Reuven was walking down the street on his way to shul on a very windy Shabbos morning in Yerusholayim Ir Hakodesh and his tallis caught the wind and blew on to a tree. Reuven was now stuck and wanted to know if he is allowed to take down his tallis?
The Shulchan Aruch (336:1) rules that it is forbidden to take something down from a tree on Shabbos. The Mishnah Berurah (s.k. 12) explains: The reason it is forbidden, is because when taking something down from a tree it is very likely that one will come to lean on the tree, or on one of its branches, therefore, on anything higher than three tefochim from the ground, Chazal made a gezeirah [decree] that it is forbidden to take down items.
Reuven suggested that perhaps there is room for leniency as there is a mitzvah to wear a tallis. However, we learn in Maseches Rosh Hashanah (32b) that one isn’t allowed to climb a tree to get a shofar, even if this is the only shofar in town and one will miss out on the mitzvah of shofar, and the Shulchan Aruch (586:21) rules accordingly. Therefore, we see that even by a mitzvah, the gezeirah stands.
The Rosh in Shabbos (5:2) learns that the prohibition is: להשתמש באילן – “to use the tree”, however, there is no enactment against simply taking down something from the tree, if there is no need to climb up the tree in order to do so (the Magen Avraham s.k. 2 asks numerous question on the Rosh, however, the Aruch HaShulchan s.k. 16 answers the questions). However, practically, we rule like the Rishonim who disagree with the Rosh.
Is There a Heter to Take Down the Tallis from the Tree, As It Is a Disgrace to An Item That is Used for a Mitzvah (Tashmishay Mitzvah)
Reuven then suggested, that it’s disgraceful to leave his tallis which he uses for a mitzvah stuck on a tree. However, this is also not enough of a reason to be lenient. The Shulchan Aruch (352:1) rules: If one is reading a sefer on a step (איסקופה) and one end rolls out his hand ... he should roll it back towards him ... as it’s a disgrace to Kisvei Kodesh [Holy Writings], therefore, they permitted one to do so. From the Rema it’s clear that they were only lenient to avoid the disgrace of Kisvei Kodesh, however, we don’t find a heter for a tallis which is just a tashmishay mitzvah [a mitzvah item] and not a tashmishay kedusha [sanctified item].
The Shevet HaLevi Is Lenient in a Case Where the Tree Is Less Than Ten Tefochim High
The Shevet HaLevi (7:44) was asked about a case where a tallis fell on top of a tree which was lower than ten tefochim high and he was lenient and allowed removing the tallis. He explains: The main reason for the prohibition is because one may come to climb up on the tree, however, when the tree is less than ten tefochim high there is no room for such a gezeirah, therefore, there is room to be lenient.
He adds: Although the Mishnah Berurah writes that the reason for the prohibition of removing something from a tree is that one may come to lean on it, or on one of its branches, and according to this reasoning even on a tree less than 10 tefochim there is room to be stringent. However, in the source for this din, which is the Maggid Mishnah (Hilchos Shabbos 5:17), it’s clear, “That ideally one shouldn’t place something on a tree as he may come to use it, as one is interested in the usage of the tree.” However, in our case where the tallis blew on the tree and one can remove it in a second, it’s not included in the prohibition, as one has no interest in using the tree.
In another Teshuvah (11:98) the Shevet HaLevi adds: According to this logic, perhaps there is room to be lenient even with a tree higher than ten tefochim. The Shevet HaLevi adds further, that a tallis is long and easy to remove from a tree, unlike, a candle (on Yom Tov) and similar items, which generally speaking are hidden in the tree, and there is more room to be concerned that one may come to use the tree when removing the item.
The Shevet HaKahosi Allows Removing the Tallis from the Tree If Just the Strings Got Tangled in the Tree
The Shu”t Shevet HaKahosi (4:99) discusses a case when ones tzitzis strings got caught in the branches of a tree on Shabbos. He is lenient and allows untangling them, provided one is careful not to uproot any branches from the tree. He explains: It is clear from the Magen Avraham (336:2) that the gezeirah is on things which are normal to leave on a tree, and to remove them from the tree. Additionally, the Rosh (mentioned above) learns that removing items from a tree is not considered using the tree. These two arguments together, especially in this case where there is no concern that one will climb the tree, as all that is tangled is the strings, and the fact that there is kavod habriyos [human dignity] involved, as it is embarrassing to come to shul without a tallis, there is room to be lenient.
R’ Zilberstein (Chasukei Chemed, Shabbos 154b) is in doubt if one has no other tallis to daven with and he is embarrassed to daven be’tzibbur [in a minyan] without a tallis, if perhaps we can say that in such a case kavod habriyos overrides an issur derabonon.
In Hilchos Tziztis (13:3) we find, that if one realized on Shabbos whilst walking through a karmelis that his tallis is disqualified, he doesn’t have to remove it before getting home, and he may continue to wear it due to kavod habriyos. Therefore, perhaps we can say the same thing in our case.
However, perhaps in our case we can’t make the above argument, as we could simply tell Reuven (the one who got his tallis stuck in the tree) to daven alone at home and avoid transgressing an issur derabonon. However, the Kaf HaChaim (Hilchos Shabbos 302:56) quotes the Shu”t Shoel U’Meishiv (Mahadurah Revi’ah 2:86) who writes that if ones kittel got dirty on the night of Yom Kippur in the restroom it is permissible to get a non-Jew to clean it, and we don’t say that it’s better to daven at home and miss out on tefillah be’tzibbur. R’ Zilberstein ends off tzorich iyun.
Does Kavod HaBriyos Override a Rabbinic Prohibition, When One Has the Option of Staying Home and Not Transgressing?
The Shu”t L’Horos Nossan (12:12) was asked the following: There are places in the winter where there is lots of rain, and the streets are full of puddles, and it’s very difficult to cross the road without getting drenched. The L’Horas Nossan was asked, if one is allowed to move stones to put a beam on top of them, and through this people won’t get wet. The above is needed for kavod habriyos, as it’s embarrassing to arrive to shul dirty and wet?
The L’Horos Nossan rules: The heter [allowance] to move muktzeh for kavod habriyos, is when there is no other way to avoid the embarrassment, such as a case when one needs to move stones to wipe himself (as is clear from Shulchan Aruch 312:1). However, when it comes to moving stones to save one’s garment’s from getting wet and dirty, since one could avoid the embarrassment by simply staying at home, there is no heter to move muktzeh stones. Even if one will miss tefillah be’tzibbur and krias haTorah.
However, the above is not so simple and R’ Akiva Eiger in Hilchos Tzitzis (on the Rema, 13:3) is in doubt about this. R’ Akiva Eiger writes: “If one sees whilst still at home that his tzitzis are disqualified, I am in doubt if one is allowed to go to shul to daven be’tzibbur and wear a pasul tallis because of kavod habriyos, or, if one should daven at home without a tallis. If there won’t be a minyan without him, then it appears that it is better to go to shul as helping out the rabbim [public] is better.”
