Rabbi Michael J. Broyde and Avi Wagner
Michael Broyde is Associate Professor of Law at Emory University, Rabbi of the Young Israel of Toco Hills, Atlanta, and a Dayan in the Beth Din of America.
Avi Wagner is currently a law student in Georgetown Law Center, and studied at the Mirrer Yeshiva in Israel
Journal of Halacha & Contemporary Society 39; Spring 2000 - Pesach 5760

Key words: bath, shower, smoking, social reality

I. Introduction
In responding to changes in social or technological reality, Jewish law takes timeless principles and applies them to prevailing situations. Although halacha appears to change, insofar as the answer provided to an identical question might be different in different generations or locations, it is actually the same principles now being applied to new circumstances.

This paper addresses social and technological changes related to the observance of one aspect of Yom Tov: the concept of shaveh lechol nefesh, which is best translated as work which is "of benefit to every person." In particular, we will address three distinctly different social and technological changes that have occurred in the last seventy-five years in the United States of America, and see how they have impacted on Jewish law.
1. Daily showering has grown very common. Many, if not most Americans shower every day, and it is viewed as unprofessional not to do so.1
2. Cigarette smoking grows increasingly uncommon. Nearly every year the percentage of people who smoke declines, and in the United States in 1998 less than 23 percent of the adult population smoked; this is half the percentage of smokers thirty-five years ago.2
3. Hot water is readily available through automatic hot water heaters located in every home and apartment, which instantly provide hot water without any effort. Hot water is available and heated around the clock, and does not entail anyone person's heating water for another.3

None of these three conditions were historically true in the past; daily showering was uncommon until the middle of the twentieth century, cigarette smoking was engaged in by more than halt of the adult population until the mid-1960's, and instant hot water was uncommon until the end of the Depression, and even later in rural areas. Undoubtedly there are places in the world where these facts are still untrue.4

Before proceeding to discuss the particular issues which are the focus of this paper, it is vital to conceptually distinguish between changes in the principles used by halacha and differences in results provided by halacha to questions based on novel social or technological situations. This paper addresses the latter case, which should not be confused with the former.

Few would deny that halacha's response to any given question depends on the factual reality of the times even as the halachic principles remain the same. For example, it was the custom in many communities, when speaking to one's teacher directly, to address that person in the third person as a mark of respect. Indeed, to this day that is the practice in many countries. However, because the construct of English grammar makes this very awkward, it is not the general custom in English-speaking communities when addressing eminent people, and thus is not the general custom in the observant Jewish community either.5

Changes of this type do not demonstrate a change in the principles used by halacha, which require that one speak reverentially to one's teacher. Rather, it demonstrates the consistent application of a principle - the need to speak in a respectful manner - to diverse factual settings. Responses to change - linguistic, social or technological - inevitably entail applying classical principles to new situations and are not a matter of controversy.

This paper is divided into five sections. In Section II general rules regarding activity which is prohibited on Shabbat but permitted on Yom Tov are explained; the term shaveh lechol nefesh ("of benefit to all") is explained as the crucial term. Section III examines whether the application of the term shaveh lechol nefesh is a variable based on social or technological concerns (and concludes that it does). Section IV discusses smoking on Yom Tov, and Section V discusses showering on Yom Tov. There is a short Conclusion.

II. Permitted and prohibited work on Yom Tov
Categories of work prohibited on Yom Tov are generally the same as those prohibited on Shabbat.6 But one major exception to this rule exists, as the Torah itself states regarding Pesach:
Uvayom harishon mikra kodesh uvayom hashevi'i mikra kodesh yihye lachem kol melacha lo ye'aseh bahem ach asher ye'achel lechol nefesh hu levado ye'aseh lachem:

The first day shall be called holy and the seventh day shall be called holy; no work may be done [on the holidays] except for what is edible by all people, that alone may be done for yoy. 7
Thus, at the minimum, any activity prohibited on Shabbat is permitted on Yom Tov if that work is necessary for daily sustenance (ochel nefesh).8 Some authorities translate the word ochel nefesh to mean food needs only.9 Others offer a broader explanation that ochel nefesh includes all bodily needs and desires.10

Whatever the precise boundaries of the permissible rule in the Torah itself, the Talmud further extends this to include other types of work:

Rav Pappi responded to Rav Pappa: Are you of the opinion that since wounding is permitted in a case of need [a case of ochel nefesh] it is also permitted even if there is no need [for food]? Are you then of the opinion that it is permitted to burn spices [this surely should be prohibited], because burning is permitted in a case of need and should therefore be permitted even if there is no need?
Rav Pappa responded: Regarding this, the verse states: "Except for what is ye' achal lechol nefesh [literally: edible by all people] that alone may be done for you;" only something which is of benefit to all [shaveh lechol nefesh] may be done.
Rav Acha the son of Rav asked Rav Ashi: Are you of the opinion that one who finds a deer on Yom Tov may not slaughter it because it is not shaveh lechol nefesh?
Rav Ashi responded: What I mean to say is that the object to which the work is done must be shaveh lechol nefesh and a deer is shaveh lechol nefesh.11 (emphasis added)
This talmudic text establishes a principle that any type of activity that is applicable to ochel nefesh is permitted even when that activity is not being used for the sake of food,12 provided that (a) it is for the use of the holiday and (b) it is shaveh lechol nefesh (of benefit to all). This principle and its expansion generally goes by its talmudic name of "mitoch", from the talmudic statement "In the course [mitoch] of permitting work for the sake of food, work even not for the sake of food was permitted."13

The concept of mitoch is difficult to understand jurisprudentially. On what basis can the talmudic Sages extend the permission of work for activities that are not ochel nefesh? R. Eliezer of Metz in the Sefer Yeraim provides the classical explanation:

The Torah's permitting work on Yom Tov is not restricted to ochel nefesh; rather it includes all bodily needs,14 ... the words lo ye' achal include both eating and other forms of enjoyment. Thus, all bodily needs are permissible because of the Torah's wording, even without the principle of mitach.15
R. Eliezer of Metz, and most other Rishanim,16 explain mitoch not as a rule of extension, but rather as a method of explanation which comes to demonstrate that work necessary for any mitzvah, including holiday enjoyment, is permitted.17 Tosafot and other authorities disagree with this explanation; they rule that the term ochel nefesh is restricted to the preparation of food product alone. Other needs are permitted only because of the rabbinic insight grounded in mitoch, which thus permit non-food preparation.18 However, activity permitted because of mitoch alone must be shaveh lechol nefesh, according to all Ashkenazic and many Sefardic authorities.19

Before turning to the question of whether the concept "of benefit to all" can change from time to time and place to place, it is important to understand what the principle means. Based on the talmudic incident in Ketubot 7a quoted above, the use of the phrase shaveh lechol nefesh denotes an activity that people view as desirable to them; thus eating venison is "of benefit to all" even though most people do not have the opportunity to do so regularly. When given the chance, people engage in the activity.

