SANHEDRIN 62 (25 Elul) - Dedicated in memory of Yechiel Avraham Avigdor ben Eliyahu Glaser z'l, by his brother Yisrael and family. May Avigdor's children continue to grow in Torah and Yiras Shamayim, and become sources of pride and Nachas to their father in Gan Eden.

1) RAVA'S OPINION IN THE CASE OF "OMER MUTAR"

QUESTION: The Gemara (61b) records a dispute between Rava and Abaye with regard to a person who worships Avodah Zarah "out of love and out of fear" (see Insights there). Abaye says that such a person is Chayav Misah, since he worshipped Avodah Zarah, an act punishable with death. Rava says that he is exempt until he actually accepts the Avodah Zarah as his god.

To prove his position, Abaye quotes a Beraisa regarding the special Korban brought by a Kohen Mashi'ach who serves Avodah Zarah b'Shogeg. Rebbi says that although, normally, a Korban is brought for an unintentional transgression only when the person forgot the Halachah, in this case the Korban is brought even when no Halachah was forgotten, and the only accident was the act of serving Avodah Zarah. The Rabanan maintain that this Korban is like all other Korbanos in that the person must have had a "He'elem Davar" -- he had to have forgotten something when he did the Aveirah. What is Rebbi's case in which one sinned unintentionally but did not forget any Halachah? The case cannot be where he thought he was bowing to a synagogue and did not realize that he was actually bowing to an Avodah Zarah, because in such a case his heart was focused on worshipping Hash-m, and he cannot be liable to bring a Korban in such a case. It must be that he bowed to a statue. However, if he intended to accept the statue as his god, he is Chayav Misah, and he is not liable to bring a Korban. If he did not intend to accept the statue as his god, then he did nothing, and again he is not liable to bring a Korban! Abaye answers that Rebbi must be discussing a case in which the Kohen Mashi'ach thought it was permitted to serve the Avodah Zarah "me'Ahavah umi'Yir'ah."

How is this case different from an ordinary case in which one thought an action was permitted, and thus is liable to bring a Korban? RASHI (DH Ela Lav) explains that a "He'elem Davar" refers to a situation in which one forgot the prohibition or one of its main components. In this case, such a forgetfulness would mean that he forgot that there is a prohibition of Avodah Zarah, or he forgot that a particular form of service to Avodah Zarah (such as bowing down; see ARUCH LA'NER who questions Rashi's example of bowing down) is prohibited. However, when one merely errs in one of the aspects which make a person Chayav (such as in the case of the Gemara here, in which he thought that "me'Ahavah umi'Yir'ah" was permitted) but not in any of the main laws of the prohibition, he is not obligated to bring a Korban when he accidentally sins in this manner. (See CHIDUSHIM U'VI'URIM who has great difficulty with why this should be so, and with how this concept can be reconciled with the many other cases of Shogeg throughout the Gemara.) Rebbi teaches that this is true for all Korbanos except for the Korban for Avodah Zarah brought by a Kohen Mashi'ach.

Abaye questions Rava: To what case can Rebbi be referring if you do not maintain that someone is Chayav for serving Avodah Zarah "me'Ahavah umi'Yir'ah"? Rava answers that Rebbi refers to a case of "Omer Mutar," in which the Kohen Mashi'ach thought that he was permitted to serve Avodah Zarah. Why, though, is that not the same case as "He'elem Davar"? Rava answers that Rebbi's position is the opposite of what Abaye thought, and he explains the argument in the following manner. The Rabanan maintains that only when one knew that such a prohibition exists but he forgot one of its main components (for example, that one is forbidden to worship Avodah Zarah but one is permitted to burn incense to Avodah Zarah) does one bring a Korban. Rebbi maintains that even if one forgot the *entire* prohibition he is Chayav to bring Korban.

TOSFOS (DH v'Rava) asks that the words of Rava here seem to contradict his words in Makos (7a). Rava there learns that the verse "bi'Shegagah" ("by accident") teaches that a case of "Omer Mutar" is *not* included in the category of Shogeg. Here, however, Rava says that Rebbi maintains that "Omer Mutar" *is* considered Shogeg!

