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Makos, 17

1) THE DIFFERENCE BETWEEN ACCIDENTAL AND INTENTIONAL TRANSGRESSION OF AN "ISUR ACHILAH"

QUESTION: Rebbi Shimon states in a Beraisa that, with regard to all prohibitions against eating forbidden food items, the Torah prescribes a punishment of Malkus for eating even the smallest amount of a forbidden food. The Shi'ur of a k'Zayis applies only to the obligation to bring a Korban in the event that a person accidentally ate a forbidden item; he is obligated to bring a Korban for an accidental transgression only when he ate at least a k'Zayis of the forbidden item.

What is Rebbi Shimon's source for this? Why is there not a uniform amount for both the punishment of Malkus and the obligation to bring a Korban?

ANSWERS:

(a) RASHI writes that Rebbi Shimon maintains that it is a Halachah l'Moshe mi'Sinai regarding Korbanos that are brought for an accidental transgression of prohibitions which, when transgressed intentionally, are punishable with Kares. What exactly, though, is the Halachah l'Moshe mi'Sinai teaching us? Is it teaching that one is Chayav Malkus even for eating the smallest amount, or is it teaching that one must bring a Korban for eating a k'Zayis? The KESAV SOFER and others explain that Rashi is saying that the Halachah l'Moshe mi'Sinai teaches that in order to be obligated to bring a Korban, one must eat at least a k'Zayis. According to Rebbi Shimon, without this Halachah l'Moshe mi'Sinai we would have assumed that one becomes Chayav for transgressing any prohibition with even the smallest amount. The Halachah l'Moshe mi'Sinai teaches that this is not the case regarding an accidental violation of an Isur Kares, for which a Korban Chatas must be brought.

(From the fact that Rashi adds that this applies to an accidental violation of "an Isur Kares," it seems that Rashi maintains that the Shi'ur of a k'Zayis is necessary only for Korbanos that are brought for transgressing an Isur Kares, but not for other types of Korbanos which are brought for transgressions that do not involve Kares, such as a Korban for violating one's Shevu'ah (see Shevuos 29a). However, Rashi in Shevuos (21b) argues that even a Korban brought for transgressing a Lav (without Kares) requires that the transgression be done with a k'Zayis.)

(b) The RITVA cites another explanation in the name of the RAMAH. He says that someone who intentionally transgresses an Isur that is punishable with Malkus shows that even the slightest amount of this forbidden object is important to him, and that he needs no larger amount to be satisfied. Therefore, he is punished with Malkus even for a very small amount. In contrast, one who transgresses accidentally, without intent, needs to eat a significant amount before he is considered guilty for eating a prohibited item.

(The YESHU'OS YAKOV and BEIS HA'LEVI note that according to this explanation, we always knew that any Isur of Achilah involved eating at least a k'Zayis. A brazen transgressor gives importance and significance to the forbidden item without actually eating the minimum amount of a k'Zayis.)

The Acharonim argue concerning the logic of the Ramah. The BARUCH TA'AM and LECHEM SHLOMO suggest that the transgressor gives importance to even a tiny amount of forbidden food by the fact that he knows that it is forbidden and yet he still transgresses the Isur willingly. Since he is willing to ignore a law in the Torah in order to eat this item, it shows that he must be consider that food to be of great significance, and thus the small amount of food is considered to have the status of a k'Zayis. This logic does not apply to an accidental eating, where the person does not know that the food is forbidden.

The CHASAN SOFER (Teshuvos #118) and CHAZON ISH (Likutim to Choshen Mishpat, #23) argue that it is not the forbidden food which receives the status of a food that is the size of a k'Zayis. Rather, the Torah deems it necessary to punish such a person for his evil intention, since he is rebelling against the Torah. A rebellion against the Torah is the same regardless of how much of a forbidden item one eats. Only in the case of an accidental transgression, where the person has no intention to rebel against the Torah, does the Torah say that a k'Zayis is necessary in order for him to be obligated to bring a Korban. According to this explanation, when the Ramah refers to the fact that the intentional transgressor "shows the importance" of the food, it refers to the intention of rebellion which the Torah deems necessary to punish. (Y. Montrose)

QUESTION: The Mishnah lists a number of Isurim for which a person receives Malkus. It first mentions the Isur of eating fruits of Bikurim before the owner has read the Parshah of Bikurim. It then mentions the Isurim of eating Kodshei Kodashim outside of the separation around the Mikdash, eating Kodshim Kalim and Ma'aser Sheni outside of the wall of Yerushalayim, and the Isur of breaking a bone of the Korban Pesach.

We know that the Mishnayos and Beraisos are usually careful to list things in the order in which they appear in the Torah. Why, then, does our Mishnah first mention Bikurim, which is discussed near the end of the Torah, and afterwards mention the other Isurim, which are discussed much earlier in the Torah? Why does the Tana of our Mishnah arrange this list in such a manner?