As noted by many, the principle of "of benefit to all" does not really requires "all", even though the word kol in Hebrew is literally translated as "all,". With most matters of Jewish law, it is sufficient that "most" desire this activity.20 Just as there must be some people who are violently allergic to venison or find it extremely distasteful, it is sufficient that most people would eat venison. The same is true for all applications of shaveh lechol nefesh. This explains why Tosafot state that washing hands, feet and face is shaveh lechol nefesh - most people do so, or would like to do so, regularly.21

III. Does Shaveh Lechol Nefesh Change?
Before one can address whether any particular activity is considered currently "of benefit to all" one preliminary question must be addressed: Does the concept of shaveh lechol nefesh change from time to time and place to place, or maybe the talmudic Sages fixed the concept through rabbinic decree to denote specific activities, and even if these activities are not longer currently "of benefit to all," halacha treats them as if they are.22

The answer to this question is clear. Halacha recognizes that the concept of shaveh lechol nefesh is determined by a societal and social norm and not by a fixed and immobile rabbinic decree. For example, consider that Mishnah Berurah discusses whether washing feet nowadays is shaveh lechol nefesh even though many Rishonim explicitly state that hands, feet and face are halachically equivalent and washing all are shaveh lechol nefesh. He states:

Maybe nowadays washing feet is not shaveh lechol nefesh, and this has changed from their times, since they used to walk extensively without shoes [and nowadays our feet do not get dirty, since we wear shoes].23 (My emphasis)
An identical discussion Occurs about whether babies can be washed on Yom Tov. Ramo states (OC 511:2) that one may bathe an infant on Yom Tov, indicating that this conduct is shaveh lechol nefesh, whereas Magen Avraham (511:5) avers that such conduct is actually not permitted because "nowadays, even on a weekday, we bathe infants only every second or third day and it is thus prohibited on Yom Tov." Their disagreement reflects their understanding of social realities, rather than a pristine halachic principle. If infants are regularly bathed, then both Ramo and Magen Avraham agree that such conduct is permitted on Yom Tov; if they are not, then it is prohibited.24

Another example of the context-driven nature25 of shaveh lechol nefesh is the discussion among contemporary decisors with regard to the immersion of women in a heated mikva on Yom Tov. Even though bathing was not generally viewed as shaveh lechol nefesh, perhaps in a situation where a woman must fully immerse, hot water is shaveh lechol nefesh, and indeed the general rabbinic prohibition accepted by Tosafot against bathing in hot water may not even apply to a mikva.26

Mishnah Berurah writes that immersion in the mikva cannot take place when water temperature exceeds lukewarm, even if the water has been heated before Yom Tov, because Mishnah Berurah is hesitant to categorize hot water as something which is shaveh lechol nefesh, as a matter of social fact.27 Even he concedes that removing the chill from water, however, is shaveh lechol nefesh.28 In this view, women have no preference between hot water and body temperature water. On the other hand, Aruch Hashulchan rules more leniently, permitting the heating of water for Yom Tov in a mikva as "to pour hot water in a mikva nowadays when it is impossible for women to immerse in a cold mikva, it is obvious that such is shaveh lechol nefesh.29

Indeed, but for one teshuva,30 this author is unaware of any assertion that shaveh lechol nefesh cannot and does not change. As one can see from the next sections, the discussion of the halachic permissibility of cigarette smoking or showering that is found in the classical poskim clearly indicates that there is a disagreement as to whether smoking or showering was or is shaveh lechol nefesh.

IV. Smoking on Yom Tov
Much debate among halachic decisors has focused on the permissibility or prohibition of smoking on Yom Tov.31 Magen Avraham writes that smoking tobacco is prohibited on Yom Tov as "it is not shaveh lechol nefesh".32. He equates it with incense (mugmar)33 which was prohibited as not shaveh lechol nefesh - just as a majority of the people did not use the incense (mugmar) discussed in the Talmud and thus it was prohibited to burn it on Yom Tov, so, too, cigarettes should be prohibited inasmuch as the majority of people (in his day) did not smoke, although cigarettes were ready available.

Rabbi Jacob Falk, writing in Pnei Yehoshua,34 advances an argument which permits smoking on Yom Tov; he states that because so many people smoke, and smoking is viewed as of benefit to food digestion, and smoking contributes to one's overall health, it is therefore permissible as shaveh lechol nefesh.35 Rabbi Jacob Emden agrees with this reasoning and adds an even weightier concern: he notes that many people are nauseous at the sight of food if they do not first smoke - therefore, if halacha were to prohibit smoking on Yom Tov, it would severely dampen such people's simchat Yom Tav.36 Similarly Teshuvat Darchei Naam 37 writes the following:

It is obvious that those who smoke enjoy it. The majority of people smoke, only an insignificant minority does not, and as with all Torah law a majority is treated like a unanimous consensus... Furthermore smoking is nearly in the category of ochel nefesh. This assertion holds true not only for the Rambam38 who is of the opinion that bathing is included in the same category as eating, but even those who exclude bathing from the category of ochel nefesh would include smoking because it stimulates the palate in a manner similar to eating.39
Rabbi Yisrael Meir Kagan (Mishnah Berurah) in his Biur Halacha40 ponders the permissibility smoking on Yom Tov based on an observation that in his time, most or many41 people smoked. Aruch Hashulchan also permits smoking, and he does so after a lengthy discussion of why most people do not mind cigarette smoke and enjoy smoking.42 So too, Rabbi Neuwirth in Shemirat Shabbat Kehilchata43 quotes both lenient and stringent opinions with regard to smoking on Yom Tov for one who is accustomed to it.44 Rabbi Ovadia Yosef concludes that in practice one who does not usually smoke should abstain from smoking; however, "we are lenient so as to allow smoking for those whose Yom Tov would be darkened were they not permitted to smoke. For someone who does not normally smoke, it is best not to smoke on Yom Tov."45 Similarly ambivalent sentiments are expressed by Rabbi Moshe Feinstein who states "it is logical that smoking cigarettes nowadays has become not shaveh lechol nefesh, although it is difficult to rule definitively against the practice of the community."46

