The Requirement to Atone for Accidental Transgressions

In the previous issue, we discussed the mitzvah of tochachah and whether there is a requirement to inform someone else who is accidentally violating a prohibition.  The need to inform another individual of an accidental transgression seems to assume that when one violates a prohibition accidentally, it has a negative spiritual effect on the violator.  In this issue, we will discuss which situations require atonement for accidental violations and which situations do not require atonement. 

The Concept of Mitasek

The Gemara, Keritut 19a-19b, states that if one is not aware of a certain fact about an item and violates a transgression thinking that the prohibited item was actually a permissible item, he is not responsible to offer a sacrifice to atone for the violation.  This is in contrast to someone who knew all of the facts about the item but did not know the law.  In that situation, violation of the transgression requires him to offer a sacrifice.  When the mistake is in fact, it is known as mitasek and when the mistake is in law, it is known as shogeg.  [The definitions of mitasek and shogeg follow the opinion of Rabbeinu Tam (cited in Tosafot, Shabbat 72b, s.v. Nitkavein).  Rashi, Keritut 19b, presents a different definition of mitasek.]  The Gemara states that the mitasek exemption does not apply to one who eats a prohibited item (thinking it was a permissible item) or one who has forbidden relations (thinking that the woman was permissible) because the exemption does not apply when one benefits from the prohibition.

R. Akiva Eger (1761-1837), in his responsa (no. 8), discusses whether the exemption of mitasek indicates that in a situation of mitasek, there is absolutely no transgression of a prohibition or whether there is a transgression but there is a technical exemption from an obligation to offer a sacrifice.  R. Eger concludes that a transgression that was violated as a result of mitasek is considered a transgression and requires atonement. 

One of R. Eger's proofs is from the case we discussed in the previous issue regarding someone who is wearing sha'atnez without knowledge that his clothing contain sha'atnez.  According to Rambam (1138-1204), Hilchot K'layim 10:29, and Shulchan Aruch, Yoreh De'ah 303:1, one must remove the clothing from that individual, even if it will cause him great embarrassment.  This is true even though the violation of sha'atnez is a form of mitasek.  One must conclude that mitasek constitutes a transgression or there would be no cause to remove the clothing.  R. Eger counters the proof by suggesting that wearing sha'atnez may be similar to eating non-kosher in that one benefits from the warmth and protection of the garment and therefore, mitasek is not applicable. R. Shlomo Zalman Auerbach (1910-1995), Minchat Shlomo 2:80, notes that even if the case of sha'atnez does not prove that mitasek is considered a transgression, there is another case that would prove the point.  In the previous issue, we discussed the case of a kohen who is not properly dressed and not aware that there is a corpse in the same building.  It is assumed that Rambam would require one to inform the kohen to leave the building, even though this will cause him great embarrassment.  This is true even though the kohen's presence in the building is based on his own factual assumption that there are no corpses in the building.

R. Avraham Borenstein (1838-1910), Avnei Nezer, Orach Chaim 318:13 (in the footnote), proves from the sha'atnez case that mitasek is not considered a transgression at all.  According to Rabbeinu Asher, (c. 1250-1327), Hilchot K'la'ei Begadim no. 6, one should not inform an individual that he is wearing sha'atnez unless the individual is in a place where he won't be embarrassed because of the information.  R. Borenstein explains that since this is a case of mitasek, there is no transgression that is violated and one can wait to inform the individual about the violation.  Although Rambam requires one to inform the violator, it is only because Rambam subscribes to a different definition of mitasek and does not consider this case to be a case of mitasek.  In principle, Rambam agrees that mitasek is not considered a transgression.

R. Ya'akov Lorberboim (1760-1832), Mekor Chaim no. 331 s.v. B'Din, assumes that mitasek does not constitute a transgression and therefore questions the biblical requirement to nullify or search for one's chametz.  If one is under the assumption that he already disposed of all of the chametz in his possession, why is there a need to nullify or search for any additional chametz?  Wouldn't ownership of the unidentified chametz on Pesach be considered mitasek?  R. Lorberboim concludes that the exemption of mitasek is limited to violations that one violates actively.  Violations that one violates passively are not subject to the exemption of mitasek.

R. Auerbach, op. cit., explains R. Lorberboim's position by noting there are certain transgressions that are violated by failing to remedy a certain situation.  Regarding those transgressions, mitasek will not serve as an exemption because the transgression is not a function of causing the situation but a function of failure to remedy the situation.  For this reason, R. Auerbach claims that the sha'atnez case and the case of the kohen cannot serve as a proof to R. Eger's assertion.  In both of those cases, the requirement to inform the violator about the prohibition is a function of the violator's responsibility to remedy the situation and therefore, mitasek is not applicable. 

Accidental Violation of Rabbinic Prohibitions

R. Lorberboim, Netivot HaMishpat 234:3, presents another novel idea that is relevant to this discussion.  The Gemara, Eruvin 67b, states that if a rabbi issues a ruling regarding a specific matter and other scholars have questions regarding the logic of the ruling, if it is a matter of biblical law, they should ask their questions before any action is taken.  If it is a matter of rabbinic law, they should ask their questions after the action is taken.  R. Lorberboim asks: If we are concerned that the other scholars will convince the rabbi that he erred, why do we allow the action to take place when there is potential for a rabbinic transgression?  R. Lorberboim concludes that if one violates a rabbinic law accidentally (shogeg), there is no transgression and no requirement for atonement.  Therefore, even if we discover that the rabbi was mistaken regarding his ruling, the action that was taken based on the original ruling is of no concern.

Based on this principle, R. Lorberboim explains a perplexing ruling of Shulchan Aruch, Choshen Mishpat 234:2-3.  Shulchan Aruch rules that if a butcher sold non-kosher meat to another Jew and presented it as kosher, the butcher must refund the money, even if the customer already ate the meat.  However, if someone sold an item to another individual that was rabbinically prohibited and presented it as permissible, the customer is only entitled to a refund prior to consumption.  If the item was already consumed, the customer is not entitled to a refund.  Why is there a distinction between biblically prohibited items and rabbinically prohibited items?  R. Lorberboim explains that if one accidentally violates a biblical prohibition, he nevertheless requires atonement.  [Although this is a case of mitasek, the mitasek exemption does not apply to consumption of food.]  If one accidentally violates a rabbinic prohibition, there is no requirement for atonement.  Therefore, when one eats biblically prohibited meat, the requirement for atonement outweighs the benefit from its consumption and the customer is entitled to a refund.  When the food is rabbinically prohibited, the customer benefits from its consumption and the fact that it was not kosher does not detract from the benefit received.  As such, the customer is not entitled to a refund.

R. Yitzchak Schmelkes (1828-1905), Beit Yitzchak, Orach Chaim no. 65, disagrees with R. Lorberboim.  He notes Rabbeinu Tam's opinion (cited in Tosafot, Avodah Zarah 22a, s.v. Teipuk) that one can violate lifnei iver (follow link to learn more) by causing someone to violate a rabbinic prohibition.  If there is no transgression when one accidentally violates a rabbinic prohibition, why is there a prohibition of lifnei iver?  One must conclude that when one accidentally violates a rabbinic prohibition it is considered a transgression.

R. Shlomo Z. Auerbach (cited in Halichot Shlomo, Hilchot Tefillah pg. 13) without addressing R. Schmelkes' question, provides a defense of R. Lorberboim's position.  He notes that even R. Lorberboim agrees that there is a violation of lifnei iver by causing someone else to violate a rabbinic prohibition.  There is a clear difference between causing a violation of a rabbinic prohibition and the consequences of accidentally violating a rabbinic prohibition.