QUESTION: Rav expresses a general rule that "anything prohibited by the Rabanan because of Mar'is ha'Ayin is prohibited even in the innermost chambers." This rule, however, seems to contradict the ruling of the Gemara in Kesuvos (60a). The Gemara there rules that if a gutter pipe on the roof of one's house becomes clogged, causing water to flood the roof and drip into the house, a person is permitted to kick away the debris covertly ("b'Tzin'a," in private) in order to unclog the pipe. He should not do so publicly, because those who see him do it might think that he is fixing his pipe on Shabbos which is prohibited (because of Metaken); they will not realize that he merely wants to clear out the pipe to avoid damage to his property.

The Gemara there clearly permits a person to do an act in private which, when done in public, is prohibited because of Mar'is ha'Ayin. How is the Gemara here to be reconciled with the Gemara in Kesuvos?

(a) Based on the Gemara in Kesuvos (and elsewhere), some Rishonim rule that the Halachah does not follow Rav in this regard, and one is permitted to do an act in private which is prohibited in public because of Mar'is ha'Ayin (RABEINU NISIM GA'ON, cited by Tosfos, Avodah Zarah 12a, DH Kol Makom, and by the ROSH, Shabbos 22:9; RABEINU EFRAIM, cited by the Ba'al ha'Itur, Hilchos Yom Tov, section 4; the BA'AL HA'ME'OR in Beitzah 4b and Shabbos 28b (of the pages of the Rif); and the RE'AH in Beitzah 9a).

The Rishonim cite further proof that the Halachah does not follow Rav's ruling from the Yerushalmi in Kil'ayim (9:1).

(b) Most Rishonim, however, rule like Rav (RIF, Shabbos 146b; RAMBAM, Hilchos Shabbos 22:20, Hilchos Yom Tov 5:4). They differentiate between the case of the Gemara in Kesuvos and the cases to which Rav's rule applies. As an example for where Rav's rule applies, the Gemara here cites a Beraisa in which the Tana Kama permits one to spread out clothes in a private place to dry in the sun on Shabbos. One is prohibited, however, from spreading out clothes to dry in a public area because of Mar'is ha'Ayin; people will suspect that he not only dries his clothes on Shabbos but that he washes them on Shabbos as well. Rebbi Elazar and Rebbi Shimon prohibit one from spreading out his clothes even in private, because they maintain that whenever there is a concern for Mar'is ha'Ayin the act is prohibited even in the innermost chambers of one's home.

1. TOSFOS in Kesuvos explains that in the case of the Gemara there, even if one fixes his pipe in a manner which is not permitted he transgresses only an Isur d'Rabanan, since he fixes it in an unusual manner (with his foot). Therefore, the Rabanan did not prohibit the act when done in private. In the case here in Beitzah, on the other hand, people will suspect that the person did something which is forbidden mid'Oraisa, and therefore the Rabanan prohibited it even in the innermost chambers.

2. Others note that there is a basic difference between the problem of Mar'is ha'Ayin in the case here in Beitzah and the problem of Mar'is ha'Ayin in the case in Kesuvos. In the case of the Gemara here, the person did not actually wash his clothes on Shabbos. The concern is that people might mistakenly conclude that since he is setting his clothes out to dry today, he also washed them today. In the case in Kesuvos, the person actually did fix his pipe on Shabbos, an act that could have been prohibited had it not been done for the sake of avoiding a significant loss. In that case, people might not realize that he fixed his pipe in order to prevent damage to his home. The prohibition not to do an act which is subject to Mar'is ha'Ayin in one's private chambers applies only to the former type of Mar'is ha'Ayin -- where people may think that the person is doing something different from what he is actually doing. This difference is explained in various ways by the Rishonim.

