PESACHIM 26 (Tisha b'Av) - Dedicated by Rabbi Dr. Eli Turkel of Ra'anana, Israel, in memory of his father, Reb Yisrael Shimon ben Shlomo ha'Levi Turkel. Isi Turkel, as he was known, loved Torah and worked to support it literally with his last ounce of strength. He passed away on 10 Av 5740.
1) ONE WHO DERIVES BENEFIT FROM A PROHIBITED ITEM WITHOUT INTENT
QUESTION: The Gemara cites the Mishnah in Kil'ayim (9:5) which teaches that a garment-merchant is permitted to wear a garment of Sha'atnez in order to display it, as long as he does not intend to derive benefit from it. The Mishnah adds that G-d-fearing merchants would drape the clothing on a rod behind them and would not actually wear it, in order to avoid wearing a garment of Sha'atnez. The Gemara proves from the Mishnah there that "Efshar v'Lo Mechaven" is permitted. This means that Rebbi Shimon, who permits one to benefit from a forbidden item when it is a "Davar she'Eino Miskaven" (he does not intend to benefit from it), permits one to benefit from the item even when it is possible to do the act in some other way and avoid the forbidden item. Since he does not have intention to benefit from the forbidden item, his act is permitted.
Why is such an act permitted? Even though the person does not have intention to benefit from the garment of Sha'atnez that he wears, it is inevitable that he will be warmed by the garment in the winter and protected by the garment from the sun in the summer, and thus the benefit he derives is a "Pesik Reishei." Rebbi Shimon agrees that a Pesik Reishei is always forbidden, even when one has no intention to derive benefit from the forbidden item. (When Rebbi Shimon permits a "Davar she'Eino Miskaven," he permits only an act that may unintentionally cause the transgression of a Torah prohibition; he does not permit an act that will certainly cause a transgression.)
Similarly, the Gemara earlier (25b) says that both Abaye and Rava agree that a case of "Lo Efshar v'Lo Mechaven," where deriving benefit from a forbidden item is unavoidable and one does not intend to derive benefit, is permitted according to Rebbi Shimon. Why is it permitted if it is inevitable, a Pesik Reishei, that he will derive pleasure from the forbidden item?
(a) TOSFOS earlier (25b, DH Lo) and in Shabbos (29b, DH u'Vilvad) explains that when the Mishnah says that one may wear a garment of Sha'atnez, it 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). Since there is no certainty that he will benefit from the garment, his act is not a Pesik Reishei. If, however, there would be no way to avoid benefiting from the garment of Sha'atnez, then one would not be permitted to wear it even with no intent to benefit from it, because the benefit would be a Pesik Reishei.
Similarly, when the Gemara earlier says that an act of "Lo Efshar v'Lo Mechaven" is permitted, it does not mean that it is entirely impossible to avoid benefit. Rather, it means that he cannot accomplish what he wants without doing an act that is very likely to cause him to benefit from the forbidden item. Hence, it is not 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, and the case of the aroma of Avodah Zarah, indeed are cases in which one will certainly 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 Rebbi Yehudah would agree that one may derive benefit from Sha'atnez or Avodah Zarah without intent, and the matter would be unrelated to the topic of "Davar she'Eino Miskaven." Rather, the Ran means that even though 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." Just because 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 Rebbi Shimon).
This approach may be understood as follows. The reason for why a Pesik Reishei is normally prohibited is because 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 attain that by-product. Therefore, his act remains a "Davar she'Eino Miskaven" under all circumstances. (M. KORNFELD)