Daf Ditty Pesachim 8: Envoys protected,
Covid and
Ber Mayim Chayim
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Rabbi Eliezer says “we learned that envoys for a Mitzva are never harmed” neither on their way out nor on their return, for we are on our way to receive the (face of ) the Schechina.
Zohar III:298 …and although we are told that envoys of a Mitzvah are unharmed as is claimed in our daf, surely they will not be harmed spiritually too…being preserved from sin….
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The Sages taught: One does not search for leaven, neither by the light of the sun, nor by the light of the moon, nor by the light of a torch. Rather, the search should be conducted by the light of a lamp,
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because the light of a lamp is effective for searching. And even though there is no proof for this matter, there is an allusion to this matter, as it is stated: “Seven days leaven shall not be found in your houses” (Exodus 12:19), and it says: “And he searched, starting with the eldest, and ending with the youngest; and the goblet was found in Benjamin’s sack…” (Genesis 44:12). And it says: “At that time I will search Jerusalem with lamps” (Zephaniah 1:12), and it says: “The spirit of man is the lamp of God, searching all the inward parts” (Proverbs 20:27).
a – הרדסכא explains that sunlight may be used when searching an ארמג the , המחה רוא Regarding the sides of a room that - דדצל י ן the area directly below a skylight, but not - רא ו הב דהבל י gazebo, or are not directly below the skylight.
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The Gemara asks a question: This light of the sun, by which one may not conduct the search for leaven, what are the circumstances of this case? If we say it is referring to conducting a search in the courtyard, didn’t Rava say that a courtyard does not require searching, due to the ravens and other birds that are found there, and will certainly eat any leaven there? Rather, perhaps this ruling is referring to a portico, which is not frequented by ravens. However, this cannot be the correct interpretation either, as didn’t Rava say with regard to that case that a portico may be searched by its own light, i.e., one need not use a lamp at all when searching a portico, but one may search it by sunlight?
The Gemara answers: No, this statement with regard to sunlight is necessary with regard to the skylight that is in a room. The Gemara asks: And with regard to the area to which the tanna is referring, where in the room is it located? If he is referring to the place opposite the skylight, the legal status of that area is like that of a portico, as its abundant sunlight is adequate to search for leaven. Rather, the tanna is referring to the sides of the room. In those areas, one cannot rely on the sunlight from the skylight. He must search by the light of the lamp.
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for הלדבה - even though a torch illuminates much more than a candle, and - באה ו הק א ו ר Regarding rather רנ suggests 4 reasons why we must use a ארמג the הקובא הלדבהל הוצמ ןמ רחבומה – preferred is it a בא ו הק .than
The Gemara asks: And is the light of a torch not bright enough for searching? But didn’t Rava say: What is the meaning of that which is written, “And a brightness appears as the light; He has rays at His side; and there is the hiding of His power” (Habakkuk 3:4), which indicates that God will provide rays of glory for the righteous in the future? The Sages explained this verse by means a parable: To what are the righteous comparable before the Divine Presence?
They are comparable to a lamp in the face of a torch. This statement indicates that the light of a torch is significantly greater than that of a lamp, and consequently, a torch should be more effective in the search for leaven. And likewise, Rava said: One who uses a torch for the blessing over fire in havdala has performed the mitzva in the optimal manner. Apparently, the light of a torch is greater than that of a lamp.
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Rav Naḥman bar Yitzḥak said: The baraita does not prohibit the use of a torch due to its failure to provide sufficient light. Rather, it is due to the fact that one can put this lamp into holes and crevices, as it is a small flame, and one cannot put that torch into holes and crevices, as it is a large flame.
Rav Zevid said: This lamp projects its light before it, facilitating the search, and that torch projects its light behind it, on the person conducting the search.
Rav Pappa said: The reason is that when using this torch one fears starting a fire, and when using that lamp he does not fear starting a fire.
Ravina said: This lamp consistently draws light, and the light of that torch fluctuates. Although overall the torch provides greater light than a lamp, it is less effective for use in a search.
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We learned in the mishna: Any place into which one does not typically take leaven does not require searching. The Gemara asks: What does the inclusive phrase: Any place, come to include? The Gemara answers that it comes to include that which the Sages taught in a baraita: The upper and lower holes in the wall of a house that are difficult to use, as well as a veranda roof, a closet roof, a cowshed, chicken coops, a storehouse for straw, a wine cellar, and a storeroom for oil; all these do not require that a search be conducted. Rabban Shimon ben Gamliel says: A bed that divides the area inside a house and space separates the bottom of the bed from the floor requires a search, as there might be leaven beneath it.
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because of the danger, ץמח One is not required to stick his hands in small cracks to search for involved. There are two opinions as to what the danger is:
It was taught in the Tosefta: The Sages do not require one to place his hand into holes and crevices to search for leaven, due to the danger involved. The Gemara asks: Due to what danger? If we say it is due to the danger of a scorpion that might be in this hole, when he made use of the hole in the first place, how did he make use of it if there were scorpions there? If the hole is never used, there is no need to search it in any case. The Gemara answers: No, it is necessary to search this hole in a case where leaven fell into it unintentionally.
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The Gemara asks: If the tanna is referring to a case where leaven fell into the hole, again, why do I need to conduct a search? But didn’t we learn in a mishna with regard to leaven upon which a rockslide fell, it is considered removed from the owner’s possession? Here too, any leaven that fell into the hole should be considered removed. The Gemara answers: There, where the tanna
12 said it is as though it were removed, he is referring to a case where the rockslide buries the leaven so that even a dog cannot search for it. Here, it is referring a hole that is not so deep, and therefore a dog can search for it and extract the leaven from the hole.
13 Summary
Rav Avrohom Adler writes: 1
There are various verses that provide the source for searching for chametz with a candle. We derive the source for the requirement to search for chametz by the light of a candle from the following verses: We learn “finding” from “finding,” as it is said regarding chametz: for a seven-day period leaven shall not be “found” in your homes. It is also written he searched, he began with the oldest and ended with the youngest; and it was “found.” We learn the explanation for “finding” from the expression of “searching” found in the same verse.
We derive the explanation of “searching” from the word “candles” because it is said: at that time, I will search Jerusalem with “candles.” We derive the explanation for “candles from the word “candle” as it is said: a man’s soul is the candle of Hashem, which searches all the chambers of one’s innards. A Baraisa taught that we search for chametz on the night of the fourteenth of Nissan by the light of a candle.
This is alluded to from the verses that state: for a seven-day period leaven shall not be found. It is also said: he searched; he began with the oldest and ended with the youngest; and it was found. It is said further: at that time, I will search Jerusalem with candles. It also states: a man’s soul is the candle of Hashem, which searches.
The reason we need the last verse is because from the verse that states: at that time, I will search Jerusalem with candles, one may think that the explanation of the verse is that Hashem will only search for the Jewish People’s sins with the light of a candle, and only the great sins will be found and not the small sins. For this reason, we require the verse that states: a man’s soul is the candle of Hashem, and this verse teaches us that a candle is effective for searching out all the sins. (7b)
One searches for chametz by the light of a candle because it is effective for searching. We do not search for chametz by the light of the sun, nor by the light of the moon, nor by the light of a torch. We only search for chametz by the light of a candle because the light of a candle is more effective than a torch for searching. This is alluded to in the verses that state: for a seven-day period leaven shall not be found in your homes. It is also said: he searched; he began with the oldest. It states further: at that time, I will search Jerusalem with candles. It is also said: a man’s soul is the candle of Hashem, which searches all the chambers of one’s innards. (8a)
One cannot search with the light shining through a skylight the parts of the room that are to the sides of a skylight. When we said that one cannot search for chametz with the light of the sun, this ruling cannot apply to a courtyard, because one is not required to search a courtyard, as ravens are common in the courtyard and the ravens will consume any chametz found in the courtyard. The ruling also cannot apply to a pavilion, because one can search a pavilion by sunlight. The ruling
1 http://dafnotes.com/moed/pesachim/
14 must therefore only apply to a skylight that is in a room, and this refers to the areas of the room that are to the sides of the skylight. The sun does not shine directly on those areas, so one cannot search for chametz by sunlight in those areas. (8a)
There are four reasons why a torch should not be used in the search for chametz.
A candle is preferred for searching for chametz as opposed to a torch because the light of the candle can enter holes and cracks whereas the light of the torch cannot enter holes and cracks. Furthermore, the light of a candle is in front of the person whereas the light of a torch falls behind the person and when one holds a torch in front of his face, he cannot see beyond the light because of its intense illumination. Another reason why a torch is inferior is because a torch causes one to be afraid that his house will catch on fire, whereas a candle does not cause one to be afraid. A fourth reason why a candle is preferred over a torch is because the light of a candle is consistent whereas the light of a torch flickers and wavers. (8a)
Holes in the wall of a house that are very high or very low do not require searching for chametz. The Mishnah stated that any place where chametz is not commonly brought does not require a search.
The Gemara explain that this includes holes in the wall of a house and the holes are either very high or very low, making them not readily accessible, so we assume that chametz was not placed in the holes. The roof of an annex, i.e., a low structure the sis enclosed near the side or the back of a house and the roof of a closet shaped like a tower, a barn for cattle and chicken coops also are not required to be searched for chametz.
When a Jew ascends to Jerusalem for the festival pilgrimage, no harm will befall his property or his livestock.
