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Beware Of The Fruit!
‘A Mis’asek Is Excluded’
(Kerisos 19a)

Our sugya distinguishes between a shogeg and a mis’asek. A shogeg must bring a korban chatas while a mis’asek is exempt. A shogeg is someone who intentionally commits a forbidden act, such as plowing a field in Eretz Yisrael during shemitah, but forgets that doing so is forbidden. In contrast, a mis’asek is someone who, for example, pulls a plow to a storeroom during shemitah, unintentionally plowing his field in the process. In other words, he acted willfully but never intended to do anything forbidden. The forbidden act was a byproduct of his action. The shogeg therefore must bring a chatas as he intended to do a forbidden act, while the mis’asek is exempt as he did not intend to do a forbidden act.

Free Of Sin Or Free Of Penalty?

Most commentators on the Gemara maintain that a mis’asek is completely exempt. He is not obligated to bring a chatas, and he is not guilty of any violation. However, Rabbi Akiva Eiger offers proofs that a mis’asek is considered an unwitting sinner. He may be exempt from bringing a chatas, but he still sinned (Responsa Rabbi Akiva Eiger 1:8).

What are the implications of Rabbi Akiva Eiger’s opinion? First, since the mis’asek sinned, he needs atonement. Second, it has ramifications for the rule of “kim lei bideraba minei –the harsher penalty is adequate.” This rule dictates that that if a person faces two punishments for the same act – for example, the death penalty and a financial penalty – he only receives the harsher penalty. This rule also applies to a shogeg. Even though a shogeg doesn’t receive the death penalty, he can commit sins that, in theory, are punishable by death (if committed intentionally). Thus, this rule can also exempt a shogeg from financial penalties. If Rabbi Akiva Eiger is right, the rule can exempt a mis’asek as well. (It does not, however, concern a mis’asek who did a melachah on Shabbos because to violate Shabbos one must act intentionally; meleches machsheves is required.)

Rabbi Akiva Eiger’s position aroused a great deal of discussion among the Acharonim. Both sides adduced piles of proofs for their position. Is a mis’asek a sinner who needs atonement, or not?

Waking Up A Sleeping Kohen

Rabbi Akiva Eiger’s son, Rabbi Shlomo, brings a proof for his father’s position from his pupil Rabbi M. Yafeh. The halacha is (Rema, Y.D. 374:1) that if a person dies in a home, one should immediately wake up any kohanim in the house and urge them to leave since tumas meis rests in the house. If a mis’asek, however, is regarded as though he did not sin at all, why should we wake up the tired kohanim? After all, they knows nothing, they’re busy sleeping. Can we think of a greater example of a mis’asek? And yet, the halacha is that we do wake up the kohanim. We thus see that a mis’asek is considered to be a sinner even though he acts unintentionally (Responsa Rabbi Shlomo Eiger, kesavim, 20).

Two Types Of Prohibitions

The Gaon of Lissa, author of Mekor Chayim and Nesivos HaMishpat, rejects this proof. He writes that we must distinguish between two different types of prohibitions. Most prohibitions involve an active deed. To violate Shabbos, for example, one must do a melachah. The prohibition for a kohen to become impure, however, involves “avoidance behavior.” The kohen must do everything possible not to become impure. He violates this prohibition not by doing something but by not doing something.

Thus, Rabbi Shlomo’s proof doesn’t work. For even if Rabbi Akiva Eiger’s disputants are correct – and a mis’asek is completely free of sin – we would still have to wake up the kohanim. The category of mis’asek only exempts one from a sin which requires a deed. It doesn’t exempt one from a sin which requires “avoidance behavior.” These kohanim may be doing nothing to become impure, but that is precisely what the Torah forbids – doing nothing.

Rabbi Yisrael Salanter’s Question To Rabbi Akiva Eiger

In Rabbi Akiva Eiger’s old age, a young Rabbi Yisrael Salanter sent him a letter. He wanted to know why a great commotion was made about eating wormy fruit. After all, a person who eats wormy fruit is considered a mis’asek since he intends to eat the fruit and not the worm. And since a mis’asek isn’t even considered a shogeg, there is no reason to forbid eating wormy fruit.

Rabbi Salanter waited a long while but did not receive a reply from Rabbi Akiva Eiger. He eventually met Rabbi Shlomo Eiger who told him that his father did not reply because an elderly rabbi lived in Salant (where Rabbi Yisrael lived), and his father did not want to answer a question which rightfully should have been addressed to Salant’s rabbi. Nonetheless, Rabbi Shlomo Eiger said it is well known that his father maintains that a mis’asek is considered to have sinned; thus, there is no basis for Rabbi Yisrael’s question (see Teshuvos Vehanhagos by Rabbi Moshe Sternbuch 4:190).

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About the Author: RABBI YAAKOV KLASS, rav of Congregation K’hal Bnei Matisyahu in Flatbush, Brooklyn, is Torah Editor of The Jewish Press. He can be contacted at yklass@jewishpress.com. RABBI GERSHON TANNENBAUM, rav of Congregation Bnai Israel of Linden Heights, Boro Park, Brooklyn, is the Director of Igud HaRabbanim – The Rabbinical Alliance of America.


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