QUESTION: The Gemara quotes the opinion of Rebbi who maintains that Yom Kippur atones for a person's sins whether or not he repents. There are, however, three exceptions to this rule: a "Porek Ol" (one who denies the existence of Hash-m), a "Megaleh Panim b'Torah" (one who is arrogant in his criticism of statements of the Torah), and a "Meifer Bris b'Basar" (one who violates the Mitzvah of Milah, as explained below). Rebbi maintains that for these three transgressions, Yom Kippur atones only if the person has repented.

(The RAMBAM (Hilchos Teshuvah 1:3) does not rule like Rebbi. He rules that Yom Kippur atones only when the perpetrator has repented from his sin, regardless of what the sin was.)

What is the meaning of "Meifer Bris b'Basar"? The words literally mean "one who violates the covenant in the flesh." Does this refer to a man who was never circumcised at all, or to one who was once circumcised but later pulled back the skin of the Orlah to make it look as if he had not been circumcised ("Mashuch")?

TOSFOS in Yevamos (72a, DH umi'Divreihem) apparently concludes that the Gemara here refers to one who was never circumcised. The Gemara in Yevamos (72a) quotes Rav Huna who says that according to Torah law, a Mashuch who is a Kohen is permitted to eat Terumah. However, the Rabanan decreed that he is prohibited from eating Terumah because he looks like an Arel (who is prohibited mid'Oraisa from eating Terumah).

Tosfos asks that the Gemara here says that a Mashuch is punished with Kares, as derived from the verses. This implies that the prohibition against making oneself a Mashuch is a Torah law. Tosfos answers that the Gemara here refers to someone who was never circumcised at all.

The Gemara here does not actually use the words "Mashuch b'Orlah." It says only "Meifer Bris b'Basar," words which can refer to either possibility mentioned above. Why, then, does Tosfos ask a question from the Gemara here in a manner that implies that the Gemara clearly says that "Mashuch b'Orlah" is punished with Kares?

(a) The TESHUVOS AMUDEI OR (#65) explains that it is evident from Tosfos' question from a "Mashuch b'Orlah" that Tosfos had a Girsa in which Rebbi explicitly refers to a Meifer Bris as a "Mashuch Orlah."

How, though, can one suggest that Tosfos had such a text? If Tosfos' text in the Gemara reads "Mashuch," how can Tosfos answer that the Gemara refers to a person who was not circumcised at all?

(b) The TESHUVOS PRI YITZCHAK (#27, DH v'Yesh) therefore maintains that Tosfos indeed did not have the text "Mashuch" in the Gemara here. However, Tosfos understood that the simple meaning of the term "Meifer Bris" ("annulling the covenant") is a person who was already circumcised but did some action to annul his Bris (that is, he pulled the Orlah back). Tosfos' basis for this understanding is the Gemara in Yevamos that explains the verse, "He nullified (Meifer) my Bris," as a reference to Mashuch. (The Gemara there concludes that although the Gemara cites a verse that mentions "Mashuch," the verse is merely an "Asmachta b'Alma" and the prohibition is only mid'Rabanan.)

Since the Gemara in Yevamos implies that the term "Meifer Bris" refers to a Mashuch, Tosfos similarly assumed that when the Gemara here uses the term "Meifer Bris" it also refers to Mashuch. Tosfos answers that since the Gemara in Yevamos concludes that Mashuch is only mid'Rabanan, it must be that the words "Meifer Bris b'Basar" in the Gemara here does not necessarily refer to Mashuch, even though this would be the more straightforward interpretation of these words. Instead, the Gemara here must be referring to one who was not circumcised at all, which is a Torah prohibition for which one is punished with Kares. (D. BLOOM)

QUESTION: The Gemara (13a) quotes the opinion of Rebbi who maintains that Yom Kippur atones for a person's sins whether or not he repents. The Gemara later asserts that Rebbi agrees that if a person performed Melachah or ate on Yom Kippur, he is punished with Kares and the day does not atone for his sin. The Gemara proves this from logic: if the day would atone for his sin, the punishment of Kares which the Torah mandates for a person who ate or worked on Yom Kipper would never apply.

