QUESTION: The Mishnah lists the 36 transgressions that are punishable with Kares. The Mishnah states that one who commits one of these transgressions deliberately (b'Mezid) is punished with Kares, and one who transgresses inadvertently (b'Shogeg) is obligated to bring a Korban Chatas.

RASHI (DH u'Pesach u'Milah) writes that the only exceptions to the list of transgressions for which one must bring a Korban Chatas are one who failed to offer a Korban Pesach, and one who is not circumcised. Since these are Mitzvos Aseh, positive commandments, and not Mitzvos Lo Sa'aseh, there is no Chiyuv Chatas for their inadvertent transgression.

The SHITAH MEKUBETZES (Hashmatos #9) questions Rashi's words from the Gemara in Makos (13b), where Rava states that one is Chayav Kares even if the Torah does not explicitly give an Azharah, a warning, against committing the transgression. Rava proves this from the Mitzvos of Pesach and Milah. Even though the Torah gives no warning against not performing these Mitzvos (since they are positive commandments and not negative commandments), one is punished with Kares for not fulfilling them. The Gemara there suggests that even though one is Chayav Kares without an Azharah in the Torah, the Torah's warning is necessary in order to obligate a person to bring a Korban Chatas for an inadvertent transgression, and thus one does not bring a Korban Chatas for inadvertent transgression of the Mitzvos of Pesach and Milah. The Gemara rejects this suggestion and says that the reason why one does not bring a Chatas for Pesach and Milah is not that the Torah gives no Azharah, but that there is a Hekesh that compares all of the Mitzvos of the Torah to the Isur of idolatry. Just as one brings a Korban for transgressing the Isur of idolatry only when he actively worshipped Avodah Zarah and did not heed the Torah's command to be "Shev v'Al Ta'aseh" and refrain from committing the act, so, too, for all other transgressions one brings a Korban only when he did not sit passively and refrain from committing the act but instead actively went and transgressed. When one transgresses the Mitzvos of Pesach and Milah, he does not transgress by actively going and doing an act, but rather by passively refraining from an act, and therefore there is no Chiyuv Chatas.

It is apparent from the Gemara in Makos that the reason why one does not bring a Korban Chatas for transgressing the Mitzvos of Pesach and Milah is that no active transgression was committed, and not that the Torah gives no Azharah for those transgressions. Why, then, does Rashi write that the reason is that the Torah gives no Azharah?

ANSWER: The KEHILOS YAKOV (#1, DH v'Nir'eh) answers that the intention of the Gemara in Makos is to distinguish between the punishment of Misah given by Beis Din, and the punishments of Kares and Korban Chatas. In the case Misas Beis Din, when the Torah gives no Azharah, Beis Din cannot administer capital punishment; just as Misas Beis Din may be given to a person only when he transgresses after receiving Hasra'ah (a warning) from witnesses, so, too, Misas Beis Din may be given only when the Torah first gives an Azharah against committing the act. In contrast, the punishment of Kares and the obligation to bring a Korban Chatas take effect even when no prior Hasra'ah was given. Consequently, those obligations take effect even when the Torah gives no Azharah for the act.

However, even though it is not necessary for the Torah to give an Azharah in order to obligate a person to bring a Korban Chatas, the fact is that there never is an obligation to bring a Korban unless the Torah gives an Azharah for the act. Accordingly, it is not incorrect to state that one is never obligated to bring a Chatas unless the Torah warns against performing the act. The rule is that there is never an obligation to bring a Chatas unless the Torah gives an Azharah for the transgression, but this is not the actual reason for why there is no obligation, as is evident from the Gemara in Makos.

This may be inferred from the fact that the Mishnah states, "Pesach and Milah are positive commandments." The Mishnah's intention is to teach that these transgressions do not bear the obligation of a Korban, as implied by the end of the Mishnah in which the Chachamim say "even the Megadef, because he did not perform an action." This statement adds to the previous statement regarding Pesach and Milah: not only are Pesach and Milah exempt from a Korban Chatas, but "even the Megadef" is exempt because that transgression also is not considered to involve an action. (See TOSFOS YESHANIM, end of 7a, DH d'Leis, who explains the Mishnah in this way according to Rebbi Yochanan.)

(The reason why one does not bring a Korban when the Torah gives no Azharah seems to be due to the fact that no positive action is involved in the transgression, as the Gemara in Makos says. This answers the question of the Shitah Mekubetzes on Rashi. Rashi does not state explicitly that the reason is that there is no Azharah, as the Shitah Mekubetzes understands Rashi to be saying. Rather, Rashi writes that Pesach and Milah are positive commandments, Mitzvos Aseh, while a Korban is brought only for a Lav, a negative commandment. A Korban is not brought as an atonement for not performing a Mitzvas Aseh.) (D. BLOOM)

QUESTION: The Mishnah lists the 36 transgressions that are punishable with Kares. The Gemara (3a) explains that these include all of the possible cases of Kares in the Torah.