The RASHBA here explains that when a person performs a permissible act which onlookers may think is prohibited, the prohibition of Mar'is ha'Ayin is not as severe; one may perform the act in his innermost chambers. Cleaning out a pipe to prevent damage to one's home looks prohibited but is actually permitted. In contrast, when the act is normally not permitted under any circumstances, the Rabanan were more stringent and prohibited the act even in one's innermost chambers.

The RAN differentiates between these two types of Mar'is ha'Ayin as follows. When an act is permitted by the Torah but the Rabanan prohibited it because others will think that the person is doing something wrong, the act is prohibited even in one's innermost chambers. In the case of the Gemara in Kesuvos, the opposite logic applies. The act of cleaning a pipe is an act that is normally prohibited (mid'Rabanan), but the Rabanan were lenient and permitted one to clean the pipe in order to prevent a loss and preserve his enjoyment of Shabbos. In such a case, although the Rabanan found it necessary to permit the act, they limited the allowance to doing it in private because of the concern for Mar'is ha'Ayin if done in public. (They did not prohibit it even in private because of the necessity to permit it.)

OPINIONS: The Gemara, in its second version of the incident, records the teaching of the sons of Rebbi Chiya who ruled that one is permitted to lean a ladder of an attic ("Sulam Shel Aliyah") from one window of a bird coop to another. Their ruling was based on their understanding of Rebbi Dosa's statement in the Beraisa. Rebbi Chiya reprimanded them and told them to rescind their ruling, because when Rebbi Dosa said that a ladder may be moved he was not being lenient with regard to a ladder of an attic, but rather he was being stringent with regard to a ladder of a bird coop ("Sulam Shel Shovach").

What is the Halachah with regard to moving a ladder of a Shovach on Yom Tov?

(a) Since Rebbi Chiya ruled like Rebbi Dosa in the Beraisa and said that one is not allowed to move any ladder, even a Sulam Shel Shovach, the Halachah should follow his view and it should be prohibited to move even a Sulam Shel Shovach from one coop to another. This is indeed how TOSFOS (DH Mai) and the RAMBAM (Hilchos Shabbos 26:7) rule.

(b) The ROSH (according to the understanding of the KORBAN NESANEL #30) rules not like Rebbi Dosa of the Beraisa, but like the Mishnah (9a) which permits one to move a Sulam Shel Shovach from one coop to another, even in Reshus ha'Rabim where people may see him move it. As such, the Rosh rules like the first version of the incident of the sons of Rebbi Chiya, in which Rebbi Chiya permitted one to move a Sulam Shel Shovach from one coop to another.

Even according to the Rosh, however, one should be permitted to move only a ladder dedicated exclusively to serving a bird coop. What is the Halachah with regard to ladders which are not used for bird coops, such as ladders commonly found in homes today? Such ladders are not comparable to a ladder of a bird coop, because nothing about them indicates that they are used only for bird coops and not for tarring roofs or for other Melachos. Moving the ladder of a Shovach is permitted only when "Shovcho Mochi'ach Alav," the appearance of the ladder indicates that it is used only for getting birds from a bird coop. Accordingly, common ladders today should fall into the category of ladders of attics, which may not be moved at all on Yom Tov.

However, the Rishonim cite the Gemara in Eruvin (77b) which permits one to move a ladder on Shabbos. The Gemara there implies that any normal ladder, even if it is not the type used only for bird coops, may be moved. How can the Gemara there, which permits one to move any type of ladder, be reconciled with the Gemara here which prohibits one from moving any type of ladder other than one used for a bird coop?

The Rishonim suggests two answers:

1. The Gemara in Eruvin is discussing Shabbos. On Shabbos there is no concern that people will think that a person who moves his ladder is on his way to tar his roof. This is because he will not bring the ladder into Reshus ha'Rabim, as Hotza'ah is forbidden on Shabbos. In contrast, Hotza'ah is permitted on Yom Tov, and thus on Yom Tov there is concern that people will think that one who moves his ladder is on his way to do a Melachah. Therefore, the Rabanan prohibited moving a ladder on Yom Tov even in the innermost chambers of one's home.

