גריי מאטר א, הלכות שבת, חליבה בשבתGray Matter I, Laws of Shabbat, Milking Cows on Shabbat

א׳

1Using a Non-Jew and Milking to Waste

ב׳

2Observant dairy farmers face the challenge of how to milk animals on Shabbat. The next three chapters review the solutions to this problem through the most recent developments. Some of this section is based on the writings of Rav Shmuel David in his Sh'eilot Ut'shuvot Meirosh Tzurim.

ג׳

3Source of the Prohibition

ד׳

4The Gemara (Shabbat 95a) states, "Choleiv chayav mishum mefareik" ("Milking is a violation of the prohibition of mefareik, removal"). One who milks a cow removes a liquid from its natural place of origin,¹See Encyclopedia Talmudit (7:738) for a lengthier definition of mefareik. which constitutes a toladah (derivative prohibition) of dash (threshing - i.e., removing the kernel of grain from the stalk).²There are thirty-nine basic categories of prohibited work on Shabbat (avot melachah). Other acts are biblically prohibited because of the similarity between them and one of the thirty-nine categories. These are called toladot; see Bava Kama 2a.

ה׳

5Most Rishonim understand that the Gemara's use of the term chayav clearly indicates that mefareik is a biblical prohibition. A minority view, held most notably by the Rashba (Shabbat 95a s.v. Choleiv), believes that milking is merely a rabbinical prohibition.³This view is based on the Talmud Yerushalmi (Shabbat 7:2).

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6The Gemara (Shabbat 75a) records a dispute about the scope of mefareik. The Chachamim (most sages) only apply dash (from which mefareik is derived) to gidulei karka (items that grow from the ground), while Rabi Yehudah applies it to other things, too. The Rashba argues that the majority opinion on Shabbat 75a believes that the prohibition of dash only applies to gidulei karka. Therefore, since animals do not grow from the ground, milking them cannot constitute a biblical prohibition.

ז׳

7Most Rishonim reject the Rashba's view for one of three reasons. Some argue that the Halachah follows the view of Rabbi Yehudah (Shabbat 75a) that dash applies even to items that do not grow from the ground (see Tosafot, Shabbat 95a s.v. Hacholeiv). Alternatively, some argue that animals such as cows are considered gidulei karka, since they are nourished by items that grow from the ground.⁴See the aforementioned passage in the Rashba, Tosafot (Ketubot 60a s.v. Mefareik), and Maggid Mishnah (Hilchot Shabbat 8:7). Some Rishonim accept neither of these claims, yet they forbid milking for other reasons. For example, Rabbeinu Tam⁵Tosafot, Shabbat 73b s.v. Mefareik; also see the aforementioned passage in the Rashba. claims that milking on Shabbat constitutes memacheik (smoothing) of the udder.

ח׳

8Rav Ben-Zion Uzziel (Teshuvot Mishptei Uzziel, Orach Chaim 10) sought to rely on the minority view of Rishonim that milking is merely a rabbinic prohibition and thus permit milking cows in an unusual manner.⁶See Ketubot 60a. Regarding the general concept of shinui (violating Shabbat in an unusual manner), see the introduction to the Eglei Tal, section 3. However, almost no modern-day authorities adopt this approach. Rav Avraham Yitzchak Kook (Teshuvot Orach Mishpat 64) represents the predominant view on this topic when he writes:

ט׳

9It is extremely difficult to base a leniency in contradiction to the majority opinion of Rishonim who believe milking to be a biblical prohibition.... These authorities include the Rif, Rabbeinu Chananel, Rabbeinu Tam, the Or Zarua, and a simple reading of Rashi and Tosafot, and this is also explicit in the Rambam.... It is impossible to permit a Jew to violate what most Rishonim view as a biblical prohibition.

