Siman 515

We maintain in the Gemara (24b): Rava Papa said: The halacha is that a non-Jew who brought a gift to an Israelite on Yom Tov, if there is of that same species attached to the ground – it is forbidden, and in the evening they are forbidden for the time it takes to perform the labor. Rashi explained that they are forbidden due to muktzeh. And even Rabbi Shimon, who does not hold of muktzeh – it is forbidden, for what is attached is like dried figs and raisins. And do not differentiate regarding what is attached, whether it belongs to him or to a non-Jew. Thus far his words. That is to say: even though regarding the matter of "preparedness" there is a distinction between an Israelite and a non-Jew, for that which belongs to a non-Jew does not require preparation as I wrote in siman 497 – this applies to other forms of preparation such as animals and the like, which are under his hand. But what is attached or the trapping of fish – these are absolute muktzeh, and in the evening they are forbidden for the time it takes to perform the labor. This means: on the evening following the first day, for on the second day it is permitted regardless, since one of them is a weekday. And the reason for "the time it takes to perform the labor" – is so that he does not benefit from labor performed on Yom Tov. And such is the system of the Rambam in the second chapter, law 10, who wrote: A non-Jew who brought a gift to an Israelite on Yom Tov, if there is of that same species attached to the ground, or if he brought a beast or birds or fish that it is possible to trap on that same day – behold, these are forbidden in the evening for the time it takes to perform the labor. Thus far his words. And this, that what belongs to a non-Jew does not require preparation – this applies to what is under his hand but he merely did not prepare them, but not to what was trapped, whether fish, or a beast and birds.

But our teachers, the authors of the Tosafot, wrote that they are forbidden even on the second day, until the evening for the amount of time it takes to be performed. For the reason of "the amount of time it takes to be performed" is not because "so that he should not benefit from the labor of Yom Tov," but rather "so that he should not tell the non-Jew to bring him from that which is attached to the ground or from that which was hunted." And consequently, if we permit it to him on the second day – he would still come to tell him so that he may eat them on the second day. Therefore, they forbade them until the conclusion of the second day of Yom Tov for the amount of time it takes to be performed.

And ostensibly there is a practical difference between the reasons: for according to the reason of Rashi, so that he should not benefit from the labor of Yom Tov—the law is equal for the one for whom it was brought and for another. This is not the case according to the reason of the Tosafot, so that he should not tell him to bring for him from that which is attached—this is only relevant to this Jew, and not to another, for a person does not sin for the sake of another, that he would tell him to bring for the sake of another. And so wrote the Rosh there, that therefore this is permitted to another Jew on the conclusion of the first day of Yom Tov immediately, and its prohibition is only on the first day due to muktzeh. It emerges that regarding another person it is more lenient according to this interpretation than according to the interpretation of Rashi, for according to Rashi it requires "the time it takes to perform the labor," and according to the Tosafot it does not require it. However, the opinion of the Semak is that even according to the Tosafot it is forbidden to every Jew until the conclusion of the second day of Yom Tov for "the time it takes to perform the labor," for the sages did not distinguish in a matter where a complete labor was performed between this Jew and another Jew, for since this prohibition is light in the eyes of the public—they made an extra distancing, since it was brought for the sake of a Jew (Bach), and a Torah labor was performed for his sake.

And this is what our teacher, the Rema, wrote in section 1 regarding the words of our teacher, the Beit Yosef, which are like the words of Rashi and the Rambam, that the prohibition is only on the first day and at night for the time it takes to be made; he wrote, and this is his wording: And there are those who are stringent to prohibit it until the conclusion of the second day of Yom Tov, and we are accustomed to be stringent if it is not for the need of Yom Tov, for the need of guests, or in a similar case, for then we are accustomed to be lenient for others for whom it was not brought. Thus far his words. And this is the explanation: That certainly, ab initio, one should be stringent even for another until the conclusion of the second day of Yom Tov, but for the need of Yom Tov, such as when the other has nothing with which to delight in the second day of Yom Tov—they may rely on the opinion of the Rosh that for another it is permitted on the second day of Yom Tov. And not only that, but even if he himself invited guests, for guests are considered like himself, like all the members of his household, as will be explained regarding outside the techum—for then we add a leniency to consider the guests as others, and it is permitted to cook for them. For even though they are not like others—one may rely in this on the system of Rashi and the Rambam. And he may also eat with them, for it is not the way of the world that they should eat and he should not eat. And the reason: for most of the poskim hold like Rashi and the Rambam. However, we are stringent like Tosafot and the Semak ab initio, and in a case of need we rely on the Rosh, that for others it is permitted even according to Tosafot. And in a case of pressing need we consider guests as others, and he also eats with them based on the system of Rashi and the Rambam. And also regarding the prohibition of muktzah on the second day, they may rely and move it, and it is enough to prohibit it in eating. (Thus emerges from the Taz, subsection 2. And also the Magen Avraham, subsection 6, who is as if in doubt regarding the explanation of the Rema, nevertheless it appears that his conclusion is so. And therefore the Rema was very precise in his wording. Examine it and you will find it easy.)

