Tofeir & Medical Practitioners – Part 1

Tofeir l’Zman – The Use of Labels or a Stapler and Attaching a Soft Material to a Hard One

Yisro 5781

We continue our discussion of several Melachos of Shabbos that are pertinent to the field of medicine. As in our previous essays, we will begin with the basic tenets of each Sugya to define the fundamental essence of each Melacha and conclude with practical applications. This week we will focus on the Melacha of Tofeir – sewing.

All of the thirty-nine prohibited Melachos on Shabbos (Mishna, Shabbos 7:2) are derived from the Meleches haMishkan (the acts used in the construction or maintenance of the Mishkan). Tofeir (sewing) was performed in the context of repairing the Yerios (the curtains that covered the structure). Tofeir, in its classic form, isn’t particularly relevant to medical practice, aside from two significant cases: suturing wounds, and attaching labels to forms, medical tests, or scans.

This essay will examine whether sutures that approximate the edges of a wound (but the wound is actually closed by the body’s natural healing process) are forbidden as Meleches Tofeir. It will also discuss the Issur of “Hadbaka” (sticking two things together) which, according to the Rambam (Hilchos Shabbos 10:11), is a Tolada of Tofeir.

1. Impermanent Melachos

Is a permanent result required in order to define an action as a prohibited Melacha? This question is discussed in the context of several Melachos, but there is no universal standard. For example, the Gemara (Shabbos 74b) rules that a person only violates the Melacha of Kosher if he ties a permanent knot. However, regarding Boneh (building) there is a dispute among the Acharonim whether one is liable for building something impermanent. Regarding Tofeir, there is no discussion of note among the Poskim at all.

Though the Gemara doesn’t directly address Tefira l’Zman (temporary stitching), it does discuss opening stitches or detaching two items that are stuck together, which may shed some light on our question:

Rav Yehuda said in the name of Rav: A person who opens a neck hole [in a garment] on Shabbos must bring a Korban Chatas. Rav Kahana asked: What is the difference between this case and that of [opening] a seal of a [clay] barrel [which is permissible]? He replied: “This is a Chibur (an attachment) and this is not a Chibur. (Makos 3b)

The Rishonim dispute the distinction between opening a neck hole and opening a sealed barrel:

1. Rashi and the Meiri explain that the Gemara is referring to a new garment that doesn’t yet have a neck hole. The Issur of forming the neck hole is thus not Kore’a (tearing), but Makeh b’Patish (completing an item). Opening a sealed barrel, by contrast, does not violate Makeh b’Patish because the barrel was formed originally as an open barrel and the cover was only attached afterward. Therefore, breaking the seal is not an act of Makeh b’Patish.

Why doesn’t breaking open the seal violate the Melacha of Kore’a? We must say that according to Rashi and the Meiri, detaching something that was only meant to remain temporarily attached is permissible. If so, the reverse argument can also be made, and forming an impermanent attachment should also be permissible.

2. Other Rishonim (Rabbenu Perachya citing R’ Avraham ben haRambam (Shabbos 48b) and the Ritva, Makos ibid.) hold that the Gemara refers to a garment that had a neck hole but it had been sewn shut. If a person tears those stitches on Shabbos, though he does not violate Makeh b’Patish, he does violate Kore’a. According to these Rishonim, though the stitches were only meant to remain in place temporarily, they are still considered a true Chibur and breaking them open is an act of Kore’a[1].

If tearing open temporary stitches is considered Kore’a, why is the same not true of opening a barrel seal? There must be a difference between Tefira and Hadbaka. Rabbenu Perachya (ibid.) explains that a barrel and its seal do not become a single entity until they are fired together in a kiln. Therefore, opening the seal does not constitute Kore’a. However, Tefira creates a Chibur even when the stitches are impermanent.

We see that according to Rabbenu Perachya, one can only be liable if the two items become a single entity – such as gluing two pieces of paper together (see the Rambam, Hilchos Shabbos 10:11). Surgical stitches, which do not cause the two parts of the skin to become one entity[2], would therefore not appear to be a Chibur. On the other hand, given that the sutures attach the two parts of the skin permanently, perhaps it could be argued that it should be considered a Chibur.

