By Rabbi Yair Hoffman for the Five Towns Jewish Times

There is no question that Klal Yisroel does remarkable chessed. The bikkur cholim in hospitals throughout the tri-state area is truly remarkable – especially in Boro Park. There are rooms to stay in, and as much food as one would want.

There is one issue, however, that could perhaps be improved.

OPERATION CHOCOLATE AND SODA

Imagine a wonderful Jewish Chesed organization that gives away OU-d Hershey chocolate bars to any and all visitors of Boro Park hospitals. Or imagine a Sefardic Chesed organization that gives out soda with corn syrup, albeit with a good Sefardic Hechsher, throughout Pesach in Boro Park hospitals.

It has always been the practice of Jews to be as accommodating as possible to others. In the Five Towns, for example, the pizza shops are Cholov Yisroel. The majority of Five Towns residents do not strictly observe Cholov Yisroel. Yet there is benevolent accommodation in our communities.

The Hershey chocolate give-away is a chessed, true. However, there are many people in the Boro Park hospitals that do not eat Hershey’s OU dairy chocolate. Wouldn’t it be nice to perform the chesed in the best way possible, where people aren’t left out? The soda give-away is also nice, but most of the people in a Boro Park hospital are Ashkenazic Jews. Wouldn’t the chessed be so much better if they gave away soda that all Jews could drink?

THE CHANUKAH LESSON

During the season of Chanukah, many people ask why did the Chashmona’im find it necessary to wait for pure oil? There is a halachic concept called “tumah hutrah b’tzibbur” — if needed for the tzibbur, impure oil may also be used! They could have used the impure oil as well if they were unable to find pure oil. Why didn’t they do so?

One answer that is often given is that the Chashmona’im were setting things up for the first time after a long period of disuse. In such circumstances, everyone is looking and observing. When setting up a system – one should always try to do it in the best possible manner. The Chashmona’im taught us not to settle for things that are impure, but to do mitzvos in the best possible manner. This is one of the lessons of Chanukah.

THE ISSUE

Rav Moshe Feinstein zt”l, the Posek haDor of the generation, had ruled that Brooklyn on account of the extensive amount of people in it is considered a reshus haRabbim from the Torah – a full public domain. His students claimed that the alleged Mechitzos that have always surrounded Brooklyn which proponents of the Eiruv claim exist – are not valid Mechitzos at all. It is not halachically possible to build an Eruv in a public domain. Any attempt to do such would be invalid.

There are others who disagree with his views and there are some that claim that even Rabbi Feinstein zt”l would have agreed that the Brooklyn Eruv is valid. None of his children, grandchildren, or students agree with this view, however. Indeed, for many decades, the standard practice in Boro Park was that no Eruv was possible, and there was no Eruv. Eventually, some Rabbis who disagreed with Rav Feinstein succeeded in erecting a Boro park Eruv.

The people that run the Chesed organization, however, do not bring the food to the Boro Park hospital before Shabbos, but they actually carry it on Shabbos itself – relying on the Boro Park Eruv. The question is whether one who respects the ruling of Rav Feinstein zt”l on the invalidity of Eruvin in Brooklyn, may eat the food that is brought on Shabbos. Also, is this case comparable to the illustrations of the chocolate and the sodas mentioned above. Let us once again emphasize that the organization’s remarkable chesed is not in question here, and it is truly a model Chesed organization that should be emulated.

MAASEH SHABBOS

Let us, however, provide some background explanations.

The term “Maaseh Shabbos” is, unfortunately, not one that is so well known, yet it is a concept with enormous Halachic ramifications. Literally, it means the by-products of Shabbos violation. If someone had Chas V’Shalom violated Shabbos, even by accident, by cooking, sewing, carrying, or planting what is the halachic status of the product of the Shabbos violation? May it be used by him?

SCOPE

It should be known that the concept of Maaseh Shabbos is not just limited to foods that were cooked. Rather, it is applicable in many other situations too as well as to all 39 of the Shabbos Malachos. It applies to clothing that was sewn, fires that were lit, and items that are planted. It applies to Biblical prohibitions as well as to Rabbinic prohibitions. And according to many Poskim, it applies to items that were carried on Shabbos as well. The issue is that, while the food was in fact, carried, no specific change was affected within the food itself.

The three opinions are as follows:

1] The Rashba (Shabbos 130a), the Ritvah (Eiruvin 41b), and Rabbeinu Yonah (ibid) hold that it is permitted if no physical change took place within the food itself.

2] The Rambam (Hilchos Shabbos 6:24) and the Rosh hold it is permitted if there is no benefit to the user – for example if the carried item was put back.

