by the Gemara, Beitzah 23b, is a dispute recorded in a Beraita regarding dragging a bed, chair, or bench across a field on Shabbat.  The intention of the action is to move the item to the other side of the field.  However, dragging the item may result in creating a furrow, which is prohibited on Shabbat.  R. Yehuda rules that it is prohibited to drag these items across the field.  R. Shimon rules that it is permissible to drag these items as long as one does not intend to create a furrow.  The Gemara, Shabbat 22a, rules in accordance with the opinion of R. Shimon that davar she'aino mitkavein is permitted.  [This dispute is not limited to Shabbat.  The Gemara applies this dispute to other areas of Halacha (See Shabbat 29b, and 133a, Nazir 42a, and Keritut 20b).  Nevertheless, this article will focus on davar she'aino mitkavein as it relates to Shabbat and Yom Tov.] 


Pesik Reishei: The Unavoidable Result


The Gemara, Shabbat 103a, presents a major limitation to R. Shimon's leniency regarding davar she'aino mitkavein.  The Gemara states that R. Shimon agrees that if the davar she'aino mitkavein produces a result that is unavoidable, that action is prohibited.  This is known as the concept of pesik reishei.  The term pesik reishei is based on the rhetorical question "pesik reishei v'lo yamut?" (You will cut off his head and he won't die?).  Rashi, Sukkah 33b, V'Ha, explains that the classical case of pesik reishei is one where a person desires to decapitate an animal on Shabbat but does not intend to kill the animal.  Although the death of the animal is a secondary result of the action, and it can be classified as a davar she'aino mitkavein, nevertheless, since the secondary result (i.e. the death of the animal) is unavoidable, it is prohibited to decapitate the animal.  The discussion of the Gemara, Shabbat 103a, implies that one can violate a biblical prohibition if the unavoidable secondary result entails a biblical violation.


The Gemara then distinguishes between results that are beneficial to the one who performs the action and results that are inconsequential to the one performing the action (see Rashi, Shabbat 103a, s.v. B'Ara).  If the result is inconsequential it is termed "pesik reishei d'lo nicha lei." Aruch, Erech Pasak, rules that an action which results in pesik reishei d'lo nicha lei is permitted.  Tosafot, Shabbat 103a, s.v. Lo Tzricha, disagree with Aruch.  They maintain that an action that will result in pesik reishei d'lo nicha lei is prohibited, albeit as a rabbinic violation. Shulchan Aruch, Orach Chaim 320:18, rules in accordance with the opinion of Tosafot, but does mention the opinion of Aruch.   [See also, R. Simcha Zelig Rieger's ruling in HaPardes 8:3 (1934), no. 14.]


Pesik Reishei whose Result is a Rabbinic Violation


The above discussion regarding pesik reishei is limited to cases where the secondary result constitutes a biblical violation of Shabbat.  If the secondary result constitutes a rabbinic violation there is a dispute between Terumat HaDeshen 1:64, and Magen Avraham 314:5. Terumat HaDeshen maintains that there is no prohibition against performing an activity if the secondary result will constitute a rabbinic violation. Magen Avraham asserts that it is prohibited. Mishna Berurah 314:11, rules in accordance with the opinion of Magen Avraham.  [See also, R. Yitzchak Elchanan Spector, Be'er Yitzchak, Orach Chaim no. 15, who rules in accordance with the opinion of Terumat HaDeshen.]


The leniency of Terumat HaDeshen applies even in a situation where the secondary result is beneficial to the one performing the action.  It is possible that Magen Avraham will agree that if the result is inconsequential to the actor, the action is permissible.  For this reason R. Ovadia Yosef, Yechave Da'at 2:46, rules that if the secondary result only constitutes a rabbinic violation and the result is inconsequential to the actor, the action is permissible.  R. Yehoshua Y. Neuwirth, Shemirat Shabbat KeHilchata, Mavo L'Hilchot Shabbat, note 46, contends that an inconsequential pesik reishei is only permissible if the resulting violation is a rabbinic violation that is twice removed (i.e. there are two independent reason why this should only constitute a rabbinic violation).  [See R. Mordechai Willig, Am Mordechai, Shabbat no. 31, for an analysis of this issue and a compromise position.] 


The Parameters of what is Considered Beneficial


Suppose someone has a refrigerator with a fan that deactivates when the door is opened.  According to some poskim, deactivating a fan does not constitute a biblical prohibition.  [See R. Shlomo Z. Auerbach, MinchatShlomo no. 9.  According to Chazon Ish, Orach Chaim 50:9, deactivating a fan constitutes a biblical prohibition.]  One can then argue that if the fan would be considered inconsequential, it would be permissible to open the refrigerator despite the fact that the fan will deactivate.  This is based on the principle that pesik reishei d'lo nicha lei is permissible if the secondary result constitutes a rabbinic violation.  However, this argument is invalid.  The deactivation of the fan should be considered beneficial because it prevents the cool air from escaping when the refrigerator door is open.


One might then argue that the activation and deactivation of the fan is not beneficial because by declaring it beneficial it is now prohibited to open the refrigerator on Shabbat and the detriment caused by not being able to open the refrigerator on Shabbat (or by opening it and violating a prohibition) certainly outweigh the benefits of the fan.  R. Shlomo Z. Auerbach, Minchat Shlomo 91:9, rejects this argument.  He rules that when determining what is considered beneficial one must discount the prohibition factor.  One must ask whether the secondary result is beneficial if (hypothetically speaking) the secondary result were to be permissible.  [If one has a refrigerator with a fan that operates based on the position of the door, he can simply secure the button that controls the fan (with strong tape) in the depressed position and avoid this issue.]


R. Auerbach then discusses another situation.  Suppose someone forgot to disconnect the light in the refrigerator prior to Shabbat.  If he opens the door, the light will activate.  [Let's assume that the light is a neon light.  If the light is an incandescent bulb, its activation would certainly constitute the biblical violation of ha'avara, kindling (see Minchat Shlomo no. 12).]  The light is generally considered beneficial as it serves to illuminate the refrigerator.  However, in this particular situation, someone would like to render the activation of the light inconsequential by blindfolding himself (or closing his eyes).  R. Auerbach rules that this will not help.  In determining what is considered beneficial and what is considered inconsequential, one must look at a system's general use and not at one specific use.


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Learning on the Marcos and Adina Katz YUTorah site is sponsored today by the Goldberg and Mernick families to mark the yahrzeit of Samuel M. Goldberg, R’ Shmuel Meir ben R’ Eliyahu HaCohen z”l and by Mutty & Aliza Lehrman for a Hodu LHashem Ki Tov