Shabbos 58a - Crowns for Kallos

The braisa on 57b says that this headband called איסטמא which is used to help contain hairs that can't be contained by the standard head covering, is not a problem of shatnez. R. Shimon adds that it can be worn by a kalla and doesn't violate the gezeira that after the destruction of the beis hamikdash brides cannot wear crown-like head pieces. Regarding the shatnez issue, there is a machlokes between Rashi and Tosafos. Rashi says that it is made from a felt material that has never been spun into strings and woven. It is just flattened fibers that are held together and therefore not a violation of shatnez. Tosafos disagrees because even on felt there is a Rabbinic prohibition. Therefore, Tosafos says that since it is a coarse material, in conjunction with it being felt and not proper threads, there isn't even a Rabbinic prohibition. According to both these approaches it is very understandable why it wouldn't be a violation of עטרות כלות since it is made of material in a very inferior manner and certainly doesn't contain any type of precious metals or stones. The Shulchan Aruch 561:4 even permits crowns made of regular material so long as there are no precious metals in it.

However, Tosafos d.h. v'eina, writes that it is a standard cloth (maharsham says the term muzhav is a mistake and should say צבוע), but has sewn into it all sorts of precious stones, jewels and pearls. Being that the cloth is only there to help contain the precious stones, it is batul to the stones and doesn't qualify as a garment. This is why there is no problem of shatnez and it is also not susceptible to tu'mas nega'im. Tosafos apparently holds that even though the garment part of it is made like a regular garment that is spun and woven, and is soft, it would still not be a problem of shatnez since it is batul to the stones that are on it. Based on this, Rav Yitzchok Isaac Chaver (back of vilna shas) says that if one has a silver atara that is attached to a linen or even shatnez cloth, they may sew it on to their tallis and it will not be a violation of shatnez since the cloths is batul to the silver. Rav Moshe (dibros, heara 5, pg 376) wonders why this Tosafos isn't cited by the poskim. He assumes that even if this is what Tosafos means, since it isn't cited by the poskim, one cannot rely on this halacha l'ma'aseh.

The question that bothers me is, if the Aruch is correct that this head band is made from precious stones and metals, why would it not be a violation of עטרות כלות. It is one thing to permit head pieces made from materials, even if not just felt as Rashi describes, but once it will have precious stones (and Tosafos implies that gold is also sewn into it, even if the actual beged is not gold), it should be forbidden for a kalla to wear? Perhaps the rationale of R. Shimon for it not being a violation of the gezeira against crowns for brides is not based on how it is made but rather where on her head it is worn. Perhaps he holds that since it is worn below the head covering and not on the top of her head, it wouldn't qualify as a "crown" - וצריך עיון. Another possible explanation can be based on the Taz 361:6 who writes that the gezeira on crowns is only when they are made specifically for the bride. Based on this he permits using the silver crowns from the shul which was the custom in his time. Being that the איסטמא is not made for a bride, it would be permitted.

Shabbos 57a - Chatzitza That Doesn't Block Water

The gemara says a rule that whatever would be considered a chatzitza to prevent water from penetrating and therefore have to be removed before immersing in a mikva, would be forbidden to wear on shabbos out of fear that one may remove it and carry it. The gemara offers an איכא דאמרי which says that something that is dirty, although it allows water to penetrate is forbidden - כיון דטניפא, מקפד קפדא עלייהו - since it is dirty a person tends to be makpid and not want it there. The point of the gemara is to say that one may not wear such an item on shabbos in the public domain, but it isn't clear whether the gemara is insisting on the removal even for immersion in a mikvah.

Rashi explains that since water can easily penetrate there is no issue of chatzitza and one may immerse with this item. However, since it is dirty and by bathing with it on, the residue mud will get on a persons skin, they will definitely remove it prior to immersion and therefore forbidden to wear on shabbos for fear that they may carry it. However, Rashi citing his Rebbeim - רבותיו של רש"י, explain that even though water penetrates, one may not immerse in a mikva while they are wearing something that they are makpid about and don't want to be there. The רבותיו של רש"י create a new concept that even when something doesn't block the penetration of water, it can still be considered a chatzitza and must be removed for tevila. Although they write that this is when one is both makpid on it AND it covers the majority of one's body or hair, it would seem that just as by a real chatzitza the Rabbonon make a gezeira for anything that one is either makpid about OR covers the majority of their body, the rules here would be the same [this is the assumption of the pischei teshuva y.d. 198:4; whereas the Sidrei Tahara writes that the gezeira would only be extended to a case where one is makpid, even on part of their body, but not to a case of רובו שאינו מקפיד. Rav Moshe (dibros) even suggests the possibility that on this type of chatiztza there wouldn't be any gezeira at all and it would only be a problem if it were both רובו and מקפיד].

The Sha'ar HaTziyun 303:4 points out that the Rama seems to contradict himself. The Rama in Y.D. 198:4 writes like the רבותיו של רש"י that something can qualify as a chatzitza even if it doesn't prevent water from penetrating. Yet, in O.C. 303:1 the Rama explains this gemara like Rashi - something that is dirty even though it doesn't block water and doesn't need to be removed for tevilla would still be forbidden to wear on shabbos since practically speaking one will remove it before immersing to prevent the mud from getting on their skin. Why does the Rama in Y.D. assume like רבותיו של רש"י, yet in O.C. assumes like Rashi? If we were to say that the Rama is machmir in Y.D. like רבותיו של רש"י, but in Hilchos shabbos is machmir like Rashi, we could suggest that the Rama paskens like both l'chumra. However, it is difficult to see how the approach of Rashi could be a chumra and more restrictive than the approach of his rabbeim.

In general when we define the concept of מקפיד in the context of chatzitza for immersion we refer to anything a person wants removed during normal activity, either for their own sake or for the sake of the item. However, when Rashi describes the concept of makpid that will lead one to remove the item prior to immersion he is speaking about something that has some dry mud on it which one will remove before immersing to prevent themselves from getting dirty. It is possible that this type of makpid would not qualify as a chatzitza for mikvah. The definition of chatzitza for mikvah is something that in general one doesn't want to be there (either because it bothers them or they are afraid of it getting ruined) and therefore isn't batul to their hair or skin, but here she does want these woven threads to be there and isn't technically makpid about them even when she immerses, just that since it will leave some residue afterward she will remove it to prevent herself from getting dirty. It is not the woven material that she is makpid about, rather the mud that will get on her afterward, therefore the woven threads wouldn't be considered makpid and be batul to their hair (obviously, it is possible to argue on this assumption and consider even something that one will remove to prevent themselves from getting dirty when it gets wet to be considered makpid). According to this approach, something that is dirty on the inside and will leave behind a residue of mud on her skin, but isn't dirty on the outside, would qualify as makpid according to Rashi but not according to רבותיו של רש"י. Therefore, it is possible that although the Rama is machmir for רבותיו של רש"י in hilchos chatzitza, he still is machmir for Rashi's definition of makpid and cites Rashi's approach in hilchos shabbos to forbid wearing on shabbos even something that will leave behind some residue and therefore one will remove it before immersing even though in the halachos of chatzitza it wouldn't qualify as makpid so that they wouldn't be required to remove it (even according to רבותיו של רש"י who require things to be removed when water penetrates, that is only if it qualifies as makpid).

Shabbos 56a - Moreid B'malchus

The gemara says that the only thing that Dovid did wrong in the story with Bassheva and Uria is that he should have formally had Uria judged in Sanhedrin before killing him for rebelling against the king. The implication of the gemara is that even a moreid b'malchus must be judged by the Sanhedrin. Tosafos asks that the gemara in Megilla 14b implies that Dovid had the right to kill Naval for being moreid b'malchus by not providing him the food and supplies that he needed, even without judging him in a formal beis din. Why here does the gemara say that he should have judged Uria in the Sanhedrin? Tosafos answers that a Sanhedrin is required only to determine that the person has the status of a moreid b'malchus, but one doesn't need to follow the formal process of sleeping on the din and the regular scrutiny that a capital case would demand.

The Turei Even (Megilla 14b) asks that based on Tosafos approach, it is still difficult to understand how Dovid was able to kill Uria without following the procedure of Sanhedrin. Apparently, Tosafos considers one who is moreid b'malchus without being declared so by the Sanhedrin to be one who isn't deserving of capital punishment. Therefore, even though Uria was moreid b'malchus, it should have been murder to kill him. How can Dovid have done that?