And ostensibly, even regarding the measure of "the time it takes to do them" – there is a practical difference between the reasons. For according to the explanation of Rashi, in order that he should not benefit from the labor of Yom Tov – the measure of the plucking and the trapping alone is sufficient, for that is the essence of the labor. But not the measure of time it takes to bring it here. And so wrote the Tur, and this is his wording: And the explanation of "the time it takes to do them" – is the time of the plucking and the trapping alone. And he does not need to wait the time it takes to bring them here. Thus far his words. But according to the reason of the Tosafot, that he should not tell him to bring it – the time it takes to bring it here is also required. However, some say not as the Tur, for even according to the reason of Rashi, the time it takes to bring it is required. And this is the opinion of our teacher, the Beit Yosef, who wrote at the end of section 1, and this is his wording: And the measure of "the time it takes to do them," meaning the time it takes for the non-Jew to go to the place where he gathered, and finish the labor, and return here. And if he is in doubt from where he brought them – their measure is the time it takes to come from outside the techum. Thus far his words, and he, after all, ruled like Rashi and the Rambam. And the Rashba and the Ran wrote the reason for the matter, that even according to the explanation of Rashi it is so, for it is proven so in tractate Machshirin (chapter two) that in every "the time it takes to do them," we do not measure according to the essence of the performance of the prohibition, which is done in a single moment, but rather according to the entirety of the performance, meaning the performance and the walking. And if he came riding or traveling in a wagon – we measure according to this measure, for if not so – there is no "the time it takes to do them" at all, as the essence of the prohibition is done in a single moment.

Anything that is forbidden to eat, even if one transgressed and placed it in his mouth and chewed it—it is forbidden to swallow. And anything that is forbidden to eat—it is forbidden to move it, for since it is not fit for eating—it automatically becomes muktzeh, since it is not fit for anything, for this is the essence of muktzeh. And it follows that according to the opinion of the Tosafot, that they are forbidden even on the second day, that they are forbidden to be moved even on the second day (Magen Avraham, subsection 2). And do not find difficult what we wrote at the end of section 4 that it is permitted to be moved, for in truth that is not according to the opinion of the Tosafot. Rather, we said that regarding moving—we may rely on the opinion of Rashi and the Rambam, since in a time of pressing need we permit it, as I wrote there. And it is possible even according to the opinion of the Tosafot, since according to the Rosh it is permitted to others—it follows that it is not forbidden to be moved.

And if they brought it on the second day—one must wait until the evening for the time it takes to prepare. And on the two festival days of Rosh Hashanah, as well as on Shabbat and a festival that are adjacent to one another—according to all opinions it is forbidden until the conclusion of the second day at night for the time it takes to prepare. For the two festival days of Rosh Hashanah—it is one sanctity. And Shabbat and a festival, even though they are two sanctities, nevertheless, if it were forbidden on the first and permitted on the second—he would be preparing from Shabbat for a festival or from a festival for Shabbat. And this is a rabbinic preparation, similar to the preparation in siman 513 regarding an egg that was laid on Shabbat—it is forbidden on a festival; for there the matter of this preparation was explained. And there is one who holds that fruit that is detached is a Torah preparation, and it is not similar to an egg (Magen Avraham, subsection 8, in the name of Yam Shel Shlomo). However, in any event, it is certainly a rabbinic preparation.