We should stress that the question of creating a Chibur via surgical sutures is only whether the act of stitching creates a Chibur. We surely cannot consider the subsequent healing process that will occur to be part of the act of Tefira.[3] However,  the Tzitz Eliezer curiously maintains that the body’s healing process does contribute to the violation of the Melacha.[4]

In summary: According to Rashi a person is not liable for tearing open a Tefira l’Zman. It is reasonable to assume that one is likewise not liable for creating a Tefira l’Zman. According to Rabbenu Perachya, one is liable for Tefira l’Zman but only if the two items become a single entity in the process.

The Rema (317:3) rules that a person only violates Kore’a if he tears open the original permanent stitches of a garment and not if he tears open temporary stitches that were only placed afterwards. Clearly, he holds that we do not consider Tefira l’Zman to be Tefira.

However, the Shulchan Aruch (340:7) appears to disagree[5]. He cites the Shiboley haLeket (108) who rules that one may not add temporary loops (through which a thread will be strung to attach the sleeves) to a garment on Shabbos for “What difference is there between a Tefira for a day and a permanent Tefira?”

If the Rema disagrees with the Shulchan Aruch, why doesn’t he dispute the ruling of the Shulchan Aruch in Siman 340? The Acharonim suggest a number of answers:

The Tehila l’David contends that the Rema was only lenient in cases of “Kore’a Shelo Al Menas liTfor” (tearing something open with no intention of reattaching it) which is only an Issur d’Rabbanan. However, in the case of the Shiboley haLeket, there was to be a bona fide act of Tefira, therefore, the Rema held that one cannot be lenient, even if it was only a Tefira l’Zman.

The Sefer Shalmei Yosef (354) discusses this question at length. He concludes that according to the Rema there is a difference between cases where the Tefira is evidently temporary, and cases where the person intends for it to be temporary but that isn’t apparent to an observer. The Rema ruled leniently when the Tefira is obviously temporary. Where it isn’t apparent, the Rema concurred with the stringent position of the Shulchan Aruch. This is also the approach of HaGaon Rav Asher Weiss Shlit”a (Minchas Asher, 2:39).

The Chazon Ish zt”l makes a similar distinction in a letter to Rav Shlomo Zalman Auerbach zt”l, explicitly stating that performing Tofeir with the intention of undoing the stitches is still considered a Melacha. He emphasizes that if a person performs an act that has the form of a Melacha, his intention that it be temporary makes little difference.

2. Labels

The use of labels in hospitals on forms and diagnostic test samples is widespread. Is this permissible on Shabbos?

Ostensibly, the use of labels should be an Issur d’Oraisa like gluing pieces of paper together, as ruled by the Rambam. However, as noted above, some of the Poskim hold that Tefira l’Zman is permissible and this should certainly be the case with regard to Hadbaka l’Zman. Is attaching labels considered a permanent Tefira or temporary?

On the one hand, since labels remain permanently attached unless they are removed, this would not appear to be an act of Tefira l’Zman at all. It would seem to bear no comparison to other examples of Tefira l’Zman where the stitches are not going to remain permanently in place and were placed with the intention that they would be removed in the future. On the other hand, the person attaching the labels does not need them to remain permanently in place, as the item to which they are attached will at some point be discarded[6].

HaGaon Rav Asher Weiss Shlit”a (Minchas Asher 2:39) maintains that while it is certainly better to avoid applying labels on Shabbos, in a pressing situation one may rely upon the contention that it is only Tefira l’Zman. However, one should at least utilize a Shinuy – e.g. sticking the item onto the label rather than sticking the label onto the item.

3. Attaching a Soft Material to a Hard one – Labels on Patient Samples

The Melacha of Tofeir was used in the Mishkan to repair the Yerios[7]. Additionally, the Rambam (Hilchos Shabbos 10:11) rules that one is also liable for Hadbaka, such as for gluing pieces of paper together. Would a person be liable for attaching a soft item to a hard one which would not be nearly as permanent as gluing paper together?

We saw earlier that according to some Rishonim, the seal of a barrel is not considered to have a Chibur with the barrel since the two are not one entity. Therefore, removing the seal is not a Melacha. (Though the Gemara is discussing the Melacha of Soser, or, according to some Rishonim, Makeh b’Patish, we do see that not every type of attachment is considered a Chibur.)

In addition, the Gemara in Beitza (32b) rules that one may take clay that has been prepared before Yom Tov and spread it onto an oven, even though it will dry and become stuck to the oven. Clearly, this is not a violation of the Melacha of Tofeir as the clay is not considered to become a single entity with the oven.