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10Maharam of Rothenburg - Milking by a Non-Jew

י״א

11As Rav Kook intimates, it is permissible to ask a non-Jew to milk a cow on Shabbat to avoid causing the cow pain and suffering (tza'ar ba'alei chaim).⁷Modern dairy farms use cows that produce large volumes of milk daily and suffer greatly unless they are milked two or three times a day. The source of this leniency is a ruling of the Maharam of Rothenburg (cited by the Rosh, Shabbat 18:3), based on a comment of the Gemara (Shabbat 128b). The Gemara permits supporting an animal with pillows and blankets if it falls into a water channel on Shabbat. Doing so entails violating a rabbinical prohibition,⁸Placing a pillow underneath an animal renders the pillow muktzah, as the pillow serves as a base for an animal, and animals are muktzah (basis ledavar ha'asur). Making a non-muktzah item muktzah (mevateil keli meiheichano) is rabbinically prohibited because it resembles soteir, destroying a utensil. In this case, the utensil is not physically destroyed, but it is rendered unusable for the remainder of Shabbat. See Rashi, Shabbat 128b s.v. Veha. yet it is permitted to alleviate an animal's suffering. The biblical imperative to alleviate an animal's pain supersedes the rabbinical prohibition. Similarly, reasons the Maharam of Rothenburg, one may set aside the rabbinical prohibition of amirah lenochri (asking a non-Jew to violate Shabbat) to alleviate the pain of a cow that needs to be milked. The Shulchan Aruch (O.C. 305:20) rules in accordance with the view of the Maharam of Rothenburg.⁹In practice, some possible restrictions are involved when employing a non-Jew to milk on Shabbat. The Korban Netaneil (Shabbat 18:70), commenting on the Maharam's leniency, lists these restrictions. First, the milk may not be used until the next day, as Chazal forbade using liquids squeezed on Shabbat until after Shabbat ends. (Chazal worried that using freshly squeezed liquids, or juice that leaked from a fruit, would cause people to violate Shabbat by squeezing more; see Beitzah 3a.) Additionally, milk squeezed on Shabbat by a non-Jew must be given to the non-Jew. If the Jewish owner would keep the milk, it would appear as if the non-Jew violated Shabbat for the Jew's personal benefit, whereas we only permit him to violate Shabbat for the animal's sake. If the Jewish owner wants the milk, he must buy it from the non-Jew (although he may pay a heavily discounted price; see Biur Halachah 305 s.v. Bedavar.) While the Korban Netaneil cites all of these restrictions, they are not all universally accepted. See Shulchan Aruch (O.C. 305:20) and the Mishnah Berurah's comments thereupon.

י״ב

12Twentieth-Century Israel

י״ג

13In modern times, Rav Kook endorses following the Shulchan Aruch's ruling and hiring a non-Jew to milk cows on Shabbat. Rav Kook opposes seeking a way to enable Jews to milk the cows for fear that Jews present in the barn would inevitably come to violate Shabbat. Even if the milking could be done in a permissible manner, other ancillary problems to the milking frequently arise, such as fixing broken pipes and machinery. In a similar vein, Rav Shmuel David (Techumin 7:17) notes that one's very presence in a barn on Shabbat leads to very serious problems, such as helping an animal give birth and the status of farm animals as muktzah.¹⁰Rav David addresses these issues at length in his book, Sh'eilot U'tshuvot Meirosh Tzurim, which discusses halachic life at Kibbutz Rosh Tzurim, Israel.

י״ד

14However, non-Jewish labor was not a practical option in the earlier part of last century.¹¹Interestingly, there was one early Jewish settlement, Nevei Yaakov, that employed Arabs to milk cows on Shabbat. For a description of how this was done, see Birurim Behilchot Hare'iyah, pp. 315-317. It seems that Arab farm workers brought diseases from their animals to the Jewish-owned animals. The reason for this was the primitive state of veterinary care at Arab farms. Thus, Jews needed an alternative solution for milking on Shabbat.

ט״ו

15Milking to Waste - Chazon Ish and Rav Kook

ט״ז

16A different way to permit milking on Shabbat is chalivah le'ibud, letting the milk go to waste by milking into a drain. This approach is based on Rashi's comment (Shabbat 145a s.v. Legufo) that milking a cow or squeezing a fruit le'ibud is not defined as an act of mefareik and is therefore permitted. Although many Rishonim agree with this assertion, some believe that milking to waste is rabbinically prohibited (see Tosafot, Ketubot 6a s.v. Hai), and the Eglei Tal (dash, subsection 27) accepts their strict view. Rav Kook (ibid.), while writing that one should not rebuke those who follow the lenient view, expresses serious reservations about relying on the authorities who permit milking to waste. He goes so far as to state that no respected Torah scholar could ever endorse milking to waste, as it contradicts the stringent view of many Rishonim. The Chazon Ish (Hilchot Shabbat 56:4), however, rules that if one is unable to hire a non-Jew to milk on Shabbat, he may rely on the opinion of Rashi that milking to waste does not constitute mefareik.

