Chapter VI Returning from Missions of Mercy on the Sabbath פרק ד: חזרה מפעוולת הצלה בשבת
1 א

On account of what merit did Judah receive kingship? On account of the merit of having rescued [Reuben] from death.

2 ב

MEKHILTA, BESHALAH 14

3 ג

In recent years there has been a marked increase in the number of observant young men and women entering medicine as a profession. Committed, as they are, to rendering the best medical care of which they are capable and to meticulous observance of the commandments, at times they find themselves confronted with conflicts between professional and religious commitments and their personal needs. With increasing frequency rabbinic decisors are called upon by observant health care professionals to offer guidance in resolving problems of this nature. Providing for the proper care of patients in a manner consistent with Sabbath regulations as well as with the physician's physical and spiritual need for Sabbath repose is a source of particular concern.

4 ד

It is a fundamental and well-known principle of Jewish law that halakhic strictures regarding observance of Shabbat and Yom Tov may not interfere with the treatment of a dangerously ill patient. Thus there is no question whatsoever that a physician is required to attend a patient who becomes ill on Shabbat or Yom Tov even if his visit requires travel entailing acts which in other circumstances would be biblically proscribed. However, otherwise prohibited acts are permitted only for the benefit of the patient but not for the convenience of the doctor. Thus, once the treatment of the patient has been completed, further restricted activities cannot be sanctioned. A physician called to the hospital or to the patient's home on Shabbat, while quite prepared to fulfill his responsibilities toward his patient on the Shabbat, no less than on a weekday, is understandably distressed at the prospect of being deprived of Sabbath rest and enjoyment of the company of his family even after his professional services are no longer needed. Accordingly, doctors frequently inquire whether there exist grounds for permitting them to make the return journey in order to spend the balance of the day with their families in a Sabbath atmosphere.1Situations in which there is a reason to presume that the physician’s services or the ambulance will be required by another patient present an entirely different question. See R. Yisra’el Aryeh Zalmanowitz, No ‘am, IV (5721), 175-178; and R. Joshua Neuwirth, Shemirat Shabbat ke-Hilkhatah, I (Jerusalem, 5739) 40:69. See also ibid., 40:67 and 40:71. However, in an age of ubiquitous telephone and radio communications it is generally not necessary to return immediately in anticipation of such need. See R. Isaac Liebes, Halakhah u-Refu ‘ah, III (5743), 73, reprinted in his Teshuvot Bet Avi, IV, Oraḥ Ḥayyim, no. 16. Similar queries have been addressed to rabbinic authorities by various local chapters of Hatzolah, a network of volunteers who provide ambulance service and emergency medical assistance in the New York metropolitan area. Indeed, a number of published responsa addressing this topic were solicited because Hatzolah groups found it necessary to establish communal policy with regard to this issue. Useful surveys of rabbinic sources pertaining to this question have been authored by R. Menachem Waldman, Teḥumin, III (5742), 38-48, and R. Mordecai Halperin, Assia, IV (5743), 60-71. The practices of Hatzolah are also the subject of a responsum authored by R. Yom Tov Schwarz, Teshuvot Adnei Neḥoshet (New York, 5750), no. 72.

5 ה

I. Talmudic Sources

6 ו

There are, to be sure, talmudic sources indicating that at least some infractions of Jewish law are permitted in order to enable individuals engaged in life-saving missions to return to their homes on Shabbat. Ordinarily, on the Sabbath a person may stroll no more than 2,000 cubits beyond an inhabited area. Travel beyond that distance is forbidden even within another inhabited area. A significant exception is made for persons who have completed a mission of mercy. The Mishnah, Rosh ha-Shanah 23b, declares, "… even a midwife who comes to assist in birthing and one who comes to deliver from fire, from soldiers, from the river or from a ruin are as the inhabitants of the city and have [the privilege of walking] two thousand cubits in every direction." The identical rule is extended by the Mishnah, Eruvin 44b, to encompass a person who embarks upon a mission of mercy but whose services prove to be unnecessary: "One who has exited [beyond the ordinarily permitted area of two thousand cubits] and they said to him, 'The matter has already been completed,' has [the privilege of walking] two thousand cubits in every direction … for all who depart in order to deliver from danger [are permitted to] return to their place."

7 ז

The latter formulation, however, contains an inherent discrepancy. The Mishnah accords the rescuer a right of Sabbath travel identical to that enjoyed by the individuals whom he seeks to rescue, viz., the right to travel by foot within a radius of 2,000 cubits of the perimeter of the city in which he finds himself. The Mishnah then concludes with an explanatory phrase indicating that such individuals may return to their point of departure. The implication of the latter statement is that they may journey even more than 2,000 cubits if it is necessary for them to do so in order to return to their homes.2Tosafot Yom Tov, Eruvin 4:3, suggests that, according to R. Judah, the term “their place” in the phrase “[are permitted to] return to their place” should be understood as meaning the “place” permitted by the Sages, viz., a radius of 2,000 cubits. The Gemara offers two resolutions of this apparent contradiction, each of which is predicated upon the thesis that the Mishnah records two separate and distinct rules. R. Judah explains in the name of Rav that the individuals in question are granted the right to travel only a distance of 2,000 cubits. However, if their homes are within that distance, individuals who come to the defense of fellow Jews during periods of unrest are permitted to carry their weapons with them when returning to their homes. Thus the regulation formulated in the final clause of the Mishnah refers only to rescuers involved in warding off attackers but not to individuals whose mission does not require the use of arms. The Gemara reports that this dispensation was granted in the wake of a specific historical occurrence. Originally, upon completion of their mission, people who in the course of a mission of rescue were compelled to bear arms on the Sabbath were wont to leave their weapons in the house nearest the city wall. On one occasion, individuals returning from such a mission were recognized and pursued by the enemy. Finding themselves endangered, they entered the house in which the arms had been deposited in order to retrieve their weapons. The enemy pursued them into the house with the result that the rescuers "trampled one another and killed among themselves more than the enemy killed." At that time the Sages ordained that on future occasions of a like nature the rescuers should carry their weapons with them until reaching the safety of their homes. R. Nachman bar Yitzchak (according to the text and commentary of Rabbenu Chananel) maintains that the 2,000-cubit limit applies in most cases of life-saving activity, including rescue from an enemy, provided that the enemy has been totally routed. The rule permitting the would-be deliverers to return to their places of origin, declares R. Nachman bar Yitzchak, pertains only to situations in which the enemy has gained the upper hand and is designed to afford retreating rescuers a measure of protection from marauding soldiers. Thus, with the exception of bearing arms in a situation fraught with potential danger, the sole dispensation explicitly granted to those engaged in missions of mercy is the right to travel by foot within a radius of 2,000 cubits upon completion of their mission.