Those who are sent on a mission to perform a mitzvah are protected from harm on their journey to perform the mitzvah and on the way back after performing the mitzvah. We know this from the verse that states: no man will desire your land when you go up to appear before Hashem, your g- d, three times a year.
This teaches us that one’s cow will graze in the pasture and no wild animal will harm it, and one’s hen will poke around in the garbage dump and no weasel will harm it. We can suggest a kal vachomer. If these animals, which are prone to harm when left unguarded, will not be harmed when the owner leaves them alone so that he can ascend to Jerusalem for the festival pilgrimage, then human beings, who are not prone to harm, certainly will not be harmed when they ascend to Jerusalem for the festival pilgrimage.
This proves that one is protected from harm when going to perform a mitzvah. The verse that states: you will turn in the morning and go back to your tents teaches us that one returns from the festival pilgrimage and he will find that his tent is safe.
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Orach Chayim 433:11
Searching for chometz by the light of a candle (cont.)2
The Gemara explains the case of the interdiction against searching one’s courtyard by candlelight that was mentioned in the earlier cited Beraisa. Four explanations are presented why the light of a torch should not be used for bedikas chometz.
Identifying which places require bedikas chometz
2 https://dafdigest.org/masechtos/Pesachim%20008.pdf
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A Beraisa is cited that gives examples of places that do not require bedikah since chometz is not brought into those areas. The Gemara notes a contradiction between Beraisos regarding searching holes and beds, and it resolves the contradiction. The Gemara explains why storehouses of wine require bedikah and storehouses of oil do not. The requirement to do a bedikah in different storehouses is clarified.
Searching in holes and cracks
A Beraisa rules that one is not required to search for chometz in holes and cracks because of the danger involved. Two explanations are presented as to the danger referred to in the Beraisa. One is the danger of scorpions and the second is the danger of being accused of witchcraft.
Issues of danger
Rav was asked whether it is permitted for students to come to the Beis Midrash when it is dark or should it be avoided because of danger? Rav responded that it is permitted. When asked whether they could return home in the dark, Rav was uncertain, but the Gemara demonstrates that it is permitted.
Clarifying the Mishnah
The Gemara clarifies the wording of the Mishnah. R’ Yehudah and R’ Yochanan dispute the intent of Beis Shamai’s ruling, and a Beraisa is cited that supports each opinion. Rav and Shmuel dispute the intent of Beis Hillel’s ruling. After explaining each opinion, the Gemara rules in accordance with Shmuel’s understanding of Beis Hillel.
Searching for Leaven in Dangerous Places Steinzaltz (OB) writes:3 It was taught in the Tosefta: The Sages do not require one to place his hand into holes and crevices to search for leaven, due to the danger involved.
While the Gemara makes a number of suggestions regarding what the danger might be that lurks in holes between houses, what concerns the Gemara is how this fits with Rabbi Elazar’s teaching sheluhei mitzvah einum nizokim – that people involved in performing commandments are protected from danger.
Rav Ashi suggests that we may be concerned that aside from searching for hametz, perhaps the person will also turn his attention to find other missing objects during the search, and will not be
3 https://steinsaltz.org/daf/pesahim8/
17 actively involved in the mitzva at all times. The Gemara responds to this by arguing that even someone who has outside intentions beyond performing a mitzva will be credited for the mitzva if it is done. An example of this is taught in a baraita that rules that someone who gives charity and states that he is giving it in the hope that he will gain a share in the World-to-Come or that his sick child will recover is, nevertheless, considered a tzaddik gamur – a completely righteous person. The Gemara concludes that the rule that people involved in performing commandments are protected from danger only applies when danger cannot be anticipated. In a situation that is clearly dangerous we cannot apply that rule.
With regard to the man who gives charity with the expectation that he will derive some personal benefit from it, who the baraita says is a tzaddik gamur, the Ran points out that he might be considered righteous, but he would not be considered a hassid – a pious person. Some say that the only case where we can ignore the intent of the person doing the mitzva will be in the case of charity, where the recipient derives benefit from the assistance even if the intention of the giver was wrong. The Aruk has a variant reading in the Gemara, according to which the baraita does not label the man a tzaddik gamur, rather it rules that the donation was tzeddaka gemura – full- fledged charity, without any character judgment about the person who made the donation.
If a ruin falls on chametz, the chametz is considered removed. We do not require that a person place his hand into a hole and cracks because there is a danger involved. We cannot be referring to the danger of being bitten by a scorpion, because then he would not have used the hole to begin with, as he would have been bitten by the scorpion. Rather, this ruling refers to a case where a wall fell, and although there were scorpions in the wall prior to its falling, now that the wall fell it is possible that there are scorpions in the ruin.
Although we will learn (31b) that if a ruin falls on chametz, it is as if the chametz has been removed, and a search for chametz is not required, that refers to a case where the chametz is buried so deeply that even a dog would not be able to locate the chametz. Here, however, we refer to chametz that a dog would be able to search after, and if not for the fact that there was a danger involved, he would be required to search for chametz amongst the ruins.
R.Shuli Passow writes:4
Here’s a typical conversation between my 8-year-old and me:
Me: Please help me unpack the groceries. Child: Will I get a reward? Me: Yes, the satisfaction of having helped me. Child: That’s not a reward! Me: Come help me anyway.
Many of us have had a version of this exchange at some point in our lives — either as the child, the parent, or both. It’s a conversation that raises the question of whether we should expect, or
4 Myjewishlearning.com
18 even desire, to be rewarded for our good deeds — or if it is better to do them from a place of complete altruism. A digression on today’s daf takes a strong position:
It was taught: One who says “I am contributing to charity so that my son will live,” or if he says “I am performing the mitzvah so that I will be destined for the World to Come,” this person is a fully righteous person.
This teaching affirms that what really matters is the outcome of our actions, not our motivations. In philosophical terms, this is a consequentialist position.
But this is not the only rabbinic view on this ethical dilemma. Pirkei Avot, that famous mishnaic tractate of pithy statements and ethical maxims, offers this:
Antigonos, man of Sokho, learned from Shimon the Righteous who would say, "Do not be as servants who are serving the master in order to receive a reward, rather be as servants who are serving the master not in order to receive a reward; and may the fear of Heaven be upon you." (Pirkei Avot 1:3)
This mishnah suggests that acting in order to be rewarded is by no means laudatory, and would in fact disqualify someone from being characterized as a fully righteous person. According to this teaching, good deeds should be motivated purely by obligation to the almighty God who commanded them.
So which is it? Does Jewish tradition expect us to perform good deeds purely because it is the right thing to do, or can we factor in a dose of self-interest without counting ourselves any less righteous? The Talmudic commentators known collectively as Tosafot address this question directly in their commentary on our page:
“The statement in Pirkei Avot refers to a situation when if the good that one hopes for does not come, one regrets the charity that was given. However, one who does not regret, such a person is completely righteous.”
In other words, Tosafot understand that wanting a reward does not detract from the good of giving tzedakah (or doing some other good deed) — and doesn’t even detract from one’s character— as long as the person doesn’t regret giving the tzedakah in the event that they do not receive the anticipated reward.
Tosafot’s harmonization recognizes that human nature may often (always?) incline people to desire a reward for their actions, and that in and of themselves, these instincts and desires are not bad. In fact, the prospect of a reward can be a motivating factor that leads people to do good. Yet we must also take satisfaction in the deed itself — there is clearly something dangerous about regretting the good we have done in the world when we are not rewarded for it.
Perhaps the concern here is not about what happens in the moment, but rather how our motivations impact our character, who we are as people. Wanting a reward is not a character flaw, and may even contribute to the development of positive traits such as generosity. Hence one can ask for a
19 reward and still be considered a full-fledged righteous person. But if we regret our good actions when they are not rewarded, we may choose not to perform mitzvot or act kindly in the future — and this means that our self-interest has morphed into selfishness. We can no longer claim the mantle of righteousness.
Back to my son: Should I give him a reward, so that he cultivates a willingness to be helpful? Or should I insist that he help me because it’s the right thing to do even though he might regret helping and refuse to do so in the future? Our daf doesn't offer a clear answer, but it does encourage me to be a little more patient with my child when he asks to be rewarded — he’s just being human, after all.
But did not R’ Elazar say, ‘people who are sent to do a mitzvah are not harmed’? (The Gemara answers): It is different where harm is likely, as it says “and Shmuel said ‘How can I go? If Shaul finds out he will kill me’. So, Hashem said, ‘Take along a calf etc’”.5
The Rishonim differ on the extent to which a person is permitted to rely on his trust in Hashem to exempt him from acting in accordance with the laws of nature.
Rashba 1 explains that bitachon (faith) is when one knows that true success and salvation are dependent on Hashem and not on his efforts. He understands that Hashem grants a person goodness depending on his observance of the Torah and it’s mitzvos. This person is still not exempt from putting in routine effort. Rashba goes on to write how even the most pious of people has no right to rely on his faith. He must behave in the normal way of the world.
Meiri 2 also expresses this view. In his Emunah Ubitachon (Ch. 2), Chazon Ish describes bitachon in a similar way. According to them, the above Gemara makes perfect sense. However, from
Rambam 3 it seems that a man of faith can refrain from all-natural endeavors. According to Rambam it is puzzling why Shmuel was concerned about Shaul killing him— surely he trusted completely in Hashem, and he should have relied upon his faith and not have needed to consider the threat that Shaul posed.
