[Avodah] r. ovadia; bullfighting; eiva, etc....

[Chana Luntz]

> HB:? why would chazal waive a rabbinical prohibition
> (muktzeh) to alleviate the pain of an animal, while at the same time we
> are  told that we can save an a?y on shabbas only because of ?eiva? 
> (enmity)?*

One of the big issues regarding an a"y is whether or not they are in fact
ovdei avodah zara and hence chayav misa.  If you were talking about a bone
fide ger toshav - ie somebody who had accepted upon themselves to keep the
sheva mitzvos benei noach, that is something different.  However, regarding
a bone fide ovdei avodah zara, you may need concepts of aiva even during the
week, don't lets talk about shabbas (see eg Shulchan Aruch Yoreh Deah siman
158 si'if 1).

 
> Can we apply the following kal vechomer:

Well specifically on your kal v'chomer I quote the footnote in (Rav Ovadiah
Yosef's) Yachave Daat chelek 5 siman 64 as follows:

"It is true that in the Shut HaChavot Yair siman 191 he writes that by a
person is not shayach the din of taar baalei chaim and we do not learn this
by means of a kal v'chomer from the law of unloading a burden that the Torah
has compassion on the animal because of tzar baalei chaim d'orita, and if so
ko she ken one should be concerned for the tzar of a person because there is
not in this any proof, because an animal lacks intelligence and reasoning
power but a person brings to it intelligence etc see there. However in the
teshuva of the Rashba chelek 1 (siman 252) he proves that even a person is
within the din of loading and unloading from that which is said in Baba
Metzia 30b about the story of Rabbi Yishmael b'rabbi Yosi that he met this
person that he had a burden [a parcel of wood] which he had taken off and he
asked him load me etc and it [the gemora] objects there that Rabbi Yishmael
b'Rabbi Yosi was old and it was not according to his honour, and it did not
ask "but there is no loading and unloading by a person" that rather indeed
it is taught also by a person. (and see further there in siman 256) see
there.  And this is the language of the Rambam in Sefer Hamitzvot siman 203
that Hashem commanded to put on the burden on an animal "or on a person"
when he is alone after he has taken it off and like he has commanded to take
it off so he has commanded to put it on like it is written hkum takum imo
and it says in the mechilta this is loading see there.  And so is written in
the Sefer Hachinuch (mitzvah 541) see there.  And see in the Sma (siman 272
s'k 13) that he writes that the reason of the Rambam that he writes because
of tzar yisroel even though it is not recalled in any place is because the
Rambam deduces that the tzar of yisroel is not less that the tzar of baalei
chaim of an animal and it is a kol sheken. (And this is a response to that
which is written in the kneset hagedola choshen mishpat siman 272 and the
hagaot haTur oit 1) and from the language of the Rambam that he writes that
one who wounds an animal of his friend etc he proves that there is no din of
loading and unloading except in an animal and not in a person.  Because a
person is a bar dat and he would not burden himself with a burden heavier
that is appropriate for him.  And this is the opinion of the rav who asked
the question in the teshuva of the Rashba siman 252 and 256.  But the Rashba
goes at length and proves that this din is shayach also to a person.  And in
truth the story of Rabbi Yishmoel b'rabbi Yosi proves like his words.  If
so, it is surprising the he did not see the words of the Rambam in sefer
hamitzvot that also by a person is shayach the din of loading and unloading.
And it is already seen that the gaon rabbi Ya'akov Algazi in the book
shaarit Ya'akov (daf 10b) disputes the HaChavot Yair from the teshuva of the
Rashba that he proves the opposite from the story of Rabbi Yishmoel b'rabbi
Yosi. See there.  And so writes the gaon Rabbi Yehuda Ashkenazi in the sefer
Machne Yehuda on Choshen Mishpat (siman 272) that he disputes the Hachavot
Yair from the teshuva of the Rashba. That by a person is not shayach the din
of loading and unloading and he adds the words of the Sma.  And further he
brings the words of the Rambam in Sefer Hamitzvot that there he writes
explicitly that his mitzvah is shayach also for a person. And we learn the
stam from the mefurash. See there.   And it mustn't be denied that in the
teshuva of the Radvaz chelek 2  (siman 728)  he agrees to the opinion of the
Rav who asked the question in the teshuva of the Rashba, that by a person it
is not shayach the din of loading and unloading, see there.   But in the
mechilta of  Rabbi Shimon bar Yochai parshat mishpatim brings atzov tazov
"imo" to include a burden on his shoulders. And from this it is clear there
there is a din of unloading by a person. And so is proved in Chazon
Yechezkel (perek 2 to Baba Metzia halacha 12) see there.  And Maran Hachida
in Birchei Yosef Yoreh Deah siman 372 s"k 2) who questions on the words of
the Hachavot Yair and brings also what is written in the tosphot Rabbanu
Peretz (in Baba Kama 54b) that d'rabbanan we are noheg the din of loading
and unloading in a person and he brings the words of the Radvaz and he
writes that even according to his words the matter is not so clear behold
that which he writes there that because a person has intelligence he will
not burden himself with a burden more than is appropriate for him, because
if so, when this reason is not shayach the Radvaz would agree that also by a
person there is the din of tzaar balai chayim d'orita. (and see further in
his book other matters daf 95b).  And further I saw what is stated at length
in the book Dovar M'sharim (in drash 2 l'nisuin daf 18 "ak "v'ahala").  And
see further in the book Torat Hamayim (maarechet 90 oit 2), and in the book
Shevet shel Mi, and b'kuntrus Ya'akov Lachak (siman 4) where there is more."


