דבר שאינו מתכוין 07

Abaye said: In all halakhic matters of the Master, Rabba, he conducted himself in accordance with the opinion of Rav, except these three where he conducted himself in accordance with the opinion of Shmuel. He ruled: One may light from one Hanukkah lamp to another lamp, and one may untie ritual fringes from garment to garment, and the halakha is in accordance with the opinion of Rabbi Shimon in the case of dragging. As it was taught in a baraita, Rabbi Shimon says: A person may drag a bed, chair, and bench on the ground, as long as he does not intend to make a furrow in the ground. Even if a furrow is formed inadvertently, one need not be concerned.

We earlier learned that the Master said: When the verse states the term flesh, it comes to teach that even though there is a bright white spot there, one should circumcise; this is the statement of Rabbi Yoshiya. Rabbi Yonatan agrees with this halakha, albeit for a different reason. The Gemara addresses the fundamental question: Why do I need a verse to derive this? The removal of leprous skin is an unintentional act. One does not intend to cut the symptom of leprosy; he intended to circumcise the baby. And the general rule is that an unintentional act is permitted. Consequently, there is no need for a special derivation in this case.

Shmuel says: One who contributes wine brings it and sprinkles it on the flames of the altar...The Gemara challenges: But he thereby extinguishes the fire on the altar, and the Torah states: “A perpetual fire shall be kept burning on the altar, it shall not go out” (Leviticus 6:6). The Gemara explains: Extinguishing in a partial manner is not called extinguishing; in other words, this act is not included in the prohibition...The Gemara challenges: Come and hear a baraita that prohibits sprinkling wine on the fire of the altar: If one contributes wine, according to the statement of Rabbi Akiva that one may contribute wine, it is poured into the basins on the altar. If one contributes oil, according to the statement of Rabbi Tarfon that one may contribute oil, it is poured onto the flames of the altar. And it is furthermore taught in a baraita: The wine libation is poured into the basins. The baraita suggests: Or perhaps it is not so; rather, it is poured onto the flames. Therefore, you say: He shall not extinguish. The Gemara answers: This is not difficult, as that baraita is in accordance with the opinion of Rabbi Yehuda, who holds that even an unintentional action, i.e., a permitted action from which a prohibited action inadvertently ensues, is prohibited; and this statement of Shmuel is in accordance with the opinion of Rabbi Shimon, who maintains that a permitted action from which a prohibited action inadvertently ensues is permitted.

The Gemara notes: There are those who teach the statements of Rabbi Ḥanina bar Kahana and the Sages of the school of Rabbi Yannai with regard to this following mishna (Kilayim 9:2) and its attendant discussion. The customs collectors would not levy a duty for the garments one was wearing. In light of this, the mishna teaches: A person may not wear a garment made of diverse kinds, i.e., a combination of wool and linen, even if he wears it on top of ten garments, in order to avoid paying customs. It was noted that this mishna is not in accordance with the opinion of Rabbi Akiva, as it is taught in a baraita: It is prohibited to avoid paying customs by wearing a garment of diverse kinds. Rabbi Shimon says in the name of Rabbi Akiva: It is permitted to avoid paying customs in this manner. The Gemara comments: Granted, with regard to the prohibition of diverse kinds, they disagree about this: One Sage, i.e., Rabbi Akiva, holds that an unintentional act is permitted. In this case, the prohibition is to benefit from wearing the garment, and that is not his intent, as his intention is merely to avoid paying the customs duties. Therefore, it is permitted. And one Sage, i.e., the first tanna in the baraita, holds that an unintentional act is prohibited.

Sellers of clothes may sell [clothes made of kilayim] in accordance with their custom, as long as they do have not the intention in the sun, [to protect themselves] from the sun, or in the rain [to protect themselves] from the rain. The scrupulous hang [such materials or garments] on a stick over their backs.

MISHNA: A nazirite may shampoo [ḥofef ] his head and separate [mefaspes] his hairs manually, without concern that hairs might fall out. However, he may not comb his hair. GEMARA: The Gemara clarifies: Who is the tanna who maintains that a nazirite may shampoo and separate his hairs? It is Rabbi Shimon, who says: An unintentional act is permitted. Even if hairs do fall out as a result of this action, as he did not intend this to happen the action is permitted. Yet in the latter clause of the mishna, which states: However, he may not comb his hair, we have come to the opinion of the Rabbis. Although this nazirite also does not intend to tear out any hair when he combs it, it is nevertheless prohibited. This leads to a surprising conclusion, that the first clause represents the opinion of Rabbi Shimon and the latter clause is the opinion of the Rabbis. Rabba said: The entire mishna is in accordance with the opinion of Rabbi Shimon, as he maintains that anyone who combs his hair intends to remove stray hairs, and therefore this is considered an intentional act.

These words are by an issur deoraisa, but here it's assur miderabanan - In kol haTorah kulah R' Yehudah holds davar she'eino miskavein is an issur mideoraisa, except by Shabbos, since we have a drasha to teach that on Shabbos you need an extra element of meleches machsheves.

Tosfos asks: If they both agree that, min haTorah, melacha she'eina meskavein is mutar, what's the reason to the machlokes about whether the Rabanan assur it?

A: If you have a petur that is even mutar beshaar issurim, we won't make a gezeira, because there is no gezeira to be made from shaar issurim. But if it's assur beshaar issurim, then we will be gozer it by shaar issurim.

