Siman 338

The Rambam wrote in chapter 23, law 4: "Anything that constitutes the completion of a labor—one is liable for it because of makeh b'patish, and because of this, one who scrapes any amount (at the completion of a vessel) or one who repairs a vessel with anything that repairs it—is liable. Therefore, it is forbidden to produce a sound of song on Shabbat: whether with musical instruments such as lyres and harps or with other things, even to strike with a finger on the ground or on a board or one against another in the manner of singers, or to rattle a nut for a child or to play for him with a bell so that he will be silent—all this and the like is forbidden, as a decree lest he repair a musical instrument." Thus far his words.

The explanation of the matters: For in the Gemara at the end of Eruvin (104a) there is a dispute: for Ulla holds that every type of sound is forbidden on Shabbat, even a sound that is not for song, such as knocking on a door to open it and the like—it is forbidden. And Rabbah holds that they only forbade a sound of song, which is heard like a song with melody and pleasantness (Rashi). And there are those who ruled like Ulla, and if so, every type of sound is forbidden. But the Rif, the Rambam, and the Rosh ruled like Rabbah, that specifically a sound of song is forbidden. And this is what our teacher, the Beit Yosef, wrote in section 1: "Producing a sound with a musical instrument is forbidden, but to knock on the door and the like when it is not in the manner of song is permitted." Thus far his words. And according to this, in large places where bells are hung above the door, in a manner that when they open the door the bell rings, and it is made so that they will hear whoever enters the house—it is permitted to open the door even though it rings, since the intention is not for song, it is like knocking on the door. And even though the ringing is a pleasant sound, nevertheless, since the intention is not for the sake of song, there is no prohibition in this. And so too, there are those where the bell is inside the house, and from the outside they pull an iron wire and through this the bell begins to ring and they open for him—it is also permitted for this reason, since it is not made for the sake of song. And so too, there are those who push from the outside and the bell rings from within and they open for him—it is also permitted for this reason.

And so too the bells on the parokhet that is at the opening of the Aron which jingle, and so too the bells that they hang on the Sefer Torah which jingle during its movement, since the intention is not for song but merely to produce a sound in order to notify the people that they are taking out the Sefer Torah or that they are walking with it to the bimah—this is not a sound of song that the sages prohibited (and so wrote the Magen Avraham, subsection 1, and the Eliyah Rabbah). And there is one who is stringent in this (Turei Zahav, subsection 1, based on the reasoning of our teacher, the Rema, which will be explained), but it is not the primary view as has been explained with the help of Heaven, and such is the simple custom in the entire world.

The summary of the matters according to this: that any matter where the intent is for the pleasantness of the song, such as songs of joy or songs of mourning or songs of lust, and one does this with an instrument or even with his hands, as the Rambam wrote: "to strike with a finger on the ground or on a board or one against another in the manner of singers," meaning that there are types of melodies where through his striking with a finger he makes the song pleasant, since he performs an action with his finger - they prohibited it just as with a musical instrument. And so too to rattle a nut for a child or with a bell so that he will be silent or sleep, for he rattles with pleasantness and makes a sound like a hum (Gemara), and this is a type of flute and he intends for there to be a pleasantness of song in this, for through this the child will be silent and sleep – and it is prohibited. And so too if they place water in a vessel full of holes and it drips into a metal vessel so that a pleasant sound will be heard like a humming sound - it is prohibited (Magen Avraham from the Gemara ibid.).

Regarding matters where the intent is not for the pleasantness of song, and there is in them neither joy nor mourning nor sensuality, but rather merely to produce a sound—even if the sound is loud, such as the shamash who strikes with a mallet upon the walls to call to the beit knesset, or one who strikes with a forceful object upon the bimah and the like, and even if it rings like a bell, which has some pleasantness like the bells on a Sefer Torah and on the parokhet or the bells on a door as I have written—since the intent is not for the sake of pleasantness but merely to produce a sound, this is not a matter to forbid on account of a musical instrument. And so too those who play with nuts, where one nut strikes the second nut, even though it produces a sound, it is nothing (Gemara), and only on the ground is it forbidden on account of leveling pits, as will be explained. Therefore, it is permitted to set up from Erev Shabbat a device that rings for the hours, which they call a "zeiger," which they arrange and prepare while it is still day by means of a weight so that it will ring every hour throughout the day of Shabbat, for this is not the sound of a musical instrument, as the intent is not for the sake of pleasantness but rather to know and hear what hour it is now. Therefore, even though it rings pleasantly, it is permitted, and it is all for the reason that has been explained: since the intent is not for song but merely to produce a sound. And there is one who wishes to forbid this for some reason, but it is not the primary view (see Taz, subsection 2); our teacher, the Beit Yosef, ruled accordingly in section 3, see there. And it is implied from this that to set up a musical instrument from Erev Shabbat so that it will play by itself on Shabbat is also forbidden, and this stands to reason, for since the prohibition is lest one repair a musical instrument, if so, what does it matter to me if it plays by his hand or by itself? Ultimately, there is a concern that when he sees it is not playing well, he will repair it (and to set it up on Shabbat is forbidden on account of repairing a vessel).