2. The Gemara here is discussing tall ladders. Small ladders may be moved on Yom Tov because people do not use such ladders for tarring their roofs (just as they do not use ladders reserved for bird coops for tarring their roofs).

QUESTION: The Gemara points out that the reason why Beis Shamai prohibits one from moving a ladder from one bird coop to another on Yom Tov (9a) is because he maintains that the Mitzvah of Simchas Yom Tov does not override the Gezeirah d'Rabanan. The Gemara asks that Beis Shamai contradicts his ruling in the Mishnah earlier (2a) where he permits one to slaughter an animal l'Chatchilah on Yom Tov and to cover its blood with earth, because he maintains that Simchas Yom Tov overrides the Isur d'Rabanan of lifting earth from the ground (a non-constructive form (Mekalkel) of digging).

The Gemara answers that Beis Shamai's reason for permitting Kisuy ha'Dam on Yom Tov is not because of Simchas Yom Tov. Rather, he is lenient because the person in that case inserted a shovel into the earth before Yom Tov ("Deker Na'utz"), an act which removes any possible prohibition (RASHI, DH mi'Mai).

Why does the Gemara say that "Deker Na'utz" removes any prohibition that otherwise might have been transgressed in the act of picking up the earth? The Gemara earlier (8a) states that even with the shovel inserted in the earth, one digs a pit when he picks up the earth and transgresses an Isur d'Rabanan (but not an Isur d'Oraisa of digging, because he does not need the pit but only the dirt, and thus his act is one of Mekalkel). Kisuy ha'Dam is permitted l'Chatchilah in that case only because of Simchas Yom Tov, as TOSFOS there points out (8a, DH v'Eino Tzarich; see Insights to 8:1:b).

(The SHITAH MEKUBETZES on 8a suggests that digging is permitted l'Chatchilah not only because of Simchas Yom Tov but because it is both Mekalkel and a Melachah she'Einah Tzerichah l'Gufah. However, even according to the Shitah Mekubetzes, an act which is both Mekalkel and a Melachah she'Einah Tzerichah l'Gufah is not normally permitted: one who digs a pit is "Patur" (exempt from punishment), which implies that the act remains prohibited l'Chatchilah. Only when the act is done for the sake of a Mitzvah is it permitted l'Chatchilah, as TOSFOS in Kesuvos (5b, DH v'Im Timzei Lomar, cited by the KORBAN NESANEL #50) clearly states. Accordingly, it is evident that Beis Shamai permits one to dig l'Chatchilah due to the Mitzvah of Simchas Yom Tov.)

RASHI's explanation here is also problematic for this reason. Rashi (DH Heicha) writes that as long as the earth is soft ("Afar Tichu'ach"), the pit is considered dug already ("Chafur v'Omed"). Furthermore, Rashi earlier (7b, DH v'Ha Ka Avid) writes that when a shovel is inserted into the ground before Yom Tov, the pit is considered dug already. Why does Rashi say that the pit is considered dug already when the earth is "Afar Tichu'ach" or when there is a "Deker Na'utz"? The Gemara (8a) clearly states that even with "Afar Tichu'ach" and "Deker Na'utz," the act of digging is still prohibited. Even though the Gemara concludes that one is not liable for digging because he needs the dirt and not the hole, nevertheless it should remain prohibited l'Chatchilah if not for Simchas Yom Tov. (TZELACH, RASHASH)

(a) TOSFOS (8a, DH b'Afar Tichu'ach) writes that Rashi here is correct when he says that "Afar Tichu'ach" removes the problem of digging a pit, as implied by the Gemara in Shabbos (39a). Tosfos asks, therefore, why the Gemara (8a) says that the prohibition of digging a pit applies even though there is "Afar Tichu'ach."