In Maseches Makos and Baba Kama we find a distinction between penalty payments and compensation. When it comes to compensation the function of the beis din is to determine that the money is owed, but once determined it is owed retroactively. Whereas by penalty payments, the decision of beis din is actually what makes the person obligated to pay. Without Beis Din declaring the k'nas, it is not even owed. Similarly here, the Turei Even explains that the concept of the Sanhedrin determining that Uria was moreid b'malchus was like a monetary compensations, not like a penalty payment. It was merely a determination of the facts, but in truth he had status of moreid b'malchus because of his actions even without the formal declaration of the beis din. Therefore, Dovid failed to follow procedure, but since he knew that Uria was moreid b'malchus, he was considered to have that status even without a psak of the sanhedrin and therefore Dovid did not kill an innocent man.

Perhaps another approach to answer Tosafos question (this is another possible approach, not pshat in Tosafos) is that the function of the Sanhedrin is not to declare the person moreid b'malchus or even to verify that he is a moreid b'malchu. The king can make that decision without the Sanhedrin. However, if he is going to be killed b'yadayim by the Sanhedrin, they are only entitled to kill when they follow a standard process and procedure. Therefore, when it came to Naval who Dovid had to kill b'yadayim, he needed the process of a beis din. But when it came to Uria who Dovid was able to set up to be killed indirectly by putting him on the front lines, he didn't require a Sanhedrin. This approach is really the opposite of Tosafos. The purpose of the Sanhedrin is NOT to declare him a moreid b'malchus, it is necessary to follow the standard procedure of din if they are going to carry out capital punishment.

Shabbos 55b - Death and Suffering for No Reason

The gemara discusses whether we assume that there is a concept of מיתה בלא חטא and suffering without sin. Tosafos explains that אין מיתה בלא חטא means that Hashem can punish even for accidental violation. In other words, if we are to hold that there must be sin associated with death, that means that the bar of what is considered a sin has to be low to include even accidental violation. The gemara ultimately proves from a Braisa which says that there were 4 people (Amram - father of Moshe, Binyomin - son of Yaacov, Yishai - father of Dovid, Kela'eiv - son of Dovid) who died בעטיו של נחש, only because of the original sin committed by chava without having a sin of their own, that there can be death without sin. Therefore the gemara concludes - יש מיתה בלא חטא ויש יסורין בלא עון. Tosafos points out that even though we only prove the first part - יש מיתה בלא חטא, once we prove אין מיתה בלא חטא is wrong, we also assume אין יסורין בלא עון is also wrong.

This gemara seems to undermine the entire concept of reward and punishment. How are we to believe that one can be punished without doing any aveiros? Although Tosafos in Brachos 46b seems to take this more literally that there can be death and punishment without sin, the Meiri here has a different approach. The Meiri understands that the concept of reward for mitzvos and punishment for aveiros if מעיקרי הדת, a fundamental principal of our belief. Therefore, we definitely assume that there cannot be death or punishment without sin. Nevertheless, we consider these 4 people to have died only because of the sin of chava as a way of exaggerating their purity and minimizing the possible aveiros they may have committed. The bottom line according to the Meiri is that everyone must have sinned at some point and no one will ever be killed just for the sin of chava.

Shabbos 53b - Prohibition Against Refuah

One is not allowed to do things for medicinal purposes on shabbos because the gemara says that chazal made a decree that it will lead to שחיקת סממנין which is the grinding of the medicines and a violation of טוחן. However, the gemara concludes that there is some machlokes tana'im. Rashi explains that the machlokes is whether chazal forbade types of refuah that don't involve medicine out of concern that it will lead to grinding medicines. Rashi seems to understand that the gezeira of שחיקת סממנין all agree applies to both people and animals, but R. Oshiya holds that it doesn't apply to refuah that doesn't involve medicine such as soaking in a pool of water. However, the Ritva says that the nature of the machlokes is whether we make the gezeira only by people because they will do whatever necessary to heal themselves and will come to grinding, but not by animals since one doesn't get so nervous about his animals health. Being that we pasken like Rav Oshiya, there is a very practical distinction between Rashi and the Ritva whether we permit refuah for animals even using medicines, or whether we permit refuah for people when it doesn't involve medicine. The opinion of the Ritva is also that of the Rif and the Rosh which the M.B. 332:5 paskens  - we forbid all methods of healing for people but not for animals - ברפואת בהמתו אין אדם בהול כל כך שיבא לשחוק סממנים.

There is also a discussion regarding the nature of the gezeira that by permitting medicine one will come to grinding. The Eglei Tal (Tochen 37:7) writes that there are 3 approaches to this. 1. The Rif understands very simply that since one gets crazy over caring for their ailments and sicknesses, if we permit one to do forms of healing on shabbos they will be led to grind medicines. 2. Rashi seems to understand that if we permit refuah one will think that it is permitted to do tochen for the purpose of medicine. Meaning, rather than one accidentally coming to grind medicine because they are בהול about their refuah, they will think that the melacha of tochen is permitted. 3. The Eglei Tal offers an alternative approach to understanding this halacha. There are opinions in the Rishonim (teshuvas harashba and Ran) that Tochen follows the same rules as borer, so that if it is done immediately prior to the meal, it is permitted. The Rama 321:12 rules like this lenient opinion. Based on this the Eglei Tal explains that if we permit one to do things for refuah, they will come to equate refuah purposes with eating purposes and permit the act of grinding for refuah if it is done immediately prior to consumption. Therefore, chazal forbade refuah altogether in order to prevent people from equating refuah with eating purposes.

Shabbos 51b - Melting Ice On Shabbos

The gemara says that one can't crush ice in order to turn it into water. Rashi explains that the issur is that they are creating something new which is an issur d'rabonon since it resembles a melacha. But one may put it into a cup or plate, which rashi explains is referring to allowing ice to melt in a cup of wine. Rashi's approach to this gemara seems problematic because it begins with the assumption that there is a ma'aseh issur in crushing the ice, but then implies that if they would allow the ice to melt in an empty cup the resulting water would be assur even though no ma'aseh issur was done.

The Ran offers two approaches in explaining this gemara. The first approach is based on Rashi and Tosafos (not found in our tosafos) that the nature of the issur is a ma'aseh issur, therefore it is only forbidden to crush the ice but permitted to let the ice melt by itself. According to this approach there is no issur in the result or product, only in the act of crushing the ice to change its form. The Ran citing the Rambam follows the same approach, just that he considers the issur to be a subset of sechita, squeezing fruits that are meant for their liquid, rather than an issur of creating something new which isn't associated with any particular melacha. The Ran then offers an alternate approach in the name of the sefer hateruma who seems to understand that the ma'aseh isn't the problem, rather the result is the problem. Ice that transformed into water is muktzah since it is nolad on shabbos and didn't exist in that state before. According to this approach there is also a prohibition to do an act that changes the form, but the nature of the prohibition is the product or result, therefore one cannot do an act to yield that result. Based on this second approach it is prohibited to use the water that came from melting ice, and one cannot do something causing ice to melt or congealed fat to melt into a liquid form, such as putting it near heat or in the sun. The only heter in the gemara is when the ice melts into liquid that is already present so that the nolad product is never realized on its own.

The Shulchan Aruch (320) seems to follow the first approach and therefore only forbids active crushing of ice for the purpose of making water, but permits one to allow ice to melt. However, the implication of the shulchan aruch is that one can only use the melted ice when it melts into water or wine, which is problematic because if the S.A. follows the first approach the product should be permitted. Furthermore, the Shulchan Aruch in 318 clearly permits one to place congealed fat near a heat source in a way that it will melt implying both that it doesn't qualify as actively melting it and implying that the product is always permitted even if it isn't mixed into something else. Therefore, the Shulchan Aruch in 320 that permits ice that melts into wine or water, would hold that even ice that melts into an empty cup would be permitted following the first approach, but chooses a more common case such as melting ice into a drink rather than into an empty cup. This would also seem to be the approach of Rashi that the nature of the issur is the ma'aseh issur, not the resulting product. Rashi explains that one can melt ice into a cup referring to a cup that contains water or wine simply because that is the more common case. This seems clear from the fact that Rashi says בימות החמה, he seems to be focusing on the fact that it is summer and therefore the wine wouldn't taste good unless it is cooled down with some ice. But really both rashi and the shulchan aruch would permit one to place ice in an empty cup, put it near a heat source and drink the water.

The Rama (318) on the other hand writes ויש מחמירין implying that one should be machmir like the sefer hateruma. Even if there is gravy into which the congealed fat will melt, the Rama holds that one must be machmir since the melted fat will sit on top of the liquid gravy and be considered nolad which is muktzah. According to this approach any frozen or congealed item that changed form and is recognizable as an entity without being mixed into something would be forbidden to use and since it's forbidden to use it is also forbidden to make. Therefore, one cannot use the water that results from ice melting in an empty cup.

