Desecrating Shabbat in Order to Prevent a Greater Shabbat Desecration

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Dedicated in memory of our parents Jack Stone z"l and Helen and Benjamin Pearlman z"l and in honor of Esther Stone by Gary and Ilene Stone

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Question:

We had been assigned on Shabbat to a forward position, and we knew that a jeep would soon be arriving with our meals. That is to say, at least two soldiers would desecrate Shabbat because of us and perform a melakha that is forbidden by Torah law. We could have prevented this by radioing in a message, an action that would have involved the violation of a rabbinic prohibition. The question arises whether or not to apply in such a case the principle that:

A scrupulous person prefers to commit a minor ritual offense in order that an ignorant person should not commit a major one (Eiruvin 32b).

Answer:

          Your question of when do we apply the rule, "We do not tell a person, 'Sin, in order that your neighbor may thereby merit'" (Shabbat 4a) and when do we say "A scrupulous person prefers to commit a minor ritual offense, etc.," is an issue that is discussed by the Rishonim.

          The primary source in this context is a passage in Shabbat (4a) regarding one who had placed a loaf of bread in an oven on Shabbat – is another person permitted to detach it from the oven (in violation of a rabbinic prohibition) to prevent the first person from violating the Torah prohibition of baking, and thus being required to bring a sin-offering. The Gemara’s response is: "Rav Sheshet said: Do we say to a person, 'Sin, in order that your neighbor may thereby merit?'" See there in Tosafot and other Rishonim, who raise objections from other passages in the Gemara which imply that it is in fact preferable that one person should commit a minor offense in order to save another person from committing a graver offense.

          In order to reconcile all the sources, the Rishonim proposed several principles. We will suffice with citing excerpts of these approaches from the Beit Yosef (OC 306):

The Rashba was asked about someone who was informed on Shabbat that his daughter had been forcibly removed from his home by an apostate Jew in order to remove her from the community of Israel, whether he should set out on Shabbat, lest they intimidate her into converting, whether he is permitted to go out even past three parsa'ot, according to the one who says that the Shabbat limit of three parsa'ot is by Torah law, and even to attain a royal seal approving his action. Is Shabbat set aside for this uncertainty, as it is set aside in the case of possible danger to human life?

And he answered: The matter requires study, but nevertheless I am inclined to say that Shabbat is not set aside to save a person from sin. For they said (Shabbat 4a) that we do not tell a person to sin so that another person should thereby merit, and we do not even permit a minor transgression in order to save the other person from [violating] a more serious prohibition. For they only said in chapter Ba-Kol me'arvin (Eiruvin 32b) that a scrupulous person prefers to commit a minor ritual offense in order that an ignorant person should not commit a major one when that prohibition comes to the ignorant person because of the scrupulous person. But otherwise this is not the case, as is proven in the first chapter of Shabbat regarding one who put a loaf of bread into the oven. The matter requires further study so that it can be clearly understood.

          Tosafot (Shabbat 4a) first present the same position as the Rashba, but then raise an objection from a mishna which states:

One who is half a slave and half free works for his master and for himself on alternate days; these are the words of Beit Hillel. Beit Shammai said: You have made matters right for the master but not for the slave. It is impossible for him to marry a female slave because he is already half free. It is impossible for him to marry a free woman because he is half a slave. Shall he then remain unmarried? But was not the world only made to be populated, as it is stated: "He created it not a waste, He formed it to be inhabited" (Yeshayahu 45:18). Rather for the better ordering of the world, his master is compelled to liberate him and he gives him a bond for half his purchase price. Beit Hillel thereupon retracted their opinion and ruled like Beit Shammai (Gittin 4:5).

          Tosafot ask how this suggestion is to be reconciled with the fact that one who sets his slave free transgresses a positive commandment. And they suggest two answers: first, that procreation is a great mitzva and therefore it overrides the prohibition to free a slave. And second, that it is only in a case where the other person acted negligently, e.g., where he put the loaf of bread into the oven shortly before Shabbat, that one is forbidden to commit even a minor offense on his behalf. But in a case where the other person was not guilty of any negligence, one is permitted to commit a minor offense in order to save the other person from violating a more serious prohibition.

Based on this approach, if the other person's prohibition did not come about because of him, and that other person came to the prohibition because of some negligence – then both according to the Rashba and according to Tosafot we do not say to a person that he should commit a minor offense and thereby save the other person from violating a more serious prohibition. If the other person's prohibition came about because of him, then even if the other person had been negligent, we say to him that it is better that he should commit a minor offense. And if the other person's prohibition did not come about because of him, and the other person had not been negligent, the Rashba and Tosafot disagree as to the law. According to the Rashba, we do not tell the person to commit the minor offense, whereas according to Tosafot, a person prefers to commit a minor offense in order that another person should not commit a major one.

