Pidyon Kaparot Now

Shabbos Work With a Shinuy

 

In this week’s parasha we read the Ten Commandments, one of which is refraining from work on Shabbos. This week’s article will highlight the issue of shinuy – performing work in an abnormal manner. At times, abnormal performance is not prohibited at all, at times it remains a Torah prohibition, and at times it is only a rabbinic prohibition. What is the reason for this divergence? What is considered a shinuy? Is flicking on a light switch with the elbow considered a shinuy? Is performing an action with the non-prominent hand considered a shinuy? Does every Torah prohibition become rabbinic, provided it is performed with the non-prominent hand? And the opposite, regarding positive commandments – can one fulfill his Torah obligation with his non-prominent hand? Are tefillin or a get written with the non-prominent hand kosher? What about an animal slaughtered that way – it is kosher? The upcoming year of Shmittah also brings questions of shinuy to the fore – can jobs in the field be done with a shinuy?

Halachic Source

The Mishna and Gemara often mention that performing prohibited activities on Shabbos k’lachar yad (= with a shinuy, in an abnormal fashion) exempts one from the Shabbos death penalty or a Chatos sacrifice, and on Yom Tov – from lashes. These actions though, do remain rabbinically forbidden.

For example: the Mishna (Shabbos 92a) writes that one who moves an item from the private domain to the public domain on Shabbos (hotza’a mereshus lereshus) his shoulders is culpable for his action. This is based on the manner that the Kohanim carried the Mishkan utensils. However, one who carries in an abnormal manner, e.g. on the back of his hand, balancing it on his foot, in his mouth, stuck in his hair, clothing or shoes (but not in his pocket) – is not.

Reasons for Exemption

The Rishonim and Achronim mention 3 reasons for this exemption: 1) The quality of the action is affected. It is no longer an important action and therefore not considered one of the work-categories forbidden on Shabbos. 2) When the Torah instructed not to do certain actions, the Torah’s intention was to refrain from preforming them in the usual manner. According to the Torah, one who performs an action abnormally is not considered as having done the action. 3) There is a special suspension for Shabbos actions – in order to qualify as a Torah prohibition, the action must be performed just as it was done in the Mishkan. These reasons will be explained below.

It is important to note that at times the prohibition is called isur gavra – prohibition of the person. In this case, the shinuy may be in the person performing the action. At other times, the prohibition refers to the result of the action and not to the person doing it. Here, the shinuy would be only if  the action was done improperly or incompletely, but not in performed in an abnormal fashion (Chazon Ish, Bechoros, chapter 21:5). Thus, for example, a murderer who killed in an abnormal fashion is not acquitted. The result of his action is a dead man, and there is no difference in the way he was killed. On the contrary, the Torah writes (Shemos 21:14) “But if a man plots deliberately against his friend to slay him with cunning, [even] from My altar you shall take him to die” – one who intentionally waves a loose axe so the head flies off and kills another, the coincidental format bears no weight and the killer is served the death penalty.

Abnormal Manner – Not an Action

The first approach was advanced by the Ra’avia (part II, chapter 694, quoted in the Maharm Rothenberg, Prague edition, chapter 12) who writes that one is not culpable for writing on Shabbos with the left hand because it is not an important action, but rather done offhandedly (k’lachar yad, with a shinuy). This ruling is applicable to other halachos as well: a Kohen performing service in the Mikdash; writing tefillin; shaking lulav and esrog. Since performing these actions with the non-prominent hand renders the action unimportant, the mitzva is inviable if performed in this way. Consequently, a kohen who performs service in the Mikdash with his left hand is not considered to have performed it; tefillin written with the left hand are not kosher; and a righty who shook lulav and esrog with the lulav in his left hand needs to re-shake them with the lulav in his right hand.

In light of the above, the Ra’avia deduces that wherever an action needs to take place with the prominent hand, a lefty should perform it with his left hand in order to define the action a noteworthy action.

Torah Prohibitions — Only Properly Executed Actions

The second approach was advanced by the Levush (Orech Chayim 301:8) who explains that the reason for the exception is because the Torah only forbade actions when they are performed in the usual manner. For example, moving objects from one domain to another in an irregular fashion is not a Torah prohibition. This is deduced from a pasuk:  “Each man must remain in his place; no man may leave (אל ייצא) his place on the seventh day” (Shemos 16:29). Chazal read in the words אל ייצא (he should not go out) the words of אל יוציא (he shall not expel), i.e. removal of objects in the commonly transported fashion is forbidden.

Following this opinion, the Kovetz Shiurim (Kesuvos 202) deduces that the reason doing something abnormally is not a Torah prohibition is because the Torah never forbade performing an action in an unusual manner. This rule applies throughout the Torah, and he mentions several examples: eating forbidden food in an abnormal fashion, deriving pleasure from something in a way it is not intended to be enjoyed, roasting the Pesach sacrifice in the sun.

An Intentional, Constructive Action

While the first two reasons seem to apply throughout the entire Torah, many Rishonim and poskim limit the exemption solely to the laws of Shabbos, among them: Tosefos Ri Hazaken (Kiddushin 6a), Rabbenu Menachem Hameili (Hameoros, Rosh Hanshana 33a), the Chelkas Mechokek (chapter 123:5), Pri Chadash (ibid, footnote 4), and others. This opinion is based on the fact that forbidden actions on Shabbos are only those that stem from the actions preformed in the construction of the Mishkan. In building the Mishkan the Torah defines the actions performed in its construction “every [manner of] thoughtful work” (Shemos 35:33). Onkelus and Rabbenu Yehonoson ben Uziel translate “thoughtful work” as “a work of art”. Therefore, forbidden work on Shabbos and Yom Tov is only such that can be defined as intentional, constructive work.

