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Davar She’eino Mishkavein 8 – Psik Reisha 6: Pesik Reisha D’lo Nicha Lei 3 – Shear Issurim (Klal 9 Siman 6) Hilchos Shabbos – S0276

Siman 6 sponsored by Benji Kleidman, l’ilui nishmas his parents, Chaim Meir ben Mordechai Halevi, and Golda bas Yaakov Leib, zichronam livracha
D'var Halacha
D'var Halacha
Davar She’eino Mishkavein 8 - Psik Reisha 6: Pesik Reisha D’lo Nicha Lei 3 - Shear Issurim (Klal 9 Siman 6) Hilchos Shabbos - S0276
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  We are continuing in siman 6, discussing the concept of psik reisha d’lo nicha lei. We learned that our accepted psak is that a psik reisha d’lo nicha lei is assur, and that we do not follow the Aruch.    The Chayei Adam continues, and writes that when it comes to psik reisha by other aveiros, there is a question regarding how far we take our disagreement with the Aruch. Do we hold that psik reisha will be chayav mideoraysa in all cases (including Shabbos), or is it only by Shabbos that we hold psik reisha is assur miderabanan, and other aveiros may be different? The Rosh suggests that when it comes to Shabbos, we have a requirement of meleches machsheves (shiur S260). We learned that one of the components of meleches machsheves is that the action is performed with kavanah. Although psik reisha is the halachic equivalent of kavanah, the reality is that one does not have kavanah, so it could still be argued there is a lack of meleches machsheves. If so, psik reisha d’lo nicha lei will only be chayav miderabanan when it comes to hilchos Shabbos. On the other hand, when it comes to other issurim, we do not have the qualification of meleches machsheves, so even a psik reisha d’lo nicha lei will be chayav mideoraysa. In other words, once we disagree with the premise of the Aruch (that lo nicha lei reverts an action back to being a davar she’eino miskavein) psik reisha will be chayav mideoraysa in any other case, other than when it comes to Shabbos where we have the unique qualification of meleches machsheves.    If so, it comes out that when it comes to Shabbos, psik reisha d’nicha lei is assur mideoraysa, and d’lo nicha lei is assur miderabanan. When it comes to other issurim, psik reisha d’lo nicha lei will also be assur mideoraysa, since it is no different than psik reisha d’nicha lei.   When it comes to Shabbos, a psik reisha d’nicha lei is chayav mideoraysa, even though it would seem to be lacking in meleches machsheves, because the person would like to benefit from it, so it receives a chumrah of a mideoraysa. Psik reisha d’lo nicha lei is only assur miderabanan since it is lacking in meleches machsheves and the person does not care to benefit from the action.   Summary
  • Davar she’eino miskavein is the general Torah concept of performing one action with an unintended aveirah which may occur in addition. We pasken in accordance with Rav Shimon, that it is muttar 
  • However, if it is inevitable that the unintended aveirah will occur, it is called a psik reisha that the unintended action will occur, and one becomes chayav mideoraysa for causing that unintended assur action to occur.
  • If it is karov l’psik reisha, many consider it a psik reisha; however, Rabbi Reingold’s mesorah is not to treat it as psik reisha but rather as a davar she’eino miskavein.
  • A safeik l’she’avar is treated like a psik reisha when the safeik is a safeik deoraysa. When the safeik is a safeik derabanan, some are meikil to treat it like a davar she’eino miskavein
  • If the psik reisha is lo nicha lei, we still pasken it is assur miderabanan, although the Aruch holds it becomes muttar. However, if the issur in question is only assur miderabanan, we are matir in cases of tzaar, mitzvah or other significant need.
  • In cases of psik reisha d’lo nicha lei on a double derabanan, the Mishnah Berurah is matir without any qualifications.
  • When it comes to other issurei torah, we hold that both psik reisha d’nicha lei and psik reisha d’lo nicha lei are assur mideoraysa.
  • By Shabbos, even though we disagree with the Aruch, psik reisha d’lo nicha lei is only assur miderabanan.

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