Shelo Ke-derekh Hana'ato
Ch. 2 - 24b
The gemara on 24b brings two variants of a statement of R. Abahu, limiting the liability in cases of issur. We shall first examine Rashi's understanding of these two statements (especially in light of the commentary of R. David), and the analyze the opinion of the Rambam.
1. "One does not receive malkot for any issur in the Torah except in the manner of its eating (derekh akhilatan)."
2. "One does not receive malkot for any issur in the Torah except in the manner of its benefit (derekh hana'atan)."
The gemara gives an example of each rule:
1. One who eats uncooked cheilev is exempt (from malkot)
2. One who places the fat of a shor haniskal on a wound.
Since cheilev is assur be-akhila but not be-hana'a, whereas shor haniskal is assur be-hana'a, it is clear that the first rule is referring to issurei akhila (EATING she-lo Ke-derekh akhila is patur), whereas the second is referring to issurei hana'a (HANA'A shelo Ke-derekh hana'a is patur). Rashi (s.v. "ela" and "ika") states this explicitly. There is therefore no direct relationship between the two rules, and they are not necessarily in disagreement. One limits akhila, one limits hana'a. The gemara does state however that the second rule implies the first ("ve-kol shekein okhel cheilev chai shehu patur").
I would like to first examine R. David's explanation of these two rules. I shall be reading R. David line by line, so it will be helpful if the (Hebrew) text is front of you. I shall present a translation here.
"ika d'amri... derekh hana'atan" - It appears that this
version extends the first version; i.e., there is no
need to state that for EATING there will not be malkot
unless (the transgression was) derekh akhila, FOR
WHATEVER IS NOT DEREKH AKHILA IS NOT CONSIDERED EATING
(lo shmei akhila). But even HANA'A, where you can say
that he had hana'a in any event, whether Ke-derekh
hana'a or not Ke-derekh hana'a, nonetheless there will
not be malkot unless (the transgression was) derekh
hana'a. The reason is because the Torah expressed (the
issur hana'a) with the term "akhila," so we equate
hana'a to akhila.
R. David is advancing a logical distinction here between akhila and hana'a. Shelo Ke-derekh is logically a negation of akhila, but in the case of hana'a, I would have argued that "he had hana'a in any event (shekvar neheneh)". Only because hana'a is prohibited under the terminology of akhila do I apply the logic of akhila to hana'a. What is the logic of akhila that should not have applied to hana'a?
The answer is that akhila is the name of an action. In many areas of halakha, if the Torah has prohibited a specific action, it must be done in the normal manner. For instance, in Shabbat, there is a general rule that "kel'achar yad" is not a Torah prohibition. The assumption is that the term "action" mentioned in the Torah refers to the standard way that the action is usually performed. Hence R. David states that without any particular gezeirat hakatuv, I know that "shelo Ke-derekh akhila lo shmei akhila" - is not considered to meet the formal definition of akhila. However, hana'a is not the name of an action, but of a state. This is what R. David means by "shekvar neheneh." It makes no difference how the hana'a was acquired; in any event, there is a state of hana'a. The form of eating determines the nature of the action, the form of hana'a is not relevant to what the Torah has prohibited.
This phrase, "shekvar neheneh," is reminiscent of a similar terminology used by the gemara elsewhere. The gemara (Kritut 19b) states that one who is "mit'asek" (transgresses without awareness of what he is doing, and therefore generally is not liable) in cases of chalavim (issurei akhila) or arayot (sexual transgression) is liable, "sheken neheneh." Rav Yosef Engel (Atvan D'Oraita, 24) explains this principle as follows:
When someone does an action without intention
(awareness) it is as though he has not done the action
at all, but rather it has been done on its own and not
by the man. That which is done by a man's limbs without
his intention does not relate to his actions at all....
This is true only in connection with a normal action,
where the Torah has prohibited the action of a person.
In such a case, if he had no intention it is considered
as if he did not act at all and he has not transgressed
the words of the Torah. However, in cases of chalavim
and arayot, the Torah is not specifically prohibiting
the action, but the feeling of hana'a.... Since in
transgressions of akhila and sexual relations the
action is not the transgression but the feeling of
hana'a is that which is prohibited, it therefore makes
no difference that there was no intention - in any
event he felt the hana'a, and that which the Torah
prohibited has occurred.