The opinion of the sefer hateruma who considers the problem to be in the product and not the action would seem to result in a leniency. Is one allowed to actively crush ice causing it to melt in a cup of wine? The first approach (shulchan aruch) would consider this to be an act of molid or sechita and therefore be assur, but the second approach (rama) would hold that since the result is immediately mixed in with the wine, it isn't a nolad problem and therefore permitted. However, it seems that the Rama is machmir for the sefer hateruma, but doesn't pasken like the sefer hateruma against the first approach, and would therefore admit that it is assur.

It would also seem that according to the sefer hateruma that the rama is machmir for one would not be able to make ice on shabbos either. Since the nature of the issur is the product being muktzah, there should be no difference between the melting of ice or the freezing of water. In both situations the product should be muktzah and therefore assur to cause.

Shabbos 51a - Adam Choshuv

In my shiur this morning, I pointed out that although Rav Moshe has a teshuva explaining that ma'aris ayin only applies to situations where one is doing something that is mutar, but other people think he is doing something else which is actually assur. For example, one who hangs out soaking laundry to dry on shabbos, and people think he laundered them on shabbos, that is ma'aris ayin. But if one were to put out their laundry to dry and people will think he violated shabbos because of their mistake in thinking that drying laundry is also prohibited on shabbos, that is not considered ma'aris ayin. Nevertheless, it seems from our gemara that even if one is doing something that is mutar and other people will mistakenly think it is assur, an adam choshuv should refrain from doing it as rashi explains - שהרואה אותו שהוא מיקל עומד ומיקל יותר. In the case Rav Moshe was describing the sho'el was giving him mussar for driving to shul on friday afternoon after candle lighting since some people think it's assur. After rejecting the problem, Rav Moshe agreed to stop this practice but didn't explain why he agreed. Perhaps he is relying on this gemara.

I later realized that I had written about this about 5 years ago:

http://hearos.blogspot.com/2007/03/moed-kattan-12b-adam-chashuv.html

Shabbos 51a - Wrapping to Keep Warm

The gemara says that one can wrap something that is cold - מותר להטמין את הצונן. Rashi explains that this means that one can wrap something cold to maintain the cold temperature but cannot wrap something cold to warm it and remove the chill. According to Rashi the gemara is coming to exclude the possible prohibition against wrapping to keep cold because it may lead to wrapping to keep warm, and wrapping for warmth is always prohibited. The Ran quotes the Rambam as saying that as long as one is not wrapping in something which increases heat, one may even wrap something cold so that it doesn't get colder or to even remove the chill.

The gemara discusses the case of wrapping something after it was transferred from the kli rishon into another container. The Rambam understands that once something is in a kli sheini there is no prohibition of hatmana. The Rambam understands that just as one may wrap something that is cold because there is no expectation of it really being warm and won't lead to reheating, so too one may wrap something once it has been put in a kli sheini. However, The Ran explains that Rashi cannot permit wrapping a kli sheini. Rashi holds that even if something is cold it cannot be wrapped to remove the chill, certainly one cannot wrap a hot food that is in a kli sheini. Therefore, Rashi goes li'shitaso in explaining the leniency of פינה ממיחם למיחם to be that since one poured from the kli rishon to the kli sheini for the purpose of cooling it down, there is no concern that they will want it so hot. We permit them to wrap it and aren't concerned that they will not be content with the level of warmth and come to reheat it, since they had already done something for the purpose of cooling it down. According to Rashi, we don't permit the wrapping of a kli sheini unless the item was put in a kli sheini for the purpose of cooling down. Based on Rashi, if one poured hot water into a thermos because it is better insulated and will retain the warmth more, although the actual thermos isn't a violation of hatmana, one would not be allowed to wrap the thermos and insulate it more since the pouring into a thermos was with the intent of preserving the warmth and not cooling it down.
Even according to those who permit the wrapping of a keli sheini (when not put in the keli sheini specifically to cool down - rambam), that would not necessarily allow the wrapping using a kli sheini. In the gemara 40b Rav Yitzchok Bar Avdimi wanted to place a jug of oil into the hot bath, and Rebbi instructed him to take water in a kli sheini and immerse the oil in that. This implies that there is no issue of hatmana by warming something up when a kli sheini is used as the heat source. However, the Gra"z (257:10) asks on this gemara why isn't there a problem of hatmana. It could be that Rebbi was not permitting the jug of oil to be submerged in the kli sheini (which would answer at least according to those rishonim who hold a partial hatmana is permitted such as the Rama 253). However, the Chazon Ish (37:32) writes that heating up a bottle or jar by surrounding it with warm water doesn't qualify as hatmana. According to the first approach, when heating up a baby bottle in water that was put into a kli sheini one must be careful, whereas according to the chazon ish that would not qualify as hatmana at all.

Tosafos Yeshanim holds that the heter of פינה ממיחם למיחם may be better than something cold. When one empties from a kli rishon into a kli sheini for the purpose of cooling it down, even if it is still very hot, they have shown that the heat isn't significant for them and therefore it is permitted to wrap it to preserve heat. But an item which is cold may still be prohibited to wrap to remove the chill, as Rashi explains, since they didn't do anything to show that they want it to be cold. Nevertheless, Rav Moshe (Igros, O.C. 1:95) explains that Tosafos Yeshanim understands that the gemara permits one to wrap something which is cold even for the purpose of removing the chill like those who argue on Rashi, yet permit פינה ממיחם למיחם only when it was poured into the kli sheini for the distinct purpose of cooling it down as Rashi explained.
Although the gemara concludes that it is permitted to wrap something cold, there is a machlokes amoraim whether an adam chashuv should be machmir. Rav Moshe (dibros #25) points out that according to the Rambam where the purpose of wrapping is to remove the chill, it makes sense that an adam choshuv should be machmir since the wrapping to remove the chill can lead one to wrap even for heat. But according to Rashi who holds that the nature of wrapping is to preserve the cold, it makes very little sense to be machmir for an adam choshuv because it essentially give the wrong impression as to the nature of this issur d'rabonon. It is one thing for an adam choshuv to be machmir for things that are in line with the halacha, but it doesn't make sense to be machmir for things that would mislead others as to what the exact nature of the halacha is.
Another two issues that are related to this is whether one can do hatmana when the ultimate temperature will remain below yad soledes. The Magen Avrohom has a safeik whether one can wrap something that has cooled to below yad soledes in order to preserve some level of heat. However, the M.B. 257:29 paskens like the gra"z and pri megadim who are lenient. In the Sha'ar HaTziyun (29) he writes that this is dependent on the machlokes shulchan aruch and rama in 318 whether there is bishul to reheat something that has dropped below yad soledes, where we see that according to the Rama even below yad soledes qualifies as חמין and therefore would be assur to do hatmana. The Chazon Ish (37:31) disagrees, even the Rama understands that below yad soledes is not called chamin, but regarding reheating we are lenient on anything that is recognizable that it had once been hot i.e. it hasn't cooled down completely. But this is only when one is wrapping something on shabbos that is below yad soledes to preserve its heat. If one is wrapping something cold to increase its heat, even if it can't reach a temperature of yad soledes, the Biur Halacha 257:6 d.h. afilu cites the Gr"a who says that this is forbidden to do on shabbos (therefore, wrapping a baby bottle with milk in hot water even in a kli sheini and even when it can't get to yad soledes, would be assur).

Shabbos 50b - P'sik Reisha

The gemara cites a mishna that permits a Nazir to wash his hair with something that may cause hair to be pulled out which would be a violation of his nezirus, since it is a davar sh'eino miskavein. The gemara assumes that this Mishna was authored by R. Shimon who permits a davar she'eino miskavein, otherwise it would be forbidden. Yet, the Mishna concludes that he may not comb his hair. Rashi explains that the reason he can't comb his hair is because it will inevitably pull out hair and even R. Shimon admits that if it is a p'sik reisha it is forbidden. Rashi repeats this point later on 81b more clearly. Tosafos disagrees and says that the reason a Nazir cannot comb his hair, the gemara in Nazir 42a explains is because he intends to pull out the loose hairs. Unlike Rashi who considers it a davar sh'eino miskavein, just that it is a psik reisha and therefore forbidden, Tosafos considers it a davar hamiskavein since he intends to pull out the loose hairs. [The Ritva tries to bring Rashi and Tosafos together by saying that it is not truly a davar hamiskavein, but since it is a pesik reisha, it is like he is intending to do it and qualifies as a davar hamiskavein]. To explain how Rashi fits with the gemara in Nazir, the Keren Orah writes that by combing his intent is not to pull out hairs but to separate the clumps of hairs which is a pesik reisha that it will pull hairs out. Therefore, although the gemara focuses on kavana, the real problem is because it is a pesik reisha that it will pull out hairs.