The MAHARAM MI'ROTENBURG, as cited by the TOSFOS HA'ROSH in Yevamos (44b; see Insights to Yevamos 34:2), asserts that the transgression of having relations with a Na'arah ha'Me'urasah is not punishable with Kares, and there is no obligation for one who transgresses b'Shogeg to bring a Korban Chatas, since it is not mentioned in the Mishnah here.

The Maharam's assertion is difficult to understand. The Mishnah explicitly mentions "Eshes Ish," having relations with a married woman, as one of the transgressions punishable with Kares. Since a Na'arah ha'Me'urasah is also a married woman, there is no need for the Mishnah to mention it separately. How, then, can the Maharam infer from the Mishnah that the transgression of Na'arah ha'Me'urasah is not punishable with Kares? (RASHASH, Sanhedrin 51b; ARUCH LA'NER, Yevamos 33b)

(The assertion of the Maharam -- that sinning with a Na'arah ha'Me'urasah is not punishable with Kares and has no Chiyuv of a Korban Chatas -- is very novel. Indeed, the MAHARACH OR ZARU'A (#164) suggests that the Maharam later rescinded his view. His suggestion has prompted lengthy discussions among the Acharonim. See, for example, OTZAR SIFRA of HA'GAON RAV MENACHEM ZEMBA, Mishnah 5, end of "Binyan Av mi'Kasuv Echad"; TO'AFOS RE'EM, Yere'im ha'Shalem 7:3; CHIDUSHEI RABEINU MEIR SIMCHA to Sanhedrin 53a; KLI CHEMDA, Parshas Ki Setzei, 11:1.)

(a) HA'GAON RAV YISRAEL ZEV GUSTMAN zt'l explained as follows. According to the ROSH in Yevamos (44b), the term "Eshes Ish" does not include an Arusah (a betrothed woman), because the word "Eshes" implies a woman who is fully married (a Nesu'ah) and not only betrothed. The Torah teaches the punishments for the transgressions of Eshes Ish and Na'arah ha'Me'urasah in separate verses (Vayikra 20:10 and Devarim 22:22, respectively).

The RASHASH also alludes to this explanation in Sanhedrin (51b), but he proves from many places in the Gemara that it is not correct.

Moreover, according to this explanation, why does the Maharam specifically mention the transgression of Na'arah ha'Me'urasah? According to this explanation, having relations with any Arusah -- even one who is not a Na'arah -- should not be punishable with Kares!

(b) HA'GAON RAV MENACHEM ZEMBA (Otzar Sifra, end of Beraisa 5) explains that the Maharam agrees that a Na'arah ha'Me'urasah certainly is included in the term "Eshes Ish" (as the Gemara in Sanhedrin 51b implies; see Rashi there, DH ha'Kol Hayu Bichlal). However, the Torah makes Na'arah ha'Me'urasah an exception by explicitly giving it a punishment of Sekilah instead of the punishment of Chenek that is usually given for adultery. This exclusion makes Na'arah ha'Me'urasah a "Davar she'Hayah bi'Chelal v'Yatza Lidon b'Davar he'Chadash" -- it is considered a Halachah that was "included in a general category (of law) and went out to be judged with a new law," in which case the laws that apply to the general category no longer apply to the law that was removed from that category, until another verse explicitly teaches that they do. For this reason, the Maharam understands that Na'arah ha'Me'urasah is not punishable with Kares. (The To'afos Re'em (Yere'im ha'Shalem 7:3) gives a similar explanation.)

(See, however, TOSFOS YESHANIM to Yevamos 4a, DH Ela Ov, who implies that when the Torah gives a punishment of Sekilah instead of Chenek for a certain transgression, this is not called a "new" Halachah with regard to the principle of "Davar she'Hayah bi'Chelal v'Yatza....")

The Acharonim cite a number of other sources to disprove the Maharam's suggestion. The TORAS KOHANIM (Dibura d'Chova, Parsheta 1:11) derives from a verse that one is Chayav to bring a Korban Chatas for sinning with a Na'arah ha'Me'urasah. (While this clearly refutes the Maharam's assertion that there is no Korban Chatas for a Na'arah ha'Me'urasah, in one way it supports the Maharam's assertion that a Na'arah ha'Me'urasah is different from all other cases of Eshes Ish, for it requires a special verse to teach that one must bring a Chatas.) RASHI in Kesuvos (3a, DH Shavyuha) alludes to this Toras Kohanim. The RAMBAM (Hilchos Isurei Bi'ah 1:1 and 1:6, Sefer ha'Mitzvos #352) also seems to rule that the sin of Na'arah ha'Me'urasah is punishable with Kares and Chatas.