Chasam Sofer 4 resolves this difficulty. Even Rambam agrees that in the case when a miracle would be required to save the person (as in the case of Shmuel and Shaul) one is required to exercise practical means to deal with his situation. I
5 https://dafdigest.org/masechtos/Pesachim%20008.pdf
20 in fact, it is stated later in the Gemara that one is not allowed to rely on a miracle.
Taz 6 supports this view adding that man is not meritorious enough to be saved by a miracle. That is why a sick person is required to consult a doctor.
The Ribnitzer Rebbe, zt”l, was renowned for his enormous self-sacrifice to perform all mitzvos in general, and the mitzvah of milah in specific.
When the Rebbe was living in communist Russia he was contacted by a woman who asked him to perform a bris on her newborn son. When questioned about the baby’s father, she replied that he was a communist party official and would never agree to a bris being performed on his child.
She was therefore contacting the Rebbe to inform him that her husband was away, and that the only chance to do the mitzvah was if it was done immediately. Ignoring his Rebbetzin’s protests that he was placing his life in danger, the Rebbe set out with one of his chassidim who was to serve as Sandak.
After traveling through the night on dangerous side roads in order to avoid attracting attention, they arrived at the home where the bris was to be held. The Rebbe immediately made the preparations for the bris, and performed it without delay. After the bris, a problem arose when the bleeding could not be stopped. The baby began to turn blue, and everyone there was terror-stricken, fearing the worst for the baby and for themselves.
The Rebbe realized that natural means would be of no help, and he closed his eyes and repeated .”!With your blood you shall live— יח י ךימדב “
The Rebbe’s face turned colors due to his intense concentration, when suddenly, the bleeding stopped and the baby regained his natural color .
21 When the Rebbe’s chassid mentioned something about a miracle, the Rebbe simply replied:
SHOMER PETA’IM HASHEM – “THE LORD PRESERVES THE SIMPLE,” I
HaRav Yehuda Amital, zt"l writes:6
Even though a person it is forbidden for a person to place himself into a situation of danger, and this may even be prohibited by Torah law, as will be clarified below, we find instances where Chazal granted an allowance to enter into a perilous situation, based on the verse, "Shomer peta'im Hashem," "The Lord preserves the simple" (Tehillim 116:6). This notion appears in several Gemarot.
The Gemara in Avoda Zara (30b) deals with regulations related to the danger of snake venom, and says: "The opening of a fig does not come under the rules relating to [liquids] left uncovered…. For it has been taught: Rabbi Eliezer says: One may eat grapes and figs at night without suspecting any harm, for it is stated: 'The Lord preserves the simple.'" And in Nidda (31a) we read: "
It was taught: He who indulges in marital intercourse on the ninetieth day [of pregnancy] is as though he had shed blood. But whence could one know this? Rather, Abaye said: One carries on marital intercourse in the usual manner and 'the Lord preserves the simple.'" And in Yevamot (72a): "Rav Pappa said: Hence, no circumcision may be performed on a cloudy day or on a day when the south wind blows; nor may one be bled on such a day." And the Gemara adds: "At the present time, however, since many people are in the habit of disregarding these precautions, 'the Lord preserves the simple.'" And similarly, in Shabbat (129b): "He who possesses ancestral merit may let blood on Monday and Thursday, because the Heavenly Court and the human court are alike then. Why not on Tuesday? Because the planet Mars rules at even- numbered hours of the day." There too the Gemara adds: "But on Friday too it rules at even- numbered hours? Since many people are in the habit of disregarding this precaution, 'the Lord preserves the simple.'"
A question may be raised regarding this allowance: Is the permit based purely on the fact that many people disregard the relevant precautions though the danger remains, or does the fact that many people disregarding the precaution defined the situation as one that does not pose a
6 https://www.etzion.org.il/en/shomer-petaim-hashem-lord-preserves-simple-part-2
22 danger?[1] This question might have practical ramifications regarding a person who does not want to rely on the principle of shomer peta'im.
Regarding such a person, do we consider the situation as one of danger which can set aside a mitzva or a prohibition because of possible piku'ach nefesh (saving a life), or do we say that the situation is free of all danger to life? Another practical ramification relates to the question whether reliance on shomer peta'im is considered proper and recommended behavior, for in such a case there is no danger, or whether pious conduct demands that one should not rely on it. This question depends on what the Terumat ha-Deshen writes (no. 211, cited by the Bet Yosef, Even ha-Ezer, no. 9) regarding marrying a woman whose was widowed twice:
The matter requires further study, whether the principle of shomer peta'im applies to a Torah scholar who knows and recognizes, and is regarded as distinguished in his generation. And even regarding an ordinary person it is difficult to issue an allowance, as there is concern about danger.
The implication is that according to the Terumat ha-Deshen, since it is appropriate for a Torah scholar to refrain from relying on the principle of shomer peta'im, he clearly maintains that the danger continues to exist, only that shomer peta'im allows a person to enter into that danger. It should be noted, however, that the Terumat ha-Deshen implies that it is only about a scholar who is "distinguished in his generation" that we say that it is fitting that he refrain from relying on shomer peta'im.
A commonly asked question is whether one is permitted to expose oneself to some remote danger for the sake of a pleasure trip or some other optional activity. Regarding this matter, Rav A.Y. Kook wrote to his son R. Tzvi Yehuda (Iggerot Ra'aya, III, no. 852, p. 132):
Regarding an excursion in a place where there is even a remote concern about danger, God forbid, I have already expressed my opinion, I believe in one of our letter exchanges, that it is not proper.[2]
The Iggerot Moshe (Orach Chayim II, no. 59), on the other hand, implies that under such circumstances one is permitted to expose oneself to the danger:
So too when a person goes off on a journey where the possibility exists that he will be exposed to a certain danger, but nevertheless he decides to go for some necessary purpose or even for pleasure – this is permitted with respect to the issue of possible danger, because it is a very remote danger…
This question arises even beyond the context of shomer peta'im. If an individual is worried about some danger that people don't generally worry about, e.g., he wants to raise the security level at his house or in his community, more than is commonly accepted – is it permitted for him or others to desecrate Shabbat because of this concern (to turn on a light, to send out an additional security vehicle, or the like)? On the other hand, one may ask: What is the level of danger beyond which one is forbidden to enter? Is the same criterion of danger for which one may desecrate Shabbat to be applied to determine what is considered a danger to which one is forbidden to expose
23 oneself? Or can we distinguish between piku'ach nefesh with respect to mitzvot and the definition of danger with respect to the prohibition to endanger oneself, and say that one is permitted to expose himself to certain dangers for which one would be permitted to desecrate Shabbat?[3]
II
Logically it might be argued that the rationale underlying all the above-mentioned talmudic passages is that "many people disregard those precautions," even where this rationale is not explicitly mentioned, with the fact that many people disregard those precautions proving that there is no danger in those situations. This is implied in the words of the Rosh (Avoda Zara, chap. 4, no. 7):
Nevertheless, there is reason for leniency regarding [wine touched by] gentiles in our time, since they do not intend to dabble [in the wine] whatsoever. And furthermore, since non- Jews do not offer libations in our times, an allowance should be granted. This is similar to exposed liquids, about which we are not concerned, because snakes are not common among us. [This is true] even though this is not absolute proof, for libations was a decree enacted by a quorum, and another quorum is needed to permit it, even though the reason no longer applies. And it is not like exposed liquids, where the prohibition was enacted only because of the danger, and they made no decree for in a place where there is no danger. And regarding many matters we do not take precautions, as it is stated: "The Lord preserves the simple."
Note that the Rosh proves from the fact that there are numerous matters where we do not take precautions that there is no need to be concerned about matters where the reason for the prohibition no longer applies. Thus, it is clear that he understood that the principle of shomer peta'im allows a person to expose himself to apparent danger, because it is not considered to be a danger, just as we are not concerned about exposed liquids, because snakes are not common among us. On the other hand, in II below, we shall discuss in detail the passage in Ketubbot (39a) regarding women who may use an absorbent during sexual relations, where the Gemara's wording seems to imply otherwise. The Gemara there states: "And mercy will be vouchsafed from heaven, as it is stated, 'The Lord preserves the simple,'" which implies that a danger exists, but that we rely on the principle of shomer peta'im nonetheless.
III
It seems that the question whether the principle of shomer peta'im permits a person to expose himself to danger, or merely defines such a situation as one that does not involve danger, depends on the source of the prohibition to expose oneself to danger. If the prohibition is by Rabbinic decree, it may be suggested that in a situation of shomer peta'im, Chazal permit a person to expose himself to danger. But if the prohibition is from the Torah, we must say that shomer peta'im does not permit a Torah prohibition, but rather it states that such a situation is not defined as one of danger.
The Rambam writes (Hilkhot Rotze'ach u-Shemirat ha-Nefesh 11:4):
24 [The requirement to build a guardrail] applies to a roof and to any place that might present a danger and cause a person to stumble and die. For example, if a person has a well or a cistern in his courtyard, he must erect embankment ten handbreadths high around it or make a cover for it, so that a person will not fall in and die. Similarly, it is a positive mitzva to remove any obstacle that could pose a danger to life, and to be very careful regarding these matters, as it is stated (Devarim 4:9): "Take heed to yourself, and keep your soul diligently." If a person leaves a dangerous obstacle and does not remove it, he negates the observance of a positive commandment, and violates the negative commandment: "Do not cause blood to be spilled" (Devarim 22:8).