The Milo Ha'roim (back of vilna gemara) suggests that the machlokes may be dependent on the machlokes between the Terumas HaDeshen and Magen Avrohom (314:5) whether a pesik reisha is permitted on an issur d'rabonon. Being that pulling out hairs would presumably only be a Rabbinic violation of gozeiz (shearing), Rashi may hold like the Magen Avrohom that a pesik reisha on a d'rabonon is prohibited so that would be enough to explain why combing would not be allowed, whereas Tosafos would hold like the Terumas Hadeshen that is is permitted and therefore would not be enough to explain why it is forbidden, therefore they need to say it is because it's a davar hamiskavein. The discussion is based on the Shulchan Aruch who permits the removal of a knife from a barrel in a way where it will inevitably cause the hole to widen. The Shulchan Aruch based on Terumas Hadeshen permits it even if it's a pesik reisha since the making of the hole is only an issur d'rabonon, whereas the Rama says that it is only permitted if it is not a pesik reisha. The M.B. (11) cites many achronim who side with the Magen Avrohom and hold that a pesik reisha is forbidden even on an issur d'rabonon.

Even those who forbid a pesik reisha on an issur d'rabonon, may permit it to be done by a goy. The Mishna Berura (253:51) forbids one to remove a pot from coals that surround it when it will inevitably stir up the coals, extinguishing the upper ones and lighting the lower ones. Even though some forbid it to even be done by a goy, the M.B. says that for a shabbos need one may rely on those who are lenient. The Sha'ar HaTziyun (43) explains that it is pesik reisha that one doesn't really care about on an issur which is only d'rabonon, therefore it can be done by a goy. Even the Magen Avrohom would permit this. The implication is that a pesik reisha on an issur d'oraysa cannot be done by a goy. However, the M.B. (253:99) permits one to allow a goy to put a pot near  heater even though it will cook when he later lights the heater to warm up the house. The rationale is that we permit amirah l'nachri on a pesik reisha, implying that even a pseik reisha that one actually cares about and wants, and even on an issur d'oraysa, we permit it to be done by a goy. It is difficult to reconcile these two pesakim with one another, unless the M.B. is relying on the opinions who don't consider reheating a liquid to be an issur d'oraysa so that it would be a pesik reisha on a d'rabonon (which the terumas hadeshen even permits to be done by a Jew).

Shabbos 49a - Sleeping in Tefillin

The gemara says that one should not put on tefillin unless they can uphold it's kedusha like elisha ba'al kinafayim. Abaye says that it refers to the ability to stay awake without a concern of dozing in the tefillin, and Rava says that it refers to the ability to maintain the cleanliness of one's body and not pass gas while wearing tefillin. Tosafos explains that it is incorrect to assume that one must be on the level of elisha ba'al kinafayim in any respect, except to maintain a clean body. Therefore, Tosafos bemoans the fact that people are reluctant to put on tefillin and justify their practice by saying that they aren't on the level of elisha ba'al kinafayim.

It is unclear from the opinions of Abaye and Rava which one of the two is more restrictive and which is more permissive. Rashi explains that the concern of falling asleep is really a concern of passing gas in the tefillin, but Rava holds that so long as one can be careful not to fall asleep, we are confident that he can hold himself back from passing gas while awake. Abaye on the other hand is concerned that he won't be able to control himself even while awake, therefore if he is concerned that he may pass gas, he shouldn't put on tefillin. According to Rashi it seems that Rava is more permissive than Abaye.

However, Tosafos understands that Abaye is only concerned for one who is concerned for passing gas, but isn't concerned that someone will fall asleep in inadvertently pass gass, whereas Rava holds that one who is tired and concerned he may fall asleep should also not put on tefillin.

In trying to explain the problem of sleeping with tefillin, both Rashi and Tosafos mention the concern of passing gas, but they each mention a second concern which seems to be rejected by each other. Rashi says that there is a concern that he will see a seminal discharge, which Tosafos explicitly rejects based on a gemara in Succah. Tosafos mentions the concern of a hesech hada'as, mental distraction from the tefillin, which Rashi doesn't mention.

Tosafos is apparently trying to deal with an obvious question. We are aware that there is a prohibition to have a היסח הדעת while wearing tefillin which the gemara learns out from the tzitz. Why then don't we simply say that the problem with sleeping in tefillin is an inherent problem of he'sech ha'daas rather than a concern that he will pass gas? To deal with this question Tosafos says both reasons (see also ohr zarua cited in biur halacha 44 who also cites both reasons). However, the question still stands according to Rashi?

The Rishonim, cited by M.B. 44:3 explain that the definition of היסח הדעת in regard to the mitzvah of tefillin does NOT mean that one needs complete concentration on their tefillin for the duration of time that they are wearing it. Tefillin is a mitzvah that applies all day and therefore one is allowed to to mundane activities and non-kodesh work while wearing tefillin, even though they will not be thinking about the tefillin. The issur of a היסח הדעת in the tefillin is merely to the exclusion of קלות ראש, light headed and inappropriate silly behavior. According to this approach, it seems difficult that the source of this halacha is the tzitz. Would we say by the tzitz as well that the entire prohibition is only against lightheaded behavior. It would seem that the obligation while wearing the tzitz would be not to have any hesech ha'daas from kodesh things at all.

The Sha'agas Aryeh (39) discusses the nature of hesech hada'as in tefillin and concludes that even a hesech hada'as that isn't a קלות ראש can still qualify as a hesech hadaas, against the Rishonim that are quoted in the Mishna Berura.

מענין לענין - The Rambam only paskens the issur of hesech hada'as in hilchos tefillin 4:14, but doesn't make any mention of it in hilchos klei hamikdash. However, in Hilchos Tefillin the Rambam does write that the source of the issur of hesech hada'as in tefillin is from the tzitz. Why does he not mention it in Hilchos Klei HaMikdash? The Minchas Chinuch 99 makes the point, but doesn't deal with the question.

Shabbos 48a - Cooking Something Edible Raw

Tosafos discusses whether one is allowed to leave a pot with raw apples cooking on a fire before shabbos. Tosafos suggests that since one is allowed to do shehiya and leave a pot cooking on a fire once it is a third of the way cooked, כמאכל בן דרוסאי, without a concern that he will stir the flames, one can also leave the pot with apples cooking since it is even more edible than food which has reached מאכל בן דרוסאי.

It is possible that the rationale of Tosafos is that just as when something reaches כמאכל בן דרוסאי it is considered cooked and therefore we aren't concerned that he will stir the coals to cook it more, similarly something that is edible without being cooked is considered halachically cooked so that the stirring of the coals is not a concern. However, this clearly isn't the opinion of Tosafos. In the very next discussion Tosafos forbids one to wrap on shabbos the pot containing the apples because it would be a violation of cooking. Tosafos clearly considers there to be a violation of cooking even on food that is edible without cooking. Therefore, when Tosafos permits shehiya on the pot containing the apples, their rationale is that although we don't consider it cooked, he won't be motivated to stir the coals since he doesn't care that much about it being cooked. This is to the exclusion of the opinion of the Rambam (9:3) who holds that there is no Torah prohibition to cook things which are edible raw.

Rav Moshe (Dibros, # 4) points out that according to this approach we can prove from Tosafos that they do not consider כמאכל בן דרוסאי  to be considered cooked. Had Tosafos held that כמאכל בן דרוסאי is considered cooked on a Torah level so that any further cooking wouldn't constitute a violation, there would be no similarity or proof from מאכל בן דרוסאי to a food edible raw since Tosafos clearly holds that by a food edible raw there is a violation of cooking. How then can Tosafos prove that we can leave the pot of apples on the fire from the right to leave the pot that has been cooked כמאכל בן דרוסאי on the fire; perhaps we only permit כמאכל בן דרוסאי because it is considered already cooked. Clearly, Tosafos must be assuming that there would be a violation of cooking both by a food edible raw and by a food that is כמאכל בן דרוסאי, therefore just as by מאכל בן דרוסאי we aren't concerned that he will stir the coals, the same will be true with a food that has already been cooked. Based on this, Rav Moshe points out that Tosafos here contradicts Tosafos at the beginning of perek kirah who holds that once something is כמאכל בן דרוסאי it is considered cooked m'doraysa and there wouldn't be any torah violation in cooking it more.

