Accepting Shabbat Early if it will be Necessary to Violate it

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This shiur is dedicated in memory of Israel Koschitzky zt"l, whose yahrzeit falls on the 19th of Kislev. 
May the world-wide dissemination of Torah through the VBM be a fitting tribute to a man whose lifetime achievements exemplified the love of Eretz Yisrael and Torat Yisrael.

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Question:

          If a soldier will be going out to stake an ambush or carry out some other military operation late on Friday afternoon before sunset – is it preferable that he accept Shabbat after pelag ha-mincha (1:15 of halakhic hours before sunset, the earliest time that Shabbat may be accepted) and thus be able to recite kiddush over a cup of wine, even though this will result in his desecrating Shabbat during the period that he adds to Shabbat (tosefet Shabbat); or is it preferable that he accept Shabbat as late as possible shortly before sunset, even if this means that he will only be able to recite kiddush over bread, or alternatively the next day over wine?

Answer:

          The answer to this question would seem to depend on the disagreement among the Rishonim in Shabbat (chapter 19) regarding the law in a case where the warm water or medications that will be needed following a Shabbat circumcision spilled or became scattered prior to the circumcision. According to Rav Zerachya Ha-Levi (Ba’al ha-Ma’or, Shabbat 53a in the Rif’s pagination) and the Rashba (134b), the circumcision is delayed to the next day, rather than violating Shabbat for these. Had the water or medications spilled following the circumcision, Shabbat would be set aside, and we would replace them, owing to the danger that is now posed to the baby, but if they spilled prior to the circumcision, it is better that the circumcision be delayed in order to avoid this desecration of Shabbat. According to the Ramban (ad loc.), on the other hand, the mitzva must be performed at its prescribed time, and it must not be set aside on the grounds that performing the circumcision will make it necessary to desecrate Shabbat, because afterwards it is the law of piku'ach nefesh (saving a life) that sets Shabbat aside and not the law of circumcision.

          The Shulchan Arukh (YD 266:4) implies that the law follows Rav Zerachya Ha-Levi and the Rashba. See the Shakh (266:6) and Bei'ur ha-Gra (266:10). Accordingly, just as we set aside the Torah commandment to perform circumcision on the eighth day, so as not to desecrate Shabbat with a melakha forbidden by Torah law, so too it stands to reason that we should set aside the commandment of reciting kiddush over a cup of wine, which is only by Rabbinic law (that is, since we follow the Vilna Gaon with respect to the acceptance of Shabbat, and tosefet Shabbat from the time of pelag ha-mincha is only by Rabbinic decree according to all opinions. See OC 261, and Bei'ur Halakha, s.v. yesh omerim she-tzarikh).

Indeed this ruling is more compelling in our case than in the case of circumcision. For regarding circumcision, the obligation to perform the circumcision on the eighth day is cancelled by the delay; whereas in our case, even if he recites kiddush the next day, he still fulfills the mitzva, only that he doesn't fulfill it in the ideal manner.  For we who rule in accordance with the Rambam that even if a person intentionally failed to recite kiddush on Friday night, it can be made up the next day (see Shulchan Arukh, OC 271:8) – this is not based on a law of tashlumin (make-up), but on the fact that the time of kiddush is all day long, as is explained in the Bei'ur Halakha. See also Minchat Chinukh (mitzva 31), who raises doubt about this, but concludes that the law is not based on tashlumin. He proves this from the law that someone who is an onen (the period of mourning before the burial) on Motza'ei Shabbat, can, according to the Rambam and the Shulchan Arukh, recite havdala until Wednesday. In our case, then, perhaps even the Ramban would agree.

Further support may be brought from what the Ran writes in Shabbat (53a in the Rif’s pagination) to reconcile the position of the Ramban, and to reject the Rashba's proof from the words of the Mishna which says:

Beit Shammai say: He may dig up [earth] with a shovel and cover [the blood]. But Beit Hillel maintain: One may not slaughter unless he has [loose] earth prepared from the day before [the festival]; but they agree that if he has [already] slaughtered, he may dig up [earth] with a shovel and cover [the blood]. (Beitza 1:2)

One might have said that one should be permitted to slaughter because of the obligation to rejoice on a festival, and afterwards we should say that the mitzva of covering the blood sets aside the prohibition to dig up earth. From the fact that we don't say this, the Rashba concludes:

Rather, learn from here, that whenever we know from the outset that it will lead to a melakha (forbidden labor on Shabbat or a festival), we set aside the mitzva in order to avoid ultimately violating the melakha.

          The Ran argues that there is no proof from here, because slaughter is not a fixed mitzva like circumcision. It follows from this that where the mitzva is not fixed, even the Ramban agrees that the mitzva is set aside. If so, in our case as well, there is no fixed mitzva to accept Shabbat at the time of pelag ha-mincha. See also Ha'amek She'ala of the Netziv (10:9), who writes that the Ramban's ruling applies only to circumcision, which itself overrides Shabbat, and so one is permitted to perform circumcision even if it will lead to a desecration of Shabbat. But regarding other mitzvot, even the Ramban agrees that one is forbidden to perform a mitzva if it will necessarily lead to a desecration of Shabbat.

