2000/5760

Reprinted with permission from the Journal of Halacha and Contemporary Society Number XXIII

 

Introduction

            Many issues in the area of Hilchot Shabbat regularly confront pet owners.  They include whether household pets are considered to be Muktza, the permissibility of walking a pet with a leash, pets wearing tags in an area not encompassed by an Eruv, and possible violation of  Tzeida (trapping).  This article will examine these four issues.

 

Are Pets Muktza?

            The Talmud (Shabbat 128b) states that animals are Muktza.  The reason for this, explains Magid Mishna1 (commentary to Rambam Hilchot Shabbat 25:25), is that animals have no utility on Shabbat and Yom Tov.  Hence, they are comparable in this regard to sticks and stones which are classified as "Muktza Machmat Gufa," Muktza by its very nature (i.e., because they have no utility on Shabbat and Yom Tov).2

            The Rishonim, however, debate whether an animal that can be used to quiet a child from crying is considered to be Muktza.  Tosafot (Shabbat 45b s.v. Hacha), Mordechai (Shabbat 316) and Hagahot Oshri (commenting on Rosh, Shabbat 3:21) cite authorities who believe that such animals are not Muktza by virtue of the fact that they have utility.  Yet Tosafot, Mordechai, Hagahot Oshri, and Rosh (cited in the responsa of Maharach Or Zarua, 82) reject these authorities because of two possible considerations.  First, the fact that an animal can be used to quiet a child from crying is insufficient utility to render the creature no longer Muktza Machmat Gufa.  Second, the rabbis classified all animals as Muktza regardless of whether a particular animal has utility on Shabbat and Yom Tov.  This is an example of "-! 5-&# 9"10," rabbinic legislation that was instituted for a reason, yet embraces even the cases for which the reason does not apply.  Shulchan Aruch (308:39) appears to accept the position that all animals are considered to be Muktza since, the Mechaber states, animals are Muktza without exception.  Indeed, Shulchan Aruch Harav (308:78) rules stringently in this regard.3

            The question arises, though, whether circumstances have changed since the time of the Rishonim.  These authorities discuss animals which can possibly be used to amuse children but not animals whose primary purpose is to entertain and provide companionship to their owners.  Rabbi Shlomo Zalman Auerbach (cited in Shmirat Shabbat Kehilchata 27, footnote 96), in fact, raises the possibility of making this distinction, yet he rules that pets are Muktza.  Rabbi Moshe Feinstein (Igrot Moshe Orach Chaim 4:16 and cited in The Halachot of Muktza p.7 of the Hebrew section, paragraph twenty-four) and Rabbi Ovadia Yosef (Yabia Omer 5:26) also rejects the possibility of making such a distinction.  It appears that this question is contingent on one's acceptance of one of the two reasons (stated above) offered by the Rishonim for why an animal that can be used to quiet a child from crying is Muktza.  If one adopts the position that the rabbis have deemed all animals to be Muktza regardless of their utility, then even household pets are included in this category.  However, if one assumes the position that the possibility of using an animal to amuse a child is insufficient utility to remove it from being considered Muktza, then a cogent argument can be made that a pet is sufficiently useful to the extent that one no longer can say that they have no purpose to their owners on Shabbat and Yom Tov, and hence they are not Muktza.4

            Rabbi Shmuel David (Sheilot Uteshuvot Meirosh Tzurim 38:6) concludes his discussion of this issue with a citation of the opinion of Rabbi Aharon Lichtenstein.  It is proper to conduct himself in accordance with the stringent opinion in this matter, since this appears to be the opinion of Tosafot, Mordechai, Hagahot Oshri, and Rosh.  Yet one need not admonish those who practice in accordance with the lenient opinion in this matter since this issue is embroiled in a dispute amongst the Rishonim and the logic of those who rule leniently is compelling.  Rav Henkin told this author that he agrees with Rav Lichtenstein's ruling on this matter.

