Talmud - Eruvin 96a עירובין צ״ו א׳

And if you wish, say instead that everyone agrees that to fulfill a mitzva one does not need intent, and here they disagree with regard to the condition needed to violate the prohibition: Do not add to mitzvot of the Torah. As the first tanna holds that one does not need intent to violate the prohibition: Do not add to mitzvot. One who dons another pair of phylacteries transgresses the prohibition against adding to mitzvot even if he does not don them with the intention of fulfilling the mitzva. And Rabban Gamliel holds that in order to violate the prohibition: Do not add to mitzvot, one needs intent to perform a mitzva. Since in this case one’s intention is merely to move the phylacteries to a safer place, he may don a second pair.

And if you wish, say instead that the dispute may be explained as follows. If we were to maintain that Shabbat is a fit time for donning phylacteries, everyone would agree that one does not need intent to violate the prohibition against adding to mitzvot, nor does one need intent to fulfill a mitzva. In this case, one’s intention has no bearing on his action.

However, here, they disagree with regard to the condition for violating the prohibition against adding to a mitzva not in its proper time, i.e., when a mitzva is performed not at its prescribed time. The first tanna holds that if the act of a mitzva is performed not in its proper time, one does not need intent; that is, even if one does not intend to perform the mitzva he nonetheless violates the prohibition against adding to mitzvot by his action alone. Consequently, in this case, a person may not don more than one pair of phylacteries. And Rabban Gamliel holds that to violate the prohibition against adding to a mitzva not in its proper time, one needs intent to fulfill the mitzva. Without such intent one does not violate the prohibition, and therefore in this case he may don a second pair of phylacteries.

With regard to this last explanation the Gemara asks: If so, according to the opinion of Rabbi Meir one should not even don one pair of phylacteries. According to Rabbi Meir’s opinion, one who does so violates the prohibition against adding to mitzvot merely by donning one pair, since he is fulfilling the mitzva of phylacteries at a time when he is not commanded to do so.

And furthermore, according to this opinion, one who sleeps in a sukka on the Eighth Day of Assembly should be flogged for violating the prohibition against adding to mitzvot, as he adds to the mitzva of: “You shall dwell in booths for seven days” (Leviticus 23:42). Yet the Sages instituted that outside of Eretz Yisrael, Jews must observe Sukkot for eight days, even though one who sleeps in a sukka on the eighth night outside of Eretz Yisrael transgresses a Torah law. Rather, it is clear as we originally answered, i.e., you must accept one of the other explanations.

Since the topic of phylacteries was discussed, the Gemara continues to explore this issue. Whom did you hear who said that Shabbat is a fit time for donning phylacteries? It is Rabbi Akiva, as it was taught in a baraita with regard to the end of the section in the Torah beginning with: “Sanctify all firstborns to me” (Exodus 13:2), which deals with the mitzvot of the Paschal lamb and phylacteries: “And you shall observe this ordinance in its season from year [miyamim] to year” (Exodus 13:10), which indicates that these mitzvot apply during the days [yamim] and not during the nights. Furthermore, the letter mem in “from year” [miyamim] teaches: But not on all days; this excludes Shabbat and Festivals, on which phylacteries are not worn. This is the statement of Rabbi Yosei HaGelili.

Rabbi Akiva says: This ordinance is stated only with regard to the Paschal lamb, and it does not refer to phylacteries at all. According to Rabbi Akiva, there is no reason to refrain from donning phylacteries on Shabbat and Festivals.

The Gemara asks: But with regard to that which we learned in a mishna that the Paschal lamb and circumcision are positive mitzvot, let us say that this statement is not in accordance with the opinion of Rabbi Akiva. The reason for this claim is that if you say this teaching is in accordance with the opinion of Rabbi Akiva, since he establishes this verse as referring to the Paschal lamb, this would mean that in failure to bring this offering there is also the violation of a negative mitzva, in accordance with the principle that Rabbi Avin said that Rabbi Elai said. As Rabbi Avin said that Rabbi Elai said: Any place where it is stated: Observe, lest, or do not, this means nothing other than a negative mitzva, as these are negative terms. Consequently, the verse “You shall observe this ordinance,” which refers to the Paschal lamb, constitutes a negative mitzva.

The Gemara rejects this: Even if you say that Rabbi Akiva holds that no negative mitzva applies to the Paschal lamb, it is not difficult, as an additional principle must be taken into account. Although it is true that the term observe with regard to a negative mitzva indicates the presence of another negative mitzva; that same term observe with regard to a positive mitzva has the force of a positive mitzva, as the Torah is warning adherents to take special care in the observance of a mitzva. The word observe in connection with the Paschal lamb is an example of this type of positive mitzva.

The Gemara returns to the issue at hand: And does Rabbi Akiva really hold that Shabbat is a time for donning phylacteries? Wasn’t it taught in a baraita that Rabbi Akiva says: I might have thought that a person should don phylacteries on Shabbatot and Festivals. Therefore, the verse states: “And it shall be for a sign for you on your arm, and for a remembrance between your eyes, so that God’s law shall be in your mouth; for with a strong arm God brought you out of Egypt” (Exodus 13:9). The obligation to don phylacteries applies when Jews require a sign to assert their Judaism and their status as the Chosen People, i.e., during the week, excluding Shabbat and Festivals, as they are themselves signs of Israel’s status as the Chosen People and a remembrance of the exodus from Egypt. Consequently, no further sign is required on these days. This teaching proves that Rabbi Akiva maintains that Shabbat is not a fit time for donning phylacteries.

Rather, it is this tanna, Rabbi Natan, who maintains that Shabbat is a fit time for donning phylacteries, as it was taught in a baraita: With regard to one who is awake at night, if he wishes he may remove his phylacteries, and if he wishes he may continue to don them, and he need not worry about violating the prohibition against adding to mitzvot. This is the statement of Rabbi Natan. Yonatan HaKitoni says: One may not don phylacteries at night. From the fact that according to the first tanna, Rabbi Natan, night is a fit time for phylacteries, it may be inferred that Shabbat, too, is a time for donning phylacteries, as Rabbi Natan evidently does not accept Rabbi Yosei HaGelili’s limitation based on the phrase: From year to year.

The Gemara rejects this contention: This is not a conclusive proof, as perhaps he holds that although night is a fit time for phylacteries, Shabbat is not a fit time for phylacteries. As we have heard that Rabbi Akiva said that night is a time for phylacteries, because he does not accept the limitation of “from days to days,” and yet he maintains that Shabbat is not a time for phylacteries, as no sign is required on Shabbat. It is therefore possible that Rabbi Natan holds the same opinion.

Rather, we must say that it is this tanna who maintains that Shabbat is a time for phylacteries, as it was taught in a baraita: Michal, daughter of Kushi, King Saul, would don phylacteries, and the Sages did not protest against her behavior, as she was permitted to do so. And similarly, Jonah’s wife would undertake the Festival pilgrimage and the Sages did not protest against her practice. From the fact that the Sages did not protest against Michal’s donning phylacteries, it is apparent that these Sages hold that phylacteries is a positive mitzva not bound by time, i.e., it is a mitzva whose performance is mandated at all times, including nights and Shabbat. There is an accepted principle that women are obligated in all positive mitzvot not bound by time.

The Gemara rejects this contention: But perhaps that tanna holds

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

Eruvin 96a explores whether intent is required to violate the prohibition against adding to mitzvot, focusing on debates over wearing extra phylacteries on Shabbat.