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Practical Applications of Pesik Reishei

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Oct 31, 2006
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Practical Applications of Pesik Reishei


The previous issue introduced the concept of pesik reishei; an action that includes an unavoidable prohibited result.  That article presented a distinction between beneficial unavoidable results (pesik reishei d'nicha lei) and non-beneficial unavoidable results (pesik reishei d'lo nicha lei) and indicated that room for leniency exists when the unintended result is only a rabbinic violation.  This week's article will focus on some of the practical applications of pesik reishei


Safek Pesik Reishei


As noted in the previous issue, an action with an unintended prohibited result (davar she'aino mitkavein) is permitted if the result is not inevitable.  Let us compare two different situations. In the classic scenario of davar she'aino mitkavein – dragging a chair across the lawn - we don’t know whether dragging the chair will create a furrow. It is possible that a furrow will be created, but it is also possible that a furrow will not be created, because the chair is not heavy enough, or because the ground is too hard, etc.    


Taz, Orach Chaim 316:3, queries regarding a subtly different situation, which is best clarified by example.  Suppose someone is unsure whether he disabled the light in the refrigerator prior to Shabbat.  On the one hand, it is arguable that opening the refrigerator is a davar she'aino mitkavein since there is a doubt as to whether the light will activate.  On the other hand, it is arguable that this is not a davar she'aino mitkavein.  If the light was not disabled, it will (almost) certainly activate upon opening the refrigerator.  The only doubt that exists revolves around a previous event – whether the light was disabled.  In this second type of situation, the doubt is not about whether the current action will produce an unintended prohibited consequence, but rather, about whether some prior act occurred (in our example, failure to deactivate the light prior to this Shabbat) which would lead the current action to have an unintended prohibited consequence.    This type of situation is termed safek pesik reishei (l'she'avar).


Taz concludes that one may treat this situation as a davar she'aino mitkavein and allow the action to take place.  R. Akiva Eger, Glosses to Yoreh De'ah 87:6, disagrees and maintains that one must be stringent on the matter.  R. Eger proves his position from a ruling of Rama, Yoreh De'ah, 87:6.  Rama rules that it is prohibited to stoke the coals of a furnace which has a pot on it that belongs to a non-Jew since by stoking the coals he may in fact be cooking meat and milk together (cooking meat and milk together constitutes a biblical violation, see Yoreh De'ah 87:1).  R. Eger notes that this situation is one of safek pesik reishei.  The person who stokes the coals has no intent to cook another person's food.  His primary intention is to warm the house or to cook his own food.  Additionally, this person does not know if there is meat and milk in the pot.  Rama's conclusion that one should not stoke the coals proves that safek pesik reishei is prohibited.


Mishna Berurah, Bi'ur Halacha 316:3, s.v. V'Lachen, in addressing this issue, concludes that if the safek pesik reishei will potentially result in a biblical violation, one should be stringent.  If the potential result is only a rabbinic violation, one may assume the lenient position.  R. David Z. Hoffman, Melamed L'Ho'il 3:102, rules that regarding Shabbat, which requires m'lechet machshevet (pre-designed action), one may be lenient regarding safek pesik reishei, since the action lacks a clear knowledge of the result.  Regarding other areas of Halacha, where the principle of m'lechet machshevet does not apply, one must assume the stringent position.  With this distinction, R. Hoffman notes that R. Eger can no longer prove his position from Rama's ruling.  Rama's ruling relates to the laws of basar b'chalav where m'lechet machshevet does not apply.  


Amira L'Nachri on Pesik Reishei


R. Yisrael Isserlin, Terumat HaDeshen 1:66, rules that it is permissible to ask a non-Jew to perform a permissible action whose secondary result will constitute a violation (pesik reishei).  This ruling is codified by Rama, Orach Chaim 253:5 and Mishna Berurah 253:99.


