Tuesday, October 27, 2009

Shabbas 7a - Karpaf

Rav Ashi explains that a karpaf is not a karmelis. If so, what is it? It is a reshus hayachid מדאורייתא with an issur of טלטול ד’ אמות. This begs the obvious question – doesn’t this mean that karpaf is not one of the 4 רשויות and it would be more correct to list 5 reshuyos in the beraysa on 6a, since its dinim are different than a karmelis (you are chayav mideoraisa if you transfer from רשות הרבים to it unlike the karmelis). The Rishonim address this question on 6a. Ramban answers that the beraysa is listing four different types of areas, not halachically, just physically. Their halachos are מדאורייתא only 3 but מדרבנן four. Therefore, the karpaf is not separate since physically it is a reshus hayachid. Tosfos’s (and others) answer is that the karpaf is a reshus hayachid gamur and only has the din of karmelis for carrying 4 amos within, so it is not new – it is like two reshuyos already counted, in some aspects like reshus hayachid and some like karmelis. The footnotes in the Ran explains this difficult answer that the gezeira of carrying in a karpaf does not define the area differently (as chazal did by karmelis), it just creates an איסור גברא, therefore it is not counted.

(Interestingly, see yerushalmi that says:ארבע רשויות לשבת: רשות היחיד, רשות הרבים, וכרמלית, ומבואות שאינם מפולשין )

Friday, October 16, 2009

shabbas 4a -- sinning to prevent a greater sin

The gemara rejects the possiblity that one would perform an aveira in order to prevent another person from doing a greater aveira. Tosfos points out that this rule is in effect in some places in shas. i.e that we do perform an עבירה קלה on someone else's behalf in order to prevent a greater aveira. Tosfos provides 3 explanations for when this would apply:
1. When it is your fault. This is the case where you were not מפריש and you will cause others to eat tevel so we allow you to violate an issur derabanan to be מפריש שלא מן המוקף. This can be explained as a problem of you doing an aveira of לפני עוור and thus not done for your friend but for yourself.
2. If it is a מצוה רבה. The classic example is freeing a half slave (an איסור עשה) to allow him to be fulfill פריה ורביה.
3. If the person did the aveira המזיד then we do not sin for him but בשוגג we would.

Based on 2 (and 3 above), the Shulchan Aruch סימן שו סעיף יד paskens that we DO violate an issur derabanan (and perhaps even safeik deoraisa -- see Mishna Berura about שלש פרסאות) for a grave aveira, i.e to save from shemad. The case he discusses is to violate techum shabbas to save your daughter (MB says not necessarily your own daughter) if she was kidnapped to convert her. Mishna Berura says that if she left במזיד to convert, then you still may be allowed to violate a pure איסור דרבנן. This is davka because it is not a one time aveira but will be a permanent situation (see taz).

Wednesday, October 14, 2009

shabbas 3b -- extending your hand above 10 tefachim

The first אוקימתא of the gemara explains that above 10 we would be allowed to extend a hand to reshus harabim. Rav Meir explained that this is because above 10 tefachim the hand is a makom petur and not a karmelis. This assumption is not rejected as the gemara continues in subsequent אוקימתות. Thus Tosfos indeed says that above 10 is מותר לכתחילה and thus if we have a problem where we actually stuck our hand out to רשות הרבים, we can pull it back in by doing it above 10 tefachim. The Rashba does not accept this since as the gemara progresses we move to a simple קנס not based on the hand being a כרמלית. Therefore, it would be assur to extend our hand above 10 tefachim to prevent us from possibly doing it below 10 or because we may drop the object. (Rashba there addresses why it is not gezeira legezeira).
The Rambam does not mention the difference between above and below 10 tefachim explicity so we would think that he agrees with the Rashba. However, the מגיד משנה points out that the Rambam uses the language אויר רשות הרבים which by definition is less than 10 tefachim, and then he would agree with Tosfos.
The Mishna Berura also says like Tosfos and allows you lechatchila to return your hand above 10