8 ח

II. Hittiru Sofan Mishum Teḥillatan

9 ט

However, Rashba, Beizah 11b, and Tosafot, Eruvin 44b and Rosh ha-Shanah 23b, add an additional point of elucidation that is absent in other sources and which has the effect of placing the matter in a somewhat different halakhic perspective. Both authorities adduce the halakhic principle "they permitted the end for the sake of the beginning (hittiru sofan mishum teḥillatan)." This formula reflects the fact that in order to encourage certain activities the Sages found it necessary to sanction subsequent actions as well even though those subsequent actions are ordinarily proscribed. Thus, the Gemara, Beizah 11b, records that it is permitted to spread the hides of an animal on the ground in order that they be softened by being trampled upon by passersby, to replace shutters upon portable market stalls and for a priest serving in the Temple to replace a bandage removed prior to his participation in the sacrificial ritual. Each of those actions is ordinarily forbidden on Shabbat and Yom Tov by virtue of rabbinic decree but is permitted in order to encourage the slaughter of fresh meat, to make food readily available for the holiday repasts and to induce the priests to perform their assigned duties. Justification for the suspension of those prohibitions is couched in the formula "[with regard to] three matters did they permit the end because of the beginning." Rashba, in his commentary on Beizah 11b and as cited by Shitah Mekubezet, ad locum, remarks that dispensation to move about within a 2,000-cubit radius of the city was similarly granted to persons engaged in life-saving activities in order to encourage them to embark upon missions of mercy. Absent such dispensation, they would have been restricted to an area of four cubits from wherever they might find themselves upon completion of their tasks. According to Rashba, an exception was made for persons engaged in the preservation of life because the prospect of being faced by inconvenience upon completion of their mission might result in a lack of resolve or in procrastination in embarking upon a life-saving endeavor. The author of Shitah Mekubezet, citing his teacher, apparently maintains that this dispensation does not constitute the suspension of a rabbinic prohibition as an inducement to engage in life-saving activity but represents an integral, equitable adjustment of rabbinic enactments governing Sabbath travel adopted in the guise of assigning to the rescuers the selfsame domicile as the rescued.

10 י

Nevertheless, even according to Rashba, there are no apparent grounds for permitting infractions of biblical law in the course of a return journey. The dispensation with regard to travel on the Sabbath granted to those embarking upon a mission of rescue is the product of rabbinic legislation. Ramban, Eruvin 43a, takes note of the principle that there is no rabbinic authority to sanction overt violation of biblical prohibitions and explicitly remarks that the dispensation granted by the Sages with regard to travel on the Sabbath is limited to infractions which are only rabbinic in nature. Although he does not cite the comments of Ramban, R. Joseph Babad, Minḥat Hinnukh, no. 24, s.v. ve-hinneh mevu'ar, notes that, although walking a distance greater than 2,000 cubits is proscribed by virtue of rabbinic edict, many early authorities maintain that traversing a distance of more than three parasangs (twelve mil) is forbidden by biblical law. Hence, rules Minḥat Hinnukh, one who has already travelled more than three parasangs even in order to save lives must remain within four cubits of wherever he finds himself. Since each act of moving more than four cubits beyond a distance of three parasangs constitutes a violation of biblical law, concludes Minḥat Hinnukh, such action is not subject to rabbinic dispensation.3Although the basic principle is not the subject of dispute, R. Menachem Waldman, Teḥumin, III (5742), 47, points out that its application must be modified somewhat according to the position espoused by Ramban, Eruvin 43a. In his initial discussion Ramban assumes that, although no biblical infraction is involved in a Sabbath journey of less than three parasangs, nevertheless, beyond that distance every step constitutes an additional transgression. (Cf., however Minḥat Ḥinnukh, no. 24, s.v. ve-hinneh mevu’ar, who maintains that even one who has travelled more than three parasangs is entitled to move about within an area of four cubits.) Ramban, however, concludes that a culpable transgression is incurred only upon traversing another distance of three parasangs. (See also Or Sameaḥ, Hilkhot Shabbat 27:1.) It would then follow that persons who have travelled even further than three parasangs on a mission of rescue would be permitted to traverse an additional distance of 2,000 cubits. The identical principle applies to all matters which are permitted on the basis of hittiru sofan mishum teḥillatan as is clearly indicated by Shitah Mekubezet, Beizah 11b; Baḥ, Oraḥ Hayyim 49, s.v. ha-shoḥet; Magen Avraham, Oraḥ Hayyim 497:18; Nishmat Adam 91:1; and R. Zevi Pesach Frank, Teshuvot Har Ẓevi, Oraḥ Hayyim, II, no. 10. Thus, since the Sages are without power to sanction overt abrogation of biblical law, in every case in which the principle hittiru sofan mishum teḥillatan is invoked only rabbinic prohibitions are suspended in order to encourage the desired result.

11 יא

Moreover, it is not clear that even a rabbinic prohibition, e.g., permitting a non-Jew to operate a motor vehicle, may be violated in undertaking the return journey. On the contrary, individuals who engage in life-saving missions are treated as residents of the locale in which they find themselves and even for purposes of returning to their place of domicile they are granted the right of travel within a radius of 2,000 cubits, but not beyond, because travel over a greater distance would entail violation of a rabbinic edict. Particularly according to the authorities who fail to cite the principle of hittiru sofan mishum teḥillatan as grounds for the dispensation with regard to strolling within a radius of 2,000 cubits, this regulation should be regarded as integral to the rabbinic edict governing delimitation of the area which may be traversed on the Sabbath rather than a license to ignore rabbinic prohibitions. As earlier noted, dispensation to carry weapons on the return trip is rooted in a concern for the safety of the travellers and certainly cannot serve as a paradigm for the suspension of other prohibitions, even of those that are rabbinic in nature.

12 יב

Nevertheless, the comments of Tosafot, Eruvin 44b, and a literal reading of Rashba, Beizah 11b, convey the impression that those authorities regard violations of even biblical prohibitions as permitted to these individuals on their homeward journey on the basis of hittiru sofan mishum teḥillatan. As noted earlier, the Gemara, Eruvin 45a, does permit at least limited violation of biblical prohibitions in the course of the return journey. R. Judah in the name of Rav permits the carrying of weapons on the return journey within a distance of 2,000 cubits; R. Nachman bar Yitzchak permits the bearing of arms during the course of a return journey of even an unlimited distance in a situation in which the enemy has obtained the upper hand. Rabbenu Yehonatan, in his commentary on Rif ad locum, observes that no qualification is posited by the Gemara with regard to the halakhic classification of the area in which the arms may be transported. Hence, under the circumstances described, the weapons may be transported even through a public thoroughfare despite the fact that such an act ordinarily constitutes a transgression of a biblical prohibition. However, the grounds for such dispensation are ostensibly that the individuals described are themselves endangered and, accordingly, permission to transport weapons is predicated upon a concern for the preservation of their lives. Hence those provisions of Halakhah cannot serve as a paradigm for permitting violation of biblical prohibitions on the return trip by rescuers who are themselves in no danger. This analysis of the discussion in Eruvin is clearly enunciated by Shitah Mekubezet, Beizah 11b.