י״ז

17Milking in Unusual Manners

י״ח

18Milking Onto Foods

י״ט

19The Gemara (Shabbat 144b) teaches that "one may milk a goat into a pot [filled with solid food] but not onto an [empty] plate." Rashi (s.v. Letoch) explains that the Gemara is speaking of squeezing the milk into a pot to improve the taste of food inside the pot. He permits this activity "since one does not need the milk as a liquid per se, rather as food (a component of a solid food). This is not the manner of mefareik and resembles separating food from food." In other words, mefareik does not apply when separating one solid food from another, and here the milk is considered solid food being removed from a cow (which is viewed as beef).¹For an explanation of why the cow is considered food despite the fact that it may not be slaughtered on Shabbat, see Rashba, Shabbat 144b s.v. Veha.

כ׳

20It appears from Rashi that this leniency applies on both Shabbat and Yom Tov, for squeezing milk onto solid food is never defined as an act of mefareik. On the other hand, Rabbeinu Tam (Tosafot s.v. Choleiv) believes that permission to milk onto food applies only on Yom Tov. He notes that milking onto food is permitted because the milk is considered "food (based on its destination) being removed from food (the cow)." Only on Yom Tov, however, is the cow considered "food," because only on Yom Tov can an animal be slaughtered and eaten.²Even on Yom Tov, there may be a distinction between different types of cows. Clearly, a cow that might be slaughtered and eaten on Yom Tov is considered food. Some cows, however, are designated for a purpose other than eating, such as cows that are designated specifically to produce milk. It is questionable whether such cows may be considered "food," as their owners surely do not intend to eat them. For a discussion of the permissibility of milking cows designated for such a purpose on Yom Tov, see Mishnah Berurah (505:1,4). On Shabbat, reasons Rabbeinu Tam, a cow is not food. Thus, even if one milks a cow onto food, he is separating "food" (milk) from something inedible, a violation of mefareik.

כ״א

21The Shulchan Aruch (O.C. 305:20 and 505) appears to rule in accordance with the strict opinion of Rabbeinu Tam. The Shulchan Aruch also emphasizes that the permission to milk onto food applies only when the food absorbs most of the milk. It certainly does not apply if one squeezes a large volume of milk onto a few crumbs of bread (see Teshuvot Achiezer 4:8 and Techumin 1:7-8). Consequently, milking into food is undoubtedly not a practical option for dairy farmers.

כ״ב

22Milking to Waste with Milking Machines

כ״ג

23The most viable option for religious dairy farms in the earlier part of the century was milking to waste, but downside of this procedure was that all of the milk was lost. With the advent of milking machines in Israel, however, milking to waste without actually losing the milk appeared possible. The machine could be set to send the milk down the drain, attached to the cow, and adjusted after the first drops of milk to send the subsequent milk into storage containers. The human act of milking (attaching the cow to the machine and squeezing the first drops)³See Shemirat Shabbat Kehilchatah (27 note 159) regarding the need for the first drops of milk to flow before readjusting the machine. sends the milk to waste, while no further squeezing of the udders (by humans) is necessary to redirect the milk.

כ״ד

24Theoretically, it seems entirely permissible to use milking machines in this manner. Nonetheless, the Chazon Ish (O.C. 38:4) finds this procedure objectionable, drawing an analogy between it and a loophole discussed in the Gemara (Shabbat 8b). The Gemara states that one may carry on Shabbat from a reshut harabim (public domain) to a mekom petur (neutral domain) and from a reshut hayachid (private domain) to a mekom petur, whereas one may not carry from a reshut hayachid to a reshut harabim or vice versa. One could seemingly circumvent this prohibition by carrying from a reshut harabim to a reshut hayachid via a mekom petur. Nevertheless, the Gemara forbids this loophole. Although each step is permissible (i.e., carrying to and from a mekom petur), the net result of the actions is carrying from a reshut harabim to a reshut hayachid, so Chazal forbade it.

