by R. Daniel Mann
Question: May one “violate” muktzeh during bein hashemashot (=bhs; the time between sunset and nightfall treated as a doubt of day or night) based on the rule of sefika d’rabbanan l’kula (we are lenient in cases of doubt of a Rabbinic prohibition) even without a mitzva need. If not, why?
Answer: The gemara (Eiruvin 32b) cites R. Yehuda Hanasi (=RYHN) as saying that anything that is forbidden only Rabbinically on Shabbat is permitted during bhs. The gemara’s language implies that the Rabbis made a conscious decision to not extend their prohibitions to this period, not that it is based on sefika d’rabbanan l’kula. The Rosh Yosef (Shabbat 34a) does attribute RYHN’s rule to safek d’rabbanan l’kula, but he points out that this rule does not apply to all Rabbinic laws. If it were a simple application of safek d’rabbanan l’kula, it would apply equally to bein hashemashot entering Shabbat and bein hashemashot ending Shabbat. Saturday evening bhs is actually the subject of debate among the poskim (see Mishna Berura 342:2 and Biur Halacha ad loc.). In any case, the RYHN’s rule is “on the books” at least for Friday evening. However, there is a need for further halachic exploration.
The Rambam (Shabbat 24:10, accepted by the Shulchan Aruch, Orach Chayim 342:1) writes that the leniency applies only when it is needed to enable a mitzva or in a pressing situation. How great must this need be? On the one hand, the Mishna Berura cites the Gra as requiring the pressing need to be a great one. On the other hand, he writes (Biur Halacha, ad loc.) that even if the thing only adds oneg (enjoyment) to Shabbat, this is considered for a mitzva, even if there are alternatives. This seems to contradict what he writes (in Mishna Berura 261:4), in the context of taking ma’aser during bein hashemashot, that it is a mitzva only when there is not alternative food. The needs of guests are generally equivalent to those of mitzva (Rama, OC 333:1).
As we mentioned, not all d’rabbanans are equal. A mishna (Shabbat 34a) mentions actions that are permitted during bhs (eiruv chateizrot, hatmana, ma’aser of d’mai), and there are strong indications that these are permitted without special need. On the other hand, many poskim say that certain Rabbinic prohibitions are forbidden even during bhs for a mitzva because they bring one too close to a Torah-level Shabbat violation (see Mishna Berura 342:1). One example is a melacha that is done in the form of a melacha she’eina tzricha l’gufa. In the other direction, some say that actions that are forbidden as weekday-like activity or melacha-related speech do not require special need (see Dirshu 342:11).
Where does muktzeh stand in this regard? Some explanations of muktzeh connect it to the concern that one will come to fully violate Shabbat, e.g., carrying to a reshut harabim (see Rambam and Ra’avad, Shabbat 24:13). However, indications are that muktzeh is a regular Rabbinic law in our regard, as the Mishna Berura (394:3) posits.
These halachot are of limited practical value. According to our consensus (against Rabbeinu Tam), bhs begins directly after what we call sunset. Although many communities do not consider it night for 20-25 minutes, since the core opinion is that bhs is around 13 minutes, we do not allow Rabbinic prohibitions beyond that (Orchot Shabbat 27:(69)). Another time issue is tosefet Shabbat, which prevents us from doing work before actual nightfall (see Shulchan Aruch, OC 261:1). While RYHN’s rule does not impact tosefet regarding the Torah level, it is likely that a short time at the end of bhs should be free of Rabbinic prohibitions as well (Biur Halacha to 342:1). It is permitted to apply RYHN’s leniency after one personally accepted Shabbat, when there is proper need (Shemirat Shabbat K’hilchata 46:19 rules this way, despite citing dissenters). However, once the community has, as a group, accepted Shabbat (through davening, probably, at Mizmor Shir …), an individual may no longer use this leniency (Mishna Berura 261:28).