          It would seem, however, that the comparison to circumcision should be rejected, for circumcision is different in that not only as a result of the fulfillment of the mitzva of circumcision will it be necessary to set aside Shabbat, but rather the circumcision itself causes Shabbat to be set aside. This is not true in our case, for even though as a result of kiddush, Shabbat will be set aside, it is not the kiddush that causes Shabbat to be set aside.

On closer examination, however, this distinction is incorrect, for it is impossible to say that because the circumcision would cause Shabbat to be overridden, the circumcision itself is delayed. On the contrary, were this to be the reason – Shabbat should be set aside, and not circumcision, just as circumcision generally overrides Shabbat. Rather the reason that circumcision is set aside is, as the Rashba writes, that wherever we know from the outset that a mitzva will lead to a melakha, we set aside the mitzva so as to avoid needing to violate the melakha. This is also the way that the Chatam Sofer understood the Rashba, for in his responsa (YD 368), he links the question whether a kohen may study medicine, even though he will be forced to defile himself if he needs to treat a dying person, to this disagreement between the Ramban and Rav Zerachya Ha-Levi.

          Proof can also be brought from what the Terumat ha-Deshen (no. 41) writes with regard to the prohibition to think about Torah matters in the washroom. The Terumat ha-Deshen asks why one is permitted to go to the bathroom immediately after a discussion of a point of Halakha, given that there is a concern that he will then meditate upon the words of the Torah studied in a place where this is forbidden. In other words, he asks why a person is not obligated to interrupt his study some time before entering the washroom, despite the fact that this would involve squandering time that could have been utilized for the mitzva of Torah study. His answer is that if one thinks about Torah that he learned previously, he is regarded as doing so under compulsion, as is proven from the Gemara (Kiddushin 33a): "Maybe it is different when done involuntarily." There too it is not the study of Torah that sets aside the prohibition of meditating upon Torah in filthy places, and this is similar to our case, and not the case of circumcision.

          There is, however, still room to distinguish, for the Tashbetz (I, 21) writes regarding a baby who had been sick but recovered that he is not to be circumcised on a Thursday, because it will be necessary to desecrate Shabbat on the third day after his circumcision. He learns this from the words of Rav Zerachya Ha-Levi (Ba’al ha-Ma’or, 7a in the Rif’s pagination) regarding the prohibition of setting out on a boat voyage less than three days before Shabbat, that the reason is that the three days before Shabbat are already considered legally, "before Shabbat," and he is intentionally planning to set aside Shabbat based on the permit of piku'ach nefesh. But his position was not accepted as the Halakha (see Shakh, YD 266:18).

Although in the case where the medications became scattered before the circumcision, we rule that the circumcision is set aside, in accordance with the view of Rav Zerachya Ha-Levi, we must distinguish between that case where the obligation of Shabbat already applies, and the case of circumcision on Thursday, where the obligation of Shabbat does not yet apply. If so, in our case as well, at the time of pelag ha-mincha the obligation of Shabbat does not yet apply, and so it should be likened to the case of circumcision on Thursday, about which we say that the circumcision is not set aside.

This argument, however, is not valid, for the moment that he recites kiddush, he is already bound by the obligation of tosefet Shabbat, and so the case is similar to the case where the medications became scattered on Shabbat where the circumcision is set aside. It should be added that the Pitchei Teshuva (YD 266:15) brings in the name of Ya'avetz that in the case of a convert we take the Tashbetz's position into account, for he is not yet obligated in circumcision, unlike a baby. See there, and see Yevamot 47b: "If he accepted, he is immediately circumcised. What is the reason? Because we do not delay a mitzva." If so, the same applies in the case of pelag ha-mincha, when the obligation of kiddush does not yet apply, and so we should take the Tashbetz's position into account.

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          Indeed, some of you noted that this question should depend on whether in the case of war the Shabbat prohibitions are permitted altogether (huttera) or merely set aside (dechuya). According to Rav Shlomo Goren (Meishiv Milchama 1, pp. 88, 108) that we learn from the words, "Until it falls" (Devarim 20:20) that war on Shabbat falls into the category of "huttera," even if we say that in a case of piku'ach nefesh in general Shabbat is "dechuya" and not "huttera" – in which case it should be preferable to recite kiddush at pelag ha-mincha. This point is firmly established and has logical appeal, and has been mentioned by several important Acharonim, as will be explained below, but nevertheless there is room to question its validity.