Tosfos answers that "Afar Tichu'ach" permits one to lift the dirt only when two conditions are fulfilled: not only is the dirt that he lifts soft, but the dirt at the periphery of that dirt is also soft, such that the periphery caves in when the dirt in the middle is removed, leaving no sign of a hole. The Gemara (8a) which says that lifting the dirt involves a prohibition of digging a pit assumes that there is hard dirt around the dirt which one wants to remove, such that a hole is left when the soft dirt in the middle is removed.

However, why does the Gemara there make that assumption? The Gemara should answer that there is no problem of digging a pit because the Mishnah refers to a case in which the dirt on the sides is also soft. (MAHARAM)

The RASHBA asks this question and explains that the Gemara indeed could have limited the Mishnah to such a case (with soft dirt around the sides), but the Gemara wanted to give an answer which would explain the Mishnah even if it would refer to a case in which the dirt around the sides is hard.

According to the Rashba, when the Gemara here (9b) suggests that there is no prohibition of digging because of "Deker Na'utz," the Gemara may be reverting to the other possible answer that it could have given earlier (8a), that there is no problem of digging a pit because the dirt around the sides is soft. Hard dirt, however, would be prohibited to be moved mid'Rabanan because of the Melachah of digging, and only the Mitzvah of Simchas Yom Tov permits it (but Beis Shamai does not take into account Simchas Yom Tov). This is what the Gemara here means when it says that it is not Simchas Yom Tov which permits one to use the dirt, but rather "Deker Na'utz" which permits it.

When the Gemara earlier (8a) says that Simchas Yom Tov permits one to remove dirt even though he thereby forms a hole (the dirt at the sides is hard), it was referring to Beis Hillel's opinion, according to Rebbi Yochanan's answer of "Muchlefes ha'Shitah" (that is, it is Beis Hillel who permits one to slaughter and dig l'Chatchilah). Hence, according to Beis Hillel, Simchas Yom Tov permits removing the earth l'Chatchilah even though there is hard dirt around the sides (just as he maintains that Simchas Yom Tov permits one to move a ladder to a bird coop). (This explanation is consistent with the view of TOSFOS, who says that "Muchlefes ha'Shitah" means that the opinions in the first Mishnah (2a) are reversed and it is Beis Hillel who permits one to remove earth l'Chatchilah for Kisuy ha'Dam. Tosfos understands that this answer (the reversal of opinions) remains valid even according to the Gemara's conclusion; when the Gemara concludes that one Mishnah is reversed, this is the one that is reversed. Therefore, when the Gemara (8a) says that the reason one may use the earth even though he thereby makes a hole in the ground is because of Simchas Yom Tov, it follows the conclusion of the Gemara here (9b-10a) which says that the allowance indeed is because of Simchas Yom Tov.)

When Rashi here says that no prohibition of digging applies, he also means that there is no prohibition because the dirt all around the sides is soft. Earlier (8a), Rashi explains that the Gemara assumes that there is soft dirt only in the center, but around the sides is hard dirt. Similarly, when Rashi earlier (7b) says that digging is permitted once there is "Deker Na'utz" even when there is no "Afar Tichu'ach" because the dirt is already "Chafur v'Omed," he refers to a case in which the dirt is soft all around and caves in after the dirt in the center is removed. The Gemara there (8a) follows the opinion of "Muchlefes ha'Shitah," according to which Simchas Yom Tov permits the dirt to be removed, while the Gemara here (9b) follows the other opinion. (TZELACH)

(The Tzelach also suggests that Rashi does not disagree with Tosfos; he agrees that it is the Mishnah on 2a which is reversed and not the other Mishnayos. When Rashi says "here their opinions have been reversed," he does not mean "here, in the second Mishnah," but "here, in Beitzah," as opposed to in Eduyos (4:1) where the Mishnah appears in its original form (see Tosfos). Accordingly, Rashi also may learn that the Gemara on 8b is based on the conclusion of the Gemara here which maintains that the Mishnah on 2a is reversed and Beis Hillel permits digging l'Chatchilah due to Simchas Yom Tov.)