It would seem that, according to the Rambam, one is obligated by Torah law to take precautions against any danger to life. On the other hand, in the next two halakhot (5-6), he writes:
Our Sages forbade many matters because they involve a threat to life. Whenever a person transgresses these guidelines, saying: "I will risk my life, what does this matter to others," or "I am not careful about these things," he should be punished by lashes for rebelliousness. They include: A person should not place his mouth over a conduit through which water flows and drink. Nor should he drink at night from rivers and lakes, lest he swallow a leech without seeing. Similarly, a person should not drink water that was left uncovered, lest a snake or other poisonous crawling animal might have drunk from them, and as a result, the person would die.
It may be asked: What is the difference between the things mentioned in halakha 4, which are forbidden by Torah law, and the things mentioned in halakhot 5-6. which are forbidden only by Rabbinic decree? The distinction may be understood in two ways: 1) It is possible that the prohibition to endanger others is by Torah law, but the prohibition to endanger oneself is only by Rabbinic decree. 2) To endanger oneself is also forbidden by Torah law, but the Sages spelled out certain cases that are included in this prohibition due to the higher degree of danger involved, while those cases mentioned in halakhot 5-6 are forbidden only by Rabbinic decree, since the danger involved in them is of a lesser degree.
The Be'er ha-Gola (Choshen Mishpat 427:10) cites a dispute as to whether the prohibition to expose oneself to danger is by Torah law or by Rabbinic decree.[4] The Tevu'ot Shor (13:2) quotes from the Levush in Yoreh De'a (116:1) that the prohibition is Rabbinic in origin. It would seem that the reference is to what the Levush says there:
The verse states: “Take heed to yourself, and keep your soul diligently” (Devarim 4:9), and it says: “Take good heed to yourselves” (ibid. v. 15). These formulations imply that a person must take care of himself, so as not to bring himself to danger. Even though this is not the plain meaning of these verses, nevertheless Chazal relied on these verses and forbade all things that bring a person to danger.
The plain meaning of this citation indeed supports the Tevu'ot Shor's understanding that according to the Levush, that the prohibition to endanger oneself is by Rabbinic decree. However, the Levush in Choshen Mishpat (426:11) states explicitly that whenever a person transgresses these guidelines, saying: "I will risk my life, what does this matter to others," or "I am not careful
25 about these things," he is punished by lashes for rebelliousness, for he has transgressed a Torah prohibition, as it is written: "Take heed to yourself, and keep your soul diligently." A comment of the Sema also implies that this is a Torah prohibition. Regarding the Shulchan Arukh’s statement on this topic (427:9): "Our Sages forbade many matters," the Sema writes: "As it is written: 'Take heed to yourself, and keep your soul diligently.'" On the other hand, see the Darkhei Teshuva (Yoreh De'a 116:57), who cites Acharonim who maintain that the prohibition to expose oneself to danger is Rabbinic in origin.[5] He also writes that the Levush changed his position on the matter, and he cites the Shem Aryeh who distinguishes between the danger of a threatening wall or a shaky bridge, where the prohibition is from the Torah, and the things that the Rabbis forbade which are only possible dangers, and are like other Rabbinic prohibitions.
It stands to reason that the prohibition to expose oneself to danger is only by Rabbinic decree, because the source that the Rambam cites for the prohibition, "Take heed to yourself, and keep your soul diligently," does not deal with protecting one's body, but rather it warns against forgetting what happened at Mount Sinai. See Minchat Chinnukh (mitzva 546, s.v. od katav ha- Rambam), who raises this objection. Furthermore, the Rambam here treats this verse as a positive commandment, whereas the Gemara treats this verse in various places as a negative commandment regarding other laws. See Menachot (99b), where it is the source of a prohibition regarding one who has forgotten some of his learning, and Shevu'ot (36a) where it teaches a prohibition regarding one who pronounces a curse on himself. Indeed, the Rambam himself (Hilkhot Sanhedrin 26:3) rules that one who curses himself receives lashes, based on this same verse.
Thus, it seems that this verse is a negative commandment and not a positive one (though it should be noted that it may be that the prohibition to curse oneself is really a function of the prohibition to curse another person, and the derivation from this verse is only an asmakhta, a source of secondary support). It is possible that the Rambam does not mean that one who endangers another person transgresses the positive commandment of "take heed to yourself," for that verse is merely an asmakhta; rather, the person transgresses the positive commandment to build a railing. Indeed, the Rambam in his Sefer ha-Mitzvot does not count "take heed to yourself" as a separate commandment.
Yet, we find support in the Gemara for using this verse in connection with a threat to life. The Gemara in Berakhot (32b) states:
Our Rabbis taught: It once happened that a certain pious man was praying by the roadside, when an officer came by and greeted him and he did not respond to the greeting. So he [the officer] waited for him until he had finished his prayer. When he had finished his prayer he [the officer] said to him: Fool! Is it not written in your Torah: "Only take heed to yourself and keep your soul diligently," and it is also written: "Take you therefore good heed of yourselves?”[6]
One could claim that this was the mistaken understanding of the gentile. However, this cannot be dismissed entirely, for we find that one of the Rishonim included the commandment of "take good heed to yourselves" as the source for piku'ach nefesh (Tashbetz Zohar ha-Raki'a 118).
26 (Translated by David Strauss)
[1] This question is particularly relevant to those situations in which people disregard precautions, even though the dangers are well-known, e.g., smoking cigarettes, which all agree poses a danger to one's health. Here we can use the argument of shomer peta'im only if we say that it provides an allowance to enter into danger (the first approach), but it cannot be used if we say that it defines the situation as not dangerous (the second approach). [2] See the responsum there where he utilizes this distinction to reconciles a discrepancy between the Yerushalmi and the Bavli. See also Beiur ha-Gra, Orach Chayim, 531:4, and Damesek Eliezer, no. 8. It seems that Rav Kook is of the same position as the Vilna Gaon on this matter. [3] As for the question whether or not one is obligated to save a person who intentionally entered himself into a dangerous situation, see Even ha-Ezel, Hilkhot Yesodei ha-Torah 5:9, regarding the Rambam's ruling about a man who is love-sick with a woman and the doctors say that he has no remedy but to engage in sexual relations with her, that he should be allowed to die rather than engage in sexual relations with her. The Mirkevet ha-Mishneh writes that this is because he brought the problem upon himself. The Even ha-Ezel argues that this explanation does not suffice, because now he is in danger. See also R. Y. Kutner, Yeshu'ot Yisrael (Choshen Mishpat, no. 21, 1). [4] He says this in the name of the Bet Yosef (Yoreh De'a 116), who cites a dispute as to whether the prohibition is by Rabbinic decree or by Torah law, but it should be noted that the discussion there is related to the prohibition of "bal teshaktzu," regarding eating foods that are loathsome. See Shem Aryeh, Yoreh De'a 27, cited by Darkhei Teshuva 116:57. [5] This approach is taken in Responsa Rabbi Azriel Hildesheimer (II, Even ha-Ezer, Choshen Mishpat and Milu'im, no. 184): "That a person must not endanger himself is only a Rabbinic prohibition, as is explained by the Rambam, Hilkhot Rotze'ach 11:5, and Shulchan Arukh, end of Choshen Mishpat." [6] The Vilna Gaon (Beiur ha-Gra, Shulchan Arukh, Choshen Mishpat 427:6) cites this Gemara as the Rambam's source.
SHOMER PETA’IM HASHEM – “THE LORD PRESERVES THE SIMPLE,” II
IV
The question, whether the notion of shomer peta’im assumes an absence of danger or a permit to overlook danger, needs to be understood in light of a passage in tractate Ketubbot (39a):[1]
Three [categories of] women may use an absorbent during sexual relations: a minor, and an expectant and nursing mother. The minor, because otherwise she might become pregnant and die. An expectant mother, because otherwise she might cause her fetus to degenerate into a sandal. A nursing mother, because otherwise she might have to wean her child [prematurely]… these are the words of Rabbi Meir. But the Sages said: Any of these women carry on marital intercourse in a normal manner, and mercy will be shown from heaven, for it is stated: "The Lord preserves the simple."
