Wanted Dead or Alive | Rabbi Yirmiyohu Kaganoff | Beit Midrash

קטגוריה משנית

Wanted Dead or Alive
By Rabbi Yirmiyohu Kaganoff

Question #1: Getting Rid of those Bugs!
"May I trap or kill mosquitoes, bees, or wasps on Shabbos?"

Question #2: Hanging from the Lowest Tree
"I forgot to hang the flypaper before Shabbos. May I do it on Shabbos?"

Question #3: A Charming Shabbos
"May a snake charmer work on Shabbos?"

Answer: Catching or dispatching
We have all been in the following uncomfortable situation: Sometime during Shabbos, a mosquito appears in our vicinity seeking to earn its living. Although we realize that this creature requires its sustenance, we are not eager that we, our children or our guests should become mosquito fodder, even just as a minor donor. Are we permitted to trap or kill the mosquito?

Trapping living things, tzad, was an action necessary for acquiring some of the materials used to build the Mishkan, and is one of the 39 melachos, categories of prohibited activity on Shabbos (Mishnah Shabbos 73a and Rashi ad loc.). Killing living things also violates the melachos of Shabbos, a topic that we discussed last week. Here, we discuss many pertinent principles of Shabbos and some details of the melachah of tzad.

Shabbos nomenclature
When discussing what one may or may not do on Shabbos, the Mishnah and Gemara use three terms: (1) chayov, punishable, when a particular act constitutes melachah, meaning that it desecrates Shabbos by violating a Torah law; (2) patur, exempt, meaning it does not violate a Torah law, and (3) mutar, permitted, when an act may be performed on Shabbos. We will discuss the middle term, patur, which states that a particular forbidden act does not violate Torah law. This term usually indicates that the act is prohibited due to rabbinic sanction, but sometimes the Sages permitted such acts. But first we will explain what makes performing a forbidden activity patur?

Meleches machsheves
The Gemara (Chagigah 10b; Bava Kama 26b; Kerisus 19b) teaches that the Torah prohibited only something that can be categorized as meleches machsheves, which can perhaps be translated as premeditated melachah. An obvious example of meleches machsheves would be trapping an animal to obtain its hide or meat. Similarly, someone who digs a hole to plant the base of a tree violates the meleches machsheves of choreish, plowing, and one who picks a fruit performs a meleches machsheves of kotzeir, harvesting.

Meleches machsheves is often explained by what it is not. Following that approach, I will provide three categories of labor that are exempt from being defined as desecrating Shabbos min haTorah, because they do not qualify as meleches machsheves, at least according to some opinions.

Mekalkeil
In general, an act constitutes meleches machsheves only when its direct result is beneficial. This means that an action that is inherently destructive does not violate Shabbos min haTorah, even when one needs the result. For example, digging a hole in the ground when one needs the earth but not the hole is defined as a destructive activity and prohibited only miderabbanan. The dug hole itself is a negative development, rendering the burrowing to be mekalkeil, not prohibited min haTorah, but only because of rabbinic injunction. However, digging a hole to plant or to create a posthole results in a positive benefit and is indeed prohibited min haTorah, since one wants the hole in the ground.

Bemino nitzad
Here is a second example of meleches machsheves that is particular to the melachah that we are discussing, tzad. The tanna’im (Shabbos 107b) dispute whether it is prohibited min haTorah to ensnare a creature that mankind does not typically use, such as a scorpion or a flea, which is called ein bemino nitzad, literally, a species that is not trapped. The halachic conclusion follows the lenient opinion, ruling that tzad applies only to a species that is bemino nitzad, commonly trapped, so that mankind can benefit from it. For example, a species that is eaten, from whose body a medicine is extracted, or whose hide is used as leather qualifies as bemino nitzad. The halachic authorities discuss whether trapping an animal for scientific research or so that one can have it as a pet makes the animal bemino nitzad (Rambam, Hilchos Shabbos 10:21; Chazon Ish, Orach Chayim 50:4 at end).

However, a species that is caught only because it is an annoyance has the status of ein bemino nitzad.

Why is this true? The purpose of trapping is to harness a living creature so that mankind can use it. Thus, tzad is a type of acquisition (see Shu"t Avnei Neizer, Orach Chayim 189:7; Biur Halachah, 316:2 s.v. Oh Choleh). However, trapping a creature that mankind does not generally use is not acquiring these creatures, but distancing them from potential victims. Therefore, most opinions conclude that trapping a species that is ein bemino nitzad does not violate the melachah of tzad, and is prohibited only because of rabbinic injunction. Thus, since flies are ein bemino nitzad, catching them would not violate a Torah prohibition. Hanging flypaper on Shabbos would still involve a rabbinic prohibition and it is similarly prohibited to set up a mousetrap on Shabbos (Magen Avraham 316:9; see Piskei Tosafos, Shabbos 17b #62).

