QUESTION: The Gemara (82b-83a) quotes a Beraisa that states that a Kohen is not punished with death for entering the Heichal with unwashed hands and feet when he enters for the purpose of organizing the Shulchan or cleaning and setting up the Menorah.

TOSFOS asks that the Gemara later (83b) implies that he should receive the death penalty for such an act. The Gemara there quotes the verse, "When they enter the Ohel Mo'ed, they shall wash with water in order that they not die" (Shemos 30:21). Tosfos understands that this verse requires a person to wash for merely entering the Heichal (the Ohel Mo'ed), even if he does no Avodah there, because the second part of the verse gives a separate command to wash before one does the Avodah in the Azarah: "or when they approach the Mizbe'ach in order to perform the service, to burn a fire-offering to Hash-m." Thus, a Kohen may enter the Azarah without washing his hands when he is not doing the Avodah, but he may not enter the Heichal (which is holier than the Azarah) without washing his hands, even when he is not doing the Avodah. Since the Menorah and Shulchan were in the Heichal, how could the Kohen not be deserving of death for entering without washing?

ANSWER: TOSFOS (DH v'Lo) answers that the first half of the verse that the Gemara quotes, "When they enter the Ohel Mo'ed," is actually connected to the condition in the second half of the verse, "in order to perform the service." The verse is saying that only when the Kohen enters the Heichal in order to perform Avodah must he wash his hands and feet. Although the Mishnah in Kelim (1:9) states that one may not enter the Heichal unless he washes his hands and feet, this is only an extra measure of holiness and it is not the letter of the law. However, Tosfos admits, the Tosefta in Kelim seems to argue that entering the Heichal without washing is punishable by death. The Tosefta states that Rebbi Eliezer told Shimon ha'Tzanu'a -- after he had entered without washing -- that even the Kohen Gadol would be put to death for doing such a thing. It is clear that the Tosefta argues with the Mishnah in Kelim (according to Tosfos' interpretation of it) and with the Gemara here.

The MINCHAS CHINUCH (Mitzvah 106:1) explains that the RAMBAM rules like Tosfos. The Rambam (Hilchos Bi'as ha'Mikdash 5:1) states that a Kohen who performs Avodah must wash. Elsewhere (Hilchos Beis ha'Bechirah 7:21), the Rambam quotes the Mishnah in Kelim. This indicates that he maintains that it is an extra measure of holiness to wash before entering the Heichal, and it is not a Torah commandment.

However, there are dissenting views as to what the Rambam maintains. According to one edition of the Rambam's SEFER HA'MITZVOS, the Rambam maintains that it is indeed a Torah prohibition to enter the Heichal without washing even when not for the sake of performing the Avodah, but that it is not punishable with death (see footnotes to the Machon Yerushalayim edition of Minchas Chinuch). This also seems to be the opinion of RASHI in his commentary on Chumash (Shemos 30:20). Rashi there states that the verse refers to a Kohen who enters in order to burn Ketores or in order to sprinkle the blood of certain Korbanos. This qualifying statement indicates that the prohibition applies only to a Kohen who performs the Avodah.

However, the SEFER HA'CHINUCH writes that the Mitzvah is for the Kohen to wash his hands and feet anytime he enters the Heichal, as well as when he enters to perform the Avodah. The Minchas Chinuch infers that the Sefer ha'Chinuch maintains that a Kohen must always wash his hands when he wants to enter the Heichal, without exception. Tosfos in Yoma (5b) quotes the RITZBA who expresses a similar opinion. (Y. MONTROSE)

QUESTION: Rav states that a Zar (a non-Kohen) who eats Terumah is punished with Malkus. Rav Kahana and Rav Asi ask that Rav should say that he is punished with death, because the Torah states, "And they (the Kohanim) shall guard My charge and not be guilty of sin and die because of it.... And no non-Kohen shall eat Kodesh" (Vayikra 22:9-10). RASHI explains that since the first verse (verse 9) says that Kohanim who eat Terumah while they are Tamei are punished with death, it is logical to assume that the next verse (verse 10) also refers to the punishment of death when it mentions a Zar who eats Terumah. Rav replies that the end of the first verse (verse 9), "I am Hash-m Who makes them holy," makes a break between the punishment of death and a Zar who eats Terumah.

The question of Rav Kahana and Rav Asi is not clear. If they disagree with Rav, then why do they ask that "the master (Rav) should say"? These words imply that they do not disagree with him, but rather they merely question the wording he used.

(a) The MITZPEH EISAN explains that Rav Kahana and Rav Asi do not want to persuade Rav to retract his ruling that a Zar should receive Malkus, but rather they want him to add an additional punishment -- Misah bi'Yedei Shamayim, death at the hands of Hash-m. If Rav would have said that a Zar who eats Terumah is Chayav Misah bi'Yedei Shamayim, then that statement would have implied that if he was warned by witnesses he would receive Malkus, because of the principle that any sin which is punishable with Misah bi'Yedei Shamayim is automatically punishable with Malkus when appropriate warning was given (see Makos 13a-b and TOSFOS there).

(b) RAV YOSEF ENGEL (ASVUN D'ORAISA #2) explains that Rav Kahana and Rav Asi disagree with Rav. There are two ways to understand the Zar's prohibition not eat Terumah. Before Terumah is separated from grain, the grain is considered Tevel, and one who eats it is punishable with death. Is the prohibition of a Zar not to eat Terumah the same as the prohibition against eating Tevel, or is it a separate prohibition? Rav Yosef Engel suggests that Rav maintains that it is a new prohibition, and thus it is punishable with Malkus. Rav Kahana and Rav Asi maintain that it is the same prohibition of eating Tevel, and, therefore, the person who eats Terumah deserves death just as one who eats Tevel is punished with death. (Y. MONTROSE)