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the Yad Ramah (in Sanhedrin, ibid, s.v. tanya). Certainly, the phyician
is not obligated to prevent the desecration of Shabbos at the cost of
tremendous expenses he will have to bear. He is allowed to bring the
husband to the hospital to express his opinion about the surgery, even
if it involves desecration of Shabbos.
However, one can differentiate between the two cases. The per-
son who extinguishes the burning coal rather than standing guard
over it the whole Shabbos, is doing an act which is essentially saving
lives. Even though with extreme effort he could have prevented this
desecration of Shabbos, once he is doing the act, it is not a peripheral
desecration of Shabbos but an act that is actually saving lives. On the
other hand, the physician who is not prepared to perform surgery
without the husband’s consent, causes a peripheral desecration of
Shabbos, one that has nothing to do with the saving of life itself. It is
the surgery that will save the woman’s life; not the act of obtaining her
husband’s his consent. Only if, for example, the woman’s husband was
a surgeon himself, and the physician would say: I do not want to do
this surgery. I prefer transferring this woman to her husband’s care, at
the cost of a desecration of Shabbos, would this resemble the case of
the burning metal. In this case, transporting the patient would be an
actual act of saving her life, and not something peripheral. However,
we have not heard of any posek who would allow the husband to be
brought in order to obtain his consent.
However, from the words of the Ran in Tractate Shabbos (38a, in
the page of the Rif, s.v. mahani) it is possible to learn that even pe-
ripheral matters, which are not part of the actual saving of a life, were
permitted by our Sages in order to prevent any delay to the act of sav-
ing a life. He brings the words of the Jerusalem Talmud (Shabbos 13:6):
If one sees a child drowning in the river and his intent is to pull him
out in a net of fish, this is permitted. The Ran writes, as follows: The
reason is that this act is a mitzvah and it is his obligation. Therefore,
even though his intent was for another action, which is prohibited
on Shabbos, the Sages permit it so that he should never forgo a case
of pikuach nefesh, which is his obligation. Indeed, the Sages permit
someone to throw a net into the water with the intention of catching
330 1 Medical-HalacHic Responsa of Rav ZilbeRstein
does not apply. Therefore, it is preferable to violate a Rabbinic prohi- #
bition rather than a Torah prohibition.
According to this, in our case if we assume that more people in the
car and more weight is a violation of a Torah prohibition, then one
should not send someone to accompany her. If it is a Rabbinic pro-
hibition, it is preferable for someone to join her in order to prevent
yichud. If there is no one to accompany her, then she can violate the
prohibition of yichud in order to fulfill the mitzvah of returning a lost
object.
We can, however, challenge this, based on the Gemara in Baba
Metzia (30a), which asks: Why do we need to point out that it is
prohibited by a Kohen to become ritually impure in a cemetery in
order to return a lost object? A positive commandment about money
cannot set aside the negative precept of becoming ritually impure!
Based on this, one can ask: How can the positive precept of returning 20818_efi-ab - 20818_park-C_efi-ab | 11 - A | 18-08-20 | 13:46:25 | SR:-- | Magenta
a lost object, which refers to money, set aside the negative precept of #20818_efi-ab - 20818_park-C_efi-ab | 11 - A | 18-08-20 | 13:46:25 | SR:-- | Yellow 20818_efi-ab - 20818_park-C_efi-ab | 11 - A | 18-08-20 | 13:46:25 | SR:
yichud, which is a prohibition? My father-in-law, Rav Y. S. Elyashiv,
answered according to Tosfos (in Shevuos 30b, s.v. aval). There it states
that the fact that negative prohibitions are more stringent than mitz-
vos involving money is because issues involving money can be forgiv-
en. According to this, it is clear that only for money matters that can
be forgiven does a positive precept not set aside a negative precept.
This would not apply then, to the return of one’s health, which cannot
be forgiven. As explained in Tractate Baba Kamma (91b), a person has
no right to wound himself and to cause pain to himself.
I also realized, that according to the opinion of the Shem Aryeh it
emerges that the prohibition of yichud is permitted to save an organ
or limb, or in the case of a serious illness of the body, for the mitzvos
of guarding one’s health and returning a lost object apply to both of
these situations as well. Even according to the view of the Pri Mega-
dim (Orach Chaim #328 in Mishbetzos Zahav #7) whose opinion is
that according to the Shach (Yoreh De’ah #157:3) it is permissible to
transgress a prohibition where there is danger to an organ or limb, it
is permissible to violate the prohibition of yichud for the same reason.
See Tosfos (Baba Kamma 85a, s.v. ayvar) which states that if one eats
Traveling on Shabbos to Prevent Seclusion 2 315