The Gemara relates: Rav did not allow his son to extract a thorn from him, due to the concern that his son would unwittingly wound him. Mar, son of Ravina, did not allow his son to pierce his blister, lest he wound him, which would be an unwitting violation of a prohibition. The Gemara challenges this: If so, this should be a concern when another who is not his son treats him as well, as it is prohibited for one Jew to injure another. The Gemara explains: There is a distinction, as when another treats him, the concern is that the individual would be in unwitting violation of a prohibition. By contrast, when his son treats him, the concern is that he would be in unwitting violation of a prohibition punishable by strangulation.

Abaye and Rava both say that Rabbi Shimon, who rules that an unintentional act is permitted, agrees that in a case of: Cut off its head and will it not die, one is liable? One who performs an action that will inevitably result in a prohibited labor cannot claim that he did not intend for his action to lead to that result. Lack of intention is only a valid claim when the result is merely possible, not inevitable.

By Shabbos there is no issur deoraisa of meleches machsheves, because we need meleches machsheves. However, by shaar issurim, like cutting off a baheres (sign of tzaraas), there is an issur deoraisa by pesik reishei.

The Torah teaches that in your land you shall not do - And what the She'iltos explains that this that it is assur to drink a medicine that will make a person a saris, that's like R' Yehudah, who holds a davar she'eino meskavein is assur. And even though we establish the halacha like R' Shimon who permits davar she'eino miskavein, that's davka by Shabbos, because we need a meleches machsheves, but in the rest of kol haTorah kulah we hold like R' Yehudah. However the Ri doesn't hold like this, since he holds that in the rest of kol haTorah kulah we also paskin like R' Shimon.

The Gemara asks: Aren’t all these done to enhance the land? Each stalk that a person uproots enhances the land. It was Rabba and Rav Yosef who both said in explanation: They taught this baraita with regard to swampland, where grass is not uprooted to enhance the land. Abaye said: Even if you say that the baraita is referring to a field that is not a swampland, it can be referring to a case where one did not intend to enhance the land. The Gemara asks: However, is it not Abaye and Rava who both say that Rabbi Shimon, who holds that one is liable only for performing an intentional action, concedes that one is liable in a case of cut off its head, will it not die? In any case where the outcome is inevitable, as in this case where the land will be enhanced, one’s lack of intention does not exempt him. The Gemara answers: Abaye’s statement was only necessary in a case where one did so on another’s land. Since he did not intend for that outcome to eventuate and he derives no benefit from enhancing the land, he is not liable in that case.

(6) RAMA: There are those who say that it is forbidden to stoke the fire under the pot of a non-Jew.

And the Aruch is not shayach to this, that which he says that R' Shimon only assurs a p'sik reishei denicha leih. Because that's specifically by Shabbos, where we need a meleches machsheves, but by sha'ar issurim we don't need it to be nicha leih.

RAMA: There are those who say that it is forbidden to stoke the fire under the pot of a non-Jew.

The Sages taught: One may not diminish the number of berries on the Festival to render the myrtle branch fit. In the name of Rabbi Eliezer, son of Rabbi Shimon, they said: One may diminish their number. The Gemara asks: But isn’t he preparing a vessel on a Festival, as he renders an unfit myrtle branch fit for use in fulfilling the mitzva? Rav Ashi said: It is a case where he picked them for the purpose of eating them, as it is permitted to pick berries from a branch unattached to the ground, and preparing the myrtle branch for use is permitted because he did not intend to do so. And Rabbi Eliezer, son of Rabbi Shimon, holds in accordance with the opinion of his father, who said: An unintentional act, i.e., a permitted action from which a prohibited labor inadvertently ensues, is permitted on Shabbat or on a Festival. Here too, one’s intention is to eat the berries. Although the myrtle branch is prepared for use in the process, picking the berries is permitted because that was not his intention. The Gemara challenges: But didn’t Abaye and Rava both say that Rabbi Shimon concedes in the case of: Cut off its head and will it not die? Even Rabbi Shimon, who says that an unintentional act is permitted, said so only in cases where the prohibited result is possible but not guaranteed. However, when a prohibited result is inevitable, just as death inevitably ensues from decapitation, the act is prohibited. In the case of picking berries off of a myrtle branch for food, one cannot claim that he did not intend for the prohibited result of preparing the myrtle branch for use to ensue. In this case, the myrtle branch will inevitably be rendered fit; how is this permitted? The Gemara answers: With what are we dealing here? It is with a case where he has another fit myrtle branch. Therefore, one is not considered to be preparing a vessel. Since the ultimate objective is to render the lulav and the accompanying species, which constitute the vessel in question, fit, and those species are already fit, picking the berries from the myrtle branch is not inevitable preparation of a vessel. Therefore, if one ate the berries, and the myrtle branch is thereby rendered fit, it is fit for use in the mitzva.

(5) When there are more berries than leaves, [the following rules apply:] If they are green, it is kosher. If they are red or black, it is not acceptable. If one reduced their number, it is acceptable. We may not reduce their number on the holiday itself, because [by doing so, one] makes [the myrtle] fit for use. If one transgressed and removed them or removed them one by one to eat them, it is kosher.

(3) When there are more berries.... And this that the Rambam writes: or if one removed them, he means to say that only someone who doesn't need the hadass is allowed to pick the berries.

(1) If one transgressed and removed them or removed them one by one to eat them, it is kosher. Since, if he had another hadas, it wouldn't be tikun at all, [not even a p'sik reishei,] and he'd be able to fulfill his intentions to pick the berris without a melacha of tikun kli, here, when he did it without another hadas, it's also going to be permitted, since it's called a davar she'eino miskavein, since the intention is able to be without tikun kli.