And this is when he plucked them or trapped them for the sake of the Israelite. But if he plucked them or trapped them for his own sake, and afterward decided to give them to the Israelite, or if they were plucked on their own—according to all opinions the prohibition is only on that day due to muktzeh, and in the evening it is permitted immediately. For "the time it takes to be made" is not applicable here, since it was not done for the sake of an Israelite. And only on the two days of Rosh Hashanah is it prohibited on both days, for it is as one day. And so too on Shabbat and Yom Tov due to rabbinic preparation, as I have written. And it is permitted even to the one for whom it was brought if it was brought from within the techum, for from outside the techum—it is prohibited to the one for whom it was brought, as will be explained with the help of Heaven in section 12.

Even if it is a doubt whether they were plucked or trapped today – they are forbidden. And similarly, if it is a doubt whether he plucked them or trapped them for the sake of the Israelite. And they are forbidden even on the second day of Yom Tov according to the opinion of the Tosafot. And the reason they were stringent in all this: because it is a "thing that has permitters" (Taz, subsection 13). And there is one who is lenient in a doubt whether he did this for the sake of the Israelite (Bach), and they disagreed with him (Magen Avraham, subsection 11, and Taz, subsection 4). However, if it is recognizable that they were not trapped today, and that they were not gathered today, even if the recognition is not so clear – it is permitted. And similarly, if they arrived at the beginning of the night, for it is closer to say that they were trapped or plucked while it was still day. And if they were not brought from outside the techum – it is permitted even for the one for whom they were brought. And if the non-Jew speaks in passing that they were not gathered today, and were not trapped today – he is believed. And even on a Yom Tov following Shabbat he is believed regarding a rabbinic prohibition. And even according to the one who holds that even regarding a rabbinic prohibition he is not believed, nevertheless, in a doubt of a rabbinic prohibition he is certainly believed. And also, he does not improve his sale by this. And we do not descend in this law to whether he knows the law that it is forbidden to an Israelite or not, as in Beitzah in siman 513, for in a doubt of muktzah one should be lenient. (See Magen Avraham, subsection 13, and Taz, subsection 5. And in my humble opinion, it appears as I have written.) And there is one who is concerned in such a case where he knows that it is forbidden to an Israelite (Taz, ibid.).

And all the matters that were explained apply when the non-Jew acted on his own, whether for the sake of the Jew or for his own sake. But if the Jew appointed the non-Jew before the festival to bring him fish and fruit on the eve of the Yom Tov, and fixed a wage for him for this, and he brought them on Yom Tov – this is certainly permitted according to all opinions on the evening immediately following the two festival days of the diaspora. The prohibition is only due to muktzeh, but "the time it takes to be made" is not applicable. And so too on the second day of Yom Tov according to the Tosafot, for this is exactly like a non-Jew who acted for his own sake, as he acts with his own interest in mind in order to receive his wage. And if he brought them from outside the techum, and they were caught or gathered on the eve of Yom Tov – it is permitted even on Yom Tov itself, for the rule that what comes from outside the techum is forbidden to the one for whom it was brought applies when he acted for the sake of the Jew. But when he acts for his wage with his own interest in mind – we have no concern with it. For behold, where a wage was fixed it is permitted even on Shabbat, and even regarding a complete melakhah, as I wrote in siman 252 (Magen Avraham, subsection 3). And it is not similar to a lamp that he lit for a Jew on Shabbat, which is forbidden even if a wage was fixed as I wrote in siman 276 – this is because he explicitly lit it so that the Jew would use it immediately, for after some time it is not fit for use. This is not the case with an item of food – it is like a garment that he made, which is permitted when a wage is fixed because he did not designate it specifically for Shabbat, as it is fit also after Shabbat. And here too: the food is fit for the night and for after Yom Tov (ibid.).