            However, even according to the stringent opinion it is reasonable to say that one may move a household pet to alleviate its suffering (Yabia Omer 5:26).  This is because some authorities permit moving items which are undoubtedly Muktza to spare an animal from suffering (see Mishna Berura 305:70 and Chazon Ish 52:16).  Since the question as to whether household pets are Muktza is in dispute, there exists a S'fek S'feka, a double doubt, which would lead one to rule leniently in this regard.5

            It should be emphasized, though, that one may not violate Shabbat even to save an animal's life.  One may, however ask a non-Jew to do something forbidden for a Jew to do on Shabbat in order to alleviate an animal's suffering.  In addition one may give a sick animal medicine on Shabbat (see, generally Mishna Berura 332:5, 6, and 9 and Shmirat Shabbat Kehilchata 27:54-58).

 

Tags Worn by Pets

            The Torah (Shemot 20:10) requires one to allow the animals he owns to rest on Shabbat and Yom Tov.  This entails permitting the animal to avoid activity prohibited for a Jew to perform on these days, unless such activity is done for the benefit of the animal.  Hence, it is forbidden to take an animal to enter an area in which a Jew is forbidden to carry6 while the animal is wearing something from which it derives no benefit.  Shulchan Aruch (Orach Chaim 305:1) rules that decorative items should not be worn by an animal when its owner takes it into an area not enclosed by an Eruv since an animal does not benefit from such items.  Furthermore, Shulchan Aruch (Orach Chaim 305:17) rules that items which animals wear for purposes of identification are not considered beneficial for the animal.  They are worn solely for the convenience and benefit of their owners.

            The question arises, though, regarding identification tags that clearly benefit the animal, such as those that show that the animal has an owner and therefore should not be put to death for fear of rabies.  Aruch Hashulchan (305:5), after some initial hesitation, rules stringently.  He believes that Halacha considers all identification markers to be in the category of items which a Jew may not permit his pet to wear in a public domain on Shabbat or Yom Tov.  However, Rabbi Shlomo Zalman Auerbach (cited in Shmirat Shabbat Kehilchata 27, footnote 33) disagrees since these tags are worn for the benefit of the dog.7

            Rabbi Auerbach cautions, though, that if the tags are worn by the animal merely to verify that its owner has paid all the required taxes and fees associated with owning the animal, then the animal may not wear them since they serve only the needs of the owner.  Rabbi Auerbach's ruling might not be limited to tags worn to prevent the animal's death.  It might apply to any tag worn for the benefit of the animal, such as identification tags that allow the animal to be returned to its owner in case it is lost (this assumes that it is in the animal's interest to be with its owner).

 

Use of a Leash

            One needs to exercise caution when walking a pet on Shabbat and Yom Tov in an area not enclosed by an Eruv.  First, Shulchan Aruch (Orach Chaim 305:16) rules that the handle of the leash should not protrude more than a handbreadth (approximately three inches8) from under the hand of the individual walking the animal.  The halacha forbids a considerable protrusion because it would appear as if the individual walking the animal is carrying the leash instead of merely holding on to the leash.  In addition, Shulchan Aruch (ibid.) rules that one must be sure to keep the leash reasonably taut, so that the leash does not hang within three inches of the ground.  If the leash would hang so close to the ground, it would appear to be an article which the animal wears unnecessarily.

 

Tzeida (Trapping)

            Rabbi Y. Neuwirth (Shmirat Shabbat Kehilchata) 27:31 succinctly defines the prohibited activity of "Tzeida" as "any act an individual does to eliminate the freedom of an animal."  The Mishna (Shabbat 106b) states that this prohibition includes closing the door of one's home if in so doing he traps an animal inside the home.  Does this prohibition apply to household pets?

            The Gemara and Poskim distinguish between three category of animals.9  One category includes those animals regarding which, the Talmud (Beitza 24a) writes, one would say "let us bring a trap and catch it."  In other words, Rashi (ad. loc.) explains, one must expend great effort to catch this animal.  It is prohibited on a biblical level to catch such an animal.10  At the other extreme are those animals which offer no resistance to their master.  Regarding this type of animal the Gemara (Shabbat 128b) writes that one is forbidden to lift (because is Muktza) but is permitted to push so that they enter their quarters.  No prohibition of Tzeida applies to such animal since one cannot speak of capturing or hunting a completely obedient animal.  Tzeida is an act of eliminating an animal's freedom and these animals have no freedom since they are completely obedient to their masters.

