YESHIVAT HAR ETZION

    ISRAEL KOSCHITZKY VIRTUAL BEIT MIDRASH (VBM)

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    THE LAWS OF SHABBAT

    by Rabbi Doniel Schreiber

    Shiur No. 23: Issur Melakha and the Shabbat Day of Rest Part VIII

SHINUI

1. Introduction

     We have discussed until now three of the eight possible ways to fail meeting the conditions of melekhet machshevet – melakha she-eina

    tzrikha le-gufa, davar she- eino mitkaven, and mitasek. Let us now turn to a fourth situation that does not fulfill the standards of craftsmanship – shinui (deviation) or ke-le'acher yad (lit. back of the hand), which refers to performing melakha in an unusual manner. See Rashi, Shabbat 153b, s.v. ke-le'acher yad.

     Performing a melakha on Shabbat in an unusual manner from which it is normally performed during the week does not incur a Torah violation, but is forbidden rabbinically. (Rambam, Shabbat 11:14, OC 301:7, 328:35, Shulchan Arukh Ha-rav 301:2, and Chelkat Mechokak EH 123:5.)

     Examples of performing melakha through a shinui include performing the melakha of hotza'a (carrying an object from a private domain to a public one or vice versa, or the distance of four cubits in a public domain) by carrying an object, usually carried by hand, in one's mouth (Shabbat 92a), or performing the melakha of koteiv (writing) by writing with the left hand when one normally writes with the right hand (Shabbat 103a and mishna ibid. 104b).

2. Application

    Poskim dispute, however, whether it is permitted, in instances involving illness (such as a choleh she-ein bo sakana – one who is

    suffering from a serious but non-life threatening illness) to perform a melakha, forbidden by the Torah, in the manner of a shinui. The simple reading of many Rishonim (such as Ramban in Torat Ha-adam 4a and Rashba Shabbat 129b) leads one to conclude that it is permitted (Eglei Tal no. 38, note 10, p. 93b, and Yalkut Yosef, vol. 4, Shabbat #4, no. 328, note 12).

     Indeed, this lenient ruling is declared normative by the Shulchan Arukh Ha-rav (328:19), the Ketzot Ha- shulchan (134:4), the Eglei Tal (melechet tochen, no. 18, and no. 17, par. 38, note 10) and many other poskim (see Yalkut Yosef ibid.). Some poskim even extend the leniency to situations of intense pain or serious financial loss (Eglei Tal, Choresh 12:8). This seems to be based on the understanding that shinui is a very lenient form of rabbinic stricture (Rashi, Pesachim 66b, s.v. she-yesh, and Chazon Ish, OC 56, end of note 4, Eglei Tal, Dash, 17:34 in notes). It appears, though, that this leniency may be employed only when preferable alternatives, such as employing a shinui on a rabbinic prohibition or asking a non-Jew to accomplish the act, cannot be utilized (Yalkut Yosef ibid.).

     However, other poskim understand the Rishonim differently. They claim that these Rishonim were not discussing melakhot forbidden by the Torah but, rather, rabbinic prohibitions, and thus it is only with regard to rabbinic violations involving an ill person that a shinui may be employed. Indeed, this is the ruling of the Taz, Magen Avraham, and Vilna Gaon (MB 328:57) and the Mishna Berura (Sha'ar Ha-tziyun 496:9) based on the simple reading of the Shulchan Arukh OC 328:17. [See, however, Megillat Sefer (no. 27, note 4) who asserts that there is in fact no debate, and all agree that where a fundamental differeally, on Shabbat we are commanded "shamor ve- zakhor," observe and remember (see Shemot 20:8 and Devarim 5:12; and Shevuot 20b and Berakhot 20b). The Torah also informs us that Shabbat is a day of "shabbaton" (a solemn day of rest - Shemot 17:23). We are also enjoined to observe "kavod ve-oneg Shabbat" (the honor and delight of Shabbat); commentators debate whether this is a biblical or rabbinic command. (See Rambam, Laws of Shabbat, chap. 30, Ramban Shemot 20:8 and Vayikra 23:2.) While "shamor" refers to issur melakha, forbidden work, "zakhor" (see Ramban Shemot 20:8) and "shabbaton" (see Ramban Vayikra 23:24; gemara Shabbat 114b; however, see also Rambam Sefer Ha-mitzvot, positive commandment 157) refer to the positive mitzvot associated with the sanctity of Shabbat. For example, "zakhor" demands that one sanctify Shabbat through kiddush, while "shabbaton" requires one to maintain the Shabbat as a day of rest, even from 5a. See also Chazon Ish 56:4, Yabia Omer vol. 5, 33:3, and SSK 33:2, n. 17 and 17*.]