We can explain the distinction between these cases in one of two ways:

When two items do not become one entity, though they may be attached very strongly (such as the seal on a barrel or the paper cover to a pot of cream cheese or yogurt), it does not constitute a Chibur.

Alternatively, the seal of a barrel is considered to be only a temporary Chibur as it will be removed in due course.

According to Rashi, it is permissible to open a sealed barrel because it is only a temporary Chibur. However, according to several other Rishonim, it is forbidden to break open even a temporary Chibur. The reason that it is permissible to open a barrel seal is because the seal and the barrel are not considered to have a Chibur between them at all as they do not become a single entity.

R’ Shlomo Zalman Auerbach zt”l (Shemiras Shabbos K’Hilchasa 9, footnote 85) uses this argument to support the conclusion that one may stick a paper label on a plastic bottle on Shabbos. Since the paper is soft and the bottle hard, it would not be considered a Chibur despite the fact that they two are stuck strongly together and the Chibur isn’t temporary.

Rav Asher Weiss Shlit”a (ibid.) contends that this is another reason to permit the use of labels on Shabbos. Since the labels are of a soft material and the items that they are attached to are made of harder materials, there will be no true Chibur between them. However, as stated above, Rav Weiss ultimately concludes that labels should only be used in pressing circumstances and by means of a Shinuy.

Rav Nisim Karelitz zt”l (Chut Shani 17) notes that this is also a reason for leniency regarding the use of band-aids which clearly do not become a single entity with the surface to which they are applied. However, he does rule stringently if the band-aid is used to pull two areas of skin together in order for a wound to heal[8], arguing that this may be considered Tofeir of the skin. Rav Shlomo Zalman, however, disagreed that band-aids can perform Tofeir on a wound, as Tofeir is only executed by means of a thread. There is, moreover, no Issur of Hadbaka on a person’s body.

Truthfully, Rav Karelitz’ position appears the more logical for even a thread does not become a single entity with a person’s body and merely serves to promote the body’s own healing. If so, there does not seem to be a logical reason to distinguish between that and Hadbaka.

4. The Use of a Stapler

The use of a stapler on Shabbos is clearly a violation of Meleches Tofeir as a staple is equivalent to two stitches[9] (Chut Shani 17 p136 & Orchos Shabbos 11:10). Therefore, where the use of a stapler is necessary, a Shinuy should be employed (such as by using the back of one’s hand). Ideally, a non-Jew should be enlisted to do it instead.

One simple solution is to make use of a safety pin instead, since it is not usually used to create a permanent attachment. Though there are Acharonim who hold that the use of a safety pin is a violation of Meleches Tofeir, all agree that if it is just inserted through the material(s) once, it is permissible. Moreover, according to the Chazon Ish (Hashmatos to 340), it is even permissible to insert it through the material twice.

{to be continued}

[1] The Ritva adds that the Halachos of Shabbos are similar to those of Kilayim where a temporary stitch is considered a Chibur.

[2] I.e., the skin (and other tissues) will “reattach” itself through the body’s natural healing process, and the sutures only hold the skin together to promote this healing but don’t actually attach the tissues to each other.

[3] [Editor’s note: In most cases, the body will eventually heal itself whether or not the wound is sutured together, and the sutures can be said to merely promote this process and to allow it to occur with reduced risk of infection, better cosmetic result, etc.]

[4] The Tzitz Eliezer’s view will be discussed in next week’s essay.

[5] This is also R’ Yitzchak Mordechai Rubin Shlit”a’s (Orchos Shabbos) understanding of the view of the Shulchan Aruch.

[6] There is a similar discussion among the Poskim with regard to the Melacha of Kosheir (which we discussed previously). However, we should stress that Kosher is unlike other Melachos as the Halacha that one is exempt for a temporary knot is found explicitly in the Gemara. Regarding Tofeir, where no such condition is stated, a person may well be liable if he is wants the two items to be stuck together, even if he doesn’t need them to remain attached permanently.

[7] Tofeir was not employed to repair the Bigdei Kehuna as they were woven and not attached by needlework.

[8] E.g. a “butterfly” bandage or Steri-Strips

[9] Which is the minimum Shiur for Meleches Tofeir