It would seem that, as the statistics relating to smoking become clearer and clearer, the case for prohibiting smoking on Yom Tov grows stronger and stronger as such activity is clearly not shaveh lechol nefesh anymore in the United States. Only one in five adults smoke in America.47 Indeed, even further than that, not only is smoking a practice most people do not do, it is a practice that most people affirmatively do not wish to do.48 As noted by Rabbi Ovadia Yosef, the fact that people find an activity unpleasant makes it even clearer that such conduct cannot possibly be called shaveh lechol nefesh.49 This is even more so true given the state of modern scientific knowledge about smoking, which makes it clear that smoking is not healthy, does not aid in digestion, and is not even an appetite enhancer.50

For halacha to permit the practice of smoking on Yom Tov in America, one would have to accept one of three arguments, none of which appear persuasive, at least lechatchila (ab initio).

(1) One could argue that even activities that are not shaveh lechol nefesh are nonetheless permissible for the sake of simchat Yom Tov when not permitting them would drastically reduce simchat Yom Tov.

While that argument could perhaps be read into the view of Rambam, who has no notion of shaveh lechol nefesh, that argument is rejected by almost all halachic authorities, and all Ashkenazic ones.51

(2) One could argue that smoking is halachically considered a form of eating as the smoke goes in one's mouth, and, as noted in note 21, food activities are not governed by the shaveh lechol nefesh limitation according to many decisors.

While one can find this argument hinted at in the words of Darchei Noam,52 this argument is not found in, and implicitly rejected by, nearly all decisors.53

(3) One could argue that smoking is still shaveh lechol nefesh.

While only 23 percent of adult Americans smoke now, shaveh lechol nefesh perhaps should not be determined by examination of the smoking statistics over a single year, or even decade, and the trend concerning smoking would not rise to the level of categorically prohibiting smoking on Yom Tov until this pattern of decreased smoking continues for a number of years.54 In the alternative, this argument could rely on one of the minority definitions of shaveh lechol nefesh.55

None of these arguments are fully persuasive, and certainly should not be relied on ab initio, as all contemporary decisors note.56

V. Showering on Yom Tov
Discussion on the question of bathing or showering dates back to a dispute among the Rishonim which revolves around a mishnah in Beitzah:
Beit Shammai says a person may heat water for his feet only if it is drinkable and Beit Hillel permits [even the heating of non-potable water].57
Tosafot,58 followed by most Ashkenazic authorities,59 explain Beit Hillel as permitting the heating of water for the hands, face and feet, based on the principle of mitoch, deeming them shaveh lechol nefesh. Conversely, bathing was not shaveh lechol nefesh60 according to Beit Hillel; therefore heating water for a bath was prohibited according to Torah law, and bathing in pre-heated hot water by rabbinic decree, lest one come to heat water. Tosafot, in the same paragraph, however, aver that a steam bath (in Hebrew, ze'ah) is considered shaveh lechol nefesh and permitted even on Yom Tov, even to cook water for it on Yom Tov, because such activity is deemed "healthy"; thus it is shaveh lechol nefesh because most people want it. Bathing, Tosafot aver, is a form of recreation, and not done by most people, and thus not shaveh lechol nefesh.61

Ramban in his commentary to Shabbat 39b rejects Tosafot's view, asserting that Beit Hillel considered bathing shaveh lechol nefesh and only rabbinically prohibited for other reasons. Ramban writes:

We have a question. Since washing one's whole body and having a steam bath are all permitted, even to heat the water on Yom Tov, why did the Sages decree to prohibit it on Yom Tov? What prohibition is there? If one states that the Sages prohibited this lest one come to do so on Shabbat, that cannot be, as one generally does not prohibit activities on Yom Tov because of Shabbat in the areas of ochel nefesh ... Tosafot state that bathing one's whole body is not for the needs of all, and thus prohibited according to Torah law and is analogous to mugmar [incense, which is not shaveh lechol nefesh] These are words of prophecy! Washing one's whole body should be prohibited, but a steam bath permitted, and washing part of one's body permitted; rather benefit to the whole body [from washing it] is yet more pleasurable [and is shaveh lechol nefesh]?
It seems clear that Ramban holds that in a society where bathing in hot water is shaveh lechol nefesh there is no prohibition against heating water for the purpose of bathing.

Rambam,62 Rif63 and other Rishonim64: understand the talmudic discussion completely differently. They are of the view that the whole talmudic discussion of bathing with water heated prior to Yom Tov is limited to the prohibition related to bathing in a commercial bathhouse, and that one may bathe the whole body on Yom Tov with water heated prior to Yom Tov, so long as not in a commercial bathhouse situation.

May one bathe, in' a place other than a bathhouse,ffi in water heated before Yom Tov? According to Tosafot, while there has been no transgression of a biblical prohibition (because the water was heated before Yom Tov), there is a broader rabbinic prohibition on all hot water bathing on Yom Tov, as bathing is not shaveh lechol nefesh

Rabbi Yosef Karo, in Shulchan Aruch (OC 511:2), follows the view of Rambam and Rif:

It is permitted to heat water on Yom Tov to wash one's hands, but not one's whole body; however with water that was heated before Yom Tov one may wash one's whole body at once. However, this is only permitted outside a bathhouse; in a bathhouse, it is prohibited.
Ramo, following the view of Tosafot adds:

There are those who prohibit washing [one's whole body] under any circumstances with hot water, and such is the custom.

Thus, even when bathing or showering was not shaveh lechol nefesh, Sefardim, who generally follow the approach of Rabbi Karo, could shower or bathe in their own house on Yom Tov, as our modern hot water systems have already heated the water prior to Yom Tov and private showers do not have the status of bathhouses. This is recounted as the normative Sefardic halacha by Rav Chaim David Halevi66, in Yalkut Yosef,67 and in Kaf Hachaim, 68 all of whom permit bathing on Yom Tov. On the other hand, classical Ashkenazic poskim, such as Mishnah Berurah 69 and Aruch Hashulchan70 accepted the view of Tosafot and Ramo as normative, and prohibited bathing on Yom Tov even with water heated prior to Yom Tov.

