Muktzeh Machmat Issur

Beitzah (4:3) | Yisrael Bankier | 7 years ago

The Mishnah (4:3) discusses a case involving a house that was full of produce and bricked up with no entrance. On Yom Tov itself, some of the brick work collapsed. The Mishnah explains that one can take some of the produce via that opening. R' Meir however maintains one can even remove the bricks to access the food. What is the subject of debate?

The Bartenura explains that the case in our Mishnah is where the bricks have not been cemented together, they are simple resting one upon the other. That being the case, removing the brick would not constitute the biblical prohibition of demolishing on Yom Tov. This explains why once the bricks fall away, one can take the food. If the bricks had been cemented, then all the food would be muktzeh machmat issur, they would not be considered prepared for Yom Tov due to the biblical prohibition involved in accessing the food. Since in our case, the prohibition is rabbinic, the contents are not muktzeh. This position is shared by Rashi who cites tevel (untithed produce) as another example that shares the same law. Separating terumot and maaserot is rabbinically prohibited. Yet, the Gemara (34b) explains that if they were separated, the food is not muktzeh.

The Tosfot however find it difficult to differentiate between whether the prohibition is rabbinic or biblical with respect to muktzeh machmat issur. Furthermore, they cite other examples where the prohibition is rabbinic, yet muktzeh still applies. For example, the case where coins were left on pillow on the onset of Shabbat. In that case, the pillow remains muktzeh even if the coins are removed. How do we explain the case of tevel? They cite R"R Moshe, who explains that in the case of tevel, after the separation, the item of muktzeh no longer exists. In the case of the coins, and in our case too, the item of muktzeh is still there. How then does the Tosfot explain our Mishnah? They suggest that our Mishnah is according to R' Shimon that does not maintain the concept of muktzeh.

The Ran (17b) also raises this difficulty but suggests a different solution. He cites the Ramban who explains that this case is not one of muktzeh machmat issur. The only two cases where an issur affects muktzeh is either if the object itself is assur or if the object acts as a base for something that is assur (as in the case of the pillow). Neither of these apply in our case. Here, there is nothing wrong with the produce in the house. Instead there is some external issue preventing access to the produce. Based on this understanding, the same would be true even if the bricks were cemented prior to Yom Tov; even if the prohibition of removing the bricks was biblical. Indeed, the Ramban (Milchamot Hashem 19b) notes that the Rif does not differentiate regarding the brickwork for the opinion of the Chachamim. It is only when discussing the opinion of R' Meir, who allows removing the bricks on Yom Tov le'chatchila, that the case is framed a being rabbinically prohibited.

The Shulchan Aruch (518:9) rules in line with this reason, and does not differentiate between whether the bricks were cemented or simply resting on one another. The Be'ur Halacha writes that Shulchan Aruch is ruling according to the Rif and Rambam based on the logic of the Ramban we cited above. The Be'ur Halacha however explains that many Rishonim maintain like Rashi, that our case is where the prohibition involved is rabbinic – Rosh, Raza, Ohr Zarua and Meira. Furthermore, the Tosfot cited above is even more strict and according to another answer found in the Ramban that the case is only where the bricks fell away prior to Yom Tov. That being the case, the Be'ur Halacha maintains that ideally one should not rely on the leniency of the Rif and Rambam.

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