One can question Rama's codification of this ruling.  As noted in the previous issue, Terumat HaDeshen is lenient regarding all forms of pesik reishei whose result is a rabbinic violation.  Asking a non-Jew to perform a melacha (amira l’nachri) only constitutes a rabbinic violation.  Therefore, it is logical that Terumat HaDeshen would permit asking a non-Jew to perform an action whose secondary result constitutes a violation.  However, this ruling is codified as law, even though Terumat HaDeshen's ruling regarding pesik reishei on rabbinic violations is not.  If so, how can one justify asking a non-Jew to perform an action whose secondary result is a biblical violation?


There are two answers to this question.  First, one can suggest that asking a non-Jew to perform an action whose secondary result is a biblical violation is less severe than a Jew performing an action whose secondary result is a rabbinic violation.  This is the implication of Mishna Berurah's comments (op. cit.).  Second, Shulchan Aruch HaRav, Orach Chaim 253:10, suggests that the reason why pesik reishei is permissible regarding amira l'nachri is because the prohibition of amira l'nachri only applies when one asks a non-Jew to perform an action that entails a prohibition.  In this situation, the non-Jew is asked to perform an action that is permissible.  The secondary result is inconsequential to the prohibition of amira l'nachri.


There is a potential practical difference between the first approach and the second approach.  According to the first approach, this situation is one where the prohibition of amira l'nachri does not apply.  As such, it is likely permissible to benefit from the prohibited result.  According to the second approach, such a situation may be comparable to remizah (hinting) where it is prohibited to benefit from the result.  [See "Amira L'Nachri Part I."]


The Vilna Gaon, Biur HaGra to Rama, Orach Chaim 253:5, disagrees fundamentally with Rama's ruling.  He claims that pesik reishei does not mitigate the prohibition of amira l'nachri.  Therefore, if the pesik reishei is one that is beneficial and the prohibited result is of biblical origin, one may not ask a non-Jew to perform that activity.  However, if the result if not beneficial (lo nicha lei), one may ask a non-Jew to perform the activity.  [The leniency regarding lo nicha lei is based on the premise that lo nicha lei translates into a rabbinic prohibition for a Jew which is a shevut d'shevut to ask a non-Jew, see "Amira L'Nachri Part II."]


R. Moshe Feinstein, Igrot Moshe, Orach Chaim 2:68, rules in accordance with Rama's leniency and applies it to a situation where someone forgot to disable the light in the refrigerator prior to Shabbat.  He allows someone to ask a non-Jew to open the refrigerator even though the light will inevitably be activated.  [R. Shlomo Zalman Auerbach was reluctant to apply this leniency to refrigerators for technical reasons, see Shemirat Shabbat Kehilchata ch.31, note1.]


Rashba's Leniency


Rashba, Shabbat 107a, s.v. Ve'Af, (based on the comments of the Talmud Yerushalmi) states that if there is a deer in one's home, it is permissible to close the door, even though it will trap the deer, as long as it is not one's primary intention to trap the deer.  Ran, Shabbat 38a, s.v. Matnitan asks on Rashba:  Is this not the classic case of pesik reishei?


R. Avraham Borenstein, Avnei Nezer, Orach Chaim no. 194, defends Rashba's position.  He claims that Rashba's leniency is a function of the prohibition of trapping.  In reality, trapping an animal by closing the door on it should be considered gerama (indirect action).  However, based on the principle of m'lechet machshevet, it is considered a direct action in the context of Shabbat prohibitions.  Nevertheless the principle of m'lechet machshevet only applies if one's primary intention is to trap the animal in this manner.  If it is a secondary result, one cannot apply the stringency of m'lechet machshevet.


Although Rashba's leniency is not the normative opinion, R. Zalman N. Goldberg (in the journal Ateret Shlomo, Vol. VI) uses it as a mitigating factor in allowing one to walk in front of a surveillance camera.  He claims that being photographed is not considered a direct action unless one intends to be photographed.  If one merely walks in front of the camera, the m'lechet machshevet is lacking and it is not considered a direct action.


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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 Mark and Karen Benson to mark the yahrtzeit of Betzalel Mordechi ben David Yizchak HaLevi