The question thus to be asked is whether showering in our modern society - in which almost everyone bathes every day and we have little tolerance for a cold bath or shower - is considered of benefit to all, such that it would be permitted on Yom Tov even according the Ashkenazic tradition.71

The modern classical work Shemirat Shabbat Kehilchata72 ponders this question at some length and rules negatively. While in the text of the work Rabbi Neuwirth indicates that showering remains prohibited on Yom Tov, in his footnotes he repeatedly indicates that the rationale for permitting it is very strong.73 Indeed elsewhere in Shemirat Shabbat Kehilchata, the late Rabbi Shlomo Zalman Auerbach is quoted as ruling simply that "showering certainly is considered of benefit to all nowadays."74 A similar approach can be found in the writings of Rabbi Efraim Greenblatt75 and can also be implied from the writings of Rabbi Eliezer Waldenberg.76

There is considerable halachic and factual basis for one to argue that taking hot showers on Yom Tov is considered of benefit to all in America, and should no longer be prohibited on Yom Tov, even with water heated on Yom Tov itself. This is even more true for failing to shower over a three-day Yom Tov/Shabbat combination, and even a regular two-day Yom Tov.71

To prohibit hot water showering (and perhaps bathing) on Yom Tov one would have to advance one of three arguments.

(1) One could argue factually that showering is not really shaveh lechol nefesh even in America even over a two day period.

This argument is difficult, given the fact that almost all people regularly shower, and enjoy it. Washing one's whole body is so common in America that in Thomas vs. Allsip78 the Texas Court of Appeals notes that Texas prison regulations - Texas is not a state known for expansive prisoner rights - mandate that even prisoners be allowed to shower daily. Perhaps one could draw a distinction between bathing and showering in this regard, as most adults shower daily but bathe much more irregularly.79

(2) One could argue that our practice of not bathing or showering on Yom Tov is grounded in "lest people confuse Yom Tov with Shabbat" and even though bathing or showering might be permitted on Yom Tov currently, one should not engage in this practice.

This argument runs in the face of Ramban's often quoted assertion that "one generally does not prohibit activities on Yom Tov because of Shabbat in the areas of ochel nefesh." There is no more reason to prohibit bathing or showering on Yom Tov than there was to prohibit adding wood to the fireplace when people were cold in pre-modern times.

(3) One could argue that there is an old custom recorded in Magen Avraham not to bathe even in cold water (which is clearly permitted), lest one come to squeeze out one's hair, an independent prohibition. Indeed the custom is widely recounted that one should refrain even from cold bathing or showering on Shabbat except in a case of need or, perhaps, suffering.80

However, the threshold question in addressing this issue is whether this custom was ever applied to Yom Tov as well. Shemirat Shabbat Kehilchata states that this custom applied to Yom Tov as well as Shabbat.81 However, neither Mishnah Berurah nor Aruch Hashulchan nor Kaf Hachaim indicate that this custom applies on Yom Tov as well as Shabbat.82

A review of the origins of the custom of not bathing on Shabbat leads one to understand why this custom should not logically apply on Yom Tov. The custom of not bathing even in cold water on Shabbat originates in Maharil and Terumat Hadeshen83 both of which ground the custom in the possibility that people will walk around wet outside after they bathe and thus carry water or because they will squeeze out the water after bathing, both of which are, in some circumstances, biblical violations of Shabbat. On Yom Tov neither of these activities rise to the level of a biblical prohibition, and might not even be prohibited at all,84 and thus the custom of not bathing in cold water was never applied to Yom Tov.85 Indeed, neither Maharil nor Terumat Hadeshen nor Magen Avraham, the earliest quoters of this custom, mention it as applicable to Yom Tov. It is also worth noting the view of Rabbi Feinstein that there is a clear halachic distinction between showering and bathing with regard to the custom. Rabbi Feinstein states that the custom in Europe was only to refrain from bathing in cold water and that showering in cold water was never historically included in the custom of not bathing even on Shabbat.86

Thus, it is possible that there is no custom to refrain from bathing and showering in cold water on Yom Tov; However, even a person with a clear custom not to bathe or shower on Yom Tov, who is uncomfortable on Yom Tov - because of the heat or because of uncleanliness - is permitted to shower on Yom Tov, rather than to spend Yom Tov feeling uncomfortable.87 One who is ill certainly may take a hot bath or shower on Yom Tov, if that will make him feel better. There appears to be no more of a reason nowadays for a sick person to take a cold shower than a hot one, given that bathing in hot water is clearly shaveh lechol nefesh.88 It should be noted that when showering or bathing or even only washing the face, one must be careful not to squeeze water out of one's hair, nor use solid soap.89

VI. Conclusion
As the technological and social realities change, application of halachic rules may change as well. This article has explored that theory with respect to the fixed halachic principle of shaveh lechol nefesh.

This paper further explores the possibility that social and technological changes may have altered the application of these principles in two areas - smoking and showering on Yom Tov. Two hundred years ago most poskim permitted smoking on Yom Tov because most people enjoyed smoking and they than thought smoking was a healthy activity. In that same era regular bathing or showering in hot water was not viewed as of benefit to all and was technologically difficult to do, and thus rabbinically prohibited on Yom Tov. Today in America, smoking is viewed as hazardous and is clearly not "of benefit to all"; on the other hand, daily showering is a normal activity. We have explored the halachic rationale for concluding that perhaps the normative halacha today might opt for prohibiting smoking on Yom Tov while permitting showering.