The Gemara rejects this proof. Perhaps the day of Yom Kippur does atone for eating and working on Yom Kippur, but it is only the daytime which atones for sins. When a person ate on the night of Yom Kippur and then died that night, the day of Yom Kippur was not able to atone for him. RASHI (DH v'Ha) explains that it is specifically the day of Yom Kippur which atones, and not the night, as the verse says, "For on this day Hash-m will atone for you" (Vayikra 16:30).

Despite its refutation of the proof, the Gemara (13a-b) says that Rebbi still agrees that a person is punished with Kares for desecrating the day (and not just the night) of Yom Kippur. Rashi (DH u'Makshinan) explains that the Torah explicitly states that one who does not afflict himself or who performs Melachah "b'Etzem ha'Yom ha'Zeh" -- "on the very day of Yom Kippur" (Vayikra 23:29-30) -- will be punished with Kares.

The Gemara argues that Rebbi still may exempt a person from Kares if he lives to the end of Yom Kippur day, even if he ate or did Melachah earlier in the day. The punishment of Kares applies when he ate during the day and choked immediately and died. Rashi (DH v'Chanaktei) explains that since no time passed in the day after his transgression of eating, he attains no atonement from the day. (See also TOSFOS to 13a, DH d'Avad, and MINCHAS CHINUCH (Mitzvah 364:30, DH v'Hinei).)

The Gemara does not question the fact that such a person indeed would be liable for eating on Yom Kippur, even though he died before the food reached his stomach. This, however, seems to be the subject of a dispute between Rebbi Yochanan and Reish Lakish in Chulin (103b), who disagree about the conditions necessary to be liable for eating a limb from a live animal. Rebbi Yochanan maintains that as long as the person's "throat derives benefit" ("Hana'as Garon") from a k'Zayis of the forbidden food, he is liable. Reish Lakish maintains that he is liable only when a k'Zayis of the forbidden food enters his stomach ("Hana'as Mei'av).

According to Reish Lakish, why should a person who died while eating on Yom Kippur be liable, if his stomach never derived benefit from the food?

(a) The OR SAME'ACH (Hilchos Shevisas Asor 2:4) writes that Reish Lakish agrees that in order to be Chayav for eating on Yom Kippur, it suffices for the throat to derive benefit, and it is not necessary for the food to enter the stomach.

He proves this from the Gemara here which states that when a person ate on Yom Kippur and choked to death immediately, he is punished with Kares, clearly implying that a person is liable as soon as he swallows even though the food has not reached his stomach.

(b) The CHIDUSHEI CHASAM SOFER in Chulin disagrees. He maintains that liability for transgressing the prohibition against eating on Yom Kippur and other fast days also depends on "Hana'as Mei'av." He cites proof from the Gemara in Berachos (14a) which states that one who is fasting is permitted to taste food (such as one who is cooking).

TOSFOS there (DH To'em) writes that he must spit out what he tastes, because as long as he does not swallow the food he is not considered to have derived benefit from it. The Chasam Sofer infers from Tosfos that the prohibition of eating on a fast is transgressed not when the throat benefits, but when the stomach benefits. This certainly applies on Yom Kippur, because the Gemara in Yoma (79a) explains that the reason why the size of a Koseves (date) is the minimum amount necessary for liability for eating on Yom Kippur is that this is the amount that alleviates a person's hunger. Rashi in Yoma (79a, DH Kim Lehu) explains that this is derived from the fact that the Torah prohibits eating on Yom Kippur with the words, "one who does not afflict himself...." One whose stomach does not benefit from the food that he eats (because the amount is too small) is considered to be afflicted.

The Chasam Sofer rejects the Or Same'ach's proof from the Gemara here. He explains that the Gemara does not mean that the person actually choke to death when the food was in his throat. Rather, it means that he choked later when it had already reached his stomach. The Chasam Sofer's opinion is that "Hana'as Mei'av" does not mean the actual stomach, but it refers to the stage at which the food enters the esophagus. The person died immediately after the food reached this stage. (D. BLOOM)