3. Definition

    A significant issue in the mechanics of shinui is whether it is sufficient for the shinui to take place merely in the manner that the melakha is normally implemented, or must it also affect the outcome of the melakha. For instance, when a right handed person writes with his left hand, not only is the form through which the action takes place different, but generally the outcome – the appearance of the

    writing - is affected as well. However, what would the law be if a right handed person creates letters and words, while writing in an unusual manner, e.g. with his left hand, that are identical to the letters and words he writes in the normal manner?

     Rabbi Avraham Borenstein writes in his Sefer Eglei Tal (Intro. #3) that while outside the realm of Shabbat this type of shinui would not affect the definition of the act, on Shabbat no Torah violation has occurred (though it is forbidden rabbinically) inasmuch as melakha on Shabbat must meet the high standards of melekhet machshevet which require normal performance of the melakha. See also Tosefot and Rosh on Bechorot 25a, and Shevitat Shabbat, melechet dash 4:6. [See, though, Megillat Sefer (no. 27, note 4) who asserts that an unusual manner can only be defined as a shinui if it is a fundamental differentiation affecting the quality of the melakha.]

     For further research: Does a shinui refer to employing a tedious manner of performing the melakha, or merely a different manner than during week? See Shabbat 92b and Tosafot ibid. s.v. ve-im timtzei lomar, Ran, Shabbat 103a, end of s.v. amar Abaye, Rashi, Pesachim 66b s.v. she-yesh, Chayei Adam 9:2, Eliyahu Rabba 340:11, Avnei Nezer 209:9, Chazon Yechezkel on Tosefta Shabbat 10:11, Shulchan Arukh Ha-rav 301:2, and Kalkelet Ha- shabbat 2:3.

4. Electrical Appliances

    May the leniency of the Eglei Tal be applied to turning on an electrical appliance in an unusual manner, such as with one's elbow? In this case, although the external act of turning on a switch occurs in an unusual manner, the fact remains that ACTION of the melakha, i.e. creating the electrical contacts, occurs in the identical fashion as when turned on in the normal manner. Is this latter instance defined as a shinui?

     It seems that the consensus among poskim is that in order for an action to be defined as a shinui, it must either be a component of the actual action of the melakha (such as connecting electrical contacts, as opposed to an external action such as flipping a light switch), or it must affect the quality of the outcome. According to this opinion, turning on an electrical switch with one's elbow does not meet either requirement. See "Dental Emergencies on Shabbat and Yom Tov" by Rav Moshe Tendler and Dr. Fred Rosner, in Journal of Halacha and Contemporary Society, 14:49, 52, 1987, where Rav Moshe Feinstein zt"l is quoted as identifying with this opinion based upon his interpretation of the Eglei Tal (intro. #3).

     [See, however, "Modern Technology and the Sabbath" by Rav Michael Broyde, in the Journal of Halacha and Contemporary Society, vol. 23, pp. 92-94, which understands that, contrary to the opinion expressed here, the consensus in poskim is that turning on electrical appliances with one's elbow, for instance, is defined as a shinui for melakha prohibited by the Torah. Also, see Chazon Ish OC 56, end of note 4, who emphasizes the difficulty in applying the definition of shinui to different cases; see as well, Rambam Shabbat 12:14 in this connection.]

5. Rabbinic Prohibitions

    It appears, though, that with regard to RABBINIC prohibitions, there is greater latitude given to employing a shinui for a very ill person whose life is not in danger (MB 328:54 and SSK 33:2). This is certainly true when the shinui is a fundamental one, and perhaps evso for a shinui be-alma (a non-fundamental differentiation). See Sha'ar Ha-tziyun 496:9, and Megillat Sefer no. 27, note 4. It must be noted, though, that the leniency of shinui involving a rabbinic prohibition does not apply to rabbinic prohibitions of the melakha she-eina tzricha le-gufa type (MB 278:3) as it is the most serious of the rabbinic strictures (MB 342:1).

     Thus, if one assumes that generally the use of electric appliances (not including incandescent lights) are a rabbinic prohibition, it is possible that a Jewish doctor may be able to treat a patient who is in intense pain with electrical medical equipment turned on through a shinui. Furthermore, a very ill patient (whose life is not in danger) would be able to raise or lower an electrically operated bed by activating it through a shinui to alleviate intense pain or for some other great necessity such as eating. However, it appears that Rav Moshe Feinstein zt"l (ibid.) did not apply the leniencies of shinui to turning on electrical appliances via a non- fundamental differentiation (such as with one's elbow).

6. Drastic Deviations

    Although performing a Torah melakha through a shinui is rabbinically prohibited, certain deviations that change or negate the character of the melakha are permitted. For instance, mashing a banana with the handle of a spoon or fork is permitted. It is not a violation of melekhet tokhen (grinding) since it is a drastic deviation (MB 321:25). The next shiur will discuss other methods and instances that do not fulfill the conditions of melekhet machshevet, and may therefore be used to engineer leniencies under certain conditions.