1. See e.g. Jane E. Brody, "Personal Health" New York Times March 3, 1993 C12, which notes that "our national cleanliness fetish calls for a daily bath or shower", or the Common Sense Etiquette Dictionary which notes that the American practice is to "take a bath [shower] every day." The classical work Physician Evaluation of Mental Status notes that one of the evaluation terms for ability to function is whether a person can engage in "Activities of Daily Living," which it defines as "the things that one has to do to get through each day, i.e. bathing, dressing, eating, toileting, etc." For more on this, see text accompanying note 79. Whether this is true in other countries is unclear; as noted by Hubert B. Herring, "The French, Now Sniffing at Themselves" New York Times, November 29, 1998, Section 4, page 2.
2. For nationwide smoking statistics, "Kentucky's Smoking Rate Leads Pack," Akron Beacon Journal, November 6, 1998, at page A4.
3. "Bedroom, two car garage: Survey describes Typical New Home", Associated Press Wire Service February 28, 1993.
4. The smoking rate is the one that is most clearly so. See "Overseas, Smoking is one of Life's Small Pleasures" Akron Beacon Journal, September 7, 1997 G3. (In Vietnam, an estimated 73 percent of men smoke. In China ... the percentage is over 60 percent").
5. Thus, when speaking to the Chief Justice of the Supreme Court of the United States during oral argument, if one did not understand the question that he posed, one might say "Chief Justice, I did not understand the question." However, one would not turn to the Chief Justice and say "What did the Chief Justice ask?" The first question is actually in the second person, and the second question is in the third person. This is consistent with the requirement of the Shulchan Aruch YD 242:16 which permits speaking to one's teacher in the second person, as long as the appropriate honorific is used.
6. Shulchan Aruch Orach Chaim 495:1.
7. Exodus 12:16.
8. See Mishnah, Beitzah 36b and Megillah 7b and Shulchan Aruch OC 495:1. See also Tosafot Beitzah 3a s.v. gezeirah for a listing of which categories of work are necessary for ochel nefesh, but also note, however, Ran's comments ad loc. Whether a category of work is permitted for ochel nefesh if the work desired is not generally primarily used for the creation of food but is so being used here (such as tearing aluminum foil), is a dispute among the decisors and might depend on whether such an activity could be done prior to Yom Tov; see Magid Mishnah Yom Tov 1:4, Teshuvot Michtam L'David OC 19, both of whom aver that Rambam prohibits such actions. This matter is well discussed by Ramo OC 509:1 and commentaries ad locum.
9. See sources cited in text accompanying note 20.
10. See sources cited in text accompanying note 17.
11. Ketubot 7a. See also Beitzah 12a-b.
12. Tosafot id. s.v. mitoch based on other sources interpret this to mean that work is permitted for "needs of the day or the fulfillment of a mitzvah." Rashi in Beitzah 12a S.v. elah seems to indicate that even for no need whatsoever this form of work is permitted. Rabbi M. Auerbach, as cited in lmrei Binah Hilchot Yom Tov, and Rabbi S.Y. Zevin in HaMoadim BeHalacha, Yom Tov 1:4 explains Rashi as understanding that categories of work permitted on Yom Tov were never included in the dictum "and all work shall not be done on them," which prohibits work on Yom Tov; see also Ramban on Lev. 23:7. According to this view, on a biblical level, it is irrelevant whether the work is done for a reason or not. However, Rashi does agree that unnecessary work is rabbinically prohibited; see Biur Halacha 518 s.v. mitoch. Tosafot disagree, and understand ochel nefesh not as a categorical exclusion, but rather as a specific allowance which accommodates simchat Yom Tov and other needs of the day. See also Pnei YehoshuaBeitzah 12b s.v. vekasha. Biur Halacha concludes that the majority of decisors agree with Tosafot and one should act in accordance with Tosafot's view; but see Encyclopedia Talmudit 0chel Nefesh 1:275.
13. Beitzah 12b. Rambam (Yom Tov 1:4,16), following the view of Rif, makes no mention of shaveh lechol nefesh at all. Different Acharonim offer varied explanations of the Rambam's opinion. Most simply, R. Moshe Schreiber (Chatam Sofer O.C. 146) suggests, as a possibility, that when Rambam permits activities on Yom Tov he implicitly means that the objects for which such actions are necessary must be shaveh lechol nefesh. Other authorities (Biur HaGra, O.C. 518:2; Teshuvot Maishiv Davar 1:37-38 and Aruch HaShulchan O.C. 495:19-21, 511:3) explain that Rambam rejects the necessity of shaveh lechol nefesh as a precondition for permitted work, and the reasoning of mitoch is, in the view of Rambam, enough to permit all work, even that which is not of benefit to all, to be permitted. All Ashkenazic poskim reject the view of Rambam and certainly require the concept of shaveh lechol nefesh for non-food related work.
14. The words in ellipses make reference to a related dispute found in Pesachim 21b-24b.
15. Sefer HaYeraim sec. 304. Yeraim's comments are according to the opinion of Beit Hillel (Beitza 21b), which is normative. Rambam there in his Commentary to the Mishnah explains Beit Hillel as of the opinion that the Torah's use of the phrase ach asher ye'achel lechol nefesh includes all bodily needs, indicating that Rambam follows this line of reasoning too. (However, any theory advanced in Rambam will have to be consistent with the Rambam's larger view of mitoch and shaveh lechol nefesh). Kolbo 58 defines ochel nefesh to be "bodily needs, because they are shaveh lechol nefesh;" Kolbo is succinctly expressing the Yeraim's idea, even though Yeraim does not explicitly relate ochel nefesh and shaveh lechol nefesh. See also Aruch HaShulchan 511:1, Mishnah Berurah 511:1 and Shaar Hatziun 511:1,2. With regards to the Shaar Hatziun's comments on Rambam, see Tzitz Eliezer (1:20:3).
16. See Encyclopedia Talmudit, Ochel Nefesh 1:275 n.12.
17. Thus the Talmud on Ketubot 7a only means to allow wounding not for the sake of food, but only because it is a mitzvah; see Tosafot ibid. s. v. amar for a discussion of the difficulties with this approach. Other authorities (see the sources cited above) appear to translate the word mitoch as "since" or "because". Based on this translation, mitoch is a construct in and of itself, separate from ochel nefesh. Yeraim explains the word mitoch as meaning "within" or "in the course of" such as "mitoch-Within the verse itself in which the Torah allows bodily needs it allows other needs also..." See also Tosafot Ream's glosses on the Sefer HaYeraim (316:15-8) and the sources cited there.