And know that regarding what our teacher, the Beit Yosef, wrote, that to knock on the door when it is not in the manner of song is permitted, our teacher, the Rema, wrote, and this is his wording: "And so too, if one does not perform an action—it is permitted; therefore, those who call their friends and chirp with their mouths like a bird—it is permitted to do so on Shabbat." Thus far his words. And it is not understood at all what he is coming to teach us, for behold, singing with the mouth was not forbidden at all, only singing with an instrument or with his body by snapping fingers as has been written, and regarding this he says himself that if one does not perform an action it is permitted, meaning that he sings only with his mouth without the action of an instrument. And if so, what is he coming to teach us that it is permitted to chirp with his mouth like a bird, for behold, every type of song is permitted with his mouth.

And in the source of the law (Shiltei HaGibborim in the name of the Riaz at the end of Eruvin, see there) he wrote in this language: "Even though with that whistling they are also accustomed to produce pleasant song, here etc." Thus far his words. And it is explained that this is the novelty, that even in instrumental song they are accustomed to this whistling. And this too is not understood, for what of it? Ultimately, vocal song was never forbidden. And if his intention was not regarding instrumental song, but rather meaning that with this whistling one produces pleasant song, it is obvious that it is permitted, for behold, all vocal song is permitted. Therefore, it appears to me that the explanation is as follows: that with this whistling they are accustomed to place the finger into the mouth between the lips and the teeth, and through this the sound emerges like a bird. And this is the novelty, that even though with the hand it is forbidden, as the Rambam wrote that it is forbidden to strike with the finger etc., as I wrote in section 1, nevertheless—here it is permitted, since with his hand he does not perform an act of song and his singing is with his mouth, and the hand is only so that the whistling in the mouth will emerge well; therefore, it is permitted.

And know that according to what we have explained, perhaps one may find some merit for that which, due to our many sins, for decades a plague has spread among the chazzanim, who hold in their hands a small fork of silver or of wrought iron called a "tuning fork" while standing before the amud on Shabbatot and Yamim Tovim. It is made for the purpose of establishing the pitch of the musical voice; they take the fork between their teeth and a musical sound is heard by their ears, and through this they know how to arrange the melody. Behold, this is literally a musical instrument and is made for song. And it is not in our power to protest, as they say that without it it is impossible for them to sing, and due to our many sins the generation is breached and the masses support them. Not only is it not possible to protest, but even one who wishes to leave the beit din—the synagogue—because of this, a dispute is aroused, as is known. And perhaps because the sound of its music is not heard except from mouth to ear and it is only for a moment, and its purpose is for the sake of the song of the mouth which was never forbidden, it is possible that it is not included in the category of musical instruments that the sages forbade, just as we wrote regarding the whistling of the mouth when one places the hand into the mouth. And it is necessary to find merit, for Heaven forbid to say that the community of Israel would stumble in a prohibition of shevut, and all the more so while standing in prayer before the King of kings, the Holy One, Blessed be He. (And also regarding that which they say the words and double and triple them, and spread the "notes" before the amud so that they may sing according to the laws of music; and all who fear G-d are pained by this and it is not in their power to protest, for the masses are unrestrained and do not listen in this matter to the words of the sages, saying that for them this is Oneg Shabbat and Oneg Yom Tov. And perhaps in truth there is no prohibition in this, and he who is good before G-d will escape from this, but we have come to find merit for the holy seed who are blind of eyes. And perhaps since the sages, of blessed memory, said only regarding "Shema, Shema" that one silences him, one may infer from this that regarding other words we have no concern if they double or triple them. And also regarding the "notes" spread before the amud, we have no clear reason for prohibition to state regarding this, and therefore leave Israel alone, it is better that they be unintentional, etc.)

