Tag Archives: mosif al habinyan

Covering a birdcage on Shabbos

Parshas Behar-Bechukosei 5775 Vol. XVIII No. 31

This week’s question:

May a birdcage be covered with a towel or blanket on Shabbos?

The issues:

  1.  Boneh, the melacha of building
  2.  Lavud, the concept of a lattice being considered solid
  3.  Tzaar baalei chaim, prevention of pain to animals, specifically on Shabbos

A) Boneh

This Scriptural melacha forbids building or adding to a structure attached to the ground. The same is true of sosair, demolishing to facilitate further building. Destructive demolition is not forbidden Scripturally. The smallest improvement or demolition that allows for building on a site is forbidden Scripturally. Building a utensil is generally not included in boneh. However, many poskim maintain that this exclusion applies only in the early stages of its construction. Completing a kli is forbidden Scripturally. Others consider this makeh bepatish, finishing touches, rather than boneh.

Minor repairs, such as returning a door handle to its spindle or returning its screw and tightening them involves a melacha. On a structure, it is unquestionably forbidden Scripturally. On a complete utensil it is either makeh bepatish or boneh (or both). Putting them back loosely is forbidden Rabbinically, as a precaution against tightening them.

Rabbinically, building an ohel arai, temporary structure, is forbidden, as a precaution against ohel kavua, a permanent structure. The Rabbinical prohibition does not apply to minor construction. The ohel must have characteristics of mechitza, partition, and according to many poskim gag, a roof. These must also confer new status on the spaces behind or under them. Thus, the third wall of a sukah, which validates it halachically, may not be erected. A single wind shield on a beach may be erected. Opening a folding chair does not ‘create’ a new usable space underneath. However, adding a gag on top of existing mechitzos is forbidden even when the space underneath is not needed.

Another difference between ohel arai and Scriptural boneh is that adding to an existing structure is boneh. Adding to an existing ohel arai is permitted. If one covers a sukah with one tefach, hand-breadth, of tarpaulin [excluding the rolled up part] before Shabbos, he may roll the rest over on Shabbos. The first tefach constitutes a gag, and mosif, adding to ohel arai is permitted. Some things only give the appearance of adding to a structure. They are forbidden as nireh kemosif al habinyan. This is not an issue with ohel arai.

Sometimes, the two seem to overlap, such as hanging a temporary curtain across a doorway in a permanent house. There is a special requirement that this mechitza not be attached too well, to avoid the appearance of mosif al habinyan. It may not be tied down at the sides and the bottom. If it does not serve as a partition, such as a curtain covering a glass window, it is not a mechitza at all, and certainly not a status-affecting one. One may hang this curtain and tie it down, temporarily. One may not use nails to attach it. Nails involve Scriptural boneh in their own right. Attaching it permanently would also involve boneh. [See Shabbos 31b 47a-b 102b 122b 125b-126a 146a Eruvin 34b-35a 102a etc, Poskim. Tur Sh Ar OC 313-315, commentaries. Ch. Ish 52:13.]

B) Lavud

In our case, the cover allows the bird to feel that it is dark. On Shabbos, when the lights remain on, it is even more important. The problem seems to be that the cage is an open structure. Placing the cover on it closes the space. However, obviously, the cage is also an enclosed structure, with mechitzos and a gag. Nonetheless, the covering adds to the structure. Does this constitute mosif to a building, an ohel arai, or a utensil?

The poskim permit covering a table with a cloth. Firstly, the cloth lies right on top of the existing table. In order to be forbidden, there must be a space underneath that qualifies as an ohel. This is a cube of space one tefach in each dimension. If the cloth were suspended above the surface of the table by one tefach, this would raise the issue of boneh. As for the sides of the tablecloth that drape down, they are not true mechitzos to separate an area from another. By the same reasoning, one may spread a tarpaulin over sechach of a sukah on Shabbos or Yomtov. As long as the tarpaulin is directly on top of the sechach, it does not create a new ohel space underneath.[A separate issue must be addressed with regard to moving the sechach while spreading the tarp. The sechach is muktzeh, which can arise in our case as well. However, from the perspective of the tarp itself, there is no issue.] The aforementioned requirement to unroll it one tefach before Yomtov applies when there is a gap between the tarp and the sechach. By leaving the first tefach unrolled, one has created the ohel arai before Yomtov. Unrolling it further constituted mosif al ohel arai, which is permitted.

