The Mishnah (10:6) taught that one is not allowed to stand in the private domain and (lean over) and drink in the public domain or stand in the public domain and drink in the private domain unless his head and a majority of his body is extended into the other domain. We shall try to understand the basis of this ruling.
The Bartenura explains that the Mishnah discusses a case where the person needs the keilim (utensils) that he drinking from. In that case, the Chachamim were concerned that he would transfer the keilim into the domain in which he is standing, thereby violating a biblical prohibition. The Chachamim therefore forbade the drinking across a domain based on this concern, unless his head a most of his body were stretched into the other domain. The Bartenura adds that if one did not require those keilim in the other domain, then the gezeira would not apply and one could drink from that kli in the other domain without stretching most of his body into that domain.
The Tosfot Yom Tov explains that the explanation is necessary otherwise this Mishnah would contradict an earlier one. We learnt (10:4) that on can stand in a private domain and move items in a public one. The Tosfot Yom Tov explains that that Mishnah must be referring to moving items that one does not need. Consequently, in that case there was no reason for the gezeira that applies in this Mishnah.
The Tosfot Yom Tov continues that one might think that this Mishnah contradicts the previous one. We learnt that one may not stand in the private domain and spit into the public domain. There the Bartenura explains that when spitting it considered as if on is transferring from the private domain (his mouth located in the private domain) to the public domain. The Tosfot Yom Tov cites Rashi that explains our case is different since the person’s mouth is in the same domain as the kli from which he is drinking, and it immediately “rests” in that location.
The Tosfot Yom Tov continues citing the Rosh who explains that even though the water ends up in the persons stomach that is located in the other domain, his mouth is considered a makom patur and since the water rests there momentarily, it is permitted. To explains, one is allowed to transfer items between a private or public domain and makom patur. Consequently, no melacha has been performed. This is also how the Tosfot understand Rashi’s explanation.
The Tosfot (20a, s.v. lo) however notes that even though one can transfer items to and from a makom patur the Chachamim forbade one from transferring items between a private and public domain via a makom patur out of concern that one would transfer the item directly from the private to public domain. Consequently, in this case, the fact that we consider the mouth as being a makom patur should not help since the water is ultimately being transferred from the public to private domain. The Tosfot answer that in this case since there is no way of avoiding the water resting in one’s mouth momentarily, that gezeira does not apply.
If we are considering one’s mouth as being a makom patur then we must one again return to the earlier Mishnah that forbad one from spitting from the private domain to the public one. If one’s mouth is considered a makom patur there would be no reason to forbid this practice. The Tosfot answers that one’s mouth is only considered a makom patur if it is in a different domain to his body.1 The Tosfot therefore explains that according to this reasoning, one would be able to stretch his head into the public domain and spit.
The Ritva however explains Rashi differently. He explains that the mouth is considered like the domain in which it is located. Consequently, when drinking in the public domain, it is as if the water rested in the public domain. Even though the water will then travel into the person’s stomach in the private domain, that is happening by itself. When the person did akira (lifting) and hanacha (placing) it was all in same domain which is permitted.
1 It is only when they are in the same domain, that the Gemara explains one’s machshava, e.g. want to remove the spit, makes the mouth considered as if it is a place of significance, a place of four-by-four tephachim.
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