by R. Gidon Rothstein
Parshat Be-Shalah: The Prohibition of Melachah on Yom Tov
There are better ways to start a series than with an exception, but you get what you get. While we will ordinarily be studying a mitzvah from that week’s parsha listed by Sefer Ha-Hinuch, the only one in Beshalah is the prohibition of tehumin, traveling far from one’s place of residence. Rambam indeed counted such a mitzvah, although already he showed problems in counting it: in Sefer Ha-Mitzvot Prohibition 321, he seemed to define it as going more than 2000 amot from one’s place of residence, where in Mishneh Torah he held the Biblical limit on travel only kicked in at three parsa, twelve mil, 24000 amot.
It is not a mitzvah for us to study in this context, however, because Sefer Ha-Hinuch notes Ramban disagreed, he (and, I think, the consensus of Torah scholars) understood the Gemara to indicate that none of tehumin was Biblical. If so, depending on what kind of rabbinic legislation it was, a later Sanhedrin might adopt Ramban’s view and then also decide tehumin was no longer a needed part of Shabbat observance. [As always, I am not saying they would nor advocating for it, just saying it could happen.]
We cannot say tehumin is an unalterable element of Jews’ Shabbat.
Creative Labor on Holidays
To our good fortune, She’iltot has other options, such as the prohibition of melachah, what is often translated as creative labor, on holidays. The Torah itself carved out an exception, permitting those activities necessary for preparing food on Yom Tov—in contrast to Shabbat. The verse says, Shemot 12;16, ach asher ye’achel le-chol nefesh, solely that which is eaten by all souls, can be done. Aruch Ha-Shulhan assumes the Torah wanted to allow people to eat and drink good fresh food, the way to show the day is special.
I used the infelicitous translation of “all souls” because Beitzah 21a is sure the word means to exclude some category of those who eat, although it records a debate about what it means to exclude, animals or non-Jews. The Gemara does not rule on the issue, but R. Akiva was one of the disputants, and we ordinarily follow his view when he is in disagreement with one colleague. He took the verse to imply an exclusion of non-Jews, for whom we may not violate Yom Tov, but we could prepare food for those animals reliant on us [this is the reason we generally do not invite non-Jews for meals on holidays, where on Shabbat there is no concern].
However, the principle is not ironclad, and R. Yose ha-Gelili’s read of the verse as meaning to exclude animals leaves the door open for a future Sanhedrin to adopt his view. Rabbenu Hananel assumed R. Yose prohibited animals as well as non-Jews, so the only opening he leaves is for more stringency; Tosafot to Beitzah note R. Shemuel and R. Moshe of Evreux, heads of an important yeshiva, thought the Talmud followed R. Yose’s view, as did Rif and Rambam. (R. Elyashiv suggested animals do not need their food cooked, so perhaps R. Akiva would have agreed.)
Certainty and uncertainty: Jews may not do creative work on holidays other than preparing food, certainly for themselves, perhaps also for animals, maybe not for animals, only for non-Jews.
The Aid of Possible Guests
The Gemara’s discussions of rules around sacrifice on holidays highlight one significant loophole within this prohibition. Shabbat 24b rules out burning sacrificial items and/or terumah that had become ritually impure on Yom Tov, because they are not a matter of food preparation. For valid sacrifices, Jews are not allowed to bring personal burnt offerings on a holiday, since there is no pressing requirement as well as no ochel nefesh, no human eating, element.
However, Minhat Hinuch notes a person who brought such a sacrifice would bear the usual punishment for violating holidays, because of ho’il, since some other factor could have been true. In this case, he could have nullified the vow by which he dedicated the animal, making the animal hullin, non-sanctified, available for eating (he deals with the details that the animal is not actually edible, because hullin slaughtered in the courtyard of the Beit Ha-Mikdash has other problems, but let’s leave those. The point is, it introduces us to ho’il).
Another example of ho’il comes up in our ordinary food preparation, which we know from when holidays are on Fridays. We use an eruv tavshilin, a rabbinic way to allow cooking, when the problem of hachanah, cooking on a holiday for Shabbat, is usually thought of as Biblical. However, ho’il, since guests might come, we can officially be cooking for potential guests.
Meiri Beitzah 21b uses the idea in the context of our ochel nefesh issues, because it tells him the prohibition on inviting a non-Jew to a meal is rabbinic, for fear the host will cook more. Were the host to make an explicit condition with the non-Jew that the meal was cooked, there would be no more cooking done, Meiri thinks it would be allowed. Fostering this permissibility is the ho’il, even if the host cooked for the non-Jew, it would not really be a Biblical violation, ho’il that other Jewish guests might pop in [where usually we hate the pop-in, here we love the pop-in!].
Doable Before the Holiday
The end of the verse that told us were allowed to cook food said hu levado, it alone, shall be done. Rava understood levado to exclude machshirin, preparations for preparation (Rashi’s examples are to make a spit or a knife). To separate between machshirin and actual ochel nefesh, the Gemara introduced the idea of what could have been done before the holiday.
For a stringent view, Rashi thinks the Gemara meant that anything that could have been done before the holiday, with no loss of quality, is Biblically prohibited, so ochel nefesh does not allow cooking what we could have cooked before (others do not). Sefer Ha-Hinuch Mitzvah 298 thought it also defined how close in the process, those parts of the process that could be done before the holiday counted as machshirin rather than ochel nefesh.
(Shulhan Aruch Orah Hayyim 495 says acts from harvesting grain up through where it becomes flour, are actually ochel nefesh and only prohibited, where a Yerushalmi seemed to think ochel nefesh kicks in only at the point of kneading dough, because that’s where matzah on Pesah must be watched for leavening).
