הרב יואל בן

First appeared in Hebrew in “Mishlav” 27, Adar II, 5755 and in “Techumin” 17, 5757

The Problem

Dairies that produce milk products seem to prefer - for commercial reasons - to market them packaged in pairs (e.g. yogurts etc.), connected to one another from the time of production. In order to simplify their separation, a perforation is pre-cut into the connection between the two tubs. The question is, may one break this connection and separate the packages on Shabbat?

Before entering into the main area of discussion, it is worth noting that at times on the aluminium foil lids appear pictures or letters that also cover the perforation between the two tubs. In this case, it would be forbidden to separate these packages due to the prohibition of rubbing out. Regarding this the Rema writes:[1]

It is forbidden to break a cake upon which appear types of letters even though the intention is only to eat, seeing as this is rubbing out.

“Types of letters” - there are those who are stringent even with regard to pictures as this is rubbing out, for even though he is not rubbing out in order to write, nevertheless there is at least a Rabbinic prohibition.

The Dagul Mervava[3] notes that according to the opinion of the Shulkhan Arukh there is no need to be strict in this instance, for after all, (a) it is only a Rabbinic prohibition, (b) his intention is not to rub out, and (c) he is doing it in an unorthodox manner. Despite this, in practice, the Rabbis were only lenient - to break the letters - when actually in the process of eating. However, when separating these packages, the latter authorities tended to be strict and warn against tearing across packages with writing upon them.[4] On this matter, it appears to me that if one carefully tries to remove the cover and it is not certain that the cover will be torn, even though in the final result some of the letters are torn, no prohibition has been transgressed. The reason is that it is not psik reisha - a definite consequence of a different action - and where there is a doubt that there will be a definite consequence, that is, in this instance, that by removing the cover it may or may not tear through the words, it is permitted, especially if one adds to the equation the considerations raised by the Dagul Mervava.

Even when the cover has been removed and the perforation that separates the two packages is free of other pictures, the questions still remains: may one separate the packages?

It would appear that this question needs to be approached from three perspectives:

3. Does it transgress the prohibition of "maké bepatish" (striking with a hammer) - applying the finishing touches to an otherwise complete article?

It would appear, at first glance, that one is forbidden to separate these packages due to the prohibition of cutting.

For it is the way of the shoemakers that when they come to cutting, they first score [the leather] according to their needs so as to know whether to lengthen, widen or shorten the cut. After this, they pass a knife through the mark, and similarly, this is what they did with the leathers of the Tabernacle.

One could surmise from his words that the melakha of cutting is that which cuts along a pre-existing score, with the intention of cutting a certain length. This is also apparent in the words of the Maimonides:[5]

One who cuts from leather in order to make an amulet is liable, and this is only if he intended for a certain length and width and that he cut knowing that it is a labour. However, if he cut in a manner that causes a loss or without intending for a specific length but rather simply because he was engaged in cutting or he was playing, he is exempt.

It also seems from Maimonides that the melakha of cutting is conditional on the person's intention to make a precise cutting where the dimensions are important in themselves. Maimonides bases his ruling on Shabbat 74b:

Rav Menashe said: "He who cuts chips [for fuel] is liable on account of grinding".

Said Rav Ashi: "If he is particular about their size, he is liable on account of cutting".

That is, a condition for being liable for the melakha of cutting is that one cuts a pre-intended size. Therefore, according to Maimonides, one who merely cuts, without intending on any particular measurement, is exempt, though nonetheless it is prohibited.

In our case, the cut will generally be made along a pre-marked and perforated edge, though not because the person is interested in this or in cutting a particular length, but rather because the material along this line is at its weakest and this lends itself to separation at this point.

Therefore, it would appear that one cannot prohibit the separation of the packages in our case because of the melakha of cutting, as this melakha is only applicable to precise, measured cuts. Therefore, non-precise cutting needs to be examined under the melakha of tearing and not under the melakha of cutting.

From the perspective of which materials are governed under the melakha of cutting, it would appear that it is applicable also to plastics. The author of Tiferet Yisrael, R' Yisrael Lifshitz, in his work Kalkalat Shabbat paragraph 31, basing himself on Shabbat 75b, defines this melakha as follows:

...One who cuts or saws wood, metal, clay or any other material, is particular about its length or width and cuts or tears it according to his needs.

From here it is evident that a person who cuts any material according to precise measurements is liable on account of the melakha of cutting.

A further reason for leniency arises is the Beiur Halakha.[6] It would appear that the melakha of cutting applies only to cutting with another instrument. However, he concludes that everything is dependent on the general way that one cuts the particular material:

Regarding the final ruling, it would appear to me that within the melakha of cutting, each cutting needs to be examined in its own right. For a material that is normally cut with an instrument, the melakha of cutting does not apply unless it is cut with an instrument, as we find similarly with the melakha of shearing in Shabbat 94b that one is not liable for shearing with one’s hand. Something that is normally separated into two by hand [as we found regarding certain products that are separated into two by tearing] – one is liable for cutting even though he does so by hand, as we found similarly with the melakha of uprooting, where one is liable for uprooting with an instrument or by hand, as Rashi explains in Shabbat 73b regarding the words “It is not normal”. However, all this only applies if he is particular about the measurement as we brought in the name of Maimonides. Nonetheless, all that we have written (that everything is dependant on the way it is normally cut) is only said with regard to transgressing a Biblical prohibition. However, it will always be forbidden from a Rabbinic perspective just as shearing (by hand) is forbidden by a Rabbinic decree.