(b) There is another way to resolve why the Gemara here permits digging l'Chatchilah while the Gemara earlier (8a) prohibits it (if not for Simchas Yom Tov). As mentioned above, the earlier Gemara may be attempting to permit digging in all cases, so that the case of the Mishnah not be limited. However, the case that the Gemara includes might not be a case in which there is hard dirt on the sides of the pit, but rather a case in which one digs inside a house, where the purpose of digging is clearly to obtain the dirt (and not to construct a hole). Even in such a case one is permitted to dig for the sake of procuring the dirt.

The Gemara in Shabbos (73b) says that one who digs or flattens dirt on the floor of a house is liable for Boneh (building), and one who digs dirt in a field is liable for Choresh (plowing). Rashi there (DH Patur Aleha) implies that digging a pit (Chofer Guma) for the sake of the dirt and not for the sake of the pit is considered Mekalkel (not done for a constructive purpose) only when it is done in a house. In a field, however, it is not Mekalkel because one benefits from the presence of a pit there (he can plant in it). Therefore, one is liable for digging in a field even if he only needs the dirt (according to Rebbi Yehudah, who maintains that one is liable for a Melachah she'Einah Tzerichah l'Gufah).

This is the intention of Rashi here (8a, DH v'Ha ka'Avid Guma) as well when he says that the problem of digging is that one will be "Chayav Mishum Boneh," and the Gemara answers that it is Mekalkel (because it is done inside of a house). The Gemara's question was only from Boneh, which exists only when one digs in a house; if the Gemara was discussing digging in a field (which constitutes the Melachah of Choresh), it would not have been able to answer that it is "Mekalkel."

Would one be liable if he digs up earth for Kisuy ha'Dam in a field? In a field, one would be exempt because of "Deker Na'utz" -- the earth is "Chafur v'Omed" as a result of the shovel that was inserted into the earth before Yom Tov. Alternatively, he would be exempt when the earth is soft, "Afar Tichu'ach." Why do these considerations not exempt one who digs in a house as well? In a field, a hole is considered plantable already even when it is filled with dirt, as long as the dirt is loose (as Rashi writes in Shabbos 73b, DH Guma), and thus one who removes the dirt is not considered as though he forms a hole. In a house, on the other hand, where the act of digging is prohibited because of Boneh, one is liable because his purpose is to use the dug-out area as a structure (and not to plant in it), and thus when it is filled even with soft dirt it is not yet usable for his purpose. For this reason the Gemara asks that in a house one should be liable for Boneh even if the dirt is soft. (That is, in a house one performs an act of Boneh even when he removes loose dirt. In contrast, in a field one does not perform an act of Choresh when he removes loose dirt since a pit with loose dirt inside of it is already usable.) The Gemara, therefore, must answer that there is a different exemption when one digs in a house: his act is Mekalkel.

When Rashi says (7b) that "Deker Na'utz" renders the earth "Chafur v'Omed," he refers to digging in a field. Similarly, when Rashi writes here that when the earth is soft it is considered "Chafur v'Omed," he refers to digging in a field. When the Gemara earlier (8a) asks, "But he is making a pit," it refers to one who digs in a house. Even though there is "Afar Tichu'ach" (which solves the problem of Ketishah), the soft earth does not solve the problem of digging a pit in a house, because the act of removing the earth is still an act of Boneh. The Gemara answers that the act is permitted because in a house the removal of earth is an act of Mekalkel, and Simchas Yom Tov permits it even l'Chatchilah.

When the Gemara here says that there is no allowance to perform a prohibited act for the sake of Simchas Yom Tov, the Gemara must conclude that the Mishnah permits one to dig only in a field, where the earth is already "Chafur v'Omed," but not to dig in a house, since digging in a house is Asur mid'Rabanan because of Mekalkel and Simchas Yom Tov does not permit it. (This is similar to the Tzelach's answer above.) (M. Kornfeld)