ANSWERS:

(a) The P'NEI YEHOSHUA answers that instead of the Tana here is departing from the order of the Isurim as they appear in the Torah because he wants to list them in the order of how novel is the law of each one. The Gemara records an argument regarding the Halachah of Bikurim. Our Mishnah states that one who eats fruits of Bikurim before the owner has read the Parshah of Bikurim is punished with Malkus. The Chachamim, however, argue and maintain that once the Bikurim have been placed before the Mizbe'ach there is no longer a punishment of Malkus for someone who eats them, even if the owner has not yet read the Parshah of Bikurim. The Tana of our Mishnah argues with the Chachamim and is asserting that something which they say is permitted is actually forbidden, and therefore the Tana lists the Isur of Bikurim first. The next Isur, that of eating Kodshei Kodashim outside of the curtains of the Mikdash is not as novel, since no one argues that such an act is forbidden by the Torah. The Tana is merely adding that this Isur is also punishable with Malkus. The rest of the Isurim in the Mishnah continue to decrease in their level of novelty.

(b) The ARUCH LA'NER explains that the objective of the Tana here is to explain to us the things that are forbidden to be eaten even in holy places. Therefore, the Tana starts with Bikurim. The fruits of Bikurim may not be eaten even within the confining curtains of the Mikdash, as long as the Parshah of Bikurim has not been read. Kodshei Kodashim, however, *may* be eaten there, but may not be eaten outside of the curtains. Kodshei Kalim and Ma'aser Sheni *may* be eaten outside of the Beis ha'Mikdash, but not outside of the walls of Yerushalayim.

(c) The SHOSHANIM L'DAVID states that the Tana is hinting to us the order of the topics as they are derived from the verse (Devarim 12:17), according to Rebbi Shimon (and Rebbi Akiva), whose opinion the Mishnah follows. The Gemara quotes Rebbi Shimon at length and explains the way that he derives each Halachah from the verse that discusses the Mitzvah of bringing offerings to the Beis ha'Mikdash: "You may not eat in your settlements the tithe of your grain and of your wine and of your oil, the firstborn of your cows and your sheep, all of your pledges [to Hekdesh] that you will pledge, and your free-will offerings and what you separate as Terumah with your hands." In the Beraisa, Rebbi Shimon expounds these phrases in the opposite order in which they appear in the verse, first expounding "Terumas Yadcha" to refer to Bikurim, and then expounding "v'Nidvosecha" to refer to Todah and Shelamim, and so on. In order to parallel the way that Rebbi Shimon expounds the first, the Tana of our Mishnah (who follows the view of Rebbi Shimon), lists the laws in the Mishnah in the same order as Rebbi Shimon expounds them from the verse.

(According to this explanation, why does the Mishnah not list Kodshim Kalim immediately after Bikurim, since that is the next law that Rebbi Shimon derives from the verse? The Shoshanim l'David answers that Bikurim and Kodshei Kodashim are a category unto themselves, as they are both eaten only by Kohanim. After listing these, the Mishnah continues with all of the things that may be eaten by a Yisrael.) (Y. Montrose)

17b

QUESTION: Rava says that a non-Kohen who eats the meat of a Korban Olah outside of Yerushalayim before the blood of the animal was sprinkled on the Mizbe'ach transgresses five prohibitions, according to Rebbi Shimon. These prohibitions are: eating the meat of an Olah (which is not supposed to be eaten), a non-Kohen eating Kodshei Kodashim, eating before the sprinkling of the blood of any Korban. Additionally, Rebbi Shimon maintains that there are two additional prohibitions: eating Kodshei Kodashim outside of the curtains of the Mikdash, and eating Kodshei Kodashim outside of Yerushalayim, bring us to a total of five prohibitions.

How can Rebbi Shimon add more prohibitions to the person's act? There is a principle that "Ein Isur Chal Al Isur" -- once something has been forbidden already, it cannot have additional prohibitions take effect on it at a later time (see Yevamos 33a). The only way to have multiple prohibitions on a single item is when all of the prohibitions take effect simultaneously. How, then, can Rebbi Shimon's two additional prohibitions take effect on the meat of the Korban after three different prohibitions have already taken effect on it?

(a) The SI'ACH YITZCHAK writes that this question is only difficult according to the opinion of the RI (cited by Tosfos) and the RAMBAM. This is because they hold that Rava means literally that the person is punished for all of these offenses with multiple sets of lashes. However, according to RASHI and TOSFOS, this question is not difficult. They learn that Rava was only mentioning the number of prohibitions that the person transgresses, and not the number of sets of Malkus that he receives. The principle of "Ein Isur Chal Al Isur" applies only with regard to giving additional punishments. The Torah, however, *does* add more prohibitions when they do not result in more punishments.

How, though, are we to answer the question according to the view of the Ri and Rambam?

(b) The ARUCH LA'NER answers that the Gemara indeed is discussing a case in which all of the prohibitions took effect at the same time. Such a case can be found when a boy reaches the age of Bar Mitzvah after the meat of the Korban was taken outside of Yerushalayim. At the moment he becomes Bar Mitzvah, all of these prohibitions take effect simultaneously for him.

(c) The CHAZON ISH (Likutim to Choshen Mishpat, #23) answers that we do find a Tana in Kerisus (23a) who holds that Rebbi Shimon does not agree with the rule of not adding more prohibitions. We must say that Rava's statement follows the opinion of that Tana. (Y. Montrose)