ANSWERS:

(a) TOSFOS answers that the correct text in Makos reads "Rabah" and not "Rava." It is Rabah who says that a case of "Omer Mutar" is not considered Shogeg, and thus there is no contradiction in the words of Rava.

(b) Tosfos adds that even if one maintains that the other text ("Rava") is correct, the Torah clearly has a different understanding of Shogeg in a case of murder than Shogeg in the case of the Korban of the Kohen Mashi'ach. This is indicated by the many times the Torah mentions a seemingly extra phrase like "bi'Shegagah" with regard to murder, which it does not do when in its discussion of the Kohen Mashi'ach's transgression of the sin of Avodah Zarah. This implies that the Torah maintains that "Omer Mutar" is not considered Shogeg in the case of murder, but it *is* treated like Shogeg in the case of the Kohen Mashi'ach. This answer is given by Tosfos in Shabbos (72b, DH b'Omer) as well. (Y. MONTROSE)

62b----------------------------------------62b

2) AN ACT OF "MISASEK" DONE WITH PLEASURE

QUESTION: The Gemara discusses the case of a person who is "Mis'asek," who does a sin unintentionally. How does Mis'asek differ from Shogeg, one who commits a sin accidentally, who is obligated to bring a Korban Chatas? The simple explanation is that one who sins b'Shogeg intends to do the action but he forgets that the action is forbidden. In contrast, one who is Mis'asek has no intention to do the action. This difference seems to explain why a Shogeg brings a Korban and a Mis'asek does not. The Shogeg should have kept his mind alert and avoided the transgression, while the Mis'asek's act was entirely unintended and even unavoidable.

However, RAV SHALOM GELBER in NESIVOS SHALOM (16:13) points out that this definition does not seem correct in light of the Gemara here. The Gemara says that although in most cases, one who is Mis'asek is exempt, one who is Mis'asek in sins of Chalavim v'Arayos (forbidden fats and forbidden relationships) is obligated to bring a Korban, since he derives pleasure from the act of sin. If the reason why one is exempt for Mis'asek is that he did not intend to do the act of sin, then why should the element of pleasure make a difference? Whether or not he derived pleasure should be irrelevant if he had no intention to do the act of sin.

ANSWERS:

(a) The NESIVOS SHALOM points out that RASHI (DH she'Ken Neheneh) explains that a Mis'asek is Chayav in cases of Chalavim v'Arayos "because he derived pleasure; therefore, it is considered as though he had intent." What does this mean? If he is considered as though he had intent to do the action, the Halachah should be that he receives the punishment of one who did the action *intentionally* and he should not be obligated to bring a Korban!

The Nesivos Shalom therefore explains that the basic nature of the act of Mis'asek is different from the simple understanding; it is not because the person had no intent to do the act. Rather, the reason why one who is Mis'asek generally is not obligated to bring a Korban is that the action in such a case is not considered significant *in its relationship to the person who does the action*. When the person picked up a vegetable on Shabbos thinking that it was detached from the ground and he did not know that it was attached to the ground, it is almost considered as though the action happened by itself. However, when the person's body derived pleasure from the act, it is impossible to say that the person has no connection to the sin. This is the meaning behind Rashi's statement that the action is deemed to have been done "with intent." Rashi means that the pleasure that his body experiences in sins of Chalavim v'Arayos connects the action to the person, and thus it is considered as though he has the same degree of intent as an ordinary Shogeg. The Nesivos Shalom (21:1) writes that he heard this explanation from RAV SHMUEL AUERBACH shlit'a.

(b) The ASVUN D'ORAISA gives a different answer. He explains that the prohibitions of Chalavim v'Arayos differ from most other prohibitions in the Torah. While most prohibitions proscribe doing an action, the prohibitions of Chalavim v'Arayos proscribe *having pleasure*. Accordingly, only for these sins does the way the action was done have little bearing on the person's liability; his liability is based on the fact that he derived illicit pleasure. The pleasure element gives the act the status of Shogeg, even though he had no intention to do the act. (See Nesivos Shalom at length, and Insights to Shevuos 18:1.) (Y. MONTROSE)

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