            The middle category of animals is a subject of debate.  This category includes those creatures who return to their masters at night but offer some resistance when their masters seek to bring them home.  Regarding such animals the Mishna (Shabbat 107a) states, "One who hunts a wild animal or bird that is in one's possession is exempt from punishment."  Rashi (ad. loc.) explains that the exemption from punishment is based on the fact that these animals have already been tamed.

            Some Rishonim (Rashba,11 Ravya,12 and Baal Haitur13) believe that the Mishna's term "exempt from punishment" should in this instance be understood as implying complete permissibility since the animal already "has been caught."  Other Rishonim (Rambam,14 Tosafot,15 and many other authorities16) believe that the Mishna should be understood as stating that one who performs this act is exempt from punishment but has violated a rabbinic prohibition.  This approach is supported by the fact that this is the way the term "exempt from punishment" is generally understood (see Shabbat 3a for three exceptions).  These authorities believe that even though these animals have been tamed, capturing them is rabbinically prohibited because it has the appearance of trapping, since these creatures offer some resistance to their masters.  Biur Halacha (316:12 s.v. V'yeish Omrim) urges one to do his best to follow the stringent opinion.17  The implication is that in case of great need one may follow the lenient opinion.18

            Accordingly, the laws of Tzeida depend on how well one's pet is disciplined.  If when its master19 seeks to move it the animal offers no resistance, then the prohibition of Tzeida does not apply to the creature.  If the animal returns to its quarters every evening without its master's intervention, but when the master seeks to bring the animal home it offers some resistance, the Rishonim disagree as to whether a rabbinic prohibition exists to trap this type of animal.  In practice, Biur Halacha concludes that one should follow the stringent opinion absent great need.  However, if an animal has rebelled and will not return by itself to its quarters and it resists its master, a biblical prohibition forbids catching this animal, and under no circumstances (absent a possible threat to human life) may one attempt to trap this animal.

            A practical application of these Halachot occurs when one removes the leash of a pet to allow the animal to run freely in an open area.  One would be permitted to reattach the leash on the pet on Shabbat and Yom Tov only if the animal is obedient to its owner.  However, if the animal is somewhat disobedient to its owner and resists its owner, it is best not to reattach the leash.  It is proper not to remove the leash of such an animal in an open space in order to avoid the necessity of relying on the lenient opinion.

            In addition, care needs to be taken to avoid "trapping" a less than obedient animal.  For example, one should not put a leash on such an animal if the door to the house is not closed and one should not close the door to one's home unless the creature is already "trapped" (i.e. tied to a post or closed within a room).  However, one can avoid the prohibition of "trapping" when opening a door by immediately filling the gap created with one's body and closing the door as one enters.  One does not violate trapping in such case since an animal did not have an opportunity to escape.

            Special care needs to be taken with birds in this regard.  Unlike most pets that are considered to be "trapped" in one's home, many birds would not be considered to be trapped in one's home if great effort would be required to return the creature to its cage.  Therefore, if a bird returns to its cage by itself but gives its owner some resistance when the latter seeks to return the former to its cage, then in case of great need one may return such a bird to its cage and/or close the door to its cage.  However, if a bird does not return to its cage by itself, one is forbidden in all circumstances (absent possible danger to human life) to return such a bird to its cage or even to close the cage door in order to prevent the creature from escaping.

            Next week, God willing and Bli Neder, we will conclude our discussion of Halachic perspectives on pets with the issue of bringing guide dogs into Shuls.

                  1.  This explanation is also cited by Bait Yosef (Orach Chaim 30 s.v. Kofin) and Mishna Berura (308:146).

                  2.  See Tehilla Ledavid 308:42 for a distinction between Kosher and non‑Kosher animals regarding the category of Muktza under which they should be classified.