          The Beit Yosef decides the law in accordance with the viewpoint of Tosafot, and this is also the way he rules in the Shulchan Arukh (306:14):

If someone was informed that his daughter had been taken away on Shabbat, to remove her from the people of Israel, it is a mitzva for him to set out and try to save her, and he may even go out past three parsa'ot, and if he does not want to do this, we compel him to do so.

The Rema (ad loc.) refers to what he writes elsewhere:

If [non-Jews] wish to force a certain person to commit a severe transgression, one may not desecrate Shabbat in order to save him. See above 310 (Beit Yosef in the name of the Rashba). (Rema, Shulchan Arukh 328:10)

          It would appear that the Rema disagrees with Rav Yosef Karo (the Shulchan Arukh) and rules in accordance with the Rashba. See, however, Magen Avraham (306:29) who writes that there is no dispute between the Rema and the Shulchan Arukh, because performing a labor that is forbidden on Shabbat by Torah law is regarded as a severe transgression, and it is only relative to conversion to another religion that it is considered a minor transgression, and the Vilna Gaon writes accordingly. The Magen Avraham adds: "The truth is that it depends on whether or not the other person was negligent" (254:21).

          The Noda bi-Yehuda (second series, EH 37), however, writes that Rav Yosef Karo and the Rema disagree about the matter in dispute between Tosafot and the Rashba. According to him, we, who follow the Rema, accept the Rashba’s view that the critical question is whether the other person's prohibition came about because of him, and that the other person's negligence is not a factor. The Mishna Berura (306:56), however, decides in favor of the Magen Avraham:

For we maintain that if the other person had not been negligent, one is obligated to commit a minor offense in order that the other person should not commit a major one.

          He further writes there, that in the case of a rabbinic prohibition, even if the other person had been negligent, there is room to be lenient and save him from committing a major offense. (And see there in Sha'ar ha-Tziyun 46, that it is not clear whether he means to be lenient about a rabbinic prohibition in all cases, or only to prevent conversion; and see Shulchan Arukh ha-Rav 306:29).

          Returning to our case:

          First of all, we must consider whether the fact that others will desecrate Shabbat in order to bring a person food turns it into a prohibition that he brought about. It seems obvious that even though the prohibition is because of him, it is not considered as a prohibition that was brought about by him. For this case is different from the case in "Ba-kol me'arvin." In the latter case, where the scrupulous person says to the ignorant person: “Fill your basket with figs from my fig tree," it is the actions of the scrupulous person that cause the ignorant person to sin. This distinction also emerges from the language of Tosafot and the Rashba (Shabbat 4); see also Chiddushei Rabbi Akiva Eiger (ad loc.).

          As for the question of whether the other soldiers should be treated as negligent – there is room for discussion. For since those soldiers are convinced that what they are doing is permitted in a time of war, and since they are not acting on their own initiative, but as they were commanded by their superiors, they might be considered as unwitting transgressors.

Based on these arguments, it would seem that at the very least there is room to permit you to violate a rabbinic prohibition in order to save the others from violating a Torah prohibition. Nevertheless, I have my doubts about the matter for two reasons:

1) The aforementioned Noda bi-Yehuda states: "It turns out then that wherever it is not explicitly stated by the Talmudic sages, we do not say, 'Sin, in order that your neighbor may gain thereby,' even if the prohibition is only rabbinic." Even though there is room to disagree, and it also does not appear to me that this is the consensus among the Acharonim, nevertheless, we should take this position into account.

2) I am also afraid that such an allowance would lead to another breach, and that people would infer from here that operating a communications device on Shabbat does not violate any prohibition. The Netziv used similar reasoning when he was stringent and refrained from granting a woman an allowance to undergo immersion during the day – something which the Rabbis forbade even on the eighth or ninth day – even though this might have saved her from committing a severe transgression that is punishable by karet:

The rule is that in order to permit one prohibition because of another prohibition requires great consideration, just like healing the body. For if a doctor sees that a person's hand is causing him great pain, sometimes he decides to amputate it so that the pain not spread to the rest of his body and endanger him. And sometimes he decides that it is better that he should suffer the pain and not lose the hand. This can only be decided with a clear mind by several doctors, because both alternatives are dangerous. So too with healing a damaged soul in this manner – it requires a clear mind, several Torah authorities with God in their midst, so that it not lead to ruin, God forbid. (Meishiv Davar 2, 44).

For these reasons, I dare not permit even the violation of a rabbinic prohibition, in a matter that is not explicit in the words of our Rabbis.

(Translated by David Strauss)