The wording of the Beraita, "and mercy will be shown from heaven," implies that the danger exists, but nevertheless an allowance is granted based on the principle of shomer peta'im. Only that regarding this passage we find a disagreement between Rashi, on the one hand,
27 and Tosafot and the Ritva, on the other, as to how we are to understand the dispute between Rabbi Meir and the Sages. Rashi writes with respect to the viewpoint of Rabbi Meir: "They are permitted to use an absorbent during sexual relations, and they are not considered as destroying [their husband's] seed."[2] Some Rishonim (Ritva and Ra'a, ad loc.) understood that according to Rashi, since Rabbi Meir maintains that these women are permitted to use an absorbent during sexual relations, this implies that the Sages maintain that they are forbidden to do so. The Ritva raised an objection against this understanding: "The Sages who said: 'Any of these women carry on marital intercourse in a normal manner' – that is to say, they are forbidden to use an absorbent during sexual relations. But why - if there is danger involved, do we say that because 'the Lord preserves the simple,' this is forbidden, and she must enter herself into danger?" He therefore explains like Tosafot, that according to Rabbi Meir, these women must use an absorbent during sexual relations, whereas according to the Sages, they may, if they so desire, carry on marital intercourse in a normal manner, and they are not obligated to use an absorbent.[3]
It seems that the disagreement between Rashi and the Ritva whether, according to the Sages, these women are forbidden to use an absorbent, or they are permitted to rely on the principle of shomer peta'im, but they are also permitted to use an absorbent, depends on the question discussed in the previous shiur, namely, whether shomer peta'im defines the situation as one in which there is no danger, or that shomer peta'im establishes that one is permitted to expose oneself to danger. Rashi must understand that shomer peta'im defines the situation as one in which there is no danger, and therefore he says that these women are forbidden to use an absorbent during sexual relations. This understanding eliminates the difficulty of the Ritva's question, for shomer peta’im indicates that there is no danger, not that she is endangering herself and relying on shomer peta'im.[4] According to the Ritva on the other hand, shomer peta'im constitutes an allowance to enter into danger, and therefore the Sages say that these women may use an absorbent, since there is a danger, even though it involves destruction of the husband's semen, but they are not required to do so if they are willing to expose themselves to the danger.[5]
However, on this understanding of the Ritva, that one is permitted to expose oneself to danger relying on the principle of shomer peta'im, a difficulty arises. According to the Sages, once there is a permit to enter into the danger, why is the woman permitted to use an absorbent; surely there is a prohibition to destroy seed?[6] A similar difficulty arises within Rashi’s explanation of Rabbi Meir’s view. Why does he write that these women are permitted to use an absorbent, implying that they are not obligated to do so; if there is a danger which sets aside the prohibition to destroy seed, and therefore they are permitted to use an absorbent, they should be obligated to do so, owing to the danger! Why then are they permitted to enter into the dangerous situation?
V
The solution to these questions seems to stem from a fundamental difference between the definition of danger with regard to the fulfillment of mitzvot, and the definition of danger with respect to the prohibition falling upon a person to endanger himself. It seems that proofs can be adduced in support of this distinction, and in this way we can reconcile the difficulties raised against both Rashi and the Ritva:
28 1) The Mishna in Yoma (83a) states: "Every danger to human life sets aside Shabbat. If debris fell on someone, and it is doubtful whether or not he is there, or whether he is alive or dead, or whether he is a non-Jew or a Jew – one should remove [even on Shabbat] the heap of debris for his sake." The Tosafot (85a, s.v. u-le’fakei'ach) explain that whenever there is some factor that will lead to a situation of piku'ach nefesh, one may desecrate Shabbat, as the verse states (Vayikra 18:5): "That you shall live by them." And the mitzvot apply only in a situation that does not involve danger. They write as follows:
Ri says that the reason is that regarding piku'ach nefesh we do not follow the majority, as it is written: "That you shall live by them," and not that you shall die by them, that it [refrain from Shabbat violation and the like] cannot lead, in any situation, to the death of a Jew.
Tosafot indicate that the setting aside of mitzvot even on account of doubtful piku'ach nefesh, is not because of a special law regarding the definition of danger and piku'ach nefesh, but rather that the mitzvot do not apply when there is an element of danger. According to this, it can be argued that, on the one hand, one is permitted to expose oneself to a certain degree of danger, without violating the prohibition of "take good heed of yourselves," while on the other hand, all of the mitzvot in the Torah are set aside by the rule of "that you shall live with them" to save someone from such a situation.
This approach may be inferred from the Peri Megadim. In Hilkhot Shabbat he rules (Orach Chayyim 329, Mishbetzot Zahav no. 1): "If debris fell on someone, and it is doubtful whether or not he is there, or whether he is alive…, even if there are several doubts [one should remove the debris], for regarding the laws of piku'ach nefesh, we do not follow the majority, or the number of doubts." But elsewhere (Orach Chayyim 173, Mishbetzot Zahav, s.v. she'eila) he rules:
Question, does a double doubt (sefek sefeka) help regarding danger or not? Now, according to what I wrote in Yoreh De'a (110), that in the case of a sefek sefeka where there is a presumption (chazaka), there is no prohibition… we see then that we do not rely on a chazaka with respect to danger. The same is true that a sefek sefeka doesn't help. And according to him who maintains that a sefek sefeka is like a majority or even better than that, it may be suggested that a sefek sefeka helps in a case of danger like in a case of prohibition, but a single doubt is certainly forbidden. The matter requires further study.
We see then that the Peri Megadim is in doubt whether or not a person is permitted to enter into a dangerous situation that falls into the category of a sefek sefeka, and he leaves the matter unresolved. We saw above that it was obvious to him that all the mitzvot are set aside even by doubtful danger (and even a sefek sefeka). Here, in contrast, he writes that in a case of sefek sefeka, it is possible that a person is permitted to enter into a perilous situation. This proves that even though a person is permitted to place himself into a situation that involves a minor danger, for the same level of danger he is permitted to desecrate Shabbat and violate other prohibitions, because the mitzvot do not apply in a situation where there is any element of danger, based on the rule of "that you shall live with them."
2) The Gemara in Chullin (9a) states:
29 As Rabbi Abba asked Rav Huna: If a wolf came and carried away the intestines [of a slaughtered animal], what is the law? [You ask] 'carried away'! Then they are not here! Rather, say: 'and perforated the intestines.' 'Perforated the intestines!' Then it is evident that the wolf did it! Rather say: 'carried away the intestines and brought them back perforated.' Now, what is the law? Are we concerned that the wolf inserted [its teeth] in a perforation that was there previously, or not? Rav Huna replied: We are not concerned that it inserted [its teeth] in a perforation. [Rabbi Abba] thereupon raised an objection [from the following Beraita]: If one saw a bird nibbling at a fig or a mouse nibbling at a melon, one must be concerned that it was nibbling in a pre-existing hole! He replied: How can you compare what is forbidden ritually with what is forbidden on account of possible danger to life! In the latter case we are certainly more apprehensive. Rava said: What difference is there? Whenever there arises a doubt concerning a prohibition based on danger to life the stricter view is preferred, and the same is the case with regard to a doubt in connection with a ritual prohibition! Abaye said to him: Is there then no difference between laws concerning danger to life and laws concerning ritual prohibitions?
The concern here is that the bird might have made a hole in the very spot that a snake had previously made a hole, so that there is a danger to life (Rashi 9b, s.v. shema). According to Abaye a distinction is made between laws concerning danger to life and laws concerning ritual prohibitions, with greater stringency adopted in cases of danger than in cases of ritual prohibition (and thus in a comparable situation regarding a ritual prohibition we may be lenient). On the face of it, Rava's objection, why is a possible danger to life different than a ritual prohibition, is puzzling, for it is obvious that we distinguish between danger, about which we are stringent even in a case of doubt, and other things, for surely, we are stringent even in a case of doubtful danger to life! Rather, the Gemara is not dealing with setting aside mitzvot because of danger to life, but rather with the allowance to enter into danger, and it seems that the special stringency in the case of sefek sefeka with respect to a danger to life was only said with regard to setting aside mitzvot, because mitzvot do not apply when there is danger. But it is possible that at this same level of doubt, a person would be permitted to endanger himself.
Using this principle, we can explain Rashi's position regarding the viewpoint of Rabbi Meir. While there is a certain degree of danger here, this is an intermediate situation: On the one hand, the woman may use an absorbent and not be concerned about destroying the man's seed, because the mitzvot and prohibitions do not apply in a situation where there is even a small amount of possible danger to life. On the other hand, since this is only a slight concern, the woman is permitted to endanger herself. Accordingly, she is permitted to use an absorbent, but if she wishes she is permitted to take the risk.[7] This is also the way we can understand the position of the Ritva with respect to the view of the Sages: Indeed there is a danger, and therefore if the woman does not want to enter into danger, she may use an absorbent owing to the danger of getting pregnant, and the danger sets aside the prohibition of destroying her husband's seed. But if she so desires, she may engage in relations in the normal manner, and she is permitted to endanger herself in this way. Even though danger of this degree would be adequate to set aside prohibitions, nevertheless a person is permitted to enter into such a danger.
30 There is also a practical difference between the viewpoints of Rashi and the Ritva with respect to circumcision on a cloudy day. Regarding the passage in Yevamot (72a) cited above, the Ritva writes: "According to this reason, someone who doesn't want to circumcise on a cloudy day, may refrain from doing so, and he does well not to rely on the principle of shomer peta'im. And similarly, it is fitting not to circumcise on Shabbat when it is cloudy." The Ritva here is consistent with his own position, that in cases of shomer peta'im there is a danger, but one is permitted to enter into that danger. A person can, however, decide not to endanger himself, and thus put off circumcision owing to that level of danger. And it is even fitting not to circumcise in such a case when it falls out on Shabbat. On the other hand, according to Rashi, since there is no danger, it stands to reason that he would be obligated to perform the circumcision (just as the Sages forbid the use of an absorbent, because there is no danger).