13 יג

However, Tosafot, Eruvin 44b, speak of the dispensation regarding the carrying of arms on the return journey as an instance of invocation of the principle of hittiru sofan mishum teḥillatan.4Teshuvot Adnei Neḥoshet, no. 72, sec. 2, suggest a minor emendation in the caption of Tosafot with the effect that Tosafot’s statement is limited to travel within 2,000 cubits. See also Teshuvot Adnei Neḥoshet, no. 72, sec. 5. A literal reading of Rashba, Beizah 11b (rather than as understood by Shitah Mekubezet), yields a similar impression. If this analysis of the position of Tosafot and Rashba is correct, it would appear that, according to those authorities, all persons engaging in life-saving activities may ignore even biblical proscriptions on their return journey. This is indeed the position of R. Moses Sofer, Teshuvot Hatam Sofer, Oraḥ Hayyim, no. 203, Hoshen Mishpat, no. 194, and VI, no. 99 and apparently also of R. Jacob Emden, She 'ilat Ya'avez, I, no. 132, s.v. u-de-kashya. In Hoshen Mishpat, no. 194, Hatam Sofer implies that a physician called on Shabbat to the bedside of a gravely ill patient may disregard biblical prohibitions if it is necessary for him to do so in order to return to his home. Responding to the argument that the Sages do not have the power to sanction overt suspension of biblical law, Hatam Sofer, VI, no. 99, s.v. de-ika, responds that authority to do so is limited to infractions of Sabbath laws which may be suspended solely to encourage life-saving activity. The Gemara, Yoma 85b, apparently understanding the word "ve-shameru" which occurs in Exodus 31:16 as connoting "The children of Israel shall preserve the Sabbath," formulates the dictum "Better to violate one Sabbath in order to observe many Sabbaths" as justification for the violation of Sabbath restrictions for the sake of preserving life. Hatam Sofer argues that the same rationale may be employed in the context of hittiru sofan mishum teḥillatan in order to assure that "many Sabbaths" be observed.5In the context of ignoring Sabbath restrictions Ḥatam Sofer’s explanation must be understood as meaning that it is necessary to permit such acts in order to encourage life-saving activity so that those whose lives are saved may “observe many Sabbaths.” Cf., R. Eliezer Waldenberg, Ẓiẓ Eli ‘ezer, XI, no. 39, sec. 6, who apparently misses the thrust of Ḥatam Sofer’s point. See also Kiryat Sefer, Hilkhot Shabbat 2:23.

14 יד

However, not all rabbinic decisors agree that rabbinic prohibitions may be ignored in order to complete the return journey on Shabbat. The inference that Tosafot and Rashba sanction violations of biblical law for the purpose of a return journey by all engaged in life-preserving activity is rebutted by R. Zevi Pesach Frank, Teshuvot Har Ẓevi, Oraḥ Hayyim, II, no. 10. Rabbi Frank notes that such dispensation is explicitly recorded only with regard to those who travel to defend against armed attack but not with regard to a midwife or one who engages in saving a potential drowning victim.6Similar objections are advanced by R. Shlomoh Zalman Auerbach, Moriah, Sivan-Tammuz 5731, p. 29, reprinted in idem, Minḥat Shlomoh, no. 7, sec. 3, s.v. ulam. Moreover, Rabbi Auerbach argues that Ḥatam Sofer does not, in fact, sanction such infractions of biblical prohibitions by a physician. Ḥatam Sofer’s comments are made in the context of a case in which a Jewish doctor was called upon to visit non-Jewish patients on Shabbat. Rabbi Auerbach argues that such a situation is comparable to the case of individuals who are engaged in delivering their brethren from soldiers since failure to attend a gentile might lead to retribution against Jews. The status of a physician engaged in the treatment of a Jewish patient, argues Rabbi Auerbach, is entirely dissimilar. In the latter instance the doctor’s status is comparable to that of a midwife who is not permitted to travel beyond 2,000 cubits. This writer, however, fails to understand how this analysis of Ḥatam Sofer’s position resolves the problems attendant thereupon since those rescuing their brethren from attack are permitted to carry their weapons only because of possible danger to themselves and are permitted to travel more than 2,000 cubits only “when the hand of the gentiles is strong”—situations which surely do not pertain in the case of a physician attending a non-Jewish patient. It should also be noted that in the case of a Jewish physician attending a non-Jewish patient Ḥatam Sofer concludes that since failure to treat the patient would invite retaliation against all Jews, and certainly against the doctor personally, the physician is, in effect, acting for reasons of self-preservation. Since no inducement need be offered in order to encourage a person to save his own life the principle of hittiru sofan mishum teḥillatan does not apply and hence, concludes Ḥatam Sofer, in such situations no prohibitions are suspended in order to enable the physician to return to his home on Shabbat. Rabbi Frank apparently maintains that, at least according to Tosafot and Rashba, placing oneself in a situation of danger which then requires violation of biblical proscriptions in order to save one's life is prohibited only by virtue of rabbinic decree.7Cf., R. Benjamin Silber, Mekor Halakhah al Massekhet Shabbat, II, no. 35, s.v. ve-ha-nireh, who maintains that, when undertaken on Shabbat, such a course of action is biblically prohibited. Cf., also, Yeshu ‘ot Ya ‘akov, Oraḥ Ḥayyim 331:5; and R. Isaac Liebes, Halakhah u-Refu’ah, III, 81, reprinted in Teshuvot Bet Avi, IV, Oraḥ Ḥayyim, no. 16. According to Rabbi Frank, it is that decree, and that decree alone, which, by application of the principle hittiru sofan mishum teḥillatan, is suspended on behalf of individuals who have been engaged in life-saving activities.8Cf., R. Abraham Avidan, Darkei Ḥesed (Jerusalem, 5738) 10:3, note 3, pp. 136-138. Thus the rescuers are permitted to embark on their return journey by virtue of rabbinic dispensation. Having done so, they find themselves in danger and, accordingly, may transport weapons in order to protect themselves. The sole infraction consists of having placed themselves in danger in the first instance. That infraction, which is rabbinic in nature, is permitted on the basis of hittiru sofan mishum teḥillatan.

