Tractate Terumos, Chapter 2, Mishnah 3. In the previous Mishnah we learned that one who separates Terumah from tamei produce on behalf of tahor produce - if he did so unintentionally, not knowing at the time what he had in his hand, the Terumah takes effect; but if he separated it deliberately, with prior intent, the Sages penalized him and did not allow the Terumah to take effect, and they compel him to separate a second time in order to protect the kohen. In our Mishnah we depart for a moment from the subject of Terumah entirely, and deal with other areas of halachah - some rabbinic and some from the Torah - in which a distinction is drawn between an unintentional transgression and a deliberate one.
Background: The Approach of Rabbi Meir:
To understand the Mishnah properly we need to go deeper and see what is happening behind the scenes. Our Mishnah follows the approach of Rabbi Meir, as do most anonymous mishnayos - mishnayos with no named Tanna attached. The assumption is that such a Mishnah was originally formulated by Rabbi Meir or according to his tradition, and when Rabbi Yehudah HaNasi edited the mishnayos he adopted Rabbi Meir's version. That being so, we must first clarify what his approach is.
In Torah law: there is no penalty for an unintentional transgression. A person who did the forbidden act by mistake, without intending it, is left with the consequences as they are - he may be liable to bring a korban and the like - but no rabbinic penalty is added. One who transgresses the Torah deliberately, with prior intent, however, is penalized, so that the sinner should not benefit and should not come out ahead.
In rabbinic law: often there is no penalty at all; but where the Sages did impose a penalty and said, "we will not let you get off easily," they did not distinguish between deliberate and unintentional, and the penalty applies equally in every case. In this way Rabbi Meir upholds and strengthens the authority of the Sages.
Nevertheless, as we will see shortly, there are exceptions to this rule.
"HaMatbil Keilim BeShabbos":
This is not the immersion of vessels that we are familiar with - a person who buys a new vessel from a non-Jew, made of one of the materials that require immersion in a mikvah before its first use, such as metal. On the contrary, according to the Mechaber in Shulchan Aruch it may even be permitted at the outset to immerse such vessels on Shabbos, and he also brings a "yesh omrim" that forbids it (Orach Chaim siman 323, se'if 7, and at length in the Mishnah Berurah there).
What is being discussed here is a tamei vessel, which a person wishes to immerse in a mikvah in order to purify it and remove its status of tumah. This prohibition is rabbinic: if he immersed it, the vessel is indeed purified, but the Sages forbade doing so because it resembles tikkun mana, repairing a vessel, which raises a concern of transgressing the Torah prohibition of makkeh bepatish. Even though this is not literally makkeh bepatish, but merely somewhat resembles it, the Sages said not to do it at all, lest one come to actual makkeh bepatish. It emerges that there is a rabbinic prohibition against immersing tamei vessels in a mikvah on Shabbos.
The case of the Mishnah is a person who transgressed and immersed his tamei vessel on Shabbos. "Shogeg" - he did not know that the vessel was tamei, or did not know that it was Shabbos, or did not know that the act was forbidden - "yishtamesh bahem", and we permit him to use the vessel, certainly when he has no other vessel, since we do not want his Shabbos to be ruined with no vessels to eat from. But "meizid" - he knew full well that the vessel was tamei and that it may not be immersed on Shabbos, and did so anyway - we penalize him and say "lo yishtamesh bahem" on Shabbos, so that he should not benefit from having transgressed a rabbinic enactment.
At first glance there is a difficulty here: if the Mishnah follows Rabbi Meir, and we are dealing with a rabbinic enactment, we said that Rabbi Meir does not distinguish in rabbinic law between unintentional and deliberate; yet here it states explicitly that if he was unintentional he may use them, and if deliberate he may not.
The answer is that here the Sages were concerned that if he had no vessels to use on Shabbos, his Shabbos would be ruined, and we do not want that unnecessarily. And what did he in fact do? He tried to do the right thing, to eat in a state of purity, and he acted unintentionally - he did not know that his act was improper, and thought he was fulfilling a great mitzvah by purifying his vessels. That being so, this is an exception to Rabbi Meir's rule: when a person intended for the good and acted unintentionally, we do not penalize him in a situation where he needs the vessels for Shabbos, since such a penalty would ruin his Shabbos and would be going too far.
"HaMe'aser VeHaMevashel BeShabbos":
Here the Mishnah links together two matters that are entirely different from one another:
Tithing: Separating tithes on Shabbos is forbidden by rabbinic decree. As in the previous case, the Sages said that a person should not tithe his food on Shabbos, because it looks like he is repairing the food, and that is one step away from makeh b'patish (putting the finishing touch on an object). Therefore the food must be tithed before Shabbos.
