Kilayim Trader and Issurei Hana’ah

Kilayim (9:5) | Yisrael Bankier | 13 years ago

Kilei Begadim (forbidden mixtures involving fabrics) differs from other forms of kilayim in a number of ways. The Mishnah teaches that the prohibition is specifically regarding mixtures of wool and linen (9:1) and only applies when wearing them (8:1). Exactly what qualifies as “wearing” is fleshed out in our learning. 

The Mishnah (9:5) teaches that garment traders can sell their kilayim wares “in the usual manner” provided that when doing so, they do not intend to warms or shade themselves from the elements. The Bartenura explains that the sellers would wear the garments to demonstrate their size and the Mishnah permits such behaviour. The Mishnah should strike us, having just explained that it is prohibited to wear kilayim clothing.

The Bartenura explains that the reason why this case is permissible is because the seller did not intend to gain any benefit from wearing the garment. The explanation touches on a broader debate between R’ Yehuda and R’ Shimon regarding whether it is permissible to perform an act if the intended outcome was not the violated the prohibition (davar she’eino mitkaven). According to the Bartenura our Mishnah follows the opinion of R’ Shimon who permits such a case since the seller intention is to present his wares and not to gain benefit from wearing kilayim.¹

The difficulty with this explanation is that we learn that R’ Shimon agrees, that if the prohibited outcome is certain (p’sik reisha), the action is prohibited despite being unintended (Pesachim 25b). In this case it would appear that when the seller wears the garment, the violation of kilayim is certain. So the question returns: why can the seller wear garment? 

The Tosfot(Shabbat 29b) explain simply that our case is where the outcome of benefit from the clothing is not certain. For example, he is wearing other clothing that are warming or shading him. By explaining that this case is not a p’sik reisha, we can once again say that the Mishnah is reflecting the opinion of R’ Shimon. 

The Tosfot Yom Tov also answers by redefining our case. He explains that in this case the seller is not wearing the kilayim garments, but rather carrying them on his shoulder. In such a case the prohibition of kilayim is different to when wearing it. The prohibition is only when one gains benefit from it, as opposed to wearing kilayim that is prohibited in all circumstances.²

The Ran however maintains that in our case the seller is indeed wearing the kilayim clothing. He explains that in a case involving a prohibition against gaining benefit (issur hana’ah), R’ Shimon would permit a davar sheino mitkaven even in a case of a p’sik reisha.³ How do understand the Ran?

The Minchat Asher explains that the Ran does not mean that if one does not intend to get any benefit from an issur hana’ah then it is not defined as hana’ah, because then there would be no debate between R’ Shimon and R’ Yehuda - all would agree it is mutar. Instead, he explains as follows. Issurei hana’ah are not violated simply because a person benefited from them (Tosfot Pesachim 26a s.v. Otan). It is rather that a person used them for benefit – the act is important. Now since issurei hana’ah are not purely outcome focused, the question of intention returns. In our case, the seller put on the issur hana’ah. R’ Yehuda does not give any weight to intention when dealing with deliberate acts. The seller performs an action and gained benefit for an issur hana’ah; consequently it is prohibited. For R’ Shimon however intention is important when classifying an action; in this case specifically whether the seller action is one of gaining benefit. To explain, if someone dragged a heavy table on Shabbat that would certainly create a furrow, R’ Shimon would agree that it would be prohibited, because the certain violation is directly connected to the action, albeit unintended. In our case however, when the seller wears the garment, because the prohibition is itself connected to intention, the violation is no longer a p’sik reisha.⁴ 

¹ It follows then that the earlier Mishnah (8:2) follows that opinion of *R’ Yehuda.*The Mishnah there prohibited one from wearing kilayim even if his intention was only to evade the tax collector.

² According to this explanation, we have no longer need to say that Mishnayot two and five are present conflicting opinions (see previous footnote). The earlier Misnhah is simply case of wearing, whereas our Mishnah is a case of carrying. The Tosfot Yom Tov uses this answer to explain how the Rambam rules according to both Mishnayot. See the Mishnah Achrona for more in this point.

³ The Ran adds that this is to the exclusion of issurei achila and bi’ah.

⁴ See the Minchat Asher for further detail.

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