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Yehareg V’al Ya’avor


A statue of Rambam in Cordova, Spain

A statue of Rambam in Cordova, Spain
Photo Credit: Chen Leopold/Flash 90

In both of this week’s parshiyos the Torah discusses the many different types of arayos (forbidden relationships). The following is one unique halacha that is associated with arayos: Concerning most aveiros, if one is put in a predicament where he must choose between saving his life and fulfilling a mitzvah (positive or negative commandment) he must choose to live and transgress the mitzvah. This is derived from the pasuk of  “…v’chai bahem.”  The Gemara in Sanhedrin 74a says that arayos are one of the three mitzvos that are yehareg v’al ya’avor (one must allow himself to be killed so as not to transgress the mitzvah), along with murder and avodah zarah.

One threatened with being killed if he would not transgress a mitzvah (not one of the three wrongdoings for which he must surrender his life) is not punished for transgressing the mitzvah, since he was an oness (forced into it). The Rambam (Hilchos Yesodei HaTorah 5:4) says that if a man is threatened with being killed if he does not violate one of the mitzvos for which he must surrender his life and he allows himself to be killed by not transgressing the mitzvah, he has created a kiddush Hashem. But if he saves his life by violating the mitzvah, it is a chillul Hashem. Nevertheless, since he was forced into it, the individual is not punished for breaching the mitzvah, even though he was supposed to forfeit his life under these conditions. The Rambam writes in a letter that such a person is not called a poshea or a rasha.

Later in that perek the Rambam writes (halacha 6) that the halacha regarding a situation whereby someone forces another to do an aveirah applies when one has a life-threatening sickness that requires him to transgress a mitzvah. If doctors determine that a person will die if he does not transgress a certain mitzvah, he must violate the mitzvah and save his life. However, if his treatment requires him to be in violation of one of the three aforementioned mitzvos for which he must give up his life, he may not disobey the mitzvah even though it is necessary to save his life. The Rambam adds that if one treats his life-threatening sickness by committing one of the three aveiros that are yehareg v’al ya’avor, the beis din will render an appropriate punishment.

The Achronim raise this point and ask a follow-up question: When a person forces another to transgress one of the mitzvos that are in the category of yehareg v’al ya’avor, and if one does not give up his life and instead disobeys the mitzvah, the Rambam said that he is not punished since he was forced. Why then is one punished when he has a life-threatening sickness that is forcing him to violate one of the mitzvos of yehareg v’al ya’avor, and he indeed commits this transgression? What is the difference if the oness resulted from the action of an outside person or from a sickness? In both scenarios the individual did not transgress willingly.

Some Achronim suggest that the Rambam never intended to say that one who commits one of the three aveiros of yehareg v’al ya’avor in order to save his life from his sickness is punished with the sentence associated with that aveirah; rather, the Rambam intended to say that since he should not have taken the medicine the beis din should punish him in their own way. This is similar to makos mardus, whereby the beis din metes out their own punishment. Therefore, a person does not deserve to be punished in both the case when a person forces someone to do an aveirah and the case when a sickness forces one to commit a transgression. This is because in both cases he is considered an oness. But it is still unresolved as to why the Rambam wrote that the beis din should render its own punishment by the halacha of a sickness, but did not hold the same view earlier regarding the halacha of a person who forces someone else to transgress.

Reb Meir Simcha of Davinsk, in his sefer, Ohr Sameach on the Rambam, explains that the two cases cannot be compared. When someone forces a person to do something, he is only doing it to fulfill the will of the person who forced him to take this action. He is not fulfilling his own will. As a result he is considered an oness, and thus does not deserve a punishment. But when one is sick and in order to save his life he must commit a certain aveirah, it is his will to do the aveirah. The sickness is not an outside force; rather it is within him. So when he commits the aveirah, it is considered as if he did it willingly. Hence he deserves the punishment associated with the aveirah he committed.

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