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Pesachim 26

PESACHIM 26 - this Daf has been sponsored by Joel and Liz Brauser of Hollywood, Florida


QUESTION: The Gemara cites a Mishnah (Kela'im 9:5) which says that it is permitted for a garment-merchant to wear clothing of Sha'atnez in order to display it, as long as he does not intend to get Hana'ah from it. The Mishnah adds that the G-dfearing merchants used to drape the clothing on a staff behind them, but not actually wear it, in order to avoid wearing clothing of Sha'atnez. The Gemara proves from there that "Efshar v'Lo Mechaven" is permitted; that is, according to those who permit "Davar sh'Einor Miskaven," even where it is possible to avoid getting Hana'ah from an Isur by doing the act in some other way, it is nevertheless permitted to do the act in such a way that the Isur gives him Hana'ah as long as he does not have Kavanah for the Hana'ah.

Why is such an act permitted? Even though the person does not have *intention* to have Hana'ah from the clothes he is wearing, it is *inevitable* that he will be warmed by them in winter and protected from the sun in the summer -- i.e. it is a "Pesik Reishei." We find that Rebbi Shimon agrees that a Pesik Reishei is forbidden, although one does not *intend* to do the forbidden act! ("Davar sh'Eino Miskaven" only means that one may perform an act which *may* unintentionally cause the transgression of a Torah prohibition; not an act that will *certainly* cause such a transgression.)

Similarly, the Gemara earlier (25b) says that both Abaye and Rava agree that "Lo Efshar v'Lo Mechaven," a situation in which getting Hana'ah is unavoidable and one does not have Kavanah for the Hana'ah, is Mutar according to Rebbi Shimon. Why is it Mutar if it is a Pesik Reishei (inevitable) that he will get Hana'ah?


(a) TOSFOS earlier (25b, DH Lo) and in Shabbos (29b) explains that it must be that when the Mishnah says that one may wear clothing of Sha'atnez, it refers to a case where one does so in a way that he *could avoid* getting Hana'ah from the garments (for example, he could wear it without it covering him completely). Since it is not definite that he will get Hana'ah it is not a Pesik Reishei. If, however, it is not possible to avoid getting Hana'ah, then not having Kavanah would not permit it because it is a Pesik Reishei.

Similarly, when the Gemara earlier said that "Lo Efshar v'Lo Mechaven" is permitted, it did not mean that it is entirely impossible not to get Hana'ah. Rather, it means that he cannot accomplish what he would like without doing an act that is *very likely* to cause him Hana'ah. Thus, it is not a Pesik Reishei.

(b) The RAN in Chulin (32a of the pages of the Rif) explains that ours is indeed a case where one is certainly going to benefit from the Isur; the Hana'ah is unavoidable. One will certainly derive benefit from wearing the garment of Sha'atnez, or one will certainly smell the aroma of Avodah Zarah. Regarding any other type of Isur, such a case would be a Pesik Reishei and be prohibited. When it comes to a prohibition of deriving *benefit* (Isur Hana'ah), though, the act is Mutar as long as one does not have Kavanah, even if it is a Pesik Reishei.

The Ran cannot mean that if one does not have Kavanah for experiencing Hana'ah it is not considered Hana'ah (that is, one only experiences Hana'ah when he wants to), because then even Rebbi Yehudah would agree that it is Mutar to derive benefit from Kil'ayim or Avodah Zarah without Kavanah; it should have nothing to do with the laws of Davar sh'Eino Miskaven. Rather, perhaps the Ran means that even though one seems to be definitely getting Hana'ah, as long as he does not have Kavanah to get that Hana'ah, it is *never certain* that he will have Hana'ah. Why? Since, by not having Kavanah to have Hana'ah, it is *possible* that he will indeed not experience Hana'ah. Acts involving Isurei Hana'ah can never be considered a Pesik Reishei because one *might* avoid having Hana'ah altogether; it is therefore a normal case of Davar sh'Eino Miskaven.

(c) RABEINU CHAIM HA'LEVI on the Rambam (Hilchos Shabbos 10:17) explains the Ran differently. He suggests that even if one is definitely going to get Hana'ah, it is still possible to say that it is Mutar because of the laws of Davar she'Eino Miskaven. Just because one is definitely going to get Hana'ah does not always make an act Asur. For example, the Aruch (Erech "Pesak," see Tosfos Kesuvos 6a) rules that an act which is a Pesik Reishei "d'Lo Nicha Lei," which a person does not want, is Mutar, even though it is definitely going to occur. It is Mutar because he does not have intention to do it and it is not in the least his desire for it to occur, although it will definitely occur. Similarly, the Ran means to say that when it comes to Isurei Hana'ah, even a Pesik Reishei is judged as a normal Davar sh'Eino Miskaven.

(Perhaps this may be understood as follows. Normally, a Pesik Reishei is prohibited since one *must* be intending, to some degree, to perform the Isur -- since he has a clear interest in the by-product of the Isur. With Isurei Hana'ah, though, this is not so. The interest one has in the by product (i.e. the Hana'ah) that comes from the Isur is not concrete enough for us to assume that he must be intending to perform the Isur to attain that by product. Therefore his act remains a Davar sh'Eino Miskaven under all circumstances -M. Kornfeld)

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