15 טו

Rabbi Frank contends that Tosafot and Rashba invoke the concept of hittiru sofan mishum teḥillatan in permitting biblical infractions only in the case of those who render aid in defending against marauding soldiers, i.e., when the rescuers are themselves subject to danger during the course of the return journey, but not in the case of a midwife or one who rescues from drowning, i.e., individuals who are themselves not endangered in their attempt to save others. However, an examination of the words of Rashba in his commentary on Beizah 11b9As understood by Shitah Mekubeẓet, Rashba does not at all refer to suspension of biblical prohibitions. Rabbi Frank, however, cites and analyses the comments of Rashba as they appear in the commentary of Rashba without the interpretation of Shitah Mekubeẓet. reveals that this contention is contradicted by Rashba himself since Rashba explicitly states that the midwife is permitted to return to her locale on the basis of the principle hittiru sofan mishum teḥillatan. Rashba's comment is indeed problematic since, as noted by Shitah Mekubezet, it appears to contradict the ruling of the Mishnah which permits a midwife to travel only a distance of 2,000 cubits but does not extend carte blanche for unlimited travel in the course of the return voyage. Nevertheless, insofar as an analysis of Rashba's comments is concerned, there is no reason to assume that the midwife is herself endangered in any way and there is certainly no hint of such a contention in the words of Rashba. Assuming that Rashba agrees that travel over a distance greater than three parasangs is biblically forbidden, it must be concluded that Rashba maintains that even biblical prohibitions are suspended in order to protect against possible future laxity or laziness.10Cf., R. Moses Feinstein, Teḥumin, I (5740), reprinted in Iggerot Mosheh, Oraḥ Ḥayyim, IV, no. 80, who reaches the same conclusion regarding Rashba’s position but on the basis of somewhat different reasoning.

16 טז

Hatam Sofer's position was, in effect, rejected at a much earlier time by R. Shlomoh Kluger, Teshuvot u-Vaḥarta ba-Hayyim, no. 99. Rabbi Kluger forbade a person travelling on the Sabbath for the purpose of summoning medical assistance to return on the Sabbath in a situation in which the return journey would have involved a distance greater than three parasangs and hence, according to many authorities, entailed a biblical infraction. Hatam Safer's position is also disputed by R. Shalom Mordecai Schwadron in his Hagahot Maharsham, Rosh ha-Shanah 22b, and in his Orḥot Hayyim 597:11.11Ḥatam Sofer’s position is also rejected by Teshuvot Adnei Neḥoshet, no. 72, sec. 5. Similar rulings limiting the application of hittiru sofan mishum teḥillatan to infractions of rabbinic law are recorded by R. Shlomoh Zalman Auerbach, Moriah, Sivan-Tammuz, 5731, pp. 29-30, reprinted in his Minḥat Shlomoh, no. 7, and no. 8;12The latter responsum originally appeared in Sefer ha-Zikkaron le-Maran ha-Grash Kotler Zaẓal, ed. R. Joseph Bucksbaum (Jerusalem, 5743), pp. 123-131. R. Eliezer Waldenberg, Ẓiz Eli'ezer, VIII, no. 15, chap. 7, sec. 12 and chap. 13, sec. 8, and XI, nos. 39 and 40; R. Joshua Neuwirth, Shemirat Shabbat ke-Hilkhatah (Jerusalem, 5739) 40:69-71; R. Isaac Liebes, Halakhah u-Refu'ah, III (5743), reprinted in his Teshuvot Bet Avi, IV, Oraḥ Hayyim, no. 16; and Dr. Abraham S. Abraham, Nishmat Avraham, Oraḥ Hayyim 329:9, note 7.13Cf. also, R. Yisra’el Aryeh Zalmanowitz, No ‘am, IV, 175-178; and Teshuvot Dvar Yehoshu‘a, III, Yoreh De ‘ah, no. 69.

17 יז

III. Rambam's Position

18 יח

Rambam's codification of the regulations formulated in Eruvin 45a is fraught with difficulties. Rambam, Hilkhot Shabbat 27:17, records the general rule that those who have embarked upon a life-saving mission may journey a distance of 2,000 cubits upon completion of their mission but concludes that "if the hand of the gentiles is strong and they are afraid to remain in the place where they effected the rescue they may return to their own location on the Sabbath with their arms." This ruling certainly seems to reflect the opinion of R. Nachman bar Yitzchak. However, elsewhere, Rambam appears to record an entirely contradictory ruling. In an earlier reference to the identical situation involving individuals who have come to defend their brethren against armed attack, Rambam, Hilkhot Shabbat 2:23, rules that "when they have delivered their brethren they are permitted to return to their own location with their weapons on the Sabbath in order not to cause them to be remiss in the future (she-lo le-hakhshilan le-'atid lavo)." Similar apparently contradictory rulings, obviously based upon Rambam's statements, are recorded in Shulḥan Arukh, Oraḥ Hayyim 329:9 and 407:3. It follows that, if the rationale recorded in Hilkhot Shabbat 2:23 is regarded as normative, all persons engaged in missions of mercy may violate biblical prohibitions when it is necessary to do so in order to complete their return journey "she-lo lehakhshilan le-'atid lavo," i.e., so that they not be lax or procrastinate on future occasions when the lives of others are endangered.

19 יט

Since there is no talmudic source for the statement recorded by Rambam in Hilkhot Shabbat 2:23 and, moreover, since that statement is contradicted both by the discussion in Eruvin 45a and by Rambam's own ruling in Hilkhot Shabbat 27:17, most commentators on Rambam's ruling maintain that Rambam intended to express only a general rule in 2:23 to be modified and made precise in 27:17. This analysis of Rambam's position is espoused by Maggid Mishneh; Merkevet ha-Mishneh; Ma 'aseh Rokeaḥ; Yad Eitan, Sefer ha-Likkutim, Shabbat 2:23; Eliyahu Rabbah 407:6; R. Shlomoh Kluger, Teshuvot u-Vaḥarta ba-Hayyim, no. 99; and R. Eliezer Waldenberg, Ẓiz Eli 'ezer, XI, no. 39, sec. 7. Although Rambam's employment of the phrase "she-lo le-hakhshilam le-'atid lavo" is not really explained in an adequate manner by these sources,14Similarly, the attempt of R. Menachem Waldman, Teḥumin, III (5742), 43-44, to explain Rambam’s invocation of this principle appears to this writer to be less than convincing. R. Isaac Liebes, Halakhah u-Refu’ah, III, 71-73, reprinted in his Teshuvot Bet Avi, IV, Oraḥ Ḥayyim, no. 16, understands Rambam’s invocation of the principle “she-lo le-hakhshilan le-‘atid lavo” in Hilkhot Shabbat 2:23 as limited to explanation of the dispensation to travel within a radius of 2,000 cubits. Understood in that sense the connotation is identical with the principle “hittiru sofan mishum teḥillatan” that is invoked by Tosafot. A similar analysis was earlier advanced by Sheyarei Knesset ha-Gedolah, Oraḥ Ḥayyim 407:2. Cf., Teshuvot Dvar Yehoshu‘a, III, no. 69, sec. 1. Cf. also Teshuvot Adnei Neḥoshet, no. 72, secs. 3-4. they understand Rambam as agreeing that, save for persons defending against armed aggressors, individuals engaged in delivering others from danger may not violate biblical restrictions in order to return to their homes.15See R. Isaac ha-Levi Herzog, Ha-Torah ve-ha-Medinah, V-VI, 26-27, reprinted in his Teshuvot Heikhal Yiẓḥak, Oraḥ Ḥayyim, no. 32, who maintains that Rambam rules according to Rav but understands Rav as permiting the carrying of weapons on the return journey regardless of its distance and regardless of whether or not Jews are victorious in the encounter. Yet, as pointed out by Rabbi Waldman, Teḥumin, III, 43, this is contradicted by Rambam himself as is Rabbi Herzog’s explanation of why Rambam adduces the principle she-lo le-hakhshilan le-‘atid lavo. Rabbi Herzog, however, concedes that this is permissible only when the return journey is dangerous if attempted without arms and hence his position with regard to how a physician may comport himself on the return journey should not be equated with that of Ḥatam Sofer; cf., R. Menachem Waldman, Sefer Assia, IV (5743), 71. Cf., also R. Yissakhar ha-Levi Levine, Ha-Torah ve-ha-Medinah, VII-VIII, 257-260. Rabbi Mordecai Halperin, Assia, IV, 63-69, understands Rambam as permitting violation of even biblical prohibitions she-lo le-hakhshilan le-‘atid lavo but does not adequately explain why the Gemara’s discussion in Eruvin does not take cognizance of that consideration.