Cooking: Cooking on Shabbos is forbidden by Torah law, and it is one of the thirty-nine forbidden labors. It is an extremely severe prohibition, and if done deliberately it even carries the death penalty; and if it was done unintentionally, he must bring a chatas offering.
Even so, the Mishnah links them together and says: "shogeg - yochal, meizid - lo yochal" - if he acted unintentionally, he may eat; if he acted deliberately, he may not eat. If he separated tithes or cooked unintentionally, either because he did not know it was Shabbos or because he did not know the act was forbidden, he is permitted to eat the food; but if he knew full well that his act was forbidden, he may not eat it on Shabbos. Let us explain this step by step.
Regarding tithing, which is a rabbinic prohibition, the law is like that of the first case: if he acted unintentionally we do not penalize him, and if he acted deliberately we do penalize him, and for the very same reason. This person did not know that his act was forbidden, he was trying to do the right thing and fulfill the mitzvah of tithing his food, and he needs the food for Shabbos. Once these conditions are met - that he needs the food, that he had good intentions, and that he did not know the act was forbidden - we do not penalize him, even though Rabbi Meir's general rule is that in rabbinic matters we penalize the unintentional and the deliberate alike. This, then, is the exception to the rule, and he is permitted to eat the food even on Shabbos after he has tithed it.
Regarding cooking, which is a Torah prohibition, we follow Rabbi Meir's usual rule: in Torah matters there is no penalty for an unintentional act. Therefore, if he cooked unintentionally, not knowing that it was Shabbos or that the act was forbidden, he may eat, since there is no penalty for one who desecrates Shabbos unintentionally. But if he cooked deliberately, with prior intent, we penalize him and say he may not eat, so that he derives no benefit at all from his desecration of Shabbos.
The practical halachah:
It is worth noting that the Tannaim disagreed about these laws, and many of the halachic authorities do not rule like Rabbi Meir. Among them is the Bartenura, who rules like the Rambam, and along with him the Mechaber in Shulchan Aruch, both of whom rule like Rabbi Yosi. Rabbi Yosi's approach is roughly the opposite of Rabbi Meir's:
In Torah matters: Rabbi Meir does not penalize the one who acted unintentionally, while Rabbi Yosi says that even for an unintentional act we impose a penalty and a punishment.
In rabbinic matters: Rabbi Meir penalizes the unintentional and the deliberate alike, in order to strengthen the authority of the Sages; whereas Rabbi Yehudah says that this is not necessary - the unintentional act is passed over in silence, and the deliberate act is punished.
In practice, according to the Rambam and the Mechaber - and even though many disagree, such as the Vilna Gaon and others who rule like our Mishnah - the Bartenura, whom we are following in this lesson, holds that the halachah is like Rabbi Yosi, and this is certainly the halachah for Sephardim. It emerges that in practice we do not rule like this Mishnah: one who cooks on Shabbos, even unintentionally, may not eat the food on Shabbos until after Shabbos; and if he cooked deliberately, with intent, it is forbidden to him forever, even after Shabbos, and he may never eat that food, while others wait until after Shabbos. This is a striking scenario, and this is the practical halachah according to the Bartenura.
'Bichdei sheya'asu' (the time it takes to do the work):
An important side point: even according to Rabbi Meir, who holds that one who acted deliberately may not eat on Shabbos, we need to clarify how long he must wait after Shabbos. We are familiar with the principle of 'bichdei sheya'asu' - that one must wait the amount of time that would have been needed to do the work. According to this principle, a food that takes an hour to cook and was cooked on Shabbos requires waiting a full hour after Shabbos ends before it may be eaten, for if he were to eat it immediately he would be benefiting and saving himself an hour of cooking.
However, although Rashi understands that this 'bichdei sheya'asu' applies here as well, the overwhelming majority of the Rishonim, including the Rambam, and so too the practical halachah, hold that the rule of 'bichdei sheya'asu' does not apply in this area at all. This rule was stated only in the area of asking a non-Jew to perform work: a person who acted improperly and caused a non-Jew to do work for him on Shabbos for his own benefit, in a case where it was not permitted, is penalized, and we say that he may not benefit from that work, and he must wait not only until Shabbos ends but also for the amount of time it would have taken to do it, so that he derives no benefit at all from having caused the non-Jew to do it on Shabbos. The Sages instituted this penalty because people might try to have non-Jews work for them on Shabbos, and in this way they gain nothing, not even the savings in time.
But in the context of our Mishnah, which deals with a Jew who cooks on Shabbos, there is no requirement of bichdei sheya'asu according to the Rambam and most of the poskim. The result is:
According to Rabbi Meir: if he acted inadvertently, he may eat it on Shabbos itself; if deliberately, one waits only until immediately after Shabbos ends.