When placing a lid on a large barrel, or a board on two boxes to form a table, the Talmud requires the ‘building’ to be done in an unusual manner. One would hold the board in the air and place the boxes below it. In our case, this would mean spreading the towel out before putting the cage under it. In and of itself, this could be problematic if it is done for the space underneath. In the case of a lid or a board, there are no automatic sides. The towel will have ‘sides right away. In addition, most poskim consider the cage muktzeh. It has no use but to hold the bird. The bird is considered muktzeh, because it has no true use on Shabbos. Therefore this unusual manner would not work.

Our issue is whether to consider the ceiling of the cage an existing ohel structure. Then, adding a layer on top would be no problem, like the tarpaulin on top of the sechach. In our case, the additional layer seems to create a whole new canopy. However, the poskim clearly permit adding to a canopy in this way. In the case of the sukah, the sechach is not solid. There may be many spaces between the slats, as long as there is more shade than sunlight. In addition, it is not waterproof. The addition of the tarpaulin certainly adds a dimension to the ohel. Yet, as long as one does not raise the tarp, it may be placed directly on top of the sechach. Accordingly, even if the new layer adds to the structure, it is permitted. Extending an ohel from one tefach across a longer area is mosif. Placing it directly on top is not even mosif. Thus, if the ceiling of the cage is already considered an ohel, the towel is no worse that a tablecloth on a table.

However, the question is that here there is an obvious intent to make a tent. The ceiling is totally insufficient for the shade. It is made up of thin strips of metal with far more space between them than the solid part. Thus, it could be argued that there is really no solid surface on which the towel is placed. Furthermore, the towel is also draped down the sides. Here, too, the sides are indeed a mechitza to separate the bird from the outside of the cage. However, they are also made up of this strips with far more spaces than solid ‘wall’. Does this mean that they cannot be considered an ohel?

We mentioned that to permit spreading a shade over an area on Shabbos, one must unroll it at least one tefach before Shabbos. The Talmudic source for this is: one ties a rope within three tefachim of the sides, but more than one tefach distant. He has created a ‘solid’ space to permit rolling the tarp over the entire area. The logic is a halachic concept called lavud. This means that the Torah recognizes that in seemingly solid surfaces there can be spaces that do not detract from their halachic status as solid. Up to the three tefachim of space can be considered filled in. Thus, by placing the rope more than one tefach from the side, one has created a solid stretch of one tefach covering. Rolling the cover over this is now only mosif.

According to the poskim, the Talmud goes even further. One may roll the covers on top of a bed lengthwise, if each one does not form an ohel. The problem is, when they are all combined, one has a full size ohel. The answer is given, that the concept of lavud is not invoked lechumra, to forbid something, but only lekula, to permit it. Therefore, the separate pieces are not considered joined to create an ohel. Stretching strings across an area with less than three tefachim spaces between them does not count as making an ohel. Some poskim add a caveat. One could, theoretically, create an entire ohel on Shabbos, by stretching the string within three tefachim of the wall, and then cover the space with a canopy, because he is simply adding to the existing cover. These poskim maintain that this would be forbidden, due to the obvious intent.

The birdcage is at the very least a case of lavud. The entire area is considered covered solid. There is not even an issue of being mosif. It is like spreading a tablecloth over a solid table. In this case, it is even better, the sides are also existing mechitzos for these purposes. The only difference is that one does it for the space inside. However, in light of the Talmudic discussion, lavud takes care of the issue. Furthermore, one could even cover the cage with its own ceiling on Shabbos, since we do not say lavud lechumra. One could not cover it specifically in order to cover it again with the towel, according to the view of the stringent poskim. [See Shabbos 137b-138b Eruvin 102a-b (Rashi 2nd explanation, Tosafos), Poskim. Tur Sh Ar OC 315:2-6 8, commentaries. Shmiras Shabbos Kehilchasa 24:10-11, notes.]