The Mogain Avrohom (on SA OC 405:9), the third opinion, only permits it if the violation was a derabanan – but if it was a deoraisah and it was put back – it is still forbidden even if he had no benefit.
The Chayei Odom Klal 9 (See Nishmas Adam) states that in carrying, where there is nothing changed within the item itself – one would be permitted to utilize the byproduct of Shabbos violation. However, the Biur Halacha (Siman 318) states that when it comes to a Torah prohibition – one must be stringent just like in regard to cooking.

Rav Feinstein’s view, as understood currently by his family and students, is that it is indeed a Torah prohibition to carry in a Brooklyn Eruv.

BACKGROUND AND REASONS

The Talmud (Ksuvos 34a, 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 by accident – B’Shogeg and

2] when it was violated intentionally – B’Maizid.

Two of the three views are found below:

• Rabbi Meir is of the opinion that when Shabbos is violated unintentionally – B’Shogeg there is no prohibition placed on what was cooked or made. However, when Shabbos is violated on purpose – B’Maizid one may not benefit from that which was done until Motzei Shabbos – Saturday night.

• Rabbi Yehudah is of the opinion that one may never benefit from a Shabbos violation on Shabbos itself and one must wait until Moztei Shabbos even if it was done unintentionally – B’Shogaig. If it was done on purpose, however, the person who did it can never use it. It is forbidden FOREVER.

FINAL HALACHA

According to which opinion do the Rishonim rule?

The Rambam, Rif and the Shulchan Aruch rule like Rabbi Yehudah. For the 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’Shogaig. None of the Rishonim rule in accordance with Rabbi Yochanan HaSandlar, however.

How does the Mishna Brurah, who is the final arbiter of halacha, rule? He rules (318:7) that when it is l’tzorech – when necessary, one may rely upon the Vilna Gaon when the Shabbos was violated B’Shogaig. What about when it was violated on purpose? The Mishna Brurah 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 Mishna Brurah rules stringently.

Of course in this case, those that are carrying are of the opinion that the carrying is permitted. Under such circumstances, many Poskim view that if your own Poskim think that the other view is in error, their labor is considered beshogaig to you.

DEFINITION OF L’TZORECH

It is also interesting to note that the Mishna Brurah does not define for us what the exact parameters of l’tzorech are. Elsewhere, the Mishna Brurah (325:60) tells us that regarding Amirah L’Akum the parameters of “l’tzorech” are if one will not have hot food on Shabbos. One would have thought that the same definition would apply here. However, both Rav Elyashiv zt”l and Rav Shlomo Zalman Auerbach ruled more stringently (See Meor HaShabbos Vol. I 18:17). They rule that L’Tzorech means not having food at all.

This author brought the issue before Rav Dovid Feinstein Shlita and Rav Shmuel Fuerst Shlita this week. Both said that Rav Moshe Feinstein’s view was that “l’tzorech” would mean even if one will not have hot food on Shabbos – even though he may have other food. This is contrary to the view cited in the aforementioned Meor HaShabbos. This does not necessarily mean that one may eat of the food that is carried. This is because one can always make arrangements prior to Shabbos to have hot food in a home of a neighbor where one would not have to resort to carrying.

DEFINITION OF B’SHOGEG

There are three types of Shabbos errors that would be considered B’Shogeg.

• If one thought that it was permissible to do this action.

• If one followed the ruling of a Rabbi, even though it turned out to be incorrect (See Mogen Avrohom 318:3).

• If one forgot that it was Shabbos (See Mishna Brurah 318:6).

WHAT IF A KEY WAS CARRIED ON SHABBOS AND A DOOR WAS OPENED?

As an interesting aside, what is the halacha if a Jew had carried a key on Shabbos where there was no Eiruv? Rav Moshe Feinstein (IM OC II #71) forbids entering the door under such circumstances. Rav Elyashiv zt”l permits it (cited in his son-in-laws work, Mlachim Umnayich p.525). Rav Elyashiv’s rational is that in this case it is viewed not a positive action of benefit but rather as the removal of an impediment. The lock is blocking entry into the walled off area.

Yet the Mishna Brurah himself (518:45) forbids use of items found in a bit that was opened up in violation of the laws of Shabbos – indicating that he is in agreement with Rav Moshe.

CONCLUSIONS

If there is a need and one could not have made arrangements beforehand, then the carrying would be considered beshogaig and it would be permitted to rely on the view of Rav Meir. Otherwise, we would follow the view of Rabbi Yehudah and not eat of the carried food.

This author had approached both the hospital as well as the organization to try to arrange that all the food be brought before Shabbos so that everyone can be accommodated – even those that follow the view of traditional view of Rav Feinstein zt”l. Many Poskim, Rabbonim ,and lay leaders are indeed surprised that no such accommodation has been made. If anyone is in a position to influence matters, it would be appreciated by many thousands of religious Jews.

The author can be reached at [email protected]