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Thought for the Day: Not Quite Cunning Evasion, But Close

People used to wear a kind of garment that as keep closed by putting deely-bob under the garment on one side, bunching the cloth around the deely-bob, then wrapping a cord from the other side of the garment around the neck of the bunched up cloth under the deely-bob; these keeping the garment closed.  Think toga.

Imagine a kid sitting in the middle of a public thouroghfare on Shabbos and screaming at the top of his lungs that he wants a walnut.  His frantic mother has just found a walnut at home and is now trying to figure out how to get it it out to him (the little brat... I mean sweetheart won't budge without his walnut).  She sends her totally frustated husband to run to ask R' Fuerst what to do.  He get there and finds two groups queued up and he joins one; patiently waits his turn.  Finally, there is no one between him and the rav; R' Fuerst turns to him and says, "One moment; other line."

The Shulchan Aruch OC 303:23 says that if a mother needs to take a walnut out to her kid  in the public thoroughfare and so she uses the walnut as a replacement for her toga's deely-bob; then it depends.  If he is in a karmelis, go for it; if he is in a r'shus harabim, sorry... the kid's not getting his walnut out there.

The p'sak is a little funny, because we usually don't distinguish between a karmelis and r'shus harabim when it comes to carrying, just like we don't distinguish chicken and beef when it comes to mixing with milk.  The Mishna Brura makes a funny comment (sk 76): it is assur (in the r'shus harabim) because if looks like a cunning evasion (aka haramah).  "Looks like"?  Seems to be to be pretty straight out a haramah, to me!  After asking around, I discovered a cool distinction.  A haramah is when I create an unnecessary situation in order to permit some basically b'di'avad action.  In this case, though, holding the garment together is actually necessary, it's simply that one could use the deely-bob just as well as the nut.  Using the nut, then, is not a real haramah, but seems awfully close.  In such a case, the Shulchan Aruch forbids the subterfuge if not using it would an issur d'oraisa, but permits the subterfuge if using it only avoids a d'rabanan and there is a necessity.

Another (more common, in my experience) example is when you want to put water into the crock pot insert after lunch so that cleanup will be easier after Shabbos.  Assuming you are just keeping it from getting dried out, you can wash your hands over the liner.  Since you need to wash your hands anyway, the Torah does not require you to move the liner out of the way.  (If the cholent is already dry and you are re-hydrating it, it's worse; this is the safest course of action.)

Why can we use this subterfuge on issurei d'rabanan and not d'oraisa?  Yep... we need to talk about that.


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