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Tosafos writes (end of d.h. mai) that we do not permit someone to place a kettle of water in a place where it can reach a temperature of yad soledes bo, even if their intent is to remove the kettle from being near a heat source prior to it reaching the temperature of yad soledes. However, in the question when Tosafos suggests this distinction, rather than using the term דלמא משתלי - lest one forget, Tosafos uses the phrase דשמא יבא לטעות ויניח שם עד שיתבשל. The Eglei Tal asks on Tosafos why are we concerned when someone puts a kettle of water near the fire where it can potentially reach yad soledes out of fear that he may forget; forgetting would not qualify as a מלאכת מחשבת and it wouldn't be an issur d'oraysa so why should we make a gezeira that he may forget since even if he does it will only be an issur d'rabonon? It seems to me that the way Tosafos articulated the concern in the question, avoids the question of the Eglei Tal. If one would forget the pot of water on the fire and it would reach yad soledes, the inadvertent act of cooking would not qualify as a מלאכת מחשבת and it would not be an issur d'oraysa. That is why Tosafos at first doesn't say that one may forget it, rather that one would make a mistake and leave it there. Perhaps Tosafos is trying to say that we are not concerned for him forgetting, rather we are concerned that he will make a mistake in halacha and think that it is permissible to leave it to heat up even if it is not on the fire. A mistake in halacha would certainly qualify as a מלאכת מחשבת and constitute an issur d'oraysa.

Rav Moshe approaches Tosafos from the exact opposite perspective of the Eglei Tal. Rav Moshe (Dibros #5) asks, why is Tosafos only concerned that he may forget the pot or come to make a mistake, implying that the entire problem with placing the pot near the fire when he intends to remove it is only a Rabbinic violation and not a Torah violation. Rav Moshe asks that given the nature of the melacha of cooking, it is similar to planting. The issur is violated by setting up a situation where something can cook. The requirement to actually cook is merely a condition, so that if it somehow is removed prematurely the person would retroactively not have violated the issur. However, if they would "forget" it there, even though it is completely inadvertent, they would be in violation of a Torah prohibition of cooking. Therefore, even if we weren't concerned that he would actually forget the pot near the fire, we couldn't permit doing an act that is an issur d'oraysa just because he plans on making sure the condition isn't fulfilled. Rashi 40b implies that one can actually leave water near a fire to remove the chill so long as he plans on removing it before it reaches yad soledes. Rav Moshe's asks that Rashi implies that it isn't even an issur d'rabonon, but really it should even be an issur d'oraysa!

Shabbos 45a - Set Aside for the Mitzvah

The gemara has a concept that something which is set aside for the mitzvah, becomes muktzah for the duration of the time it is being used for the mitzvah. The two examples that the gemara speaks about are Succah decorations and Shabbos candles. Rashi explains that the rule is the same - so long as the mitzvah is still applicable they are muktzah, but afterwards they are permitted to be used. Therefore, a succah is forbidden to be used for other purposes for the duration of Succos since that is the time of its mitzvah, whereas the oil of the Shabbos candles are not allowed to be used (even according to Rav Shimon) for the duration of the time that the candles are burning. Tosafos explains even the oil that would squirt out from the candle would be forbidden to use during the time the candles are burning because that too was set aside for the mitzvah. But, after the flame goes out, the mitzvah is over and the oil may be used.

There is a Sh'iltos d'rav Achai Goan in Parshas Vayishlach that says that on the last day of chanuka if there is left over oil in the candles, one must make a fire and burn the oil. The Sh'iltos forbids the use of the oil for personal use because it was set aside for the mitzvah. Tosafos 44a d.h. she'bner, asks why Chanukah candles are different than Shabbos candles? Why is it that for Shabbos candles, when they go out we consider the mitzvah to be over and the oil is permitted, whereas by Chanuka candles even after Chanukah ends the oil is not permitted to use?

To answer this question, Tosafos makes a distinction between Shabbos candles and Chanuka candles. However, Tosafos is a little confusing because they mention two seemingly independent points in their distinction. Tosafos writes that Chanuka candles are not for one's personal benefit, rather to publicize the miracle, therefore one doesn't anticipate them extinguishing early and expect to use the oil. On the other hand, Shabbos candles are primarily there for the purpose of receiving benefit so that one is anticipating them going out and using the oil. Tosasfos seems to focus on two separate points: 1. Shabbos candles are permitted to benefit from whereas Chanuka candles aren't. 2. For shabbos candles one anticipates and hopes for them to go out sooner, whereas Chanuka candles which are there to publicize the great miracle, one wants to fully give over to the mitzvah. Rav Moshe (Dibros 38) writes that he doesn't understand why Tosafos had to mention the יושב ומצפה  aspect at all. The distinction is quite simple. The halacha of the oil is the same as the use of the candle. Since Shabbos candles can be used, their left over oil can be used (just as food which is designated for the mitzvah of oneg shabbos can be used for mundane enjoyment since it is fundamentally for the purpose of deriving benefit). But since Chanuka candles is off limits from being used for any benefit, their oil cannot be used. If this were Tosafos' intent, they wouldn't have to focus on the fact that Chanuka is for publicizing the miracle and therefore one is not יושב ומצפה for them to go out. Rav Moshe leaves with at צריך עיון and doesn't understand why Tosafos has to make a big deal about the Chanuka candles being parsumei nissa, representing the miracle and wholeheartedly given over for the mitzvah?

I think that Tosafos considers the distinction Rav Moshe makes to be insufficient. The rule is as we find by a succah, after the mitzvah ends the left over material can be used. Even mitzvos which are not there for the purpose of deriving benefit, such as the mitzvah of succah, would be permitted to be used for mundane benefit after the mitzvah is over. Therefore, to simply distinguish between shabbos and chanuka based on whether the mitzvah is designed for one to benefit from, is not enough. Therefore, Tosafos is forced to explain that Chanuka is special. Since the mitzvah is there to publicize a miracle, one is happy to fully give over all the materials for the mitzvah without any anticipation of being able to use them. That is why even after the mitzvah is over, the materials remain assur. No other mitzvah would be like this, not even a mitzvah from which one cannot benefit during the mitzvah.

The Ritva (21b) writes that the prohibition to use the light of the Chanuka candles is technically only during the half hour that they need to be burning for. After the half hour it is technically permitted to even benefit from the light, just that we don't allow you to actually benefit from the light because of בזוי מצוה. However, the material is no longer considered to be connected to the mitzvah, therefore if it goes out, the mitzvah for that night is over and one is allowed to benefit from the oil. It is not like Succah where we consider the full 7 days to be one long mitzvah, rather the lighting of each night is independent. Therefore the Ritva rejects the sh'iltos who holds that after Chanuka one must burn all the oil. The Ritva permits the use of the left over oil even during chanuka, and even on that night (the ritva implies that according to the Rif even if it goes out early one can benefit from the oil, but the beis  yosef 677 holds that only if it burned for its full time).

Shabbos 44a - Tiltul Min HaTzad

The gemara concludes that טלטול מן הצד is considered normal moving of muktzah and cannot be done on shabbos. Tosafos explains that there are other sources that imply that one can move muktzah through tiltul min hatzad, therefore Tosafos concludes that it depends on the purpose. If one is doing טלטול מן הצד for the sake of moving the actual muktzah item from one place to another such as by a corpse, that is not allowed. But if one is doing the טלטול מן הצד for the sake of a non-muktzah item, just that the muktzah gets pulled along with it, that is permissible. This distinction is paskened in Shulchan Aruch. In siman 311:1 the Shulchan Aruch writes that tiltul min hatzad for the sake of the muktzah is prohibited (unless it is a special circumstance for kavod ha'meis), but in 311:8 the Shulchan Aruch paskens that tiltul min hatzad for the sake of something permitted where the muktzah will inadvertently be moved, is permitted. Based on this, the Mishna Berura (6) writes that one may not take a non-muktzah item and use it to push muktzah because that would be טלטול מן הצד לצורך דבר האסור, which would be a violation of moving muktzah. However, if one is doing so because they need to use the place where the muktzah is sitting, it is permitted. Therefore, the M.B. (308:115) paskens that if one has shells on a table (assuming that it doesn't make the area look disgusting so that there is no heter based on גרף של רעי), since they are muktzah, he cannot move them with his hand. But one can take a napkin and sweep them away if he needs to use the place since that would qualify as tiltul min hatzad for the sake of something permitted.