According to what the Hafetz Hayim wrote, one must be stringent in this case at least from the perspective of a Rabbinic injunction. However, as we mentioned above, as one isn’t cutting here according to a specific measurement, one can be lenient here. A proof for my statement can be found in R’ Neuwirth’s book, “Shemirat Shabbat Kehilkhata – Corrections and Additions”:[7]

I heard from R’ Shlomo Zalman Auerbach, that seeing as when one is cutting one is not particular about making it long or short, rather he is cutting it in the easiest place, this is not included within the melakha of cutting, and there are many such instances.

These words were written with regard to tearing toilet paper along the perforations and it appears to me that they are similarly applicable in our case.

From his words it would appear that he would permit breaking apart the packages, however, it seems from Maimonides that it would nonetheless be Rabbinically forbidden, and that the matter requires further investigation.

Even tearing that is not forbidden due to cutting is nevertheless forbidden on Shabbat, although the Mishna[8] applies a condition to the liability: “one who tears in order to sew two stitches”. The Gemara argues that the action of tearing in the Tabernacle happened when there was a hole in the canvas and there was a need to tear the canvas in order to sew up the area afresh and hide the missing part of the canvas.

1. Is tearing that is in itself a repair forbidden, even though it is not for the purpose of sewing?

2. Is the melakha of tearing only in a material that is sewn or is it also applicable to plastics and aluminium?

The Shulkhan Arukh,[9] quoting directly from Maimonides,[10] writes: "One may not break pottery nor tear paper as this is akin to repairing a vessel". Maimonides bases himself on the Mishna in Beitza that states: "One may not break pottery not tear paper [on Yom Tov] in order to roast a salted fish". The Gemara remarks on this Mishna: "What is the reason [for the prohibition]? For he is repairing an object."

Rashi on the Mishna states that the pottery would be broken and then placed between the fire and the fish so that the fish should not be burned, and this looks like one is making a vessel. The question to be asked is why this action was not forbidden because of the melakha of tearing, for surely the person is tearing in order to repair? The Beiur Halakha[11] grapples with this issue. He tries to distinguish between tearing where one needs both parts in order to sew them back together, and between tearing where one needs one part of the torn article but not the other. A condition for liability in the melakha of tearing is that both parts are needed, therefore, if one tears and only needs one part of the torn article, for example, tearing some paper from a roll of toilet paper in order to use it, this is not included within the melakha of tearing, but rather under the category of repairing a vessel. Therefore, the Beiur Halakha establishes that the Gemara in Beitza was discussing a case where the person needed only one piece of the pottery or paper and not all of it, and therefore the action was forbidden only by a Rabbinic injunction - it was akin to repairing a vessel - and not because of the Biblical prohibition of tearing.[12] Therefore, in our instance, seeing as one needs both packages and by separating them one is repairing them, it would appear that the Beiur Halakha would prohibit their separation under the prohibition of tearing.

It is not clear if the intention of the Beiur Halakha is only with regard to paper whose tearing is forbidden in the Mishna due the melakha of tearing, or whether it is also with regards to pottery whose breaking is forbidden for the same reason. The reason is that from a linguistic perspective, "tearing" is not an applicable term to pottery or any other firm substance. The Shulkhan Arukh states:[13] "one who sticks paper or leather on to the spines of books and the like, this is a derivative of [the melakha of] sewing and one is liable. Similarly, one who disbands papers or leathers that are stuck together and did not intend merely to ruin them, this is a derivative of [the melakha of] tearing and one is liable".

It is apparent from here that sticking and disbanding are derivatives of sewing and tearing. The Shulkhan Arukh only mentioned paper and leather. The Beiur Halakha contends that sticking wood to wood is also a derivative of sewing, and therefore, disbanding these bits of wood or sawing them apart would be forbidden due to the prohibition of tearing. This new innovation of the Beiur Halakha is not necessarily accepted. He relies on Rashi's interpretation of the Gemara:[14] "Abbaye said: He who makes a wicker-work is liable for eleven sin offerings, and if he sews round its mouth he is liable for thirteen sin offerings". Rashi there expounds: "If he sews round its mouth - in order to give it a lip, therefore [the melakha of] sewing was added..."

From here the Beiur Halakha learns that sewing is applicable to wood. However, it is possible that what the Gemara is discussing here is the weaving of reeds, as is apparent from Rashi's description of the wicker work: "...if he smoothed them he is liable for smoothing, if he split them lengthwise into thinner rods he is liable for grinding" and similarly in the description of their weaving.

It is clear in this case that the thin reeds were in fact woven together and this is exactly like sewing, and therefore the Beiur Halakha likens this to the sewing of cloth. However, it is a great leap to compare the weaving of reeds to the sticking together of pieces of wood and to liken both to sewing. Similarly, it is a great leap to compare the sawing apart of bits of wood to tearing, and therefore the argument of the Beiur Halakha is not compelling.