18. Tosafot Beitzah 21b s.v. lo. See also Ran and Meiri on Beitzah 21b; See also Ritva and Ramban to Shabbat 39b. Rabbi Ovadiah Yosef, in Yabia Orner OC 5:39:1, indicates that Ritva and Ramban agree with Yeraim.
19. Rambam and perhaps Shulchan Aruch, do not agree, see note 15. Indeed, even in the Beit Yosef it is unclear whether he ever accepts the relevance of shaveh lechol nefesh, which he never uses anywhere in Shulchan Aruch. In this view, mitoch alone is enough. See Yabia Omer OC 5:39(5) for a collection of Sefardic decisors who do consider the term shaveh lechol nefesh as relevant.
The question of whether food preparation activity which is a melacha on Shabbat must be permitted on Yom Tov because of ochel nefesh only when it is shaveh lechol nefesh, or even when it is not, seems to be disputed. This becomes relevant when a person is cooking something that most people do not wish to eat (such as peanut butter- marshmallow-banana flavored hamburgers) but which the person in question does wish to eat.
R. Zerahiah Halevi, in his commentary to Beitzah 23a, states that even prepared food must be shaveh lechol nefesh, as is the simple understanding of Ketubot 7a. Thus it follows that the requirement of shaveh lechol nefesh applies even to direct ochel nefesh, and this statement is reinforced in the Shulchan Aruch HaRav (O.C. 511:8) which writes that anything that is not shaveh lechol nefesh is prohibited on Yom Tov. Shaar HaTziun 511:12 notes that according to R. Zerahiah that which is not shaveh lechol nefesh is not only excluded from the categorical permission of mitoch, but also altogether excluded from being called ochel nefesh, even though the person cooking it certainly expects to eat it. Alternatively, Teshuvot Darchei Noam (O.C. 9) understands Rav Ashi's reply at the end of Ketubot 7a as rhetorical, and thus is of the view that all food is considered lechol nefesh, even if most people do not eat it, and would not want to. A similar result can be found in Teshuvot Michtam L'david (O.C. 19) where he states that all food is by definition shaveh lechol nefesh, since a starving person would eat any food, and this makes all food useful and therefore shaveh lechol nefesh. This is very difficult to understand, as shaveh lechol nefesh would seem to denote a pleasant experience. For more on this, see also Meiri (Beitzah) 21b who writes that with regard to food, ochel nefesh is not a concern and Rashba ad. Loc. who appears to disagree.
20. See Peri Megadim Ashel Avraham DC 511:4 who explicitly notes this in the name of many commentators. This can also be implied from Tosafot Beitzah 21b s.v. lo, and Aruch HaShulchan OC 511:12.
21. Tosafot, Shabbat 39b s.v. uvet hillel materim.
There are at least three other definitions of shaveh lechol nefesh that are presented as possible by various decisors. Each of them, however, seem fraught with conceptual difficulty.
(1) In Hilchot Hamoadim 16:1 the possibility is raised that shaveh lechol nefesh has nothing to do with whether it is of benefit to most people, but whether people really need to engage in this activity or not. Indeed, the author speculates that when even a very small number of people need something very badly, that is called shaveh lechol nefesh, and even when most people do something regularly it is not shaveh lechol nefesh if they really do not need it. This seems deeply inconsistent with the talmudic discussion in Ketubot 7a, Tosafot Shabbat 39b s.v. b"h and Tosafot's assertion that a steam bath is shaveh lechol nefesh.
(2) Chazon Yechezkel Beitzah 1:7 seems to adopt the view that shaveh lechol nefesh requires that this be an activity that most people want to do all the time; an activity that most people want to do once or twice a day does not suffice. This, too, does not seem so logical, as it flies in the face of Tosafot's view found in Shabbat 39a that a steam bath is permitted but regular bathing not. So, too, it is hard to imagine that most people wish to eat venison for breakfast.
(3) Beit Meir YD 197:3 seems to accept that shaveh lechol nefesh depends on an activity being done by most people, and that even the minority that does not do it, generally wishes to do so. If the majority is doing an activity because most people are finicky, Beit Meir avers that this is not called shaveh lechol nefesh.
For more on this, see Rabbi Yisroel Nadoff, Yom Tov in Halacha at page 134 note 3.
22. Indeed, one can certainly find rabbinic decrees that "fixed" the halacha grounded in the reality of talmudic social norms. For a long discussion of a similar issue see my piece concerning shaving on Chol haMoed, in this journal, vol. XXXIII, pp. 71-94.
23. Biur Halacha 511 s.v. yadav. This question clearly demonstrates that the view of Mishnah Berurah is that shaveh lechol nefesh is a social assertion which is subject to change. Similar cultural distinctions are made in Noda BiYehuda Mahadura Tiniana O.C. 140 and are discussed by Tzitz Eliezer 6:20 regarding washing one's feet in the morning.
24. See Aruch Hashulchan OC 511:5 for this exact analysis.
25. Being context-driven is not the same as personally subjective, as in the concept of shaveh lechol nefesh there are different answers given in different eras, but only one correct answer in each time and place.
26. See Noda BiYehuda (Tiniana O.C. 25) and Chatam Sofer OC 146, 148. Chatam Sofer suggests that during the era of the Talmud hot mikvaot were technologically unavailable. This seems to imply that shaveh lechol nefesh is a social assertion grounded in the reality, that people can only really want what they reasonably can expect to have. Alternatively it is possible that Chatam Sofer means that in reality every woman has always preferred a hot mikva and that preference has always rendered immersion in a hot mikva shaveh lechol nefesh even in talmudic times - except that it was nearly impossible to do such.
27. Mishnah Berurah 511:19.
28. Shaar Hatziyun 511:25.
29. OC 511:6. One might ask why Aruch Hashulchan does not state the same rule even by regular bathing, too. I suspect that the answer is rooted in technology and sociology. In the era of the Aruch Hashulchan, public bathhouses, including mikvaot, had large and expensive coal fired heaters, which created an expectation that a mikva would be heated. Private houses did not have such, and thus heating water in a private house was expensive, difficult and complex, which meant rarely done. Thus, in one's own house people took cold baths, as hot water was not available. Showers generally were unavailable, as there was no standard 'water pressure, a requirement for a shower. Aruch Hashulchan and Mishnah Berurah are thus writing about mikvaot at the cusp of a technological change (easy hot water production). Seventy years earlier even mikvaot could not be heated, and seventy years later, even a bathtub could be heated.