VI
The Radbaz (Responsa, III, no. 596) proposes that everyone agrees that “the three women” are permitted to use an absorbent, for even if we say that because of shomer peta'im, there is no danger, this is because God turns the dangerous situation into one that is danger-free. However, each individual is permitted to be concerned that "perhaps I am not deserving of heavenly mercy." Therefore, all agree that if she wishes, she may use an absorbent. The Achiezer (Responsa Achiezer, I, no. 23, 2, s.v. ve-hineh) understands that this is also the position of Rashi. The Achiezer notes that Rashi in Nidda (45a) seems to agree with Tosafot, that according to Rabbi Meir these women are obligated to use an absorbent, for Rashi writes there (s.v. meshamshot be- mokh): "Their remedy is to use an absorbent during sexual relations, so that they not become pregnant," which implies that they must use an absorbent. As for the Sages, the Radbaz writes that even according to Rashi these women are permitted to use an absorbent. Therefore, the Achiezer writes that Rashi in Ketubbot should be understood along these lines as well: all agree that the three categories of women may use an absorbent during sexual relations. According to Rabbi Meir, the permit leads to an obligation to do so. According to the Sages, even these three categories of women are permitted but not obligated to use an absorbent during sexual relations, because of shomer peta'im. If, however, they do not wish to rely on shomer peta'im (as the Radbaz writes, because "perhaps I am not deserving of heavenly mercy"), even the Sages permitted them to use an absorbent.[8]
According to this understanding, both Rashi and the Ritva agree that these women are permitted not to use an absorbent during sexual relations, choosing not to rely on shomer peta'im. There is, however, a difference between Rashi and the Ritva about how to understand the principle of shomer peta'im. The Ritva understands that the danger remains, and that is why the women must use an absorbent in sexual relations, according to Rabbi Meir, and they are permitted to use an absorbent, according to the Sages (this is explicit in his words in Yevamot 12b, s.v. shalosh nashim). According to Rashi, on the other hand, there is no danger here according to the Sages, but nevertheless one is permitted not to rely on shomer peta'im out of concern that one is not worthy of God's mercy.
VII
31 According to the Radbaz, a person who is concerned may choose not to rely on shomer peta'im in a given situation. What is the law in a situation which is generally considered to be free of danger, but there are some other people who are concerned about a certain danger? Is one permitted to desecrate Shabbat because of the concerns of other people? The Rogatchover has a novel position on this issue. The Mishna in Berakhot (10b) states:
Beit Shammai say: In the evening every man should recline and recite [the Shema], and in the morning he should stand, as it says (Devarim 6:7): "And when you lie down and when you rise up." Beit Hillel say that every man may recite it in his own way, as it says (ibid.): "When you walk by the way." Why then is it said: "And when you lie down and when you rise up?" [This means that it should be recited] at the time when people lie down and at the time when people rise up. Rabbi Tarfon said: I was once walking by the way [in the evening] and I reclined to recite the Shema in the manner prescribed by Beit Shammai, and I incurred danger from robbers. They said to him: You deserved to come to harm, because you acted against the opinion of Beit Hillel.
Rabbi Tarfon was travelling and wished to practice stringency in accordance with the position of Beit Shammai, despite the fact that it involved a certain danger. The question may be raised: How could he have entered himself into danger? (Even if the law was in accordance with Beit Shammai, it seems that he should not have endangered himself.) The Tiferet Yisrael (no. 25) writes that when there is no certain danger, and the injury is not probable, one is permitted to rely on the fact that the mitzva will protect him.[9]
The Gemara in Berakhot (33a) states that even if a snake is wound around a person's foot he should not interrupt his prayers (amida). The Kovetz Shiurim (Pesachim, no. 32) asks: But surely in matters involving danger to life we do not follow the majority, and so the person should be concerned that there is a minority of snakes that are lethal. He answers as follows:
It is clear from here that the danger of a scorpion is not considered a probable injury. But in Berakhot 33 it says that they only taught [the ruling that one may not interrupt] about a snake, but for a scorpion he must interrupt his prayer. And Rashi explains that this is because most snakes are not lethal. And the objection is raised: But surely in matters involving danger to life, we do not follow the majority, and so one should be concerned about the minority [of snakes] that are lethal. It may be suggested: Since the majority are not lethal, it is not a probable injury, and so one can rely on the fact that “agents sent to perform a mitzva do not suffer injury” (Pesachim 8a). But in the case of a scorpion, he must interrupt his prayers, because of probable injury. And there he sees the scorpion, but here regarding [checking for chametz in] holes, where he does not know at all whether there is a scorpion, it is called an improbable injury.
According to the Kovetz Shiurim, since most snakes do not cause injury, injury is not probable, and therefore one can rely on the principle that agents sent to perform a mitzva do not suffer harm. R. S.Z. Auerbach (brought in Shemirat Shabbat Ke-hilkhata, chap. 25, note 15) raises a question from the fact that one is permitted to kill a snake on Shabbat, even if it is not pursuing him, which indicates that snakes do in fact present a danger. If so, why must one rely on the principle that “agents sent to perform a mitzva do not suffer harm” rather than interrupt one's
32 prayer when a snake is wound around his foot? He writes along the lines of the Kovetz Shiurim, that since he sees that the snake is not agitated, he is certain that it will not cause him injury, but nevertheless when he is not engaged in prayer, he is permitted to kill it, even on Shabbat. But he raises an objection against the Rambam who maintains that one is liable for a melakha performed on Shabbat not for its own sake, but nevertheless he permits killing a snake on Shabbat even if there is no present danger, while on the other hand, he does not permit a person to interrupt his prayer when a snake is wound around his foot.
The Rogatchover (in a postcard that he sent to Rav Segel, and came into my possession, published in Responsa Tzofnat Pa'ane'ach, no. 39) asked further on the Rambam who ruled (Hilkhot Shabbat 2:24) that if one person is being pursued by a snake, even another person is permitted to kill it, implying that only a snake that is chasing someone presents a danger. On the other hand, he rules (ibid. 11:4) that one is permitted to kill a dangerous creature, e.g., a snake in Eretz Yisrael, even if it is not pursuing anybody. The Rogatchover explains, based on an inference drawn from the Mishna (Shabbat 29b): "If one extinguishes the lamp because he is afraid of gentiles, robbers, or an evil spirit, or so a sick person can sleep, he is exempt," that the allowance is "because he is afraid." The Mishna did not write simply "because of gentiles," because here we are dealing with a case where there is no objective fear, but the particular person is concerned about danger, and since he is concerned, he is permitted to desecrate Shabbat. Based on this he explains the Rambam's rulings, that if the dangerous creatures are not pursuing a person, there is no danger, and one is forbidden to desecrate Shabbat. But if they are pursuing him and he is afraid, he is permitted to kill them, even if there is no objective danger. This also answers the question that we raised earlier. If a person is worried about a danger that others don't regard as a danger, it would seem that according to the Rogatchover, he himself is permitted to desecrate Shabbat, but others are not permitted to do so.
According to this explanation of the Rogatchover, we can also answer the question raised by R. S.Z. Auerbach, that according to the Rambam, one is forbidden to kill a snake if it is not pursuing him, unless he is afraid, in which case he is permitted to kill the snake.[10] It would appear that the Gemara is addressing a case of a snake wound around a person's foot where the person is not afraid of the snake, but if he were in fact afraid of the snake, he would be permitted to interrupt his prayer.
(Translated by David Strauss)
[1] This is also cited in Yevamot (12b and 100b) and Nidda (45a). [2] It follows from Rashi that a woman is also bound by the prohibition to destroy seed. Rabbeinu Tam (Tosafot, s.v. shalosh) disagrees with Rashi, arguing that there is no prohibition of destroying seed during normal sexual relations. The Ritva maintains that there is a prohibition, but nevertheless he explains the passage as Tosafot do, that according to Rabbi Meir, these women are obligated to use an absorbent. [3] The Ra'a adds another reason to reject Rashi: The Gemara in Yevamot states that "according to one version, were she to conceive, she would certainly die. If this is the case, when the Sages say that mercy will be shown from heaven, this means that she will not conceive, for were she to conceive, she would certainly die. This being the case, what is the reason that she is not permitted to use an absorbent? Without a doubt, then, [Rabbi Meir rules] they are obligated to use an absorbent during sexual relations, and the Sages say they are not forbidden, but they are permitted…." [4] This is also the understanding of Responsa Torat Chesed (Even Ha-Ezer, 44:3): "The reason of the Sages with respect to the three women [having relations] without an absorbent is that since we haven't heard of injury, God forbid, we see then that regarding this matter ‘God preserves the simple.’ And since injury is not probable, we are not concerned." [5] The position of the Terumat Ha-Deshen cited in the previous shiur that a Torah scholar should be stringent upon himself and not rely on shomer peta'im, fits in with the view of the Ritva that there is a danger to which a person is permitted to expose himself.
