By Rabbi Yair Hoffman for 5TJT.com

There is a new and interesting halachic controversy brewing in Israel. What follows is an explanation of the specific halachic concepts behind it.  There are other issues as well, some being halachic, that will hopefully be addressed in a future article, but at this point the idea is to understand two major halachic issues at hand.

Mr. Joe Noshabformi is a manufacturer of toilet paper. His factory produces toilet paper seven days a week. Mr. Noshabformi is Jewish but not religious. In fact, 14.29 percent of the toilet paper he produces was made on Shabbos.

May observant Jews purchase Noshabformi toilet paper? At the end of this article, we will attempt to identify the Noshabformi brands themselves.

MAASEH SHABBOS

There is a concept in Jewish law called Maaseh Shabbos – the byproduct of Shabbos violation. The Talmud (Kesubos 34a) records a debate regarding maaseh Shabbos created by a Jew. Rav Acha and Ravina argue as to whether maaseh Shabbos is forbidden by Torah law or by rabbinic law. The final halachah is that it is forbidden only by rabbinic law.

REASONS FOR PROHIBITION

What is the reason for the prohibition? One reason is that it is a means to prevent future or further Shabbos violation. Another reason is that the prohibition will serve to further our appreciation of the gift that is Shabbos.

FLAG ANALOGY

To better understand this, an analogy may be in order. The U.S.A., the state of Israel, and indeed every nation in the world has a flag that its citizens respect and venerate. The nation of Israel, the oldest among all groups and nations, also has such a flag. That flag is Shabbos, described in the Torah as an “os,” a sign. The prohibition of maaseh Shabbos serves to imbue the Jewish nation with veneration and respect for the os that is Shabbos.

THE DEBATE

The Gemara (ibid.; Chulin 15a, and Bava Kamma 71a) records a debate between the Tannaim as to the parameters of the prohibition. The two categories under discussion are (1) when Shabbos was violated unintentionally, b’shogeg, and (2) when it was violated intentionally, b’meizid.

THREE VIEWS

There are three views:

• Rabbi Meir is of the opinion that when Shabbos is violated b’shogeg, unwittingly, there is no prohibition placed on what was cooked or made. However, when Shabbos is violated b’meizid, brazenly, no one may benefit on Shabbos from that which was done. However, it becomes permissible for use after Shabbos–that is, after enough time has elapsed that it could have been made after Shabbos.
• Rabbi Yehudah is of the opinion that one may never benefit from a Shabbos violation on Shabbos itself, and must wait until Shabbos is over, even if the melachah was done b’shogeg, unwittingly. If it was done on purpose, however, the person who did it can never use it. It is forbidden to him forever. (But others may use it after Shabbos.)
• Rabbi Yochanan HaSandlar states that if the melachah was done b’shogeg, others may eat (or make use) of it after Shabbos, but the Shabbos violator may never do so. When the melachah was done b’meizid, brazenly, however, it is forbidden forever to everyone–the violator and acheirim, all others.

FINAL HALACHA

How do the Rishonim rule?  The Rambam, Rif, and Shulchan Aruch rule like Rabbi Yehudah: For the (intentional) Shabbos violator, the maaseh Shabbos is forbidden forever, and for everyone else it only becomes permitted on Saturday night.

Tosfos and the Vilna Gaon, however, rule more leniently. They rule like Rabbi Meir, who permits everything on Saturday night and does not forbid it at all if it was done b’shogeg. None of the Rishonim rule in accordance with Rabbi Yochanan HaSandlar, however.

How does the Mishnah Berurah, which is generally considered the final word in halachah, rule? He rules (318:7) that when it is l’tzorech–when necessary–one may rely upon the Vilna Gaon when Shabbos was violated b’shogeg. What about when it was violated b’meizid -on purpose?

BRAZEN SHABBOS VIOLATION

The Mishnah Berurah does not state that one can rely on the Vilna Gaon’s opinion in such a case. The clear indication is that in cases of intentional Shabbos violation, the Mishnah Berurah rules stringently.

DEFINITION OF OTHERS

There is, however, another issue.  The Mogen Avrohom (in Siman 318:2) writes that it would appear to him that if the Shabbos violation was done for others, then they too are considered just like the person who did the Maaseh Shabbos himself.  This would mean that, according to Rabbi Yehuda, if person X cooked for person Y, then the food is forever forbidden to both X and Y.  It is only permitted to Z, after Shabbos.  X did not do make anything for Z.  Later on, however, the Mogen Avrohom seems to say that the Bais Yoseph in Yore Deah 99:5 indicates that in our case, it would be permitted for all others.

