Doing Melakha in an Abnormal Way?
THE LAWS OF SHABBAT
By Rav Doniel Schreiber
Shiur #23: Issur Melakha and the Shabbat Day of Rest Part VIII
SHINUI
1. Introduction
We have discussed until now three of the eight possible ways to fail
meeting the conditions of melekhet machshevet melakha she-eina tzrikha
le-gufa, davar she- eino mitkaven, and mitasek. Let us now turn to a fourth
situation that does not fulfill the standards of craftsmanship shinui
(deviation) or ke-le'acher yad (lit. back of the hand), which refers to
performing melakha in an unusual manner. See Rashi, Shabbat 153b, s.v.
ke-le'acher yad.
Performing a melakha on Shabbat in an unusual manner from which it is
normally performed during the week does not incur a Torah violation, but is
forbidden rabbinically. (Rambam, Shabbat 11:14, OC 301:7, 328:35, Shulchan Arukh
Ha-rav 301:2, and Chelkat Mechokak EH 123:5.)
Examples of performing melakha through a shinui include performing the
melakha of hotza'a (carrying an object from a private domain to a public one or
vice versa, or the distance of four cubits in a public domain) by carrying an
object, usually carried by hand, in one's mouth (Shabbat 92a), or performing the
melakha of koteiv (writing) by writing with the left hand when one normally
writes with the right hand (Shabbat 103a and mishna ibid. 104b).
2. Application
Poskim dispute, however, whether it is
permitted, in instances involving illness (such as a choleh she-ein bo sakana
one who is suffering from a serious but non-life threatening illness) to perform
a melakha, forbidden by the Torah, in the manner of a shinui. The simple reading
of many Rishonim (such as Ramban in Torat Ha-adam 4a and Rashba Shabbat 129b)
leads one to conclude that it is permitted (Eglei Tal no. 38, note 10, p. 93b,
and Yalkut Yosef, vol. 4, Shabbat #4, no. 328, note 12).
Indeed, this lenient ruling is declared normative by the Shulchan Arukh
Ha-rav (328:19), the Ketzot Ha-shulchan (134:4), the Eglei Tal (melechet tochen,
no. 18, and no. 17, par. 38, note 10) and many other poskim (see Yalkut Yosef
ibid.). Some poskim even extend the leniency to situations of intense pain or
serious financial loss (Eglei Tal, Choresh 12:8). This seems to be based on the
understanding that shinui is a very lenient form of rabbinic stricture (Rashi,
Pesachim 66b, s.v. she-yesh, and Chazon Ish, OC 56, end of note 4, Eglei Tal,
Dash, 17:34 in notes). It appears, though, that this leniency may be employed
only when preferable alternatives, such as employing a shinui on a rabbinic
prohibition or asking a non-Jew to accomplish the act, cannot be utilized
(Yalkut Yosef ibid.).
However, other poskim understand the Rishonim differently. They claim
that these Rishonim were not discussing melakhot forbidden by the Torah but,
rather, rabbinic prohibitions, and thus it is only with regard to rabbinic
violations involving an ill person that a shinui may be employed. Indeed, this
is the ruling of the Taz, Magen Avraham, and Vilna Gaon (MB 328:57) and the
Mishna Berura (Sha'ar Ha-tziyun 496:9) based on the simple reading of the
Shulchan Arukh OC 328:17. [See, however, Megillat Sefer (no. 27, note 4) who
asserts that there is in fact no debate, and all agree that where a fundamental
differeally, on Shabbat we are commanded "shamor ve- zakhor," observe and
remember (see Shemot 20:8 and Devarim 5:12; and Shevuot 20b and Berakhot 20b).
The Torah also informs us that Shabbat is a day of "shabbaton" (a solemn day of
rest - Shemot 17:23). We are also enjoined to observe "kavod ve-oneg Shabbat"
(the honor and delight of Shabbat); commentators debate whether this is a
biblical or rabbinic command. (See Rambam, Laws of Shabbat, chap. 30, Ramban
Shemot 20:8 and Vayikra 23:2.) While "shamor" refers to issur melakha, forbidden
work, "zakhor" (see Ramban Shemot 20:8) and "shabbaton" (see Ramban Vayikra
23:24; gemara Shabbat 114b; however, see also Rambam Sefer Ha-mitzvot, positive
commandment 157) refer to the positive mitzvot associated with the sanctity of
Shabbat. For example, "zakhor" demands that one sanctify Shabbat through
kiddush, while "shabbaton" requires one to maintain the Shabbat as a day of
rest, even from 5a. See also Chazon Ish 56:4, Yabia Omer vol. 5, 33:3, and SSK
33:2, n. 17 and 17*.]
