Siman 329

It has already been explained that any saving of life supersedes Shabbat, and one who is zealous is praiseworthy. Therefore, the sages said (Yoma 84b): "One may extinguish and form a barrier before a fire." That is to say, if a fire broke out in a courtyard where there is a concern of danger to life, such as if there is a sick person there or small children, where due to the panic there is great exertion to remove them from there so they are not harmed, and perhaps harm will come to their bodies—it is permitted to extinguish the fire, and also to bring vessels full of water through a reshut harabbim and form a barrier with them against the fire (Tosafot ibid.). It is also permitted to do both things, extinguishing and forming a barrier, when there is a doubt that perhaps one thing will not suffice (so it appears to me). Furthermore, even if the fire is in another courtyard, provided there is a concern that perhaps it will also pass to this courtyard, and in this courtyard there is a sick person or small children as we have written, they may extinguish and form a barrier as we have written. And even if it is possible to remove the sick person and the small child, but the removal would be through a reshut harabbim, it is better to extinguish, for it is a melakhah she'einah tzerikhah legufah and one is exempt according to most poskim by Torah law, rather than removing them through a reshut harabbim which is an av melakhah (Magen Avraham, subsection 1). And regarding removal to a karmelit, the prohibition of both is rabbinic; only according to the Rambam, who ruled that one is liable for a melakhah she'einah tzerikhah legufah, is extinguishing a melakhah d'oraita.

The Rambam wrote in chapter 2, law 20: "If there was a courtyard that contained oppressors and Israelites, even one Israelite and a thousand oppressors, and a collapse fell upon them—one clears the debris for everyone, because of the Israelite. If one of them separated to another courtyard and that courtyard fell upon him—one clears the debris for him, lest the one who separated was the Israelite. If they all uprooted from this courtyard to go to another courtyard, and at the time of their uprooting one of them separated and entered another courtyard, and a collapse fell upon him and it is not known who he is—one does not clear the debris for him, for since they all uprooted, there is no Israelite here, and anyone who separates from them while they are walking is under the presumption that he separated from the majority. Therefore, if the majority were Israelites, even though they all uprooted and one of them separated to another courtyard and a collapse fell upon him—one clears the debris." Thus far his words. The explanation of his words: That which we do not follow the majority regarding saving a life is only at the time of fixed presence (keviut), and this is also the case regarding all prohibitions, for anything fixed is considered like half-and-half. And also even if one separated from the fixed presence, and the doubt fell upon this one who already separated, for regarding the nine shops we maintain that in a case of a found item one follows the majority, yet here one does not go and clear the mound of debris for him. But if they all uprooted from this courtyard to separate each one to his place, and during their walking one of them separated and came to his place in the other courtyard and the mound fell upon him—one does not clear the debris, for since the fixed presence is completely nullified, one follows the majority. However, if the majority were Israelites, even when they all uprooted—one clears the debris. And it is not specifically a majority, for the same law applies to half-and-half, as he wrote in chapter 15 of Forbidden Intercourse; rather, it is because he is not dealing here with this law and employed the language of majority and minority (so it appears to me to explain, and so it is implied by the Maggid Mishneh, and so it is implied by his response to the sages of Lunel which the Kesef Mishneh brought; and that which the Lechem Mishneh questioned from the foundling in chapter 15 of the Laws of Forbidden Intercourse, we have already explained this in Even HaEzer, siman 4, section 55, see there and examine carefully).

And according to the opinion of Rashi and Tosafot in Yoma (84b): if all of them departed from this courtyard, and one of them separated and entered another courtyard and a collapse fell upon him—one clears the debris, for since a Yisrael was established among those who departed, we do not follow the majority even when they departed, unlike all other prohibitions. But when some of them departed from this courtyard, and one of those who departed entered another courtyard and a collapse fell upon him—one does not clear the debris, since a Yisrael was not established among those who departed, unless the majority or half of them departed, for we say in this case that it is as if a Yisrael was established among those who departed, as we follow the majority. And half and half is like a majority regarding the matter of pikuach nefesh, and so the Ra'avad and the Ramban explained, as the Maggid Mishneh wrote there.

The Tur and the Shulchan Aruch, section 2, wrote like the Rambam, and I am astonished by our teacher, the Beit Yosef, who began with the phrasing "we do not follow the majority in matters of pikuach nefesh," see there, for this is not a general rule as has been explained, and indeed the Rambam and the Tur did not begin with this phrasing. And in the Responsa, the Rambam explained that we do not hold like the one who says we do not follow the majority in matters of pikuach nefesh (see Kesef Mishneh, who is of the opinion that Shmuel and Rabbi Yochanan disagreed on this, and the halacha follows Rabbi Yochanan).

And it appears to me regarding the reason for this law that, behold, following the majority is a Torah principle, yet the Torah said: "And he shall live by them and not die by them," that it should not be possible in any matter to lead to the death of an Israelite (Tosafot Yoma 85a). And against this, to nullify the Torah law that we follow the majority is impossible; therefore the sages said that as long as the majority remains in its place, or due to the principle of "kavuah" which is considered like half-and-half, and half-and-half is certainly like a majority because of the verse "and he shall live by them," then everything that separates from this majority or from this "kavuah"—the law for all of it is like a majority, even though for other laws it is not so, and for this the verse "and he shall live by them" applies. Therefore, when some of them separate—we clear the debris, but when this majority or this "kavuah" is nullified, such as when they all separated—its law is like the rest of the Torah where we follow the majority, and this is according to the system of the Rambam, the Tur, and the Shulchan Arukh. And according to the system of Rashi and his colleagues, the reasoning is as follows: as long as the majority or the "kavuah" all remain in one state, meaning they all separated, the previous status is not yet nullified, and we do not follow the current majority but rather the previous "kavuah," and for this the verse "and he shall live by them" is effective. But when they are divided in their state, meaning these separated and those remained in their "kavuah"—the previous status is nullified and we follow the present, and we follow the majority of those who separated and we do not clear the debris. And "they were all uprooted" means one after the other, for if they were all uprooted at once, behold, this is also "kavuah" (Magen Avraham, subsection 3). However, it could also be that they were uprooted at once and scattered here and there so that the "kavuah" was nullified, as is known regarding the laws of "kavuah" in Yoreh Deah siman 110, see there. (And therefore, regarding an infant found in a city where the majority are heathens—we do not desecrate the Shabbat, since the entire city separates every day here and there, there was never "kavuah," as the Magen Avraham wrote in subsection 2).