כ״ה

25Similarly, the Chazon Ish reasons, one may not first set up the milking machine to milk to waste and subsequently adjust the machine to send the milk into storage containers.⁴Rav Shlomo Zalman Auerbach (cited in Shemirat Shabbat Kehilchatah 27 note 159) suggests having one person attach the cow to the milking machine and another person readjust the milking machine to store the milk. However, Rav Shlomo Zalman limits his proposal to situations where the person who attached the machine did not know that his colleague was going to redirect the milk flow. Accordingly, Rav Shlomo Zalman's suggestion cannot be used as a standard procedure for dairy farms. Nonetheless, the Shemirat Shabbat Kehilchatah (27, note 159) records that even the most scrupulously observant farm settlements engaged in this practice. Moreover, prominent rabbis (cited there) report that none other than the Chazon Ish sanctioned this practice in case of great financial loss.⁵Presumably, "great loss" means that the economic survival of the kibbutz depends upon not losing the milk. See Techumin (7:172 note 15).

כ״ו

26How can we reconcile the contradiction between the written ruling of the Chazon Ish and the oral ruling he reportedly gave religious farmers? One might suggest that even the Chazon Ish fundamentally permits the action of switching from the drain to storage containers. Despite the cogency of his analogy to carrying via a mekom petur, it seems to contradict two axiomatic rules regarding post-Talmudic rulings. The first is that one cannot necessarily extrapolate from one rabbinical prohibition or leniency to another (see Tosafot, Chullin 104a s.v. Umina, and Maggid Mishnah, Hilchot Shabbat 6:9). Additionally, the Rosh (Shabbat 2:15) writes that we may not create new rabbinical prohibitions after the Amoraic period. Thus, the Chazon Ish's ruling essentially was a chumra (stringency), which could be waived in case of great need.

כ״ז

27Milking Through Grama

כ״ח

28During the mid-1980s, the Zomet Institute developed machinery that solves the Chazon Ish's objection to using milking machines for storing all but the first few drops. Zomet's invention switches the milk machine from the drain to storage receptacles indirectly. The Gemara (Shabbat 120b) teaches that doing a forbidden act directly is biblically prohibited, whereas doing it indirectly (grama) is biblically permitted.⁶It should be noted that Rav Yosef Dov Soloveitchik (cited in B'ikvei Hatzon 7:4) defined grama in a somewhat stricter manner than many of his contemporaries. Accordingly, Rav Soloveitchik might prohibit some of the grama machinery developed for Shabbat in consultation with other authorities. For example, the Mishnah (Shabbat 120a) describes how one may indirectly extinguish a fire on Shabbat.⁷The Mishnah actually records a dispute regarding this issue. We have only cited the accepted view (Rambam, Hilchot Shabbat 12:4). One may put barrels of water in the path of the fire, so that when the fire eventually reaches the barrels, it will cause them to explode, and the water will extinguish the fire. Grama is not totally permitted, though. The Rama (O.C. 334:22) rules that we may violate Shabbat through grama only in cases of great economic loss (see Biur Halachah, O.C. 334:22 s.v. D'gram)

כ״ט

29The Gemara (Sanhedrin 77a) describes another classic grama situation. One person ties up another in the desert at night. The next day, the sun appears and the bound individual dies of sunstroke. Rashi (s.v. Sof) explains that one who kills in this fashion does not receive the death penalty, as he killed indirectly. The killing agent, the sun, was not present at the time of the killer's actions and only showed up later (sof chama lavo).

ל׳

30Many of the grama products of the Zomet Institute (such as its famed Shabbat telephone) are based on the sof chama lavo model. The user turns on a switch with no immediate result. In a few seconds, an electronic eye detects a change in the switch's position and effects the desired result (see Techumin 1:515-524). The electronic eye parallels the sun in the aforementioned murder case. When one turns the switch, no action results immediately. The electronic eye that brings about the desired action is not present when the switch is turned on, and, like the sun, it only appears later. It consists of an electric impulse that checks at regular intervals (six to twelve seconds) to see if the switch has been moved. When it detects that the switch has moved, it reacts accordingly.