He further wrote: That it is forbidden on Shabbat to knock on the door with the ring fixed to the door, even though he does not intend for song; nevertheless, since the vessel is designated for this—it is forbidden. Therefore, it is forbidden for the shamash to knock on the door to call to the beit knesset by means of a vessel designated for this, but rather he knocks with his hand on the door. Thus far his words. Therefore, there are places where the shamash takes a different vessel to knock with it on Shabbat (Magen Avraham, subsection 3). And the reason for this prohibition was not well clarified, since it is not a musical instrument. And there is one who says that since the vessel is designated for this, we concern ourselves that perhaps he will intend for song (Beit Yosef), and it is not understood from where we have the authority to decree so; furthermore, it would be like a decree upon a decree. And it appears that the prohibition is because of a weekday activity. (The Taz, subsection 1, wrote that likewise it is forbidden to hang a strap upon which there are bells on the parokhet, see there, and I do not know the comparison, especially according to what I wrote, and delve into this.)

And there are some of the early authorities who permitted telling a non-Jew to play a musical instrument on Shabbat at weddings, for it is a shevut d'shevut, and in a case of the mitzvah of rejoicing with a groom and bride, the rabbis did not decree. Our teacher, the Rema, wrote in section 2: that even to tell a non-Jew to repair the musical instrument is permitted, for the sake of the honor of the groom and bride, but otherwise it is forbidden. However, in this time it is customary to be lenient, for the reason that will be explained in the siman after this regarding clapping and dancing. Thus far his words. And this is certainly puzzling, to permit telling a non-Jew regarding a Torah prohibition (Magen Avraham, subsection 4), and it is possible that he follows his own reasoning in siman 276 where he permitted telling a non-Jew to light a candle for him in honor of the Shabbat meal, and it has already been explained there that the halacha is not so. Furthermore, in our times we have not heard of this permission, even to tell a non-Jew to play an instrument on Shabbat in honor of a groom and bride, and in all countries it is customary to practice prohibition in this, and all the more so to tell him to repair a musical instrument. And if the non-Jew comes on his own to play an instrument, one does not need to protest against him (ibid.), but not to tell him to play. And even on Erev Shabbat one should not tell him to come on Shabbat to play an instrument, and such is the simple custom and it must not be changed. (And what he wrote regarding the reason that will be explained in siman 339, which is because we are not experts in the repair of musical instruments, see there, this is regarding clapping and dancing but not actual playing, and Heaven forbid to permit this.)

One who guards his fruits and his seeds from a wild animal or a bird—he may not clap palm against palm in order to drive them away, and likewise he may not slap his palms against his thigh, and likewise he may not dance in order to frighten them and drive them away. And even though the decree of slapping and clapping that will be explained in the next siman does not apply here—for they only decreed lest one repair a musical instrument, which only applies to slapping and clapping of joy and song and not in this manner—nevertheless, even this is forbidden, as a decree lest when he sees that he cannot drive them away in this manner, he will take a pebble and throw it at them from the reshut hayachid to the reshut harabim in order to drive them away (Rashi, Eruvin 104a). Therefore, it is possible that for us, who do not have a reshut harabim, it is possible that it is permitted to slap and clap, for even if he throws a pebble, he will not come to a Torah prohibition (Magen Avraham, subsection 6).

One may not play with nuts on the ground, nor with apples, as a decree lest they come to level depressions, and one would be liable on account of "building" in a house or on account of "plowing" in a field. It is forbidden to play with all types of fruits for this reason, but on a table or in a house that has a floor—it is permitted, for in this case leveling depressions is not applicable, and they did not decree on account of playing on the ground, just as there are those who hold so regarding sweeping the house in the previous siman, see there; for playing is not a permanent matter such that they would decree one because of the other (and the difficulty of the Magen Avraham, subsection 7, is answered). And so too it is permitted to play with bones that are called "tshikh" and in our language "meiliskehs," and even though they produce a sound at the time of play when they knock one against the other, nevertheless, since it is not the sound of a musical instrument—it is permitted, as has been explained.