20 כ

The need to sanction transgression of biblical law for the specific purpose of preventing individuals from being remiss on future occasions is posited by the Gemara in an entirely different context. Sabbath laws must be disregarded in order to enable the Bet Din to sanctify the new moon on the proper day. Accordingly, witnesses who sight the new moon must immediately proceed to the Bet Din, even though this involves violating the Sabbath in order to testify to this event for purposes of enabling the Bet Din to sanctify that day as Rosh Hodesh. The Mishnah, Rosh ha-Shanah 21b, reports, "It happened once that more than forty pairs [of witnesses] were on their way and R. Akiva detained them in Lod. Rabban Gamaliel thereupon sent to him saying, 'If you prevent the multitude [from coming to give evidence] you will cause them to stumble in the time to come (atah makhshilan le-'atid lavo).'"16She’ilat Ya’aveẓ, I, nos. 131 and 132, are devoted to showing that this incident took place on Shabbat and that the concern was for possible improper desecration of the Sabbath rather than merely a concern for needless imposition upon the time of the Bet Din. This is also the view of Teshuvot Ḥatam Sofer, Oraḥ Ḥayyim, no. 203. Cf., Turei Even, Rosh ha-Shanah 25b, who asserts that the incident took place on a weekday. See, however, the discussion recorded in the Palestinian Talmud, Megillah 2:7, which clearly indicates that the event described took place on a Shabbat. As noted by R. Jacob Emden, She'ilat Ya'avez, I, no. 132, and by Teshuvot Hatam Sofer, Oraḥ Hayyim, no. 203, the rationale "you will cause them to stumble in the time to come" is apparently sufficient justification to warrant suspension of even biblical prohibitions. Witnesses to the appearance of the new moon customarily carried staffs and took food with them on their journey for appearance before the Bet Din and, presumably, transported those items even through public thoroughfares (reshut ha-rabbim). Moreover, the journey from Lod to the Bet Din (which at the time sat either in Jerusalem or Yavneh)17See She’ilat Ya’aveẓ, I, no. 132, s.v. mah she-katavta and R. Menachem Waldman, Sefer Assia, IV, 70-71. presumably spanned a distance of more than three parasangs.18See, however, R. Jacob Ettlinger, Arukh la-Ner, Rosh ha-Shanah 21b; and R. Shalom Mordecai Schwadron, Hagahot Maharsham, Rosh ha-Shanah 23a; and idem, Orḥot Ḥayyim 497:11, who maintain that the witnesses were permitted to ignore only rabbinic prohibitions. Rabban Gamaliel's statement, however, appears to be limited to the situation described in the Mishnah rather than a paradigm governing other cases as well. Since any act necessary for sanctification of the new moon is permitted on the Sabbath, and since the new moon was as yet not sanctified, all the witnesses were indeed engaged in the actual process of sanctification. Moreover, it may be contended that Sabbath restrictions are suspended not only for the immediate sanctification of the new moon on that Sabbath day but also, if necessary, to ensure the sanctification of any future new moon as well.19See Teshuvot Ḥatam Sofer, Oraḥ Ḥayyim, no. 203 and Ḥoshen Mishpat, no. 194; cf. She’ilat Ya‘aveẓ, I, no. 232. Hence, since there existed a genuine concern that on some future occasion the Court might find itself without witnesses, permitting travel on the Sabbath by all witnesses does actually serve to make possible the sanctification of some future new moon.20R. Shlomoh Kluger, Teshuvot u-Vaḥarta ba-Ḥayyim, no. 99, further argues that there is, in fact, no reason to fear future laxity or procrastination with regard to actions necessary to preserve life. Individuals may be unwilling to suffer undue inconvenience in the fulfillment of a miẓvah, and hence the Sages perceived a need to grant certain dispensations she-lo lehakhshilan le-‘atid lavo, but would not necessarily have regarded similar dispensations as imperative in order to assure that lives would not be endangered. R. Shlomoh Kluger finds support for this position in the words of the Mishnah, Rosh ha-Shanah 23b, which permits witnesses testifying to the sighting of the new moon to move about within a radius of 2,000 cubits and continues with the statement, “Not only these but also a midwife who comes to assist in birthing … have [the privilege of walking] two thousand cubits in every direction.” The implication of that statement is that it is more radical to allow travel within an area of 2,000 cubits to persons engaged in life-saving activities than it is to grant that privilege to witnesses engaged in fulfillment of a miẓvah. Thus there is no reason to assume that a dispensation granted to witnesses for reason of she-lo le-hakhshilan le-‘atid lavo is similarly granted to persons engaged in missions of rescue. See also R. Shlomoh Zalman Auerbach, Minḥat Shlomoh, no. 8.