33 But according to Rashi that shomer peta'im defines the situation as lacking danger, in which case anyone should be permitted to rely on shomer peta'im. [6] See Responsa Torat Chesed (Even Ha-Ezer, no. 44, 2) who raises the opposite objection against the Ritva: Why would the Sages rule that these women may engage in sexual relations without an absorbent –given that we permit the prohibition owing to the danger, they are not permitted to be stringent upon themselves and reject the allowance! [7] See Responsa Yabi'a Omer (I, Yoreh De'a, no. 9), who discusses the Peri Megadim, and brings in the name of Mishmeret Shalom that a distinction can be made between piku'ach nefesh and entering into danger. However, the distinction proposed there is different from the one that we are suggesting. [8] The Achiezer also responds to the Responsa Binyan Tziyon (no. 137) who writes that according to Rashi, the Sages forbid these women to use an absorbent. The Binyan Tziyon’s rationale is that when there is no present danger, but only concern that a danger will develop, we follow the majority, even regarding piku'ach nefesh (and we perform the mitzva, despite the concern of piku'ach nefesh. He applies the same principle to the issue of entering into danger, and for this reason he permits sea travel, because there is no present danger). The Achiezer writes that it is difficult to determine what weight to give to factors that are not mentioned explicitly in the primary sources with regard to questions of danger. He therefore writes that the prohibition of the Sages, according to Rashi, stems from the fact that we are dealing with a remote danger. He also applies the Radbaz's understanding to Rashi, according to which even the Sages permit these women to use an absorbent. [9] And this is indeed the practical ruling adopted by the Pitchei Teshuva (157:3), the Petach Devir (brought in Sedei Chemed 9, p. 3760), and Responsa Dovev Meisharim (I, no. 20). [10] This answers the objection raised against the Rambam who permits killing a snake that is not pursuing a person, even though he rules in accordance with Rabbi Yehuda that one is liable for a melakha performed not for its own sake (see Maggid Mishneh, ad loc.). According to what we have said, this situation is treated as one of piku'ach nefesh, even though the snake is not pursuing anybody, because the person is afraid of the snake.
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Agudah, Diocese Seek Supreme Court Injunction Against New York Limits on Houses of Worship7
A Serious Charedi Halachic Responsum on Covid and Torah?
Can we apply the notion of
COVID-19 responses?
Rabbi Nathan Slifkin writes:8
Over the last six months, there has been enormous criticism over the claims from Rav Chaim Kanievsky (may he have a refuah shelemah) that Torah protects from coronavirus, which was employed as justification for keeping yeshivos open against government recommendations. Still, as I wrote, while the criticism is justified, it must be remembered that Rav Chaim himself is very old and very out of things. His five-word answers, drawn out of him by his manipulative family members, are not a serious halachic responsum, and even plenty of people in the charedi world acknowledge that.
7 https://hamodia.com/2020/11/16/agudah-diocese-seek-supreme-court-injunction-new-yorks-houses-worship-limits/ 8 http://www.rationalistjudaism.com/2020/10/a-serious-charedi-halachic-responsum-on.html
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In light of that, it is especially significant that a serious halachic responsum, on the topic of how much Torah protects against coronavirus, has indeed been published (you can download it here). It was authored by Rav Moshe Shaul Klein, widely considered one of the leading (charedi) poskim in Israel today, and is a leading member of Rav Wosner's Beis Din. Particularly significantly, he is the nasi of the Moked Harav International Halachah-Medical Hotline. An article in HaModia about the Halachah-Medical Hotline states that "Rav Klein is one of the foremost poskim today, and his knowledge in the medical field is amazing. He was a very close talmid of Harav Wosner, zt”l, and is known for his achrayus in psak." And so, while the charedi world is certainly not monolithic with regard to its approach to coronavirus, Rav Klein's responsum is extremely significant.
Rav Klein's lengthy responsum was published a few weeks ago, and begins by acknowledging the many, many people who have died of Covid. He notes that in general one must be very careful to engage in all precautions, and not to belittle them. But for praying in shuls and learning in yeshivos, things are very different.
Rav Klein's responsum primarily focuses on the application of the principle that shluchei mitzvah einam nizokim, "emissaries for a mitzvah are not harmed," and the related principle of shomer patayim Hashem, "God protects the naive." In traditional Talmudic style, these principles have questions raised against them from various scenarios, and distinctions are then drawn, such as that they don't apply when shechiyach hezekah, the source of harm is readily found. After Rav Klein weaves his way through various Talmudic discussions which involve these principles, he concludes the first part of responsum by stating as follows:
"It appears that according to the situation that we see with the coronavirus, that at least 120,000 people in Israel were infected by it, and around 800 people died from it, and most of those who died were already sick (with other conditions) to the extent that any harm would disturb their health, and of the others who recovered, the majority recovered completely, and only a small minority remained weak - this is certainly called lo shechiyach hezeka (no readily found harm). And there is therefore an obligation to open the synagogues and study halls and the yeshivos and kollels, for with such things it is said that shluchei mitzvah einam nizokim."
36 It is important to note that while arguments can be made about whether the costs of restrictions and closures (which are especially high to the charedi lifestyle) are justified by the low fatality rate of coronavirus, this is not the point being discussed in this responsum (at least, not overtly). Rav Klein is not arguing that the low danger of Covid is outweighed by the great importance of maintaining the shuls and yeshivos. Rather, he is saying that the danger of Covid, for people in shuls and yeshivos, is non-existent, because of shluchei mitzvah einam nizokim and other principles that we will later discuss.
Now, Rav Klein's claim that the situation is to be classified as lo shechiyach hezeka can be strongly disputed. His dismissal of the deaths of people with pre-existing conditions is deeply problematic, as is his dismissal of those who are sick but do not die. The Gemara (Yoma 11a) considers even mere financial cost to be hezeka. Certainly grave illness, let alone death, would be rated as hezeka.
But there's another point upon which I would like to focus, which involves three related questions:
1) What does shluchei mitzvah einam nizokim actually mean?
2) What does Rav Klein think that it means?
3) Has Rav Klein, who is using this concept to resolve a matter of life and death, ever thought about what it actually means?
Let's begin with the first question. What does shluchei mitzvah einam nizokim actually mean? Does it mean that someone involved in a mitzvah is never harmed? Does it mean that they are less likely to be harmed (and if so, how much less likely - 10%, 50%, or 90%)? Does it mean that they will be unharmed, unless they contravene conditions X, Y and Z - and if so, what are X, Y and Z? Does it have any clear meaning at all?
As noted, the Gemara itself qualifies the concept, by stating that shluchei mitzvah einam nizokim does not apply in circumstances of clear and present danger. Rav Klein thereby concludes that where there is no significant present danger (which he considers to be the situation with Covid), then it does apply.
But what on earth does that mean? Does Rav Klein believe that people learning in yeshivah or davening in shul are not harmed by coronavirus? Clearly, the evidence is otherwise! (And let's not forget about other lethal harm which befell people in the middle of Torah or prayer, in the Merkaz HaRav yeshivah and in the Har Nof shul massacre.) How on earth does he completely fail to at least address this question?!
In the same way as the Gemara comes up with the qualification that it doesn't apply when there is a clear and present danger, other people have come with all kinds of other ways to get around it. None other than Rav Chaim Kanievsky writes that if it's the person's time to die anyway, then he will die! He explains shluchei mitzvah einam nizokim to mean that the mitzvah itself won't be the cause of the person's death - it will only be the apparent proximate cause, not the ultimate actual cause.
In other words, if a person is learning in yeshivah and contracts a fatal case of Covid, or if he is davening and is suddenly shot by a terrorist, then it was not these things that led to his death in any way; rather, God decided that his already-preordained time to die should occur in this way. In Derech Sicha (vol. 1 pp. 99- 100), Rav Chaim goes even further and claims that God does it as a particular merit for a tzaddik that his death comes about via the seeming cause of his doing a mitzvah, so that he can be said to have died being moser nefesh for a mitzvah. (This is odd, because according to Rav Chaim he was not actually moser nefesh for the mitzvah.)
37 Yet this explanation is deeply problematic. If people who seemingly die of Covid contracted while learning or praying did not actually do so, but are rather dying at their preordained time, then what of the people who contracted Covid while doing other activities? Are they not dying at their preordained time? There's a level where we say that things happen for ultimate, divine reasons. At that level, it can be said that we don't know the true reason why anyone dies. But there's also the real-world scenario (in which halacha operates), where people die due to accidents, murder, disease, and so on etc. Trying to selectively mix the two just doesn't work.
Whatever qualification or rationalization is employed to explain why shluchei mitzvah einam nizokim does not apply in various cases, the bottom line, the facts on the ground, are that people engaged in a mitzvah are not harmed, except when they are. Do people not realize that the principle of shluchei mitzvah einam nizokim is something with absolutely zero effective significance? It's a nice aggadic concept, and one can create interesting aggadic questions and reconciliations with it, but it's not something that has practical effect which can be used in a halachic calculation to guarantee that people will not suffer harm.
Now, you might say, "But the Gemara uses this principle!" And the perhaps-surprising answer to that is that no, it doesn't. The Gemara never uses the principle of shluchei mitzvah einam nizokim to argue that people should engage in potentially risky endeavors. Every instance of this principle in the Gemara is the same: The Gemara mentions how people should not engage in certain actions which are risky; the Gemara then asks, "But isn't it said that shluchei mitzvah einam nizokim?" And the Gemara answers that it doesn't apply in those cases, because there is a realistic risk. We have no idea when or even if the Gemara would ever actually apply it.
(It is true that at the end of Iggeret Teiman, Rambam invokes shluchei mitzvah einam nizokim when he urges that his letter be sent around despite the risks. But it is important to bear in mind that Rambam believed that his letter itself was urgently necessary to protect the Jews from dangerous persecution, and his invocation of shluchei mitzvah einam nizokim should probably taken as serving to convince his audience to distribute his letter.)
