QUESTION: The Gemara cites the Mishnah in Kil'ayim (9:2) which teaches that one may not wear clothing of Kil'ayim (Sha'atnez), even over ten other items of clothing, in order to smuggle the clothing through customs. RASHI (DH Kedai) explains that wearing such clothing is forbidden even though he does not intend to derive benefit from it, but wears it only in order to avoid customs.

The Gemara asserts that the Mishnah there does not follow the view of Rebbi Akiva in the Beraisa. In the Beraisa, the Tana Kama states that one is forbidden from smuggling Kil'ayim through customs in this manner, while Rebbi Shimon in the name of Rebbi Akiva permits it.

(See the RAV BETZALEL RENSBURG (in Hagahos) who proves that the Beraisa clearly refers to a case of Kil'ayim, even though the Beraisa does not explicitly say so. Also, the Gemara explains that one certainly must observe the law of the land. Accordingly, it must be that the case in the Beraisa involves a customs officer who charges an unlimited amount of taxes, according to his whim, or to a customs officer who was not appointed by the king, even if he takes only a set percentage, for otherwise one would not be allowed to avoid paying the customs tax.)

The Gemara explains the dispute between the Tana Kama and Rebbi Akiva. Rebbi Akiva maintains that a "Davar she'Eino Miskaven" is permitted. Therefore, one is permitted to wear clothing of Sha'atnez when he has not intention to derive benefit from the clothing but wears them only to avoid customs. The Tana Kama maintains that a "Davar she'Eino Miskaven" is forbidden, and therefore one may not wear clothing of Sha'atnez even when he has no intention to benefit from them.

TOSFOS (DH u'Mar) explains that Rebbi Akiva understands that in such a case one is permitted to wear clothing of Sha'atnez in a normal fashion. He is not required to carry the Sha'atnez on his shoulders.

Rebbi Akiva's position here seems to contradict a common principle (see Shabbos 75a) -- that even according to the opinion that maintains that a "Davar she'Eino Miskaven" is permitted, it is permitted only when the actual transgression might not occur. If, however, it is inevitable that the transgression will occur, it is a "Pesik Reishei" and is forbidden, even if he has no intention to do the act. Why, then, does Rebbi Akiva permit one to wear clothing of Sha'atnez through customs because it is a "Davar she'Eino Miskaven"? Since he clearly transgresses the prohibition of Sha'atnez, his intentions should not matter.

(a) TOSFOS in Pesachim (25b, DH Lo) and in Shabbos (29b, DH u'Vilvad) explains that when Rebbi Akiva permits one to wear a garment of Sha'atnez when he does not intend to benefit from it, he refers specifically to a case in which one wears the garment in a way that he avoids benefiting from the garment (for example, he wears it only on part of his body, or he wears other clothing which provides him with protection from the elements). Since there is no certainty that he will benefit from the garment of Sha'atnez, his act is not a Pesik Reishei. If, however, there would be no way to avoid benefiting from the garment of Sha'atnez, one would not be permitted to wear it even with no intent to benefit from it, because the benefit would be a Pesik Reishei.

(b) The RAN in Chulin (32a of the pages of the Rif) explains that the case of the garment of Sha'atnez indeed are cases in which one certainly will benefit from the forbidden item, as the benefit is unavoidable. However, one is permitted to benefit from the item even though it is a Pesik Reishei, because the Pesik Reishei involves only Hana'ah, intangible pleasure, and the person has no intention to derive the benefit. In any other case of a forbidden item, the benefit that is a Pesik Reishei is prohibited.

The Ran does not mean that when one has no intention to benefit from the item, it is not considered Hana'ah (and that one is considered as though he benefits only when he so intends). If that would be the Ran's logic, then even the Tana Kama should agree that one may derive benefit from Sha'atnez without intent, and the matter would be unrelated to the topic of "Davar she'Eino Miskaven." Rather, the Ran means that although he appears as though he definitely derives pleasure from the item, as long as he does not have intent to derive that pleasure it remains uncertain that he will have pleasure. Why is it uncertain? Since he does not intend to have pleasure, it is possible that he indeed will not experience pleasure. Acts that involve only an Isur Hana'ah can never be considered a Pesik Reishei, because one may avoid deriving pleasure altogether. The act is therefore a normal case of a "Davar she'Eino Miskaven."