And know that this which has been explained, that on Yom Tov and Shabbat they are forbidden even according to the opinion of Rashi and the Rambam when he brought a gift to an Israelite from things whose species includes those attached to the ground or the prohibition of trapping—if so, it follows that when Rosh Hashanah falls on Thursday and Friday, and they brought it on Thursday, it is forbidden until after Shabbat, for the two days of Rosh Hashanah are as one day. And it follows that on Shabbat it is forbidden because it is adjacent to the second day of Rosh Hashanah, and if you permit it, it turns out that Yom Tov prepared for Shabbat, as I have written. And this is a rabbinic preparation. Nevertheless, there are those who permit eating them on Shabbat, for we do not say "preparation" from two days. And according to the method of the Tosafot, even regarding the two festival days of the Diaspora, this is a dispute, as is understood. Our teacher, the Rema, in section 4, decided that regarding the two days of Rosh Hashanah one should be stringent, and regarding the two festival days of the Diaspora one may be lenient on the Shabbat following them. And specifically regarding fruits that do not require preparation from Yom Tov for Shabbat; but something that requires preparation from the second day of Yom Tov for Shabbat, such as fish and meat that one must cook, since on Shabbat he cannot cook—it is forbidden since we are accustomed to forbid on the second day of Yom Tov. If so, they are forbidden even in handling, and how shall he cook them for Shabbat if not for the need of guests, as I wrote in section 4. However, according to what we wrote there at the end of the section and in section 6, that regarding the matter of handling we can rely on Rashi and the Rambam, and all the more so according to the method of the Rosh there that even according to the Tosafot it is permitted to others on the second day of Yom Tov, and if so there is no muktzeh here—it is permitted even with meat and fish. And all the more so it is permitted to cook them through the handling of a non-Jew, and the Israelite shall oversee their cooking (Taz, subsection 8, and see Magen Avraham, subsection 17). And particularly for the honor of Shabbat, one can simply rely on the Rosh and on the method of Rashi and the Rambam, and cook them himself for Shabbat.

All these matters that have been explained apply to things involving a Torah labor, such as plucking or trapping. However, regarding things where there is no such concern, or for instance where they were certainly plucked or trapped from the eve of the festival but were brought from outside the techum; for if they came from within the techum, it is obvious that it is permitted to everyone, even to the one for whom it was brought, as there is no prohibition here; but if they came from outside the techum, our sages, of blessed memory, said (ibid.) that if he did not bring them for the sake of an Israelite, it is permitted immediately, and if they were brought for an Israelite, it is forbidden to that Israelite on that day, and it is forbidden to all the members of his household, and also to guests who are supported at his table. And there is one who permits it to guests (Beit Yosef in the name of Terumat HaDeshen). But for others they are permitted immediately, for since no Torah prohibition was performed for his sake—it is sufficient if it is forbidden to himself and not to others. And similarly, if the reason they forbade it to him is so that he will not tell him to bring for his sake—this also has no relevance to others, and even if it was brought from beyond twelve mil, which according to the Rif and the Rambam is a Torah prohibition—nevertheless, one should not forbid it to others (Magen Avraham, subsection 18). And it seems to me that his son and daughter who are not supported at his table are considered like others, and also for himself it is permitted in the evening immediately, and he does not need to wait for the time it takes to perform the action. And this is the opinion of Ri, author of the Tosafot, and the Rosh. But the Rif and the Terumah ruled that he must wait for the time it takes to perform the action, and so ruled our teacher, the Beit Yosef, in section 5. And he did not cite the opinion of those who permit at all, because the SeMag, the Rashba, and the Ran also ruled thus, and if so, one should instruct accordingly. And the measure of "the time it takes to perform the action" is according to the duration of their bringing, whether he walked on foot, or rode, or traveled in a wagon. And afterwards it is permitted, and even according to the opinion of the Tosafot who were stringent until the second day in the evening, regarding outside the techum they agree. (See Mishkenot Yaakov, siman 125, and it can be resolved.)

And not only that, but even regarding the two days of Rosh Hashanah, and on Shabbat and Yom Tov adjacent to one another – they also were lenient regarding outside the techum, as our teacher, the Beit Yosef, wrote in section 8, and this is his wording: An item whose species is not attached to the ground, which was brought for an Israelite on the first day of Rosh Hashanah – it is permitted on the second, and the same law applies to Shabbat and Yom Tov adjacent to one another. Thus far his words, for regarding techumim they were lenient, since in this case where there is neither a prohibition of preparation nor a prohibition of a matter dependent on sanctity – it is not relevant to say "one sanctity" and "preparation," as this is nothing more than a type of mere penalty, and it is sufficient to prohibit it on the first day. And such is the halacha, even though there is one who says that according to the approach of the Tosafot it is not so – we are not concerned for this (see Magen Avraham subsection 25, who brought the words of the Yam Shel Shlomo and rejected them with good reason, see there). But in a case of doubt whether they came from outside the techum or not – our teacher, the Beit Yosef, was stringent in section 7, and this is his wording: If it is a doubt whether they came from outside the techum, if the non-Jew dwells with him in the city and the fruits are common in the city – it is permitted. And if not – it is prohibited. Thus far his words. And the reason he was stringent is because it is a "matter that has permitters." And there are those who disagree with him and permit it, and in any case on the second day of Yom Tov when he brought it – one should be lenient in a doubt of outside the techum (ibid. subsection 24).