The Ksav Sofer (responsa OC #50) explains that the Mogen Avrohom’s change of heart refers to someone who generally observes Shabbos but will occasionally violate it on purpose.  If, however, the person does not keep Shabbos at all – then the byproduct of his Shabbos violation is forbidden to them forever.

If we examine the issue in Yore Deah, we find that there are two views as to how to understand this.  The TaZ (YD 99:10 is lenient under certain circumstances, namely, if the recipient did not want what the violator had provided and is unhappy.   The Pri Chadash and the Rivash are stringent.

MAY WE FOLLOW THE MAJORITY?

There is a concept in Jewish law called Rov – following the majority.  In the case of Mr. Noshabformi, 85% of the time, the product was manufactured during the week and not on Shabbos.  May the orthodox consumer follow the majority in such a case?

IT DEPENDS WHERE HE WOULD BE BUYING IT

Throughout the Talmud, the Braisah of “Nine Stores” is quoted many times.  The Shulchan Aruch (YD 110:3) rules in accordance with this Braisah.  What the Braisah states is as follows:  “Nine stores in town sell only kosher meat.  One store sells non-kosher.  He bought the meat from one store but does not remember which one.  The meat is forbidden.  Why?  Because every “Kavuah” – set place, or place of origin, makes it as if it is fifty-fifty.  However, if the meat is found outside – then we may follow the majority, since anything that ‘exited” so to speak exited from the majority.  And we had a majority of nine stores.”   The Ramah adds that the “exiting” from the place of origin has to have not been witnessed in front of us.  But if it was witnessed in front of us – then it is still considered as fifty-fifty.

WHEN DID THE DOUBT BEGIN?

The question is: When, in fact, did our question of “but was it made on Shabbos” actually begin?  Did it begin in the place of origin?  Or did it begin elsewhere?  If it began elsewhere – then the toilet paper is permitted.  If it began at the place of origin – then it would be forbidden.  Rabbi Shlomo Ben Aderet (1235-1310), more commonly known as the Rashba considers this to be permitted.  Rav Aharon HaLevi of Barcelona (1235-1290?), more commonly known as the Ra’ah, however, disagrees.  He differentiates between these two cases in that the Braisah’s case dealt with something that could have been completely kosher in the place of origin.  In this case, the item was a question in the place of origin too.  The Shulchan Aruch and the Tur (110:5) rule like the Rashba.  The Ramah is concerned for the Ra’ah.

WHEN A DISTRIBUTOR TAKES IT FROM THE PLACE OF ORIGIN TO A STORE

What happens when a distributor takes it from a place of origin – the factory and places the offending toilet paper in a retail store?  For that distributor it was considered fifty-fifty and therefore forbidden.  But what about for others?  Do we consider it as having “exited” and therefore permitted to use?  Or is it still considered an extension of the place of origin?

DEBATE AMONG ACHRONIM

The author of the Yad Yehudah holds that the forbidden ruling of the fifty fifty applies to others.   This is also the view of the Chazon Ish (YD 37:13  “v’haya”) and also the author of the Shev Shmaitsa  (Shmaitsah IV, chapter 18).  The Pri Magadim (YD SD 210:18), however, takes a more lenient view, permitting it, but writes that if it is possible to verify then one should do so.  It is theoretically possible to verify production dates through knowing codes.  The Shaarei Yoshar Shaar IV 3:48) also takes a lenient view.

SO WHICH BRANDS ARE NOT MADE ON SHABBOS?

Rav Elyashiv zt”l was very much behind the idea of promulgating the purchasing of products that are manufactured by Shomer Shabbos.  There is an institution in Eretz Yisroel that is researching this are – both in theory and in practice.  It is called Machon Biur Halacha and it is headed by Rabbi Yisroel Meir Morgenstern shlita, the son of Rav Dovid Morgenstern shlita, who was one of Rav Elyashiv’s most trusted Poskim.  The research of the Machon reveals the following in regard to toilet paper.

RECOMMENDED

Shniv Toilet Paper is Shomer Shabbos.

Soft Toilet Paper, made by Snow, is Shomer Shabbos

Anything manufactured out of the country can be assumed to have been manufactured by gentiles and would therefore not be problematic.

QUESTIONABLE

Molett, a product of Chuglah, is made on Shabbos.

Shmuras Teva, a product of Chuglah, is made on Shabbos.

Of course everyone should ask their own Rav or Posaik as to how to proceed.  This author is of the opinion, however, that we could be lenient and by the other products for two reasons.  We have a sfek sfaikah as to whether or not the halacha is like the Mogain AVrohom first thought, and whether or not the halacha is like the Pri Magadim or not.

The author can be reached at [email protected]

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