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 the 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 law? Why is there no uniform amount for both the punishment of Malkus and the obligation to bring a Korban?
(a) RASHI (DH Kach Machlokes) writes that "Rebbi Shimon maintains that in all prohibitions, [eating] any amount [obligates a person] for Malkus, and the amount of k'Zayis said only with regard to a Korban for an accidental transgression of a prohibition punishable with Kares, and it is a Halachah l'Moshe mi'Sinai." *What* is a Halachah l'Moshe mi'Sinai? Does Rashi mean that the Halachah l'Moshe mi'Sinai is that one is Chayav Malkus for eating even the smallest amount of any forbidden food item, or does he mean that the Halachah l'Moshe mi'Sinai teaches that one is obligated to bring a Korban for eating a k'Zayis? The KESAV SOFER and others explain that Rashi means 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, even without the Halachah l'Moshe mi'Sinai we would have known that one is Chayav for transgressing any prohibition with even the smallest amount. The Halachah l'Moshe mi'Sinai teaches that this is not the case when one accidentally transgresses an Isur Kares, for which a Korban Chatas must be brought.
(Rashi's addition that this applies to an accidental transgression of "an Isur Kares" implies 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 one who intentionally transgresses an Isur punishable with Malkus shows that even the slightest amount of the forbidden item is important and satisfying 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 liable for eating a prohibited item.
(The YESHU'OS YAKOV and BEIS HA'LEVI note that according to this explanation, Rebbi Shimon agrees that any Isur of Achilah involves eating at least a k'Zayis. He maintains only that a brazen transgressor gives importance and significance to the forbidden item without actually eating the minimum amount of a k'Zayis.)
The Acharonim disagree about 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 chooses to ignore a law in the Torah in order to eat the item, he shows that he considers that item to be of great significance, and thus the small amount that he eats 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 an item 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 require a k'Zayis 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, he refers to the intention of rebellion which the Torah deems punishable. (Y. MONTROSE)
2) THE ORDER OF THE "ISURIM" IN THE MISHNAH
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 partition 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.
The Mishnayos and Beraisos are usually careful to list things in the order in which they appear in the Torah. Why, then, does the Mishnah here first list Bikurim, which is discussed near the end of the Torah, and afterwards list the other Isurim, which are discussed earlier in the Torah? Why does the Tana of the Mishnah arrange this list in such a manner?
(a) The PNEI YEHOSHUA answers that the Tana here departs from the order of the Isurim as they appear in the Torah because he wants to list them in the order of novelty of each one. The Gemara records a dispute about the Halachah of Bikurim. The 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, disagree and maintain that once the Bikurim have been placed before the Mizbe'ach there is no longer a punishment of Malkus for one who eats them, even if the owner has not yet read the Parshah of Bikurim. The Tana of the Mishnah, who argues with the Chachamim, asserts that the object which the Chachamim permit is actually forbidden, and therefore the Tana lists the Isur of Bikurim first. The next Isur, that of eating Kodshei Kodashim outside of the partitions of the Mikdash, is not as novel, since no one argues that such an act is forbidden by the Torah. The Tana is teaching merely 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 teach the items 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 partitions of the Mikdash, as long as the Parshah of Bikurim has not been read. Kodshei Kodashim, however, may be eaten there, but they may not be eaten outside of the partitions. 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's order alludes to the order of these Isurim 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 he derives each Halachah from the verse that discusses the Mitzvah to bring 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 "v'Nidvosecha" to refer to Todah and Shelamim, and so on. In order to parallel the way that Rebbi Shimon expounds the verse, the Tana of the Mishnah (who follows the view of Rebbi Shimon) lists the laws in the Mishnah in the same order as Rebbi Shimon expounds them.
(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 both are eaten only by Kohanim. After listing these, the Mishnah continues with all of the things that may be eaten by a Yisrael.) (Y. MONTROSE)
3) DERIVING ADDITIONAL PROHIBITIONS
QUESTION: Rava says that a non-Kohen who eats the meat of a Korban Olah outside of Yerushalayim before the blood of the animal is sprinkled on the Mizbe'ach transgresses five prohibitions, according to Rebbi Shimon. These prohibitions include: eating the meat of an Olah (which is prohibited), a non-Kohen eating Kodshei Kodashim, eating before the sprinkling of the blood of any Korban. The perpetrator transgresses two additional prohibitions according to Rebbi Shimon: eating Kodshei Kodashim outside of the partitions of the Mikdash, and eating Kodshei Kodashim outside of Yerushalayim.
How can Rebbi Shimon add more prohibitions to the person's act? The principle, "Ein Isur Chal Al Isur," teaches once something has become forbidden, additional prohibitions cannot take effect on it afterwards (see Yevamos 33a). The only way in which multiple prohibitions can take effect on a single item is when all of the prohibitions take effect simultaneously. How 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 difficult only according to the opinion of the RI (cited by Tosfos) and the RAMBAM. They maintain that Rava means literally that the person is punished for all of these offenses with multiple sets of lashes.
According to RASHI and TOSFOS, however, this question is not difficult. They understand that Rava mentions only 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 additional punishments. The Torah *does* add more prohibitions when they do not result in more punishments.
How do the Ri and Rambam answer the question?
(b) The ARUCH LA'NER answers that the Gemara indeed refers to a case in which all of the prohibitions take effect at the same time. Such a case exists when a boy reaches the age of Bar Mitzvah after the meat of the Korban was taken out 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 a Tana in Kerisus (23a) maintains that Rebbi Shimon does not agree with the principle of "Ein Isur Chal Al Isur." Rava's statement here follows the opinion of that Tana. (Y. MONTROSE)