Meiri noted that machshirin that could not have been done before are sometimes permissible on the holiday, whereas ochel nefesh itself is generally allowed, even if it would have been just as good had it been prepared the day before (at a Biblical level; Rambam and Ra’avad, Laws of Yom Tov 1;5 give reasons for the rabbinic prohibition, not our issue here). In Beitzah 28b, Meiri says acts that look like ones done with grain rather than flour (such as grinding) should not be done on the holiday if they could have been done before without affecting the quality of the food.
Shulhan Aruch Orach Hayyim 495 allowed machshirin that could have been done before Yom Tov if they are done be-shinui, with a change, and Magen Avraham says if done with a change, the person may deliberately wait until the holiday to do them.
Hatam Sofer quotes a Yere’im not currently accepted halachically, that any mitzvah involvement can be done on holidays even if it requires acting in ways usually prohibited, because ochel nefesh includes all sustenance of the soul, and mitzvot sustain the soul as well. If a future Sanhedrin picked that up…
Carrying and Burning
Rambam, Laws of Yom Tov 1;4, notes hotza’ah and hav’arah, carrying and burning, are allowed more broadly on holidays than just their direct ochel nefesh uses. The Gemara phrases it as another ho’il, since these were permitted when needed, they are also permitted when not. Rambam explained it as a way to foster simhat Yom Tov, to give Jews all possible opportunity to secure items that will enhance the joy of the day.
Hagahot Maimoniyot reminds us of limits to this, as Re’em (R. Eliyahu Mizrachi, probably best known for his comments on Rashi on the Torah, but also a significant halachic authority) noted Rambam’s examples all involved mitzvot (like giving a baby a berit milah). Without a mitzvah purpose, or bodily enjoyment, Re’em inferred carrying would still be prohibited. Tosafot also thought there had to be some relevance to needs of the day, leading Hagahot Maimoniyot to assume carrying keys in public was not allowed, other than keys to a food storage. (Rashi, in contrast, understood all carrying to be allowed).
Used Equally by All
Sefer Ha-Hinuch brings up another element of ochel nefesh, that it must be shaveh le-chol nefesh, equally enjoyed by all people. While food is in that category (not specific foods, food as a group is used by all, allowing each person the kinds of foods s/he finds tasty), Sefer Ha-Hinuch specifies washing one’s legs, because everyone washes their legs sometimes. (Note the element of custom and practice: he implies washing one’s whole body is not shaveh le-chol nefesh, a matter I could certainly see a Sanhedrin deciding had changed.)
His example of not shaveh le-chol nefesh is burning incense, which wealthy people did, but not everybody.
What Qualifies as Melachah
Minhat Hinuch raises another issue regarding the scope of this prohibition. The Torah says not to do any melachah on holidays, which we loosely translate as “creative labor.” Minhat Hinuch notes some activities impermissible on Shabbat at a Biblical level are separate from the melachah prohibition (such as having an animal bear a load for us, which has a verse of its own, and is not identified as a melachah).
Shulhan Aruch and Magen Avraham assume holidays are the same as Shabbat in these areas, but Minhat Hinuch is not fully convinced. He is sympathetic to Peri Hadash’s distinction between shevitat behemto, the obligation to let an animal rest, and mehamer, the prohibition on animals bearing loads for Jews. Only the latter seems to be a melachah issue.
Others disagree, but again, a future Sanhedrin could opt for this and decide holidays did not have an obligation of shevitat behemto (Minhat Hinuch does point out that many rishonim assumed if tehumin was Biblical on Shabbat it would have applied to holidays as well, despite not being a melachah.)
Minhat Hinuch suggests there is room to view kibui, extinguishing, the flip side of burning, as an adjunct of ochel nefesh, because it has some relationship to cooking needs (the Gemara says putting meat on a fire drips juice and douses some of the coals).
In addition, it might be a melachah she-einah tzerichah le-gufah, a form of creativity engaged for other than its central purpose; the defined central purpose of extinguishing, for Shabbat concerns, is preparing wicks to light more easily. Putting meat on the fire may extinguish some fire below, but would at worst be a melachah she-einah tzericha le-gufah.
Rambam thinks such a form of activity is still Biblically prohibited, but most authorities think it is rabbinically so. Lighting and extinguishing wicks to make them easier to light the next time is definitely a problem on a hoiday, with zero ochel nefesh connection. Other extinguishings are generally considered de-rabbanan (and open to future Sanhedrins consideration).
The Big Picture
We are left with a mitzvah whose broad parameters we can define, many of the details more open to dispute and therefore possible change. On Biblical holidays where eating is permitted— first and last day of Pesah, Shavuot, Rosh HaShanah, first and last day of Sukkot—while creative labor in general is prohibited, those forms of activity that are about food preparation are allowed.
For two, burning fires and carrying from private to public or within public spaces, the permissibility extends beyond food preparation at least to all holiday needs, perhaps to anything with some holiday value.
There is dispute about how far back in the process of food preparation the idea of ochel nefesh extends, some seeing it starting from harvesting, some only from where we knead the dough, with parallels to other foods, on behalf of whom it is allowed (only Jews, or also animals and/or non-Jews), whether it applies to what could have been done before the holiday, and whether it might apply to activities that are not about food, such as mitzvot.
With all the haziness, remember the well-defined: while holidays do not allow for melachah, they do allow Jews to prepare their own food, and to carry or burn even more than that.