30. Be'er Moshe 8:158-159 insists that shaveh lechol nefesh cannot change, although he advances no proof to that view. Indeed, he quotes sources indicating that it can change, as proof that it cannot.
31. This article assumes, without necessarily agreeing, that smoking is generally halachically permissible.
32. OC 514:4. Chayei Adam 95:13 concurs with this ruling as does Korban Netanel Beitzah 2:20.
33. See Beitzah 22b and Shulchan Aruch OC 511:4.
34. Pnei Yehoshua Shabbat 39b commenting on Tosafot Beitzah 21b s.v. matirin. See also Pri Megadim cited in Eishel Avraham on Magen Avraham id., and in Mishbetzot Zahav 514:2 who cites and concurs with the Pnei Yehoshua.
35. These arguments are based on Tosafot's view (as opposed to Rambam or Yeraim) that anything permitted because of mitoch must be shaveh lechol nefesh. In these writers' opinion it seems that Pnei Yehoshua means that because smoking aids in digestion and health it is universally desired; anything that promotes health is shaveh lechol nefesh when people actually use it. This reasoning is evident in Aruch Hashulchan 511:11. Even though, retrospectively, we now know that smoking is not beneficial to one's health, the fact that people smoked because they thought that it was beneficial made this activity shaveh lechol nefesh.
36. Mor Uketziyah 511.
37. OC 9. Subsequently he advances the same argument as Rabbi Falk. Similar sentiments are expressed in Teshuvot Rav Peilim OC 2:59. Tzitz Eliezer 1:20(3) and Ktav Sofer OC 66 both note that a majority of decisors are lenient, and allow smoking with some practical constraints relating to extinguishing and lighting cigarettes; for more on this, see note 56.
38. Zemanim, Yom Tov 1:16. See also Aruch Hashulchan 511:1 and the sources cited above in note 8.
39. This approach assumes that ochel nefesh is distinguished as a category because of the taste sensation of eating. This assumption seems to be the basis of disagreement between Darchei N Dam and Michtam L' david (see above note 21). Michtam L' david understands ochel nefesh to be categorized by inherent necessity, Darchei Noam typifies it by intrinsic appeal.
40. Biur Halacha 511 s.v. ain. Interestingly, he does not cite Rabbi Falk s arguments.
41. It is not clear why many people are sufficient grounds to permit smoking. Seemingly a majority should be necessary, based on the principle of halacha that a majority is dealt with as if it is a unanimous consensus. Alternatively Biur Halacha may be interpreted to mean that many more than a simple majority smoke, nearly everyone does. This is consistent with the fact that he cites Darchei Noam as a basis for leniency.
42. Aruch Hashulchan OC 511:11.
43. Shemirat Shabbat Kehilchata 13:7.
44. Ostensibly, Rabbi Neuwirth means that one who is not accustomed to smoking does not enjoy it, and it is therefore not a need of the chag. It seems logical that according to this view anyone who enjoys smoking, even on an irregular basis, would be permitted to smoke. Alternatively it is possible Rabbi Neuwirth is basing himself in part on Rabbi Emden's view that those accustomed to smoking will not enjoy Yom Tov if not allowed to smoke.
45. Yabia Omer OC 5:39(5).
46. Iggerot Moshe OC 5:34. Interestingly, Rabbi Feinstein speculates that maybe a common practice, even if not done by the majority of the population, might be shaveh lechol nefesh. He concludes by ruling that "Thus, one can rule with certainty that ba' alei nefesh should be strict about this; by the technical halacha it is difficult to prohibit it.
47. See www.cdc.gov /tobacco/who/israel.htm about smoking rates in Israel:
According to a 1990 survey of adults aged 18-40 years, smoking prevalence was 28% among Jews and 48% among Arabs. Smoking appears to be almost as common among Orthodox Jewish males as among other Jewish males in Israel. Smoking is extremely rare among Orthodox Jewish women.
48. Thus, it is not like the talmudic discussion of venison, which most people would like to eat although they seldom have the opportunity. People who do not smoke are glad of that; most people who smoke wish they could stop.
49. Yabia Omer 5:39(3).
50. Whether a moderately sick patient (she'ain bo sakana) who is smoking to assist in digestion and reduce nausea can smoke on Yom Tov might depend on the dispute among the poskim as to whether preparing drugs for a moderately sick person is called shaveh lechol
or not. For more on this, see Shemirat Shabbat Kehilchata 19:3. See also Avnei Nezer OC 394:8.
51. One could buttress this argument by noting that the status of suffering (mitztaer) does generate leniencies in a number of areas; see Rabbi Akiva Eiger OC 326:4 and SSK 14:1&11. To those addicted to smoking, depriving them of smoke probably does make them suffer
52. See text accompanying note 39. This is also hinted at in Biur Halacha OC 511 s.v. ain who uses the word shetiyat tutin to denote smoking tobacco. However, Biur Halacha does not explicitly advance this argument.
53. Who use the modem word le'ashen to denote smoking.
54. This argument is hinted at in Iggerot, Moshe OC 5:34.
55. See note 23 for a list of them.
56. For example, Iggerot Moshe, Yabia Omer, Tzitz Eliezer, Shemirat Shabbat all, at the least, hesitate to permit smoking on Yom Tov as such conduct is not shaveh lechol nefesh. There are three secondary issues that need to be noted, if one is to smoke on Yom Tov. The first is that one can only light a cigarette from a pre-existing flame; the second is that according to some authorities one should not burn cigarettes that have letters or writing on them; finally, according to many authorities one may not intentionally clear the ash off of a cigarette on Yom Tov.
57. Beitzah 21b.
58. See Tosafot Beitzah 21b s.v. lo yichamem.
59. See Tur and Beit Yosef on OC 511 for a fuller list.
60. Tosafot Shabbat 39b S.v. matirin writes that it is not shaveh 1echo1 nefesh and is merely a form of indulgence. Similar opinions are expressed by many other Rishonim; see Tur and Beit Yosef OC 511.
61. One could note that the major element that made hot water bathing not shaveh 1echo1 nefesh in pre-modern times was the great effort it took to arrange for large quantities of hot water to be moved into a bathtub from the stove; this entailed so much effort that few people ever took a hot bath (and few took cold baths either). Bathing limb by limb (which most poskim rule to be permitted on Yom Tov) was shaveh lechol nefesh precisely because large amounts of hot water did not have to be carried from the kitchen to the bath area and thus this was commonly practiced. Babies, because of their size could be washed much more easily, and thus bathing infants was shaveh lechol nefesh. One can now understand why a steam bath was much more common in pre-modem times as well. Even a small amount of water can generate a lot of steam, and this can be done easily even without running hot water. .
