|
Parshas Pekudei: Accepting a Gift on Shabbos No definitive Halacha LeMa'aseh conclusions should be applied to practical situations based on any of these Shiurim. The Torah tells us that on Rosh Chodesh Nissan, the year after Yetzias Mitzrayim, the Mishkan was erected and put into regular operation for the first time (Shemos Perek 40). Among the different items put up were of course the Kerashim, the boards which served as the walls for the inner part of the Mishkan (Ibid. Pasuk 18). The Yerushalmi in Shabbos (Perek 12 Halachah 3, 69b) states that it was important to keep track of exactly which boards were positioned where, because a board which was originally placed in the north would always, when the Mishkan would be reassembled in another place after having been dismantled, have to be placed in the north, a board originally standing in the south would always have to stand in the south, and so on. Each board would always have to stand next to the same "partner." In order to accomplish this, it was necessary to write some kind of mark on each of the Kerashim, as the Mishnah in Shabbos (103a) tells us. The Mishnah (Ibid.) also explains that this is the reason that writing is forbidden on Shabbos, since whatever activities were needed for constructing the Mishkan are forbidden on Shabbos (See Gemarah Shabbos 49b and 96b). The Gemara in Beitzah (37b) speaks of a Rabbinic decree prohibiting Mekach U'Memker, meaning any kind of business transaction, on Shabbos. Rashi there (s.v. Meshum Mekach U'Memker) gives one interpretation that such transactions are forbidden because they may cause one to inadvertently write a bill of sale or something of the like. The Gemara in Shabbos (148a) likewise forbids even certain kinds of lending and borrowing because they also may lead one to write. The Rambam therefore states clearly (Hilchos Shabbos 23:12) that buying and selling and borrowing and lending are prohibited MideRabbanan on Shabbos because they may lead to writing. The Shulchan Aruch (Orach Chaim 306:3) also assumes that there is a prohibition to engage in business transactions on Shabbos. What about giving and receiving a gift on Shabbos? Is this too prohibited because it is similar to Mekach U'Memker in that there is a Kinyan, a transference of ownership, involved? Can one take and keep as one's own an item which one first acquires as a gift on Shabbos, or would this too be a violation similar to engaging in a business transaction on Shabbos? The Gemara in Sukkah (41b) permits a person who doesn't have a Lulav and Esrog on the first day of Sukkos to accept them as a gift from a friend and return them after fulfilling the Mitzvah. The Shulchan Aruch (Orach Chaim 658:3-4) rules accordingly. The Gemara in Beitzah (17a) likewise seems to allow one person to give flour to another on Yom Tov even though a Kinyan is being made. Rashi (Ibid. s.v. L'Oknuyai Kemcho) states expressly that the flour in this case is given as a gift. The Ran there (9b in the Rif s.v. Ibaya L'hu) implies that giving the flour is indeed allowed when it is given as a gift, but only if it is transferred to the recipient directly, as opposed to doing it by means of a Kinyan Sudar, a kind of transaction where the buyer gives the seller a handkerchief (or any article of minimal value) to symbolize the transference of the object. The Shulchan Aruch (Ibid. 527:20) allows giving the flour as a gift, but the Mishnah Berurah (Ibid. Sif Katan 60) stipulates that it cannot be given via a Kinyan Sudar. This type of Kinyan is often employed in normal business transactions; giving a gift this way is apparently too similar to standard Mekach U'Memker to be allowed on Shabbos or Yom Tov. But giving someone the object directly would be allowed. The Kesav Sofer, however (Sheilos U'Teshuvos Kesav Sofer Chelek Orach Chaim Siman 59), learns that the prohibition to give a gift on Shabbos (or Yom Tov) is applicable regardless of the manner in which the Kinyan is made. The Rambam too (Hilchos Mechirah 30:7) seems to unconditionally equate giving a gift on Shabbos to selling on Shabbos, stating that one is punished in either case, although the actual transaction stands as done. He also adds that the prohibition is the same for the giver as for the recipient. The Mishnah Berurah (Orach Chaim Siman 306 Sif Katan 33) states without making any distinctions that it is forbidden to give a gift on Shabbos because it is similar to Mekach U'Memker since there is a transference of ownership. The question is how these authorities can reconcile their views with the rulings cited above which indicate that giving a gift is permissible. The Beis Yosef, commenting on the Tur (Orach Chaim End of Siman 527 s.v. U'Kisheim), quotes the opinion cited by the Mordechai in Beitzah (Siman 676, 23b in the Rif), that it is forbidden to give a gift on Shabbos or Yom Tov (seemingly regardless of how it's given) because it looks like Mekach U'Memker. However, if the gift is needed L'Tzorech Mitzvah, for the purpose of a Mitzvah, it may be given. This explains the aforementioned rulings allowing gifts on Shabbos and Yom Tov because in those cases, the items received as gifts were needed to enable the recipient to perform a Mitzvah. The question is how broadly to define this "Tzorech Mitzvah". It is obvious from the above that the term includes a Mitzvah that must be done on that particular Shabbos or Yom Tov, or contribute to the observance of that particular Shabbos or Yom Tov; for fulfilling such a Mitzvah, a gift may be given. The Magen Avraham (Orach Chaim Siman 306 Sif Katan 15), however, while citing the Beis Yosef (Ibid.) and the Mordechai (Ibid.), and ruling that a gift may be given if it's necessary for Shabbos, questions the practice people had to give gifts to a Chosson who speaks on Shabbos. He apparently accepts a more limited definition of this Tzorech Mitzvah, as does the Shulchan Aruch HaRav (Ibid. Sif 15). Nonetheless, many other Poskim argue that Tzorech Mitzvah is more general. Rav Ovadyah Yosef (Sheilos U'Teshuvos Yechaveh Da'as Chelek 3 Siman 21) quotes authorities who say that giving joy to a Chosson and Kavod to Torah is itself a Tzorech Mitzvah, and he rules himself that one may give Seforim to a Bar Mitzvah boy on Shabbos, especially if he delivers a Dvar Torah, in order to encourage Torah learning, because this too is a Tzorech Mitzvah. The Mishnah Berurah cited above (Ibid.) also allows giving a gift on Shabbos if it is needed for that day or is a Tzorech Mitzvah, implying a broader definition of the latter. It therefore seems permissible to acquire something as a gift on Shabbos which will be used for a Mitzvah, such as Talmud Torah, especially if it is used on Shabbos. However Rav Yosef (Ibid.) as well as the Shemiras Shabbos KeHilchasah (Perek 29 Sif 29) quote Poskim who suggest that it is nevertheless preferable that the recipient somehow acquire the item before Shabbos, or that he should have in mind when he takes it on Shabbos that he will not Halachically acquire it as a gift until after Shabbos.
If you have any questions or comments, please click here
|