And know that for types of games there is no permission except when they play for mere amusement, but in a game in order to profit – it is forbidden, for this is like buying and selling. And even those who play "even and odd" which they call "um-grad" – it is forbidden for this reason, and similarly those who play with nuts to profit – it is forbidden. And regarding what women and children play, our teacher, the Rema, wrote in section 5: that one should not protest against them, for it is better that they be unintentional [sinners] and not be intentional [sinners]. Thus far his words. Meaning, that they certainly will not listen, and regarding a rabbinic prohibition we say "it is better," as is found in Beitzah at the beginning of the fourth chapter; see there. And perhaps according to the current custom where they do not obligate themselves in this game with anything except with what they are playing, such as one whose nut strikes the nut of his fellow wins the nut of his fellow, and if it does not strike his fellow wins his, and similarly in the game of "even and odd," where he takes several nuts in his hand and closes the hand and asks his fellow "even or odd," and he answers "even" or answers "odd," and he opens his hand and they count: if it is according to what the second said, the second wins them, and if the opposite, the second must give him as many nuts as were in his hand, and there is in this game only mere asmachta and not like the way of buying and selling, and according to the one who holds that asmachta does not effect acquisition – he is not obligated to pay. Therefore, what he pays is nothing but a mere gift, and there is not in this the decree of buying and selling (so it appears to my humble opinion to find merit), and playing with a ball was explained in siman 308.

We learned in a mishna at the end of Eruvin: One may fill water from the Exile Cistern and from the Great Well with a wheel on Shabbat in the Mikdash, but not in the province, as a decree lest one fill for his garden or his ruin; for since one fills with it without exertion, he may come to water his garden or his ruin with it on Shabbat (Rashi), or he may fill from it for a flax-soaking pool. And it is explicitly stated in the Gemara there that if there were neither a garden, nor a ruin, nor a pool for soaking flax there—it is permitted, and they did not decree on account of other places, because this is a remote decree and it is sufficient to decree in its own place. And there are some of our teachers who explained that this does not deal with an ordinary wheel, for in such a case it is not relevant to decree, and they only prohibited a large wheel that brings out much water at once without exertion, and this is a large wheel in which many buckets are fixed around it and are filled together and poured out together. But our wheel, with which one does not fill so much—it is permitted, for there is nothing to fear, and such is the primary ruling according to this opinion (Eliyah Rabbah).

One who has produce on top of a roof and sees rain coming—it is forbidden to lower them on Shabbat into the house through a hatchway in the roof. And thus the sages taught (beginning of the fifth chapter of Beitzah) in the Mishnah: One may lower produce through a hatchway on Yom Tov, but not on Shabbat, because it is a great exertion that is not for the needs of Shabbat. However, it is permitted to cover them with mats and the like, and even though there is also a bit of exertion in this, they permitted it because of the loss. And it is not only produce that is fit for eating, but even bricks which are muktzeh and he fears that the rains will dissolve them—it is permitted to cover them because of the loss. And there is one who forbids even covering them and even produce, because any type of exertion is forbidden when not for the needs of Shabbat (Magen Avraham subsection 11 in the name of Yam Shel Shlomo), but we have only the ruling of our teacher, the Beit Yosef, in section 7 who permits it even with bricks. However, to place a vessel under a leak—it is permitted according to all opinions, and when it is filled, he pours it out and returns it to its place. And this is specifically when the leak is fit for washing at the very least, and it is permitted to move the vessel with the leak. But if it is not fit for washing, such as if they are murky waters—it is forbidden to place the vessel under such a leak, for he nullifies the vessel from its prepared state, since it will be forbidden to move. And even though when the vessel is filled and becomes repulsive to him it is permitted to pour it out according to the law of a "vessel of excrement," nevertheless, is it not itself forbidden to create a "vessel of excrement" ab initio? And if so, he will perforce agree not to move it, and there is here a nullification of a vessel from its prepared state. However, if he transgressed and placed a vessel under such a leak that is not fit for washing and it is a place where he sits—it becomes like a "vessel of excrement" and it is permitted to remove it, but he shall not return to stand it under this leak. And this is when there is no great damage from what leaks from the ceiling, but in a case of great damage it has already been explained in siman 308 that one may create a "vessel of excrement" ab initio in order to be saved from great damage (and see the Tur who permits it ab initio, and see the Beit Yosef and Bach and Taz, and according to what I wrote it can be said that they do not disagree on the law, and delve into this).