Shinuy on Shabbos and Throughout the Torah – Summary

While the rules of shinuy certainly apply to work performed on Shabbos and Yom Tov, its application to other mitzvos is not clear-cut. Some of the above-mentioned sources see it applicable to all mitzvos just as it applies to the laws of Shabbos, while others see it as a rule that only applies to Shabbos and Yom Tov.

Following are a number of examples how this rule is applied in halacha:

Performing A Mitzva

The Ra’avia (part II, chapter 694) writes that every mitzva should be performed with the prominent hand, in the most intentional way. An improperly executed mitzva is inviable. Therefore, one who shakes his lulav with his non-prominent hand did not perform the mitzva. A lefty should perform all mitzvos with this prominent hand in order to render the action a proper mitzva.

The Rama rules (Orech Chayim 651:3) that ex post facto, one who already shook his lulav with his non-prominent hand has performed the mitzva. However, the Mishna Brura (footnote 19) writes that it is proper to factor in the Ra’avia’s opinion and one who shook his lulav with the non-prominent hand should re-shake it again without a bracha.

Sifrei Torah, Tefillin and Mezuzos

The Shulchan Aruch (Orech Chayim 32:5) rules that one should not lay tefillin that were written with the non-prominent hand unless there no other tefillin available. The Mishna Brura (footnote 19) writes that if this is his only option, he should lay them without a bracha because their kashrus is debatable.

A Get

The Rama writes that optimally, a get should be written with the prominent hand. Seemingly, this halacha is only before writing it, but ex post facto, a get written with the non-prominent hand is also kosher. The Chelkas Mechokek (123:5) and Pri CHadash (ibid, footnote 4) explain that a get written with the non-prominent hand is kosher since professional writing is unnecessary for a get. However,  the Beis Shmuel (ibid 4) rules that writing in this manner not considered writing at all, and the get is only kosher bedieved if writing another one is impossible.

Slaughtering

Sefer Hatruma (chapter 205) writes that although in his opinion tefillin written with the non-prominent hand are not kosher, an animal slaughtered with the non-prominent hand is kosher because no intention is necessary in slaughtering. In his opinion intentional, deliberate activity only applies to the halachos of Shabbos.

Shmittah

Rav Eliyashiv (mentioned in Derech Emuna, Shmitta, chapter 1:1) rules that performing work in the field during shmitta with a shinuy is a Torah prohibition because the concept of deliberate action (“thoughtful work”) does not apply to activities that are prohibited in Shmitta.

A Life-Threatening Situation

The Rama rules (328:12) that when a person is in a life-threatening situation which warrants desecrating Shabbos, if the necessary activities can be done with a shinuy without endangering the patient, it should be done with a shinuy. However, if a shinuy will cause a delay and endanger the patient, no shinuy is necessary.

Defining a Proper Shinuy

If there are others present when performing an action with a shinuy in a life-threatening situation, one should inform them that the shinuy is only because it will not affect the endangered individual (Shmiras Shabbos Kehilchaso chapter 32, footnote 86, quoting Rabbi Shlomo Zalman Auerbach).

Difference in Quality

How to use an elevator on Shabbos for sick people is a commonly asked question. While the quality of the elevator or speed of its arrival will not be affected by pressing the button with an elbow, can this manner of pressing the button be permitted (for the ill) under the definition of shinuy? This question is relevant for any electronic equipment that requires the user to press a button – light switches, locks etc.

The Or Zarua writes that one who places a pot on a fire on Shabbos in an unconventional manner still transgresses a Torah prohibition of cooking on Shabbos because the manner of placing the pot does affect the outcome in any way – the food gets cooked either way. Similarly, the Ben Ish Chai was asked (Rav Pealim, volume I, Orech Chayim chapter 20) if tearing a fruit off a tree with one’s mouth on Shabbos is a transgression of a Torah prohibition or a rabbinic one, as this manner of fruit picking should be considered a shinuy. The Ben Ish Chai answered that this is subjected to a dispute among the Rishonim:

The Avnei Nezer (Eglei Tal, introduction, 3) understands that if there is a difference in the quality of the action, it is not considered a deliberate, intentional action (melacha). This exemption is relevant throughout the Torah. But in reference to Shabbos, there is an additional exemption – only “thoughtful work” is a Torah prohibition. Here, while the result may well be the same, it is the manner of execution that matters. Just as carrying from one domain to another is not a Torah prohibition if the item is not carried normally, even if the end result – the item reached the other domain remains the same, so too here — the manner of execution is the deciding factor, not the end result.

This is an example of the halachic complexity of this matter. Contemporary poskim see this manner of shinuy as questionable — it may well remain a Torah prohibition, regardless of the difference in execution.

Hence, when doing a forbidden action on Shabbos for an endangered individual and the only possibility of shinuy is of this sort, if it makes no difference to the endangered individual there is value in employing it.

Determining a Shinuy

In light of the above, it is clear how difficult it is to define something as a shinuy. Who defines what is a viable shinuy?

Shut Ginas Vradim (Orech Chayim 3:19) mentions a long list of actions which remain a Torah prohibition on Shabbos despite having seemingly incorporated a shinuy. He ends with the conclusion: “In my eyes, I do not know how to determine what is a shinuy and what is not”.

Summary

When performing a mitzva, one should do so in the accepted manner and with his prominent hand. Some opinions even see using the non-prominent hand as invalid performance some mitzvos.

Transgression of a Shabbos prohibition with a shinuy brings the action down to the level of a rabbinic prohibition. Nevertheless, determining what constitutes a shinuy is very difficult.

It is unclear if difference in the manner of performance without any difference in the result is considered a shinuy or not.

 

 

 

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