Later in the responsum, Rav Klein justifies his approach by invoking other Talmudic principles, such as that maan de'lo kapid, lo kapdinan - "if one does not take note of it, it does not take note of him." He notes that there were many things which historically were considered dangerous, and with which today we do not exercise caution, and the reason is the Talmudic justification (Pesachim 110b) of "if one does not take note of them, they do not take note of him." But the Gemara is talking about how in the Land of Israel, they were not concerned about the superstitious fears prevalent in Bavel! It's used as an excuse to explain why we don't care about demons or any of the dangers spoken about in the Talmud, in the light of the observable fact that no such harm from these things actually exists. It doesn't mean that when observable facts of danger do exist, one can immunize oneself from it by not caring about it!
In the penultimate paragraph of the responsum, Rav Klein addresses the issue of masks. He begins by stating that there is debate in the medical community as to their efficacy, and that in any case there is no empirical data showing that mask-wearing communities have lower rates of infection. He then adds that wearing masks has the downside of causing psychological harm from coronavirus anxiety, whereas those who don't wear masks merit divine protection (shomer patayim Hashem, ma'an delo kapid lo kapdinan), and if they are learning Torah, they are also protected via shluchei mitzvah einam nizokim.
In his final paragraph, Rav Klein bemoans the spiritual harm caused by the shuls and yeshivos being closed. He urges everyone to strengthen themselves and return to mass-studying in the yeshivos, and to davven in shuls rather than outside. Astonishingly, he invokes the Talmudic principle of "Torah does not survive except in one who kills oneself for it." This traditionally meant that one should symbolically kill oneself,
38 i.e., exert tremendous effort, to learn Torah. But he seems to be employing it non-traditionally and entirely literally! After all, he's not saying that one should exert tremendous effort to maintain Torah study while obeying restrictions - he is saying that one should go back the yeshivos, and literally take the chance of killing oneself! (And then, he proceeds to completely contradict this by saying that the Torah will protect people anyway.)
In any case, the final paragraph makes the real story clear. Rav Klein believes that the precautions for coronavirus - from closing yeshivos to even wearing masks - are so harmful to the charedi way of life that they should be disregarded. He doesn't believe that the dangers of coronavirus are serious enough to outweigh this, and so he devises a way to halachically back up that foregone conclusion. And his way of doing so requires him to make claims that he probably himself doesn't believe.
There are two points that I'd like to make about all of this (and probably many more that could be made). One is that this responsum, written by a senior posek occupying an important role with regard to Torah and medicine, shows that while there are respected rabbinic voices in the charedi world (such as Rav Asher Weiss and Rav Yitzchak Berkovits) who call for a cautious approach, and there are plenty of people in the charedi world who follow all precautions, there is certainly a significant problem of charedi rabbis justifying disregarding the risks and not taking precautions. The picture on the right shows meetings between Lakewood roshei yeshivah and Agudah officers, discussing how to fight the coronavirus restrictions - while meeting indoors, without distancing or masks.
The second point to be noted is that a lengthy and purportedly serious responsum, by someone considered one of the foremost poskim in the charedi world, and a particular expert in Torah-medical issues, is very, very problematic. It's one thing to be a non-rationalist with regard to issues of no practical significance, such as with regard to writing drush, or considering questions regarding the age of the universe. It's very
39 different to be a non-rationalist when one is making actual practical decisions regarding life and death. To blithely employ principles about people.
Robert Barnes writes:9
The Supreme Court’s new conservative majority late Wednesday night sided with religious organizations in New York that said they were illegally targeted by pandemic-related restrictions imposed by Gov. Andrew M. Cuomo to combat spiking coronavirus cases.
The 5-to-4 order was the first show of solidified conservative strength on the court since the confirmation of Justice Amy Coney Barrett, whom President Trump chose to replace liberal Justice Ruth Bader Ginsburg following her death in September. The decision differed from the court’s previous practice of deferring to local officials on pandemic-related restrictions, even in the area of constitutionally protected religious rights.
“Even in a pandemic, the Constitution cannot be put away and forgotten,” said the unsigned opinion granting a stay of the state’s orders. “The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”
The limits were severe, at times capping worship services at only 10 people. But the state said they were necessary to deal with “hot spots” of virus outbreaks.
9 https://www.washingtonpost.com/politics/courts_law/supreme-court-relieves-religious-organizations-from-some-covid-related- restrictions/2020/11/26/305f0094-2fa6-11eb-860d-f7999599cbc2_story.html
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The Supreme Court’s order was issued just before midnight, and five justices wrote separately. Chief Justice John G. Roberts Jr., who had been the court’s pivotal member in previous emergency applications seeking relief from virus-related restrictions, dissented along with the court’s three liberal members.
He noted that while the court was considering the petitions, Cuomo, a Democrat, had eased the restrictions, and thus there was no need for the court to intervene now.
“It is a significant matter to override determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic,” Roberts wrote for himself. AD Justice Sonia Sotomayor said the court was intervening where it should not.
“The Constitution does not forbid States from responding to public health crises through regulations that treat religious institutions equally or more favorably than comparable secular institutions, particularly when those regulations save lives,” she wrote, adding, “Justices of this court play a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily.”
Supreme Court, in rare late-night ruling, says California may enforce certain restrictions on religious gatherings
The issue has divided the court before.
In past cases, Roberts agreed with conservative justices who turned down petitions from prisoners seeking intervention, allowing local corrections officials to set the rules for dealing with the virus.
But Roberts sided with the liberals, when Ginsburg was alive, to leave in place restrictions in California and Nevada that imposed strict limits on in-person services at houses of worship. In the California case, Roberts wrote that fast-changing conditions meant the courts should defer to local officials charged with protecting the public. They “should not be subject to second- guessing by an unelected federal judiciary, which lacks the background, competence and expertise to assess public health and is not accountable to the people,” he wrote.
But the court’s more conservative justices said it violated the Constitution for local officials to impose more drastic restrictions on houses of worship than on businesses considered essential. Justice Alito says pandemic has resulted in ‘unimaginable’ restrictions on individual liberty
In a speech to the conservative Federalist Society earlier this month, Justice Samuel A. Alito Jr. amplified his objections, saying the pandemic “has resulted in previously unimaginable restrictions on individual liberty.”
He continued: “This is especially evident with respect to religious liberty. It pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right.”
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Justice Neil M. Gorsuch, another Trump appointee to the court, took pointed aim at Roberts’s opinion in the California case and declared that it should no longer guide lower courts when weighing pandemic-related restrictions on religious services.
“Courts must resume applying the Free Exercise Clause,” Gorsuch wrote. “Today, a majority of the Court makes this plain.”
He said the order should dispel “misconceptions about the role of the Constitution in times of crisis, which have already been permitted to persist for too long.”
Neil Gorsuch? The surprise behind the Supreme Court’s surprising LGBTQ decision.
The Roman Catholic Diocese of Brooklyn and Jewish organizations led by Agudath Israel challenged Cuomo’s system of imposing drastic restrictions on certain neighborhoods when coronavirus cases spike.
Under Cuomo’s plan, in areas designated “red zones,” where the virus risk is highest, worship services are capped at 10 people. At the next level, “orange zones,” there is an attendance cap of 25. The size of the facility does not factor into the capacity limit. The diocese said in its petition that the plan subjects “houses of worship alone” to “onerous fixed- capacity caps while permitting a host of secular businesses to remain open in ‘red’ and ‘orange’ zones without any restrictions whatsoever.”
“The result is that Target and Staples can host hundreds of shoppers at a time, and brokers can spend 40 hours per week working and hosting customers in poorly ventilated office buildings, but Catholics cannot attend a 45-minute Mass,” the petition said.
Cuomo said in announcing the restrictions that failure by some Orthodox Jewish groups to abide by lesser restrictions turned the surrounding neighborhoods into “hot spots,” where temporary drastic measures were needed.
Agudath Israel, which describes itself as an “umbrella organization for Orthodox Jewry,” said Cuomo’s words show why the restrictions are unconstitutional.
“This case is the first time in living memory where a state governor has drawn targets on a map over neighborhoods of a discrete religious minority” to allay “the majority’s ‘fears’ that this minority was deepening a national crisis,” the group said in its petition to the Supreme Court.
“This court should not permit such remarkable scapegoating of a religious minority to stand.”
New York responded that the restrictions are temporary and changing based on conditions. When coronavirus cases spike, the restrictions are put in place, and then removed when conditions improve.
42 For instance, the state said the designations had been changed since the organizations filed petitions with the Supreme Court.
“At this time, there are no red or orange zones in Brooklyn or in Queens — or indeed anywhere in New York City — only yellow zones,” the state said in its response. None of the churches or synagogues face the toughest restrictions.
And the restrictions are lessened for houses of worship in other zones. In the next level, “yellow zones,” nonessential gatherings are limited to 25 people, but houses of worship are restricted to 50 percent of capacity — more than what the diocese even requested.
Actually, the state argued, it has opted to treat religion more favorably.
“Rather than prohibit houses of worship located in red and orange zones from hosting gatherings altogether, [Cuomo’s order] allows such gatherings to occur, subject to limits on their size,” the brief said.
“The order thus accords preferential treatment to religious gatherings in houses of worship, as compared with secular activities that present a similar or greater degree of risk of COVID-19 spread.”
Lower courts sided with the state, denying the emergency relief sought by the religious groups. The cases are Roman Catholic Diocese of Brooklyn v. Cuomo and Agudath Israel v. Cuomo.
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