C) Tzar baalei chaim

The clear assumption is that tzaar baalei chaim is forbidden.There is an ethical concept of achzarius, cruelty, in general. However, the Talmud considers tzaar baalei chaim a halachic issue. An ethical concept could not be invoked to override a halachic concept. A halachic concept might override another halachic concept, depending on the context. The Talmud debates whether tzaar baalei chaim is considered a Scriptural mitzvah or whether it is Rabbinical. Though the ethical concept might apply logically, which is usually considered Scriptural, the halachic concept might have been institutionalized Rabbinically. The consensus of the poskim is that the conclusions drawn by the Talmud are to follow the opinion considering it Scriptural.

There is no specific mitzvah forbidding general cruelty to animals per se. A number of mitzvos forbid or require certain behaviors with regard to animals. In many of these cases, the underlying theme, or one of the themes, is the prevention of cruelty to the animal. The commentaries view these as the basis for the mitzvah. One example of such a mitzvah is the obligation to help one whose donkey is overloaded. The mitzvah seems to be an interpersonal obligation, to help one’s fellow Jew. By parsing the mitzvah, it becomes clear that there are situations when there there is no obligation to help the owner. Yet, there is always an obligation to help the innocent animal.

Tzaar baalei chaim is included in the considerations for certain applications on Shabbos. For example, there are Rabbinic restrictions on feeding and handling animals. Some involve muktze, moving items that are not meant to be moved on Shabbos, or tircha, too much effort. If an animal has become very dependent on being force-fed, one may force feed it in certain ways. If an animal needs help getting out of a hole or a pool, one may do certain things that would otherwise be forbidden. If an animal is carrying a load that includes muktze items, one may place pillows under it and loosen the load so that it falls. An itchy animal may be scratched with certain types of tool. In our case, this could be invoked draping the towel over the muktzeh cage, thereby moving it a litlle. [See Emor 22:28 (Targ. Yon, Midr.) Shoftim 20:19 Ki Saitzai 22:6-7 (Ibn Ezra, Ramban) 22:10 (IE Daas Zekainim, Baal Haturim). Shabbos 53a 128b 154b 155b Beitza 23a Baba Kama 91b Baba Metzia 31a-33a 85a Avoda Zara 13a, Poskim. Chinuch 294 451 545. Tur Sh Ar OC 305:19 324:9-10, YD 24:8 116:7 117:Taz 4 (Darkei Teshuva 35 44 etc.), EH 5:14, commentaries. Sh Ar Harav, hil. Tzaar Baalei Chaim. Kitz. Sh Ar 191.]

In conclusion, the cage may be covered with a towel or blanket directly on top of it.

On the parsha … If [one] sold his ancestral field .. it shall return at the Jubilee. If [one] sold his ancestral house in a walled city .. if he did not redeem it after a full year .. it shall not be restored to his ownership at the Jubilee. Houses in open cities that have no wall surrounding them shall be considered like fields .. they are restored at the Jubilee. [25:29-31] A field is the source of livelihood. It is restored at the Jubilee. Once a house has been abandoned for a year, the owner does not feel a loss if it is not restored at Yovel. Houses outside walled cities are for farming workers. They are like fields. [Ramban]. Why would a farmer be so connected to his house, while a walled city dweller would abandon it? Targum Yonasan says that these houses are like “canopies spread over the fields”. Perhaps this means that those who live there feel that they are really living in the fields that they tend. The houses are merely shelters that are spread out when they are needed. However, for them, the field underneath remains the same “home”.

Sponsored by Robin Knee in memory of Allan Goodkind, R. Avrohom ben Kalman Leib ztl whose yahrzeit is the 29th of Iyyar.

© Rabbi Shimon Silver, May 2015.