And just as one does not follow the majority in pikuach nefesh regarding several details as I have written, so too one does not follow a sefek sefeika, and even regarding three doubts or more. Therefore, if a ruin fell upon someone, and there is a doubt whether he is alive or dead, and furthermore there is a doubt whether there is a person there or there is no person there, and even if you should say there is a person there, there is a doubt whether he is a non-Jew or an Israelite—nevertheless, one clears the debris for him and profanes the Shabbat. And regarding this it is said, "and he shall live by them," so as not to come to death in any manner, as I have written. However, for one who is liable for the death penalty or one who comes in a tunnel—one does not clear the debris, for he is a dead man (ibid. subsection 4).

When they cleared the heap and found him alive—they continue to clear until they remove him from there and perform medical treatments for him with everything necessary without any delay, as is the law regarding pikuach nefesh. And if they found him dead—they cease clearing and do not move him from there until evening. And if they found him crushed, such that he cannot live, but if they clear he will live for some hours and if not he will die immediately—we are concerned for temporary life and we clear, and regarding this too it is said, "and he shall live by them." And that which we say in Avodah Zarah (27b) that we are not concerned for temporary life, it is regarding receiving medical treatment where there is also a concern that it is possible that through this he will die quickly, see there. However, the matter is thus: that we are concerned for his benefit in both aspects, and here we are concerned for his benefit that he should live for some more hours, and there we are concerned for his benefit to receive the medical treatment, for it is possible that he will be completely healed. And if it is because it is possible also for the opposite to occur and his life will be shortened by some hours, since in either case he will die—we are not concerned for the hours, for it is worthwhile to suffer this doubt because of the other doubt that perhaps he will be completely healed, since without the medical treatment he will certainly die, as is explained there (Tosafot).

And how do they act: When they found him crushed, they examine up to his nose, and if they did not sense vitality in his nose—then he is certainly dead. And there is no distinction between whether they encountered his head first or whether they encountered his feet first, for in all cases the examination of whether he is alive or dead is only at the nose, as it is written: "All in whose nostrils was the breath of the spirit of life" (Gemara ibid.). And if the heap fell upon many people—they clear it until they find them all. And even if they found the upper ones dead, they shall not say that certainly the lower ones died as well and why should we desecrate Shabbat—it is forbidden to say so, because it is possible that the upper ones died and the lower ones are alive, and there was such an incident (ibid.).

Bandits who besieged the houses of Israel: if they came regarding financial matters to steal their property—one does not desecrate the Shabbat for them, for on account of property alone it is forbidden to desecrate Shabbat. But if they came regarding matters of life, to kill and destroy, or even if they came without specified intent, meaning it is not known to us for what purpose they came, it is also treated as if it were clearly regarding matters of life, for ordinary bandits are killers of souls—one goes out against them with weaponry and desecrates the Shabbat for them. And in ancient times, when the Beit HaMikdash existed and they came to a city situated on the border, even if they only came regarding matters of straw and stubble—one desecrates the Shabbat for them (Eruvin 45a), for such a city, if they capture it, it becomes easy to capture the entire land (Rashi). And even if they have not yet actually come but are prepared to come—it is treated as a case of possible danger to life and one desecrates the Shabbat.

And there is one who says that nowadays in this time, if bandits come even regarding matters of money alone—one profanes the Shabbat, because it is a known thing regarding many people that a person does not restrain himself regarding his money, and they will stand against them and not allow themselves to have their money stolen, and it is known regarding bandits that if they are not allowed to plunder and loot money, they will kill them, and then it becomes a matter of lives. Therefore, when they come upon an individual—he is obligated to restrain himself and allow them to take the money and not profane the Shabbat, and the Holy One, Blessed be He, is faithful to repay him many times over, and this all depends on the circumstances. And know that this law cannot exist now in a city that has rulers from the monarchy, for the world is not lawless, but only in a village can it be.

One who sees a ship tossed about in the sea and there are people in it, and similarly a surging river that can sweep people away, and similarly an individual pursued by bandits—it is a mitzvah upon every person to profane the Shabbat for them in order to save them. Above, at the end of siman 306, it was explained whether one profanes the Shabbat for one whom they wish to coerce; see there. And we learned in Eruvin (45b): "All who go out to save return to their place." That is to say, the law is that one who went out beyond the techum has only four amot, but when they went out to save people—they permitted them to return to their place even from beyond the techum. And there are those who did not permit them this except that they should have two thousand amot in every direction, and this matter will be explained in siman 407 with the help of Heaven.

And know that for any type of doubt regarding lives, we desecrate Shabbat. For example, if they need to bring a medicine from a distant place for a patient who is in danger, and there is a doubt if the medicine is there and also a doubt if it heals—we desecrate the Shabbat. However, it is possible that for a doubt if it heals—we do not desecrate, and so it appears from the Mishnah in Yoma (83a) that specifically when the medicine is certain, we desecrate. And even though there are several doubts in this matter, nevertheless, since the medicine is certain, the Torah commanded us to desecrate, and not in a case where the medicine itself is not certain; see there.