According to this, non-Jews who brought fish or another food item to the city on Yom Tov, and we knew that they were caught on the eve of Yom Tov but they came from outside the techum, if the majority of the city are non-Jews—they are permitted, for presumably they brought them with the majority in mind. And if the majority are Israel—it is forbidden. And even half and half—it is forbidden. And all the more so if it is known that they were brought for the sake of an Israelite, and likewise if there is a concern that they will increase bringing for the sake of Israelites—it is forbidden. And this is when we see that they increase bringing, but in an ordinary case we do not concern ourselves with this. And this depends on the assessment of the posek. (See Magen Avraham, subsection 22, who wrote that a non-Jew who dwells in a village and brought fish to a city where the majority are Israel, and there is a doubt whether he also caught them for the sake of an Israelite, or if he caught them for the general majority and afterward decided to bring them to the city—one should be lenient in this, see there).

Fish or other food items that arrived from outside the techum, it has already been explained in the laws of Shabbat that they have only four amot in a place where it is forbidden to carry. Therefore, if the city is joined by an eruv, or surrounded by a wall, or a fortress that is known to have been surrounded for the purpose of a dwelling—it is permitted to carry them throughout the entire city. But if it is forbidden to carry in the city on Shabbat—they shall not carry them except within the house and the courtyard to which he brought them, and it is forbidden to carry them outside the courtyard. And in this matter there is no distinction between the one for whom it arrived and others, for everyone is forbidden in their carrying, according to the law of an object that went outside the techum. And it was explained in siman 405, see there.

Our teacher, the Beit Yosef, wrote in section 9: An Israelite who sent a gift to his fellow via a non-Jew on the eve of Yom Tov, and the non-Jew was delayed and brought them on Yom Tov from outside the techum – it is permitted even for the one for whom it was brought to eat them. However, it is forbidden for any Israelite to move them beyond four amot, or outside a city surrounded by a wall, or outside a fortress that is known to have been surrounded by a wall for habitation. Thus far his words, for in this case it is not relevant to forbid it to the one for whom it was brought, since the non-Jew is not bringing it from his own property, such that we would decree lest he say "bring for me." And it is permitted according to all opinions, and only if there are of their kind attached to the ground – there must be a sign that he did not exchange them, if there is reason to suspect this. And if he sent him to bring it, and he knows that he must bring it on Yom Tov – it is obvious that for himself it is forbidden, according to the law of an object that comes from outside the techum for an Israelite, for because he himself sent him should it be more lenient? On the contrary, in this case it is proper to penalize him more (see Magen Avraham subsection 26 and Taz subsection 15).

And our teacher, the Rema, wrote regarding this: And specifically if his intent was from yesterday, such that there is no prohibition of muktzeh. But if his intent was not from yesterday, even though there is no prohibition of techumin, there is a prohibition of muktzeh. For anything belonging to an Israelite requires preparation while it is still day. And even for one for whom it was not brought – it is forbidden. Thus far his words. And his intention is: that since the fruits belonged to an Israelite, and they were outside the techum – they are like muktzeh, and they require preparation while it is still day. And they are worse than the fruits of a non-Jew, which do not require preparation as I wrote in siman 497. Therefore, he required that his intent be upon them from the eve of Yom Tov, and if not – they are forbidden as muktzeh, and they are forbidden to all of Israel. And the commentators of the Shulchan Aruch (Magen Avraham subsection 27 and Taz at the end of siman 518) disagree with him, and they hold that this is not muktzeh. And only regarding animals that graze and do not enter the city for a long time does muktzeh apply, and not regarding fruits. However, on the second day of Yom Tov, it appears that certainly there is room to permit it.