21 כא

IV. Suspension of Biblical Prohibitions

22 כב

Among contemporary decisors, the late Rabbi Moses Feinstein is the sole authority who permits violation of biblical prohibitions in the course of a return journey.21Teshuvot Dvar Yehoshu‘a, III, Yoreh De‘ah, no. 69, argues in support of Ḥatam Sofer’s position but declines to rule in accordance with that view and accordingly permits only violation of rabbinic prohibitions she-lo le-hakhshilan le-‘atid lavo. Rabbi Feinstein's views are recorded in contributions to Teḥumin, I (5740), reprinted in Iggerot Mosheh, Oraḥ Hayyim, IV, no. 80, and briefly noted in his contribution to Halakhah u-Refu'ah, III (5743).22The latter item is reprinted in Or ha-Shabbat, no. 2 (5745). Although he understands Tosafot and Rashba as sanctioning even the violation of biblical prohibitions on the basis of hittiru sofan mishum teḥillatan, Rabbi Feinstein recognizes that the Mishnah permits a midwife who has completed her ministrations to travel a distance of only 2,000 cubits even in order to return to her home. He proceeds to argue that such a limitation applies only to individuals who recognize that their life-saving mission, by virtue of its very nature, may be prolonged beyond the Sabbath. Such individuals, he argues, prior to setting out on their mission of rescue fully comprehend that they may not be able to return to their homes during the course of Shabbat. Since they have, in fact, embarked upon their mission, it is clear that such individuals are not deterred by the prospect of being discomfited by virtue of being away from their homes and families for the duration of the entire Sabbath. Nor, since they have correctly ignored considerations of personal comfort, is it to be presumed that such considerations will deter them in the future. Therefore, no special dispensation need be granted them in the event that they complete their tasks at an early hour. Others, such as a physician whose ministrations are usually not unduly prolonged, do not anticipate a delay which would prevent them from returning to the comfort of their homes for the balance of the Sabbath. Hence refusing to allow them to return to their homes because of Sabbath restrictions would have the effect of causing them to procrastinate or even categorically to refuse to undertake missions of mercy on the Sabbath. Individuals whose activities fall within this category, argues Iggerot Mosheh, may ignore Sabbath restrictions in order to return home on the basis of the principle hittiru sofan mishum teḥillatan.

23 כג

Iggerot Mosheh similarly endeavors to show that R. Nachman bar Yitzchak's dictum permitting the carrying of weapons on the return journey when the enemy prevails, while forbidding such action when Jews prevail, is not predicated upon considerations of danger to the rescuers but upon the selfsame distinction with regard to application of the principle of hittiru sofan mishum teḥillatan. In direct contradiction to the understanding of all previous commentators, Iggerot Mosheh interprets R. Nachman bar Yitzchak's statement as permitting those rendering aid to return home only when "the hand of Israel is strong" but not when "the hand of gentiles is strong." This distinction, contends Rabbi Feinstein, is in conformity with his general thesis. He defines "the hand of Israel is strong" as meaning, not that the Jews are victorious, but as a description of a situation in which Jews are generally secure and protected by the government and hence the incident posing a threat to Jewish lives is an isolated occurrence and without governmental sanction. Under such circumstances, argues Iggerot Mosheh, those offering assistance to their beleaguered brethren have every reason to assume that the attackers will not dare to engage in a prolonged operation. Accordingly, those rendering assistance believe that the encounter will be brief in duration and that they will yet be able to return to their homes on the Sabbath. Rabbi Feinstein defines "the hand of gentiles is strong" as referring, not to a victory by the enemy, but to a situation in which Jews are generally insecure and cannot rely upon protection by the government. In such circumstances attackers have no fear of intervention by civil or military authorities and hence they perceive no need for haste in carrying out their act of aggression. Accordingly, since the rescuers have no reason to assume that the confrontation will be brief, they are not permitted to return to their homes even if the engagement is terminated quickly.

24 כד

Quite apart from the absence of any clear talmudic evidence compelling the distinction drawn by Rabbi Feinstein, it is not at all obvious that the activities of those persons specifically restricted by the Mishnah to travel of no more than 2,000 cubits are of a nature requiring service over a prolonged period of time. The Mishnah enumerates "the midwife who comes to assist in birthing and one who comes to deliver from fire, from soldiers, from the river or from a ruin." Although a midwife is certainly aware of the fact that labor may be prolonged, in many cases labor is relatively swift. The midwife may well be willing to accept the possibility of not being able to return home on the Sabbath but not the certainty of not being able to do so. Moreover, it is only in unlikely situations that "rescue from fire" requires service over a prolonged period of time while rescue "from the river," i.e., from drowning, is virtually always swift.

25 כה

R. Shlomoh Zalman Auerbach, Minḥat Shlomoh, no. 8, takes sharp issue with the position of Iggerot Mosheh and points out that even witnesses to the sighting of the new moon are forbidden to return to their homes if the return journey entails a trip of more than 2,000 cubits. There is no evidence, he argues, that people will be deterred from undertaking a mission of rescue because they are unwilling to accept the inconvenience of being away from home and separated from their families for the rest of Shabbat.23See, however, the concluding section of this discussion.

26 כו

As noted earlier, R. Zevi Pesach Frank maintains that individuals engaged in life-saving activities, upon completion of their mission, are permitted to travel by foot within a radius of 2,000 cubits because such travel involves no abrogation of any rabbinic enactment. Rather, in ordaining a limit of 2,000 cubits the Sages provided that such individuals be deemed to have been domiciled from the commencement of the Sabbath in the locale in which they find themselves upon completion of their mission and are accorded the same travel privileges as inhabitants of that area. The concept of hittiru sofan mishum teḥillatan, as formulated by Tosafot and Rashba, is regarded by Rabbi Frank as limited to permitting such individuals to place themselves in a position of endangerment during the return journey with the result that violation of biblical prohibitions becomes necessary in order to avoid threats to their own lives. Thus, according to Rabbi Frank, there is no basis for permitting infraction of other rabbinic prohibitions on the basis of hittiru sofan mishum teḥillatan.24See, however, Rosh, Beiẓah 1:18, and Teshuvot Ḥavot Ya’ir, no. 112, who apparently maintain that other rabbinic prohibitions are also suspended by virtue of the priniciple hittiru sofan mishum teḥillatan. See also Teshuvot Dvar Yehoshu‘a, III, Yoreh De ‘ah, no. 69, secs. 5 and 6. Accordingly, Rabbi Frank rules that, while a physician may certainly walk a distance of 2,000 cubits beyond the inhabited area in which he finds himself, he may not direct or permit a non-Jew to drive him home in a motor vehicle. Most authorities, however, understand the principle of hittiru sofan mishum teḥillatan as rendering nugatory all rabbinic prohibitions under such circumstances, including the prohibition against directing a non-Jew to perform acts forbidden to a Jew.25The earliest source permitting a physician to be transported home on Shabbat by a non-Jew is Teshuvot Ḥatam Sofer, Ḥoshen Mishpat, no. 194. [As noted earlier, Teshuvot Ḥatam Sofer, Oraḥ Ḥayyim no. 203, and VI, no. 99, sanctions even violation of biblical prohibitions under such circumstances.] R. Shlomoh Zalman Auerbach, Minḥat Shlomoh, no. 8, voices qualms similar to those expressed by Har Ẓevi with regard to this permissive ruling. Although he declines to dispute Ḥatam Sofer’s ruling “since the elder has already issued a ruling” he suggests that Ḥatam Sofer’s leniency is limited to a physician who lacks accommodations for the remainder of the Sabbath whereas “a physician who can remain with dignity in the hospital or the like but prefers to be in his own home, perhaps, even according to Ḥatam Sofer, it is forbidden [for him to be driven home] even by a gentile.”