                  3.  However, see Responsa Halachot Ketanot (number 45) who adopts a lenient position in this matter.  Rabbi Shmuel David (Sheilot Uteshovot Meirosh Tzurim 38:6) cites Chief Sephardic Rabbi Mordechai Eliyahu who rules leniently in this matter since the issue debated by the Rishonim is a rabbinic law where one may rule leniently in case of doubt.

                  4.  Rabbi Shmuel David (Sheilot Uteshuvot Meirosh Tzurim) argues that one who is accustomed to move his pets is analogous to someone who prepares a rock prior to Shabbat for use on Shabbat.  In such cases the rock is no longer Muktza since he has demonstrated that the rock has utility for him on Shabbat (ordinarily rocks are Muktza since they serve no purpose on Shabbat; once one demonstrated his use for a rock it is no longer classified as Muktza.) Similarly, one who ordinarily moves his pets demonstrates thereby that they have utility on Shabbat and hence are not Muktza.  Rabbi Shlomo Zalman Auerbach (cited in Shmirat Shabbat Kehilchata 18, footnote 62) rules that seeing‑eye dogs are not Muktza.  He reasons that since their essential function is such that they must necessarily be moved, then one surely intends to move them on Shabbat and hence their designation as Muktza is avoided. Rabbi David points out that a rabbinic authority who rules that a seeing‑eye dog is not Muktza would not necessarily rule that a household pet is not Muktza.  One can distinguish between seeing‑eye dogs whose function requires their being moved (and hence one surely intends prior to Shabbat to use them on Shabbat) and household pets that are ordinarily moved but are not necessarily moved.

                  5.  Rabbi Y. Neuwirth rules leniently in this regard, though he expresses some hesitation in doing so; see Shmirat Shabbat Kehilchata 27:28 and 30 and footnote 98.

                  6.  Rabbinic authorities disagree as to whether this prohibition applies in an area in which one is forbidden to carry only on a rabbinic level; see Mishna Berura 305:43.

                  7.  Rabbi Y. Neuwirth's stringent ruling in this matter (Shmirat Shabbat Kehilchata 27:9) is surprising in light of the apparent cogency of Rabbi Auerbach's reasoning.

                  8.  It is appropriate to use a smaller Shiur for a Tefach in this context. Rabbi Feivel Cohen (Badei Hashulchan, Hilchot Basar Bechalav, p. 385) writes that he believes common practice is to accept Rabbi Avraham Chaim Noeh's (smaller) measurements in a situation where adopting his approach leads to a stringent result.  Eruvin 3b may serve as a source for this practice.

                  9.  This is evident from the Talmud's discussion found on Beitza 24. In addition, see Aruch Hashulchan 316:36 and 37.

                  10.  Chayei Adam Hilchot Shabbat 30:4, Mishna Berura 316:57, 59 and Aruch Hashulchan 316:36.

                  11.  Beitza 24a, s.v. Ha Detanya.

                  12.  Shabbat no. 235 and Hilchot Yom Tov no. 763.

                  13.  Cited by Rosh, Beitza 3:1. Rosh seems to accept this position as authoritative. See Biur Halacha 316:12 s.v. Veyaish Omrim.

                  14.  Hilchot Shabbat 10:24 (and see also 1:3).

                  15.  Shabbat 106b s.v. Veam Notnin, however, see the Rosh, Beitza 3:1.

                  16.  Biur Halacha 316:12 s.v. Veyaish Omrim lists the many Rishonim who subscribe to this position.

                  17.  Maharshal (responsum number 10) rules in accordance with the lenient opinion, and Aruch Hashulchan (Orach Chaim 316:35) adopts the stringent opinion.

                  18.  Rabbi Y. Neuwirth (Shmirat Shabbat Kehilchata 27:35) writes that one may follow the lenient position to avoid significant financial loss or an animal's suffering.

                  19.  Even if the master is the only person to whom the animal offers no resistance, the animal is viewed as "already caught" and anyone may return the animal to its home; see Biur Halacha 316:12 s.v. Chaya Veof Birshuto and Rabbi Shlomo Zalman Auerbach's opinion cited in Shmirat Shabbat Kehilchata 27: footnote 117.