The gemara paskens like R. Yehuda that if a fire breaks out in a house where there is a corpse, one may move the corpse away from the fire because chazal were concerned that if they didn't allow it, one would come to intentionally (Tosafos) extinguish the fire. The Ran cites a machlokes whether we only allow the moving of a corpse when it is טלטול מן הצד, even though it is normally forbidden, we allow it to be done to prevent extinguishing a fire, or do we even allow the direct moving of a corpse to save it from a fire. It seems from Tosafos that when it is not possible to move the corpse through a ככר או תינוק, or move it מן הצד, we allow the direct moving of the corpse. Tosafos writes that the fact that the gemara suggests that everyone holds that טלטול מן הצד is a problem, when it could have said the opposite, implies that we pasken that טלטול מן הצד (at least for the purpose of moving muktzah) is prohibited. Tosafos suggests that it could have said the opposite and made the אוקמתא to be when there is not ככר או תינוק and no beds so that it can't be moved with טלטול מן הצד. It seems that even if טלטול מן הצד wasn't possible, Tosafos assumes that R. Yehuda would still permit the direct moving of a corpse to save it from a fire. This is exactly what the Shulchan Aruch 311:1 paskens. Ideally, a corpse should be moved using a ככר או תינוק, if that's not possible then מן הצד and if that's not possible then it can be moved directly.

Shabbos 42b - Klei Sheini on Shabbos

The mishna says that spices cannot be put into a kli rishon even after it is removed from the fire because it will cook, but can be put into a kli sheini because they cannot get cooked in a kli sheini. There is a contradicitonin diyukim of the reisha and seifa of the mishna whether pouring from a kli rishon (iruy) is treated like a kli rishon or like a kli sheini. Tosafos tries to prove both directions and concludes that pouring from a kli rishon cooks the outer layer - כדי קליפה.

There is a gemara earlier 39a that says that one can only put into hot water, something that has already been in hot water prior to shabbos, otherwise it would be a violation of cooking. It is unclear whether that gemara is speaking about a kli rishon or a kli sheini. Tosafos explains that since the gemara allows pouring from whatever type of kli we are speaking about onto the food, it comes out that according to those who consider pouring from a kli rishon not to qualify as cooking, we can be speaking about a kli rishon. Meaning, one can pour from a kli rishon onto the food, so long as they don't soak the food in a kli rishon. However, if we consider pouring from a kli rishon to be cooking, we must be speaking there about a kli sheini. Therefore, according to Rabbeinu Tam who considers iruy of a kli rishon to be cooking, the braisa is speaking about a kli sheini and prohibits the soaking of a food that hasn't been put into a kli sheini before shabbos. Based on this Tosafos writes that one cannot cook an uncooked food in a kli sheini, because the water is hot and it looks like you are cooking. Tosafos says that to reconcile this with our mishna we are forced to say that most foods cannot be put into a hot kli sheini, but spices are an exception because the מחזי כמבשל doesn't apply to them since their function is just to give taste to the food. In addition to the מחזי כמבשל problem of a kli sheini, the M.B. 318:42 explains the Shulchan Aruch who says that bread cannot be put into a hot kli sheini because there are things that are easily cooked which can be cooked even in a kli sheini. Since we aren't such experts as to what qualifies, we are machmir for everything. The Sha'ar Hatziyun (68) points out that the exception is water and oil, which are explicit in the gemara that they don't get cooked in a kli sheini. Oil is clear from the gemara 40b and water from the gemara 42a. Obviously, spices are also an exception.

The Chayei Adam (Hil. Shabbos 20:4) has a famous opinion that if the water in the kli sheini is יד נכוית בותת, hot enough to burn one's hand, it has the ability to cook, even in a kli sheini. The M.B. (48) quotes the chayei adam without citing anyone who argues. Rav Moshe (Igros, O.C. 4,74,4) writes that it doesn't make that much of a difference for us because we are machmir for almost all foods to consider them מקלי הבישול - easily cooked, and therefore we don't put raw foods into a kli sheini even if it is yad soledes bo. However, it would make a difference for water, oil and spices that even we are lenient to put in a kli sheini. Based on the gemara 42a it would be permissible for one to add a drop of tap water to their hot water in a kli sheini and not worry about the water being cooked. However, the Chayei Adam would forbid adding water to a kli sheini that is יד נכוית בו, and therefore wouldn't allow if if the water were too hot.

The Chayei Adam refers us to his sefer Sha'arei Tzedek (perek 2,28, Binas Adam 9) where he cites the Rambam (Hil. Ma'asros 3,15) who says that if the kli sheini is יד נכוית בו, there is cooking even in a kli sheini. He also cites the the Tur regarding an אמבטי based on the gemara 42a, and explains that there is a source for this in the yerushalmi in ma'asros.

It seems to me that Rashi 42a d.h. b'kos, would be a support for the chayei adam. Rashi explains that the reason that cold water can be added to a cup, which is a kli sheini, is because it isn't that hot, implying that if it were too hot, one could not add water. But, even Rashi quotes a second approach that implies so long as it is a kli sheini, it is not a problem. Furthermore, the Mishna 42a that distinguishes between a kli rishon and kli sheini implies that spices can be put in a kli sheini even if it is רותחין, because that is the type of kli rishon we are speaking about as well. The Ritva writes explicitly that even if the kli sheini is רותח it doesn't have the ability to cook. The rationale for a kli sheini not being able to cook is as Tosafos explains 40b that it doesn't have the heat radiating from it's walls to maintain the temperature. Therefore, it seems clear that in Hilchos Shabbos we don't regard a kli sheini as being able to cook things that aren't מקלי הבישול, just that we are machmir for most foods that they are מקלי הבישול or that it looks as if one is cooking. But, water, oil and spices can be added to a kli sheini no matter how hot it is.

Regarding the Tur that the Chayei Adam cites who speaks about the prohibition to add water to an אמבטי even though it is a kli shein, because it is very hot; that is not a question at all. Tosafos 42a d.h. aval, also considers an ambati to be a kli sheini (unlike the implication of rashi that ambati is a kli rishon and sapal is a kli sheini), but clearly writes the distinction between a כוס to which cold water can be added and a אמבטי to which cold water cannot be added, is not temperature. Rather, the distinction is that an אמבטי which regularly has very hot water, looks like a kli rishon to that people will think it's a kli rishon, whereas a cup of hot water everyone knows is a kli sheini. Therefore, Tosafos also indicates clearly that tap water can be added to a cup of steaming hot water (or tea) in a kli sheini and will not constitute cooking.

Shabbos 41b - Davar Sh'eino Miskavein and P'sik Reisha

There are two major arguments between R. Yehuda and R. Shimon. One is about a davar she'eino miskavein, meaning that one doesn't want the melacha that will result from the action being done AND it is not inevitable. Another is about melacha she'ein tzricha l'gufa which means that one intends to do the melacha, but not for the purpose that it is normally done for.

The argument about דבר שאינו מתכוין is a general argument in all areas of  Torah, not limited to Hilchos Shabbos but the machlokes about מלאכה שא"צ לגופה is a machlokes specifically in Hilchos Shabbos about what qualifies as a מלאכת מחשבת, which makes the criteria for a shabbos violation higher.

The gemara is also clear in many places that R. Shimon admits that if the דבר שאינו מתכוין is going to inevitably result in a melacha - פסיק רישא, it is forbidden. However, it is not clear if it would be a Torah violation or merely a Rabbinic violation. Tosafos assumes that since a דבר שאינו מתכוין has the advantage that one doesn't intend to violate the melacha, even if it is a פסיק רישא and inevitable, it should be no worse than a מלאכה שאינה צריכה לגופה and therefore for shabbos one would be patur, but in other areas of Torah one would be chayev. The implication of Tosafos is that a פסיק רישא would technically qualify as a מלאכת מחשבת, just that if the person isn't interested in the outcome, they are still patur because it is a מלאכה שא"צ לגופה. But if they would be happy with the outcome, although that was not their intent, they would be chayev since a פסיק רישא does qualify as a meleches machsheves. That is why Tosafos holds that acc. to R. Yehuda who says that a מלאכה שא"צ לגופה is chayev, even if one does a דבר שאינו מתכוין which is a פסיק רישא, they will be chayev. Similarly, the Maharsham cites Tosafos Rid in Yoma that according to R. Shimon who exempts for a מלאכה שאינה צריכה לגופה he will also exempt for a pesik reisha and hold that it's only assur m'drabonon, but according to R. Yehuda he will be chayev for a פסיק רישא. Not everyone agrees to this. The Eglei Tal (melacha of baking, 55:5) cites the Terumas HaDeshen 265 and Rivash (394) who both say that even if one would desire the outcome of the pesik reisha, since they aren't intending to do that melacha, it still would not qualify as a מלאכת מחשבת and they would be patur.