          The notion that the disagreement between Rav Zerachya Ha-Levi and the Ramban depends upon the question of "huttera" or "dechuya" was already put forward by the Chatam Sofer, in his commentary to Beitza, and in this way he counters the Rashba's proof from Beit Hillel who said that one may not slaughter an animal on a festival unless he has loose earth prepared from the day before. Namely, since the rabbis permitted a person to dig up earth with a shovel if he already slaughtered, because a positive commandment sets aside a negative commandment, and this is only "dechuya," whereas piku'ach nefesh according to the Ramban is "huttera."

          It would seem that this argument cannot be used for our case, given an analysis of the source of the allowance to wage war on Shabbat, which is the following baraita in Shabbat:

Our Rabbis taught: Gentile cities must not be besieged less than three days before Shabbat, yet once they commence they need not leave off. And thus did Shammai say: "Until it falls" – even on Shabbat. (19a)

          Rav Zerachya Ha-Levi (Ba’al ha-Ma’or, 7a in the Rif’s pagination) says about this baraita:

[Gentile cities] must not be besieged less than three days before Shabbat, because it would appear as if they were stipulating to set Shabbat aside.

          Thus it is clear – either Rav Zerachya Ha-Levi maintains that war on Shabbat falls into the category of "dechuya," and not that of "huttera," or he maintains that this law does not depend on the question of "huttera" or "dechuya."

          It seems that we can prove that this law does not depend on the question of "huttera" or "dechuya," based on the Sho'el u-Meshiv (III, 1, 434) in response to seemingly contradictory rulings by the Tur, an objection raised by the Responsa Ateret Chakhamim. Regarding a sick person who must be fed meat, and only neveila meat is available, the Tur rules (OC 328) that the prohibition of Shabbat is "huttera": "Because Shabbat for him is like a weekday for whatever he needs;" whereas regarding the case where the warm water was spilled, the Tur rules in accordance with Rav Zerachya Ha-Levi that the mitzva of circumcision is set aside (the assumption being that this issue depends on the issue of "huttera" or "dechuya"). The Sho'el u-Meshiv reconciles the two rulings of the Tur by explaining that the Tur maintains that Shabbat is "dechuya" with respect to piku'ach nefesh, and he explains the expression, "Shabbat for him is like a weekday" differently. Even if we agree with his interpretation of the Tur, the objection remains in place regarding the Tashbetz, for he proves that piku'ach nefesh on Shabbat falls into the category of "huttera" and not "dechuya," saying: "Nowhere in the Talmud have I found that the Sages said with respect to Shabbat that it is 'dechuya'" (III, 28). But nevertheless the Tashbetz rules, as mentioned above, that a convert is not circumcised on Thursday because it would appear as if a stipulation were being made to set Shabbat aside. Thus, we are forced to say that this question does not depend on the issue of "huttera" or "dechuya."

          As for the reasoning, the Netziv writes in the aforementioned Ha'amek She'ala, that both according to the one who says that ritual impurity is "dechuya" with respect to communal sacrificial obligations, and the one who says that it is "huttera" – one is forbidden to cause the Pesach offering to be brought in a state of ritual impurity, even for the sake of a mitzva. For if there are many people in the community who are ritually impure, but they constitutes a minority, the question may be raised according to the one who says that ritual impurity is "huttera" with respect to the community, why don't they cause everybody to become ritually impure and bring the Pesach offering in a state of ritual impurity, so that even the ritually impure can fulfill the mitzva. You must therefore say that one is forbidden to bring about a scenario where ritual impurity is permitted with respect to a community, even for the sake of a mitzva. While one might wish to suggest a distinction, namely that in the case of Pesach at issue is not his own mitzva fulfillment but someone else’s, both the Magen Avraham (571:1) and Machatzit ha-Shekel (ad loc.) reject this logic. If so, here too, despite the fact that Shabbat is permitted for piku'ach nefesh or for war, one must not act to bring about a situation that will necessitate such a violation, even for the sake of a mitzva.

          To summarize, even if a person will have to forfeit reciting kiddush over a cup of wine, it is better to accept Shabbat at sunset, so as to minimize Shabbat desecration. He should not recite kiddush at pelag ha-mincha and stipulate that he is not accepting Shabbat, for this is impossible to do, even though the Rambam's wording seems to imply that kiddush does not depend on a person's acceptance of Shabbat:

A person may recite kiddush over a cup [of wine] on Friday before sunset, even though Shabbat has not commenced. Similarly, he may recite havdala over a cup [of wine] before sunset, even though it is still Shabbat. For the mitzva of remembering Shabbat involves making [a statement to this effect] at the entrance and the departure of the Sabbath, or slightly before these times. (Hilkhot Shabbat 29:11)

          He seems to imply that kiddush does not depend upon accepting Shabbat, just as havdala does not depend upon Shabbat having come to an end. In any event, the Mishna Berura rules (263:50) that even according to those who maintain that a stipulation is effective with respect to candle-lighting, all agree that once he mentions the sanctity of the day, he must not profane it, according to all positions.

(Translated by David Strauss)