ל״א

31The Zomet Institute applies this principle to redirecting milk from the drain to storage containers through grama.⁸For a more detailed discussion of how this works from both halachic and engineering perspectives, see Techumin 7:144-173. No person directly moves the machinery from waste to storage. Instead, a person moves a faucet, causing no immediate result. Several seconds later, an electronic eye discovers that the faucet has moved and causes the machinery to switch the milk flow from waste to storage.

ל״ב

32While the Rama (O.C. 334:22) permits grama only in case of great financial need, here grama is being utilized routinely. Nonetheless, there are two reasons to permit its implementation on dairy farms. One can argue that this is a case of great financial need, as losing a day's worth of milk every week would deliver a major economic blow to any dairy farm. Furthermore, grama is employed merely to accommodate a concern which, even according to the Chazon Ish, may only be a stringency. Accordingly, there would be room to rule leniently even without pressing financial need.⁹Regarding whether it is preferable to milk via grama or hiring a non-Jew, see Teshuvot Minchat Shlomo (2:24) and Rav Yaakov Ariel's essay in Techumin (19:343-348).

ל״ג

33Attaching a Milking Machine Turned Off

ל״ד

34In addition to the milking methods that we have already discussed, an additional method of milking on Shabbat became feasible near the end of the twentieth century.

ל״ה

35The Kibbutz Sdei Eliyahu Solution

ל״ו

36In the eleventh volume of Techumin (pp.170-175), the Rav of Kibbutz Sdei Eliyahu, Rav Shlomo Rosenfeld, presents an innovative solution to the problem of milking cows on Shabbat. The proposal implements a solution suggested decades before by the Chazon Ish (Orach Chaim 38:4):

ל״ז

37It appears to me that one may connect the pipe [from the milking machine] to the udders when the electricity is not functioning and later the electricity will turn on automatically and milk the cows.

ל״ח

38This approach is based on the sof chamah lavo case (Sanhedrin 77a), described in the previous chapter. This Talmudic passage establishes that one who ties up a victim at night is considered to have killed only indirectly if the burning sun kills the bound victim the following day. This act is grama (indirect) because the death agent was not present at the time that the villain tied up the victim. In the Chazon Ish's ruling, the electricity parallels the sun. The electrical current is not active at the time that the milking machine pipes are attached to the cow's udders. The person who attaches the pipes is thus only indirectly violating Shabbat, as the milking procedure begins only after his action is over. Since grama is permitted in case of great monetary loss, the Chazon Ish permits milking cows in this fashion.

ל״ט

39Problems with the Chazon Ish's Ruling and its Solution

מ׳

40As late as 1986, Rav Shmuel David (Techumin 7:158) wrote that the Chazon Ish's ruling was impractical. He explained that the pipes of the milk machines did not remain attached to the cow's udders while the electricity was off. Before the milk machine was operating, no vacuum existed to hold the pipes to the udders.

מ״א

41However, five years later, Rav Shlomo Rosenfeld wrote that the members of Kibbutz Sdei Eliyahu discovered a way to create a vacuum effect, keeping the pipes attached to the cow's udders without electric power. Rav Rosenfeld's essay discusses this method in halachic and engineering detail and notes that leading authorities, such as Rav Shaul Yisraeli and Rav Yehoshua Neuwirth, approved of this method of milking cows on Shabbat. In fact Rav Uri Dasberg (Techumin 15:394-400) reported in 1995 that this approach had been adopted by many dairy farms. Moreover, dairy farmers related that this method had fewer technical difficulties in implementation than other solutions. In addition, the milk that goes to waste with other methods need not go to waste when milking by grama.

מ״ב

42Rav Rosenfeld suggests that even the Chazon Ish would agree that Sdei Eliyahu's grama method is the preferred method for milking cows on Shabbat. Although the Chazon Ish also permitted milking to waste, that procedure is rabbinically prohibited according to some Rishonim. Grama, on the other hand, is explicitly permitted by the Rama (Orach Chaim 334:22) in case of financial loss, without any reservations.