From what we have just stated, it would appear that as in the case before us, one cannot apply to hardened plastic the concept of tearing and therefore one cannot prohibit separating the packages along a perforation due to the melakha of tearing.

The manufacturing process of these packages begins by heat-pressing, whereby an entire production line of these packages is moulded into shape. After this, a machine cuts and separates every second tub, and between every other package it merely marks and perforates the division but does not separate them completely. The question is therefore raised: is the separation by the customer to be considered as the completion of their production, thereby making them liable under the prohibition of maké bepatish?

If we were to assume that by separating these packages one is making a receptacle for drinking or indeed for any other purpose, then one would be liable for maké bepatish. However, if one's intention is merely to easily facilitate the eating of the contents of the package and afterwards the package is thrown away - this issue needs further examination. Maimonides, when discussing the law of maké bepatish, writes the following:[15]

One who performs an action that finishes the labour, this is a derivative of maké bepatish and one is liable. How is this so? One who blows a glass vessel or one who constructs with a tool a construction, even part of a construction...be it with wood or metal, be it in the construction of a building or of a vessel, this is a derivative of maké bepatish and one is liable...

According to this ruling it is possible to understand that Maimonides necessitates that the action be the completion of the article or the building, whilst in our case we are discussing a disposable package that is thrown away after its use, and does not have the name “vessel” attached to it at all.

It seems that one ought to compare these packages and how they are used to that which the Shulkhan Arukh writes:[16]

Wicker wrappers of dates and raisins, if the cover is tied on with a rope, one may untie and unravel the ropes. One may even cut them with a knife, and one may even cut through the wicker wrappers themselves, for all this is akin to breaking nuts or almonds in order to eat the fruit that is within them.

The Mishna Berura[17] explains that the wicker wrappers are date branches that are woven and shaped into types of baskets. It would appear that this container was designed to be used once and then disposed of, much like the containers discussed in our case. The Mishna Berura later adds as a prerequisite: "...specifically these containers that are not fully defined vessels and are only used in order to allow the dates to fully ripen within them. However, with regard to a proper vessel, the Shulkhan Arukh has already stated clearly at the beginning of paragraph 7 that it is forbidden..."

If this is so, then in our case, although the yoghurt pot may be a type of vessel, it was manufactured for the specific purpose of being a wrapper. Therefore, it is to be considered like the peel of a fruit and one may tear it, just as one is permitted to tear other packages on Shabbat for the purpose of eating their contents.[18] However, in our case, we are discussing separating one tub from the other and not about opening the package itself. Nonetheless, it is not evident that this changes the essence of the ruling that one should view these packages as though they are wicker wrappers of dates and raisins that are considered to be like the peel of nuts, which one may tear with the intention of eating.

R' Moshe Feinstein in his book "Igrot Moshe"[19] writes that from the viewpoint of the law itself, one may open such packages on Shabbat. However, he requires that one should make sure that all such packages are separated before Shabbat, so that one should not mistake packages that may be opened on Shabbat with those that may not be opened.

It seems that this is the way one should act in our case. Even though I have tried to argue that there is no melakha of cutting, neither tearing nor maké bepatish, nevertheless, we are not free of all the doubts relating to this issue. For after all: (a) one is separating along the perforations that Maimonides seems to prohibit, (b) according to the Mishna Berura there is tearing even in a firm material, and (c) it is also possible that the tub is considered a vessel and that by separating it from its partner one is completing the vessel. Therefore, it would appear to me that one ought to be particular and separate the packages before Shabbat. Post facto, if one did not separate them before Shabbat, it is correct to refrain from separating them on Shabbat. Nevertheless, one who does separate them on Shabbat, in my opinion, is not to be considered a transgressor, in that I have shown that there are also reasons for leniency in this matter.

[1] Shulkhan Arukh, Orah Hayim, 340:3.

[2] ibid. subparagraphs 15-16.

[3] Orah Hayim, 340:3.

[4] See Mishna Berura and Shemirat Shabbat Kehilkhata.

[5]The Laws of Shabbat, 11:7.

[6] 322:5, regarding the words “Ehad kashim”.

[7] Page 40, note 55.

[8] Shabbat chapter 7, Mishna 2.

[9]340:13.

[10] The Laws of Shabbat 23:6.

[11] Regarding the words "One may not break pottery".

[12] With regards to the actual law, the Beiur Halakha ultimately contends that one is liable for tearing in order to repair even though it is not in order to sew.

[13] 340:14.

[14] Shabbat 74b.

[15] The Laws of Shabbat 10:16.

[16] 314:8.

[17] ibid., sub-paragraph 40.

[18]The ruling just presented regarding opening of packages on Shabbat is involved and complex and requires certain pre-conditions, however, it would appear to me that one can certainly apply to it the conditions set forth in the Shulkhan Arukh 314:8.

[19] Orah Hayim I, section 122 sub-section 10.

SEPARATING PACKAGES ON SHABBAT

Rav Elyashiv Knohl

The Problem