27 כז

V. Professionals as Distinct From Volunteers

28 כח

Nevertheless, it appears to this writer that there is another consideration which, if applicable, effectively cancels this dispensation, in at least some circumstances, insofar as physicians are concerned. Shulḥan Arukh, Oraḥ Hayyim 526:6, rules that, on the second day of a festival, it is permissible to escort the deceased to a cemetery located even more than 2,000 cubits beyond the city and permits such persons to return to their homes on Yom Tov as well. Those individuals are permitted to travel distances even greater than 2,000 cubits on their return journey lest they be remiss on future occasions and decline to participate in funerals on Yom Tov.26Although those enumerated in the Mishnah, Rosh ha-Shanah 23b, are permitted to travel only 2,000 cubits, persons participating in burials of a deceased on the second day of the festival may return to their homes even if the journey involves a greater distance. The source of this ruling is Ramban, Torat ha-Adam, Kitvei Ramban, ed. R. Bernard Chavel (Jerusalem, 5724), II, 114. Although expressing hesitation, Ramban cites another case of attah makhshilan le-‘atid lavo in which an entirely different prohibition is suspended. The Gemara, Yoma 77b, reports that R. Joseph permitted the inhabitants of Bei Tarbu to traverse a stream on Yom Kippur in order to attend a discourse but denied them permission to do so on their return. Abaye protested and permitted them to pass through the stream on their return as well “lest you cause them to stumble in the time to come,” i.e., lest they abstain from attending discourses in the future because of the inconvenience of being required to wait until the end of Yom Kippur in order to return home. Ramban reasons that since the observance of the second day of the festival is rabbinic in nature any prohibition is suspended she-lo le-hakhshilan le-‘atid lavo. Bi 'ur Halakhah, ad locum, expresses reservations with regard to whether paid members of the ḥevra kaddisha enjoy a similar dispensation. He reasons that dispensation from rabbinic proscriptions is granted solely in order to assure that such services will be performed on future occasions. Such encouragement is required in order to assure that volunteers will not be deterred by resultant inconvenience. Individuals who are motivated by a desire to receive a fee for services rendered, he reasons, will not be deterred and hence do not require further inducement.27A similar distinction with regard to salaried policemen is made by R. Isaac ha-Levi Herzog, ha-Torah ve-ha-Medinah, V-VI, 27, reprinted in his Teshuvot Heikhal Yiẓḥak, Oraḥ Ḥayyim, no. 32, and with regard to soldiers acting pursuant to military orders by Rabbi Halperin, Sefer Assia, IV, 66. Cf., however, R. Abraham Avidan, Darkei Ḥesed 10:3, note 3, s.v. ve-nireh le-hokhiah (pp. 138-139), who demonstrates on the basis of Rambam, Hilkhot Melakhim 6:13, that the principle of hittiru sofan mishum teḥillatan applies to soldiers engaged in battle. It would appear that the same reasoning applies in the case of a doctor who charges a fee for his services even if he renders a bill for total treatment (havla'ah) rather than a specific charge for care rendered on Shabbat or Yom Tov.28For sources that discuss the propriety of accepting a fee for medical services rendered on Shabbat see Shemirat Shabbat ke-Hilkhatah 28:67, note 147 and 40:14, note 42; Nishmat Avraham, Oraḥ Ḥayyim, 306:8, note 1; Ẓiẓ Eli‘ezer, XIII, no. 15, chap. 13; and Iggerot Mosheh, Oraḥ Ḥayyim, IV, no. 79. This consideration would also appear to apply to a salaried physician who is contractually obligated to respond to a request for treatment.29Accordingly, a physician or nurse on duty during part of Shabbat would certainly not be permitted to have a non-Jew drive him or her home upon completion of his or her shift; cf., however, Abraham S. Abraham, Nishmat Avraham, Oraḥ Ḥayyim 229:9, note 7. When such a person’s shift begins on Shabbat, he or she is certainly required to complete any forbidden travel prior to the commencement of Shabbat. See Teshuvot Ḥatam Sofer, Yoreh De‘ah, no. 338, s.v. gam; Iggerot Mosheh, Oraḥ Ḥayyim, I, no. 131; Shemirat Shabbat ke-Hilkhatah 32:34; and R. Isaac Liebes, Halakhah u-Refu’ah, III, 83, reprinted in Teshuvot Bet Avi, IV, Oraḥ Ḥayyim, no. 16; cf., however, Nishmat Avraham, loc. cit., and Shemirat Shabbat ke-Hilkhatah 40:23, notes 64 and 65. However, in this writer's opinion, it does not apply to a resident or hospital physician who is not remunerated on a fee per visit basis and who finds himself in a situation in which a decision to visit the patient is left to his discretion or professional judgment. In such situations the concern that the doctor's judgment may be clouded by concern for personal inconvenience is certainly cogent and hence, even according to Bi'ur Halakhah, he would be permitted to be driven home by a non-Jew. Bi'ur Halakhah's caveat certainly does not apply to members of Hatzolah who serve on a volunteer basis.

29 כט

Moreover, it may be argued that, at least under some circumstances, there are grounds for permitting volunteers who participate in the life-saving activities of Hatzolah themselves to drive home on Shabbat upon completion of their rescue efforts.30Experience has amply demonstrated the unfeasibility of engaging a non-Jewish driver. The alacrity of persons available for such employment does not match that of volunteers, with the result that the precious moments lost in tarrying while the driver readies himself can spell the difference between success and failure of the life-saving mission. Cf., R. Moses Feinstein, Halakhah u-Refu’ah, III (5743), 53 and Or ha-Shabbat, no. 2 (5745), p. 7. There is, to be sure, a significant corpus of opinion that stands in contradiction to the position of Hatam Sofer. However, the ambit of that disagreement may not be as broad as it appears to be upon first impression.

30 ל

Rabban Gamaliel permitted all persons who had sighted the new moon to travel to the Bet Din since he deemed that necessary in order to assure that witnesses would always be available for sanctification of the new moon. R. Akiva did not dispute the basic point; he simply did not deem it cogent to assume that witnesses might be remiss on future occasions. Similarly, all authorities agree that individuals involved in missions of rescue may transport their weapons with them on their return journey, even though such a course of action involves acts which are biblically proscribed. The dispute is whether the principle hittiru sofan mishum teḥillatan as formulated by Tosafot and Rashba is limited to situations involving an element of danger to the rescuers or whether it constitutes carte blanche for them to do whatever is necessary in order to enable them to return home. According to Hatam Sofer, the discussion in Eruvin 45a indicates that the Sages perceived a need to induce persons to engage in missions of mercy and issued a general edict with regard to that matter; according to those who disagree, rescue of persons in danger required no such inducement whereas witnesses to the sighting of the new moon did need encouragement in order to be motivated to undertake a journey for the purpose of appearing before the Bet Din.

