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precept, one should violate the prohibition rather than be killed. The fish, which is prohibited on Shabbos, so that he should never withhold
Nimukei Yosef’s proof, based on the aforementioned Gemara, is not from acting in a case of pikuach nefesh. Therefore, in our case, if there
really proof, since, in that case, the man brought the danger upon is a possibility that a legal fine or a legal battle will stop someone from
himself. “It is the foolishness of man that perverts his path” (Mishlei saving a life in the future, perhaps we can allow bringing the husband
19:3). He should have conquered his inclination and calmed himself. to the hospital on Shabbos.
Furthermore, it was not clear that merely speaking to her behind a One can perhaps reject this line of reasoning, however, because
#
partition would save him from danger. (See there in Shach :10) trapping fish, as described above, is only a Rabbinic prohibition.
The Shem Aryeh rules that when it says one should be killed for Pulling in the net is necessary, and the intention of also obtaining fish
the prohibition of forbidden relations, this relates to prohibitions of cannot turn the act into a Shabbos prohibition. In our case, however,
sexual misconduct that involve the punishment of kareis (premature there is an additional Shabbos prohibition in bringing the husband to
death or extinction), but negative precept prohibitions and certainly the hospital.
those prohibitions for which there is not even a negative precept, are It seems though, that we should not make this claim, since it does
suspended for pikuach nefesh. This is in accordance with the principle not hold up if we explain the words of the Ran as follows: The Sages 11
that a positive precept sets aside a negative precept, and saving lives allowed a person to cast his net in a way that also traps fish in order
is included in the postive mitzvah of returning a lost object (Devarim for him not to think that he is violating a Torah prohibition at the
22:2), while saving oneself is included the mitzvah of “And watch well time he is saving the drowning child. Therefore, they permitted doing
over your lives” (Devarim 4:15). Thus these positive commandments so even if his intent is clearly only to trap fish and violate a Shabbos
will take precedence to the negative precepts connected to forbidden prohibition, and at the very least, to violate the prohibition against
relations. “marbeh b’shi’urim” (increasing quantities) which, according to the
Regarding the man whose heart was filled with lust, the Sages ruled Ran, is a Torah prohibition. (Thus it turns out that he is doing a com-
that he should die rather than speak to the woman. This is because plete act of trapping fish. Nonetheless, our Sages permitted this, and
in his case, the positive precept of saving his own life resulted from the same would apply in our case.) Even if we explain that the Sages
his own sin in setting eyes on the wife of another. A positive precept only allowed him to intend to trap fish, meaning that they did not
that results from one’s sins does not suspend a negative precept, as obligate him to have the intention of discarding the fish after saving
explained in Tosfos in Tractate Eruvin (100a, s.v. matan). In our case, the child, thus violating only a Rabbinic prohibition, even so, it still
however, the midwife is trying to save lives. Certainly the prohibition seems, based on the Bi’ur Halacha (#316:8, s.v. u’lehav Rambam) that
of yichud is set aside for the positive precept of “You shall return a lost this intention turns the act into a Torah prohibition. Yet in spite of
object” [including one’s lost health]. all this, the Sages permitted it. If so, the same applies to our case, as
Despite this, the Shem Aryeh concludes that it is preferrable to explained above.
send along a Jewish watchman to accompany her, so she can avoid We can also explain the Ran as follows: The Sages’ intention here
transgressing the prohibition of yichud. He explains that the prohi- was to give a person an “incentive” to save the drowning child. So that
bition of techumin (walking or traveling on Shabbos more than 2000 the person not hesitate to jump into the water on a cold day, our Sages
cubits from the city limits even more than twelve mil) is ruled by ruled that the fish that come up in his net upon saving the child are
many Rishonim to be only a Rabbinic prohibition, and the wagons permitted to him. This explains the terminology used in the braisa
are above ten tefachim high, where the Torah prohibition of techumin in Yoma (84b): “If one sees a child falling into the sea, one casts a

314 1 Medical-HalacHic Responsa of Rav ZilbeRstein Demanding relatives' consent on Shabbos 2 331