According to Rabbi Yehudah: if he acted inadvertently, one waits until after Shabbos and eats it immediately at nightfall, with no bichdei sheya'asu; and if he acted deliberately, it is forbidden to him forever, and he may never eat of this food, while others wait until after Shabbos.
"HaNotea BeShabbos" - one who plants on Shabbos:
Planting a tree on Shabbos is also forbidden by Torah law, since it is a toladah (derivative) of sowing. One of the thirty-nine primary categories of labor is sowing - planting seeds and setting them in the ground; and planting, which in its plain sense means placing a tree or a sapling in the ground, or replanting it, is not a primary category but a derivative, a subcategory of sowing.
Its law is like that of cooking: since it is a Torah prohibition, and Rabbi Meir does not penalize one who acted inadvertently, therefore "shogeg - yekayem" - if he planted without knowing that it was Shabbos or that the act was forbidden, he may leave the tree in place after Shabbos and is not required to uproot it. But "meizid - ya'akor" - if he planted deliberately on Shabbos, we compel him to uproot the tree, so that he not benefit from labor performed on Shabbos. And the same law applies even if the tree will only take root long after Shabbos, since the very act of putting it into the ground is forbidden, and since he acted deliberately we do not allow him to come out ahead - for Rabbi Meir penalizes deliberate transgressions of Torah law.
"UvaShevi'is" - and in the Sabbatical year:
In the Shemittah year too, sowing is forbidden, and the prohibition of sowing is certainly from the Torah. As for planting, and particularly the replanting of a tree, there is a dispute, and for the sake of simplicity we will assume that we are dealing with the planting of trees and that this too is forbidden by Torah law in the seventh year of the Shemittah cycle. And since that is so: "uvashevi'is, bein shogeg bein meizid - ya'akor" - and in the Sabbatical year, whether inadvertently or deliberately, he must uproot. One who transgresses and plants in the Shemittah year, whether inadvertently or deliberately, is compelled to uproot.
At first glance this is puzzling: we are dealing with a Torah law, and it is Rabbi Meir speaking, whose rule is that we penalize only deliberate offenders and not inadvertent ones. We would have expected him to say, as in the case of Shabbos just before it, that if one planted inadvertently, not knowing that it was the Shemittah year, the tree is left in its place, and only in the case of a deliberate act is he compelled to uproot it. Nevertheless, that is not what is said; rather, whether inadvertently or deliberately, he must uproot.
The reason for this, as we saw in Maseches Shevi'is which we have just completed, is that Chazal fought with all their strength against violations of Shemittah, which were apparently widespread and common in their time. Because it was common for people to cheat the system, to lie and to do things in Shemittah that were not permitted to them, Chazal instituted a whole series of rabbinic decrees that were extreme in their severity: they pushed the agricultural labors back into the sixth year, even where doing so brought no benefit to the trees; and they also decreed the prohibition of sefichin - the Torah permitted eating what grows on its own in the seventh year, while Chazal forbade most of it - and all this because people cheated the system and claimed that the wheat had grown on its own, when in truth the person himself had sown it and was lying.
The same applies here: because of the widespread concern that Jews would treat the laws of Shemittah lightly and sow in the Shemittah year, the Sages were extremely stringent. They said: even if you claim that it was inadvertent and a matter of chance, that you did not know the act was forbidden or that this was the seventh year - whatever your story may be - we still penalize you. Even Rabbi Meir agrees that in matters of Shemittah we are exceedingly stringent, and we do not allow a person to benefit at all, not when he acted inadvertently and certainly not when he acted deliberately, and therefore we compel him to uproot the tree.
In summary: our Mishnah, following the view of Rabbi Meir, distinguishes between inadvertent and deliberate acts in four cases: one who immerses impure vessels on Shabbos (a rabbinic prohibition) - if inadvertent he may use them, and if deliberate he may not, since his intention was for the good and so that his Shabbos not be ruined; one who separates tithes (rabbinic) and one who cooks (Torah law) - if inadvertent he may eat, and if deliberate he may not eat; one who plants on Shabbos (Torah law) - if inadvertent he may leave it standing, and if deliberate he must uproot; whereas in the Sabbatical year, because of the severity of the enactments the Sages instituted against those who treated it lightly - whether inadvertent or deliberate, he must uproot. As a matter of practical halachah, the Rambam, the Mechaber and the Bartenura rule like Rabbi Yosei, that even one who acts inadvertently is penalized in a matter of Torah law, and that bichdei sheya'asu applies only in matters of instructing a non-Jew.