Shabbos 39a - Defining Bishul

The gemara doesn't directly discuss the definition of bishul on a Torah level. Tosafos d.h. kol, says that anything that has been fully cooked prior to shabbos, would be permitted to put in a kli rishon on shabbos. The Biur Halacha (318:4) points out that this implies that anything which is not fully cooked would be prohibited on a Torah level to advance its cooking beacuse it would be considered a violation of bishul. This is the opinion of the Rambam and Shulchan Aruch that advancing cooking, even after it is already cooked to ma'achal ben drusai would be a violation of cooking. Therefore, even if the food is still hot, one cannot do anything to advance its cooking i.e. stirring or covering the pot. Furthermore, the Shulchan Aruch implies that even if something is fully cooked and cools below yad soledes bo, raising the temperature to above yad soledes bo would also constitute a violation of cooking.

However, the Biur Halacha points out that all the Rishonim who permit chazara on something which is ma'achal ben drusai, must hold that after the point of ma'achal ben drusai there is no longer a violation of cooking. The Ran (17b) writes this explicitly - דכיון שנתבשל כמאכל בן דרוסאי לית ביה משום מבשל דאורייתא. Tosafos 36b d.h. chamin, also permits chazara on something which is ma'achal ben drusai, indicating that there is no cooking violation at that point. The Biur Halacha points out that there are many rishonim on both sides, and therefore it is worth being machmir for an issur d'oraysa.

It seems that both opinions hold that bishul is not defined at a finite point. Meaning, unlike water where the violation of bishul occurs when something is brought from the temperature of below yad soledes to above yad soledes, cooked foods have no finite point. Rather, until something is "cooked" which according to some is fully cooked (shulchan aruch) and according to others is ma'achal ben drusai (ran), there is a Torah violation of cooking to do anything that will advance or hasten the process, even if it never reaches the point of fully cooked or ma'achal ben drusai.

It seems from shulchan aruch that liquid foods that require cooking are bound to both definitions of cooking. If they are below yad soledes and one raises their temperature to above yad soledes, that constitutes cooking. And if they are already yad soleded but not yet fully cooked and one raises the temperature by covering the pot to hasten the cooking, that would also constitute cooking.

Shabbos 38 - Penalty for Violating Shehiya and Chazara

The gemara on the top of the page asks when one violates the prohibition of shehiya by leaving a pot on the stove in a way where it is prohibited (acc. to chananya/rama when it is not yet ma'achal ben drusai, and acc. to rabbonon/shulchan aruch when it is still נצטמק ויפה לו), we make no distinction between shogeg and meizid. R. Nachman bar Yitzchok explains that although when one violates a d'oraysa such as actual bishul on shabbos, if done by accident it is mutar for him to eat it on shabbos (acc. to r. meir), here we are more machmir and forbid it on shabbos because people are מערים to do it intentionally and claim it is an accident. However, in the braisa, Rav Meir makes it clear that if the food was fully cooked, even though it was נצטמק ויפה לו, we will not be machmir to forbid it bidieved. Even the opinion (rabba and rav yosef) who is more lenient for shehiya done accidentally because no ma'aseh was done, would presumably be machmir by chazara because an action of violation is done. Therefore, if one violated chazara by accident, the food would be assur until shabbos is over. The Rama (253) writes that since chazara is violated by a ma'aseh, even if done by accident, the food would be forbidden until after shabbos even if it were fully cooked, and one would even have to wait כדי שיעשו. But if chazara was violated on something that is fully cooked and נצטמק ורע לו, the Rama permits it to be eaten since there is no benefit from the violation.

When a goy does chazara, the Rama says that we give it the status of an accidental violation of shehiya and permit the food if it were fully cooked, even if it were נצטמק ויפה לו, but if it weren't fully cooked it is assur until after shabbos. The Biur Halacha points out that even according to the minhag to follow chananya and permit shehiya when it is כמאכל בן דרוסאי, chazara would still be forbidden, therefore unless it is fully cooked, the food would be assur, even if done by a goy. It is clear from the Rama that we don't allow chazara to be done by a goy. However, the biur halacha (end of siman) cites the pri megadim (38) who says that since we permit shevus d'shevus for the sake of shabbos, it is permitted to have a goy to chazara on a solid cooked item (on which there is no bishul issue). The Chazon Ish takes issue with this and explains that the concept of shevus d'shevus only permits an issur where the violation is the ma'aseh, but chazara is like shehiya were the violation is the situation, not the act of putting it on. Therefore, even if a goy would put it on the Jew is obligated to pull it off and not maintain a situation that is מחזי כמבשל. This argument between the pri megadim and chazon ish is the basis for discrepancy in shabbos kashrus policies between the star-k and ou.

Shabbos 37b - Covering With Ashes and Flaring Up

The gemara says that when you cover it with ashes and the flares up again, it is sufficient. The gemara rejects the notion that when it flares up it is הדרא למילתא קמייתא  as if it were never covered, but it isn't clear whether it has full status of being covered. Tosafos d.h. Shema Minah, has two approaches. The first is that קטמה והובערה has the full status of קטומה and one is allowed to place even something that has started cooking and hasn't yet reached מאכל בן דרוסאי. However, the second approach of Tosafos compares the language of קטמה והובערה to the language of the gemara earlier קטמה ונתלבתה, and explains that קטמה ונתלבתה means that it regains some strength but the original covering of the coals with ash is still recognizable and therefore is considered fully covered to permit shehiya and chazara. But the language of קטמה והובערה implies that it flares up fully as if it were never covered and therefore only permits the leaving of a food that is fully cooked but is נצטמק ויפה לו. It will not permit the leaving of food that has not been fully cooked acc. to Rabbonon, or food which hasn't yet reached מאכל בן דרוסאי acc. to Chananya.

The Magen Avrohom assumes that even if it flares up back to the way it was, we can consider it like ketuma completely, and permit shehiya and chazara as we would if it were ketuma. R. Akiva Eiger disagrees and requires us to be concerned for the second approach of Tosafos and it would only allow the shehiya of a food that is fully cooked, even if it is נצטמק ויפה לו, which without גרופה וקטומה, the Rabbonon who disagree with Chananya would normally not allow.

The rationale for the second approach of Tosafos seems to be that the concept of נצטמק ויפה לו or נצטמק ורע לו is really subjective. As we see at the very end of the gemara, if one needs the food to retain its shape and quantity for guests, it is considered for him to be נצטמק ורע לו, even though for others it would be נצטמק ויפה לו. Therefore, by going through the motions of covering it with ashes, one shows that he considers the additional cooking to be נצטמק ורע לו, even though it is objectively נצטמק ויפה לו. That is why even when it flares up, it is still permitted to leave the food there, because he has already shown that he considers it נצטמק ורע לו by placing the ashes. The fact that it flares up doesn't undo what he has shown. But, food which has not been fully cooked is very objective, therefore, if the היכר is not longer there because it has already flared up, one can not leave food that hasn't been fully cooked since we are afraid he will stir the coals to raise the temperature and make it fully cooked.

This raises and interesting conceptual point. Is the purpose of גרופה וקטומה to have a היכר that is recognizable and will remind someone not to stir, or is it merely to do an action that reveals that this person doesn't care about extra heat and therefore won't come to stir the coals? It could be dependent on the two approaches of Tosafos. The first holds that if the action is done, that is sufficient even if it is no longer recognizable, whereas the second approach holds that if it isn't recognizable it isn't considered קטומה (just that we permit נצטמק ויפה לו since we consider him to have revealed to us that for him it is נצטמק ורע לו).

Shabbos 33b - Children being me'vatel their father's learning

The gemara says that the death of askara begins in the intestines and ends in the mouth because it comes for the sin of bitul torah (rav shimon). The Chachamim challenged Rav Shimon from women, goyim and children who don't have the sin of bitul torah, yet sometimes suffer from askara. The gemara says that women are punished for being mevatel their husbands, goyim for being mevatel jews, and children for being mevatel their fathers.

The idea of punishing women for being mevatel their husband is understandable based on the gemara in Brachos נשים במאי זכיין - where the gemara 17a says the s'char for women is באתנויי גברייהו בי רבנן, that they wait for their husbands to return from the beis midrash. The implication is that although women don't have enough zechus in their own limud hatorah, they are obligated to assist their husbands in limud hatorah which gives them the full zechus of limud hatorah. It would then follow that they are punished for being mevatel their husbands with the full punishment of bitul torah.

