Dementia and Ma’ase Shabbos

Unfortunately, patients with advanced dementia often lose the ability to remember the day of the week, and even when oriented to the day of the week may not recall that a particular action is prohibited on Shabbos. They may come to perform Melachos without realizing it, and the outcome may be beneficial to family members. For example, switching on the heating on a cold day or boiling water for coffee. Under these circumstances, may others derive benefit from the Melachos?

This is a complex question, relating to the fundamental tenets of “Ma’ase Shabbos” – the Issur imposed by Chaza”l  on benefiting from the results of a prohibited activity on Shabbos. The circumstances in which the Issur is enforced, for how long the Issur is in effect, and to whom the Issur applies are the subject of a Machlokes between three Tana’im recorded in various Masechtos (see, for example, Chulin, 15a).

R’ Meir holds that the Issur only applies to Melachos performed deliberately (b’Meizid), and the Issur applies to everyone and remains in effect until Shabbos is over. R’ Yehuda has a stricter opinion: The Issur applies until after Shabbos even for Melachos performed unknowingly (b’Shogeg^[1]), but if the Melacha was performed b’Meizid, the Issur remains in effect for everyone else until Shabbos ends but forever for the perpetrator himself. R’ Yochanan haSandlar rules even more stringently: the Issur remains in effect for others until after Shabbos but forever for the perpetrator himself if the Melachos were done b’Shogeg. If they were performed b’Meizid, the ban remains in effect forever for everyone.

The Shulchan Aruch (318:1), in line with the Rif and Rambam, rules like R’ Yehuda:

A person who cooks on Shabbos (or performs another of the forbidden Melachos): If [he performed them] deliberately, it is forbidden to him forever but to others it is permitted immediately after Shabbos has departed. If [he performed them] unintentionally, it is forbidden on Shabbos even for other beneficiaries, but in the evening it is immediately permissible even for the perpetrator himself. (If one instructed a non-Jew to perform a Melacha on his behalf, see 307:20)

However, the Vilna Gaon holds like Tosfos, who rules like R’ Meir. This represents a leniency both for Melachos performed b’Shogeg – whose outcome is not subject to any Issur – and those done b’Meizid as even the perpetrator himself may benefit from the Melachos once Shabbos is over.

The Mishna Berura and Chazon Ish disagree as to whether it is acceptable to rely on the more lenient view of the Gra. The Chazon Ish insists that it is not acceptable but the Mishna Berura (318:7) disagrees:

Concerning Shogeg, the Gemara records the disagreement between R’ Meir and R’ Yehuda. The Shulchan Aruch rules like R’ Yehuda because this is the consensus of the Rif, Rambam, and Geonim. However, the Gra in his commentary agrees with Tosfos and others who rule in accordance with R’ Meir. That is, b’Meizid the proceeds are forbidden to the perpetrator and others until after Shabbos, but b’Shogeg they are permitted even to the perpetrator himself immediately. When necessary (“B’makom hatzorech”), one may rely on this view if somebody cooked b’Shogeg.

The Mishna Berura implies that there is an important caveat in relying on the lenient view of R’ Meir, namely, one may only do so when the Melacha was performed b’Shogeg. This is noted by R’ Shlomo Zalman Auerbach zt”l (Shemiras Shabbos Kehilchasa, 66, footnote 169) and haGaon Rav Asher Weiss Shlit”a.

It seemingly would follow that the results of the mindless actions of a dementia patient, all of which are unintentional [with regard to Shabbos], should be forbidden until after Shabbos, but when necessary, may be enjoyed with immediate effect, as per the ruling of the Mishna Berura.

However, it is not that simple. Halacha distinguishes between Melachos performed by a Jew and those performed by a non-Jew acting on behalf of a Jew. In the latter case, all Jews are forbidden to benefit from his actions for the duration of Shabbos, whether his services were enlisted by a Jew b’Shogeg or b’Meizid. Furthermore, the Issur extends until b’Chedei sheYa’asu – the duration of time that the activity would have taken (to avoid any benefit from the Chillul Shabbos). However, as explained above, if a Melacha is performed by a Jew, other Jews are permitted to benefit from it immediately after the Shabbos, even if it was performed on their behalf.

The Mishna Berura explains (318:5):

“In the evening it is permissible immediately”–Even for the person on whose behalf it was cooked, since it is only obligatory to wait b’Chedei sheYa’asu when a non-Jew performs a Melacha on behalf of a Jew. The reason for this is that the Issur of instructing a non-Jew is less weighty in a person’s eyes and he may come to perform it again in order to have something ready immediately after Shabbos. However, when something is performed by a Jew, there is certainly no concern that if we permit the proceeds immediately after Shabbos he will come to instruct the Jew to cook again on his behalf to achieve this benefit, and also the Jew will not listen to him since people do not sin when they have nothing to gain personally.