31 לא

The issue, then, is whether there exists a blanket dictum regarding she-lo le-hakhshilan le-'atid lavo. It may however be argued that, at a time and place where it is demonstrably known that inability to return home has resulted in loss of life because would-be rescuers decline to undertake such missions, any action deemed imperative to encourage preservation of life may be sanctioned. Such dispensation would not be rooted in the discussion in Eruvin 45a but in empirical reality regarding what is necessary in order to save lives. Nor are there grounds for maintaining that a formal rabbinic decree is required in such circumstances. Rabban Gamaliel's original declaration to R. Akiva, which reflects a similar principle, certainly has the flavor of a pronouncement issued as an ad hoc assessment of the situation rather than of a formal decree although, presumably, its redaction in the Mishnah effectively raised it to the status of a rabbinic edict.

32 לב

Parallel instances in which presently unnecessary infractions are permitted in order to assure that lives will not be lost at some future time are not unknown in the annals of Halakhah. Thus Taz, Oraḥ Hayyim 328:5, takes issue with Rema and permits the total disregard of Sabbath restrictions on behalf of a seriously ill person even though no harm would be done to the patient if the same act were to be performed by a non-Jew or in an unusual manner (shinnuy). Taz advances two considerations in rejecting Rema's ruling: (1) An onlooker might conclude that intervention by a Jew or intervention in a usual manner is forbidden with the result that, on a future occasion, he may seek to minimize the infraction in circumstances in which delay might indeed be deleterious to the patient. (2) The non-Jew may not be alacritous in providing immediate and proper assistance.31Teshuvot Adnei Neḥoshet, no. 72, secs. 6-11, asserts that even Taz would agree that, in situations such as those confronting Hatzolah, a non-Jewish driver should be engaged even for purposes of driving the ambulance to the hospital. Taz himself suggests that error on the part of an onlooker can be avoided by means of a public announcement that the services of a non-Jew have been utilized only because the non-Jew was immediately available. In the case of Hatzolah, it may also be publicized that a non-Jewish driver is engaged for Shabbat in order to obviate the need for persons rendering assistance to remain away from their homes and families for the duration of Shabbat. He further contends that Taz would agree that a professional driver, particularly a paramedic, who is compensated for his services, will indeed perform his duties promptly and efficiently. Moreover, Mishnah Berurah 318:10 rules that, in the absence of a clear danger or an expert opinion confirming that there exists a threat to life, the service of a non-Jew should be utilized, as is the position of Rema, if it is possible to do so without compromising treatment of the patient.

33 לג

Those who disagree with Taz do so because they do not believe that his fear in this regard is cogent, not because they reject the underlying principle. A similar principle is established by R. Joshua Leib Diskin, Teshuvot Maharil Diskin, no. 41. The Gemara, Sanhedrin 26a, records that R. Yanai permitted the planting of crops in the Sabbatical year because of a need to pay taxes levied upon the produce. Tosafot explains that failure to pay the required levy would have endangered Jewish lives. Maharil Diskin notes that R. Yanai granted blanket dispensation to till the soil, apparently to the wealthy who had other resources which might have been applied to payment of taxes no less so than to the poor who had no other means of payment available to them. Maharil Diskin reasons that, had the wealthy not worked their fields, the poor would have been embarrassed to do so.32See also R. Moshe Sternbuch, Mo‘adim u-Zemanim, II, no. 140, who explains in a similair vein R. Israel Salanter’s ruling regarding eating on Yom Kippur during the cholera epidemic that occured in Vilna in 1848. Rabbi Salanter demanded that the entire populace refrain from fasting. It might well be assumed that, since it was presumed that fasting was dangerous for those who might become afflicted by the illness or that weakness enhanced susceptibility to the disease, Rabbi Salanter considered every person exposed to the disease to be at least posssibly at risk were he to fast. See R. Yechiel Ya’akov Weinberg, Seridei Esh, IV, 289 and R. Benjamin Rabinowitz-Teumim, No‘am, V (5722), 283. See also sources cited by Hillel Goldberg, Between Berlin and Slobodka: Jewish Transition Figures from Eastern Europe (Hoboken, 1989), p. 163, note 28. Rabbi Sternbuch, however, opines that Rabbi Salanter feared that if some individuals would fast others would also claim that they were not in danger and that, as a result, lives would be lost. According to Rabbi Sternbuch, Rabbi Salanter therefore commanded that even the perfectly healthy eat on Yom Kippur so that the sick would do so as well. It should be noted that, at the time, R. Betzalel ha-Kohen together with the other members of the Vilna Bet Din issued a public statement vehemently opposing Rabbi Salanter’s ruling. The Vilna Bet Din insisted that a decision regarding the permissibility of eating on Yom Kippur be made on a case-by-case basis in accordance with the physical condition of each individual. Therefore, in order to assure that the poor would not be endangered, it was necessary to command the wealthy to plant crops as well.33It would thus appear that, whenever there exists a formal rabbinic edict sanctioning violation of a halakhic norm that is predicated upon consideration of a contingency that may result in loss of life, no person may claim that he will remain unaffected and hence need not commit the infraction. Thus, when there exists a formal dispensation in the form of hittiru sofan mishum teḥillatan, e.g., permission to return with weapons within 2,000 cubits, a person may not ostentatiously refuse to avail himself of that dispensation since others following his example may also hesitate to do so but then proceed to refrain altogether from engaging in missions of rescue. Similarly, persons who have sighted the new moon may not refrain from travelling to the Bet Din on Shabbat although they know that other witnesses have made the journey lest their example be followed even when no other witnesses are available. Cf., however, Rabbi Mordecai Halperin, Sefer Assia, IV, 65-66.

34 לד

It may be readily conceded that neither of these sources establishes that people will not engage in life-saving activity on Shabbat unless they are permitted to return to the comfort of their own homes. It may also be granted that in times gone by such a consideration would not have been a deterrent. But the human condition is hardly immutable. It has been reported that in some areas Hatzolah has not been able to enlist sufficient numbers of volunteers willing to participate on Shabbat and Yom Tov because wives and families have objected to being deprived of the presence of husbands and fathers for virtually the entire Shabbat and Yom Tov. The result, it is claimed, is that lives have indeed been lost. Without passing moral and halakhic judgment upon persons who manifest a skewed priority of values, it may be argued, as noted, that under such circumstances all agree that such volunteers may be permitted to drive home if they would otherwise not volunteer for duty on Shabbat. Hatam Sofer's basic point, viz., that the principle "Better to violate one Sabbath in order to observe many Sabbaths" is sufficiently strong to warrant any infraction which will result in preservation of life. Granting the position of those who disagree with Hatam Sofer and maintain that there is no blanket rabbinic legislation governing the return journey, and indeed even of those who maintain that the rule recorded in the Mishnah with regard to returning from a mission of rescue is not at all predicated upon the principle hittiru sofan mishum teḥillatan, the matter nevertheless remains an issue regarding which rabbinical authorities may rule on an ad hoc basis.