By the way, many authorities consider mice to be bemino nitzad, since there are places in the world where their hide is used (Chayei Odom 30:7). There is also a dispute whether a non-kosher species harvested only as food is considered bemino nitzad (Ritva, Shabbos 106b; Nimla Tal, Meleches Tzad #37).

Melachah she’einah tzerichah legufah
Many authorities rule that another category of activity -- Melachah she’einah tzerichah legufah, literally, an act not needed for its purpose -- is not prohibited min haTorah because it is not considered meleches machsheves. In fact, there is a dispute among tanna’im whether a Melachah she’einah tzerichah legufah is prohibited min haTorah or only miderabbanan. Whereas Rabbi Yehudah contends that Melachah she’einah tzerichah legufah is prohibited min haTorah, according to Rabbi Shimon, these acts are prohibited only by virtue of rabbinic injunction.

What is a Melachah she’einah tzerichah legufah? Among the rishonim, we find differing opinions as to exactly how to define this term, and there are many instances where a dispute in halachah results. Since this complicated question is a bit tangential to our topic, I am going to present only one approach. According to Tosafos (Shabbos 94a s.v. Rabbi Shimon) and the Rivash (Shu"t Harivash #394), Rabbi Shimon contends that the 39 melachos are prohibited min haTorah only when performed for a goal or purpose similar to the reason why this melachah was done when constructing the Mishkan. However, performing a melachah to accomplish a purpose other than that for which this melachah was performed in the Mishkan qualifies as a Melachah she’einah tzerichah legufah. This means that it is prohibited only miderabbanan, according to Rabbi Shimon and those who rule like him.

Here is an example: Removing an item that has a bad odor from a reshus hayachid, an enclosed area, into a reshus harabim, an open area meant for public use, is a classic case of Melachah she’einah tzerichah legufah. Although moving something from a reshus hayachid into a reshus harabim constitutes the melachah of carrying, moving the foul-smelling item from a house to a reshus harabim does not constitute a melachah min haTorah, according to Rabbi Shimon, because the purpose of the carrying when building the Mishkan was to relocate the item to a new place. However, when removing a foul-smelling item, there is no significance attached to the place to which the item is moved; one’s goal is only to distance it from its current location. The public area does not constitute the goal of one’s act; rather, it is merely a convenient place to deposit unwanted material. For this reason, Rabbi Shimon contends that this act was not prohibited by the Torah, but only by the Sages. On the other hand, Rabbi Yehudah considers Melachah she’einah tzerichah legufah as conforming to the definition of meleches machsheves and prohibited min haTorah.

Although most rishonim conclude that the halachah follows Rabbi Shimon that Melachah she’einah tzerichah legufah is prohibited only because of rabbinic injunction, the Rambam and others rule, according to Rabbi Yehudah, that Melachah she’einah tzerichah legufah is prohibited min haTorah.

When exempt is permitted
There is a passage of Gemara that reflects both on our opening question and on a different aspect of the melachah of tzad. "Shemuel said: Whenever the Mishnah states that something is patur when performed on Shabbos, the activity is prohibited [because of a rabbinic injunction], with the exception of the following three instances, when patur means that the activity is permitted. The first case discusses catching a deer, the second is catching a snake and the third is lancing a boil" (Shabbos 3a; 107a, as explained by Tosafos, Shabbos 3a s.v. Bar). Shemuel proves from Mishnayos that, in these three instances, the acts are permitted (Shabbos 107a). The first two of these cases educate us to understand what constitutes the melachah of trapping. (The case of lancing a boil involves a different topic that we will leave for a different article.)

What are the first two cases presented by Shemuel? The first situation is when a deer entered a building, and someone sat in the doorway of the building, thereby preventing the deer’s escape. When that person sat down, he trapped the deer and therefore performed the melachah of tzad. This is true, even if he was not involved in coaxing the deer into the building. The Mishnah (Shabbos 106b) then states that if a second person sits alongside the first in a way that the deer’s escape is still blocked, even when the first person gets up, the second person has not desecrated Shabbos. This is because the second person did not trap the deer but merely guaranteed that a captured animal remains in captivity. Although the Mishnah says that the second person is patur, Shemuel explains that one may lechatchilah sit down alongside the first person, even if one’s intention is to keep the deer trapped when the first person gets up. This explains a different aspect of tzad -- the melachah is making the animal available for human use, but once it is already trapped, there is no further violation in keeping it under human control.

The second case is based on two different mishnayos. One Mishnah (Shabbos 107a) permits catching a scorpion, so that it doesn’t bite, and another states that catching a snake to prevent it from biting does not violate Shabbos min haTorah, whereas catching it for medicinal uses does (Eduyos 2:5). Tosafos proves that both Mishnayos that permit tzad to protect someone are discussing creatures whose bite is painful, but not life-threatening, pikuach nefesh (Tosafos, Shabbos 3a s.v. Bar). Were the Mishnah discussing a creature whose bite is life-threatening, it would be obvious that one may kill it, because of the general rule that actions necessary to protect life supersede Shabbos and almost all other mitzvos.

