Levisha and Haalah

Kilayim (9:2) | Yisrael Bankier | 2 years ago

In the final perek of Kilayim we learn about kilayim related to clothes made with wool and linen -- shatnez. The Mishnah (9:2) taught that even if the prohibited garment is worn on top of many others it is still prohibited. That would also be the case even if it was worn to avoid illegal tax collection. In other words, even if they are worn in a manner that is not for clothing benefit, it is still prohibited.

This Mishnah however appears to contradict a latter one (5:2) that teaches that clothing merchants can sell their kilayim clothes in the "normal fashion". In other words, if they are not wearing their products to shade them from the sun or rain, they can put them on to show the sizing to their customers. According to that Mishnah, intention is indeed important.

The Bartenura explains that the two Mishnayot are indeed contradictory and present two different opinions. Our Mishnah is according to the opinion that davar she'eino mitkavan is assur whereas the Tana in the later Mishnah maintains it is mutar (see Rash and Rosh). Indeed, the Tifferet Yisrael explains that since we rule according to R' Shimon that davar she'eino mitkavan is mutar, both cases would be permissible.¹ The Rambam however rules like both these two Mishnayot which would seemingly present a contradiction in his ruling (10:16,18). We shall try to understand the position of the Rambam.

The Kesef Mishnah suggests that in our Mishnah, even R' Shimon would agree that if one is wearing kilayim, despite the fact that davar she'eino mitkavan is mutar, one will still violate the prohibition of "you shall not wear shatznez". In the later Mishnah the merchant was not permitted to wear the kilayim (levisha) but rather simply throwing it over him (ha'alah) to demonstrate the size.

The Mishnah Rishona however finds this distinction difficult considering that ha'alah is also biblically prohibited (Vayikra 19:19). The Mishnah Rishona therefore cites the Rambam (10:19) who explains that it is only clothing that one wears for warmth -- derech chimum - that are prohibited, e.g., trousers, shirts, etc.¹ Other objects, e.g purses, bandages, would not be prohibited. The Mishnah Achrona therefore explains that in our Mishnah it is prohibited, since it is worn derech chimum, even if in this case the intention is to avoid the illegal tax. In the case of the merchant, since it is the standard practice for the sellers to display the clothing in this manner, it is considered like a garment that is not worn derech chimum.

The Derech Emuna (19:83) however explains that when the Rambam rules that only clothing that are derech chimum are prohibited, that is regarding those objects to which kilayim applies -- even if momentarily not worn derech chimum. The Derech Emuna (19:75) notes that when the Rambam rules in the case of the merchant, he permits him to place it on his shoulder -- that is ha'alah. The merchant however would not be allowed to wear the garment. He therefore explains much like the Kesef Mishnah, that there is a difference between ha'alah and levisha. Nevertheless, why should there be a difference between ha'alah and levisha?

The Beit Ha'Levi (1:1:6) raises the Mishnah Rishona's question and answers as follows. The Gemara (Yevamot 4b) asks why both hala'ah and levisha are mentioned in the Torah. Haa'alah is needed to teach that not only wearing is prohibited. Levisha is needed to qualify which ha'alah is prohibited. Not any ha'alah, but only that which provides benefit to the wearer. The Beit Ha'Levi explains that the Rambam understands that the qualification that the ha'alah must provide benefit is only for ha'alah but not levisha. That is why for the merchants, provided it is a davar she'eino mitkaven, it is mutar. For levisha however that qualification does not apply, and it is forbidden to wear the clothes in all cases. The Beit HaLevi suggest that the reason that the qualification does not apply for levisha is from the juxtaposition in the Torah of the mitzvah of tzitzit and the prohibition of wearing kilayim (from which many halachot are learnt). He cites the Beit Yosef who rules that a garment, even if it is not worn for warmth, requires tzitzit. Consequently, just as the prohibition of wearing a four cornered garment without tzitzit applies regardless of why it is worn, the prohibition of wearing kilayim is the same.

¹ We discussed the issue of davar she'eino mitkavan as it relates to the later Mishnah in a previous article, 7(18).

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