מ״ג

43Problems with the Kibbutz Sdei Eliyahu Solution

מ״ד

44In Rav Dasberg's article, he describes a problem with this method. It seems that a certain percentage of cows leak milk into the pipes even before the electric current starts to flow. The halachic question is whether this flow of milk is considered a davar she'eino mitkavein. A davar she'eino mitkavein is when a person intends to do a permissible act, but this action may also lead to an unintended prohibited result.¹For greater elaboration on the parameters of a davar she'eino mitkavein, see the Encyclopedia Talmudit (6:631-655). For example, a person drags a chair across a field with the intention of bringing it somewhere, he simply wants to transport the chair, which is allowed on Shabbat. Along the way, however, the chair might plow a furrow in the ground, although this is not the person's intention. A davar she'eino mitkavein is permitted on Shabbat, so if causing the milk to flow when the pipes are attached is defined as a davar she'eino mitkavein, the pipes may be attached on Shabbat (before the electricity is turned on).

מ״ה

45Rav Shlomo Zalman Auerbach (Teshuvot Minchat Shlomo 2:35:7) forbids attaching the pipe to the udders, because it might cause some milk to be released. This action is not a davar she'eino mitkaven, he claims, since one essentially intends to milk the cow. Although the milk that flows immediately is not desired, since the person does not wish to violate Shabbat, one fundamentally wants the milking process to occur. Rav Shlomo Zalman thus claims that attaching a milking machine constitutes intentional milking whenever there is a reasonable possibility that this action will immediately dislodge drops of milk.

מ״ו

46Lenient Rulings of Rav A.D. Auerbach and Rav Lichtenstein

מ״ז

47Despite Rav Shlomo Zalman's opposition, two great halachic authorities, Rav Avraham Dov Auerbach (Rav Shlomo Zalman's son) and Rav Aharon Lichtenstein (both cited in Techumin 15:394-410), rule leniently and consider the milk leakage a permitted davar she'eino mitkaven. Rav Avraham Auerbach reasons that there are three requirements for defining an action as a davar she'eino mitkaven. The forbidden result must occur unintentionally, the forbidden result must not occur inevitably (pesik reisheih), and it must be possible to identify the permitted act and forbidden result as two separate actions.

מ״ח

48Rav Shlomo Zalman's opposition challenged the last point. He claimed that the permitted act, attaching the pipes, was the same act that commenced the prohibited milking process. In order to permit attaching the pipes, Rav A.D. Auerbach suggests that attaching the pipes to the udders is one (permissible) act, and the milk that flows later (after turning on the machine) is something entirely separate. Rav A.D. Auerbach claims that these two steps only become one unit when there is a 50% chance of milk starting to flow as soon as the pipes are attached. If, however, attachment of the pipes does not usually bring out milk, the later milk flow is a separate occurrence. Regarding the minority of cases, when attaching the pipes to the udders immediately squeezes milk, they are a davar she'eino mitkavein, as this flow is unintentional and does not happen inevitably. Rav Lichtenstein reportedly agrees in principle with this approach. In fact, he is even more lenient regarding the odds that milk will flow when the pipes are attached. According to Rav Lichtenstein, as long as the drops of milk do not emerge in a significant minority (approximately 20%) of the cases, the act is still regarded as a davar she'eino mitkaven.

מ״ט

49Rav Zev Whitman (Techumin 15:409) suggests a way to make the Sdei Eliyahu milking machines acceptable for all opinions, including Rav Shlomo Zalman Auerbach. Rav Whitman proposes setting up the machinery so drops of milk that flow when the pipes are attached go to waste, because milking to waste is permitted according to many opinions. Rav Whitman presents a technical description of how to set up the milking machine so that these drops of milk should go to waste.

נ׳

50Conclusion

נ״א

51We have reviewed several solutions to the problem of how to milk cows on Shabbat. It should be emphasized that this is not merely an issue of economic concern, but also the welfare of the animals is of concern, since many cows would not survive if they were not milked on Shabbat. We have seen how emerging technology can serve as an aid to Halachah and not a nuisance. We look forward to the day when all aspects of the State of Israel will operate in accordance with Halachah.

נ״ב

52Postscript

נ״ג

53Rav Zev Whitman (Techumin 18:313-327) discusses the complexities of how the Israeli dairy industry can cope with a three-day Yom Tov, which can occur on Rosh Hashanah even in Israel.