Shemuel ruled that although catching non-dangerous creatures is ordinarily prohibited on Shabbos, since this involves only a rabbinic injunction the Sages permitted it under extenuating circumstances.

Why is the act of trapping non-dangerous creatures considered only a rabbinic injunction? We have already presented two possible reasons. The first is because of the principle of Melachah she’einah tzerichah legufah, since one has no interest in capturing a snake or a scorpion (Tosafos op. cit.). The second reason is that one is not catching these species to make them available for human use, which is an essential component of the melachah of tzad (Avnei Neizer, Orach Chayim 189:7; Biur Halachah, 316:2 s.v. Oh Choleh).

Mosquitoes versus snakes
Although we have discovered that one may catch snakes and scorpions that are not life-threatening, this does not tell us whether one may trap mosquitoes, bees or wasps. Although the sting or bite of these species is indeed painful, it is not usually as painful as a snake or scorpion bite. Thus, it might be that Chazal did not permit catching mosquitoes, bees or wasps.

We can presumably derive the answer from the following passage of Gemara:
"Someone who trapped a flea on Shabbos, Rabbi Eliezer rules him liable for desecrating Shabbos min haTorah, whereas Rabbi Yehoshua rules that his desecration of Shabbos was only of a rabbinic ordinance" (Shabbos 107b). The Gemara explains that this dispute is dependent on an issue that we discussed earlier. Does one desecrate Shabbos min haTorah if he traps a species that is not usually trapped? Rabbi Eliezer rules that he does, whereas Rabbi Yehoshua rules that he does not. Thus, it appears from this Gemara that although Shemuel proved that it is permitted to trap a scorpion, even of the non-deadly variety, one cannot trap a flea, which is considered only as causing discomfort.

Three types of varmints
We can, therefore, divide the different types of unpleasant biters and stingers into three categories:

1. Those that are potentially life-threatening to people. In this instance, if there is even the slightest possibility of danger, one may kill or catch them on Shabbos.

2. Those whose bite will be very painful, but there is no life-threatening danger. These may be trapped on Shabbos, provided that one’s intent is only to save people from harm (Rambam, Hilchos Shabbos 10:25). However, it is forbidden to trap if one intends to use the insect, reptile or arachnid. (Modern biology categorizes spiders and scorpions as arachnids, because they have eight legs, are carnivorous and are wingless. If we want to categorize insects and arachnids together, we should use the word arthropods, but that still excludes snakes and other reptiles. So, for most of this article, I have simply used the word creatures. My apologies to the scientists who are reading this.)

3. Those whose bite will be unpleasant, but not highly painful. In this instance, there is a dispute among the rishonim. Tosafos and the Rosh quote from an earlier baal Tosafos named Rav Poras that, if one sees that an insect may bite him, he is permitted to remove the insect. When the insect is not so close to him, he may brush the insect off, but he may not trap it.

Not all authorities accepted Rav Poras’ approach. The Mordechai (#402) quotes Rav Yehudah Gaon that he noticed that the "elder rabbis" did not trap fleas, even when they were on their skin. The Beis Yosef, however, contends that even Rav Yehudah Gaon accepts the ruling of Rav Poras, but that he himself practiced this as a personal chumrah, not as the required halachah that he would rule for others. There are other rishonim, however, who certainly disagree with Rav Poras and prohibit trapping mosquitoes, even when they are on your skin, since they are only a discomfort (Meiri, Shabbos 107b).

Consensus
The consensus of halachic authorities follows Rav Poras, although there is a dispute among them whether it is permitted to catch the insect only when it is actually biting (Shulchan Aruch, Orach Chayim 316:9; Bach) or whether one may remove the insects even when they are in close proximity (Taz 316:8; Magen Avraham 316:18; Elyah Rabbah). The Mishnah Berurah (316:37) concludes that when one can brush off the insect, he should not rely on the heter of trapping it, but he implies that one may trap the insect if brushing it off will not suffice.

Answers
At this point, let us take a fresh look at our original questions:

"May I trap mosquitoes, bees, or wasps on Shabbos?"
The answer is that if the insect is about to attack someone, one may trap it. One may also trap it if its sting or bite is very painful, and certainly if it is potentially dangerous.

May one hang flypaper on Shabbos? The answer is that one may not.

"May a snake charmer work on Shabbos?" If one is not intending to use the snake, it is permitted. This is all the more so if the snake is dangerous.

In conclusion
Rav Samson Raphael Hirsch (Shemos 20:10) notes that people mistakenly think that work is prohibited on Shabbos, to ensure that Shabbos is a day of rest. He points out that the Torah does not prohibit doing avodah, which connotes hard work, but melachah, which implies purpose and accomplishment. We certainly see this idea borne out by the ideas of meleches machsheves, which denote the purpose of the action, and have no correlation at all to the amount of energy expended. The goal of Shabbos is to allow Hashem’s rule to be the focus of creation by our refraining from our own creative acts (Rav Samson Raphael Hirsch Commentary to Shemos 20:11).