62. Zemanim, Yom Yov 1:16.
63. On Beitzah 21b.
64. See Beit Yosef OC 511 for a fuller list.
65. Some have suggested that any tub should have a status of a bathhouse according to Jewish law, and even Rabbi Karo would not permit bathing in a tub in a private bathroom. This seems incorrect, as the text of the Shulchan Aruch (511:20) seems " to explicitly permit bathing in a private bathtub which is not in a bathhouse; see Yalkut Yosef 5:483 (n. 5). I am aware of no decisors who label our bathrooms as a talmudic bathhouse for the purpose of this decree.
66. Mekor Chaim 1:29.
67. Yalkut Yosef (volume 5) in 511:10.
68. OC 511:2.
69. 511:18. Even according to this stringent view one is allowed to wash each bodily limb individually in water heated prior to Yom Tov.
70. OC 511:4.
71. If this analysis is correct, a most interesting change also is produced. According to Sefardic decisors, bathing on Yom Tov is only permitted with water heated prior to the holiday. However, according to the view of Tosafot, if bathing is shaveh lechol nefesh then it can be done even with water heated on Yom Tov; See Sha 'ar Hatziyun 511:14 which notes this about a steam bath, which Tosafot views as permitted.
This is not a small issue. If showering is shaveh lechol nefesh, then the issue of whether the water is heated before or after Yom Tov is not really relevant, according to Tosafot or Ramo. The reason according to Tosafot that one cannot heat the water on Yom Tov to bathe is because it is not shaveh lechol nefesh, and then, Tosafot argues that there was a gezera from water heated on Yom Tov to water heated before Yom Tov. There is no category of bathing according to Tosafot that is permitted to do on Yom Tov only with water heated prior to Yom Tov. (According to Tosafot, when bathing is not shaveh lechol nefesh, bathing with water heated on Yom Tov is a Torah prohibition, and bathing with water heated prior to Yom Tov is a rabbinic prohibition.)
72. Chapter 14, Halacha 7.
73. SSK 14 (21) and (25). In addition he quotes the late Rabbi Shlomo Zalman Auerbach to the effect that it is quite possible all would agree that one who is sufficiently dirty may wash his whole body. In our society, many aver that anyone who did not shower the previous night fits that description upon waking in the morning.
74. Chapter 19 Note 3. Furthermore, he writes, even if one were to reject the assertion that showering is shaveh lechol nefesh, most homes operate on a heating system where the hot water that supplies the shower comes from the same boiler that heats the water in sinks, and sinks are used to wash individual limbs, making Tosafot's fear remote.
75. Rivavot Efraim 6:265.
76. Tzitz Eliezer 11:64. See also Noda Biyehuda 2:25 who notes that it is obvious that when one bathes, hot water is good for all, and what Tosafot meant was that most people do not bathe at all, generally, and thus any prohibited work designed to make bathing nicer was prohibited.
77. See for example the discussion about the more lenient status of the second day of Yom Tov concerning smoking in Biur Halacha OC 511 s.v. ain. The rationale for permitting showering (or in previous times smoking) on the second day of Yom Tov only would be that abstaining from this conduct for two days is certainly not shaveh lechol nefesh. In that sense, showering is very clearly analogous to the steam bath discussed by Tosafot, which was considered "lebriot, " "for health," as opposed to "letanug", "for pleasure." People who shower daily feel uncomfortable or disgusting when they do not shower daily, which is the criterion used in Mor Uketzia 511 for things permitted lebriot.
78. 826 S.W.2d 825 (Texas Ct. App., 1992).
79. This argument is perhaps analogous to Tosafot's view concerning a steam bath as opposed to a regular bath, with the former being shaveh lechol nefesh and the latter not.
80. Magen Avraham 326:8, Mishnah Berurah 326:21, Aruch Hashulchan OC 326:9 Kaf Hachaim 326:(25) and Shemirat Shabbat Kehilchata 14:11 all record this practice. For a more severe recounting of this minhag, see Rabbi Shimon Eider, "Halachos of Shabbos" at page 393. But see Iggerot Moshe OC 4:74(3) who was asked, "given the custom in our community not to bathe on Shabbat even in cold water, and whether one could shower when it is very hot outside?" He responded "Other than in a case of difficulty, one should be strict, even though one does not find this custom [not to bathe in cold water] in the works of our teachers. When one is suffering (mitztaer) from the heat, one can be lenient." For more on this, see Iggerot Moshe OC 4:75.
81. Shemirat Shabbat Kehilchata 14:11. See also Ketzot Hashulchan, Badai Hashulchan note 8. The only other source that I am aware of that perhaps implies this is the Kolbo 86 quoted in the Beit Yosef YD 199:6. However, Beit Yosef clearly disagrees with this assertion. Shach YD 199:12 discusses the issue, although it is unclear what his conclusion is.
82. See sources cited in note 2. Iggerot Moshe twice discusses this custom (EH 2:13 and OC 4:74 (3)) and both times limits the custom to Shabbat, rather than "Shabbat and Yom Tov." Kaf Hachaim 326 (25) notes even further that many authorities do not even accept this custom for Shabbat, and permit bathing in cold water on Shabbat. Some want to derive from the precise language in the Mishnah Berurah in 326:24, permitting mikva immersion on Shabbat and Yom Tov, that Mishnah Berurah does extend the custom of not bathing even to Yom Tov, although this is not obvious from the context.
83. Shut Maharil 139 and Terumat Hadeshen 1:255.
84. Ibid.
85. See Shulchan Aruch OC 495:3, which explicitly states that neither carrying nor squeezing can ever be a biblical violation on Yom Tov. While there is some discussion among commentators as to whether this is really correct for squeezing, it is clear that one who squeezes out the water from his hair on Yom Tov even with a highly absorbent towel - which might be a Torah prohibition on Shabbat - has violated only a rabbinic prohibition on Yom Tov, as such squeezing is clearly for the sake of the day, and could not be done earlier.
86. Iggerot Moshe OC 4:75.
87. See Rabbi Akiva Eiger OC 326:4 and SSK 14:1&11.
88. Even Shemirat Shabbat Kehilchata concedes this in 19: (3).
89. See Mishnah Berurah 326:25.

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