In this week’s parshah, Hashem commands Avraham in the mitzvah of bris milah. The pasuk says that if one does not perform a bris he will be chayav kares. The Rambam writes in Hilchos Milah (1:2) that one who did not have a bris milah performed when he was a child must do so when he is an adult. He is mevatel a mitzvas assei every day that he delays doing so. The Rambam adds that one who deliberately does not have a bris milah is not chayav kares until he dies. The Raavad takes issue with the Rambam’s last point, saying that one is chayav kares during every second of every day that he does not have a bris milah.
There is a famous question that is asked on the Raavad’s opinion. Whenever one is chayav misah at the same time that he is obligated to pay money, he is exempt from paying the money. This is known as kim lei bi’derabba minei – it suffices to give the more stringent punishment. Rabi Nechunya ben Hakana (Kesubos 30a) opines that we apply the halacha of kim lei bi’derabba minei to the punishment of kares. That is to say that if one is chayav kares at the same time as he is obligated to pay money, he will be exempt from paying the money. It should then result from the Raavad’s opinion that one who did not perform a bris milah will be exempt from paying for anything that he damages. The Acharonim find this to be unlikely.
The Steipler (Kehillas Yaakov Shabbos, siman 29) writes that even according to the Rambam, who says that one is not chayav kares until he dies if he deliberately did not have a bris milah, he has the aveirah of kares; he is just not chayav kares. For example, if one kills accidentally he has transgressed the aveirah of killing – but is not chayav for it. The halacha is that we still apply kim lei bi’derabba minei on one who commits an aveirah that theoretically could have given him death but spares him from receiving the punishment of death. For instance, if one kills accidentally while damaging another person, he is exempt from reimbursing him for the damages. Therefore the question that was asked on the opinion of the Raavad can also be asked on the Rambam.
The Sha’ar Hamelech brings a shita mekubetzes in Kesubos 36a that says that if one does an action that obligates him in the death penalty and beis din finds him guilty, we cannot apply kim lei bi’derabba minei to any actions that he performs thereafter. Once he is chayav misah, his second action of misah cannot exempt him from money. Based on this opinion the question does not start, for once this fellow did not perform a bris at the first possible opportunity he is already chayav kares. Any further obligations cannot exempt him from paying monetary debts.
Some Acharonim suggest another solution. The kares of not performing a bris milah (and for not bringing a korban Pesach) is different from other transgressions for which one is chayav kares. Regarding all other transgressions, the kares is a punishment for a wrong action that was performed. Concerning the kares of not performing a bris milah (and for not bringing a korban Pesach), one is chayav kares for not performing an action. We can only apply kim lei bi’derabba minei if one performed an action for which he would be chayav misah or kares at the same time as he incurs monetary obligations. Since the kares that one receives for not performing a bris milah comes without having performed an action, we cannot apply kim lei bi’derabba minei.
Others suggest that the kares that one is obligated in for not performing a bris milah (and for not bringing a korban Pesach) differs in its nature from a general kares obligation. Generally kares is similar to a death sentence, except that it is not carried out by beis din. The kares of not performing a bris milah (and for not bringing a korban Pesach) is more like a punishment for not doing what one was told to do; not a death sentence type of kares.
The proof that they bring for this is that if one performs a bris later on, he is no longer chayav kares. Where do we find that one can be chayav misah or chayav kares but then rectify the situation by performing another action? Never. Once one is obligated, the obligation never comes off. This is proof that when one is chayav kares for not performing a bris milah (and for not bringing a korban Pesach), it is not a death sentence. That is why it can be removed later on. Since it is not a death sentence, we cannot apply the halacha of kim lei bi’derabba minei.Rabbi Raphael Fuchs
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