>  if to prevent an
> animal from suffering that is not mechuyav on any mitzvos then for sure we
> should be able to save a life of a ben adam, who is chayav 7 mitzovs and
> who was/is created in Hashem?s image, by violating the shabbas??
> [either midoraisa (a"y), or midirabonnon (muktzeh - animal) or? both...]

I am not quite sure what you are saying here.  But you should know that
specifically on that din regarding the permission to put down cushions based
on tzar balaai chaim as brought in Shulchan Aruch Orech Chaim siman 305
si'if 19 - that the Magen Avraham there brings in the name of the Rambam
that while one is permitted to put down cushions, even though that violates
the d'rabbanan of mevataling a prepared kli (the cushions), one is not
permitted to bring that animal up out of the water with one's hands, even if
the cushions fail to work and the animal will die, despite the fact that
such an action too only involves a d'rabbanan, that of the mukzta of the
animal - and even though tzar ba'alei chaim is d'orisa and the mutkza of an
animal is only d'rabbanan, we do not compare this gezera of the chachamim
with that gezara.  And so poskens the Aruch Hashuchan.  However while the
Mishna Brura brings (siman 305 si'if katan 70) this Magen Avraham, he also
brings that the ER brings that there are poskim who hold that if putting
down the cushions does not work one is permitted to bring up the animal with
one's hands.

So certainly according to the Magen Avraham, you cannot necessarily
generalise beyond the cushions case and the other specific cases we have.  

It is however possible [this is CL here] that while the Magen Avraham holds
that tzar baalei chaim is d'orita (as he says explicitly), since he is
basing his prohibition on bringing up the animal with one's hands on the
Rambam, and the Gra at least holds that the Rambam in fact holds that tzar
ba'alei chaim is d'rabbanan (see the Gra on Choshen Mishpat siman 272 si'if
katan 11) - so perhaps you can argue that this is why the Rambam at least
does not allow bringing up of the animal with one's hands, and that, if we
do hold that tzar ba'alei chaim is d'orita, then one could, contrary to the
Magen Avraham, rule against the Rambam and like the poskim referred to in
the Mishna Brura, allow the bringing up the animal with one's hands, and
perhaps this is the reasoning of such poskim, although I have not seen this
inside (or anywhere, this is just my speculation). Note also that others
specifically disagree with the Gra  and hold that indeed the Rambam poskens
like the opinion in the gemora that tzaar baalei chaim is d'orisa (see the
nosei kellim on Choshen Mishpat siman 272:8).  You should also for
completeness note that the Rambam's take on loading and unloading an animal
(perek 13 of hilchot rotzeach halacha 1 and 9) is that one is required min
haTorah to load or unload the animal where the animal and burden belongs to
a Yisroel, but where the animals belongs to an a"y and so does the burden,
there is no mitzvah at all except because of eiva. However if the animal
belongs to the a"y but the burden belongs to the Yisroel he is obligated
because of the tzar of the Yisroel.

So perhaps if we indeed hold, as we do appear to hold, that tzar baalei
chaim is d'orisa, then maybe one could more generally push aside d'rabbanans
on shabbas - but it does mean going against the Magen Avraham, and without
seeing inside the other poskim referred to in the Mishna Brura, one does not
know if this is in fact a general heter vis a vis d'rabbanans.  And, if we
held so, we could perhaps apply this to a person, based on the teshuva of
the Rashba - but I would have thought only so long as you were not dealing
with a person who could be considered to be within the category of ain
ma'alin v'ain moridin - which tends to be the issue that aiva often deals
with.  I don't quite see where you get to allowing d'orisas even with this
logic, however.  

But doing a little bit of speculating myself - I do wonder whether the fact
that a ger toshav is included at least somewhat in the dinim of shabbas min
hatorah, as is darshened from the pasuk (at the very least amira to a ger
toshav would seem to be an issur d'orisa according to the Beis Yosef),
might not include them sufficiently in the dinim of shabbas so that we can
apply the "violate shabbas so they can keep other shabboses" halacha.  And
coupled with the obligation to sustain them (l'chayoto, which is also a
d'orisa), might perhaps be sufficient for them to be included in the pikuach
nefesh rules vis a vis shabbas - even absent eiva.

Of course, this probably leads you into - do you have gerei toshav or quasi
gerei toshav today question - and in fact makes it more interesting, because
perhaps there are some interesting shabbas implications - as in, are there
problems with the way so much of the State of Israel runs on shabbas by way
of non Jewish labour?!  Just a thought.

> hb

Shavuah tov

Chana