The idea of punishing goyim could also be explained based on the gemara in the beginning of avoda zara where the goyim claim to have zechuyos for all the markets and bridges that they constructed (similar to r. yehud bar ilai's position in the upcoming gemara) because it was all done בשביל ישראל שיתעסק באורייתא. This implies that it is incumbent upon the nations of the world to be involved in improving the world to help the Jews be busy with talmud torah. Therefore, if they fail to do this and instead cause bitul torah, they are punished.

However, why would children be punished for being mevatel their father from limud hatorah? Rashi indicates that we are speaking about small children who aren't commanded in keeping mitzvos and unaware of the consequences of their actions, nonetheless they are punished with askara for being mevatel their father. Why? Rav Moshe (Dibros #91) suggests that it is not a punishmet, rather the existence of the world if for the sake of Torah study. When something interferes with the ability to study torah, Hashem responds by removing the interference. Rav Moshe equates this with being a rodef. The person trying to interrupt Torah study is a rodef in the destruction of the world. The halacha of rodef applies even to a child who is not intending to do any harm. Therefore, Hashem takes away the child so that he doesn't prevent the limud hatorah of his father.

In my opinion, Rav Moshe's approach isn't correct. Had the child been removed from the world in a painless way, perhaps it can be understood as a way of removing the obstacle rather than a punishment. But the gemara is focusing on why children die from askara, which implies that there is actually a punishment. Why should innocent children be punished for actions that they are unaware of their consequences?

Just as according to the opinion that children are killed for the sin of nedarim that their father doesn't keep, that is the same idea when it comes to bitul torah. It is not the sin of the child, rather the sin of the parent that the young child suffers for. The father who gives in to the request of his young children and is mevatel torah to grant them every wish, and takes them wherever and whenever they want to go, is punished for not taking his limud hatorah seriously enough. It is an exact parallel to בעון נדרים בנים מתים, where the child is not being punished, the parent is.

Shabbos 32b - Negligent and then Accident

In the sugya of תחילתו בפשיעה וסופו באונס, the Nemukei Yosef (Baba Kama 10b b'dafei HaRif) writes in the name of the Ramah that if the person isn't negligent originally because he had not reason for the o'nes situation arising in the end, they are not responsible. The Nemukei Yosef continues, therefore one who doesn't daven when they could have, but later an unexpected o'nes arises that prevents them for davening, it is considered an o'nes and they have the right to daven a make-up tefillah. Similarly, one who makes an oath to pay a debt by a certain day, although he had money earlier from which to pay, if by the time the debt is due he is an o'nes and is unable to pay, he is considered an o'nes and not in violation of his promise. This issue is actually a debate in the Rishonim. Although the Rama in Y.D. 232:12 cites an argument in the context of an oath as to whether we consider it o'nes, the Shluchan Aruch in Hilchos Tefillah (108:8) paskens clearly like the Nimukei Yosef that it is regarded as an o'nes, and the Rama there makes no mention of any dispute.

The gemara says that children die for their father not fulfilling their pledges of tzedaka and korbanos. Rav Moshe (Dibros 89) asks that presumably it is speaking about a situation where the father doesn't have money to pay so he is an o'nes. Why then are the children punished?

Rav Moshe suggests that this would actually be dependent on the machlokes mentioned above whether pushing something off that later develops into an o'nes qualifies as o'nes, and suggests that our gemara is against the Nimukei Yosef. The difficulty with this approach is that the Nimukei Yosef is not just a da'as yachid, but we actually pasken like the Nimukei Yosef.

To me it seems that this gemara has nothing to do with the Nimukei Yosef. We are not speaking about a situation where the person made a pledge when he had money, and later lost the money. That would qualify as an o'nes as the Nimukei Yosef says and there would be no punishment. Rather, we are speaking about one who is somewhat negligent in not properly calculating what they can really afford, leading them to pledge what they cannot afford at the time they make the pledge. This is on the level of sho'geig but not an o'nes, therefore one can be punished for that. This approach is explicit in rashi d.h. ki shegaga - בשוגג קפצתי לנדור ולא אשלם. The situation is at the time the person made the pledge they were too hasty and didn't properly calculate to see that they can't afford what they are pledging. For this negligence they are responsible.

Shabbos 32a - Danger of Child Birth

Rav Moshe (Dibros 86) expresses an idea that if Hashem commands the mitzvah of פרו ורבו, even if it would otherwise be a situation of danger, the very fact that there is a mitzvah to do it anyway, indicates that there is divine protection. He actually uses this idea l'halacha in igros moshe to explain why he considers it forbidden to induce labor. The promise that Hashem makes to protect during child birth is only for those who go into labor naturally, and not when it is induced.

Based on this assumption, Rav Moshe asks on Rashi's interpretation of the mashal - Leave the drunkard and let him fall alone. Rashi explains that when a woman gets pregnant she needs rachamei shamayim to go through child birth, by Hashem leaving her alone and not being mashgiach on her, she will die on her own. This implies that childbirth is inherently dangerous which Rav Moshe points out contradicts the idea that it has an automatic divine protection?

To reconcile Rav Moshe's idea with Rashi, it seems that the concept of divine protection is not that Hashem made the normal course of the world for woman to give birth and it not to be dangerous. Rather, by commanding people to procreate, G-d provides the assurance that for every single situation He will watch and protect. Therefore, in a situation where one has other aveiros that they are guilty of, Hashem simply removes his divine protection, as Rashi explains, and the drunkard falls by himself.

Shabbos 31a - Assumptions of a Beis Din When Converting

The gemara in Yevamos 109b says evil will befall those who accept geirim, implying that one should not accept converts to the Jewish people. However, Tosafos cites a gemara in Sanhedrin 99b that says that Avrohom, Yitzchok and Ya'akov should have accepted Timna to convert. Because they didn't she went and married Eisav, resulting in Amalek who caused major problems for the Jews. To reconcile these two sources, Tosafos says that it depends on how adamant they are about converting. When they are adamant about converting, we must accept them, but otherwise they should be rejected. Tosafos then questions the actions of Hillel in our gemara, how could he convert these three converts who aside from making ridiculous requests were not pushing hard for conversion? Tosafos answers that Hillel was confident that in the end they would be גרים גמורים, as it turned out. But how does this answer solve the problem? They weren't pushing hard for conversion so why did Hillel accept them? It seems that Tosafos understands that pushing hard and being adamant about converting - מתאמצין להתגייר, has no essential value. Rather, there is always suspicion that a convert is not intending to keep the mitzvos properly, and therefore we must reject them. However, when they are adamant about converting and don't take no for an answer, or when the beis din is confident that they will keep mitzvos properly as Hillel was, they should be accepted for conversion.

Tosafos both 109b and 24b seem to understand that Hillel actually converted these converts prior to their acceptance of all the mitzvos, based on his confidence that he will be able to win them over. However, the Maharsha in our gemara explains that Hillel merely accepted them on the conversion track, but did not actually convert them until they accepted the mitzvos. He actually derives from here that if a goy comes to study Torah for the purpose of conversion, we are allowed to accept him.

Rashi also seems to understand like Tosafos that Hillel actually converted them immediately. However, Rashi makes things a little confusing because Rashi writes that Hillel was confident that they will ultimately accept, but also writes that the ger who denied torah sh'bal peh, wasn't considered a kofer because he believed in torah sh'bal peh, but didn't believe it was from Hashem. Why isn't Rashi happy saying simply that Hillel's confidence was sufficient to accept them as geirim even though they weren't yet keeping mitzvos? Rashi seems to understand that had they been labeled as kofrim, Hillel would never have had the confidence that he can win them over to be geirim gemurim. But, Hillel realized that they didn't deny the mitzvos of torah sh'bal peh, they were just missing the education necessary to realize that it is from Hashem, therefore he was confident that after educating them, they will accept.

Rav Moshe (Dibros #81) has another approach in understanding Rashi. The ger believed in Torah sh'bal peh and accepted to fulfill it, but he didn't believe that the p'sakim of the chachamim of his generation qualifies as Torah Sh'bal Peh. Since conceptually he accepted, he is only lacking in education, not belief or acceptance to do. Therefore, Hillel was able to accept him. However, Rashi is still bothered that although Hillel may accept him, since he doesn't qualify as a חוץ לדבר אחד, he shouldn't accept someone who won't keep all halacha properly, to which Rashi answers that Hillel was confident that in the end, he will accept. According to this approach the right to accept this ger was not due to Hillel's confidence that he will in the end be shomer all mitzvos, but rather because his rejection was only of the chachamim of his generation caused by a lack of education.