(c) RABEINU CHAIM HA'LEVI SOLOVEITCHIK (Hilchos Shabbos 10:17) explains the Ran differently. He suggests that even if one definitely will experience pleasure from the forbidden item, it still may be permitted because of the laws of "Davar she'Eino Miskaven." The fact that one will definitely benefit from the item does not always make that act forbidden. For example, the ARUCH (Erech "Pesak," see Tosfos to Shabbos 103a, DH Lo Tzerichah, and Kesuvos 6a, DH Hai) rules that a forbidden act which is a Pesik Reishei "d'Lo Nicha Lei," which a person does not want, is permitted, even though it will definitely occur as a result of the person's action. It is permitted because he has no intention to do the forbidden act, and he has absolutely no desire for it to occur. Similarly, the Ran means that a Pesik Reishei of an Isur Hana'ah is judged as a normal "Davar she'Eino Miskaven" and is permitted (according to the view that a Davar she'Eino Miskaven is permitted).

This approach may be understood as follows. The reason why a Pesik Reishei is normally prohibited is that the person, to some degree, wants the forbidden act to occur. Since he has an interest in the by-product of the forbidden act, and the forbidden act will definitely occur as a result of the permitted act, the person is considered as though he intends for the forbidden act to occur. In the case of an Isur Hana'ah, however, this logic does not apply. The person's interest in the by-product (the Hana'ah) that comes from the forbidden act is not concrete enough to assume that he intends to perform the forbidden act in order to obtain that by-product. Therefore, his act remains a "Davar she'Eino Miskaven" under all circumstances. (M. Kornfeld)

(See also PISCHEI TESHUVAH (YD 301:5) in the name of the MIRKEVES HA'MISHNAH, and KOVETZ SHI'URIM 2:23. See also Insights to Pesachim 26:1.)

OPINIONS: Rava rules that "one may not buy" from Nochrim who use their animals to fertilize fields for pay inside the Techum (boundary) of a city. What exactly may one not buy from these Nochrim?

(a) RASHI (DH Asur) explains that Rava rules that one may not buy animals from the Nochrim because the Nochrim are suspected of stealing animals from Jews while making their rounds within the city. However, if they work with the animals and the dung outside of the Techum, one may buy animals from them.

The RAMAH agrees with Rashi. He adds that the Nochri's theft of the animals usually occurs on Shabbos. Since the Jewish animals are not watched so well on Shabbos, the Nochrim are easily able to absorb the animals into their flock on Shabbos.

The RASHBA questions Rashi's explanation. Since most of the animals presumably belong to the Nochrim, one should follow the Rov (majority) of the animals and not be concerned about the minority of animals that might belong to a Jew inside the town. Even if one knows that the Nochri who is selling the animal is a thief, one nevertheless is permitted to buy from him. Rav later (119a) explicitly says that when one knows that most of the property in a person's possession belongs to him, he is permitted to purchase things from him (even though he might have stolen an item or two).

Moreover, Shmuel there says that even if only the minority of his possessions actually belongs to him, one still may purchase from him. RASHI there (DH Afilu) explains that one may assume that what the thief sells is in fact his. The Gemara concludes there that the Halachah follows Shmuel. The Rashba therefore does not understand why Rashi says that one is not allowed to purchase animals from the Nochrim.

(b) The RASHBA quotes the RA'AVAD who explains that the Gemara does not refer to buying animals but to buying dung. Since a Nochri steals animals from Jews, when one buys the dung from the Nochri's animals to fertilize his fields, he buys dung made by all of the animals, including the ones stolen from Jews. Rava therefore rules that one may not buy the dung. This is also the explanation of the ME'IRI. (D. Bloom, Y. Montrose)