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he Mishnah in Kilayim (9:2)states “And he should not wearkilayim (shatnez) even on top often garments, even to evadethe tax.”

In Perek 9 Mishnah 5 theMishnah states “Sellers of gar-ments may sell (kilayim) in theirnormal manner, but may nothave intention in the sun to pro-

tect from the sun or in the rain to protect from therain. Pious individuals (sellers) throw over (thegarments that are kilayim) on a stick.

The Gemara in Bava Kama (113a) states that ac-cording to Rabi Shimon in the name of Rabi Akivaone may wear kilayim to evade tax, and is based onthe Talmudic concept of davar she’aino miskaveinmuttar (action done without intent is permitted).Thus, the Mishnah in Kilayim (Perek 9, Mishnah 2)which forbids wearing kilayim to evade tax is ofthe opinion that davar she’aino miskavein ossur(action done without intent is forbidden) and isnot according to the view of Rabi Akiva.

The Gemara in Shabbos (29b) states that theMishnah in Kilayim (Perek 9, Mishnah 5) whichstates that seller of garments may sell in theirnormal manner is according to the opinion ofRabi Shimon who opines that davar she’ainomiskavein muttar.

This brings into question, how could theMishnah in Perek 9, Mishnah 2 be of the opinionthat davar she’aino miskavein ossur and in Mish-nah 5 be of the opinion that davar she’ainomiskavein muttar?

The Vilna Gaon in Shnos Eliyahu answers byasking why the Gemara in Bava Kama 113a statesthat Rabi Shimon in the name of Rabi Akiva saysthat one may evade tax by wearing kilayim becausedavar she’aino miskavein muttar, when it is RabiShimon himself who is of the opinion throughoutthe Talmud that davar she’aino miskavein muttar?Why does he need to quote Rabi Akiva?

Answers the Vilna Gaon “Aval ha’emes yorehdarko (the truth shows its way). Rabi Shimonhimself agrees that when one performs the prohi-bition physically even if he does not have intent itis prohibited. He only opines that it is permittedwhen one does not perform the action himself. Inthe Mishnah where he is wearing the garment ina regular manner but he has no intent the Gemaramust say that it is the opinion of Rabi Shimonsays in the name of Rabi Akiva that even in thisinstance it is permitted, because Rabi Shimonhimself is not in agreement.”

Continues the Vilna Gaon, regarding theMishnah which discusses the sellers of garments,referring to sellers who carry it on their shoulderbut are not wearing it, there it is Rabi Shimon

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R A B B I M O S H E B R E S L E RVaad L'Mishmeres Shatnez

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himself who opines that this is permitted. Although he iscarrying it on his shoulder and technically putting it on,since it is not possible in a different manner and he mustcarry it on his shoulder in order for the buyers to seethem, therefore it is permitted.

HaRav Yitzchok Frankel who wrote notes on the VilnaGaon’s commentary explains that by wearing kilayim theprohibition is the wearing itself, whereas when the kilayimis being carried on oneself, the prohibition is only the bene-fit one receives from it. Therefore Rabi Shimon does notpermit to do the actual prohibitive act such as wearing ki-layim even in a situation of davar she’aino miskavein, butwhen the prohibition is deriving benefit, then doing an actwhich brings on the benefit would be permitted in a situa-tion of davar she’aino miskavein.

This explanation of the Vilna Gaon is corroborated bythe Bais Yosef who explains the Rambam in this manner.

Tosafos opines that we may say that the two Mishnayosare in disagreement. Hence, according to Rabi Shimon whoopines the davar she’aino miskavein muttar, one may actu-ally wear kilayim in order to show to buyers or to evade tax.Since we rule in accordance with Rabi Shimon’s opinion,that is the halachah.

The Shulchan AruchYoreh Deah 301:6 rules like theRambam, which is also the opinion of the Vilna Gaon. TheRema brings the opinion of Tosafos. The Rema does not saythat we follow the lenient ruling. We therefore may con-tend that one should follow the stricter opinion when pos-sible as is brought down in the Pri Megadim in his pesicha.

There may be another consideration to forbid tryingon shatnez. Even according to the opinion of Tosafos whosays that according to Rabi Shimon who opines that davarshe’aino miskavein muttar one may contend that in a man-ner where it would surely bring benefit it is called a psikraishah (lit. cutting of the head; meaning- that it is likecutting off the head of a bird that it will surely die and isconsidered as if ones intent was for the bird to die even ifthis was not his intention) and should be prohibited. Suchis the ruling of Tosafos. When a person tries on shatnez es-pecially a jacket or the like there may be a psik raishah toacquiring benefit of looking good in it or the like. Thisissue may even be a stronger consideration when tryingon the jacket as a customer.

A further consideration to ponder is the ChochmasOdom 106:20 which forbids trying on shatnez as a customereven according to the ruling of Tosafos who opines that aseller may wear shatnez in order to sell his wares. He writesthe following “it seems to me that according to everyone itis forbidden if he wants to buy it (i.e. the shatnez garment)and wants to wear it for a short time to see if it his size be-cause he has in mind to wear it. Therefore those that buyhats that are sewn with shatnez and also garments are for-bidden to wear for size even temporarily.”

In the footnotes which are called “Binas Odom” he ex-plains that a barber’s garment worn over one’s garment isclearly forbidden if it has a neck hole. However if it does

not have a neck hole it is permitted. He explains that forones clothing not to get dirty from one’s hair is not consid-ered benefit which is forbidden when carrying the garmenton oneself. However, when it has a neck hole which is thenconsidered wearing, it would be forbidden even accordingto the other opinion of Tosafos since he has in mind to wearthe garment for whatever benefit. Continues the “BinasOdom” that however, if one has no intention to wear it justto evade the tax or to show its size to customers then itwould be permitted according to the opinion of Tosafos.

Seemingly, the Chochmas Odom believes that a buyerhas an intention to wear the garment as much as thewearer of a barber’s garment. Therefore, a buyer trying onclothing is as forbidden to wear shatnez as a person who isgetting a haircut is forbidden to wear a garment of shatnezover his garments.

The Shiltei HaGiborim in the end of first perek of Beitzahseemingly disagrees with the Chochmas Odom. He writesthat according to the ruling of the Rema that one may weargarments to evade tax, it would also be permissible to try ongarments for size because he has no intention to derivebenefit. Obviously, if a person tries on the garments andwants to derive benefit from the garment, for instance if hewould want to feel it and see if he enjoys the feel it wouldbe forbidden.

Another aspect would be to study the opinion of theShach and Taz who opine that according to the Rambamand Shulchan Orach a seller may actually wear garments tosell but not to evade taxes. The Magen Avraham in siman 19seems to follow the ruling of the Rambam and ShulchanOrach (as understood by the Shach and Taz). The questionwould be, “what would the Shach and Taz opinion be in re-gard to a buyer trying on shatnez?”

In conclusion, the consensus among many Rishonimand Acharonim is that it would definitely be wise for onewho is purchasing garments (that one can assume haveshatnez) not to put himself into a questionable halachic sit-uation and try on such clothing.!