3. Definition
A significant issue in the mechanics of
shinui is whether it is sufficient for the shinui to take place merely in the
manner that the melakha is normally implemented, or must it also affect the
outcome of the melakha. For instance, when a right handed person writes with his
left hand, not only is the form through which the action takes place different,
but generally the outcome the appearance of the writing - is affected as well.
However, what would the law be if a right handed person creates letters and
words, while writing in an unusual manner, e.g. with his left hand, that are
identical to the letters and words he writes in the normal manner?
Rabbi Avraham Borenstein writes in his Sefer Eglei Tal (Intro. #3) that
while outside the realm of Shabbat this type of shinui would not affect the
definition of the act, on Shabbat no Torah violation has occurred (though it is
forbidden rabbinically) inasmuch as melakha on Shabbat must meet the high
standards of melekhet machshevet which require normal performance of the
melakha. See also Tosefot and Rosh on Bechorot 25a, and Shevitat Shabbat,
melechet dash 4:6. [See, though, Megillat Sefer (no. 27, note 4) who asserts
that an unusual manner can only be defined as a shinui if it is a fundamental
differentiation affecting the quality of the melakha.]
For further research: Does a shinui refer to employing a tedious manner
of performing the melakha, or merely a different manner than during week? See
Shabbat 92b and Tosafot ibid. s.v. ve-im timtzei lomar, Ran, Shabbat 103a, end
of s.v. amar Abaye, Rashi, Pesachim 66b s.v. she-yesh, Chayei Adam 9:2, Eliyahu
Rabba 340:11, Avnei Nezer 209:9, Chazon Yechezkel on Tosefta Shabbat 10:11,
Shulchan Arukh Ha-rav 301:2, and Kalkelet Ha- shabbat 2:3.
4. Electrical Appliances
May the leniency of the Eglei Tal be
applied to turning on an electrical appliance in an unusual manner, such as with
one's elbow? In this case, although the external act of turning on a switch
occurs in an unusual manner, the fact remains that ACTION of the melakha, i.e.
creating the electrical contacts, occurs in the identical fashion as when turned
on in the normal manner. Is this latter instance defined as a shinui?
It seems that the consensus among poskim is that in order for an action
to be defined as a shinui, it must either be a component of the actual action of
the melakha (such as connecting electrical contacts, as opposed to an external
action such as flipping a light switch), or it must affect the quality of the
outcome. According to this opinion, turning on an electrical switch with one's
elbow does not meet either requirement. See "Dental Emergencies on Shabbat and
Yom Tov" by Rav Moshe Tendler and Dr. Fred Rosner, in Journal of Halacha and
Contemporary Society, 14:49, 52, 1987, where Rav Moshe Feinstein zt"l is quoted
as identifying with this opinion based upon his interpretation of the Eglei Tal
(intro. #3).
[See, however, "Modern Technology and the Sabbath" by Rav Michael Broyde,
in the Journal of Halacha and Contemporary Society, vol. 23, pp. 92-94, which
understands that, contrary to the opinion expressed here, the consensus in
poskim is that turning on electrical appliances with one's elbow, for instance,
is defined as a shinui for melakha prohibited by the Torah. Also, see Chazon Ish
OC 56, end of note 4, who emphasizes the difficulty in applying the definition
of shinui to different cases; see as well, Rambam Shabbat 12:14 in this
connection.]
5. Rabbinic Prohibitions
It appears, though, that with regard to
RABBINIC prohibitions, there is greater latitude given to employing a shinui for
a very ill person whose life is not in danger (MB 328:54 and SSK 33:2). This is
certainly true when the shinui is a fundamental one, and perhaps even more so
for a shinui be-alma (a non-fundamental differentiation). See Sha'ar Ha-tziyun
496:9, and Megillat Sefer no. 27, note 4. It must be noted, though, that the
leniency of shinui involving a rabbinic prohibition does not apply to rabbinic
prohibitions of the melakha she-eina tzricha le-gufa type (MB 278:3) as it is
the most serious of the rabbinic strictures (MB 342:1).
Thus, if one assumes that generally the use of electric appliances (not
including incandescent lights) are a rabbinic prohibition, it is possible that a
Jewish doctor may be able to treat a patient who is in intense pain with
electrical medical equipment turned on through a shinui. Furthermore, a very ill
patient (whose life is not in danger) would be able to raise or lower an
electrically operated bed by activating it through a shinui to alleviate intense
pain or for some other great necessity such as eating. However, it appears that
Rav Moshe Feinstein zt"l (ibid.) did not apply the leniencies of shinui to
turning on electrical appliances via a non- fundamental differentiation (such as
with one's elbow).
6. Drastic Deviations
Although performing a Torah melakha
through a shinui is rabbinically prohibited, certain deviations that change or
negate the character of the melakha are permitted. For instance, mashing a
banana with the handle of a spoon or fork is permitted. It is not a violation of
melekhet tokhen (grinding) since it is a drastic deviation (MB 321:25).
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