In summary:

• If a Jew performs a Melacha b’Shogeg the proceeds are forbidden to everybody until after Shabbos. Then they are permitted to everybody – even to the party on whose behalf the Melacha was performed. According to the Mishna Berura, when necessary, a person may use it immediately on Shabbos itself.
• If a Jew performs a Melacha b’Meizid the proceeds are forbidden to everybody until after Shabbos. As soon as Shabbos ends, they are permitted to everybody except the perpetrator himself.
• If a non-Jew performs a Melacha on behalf of a Jew, whether b’Shogeg or b’Meizid, the proceeds are forbidden to everybody until after Shabbos and the passage of b’Chedei sheYa’asu.

The reasons the Poskim provide for the distinctions between Melachos performed by a non-Jew and those performed by a Jew are important when considering the actions of a Shoteh. Do we apply the Halacha of a Jew or a non-Jew to a Shoteh?

The Pri Megadim (Siman 325) contends that the Poskim’s reasoning as to why a more lenient ban is applied to a Jew does not apply to a Shoteh. While a competent Jewish person would not perform a prohibited activity without personal gain, a Shoteh might. Therefore, the Issur usually reserved for the Melachos of non-Jews should be applied. The Mishna Berura appears to accept this argument in Bi’ur Halacha 325:10.

Accordingly, if a patient with dementia boils water on someone else’s behalf, it would be forbidden to benefit from it until after Shabbos and b’Chedei sheYa’asu, as the case would be with a non-Jew (with no distinction between Shogeg and Meizid). Moreover, as is the case with a non-Jew, the Issur applies both to the individual for whom the Melacha was performed and to anybody else. [However, if he boiled the kettle for himself, others may benefit from the hot water on Shabbos itself.]

Furthermore, if family members expressly instructed him to boil the kettle on their behalf, it is viewed as though they deliberately performed the Melacha themselves and the proceeds are Assur to them forever.

However, the Poskim offer a second reason for the distinction between Melachos performed by a Jew and those performed by a non-Jew. The Taz explains that the stricter Issur is required to disincentivize Jews from requesting the services of a non-Jew since there is no Issur d’Oraisa in doing so. Less incentive is required to prevent people from committing the Issur d’Oraisa of “Lifnei Iver Lo Siten Michshol” which prohibits Jews from encouraging other Jews to sin.

The Achronim discuss whether the reasoning of the Taz sheds light on another question of the Pri Megadim, namely, which Issur is applied to the proceeds of a Melacha perpetrated by a non-religious Jew. If we adopt the first rationale, namely, that there is little concern of a Jew transgressing an Issur when there is no personal gain, this should not apply to an irreligious Jew who has no qualms over transgressing prohibitions. We would therefore apply the more stringent ban typically applied to a Melacha performed by a non-Jew. On the other hand, if we adopt the rationale of the Taz this would not be the case. Since the prohibition of “Lifnei Iver Lo Siten Michshol” applies to all Jews, the identical Issur ought to be applied to Melachos performed by both religious and irreligious Jews.

Similar arguments could be applied to a Melacha performed by a Shoteh. On the one hand, a Shoteh will have no qualms about performing a Melacha in the future. This suggests that the stricter Issur should be applied. On the other hand, it can be argued that people will refrain from asking a Shoteh to be Mechalel Shabbos for them since this is a violation of “Lifnei Iver”. This requires further study, as perhaps we should be concerned that people may erroneously conclude that since the patient is a Shoteh and exempt from Mitzvos, there is no Issur Torah to request him to perform Melachos on Shabbos.

We must stress that this question only pertains to a Melacha that a Shoteh performs on behalf of others. If he performed it for his own benefit, others may benefit from it immediately. This is stated by the Magen Avraham (325:22) regarding minors, and is equally applicable to Shotim, as evident in the Magen Avraham and Bi’ur Halacha (ibid.).

The source of this Halacha is a Tosfos in Shabbos (122a). The Gemara in Yevamos (114a) relates that R’ Yitzchak once brought children to play in the street in an area where it was presumed that somebody had dropped the keys for the Shul. He hoped that the children would independently find the keys and unlock the Shul on everybody’s behalf. Tosfos (Shabbos, ibid.) point out that this demonstrates that one may immediately benefit from the Melacha of a minor performed for his own sake.

In conclusion, it is categorically forbidden to ask a patient with dementia to perform Melachos on Shabbos. If he boiled water for himself, others may benefit immediately from the hot water. However, if he boiled it on someone else’s behalf, the other person may only benefit from it after Shabbos and the passage of b’Chedei sheYa’asu.

[1] [Editor’s note: This means that the one who performed the action forgot or was unaware either that it was Shabbos or that the action was prohibited.]