In our words, mit'asek serves to sever the connection of an action from the actor. Without intention and cognizance, the effects of my hand are not considered my actions. However, chalavim and arayot are prohibitions of a bodily state, not a personal action, and that state exists and relates to my body whether there was intention or not. I am suggesting that by using the phrase "she-kvar neheneh," R. David is referring to the same principle. Shelo Ke-derekh is a legal restriction on what constitutes the action prohibited by the Torah. Hana'a though is not a prohibited action, and therefore it makes no difference how the hana'a is obtained. It is not the action of obtaining hana'a that is prohibited, but the effect - having the sensation of hana'a.
(Another example of this principle is advanced by the Mekor Chayim  in regard to the prohibition of lo yeira'eh chametz. If someone has not searched for chametz, most rishonim believe he transgresses lo yeira'eh if there is indeed chametz in the house. The Mekor Chayim points out that this is mit'asek, and answers that lo yeira'eh is not an action but a state of "having" chametz; hence the principle of mit'asek does not apply. So we have managed to get a little Pesach Torah in one week before the chag.)
Logically then, R. David concludes that hana'a should not be restricted to Ke-derekh. However, since the prohibitions of hana'a were formulated using the verbs of the akhila family, there is a gezeirat hakatuv that they also need to be Ke-derekh. Even though there is no significance to the means of acquiring hana'a, so long as the person has hana'a, nonetheless shelo Ke-derekh is not liable. Therefore, R. David continues and explains the rest of the gemara:
This is what the gemara states, "all agree that in
cases of klai hakerem one is liable for malkot even
shelo Ke-derekh hana'atan. Why? - because akhila is not
written there." This means that even the latter variant
of the gemara which added an exemption in hana'a when
it is shelo Ke-derekh agrees in the case of klai
hakerem, since its issur hana'a was not expressed
through the term akhila.
Since the exclusion of shelo Ke-derekh hana'a is a gezeirat hakatuv, which does not follow from the logic or the nature of issurei hana'a, it does not apply where the gezeirat hakatuv does not exist. In klai hakerem, I follow the logic which applies the exclusion of shelo Ke-derekh only to issurei akhila and not to issurei hana'a. R. David makes this clear in his next statement:
One is not liable for EATING Klai hakerem shelo
Ke-derekh AKHILA, since it is not considered eating; but
nonetheless it is also a case of hana'a (and he is
liable) she-kvar neheneh.
In the case of klai hakerem itself, R. David says, one is patur for eating shelo Ke-derekh akhila and liable for hana'a shelo Ke-derekh hana'a. Since every case of eating is also a case of hana'a, one will be liable in any event, but theoretically, the exclusion of shelo Ke-derekh akhila applies to klai hakerem.
R. David'conclis that the second variant in the gemara implies, and extends, the logical principle of the first. Hence, if the second variant is correct, the first must also be so. In our gemarot, this is stated explicitly in the gemara - "kol sheken okhel cheilev chai."
- R. David
- The Rambam
The Rambam (14,10-11) writes:
One is not liable for all forbidden foods unless the
are EATEN derekh HANA'ATAN, except for basar bechalav
and klai hakerem, where it is not written "akhila," but
the prohibition was expressed in another way, in terms
of "bishul" and "hekdesh;" this in order to prohibit
them even shelo Ke-derekh HANA'A.
How so? If one melts cheilev and swallows it when it is
hot so that his throat is burnt from it, or if he ate
raw cheilev, or if he mixed in bitter substances... and
ate it when it was bitter, or if he ate forbidden food
after it had spoiled and was no longer fit for human
consumption, he is not liable. But if he mixed a bitter
substance in a pot of basar bechalav or wine of klai
hakerem and ate it he is liable.
This is the only place in Hilkhot Ma'akhalot Assurot where the Rambam refers to this principle (there is another place - Hilkhot Yesodei HaTorah, as we shall see in a coming shiur). But it is not immediately clear which variant of the gemara serves as the basis of the Rambam's ruling. On the one hand, the Rambam refers only to EATING, which is a defining sign of the first variant. On the other hand, the Rambam uses the term "shelo Ke-derekh HANA'ATAN," which is a mark of the second variant, and also excludes klai hakerem from the principle, which according to the R. David which we just read, is applicable only to the second variant.
The Rambam is complicated by an additional factor. As we have seen, according to the Rambam, there is never malkot in cases of hana'a (8,16). The Rambam can therefore not cite the second variant as it appears, which distinguishes between cases of hana'a where there is malkot and cases where there is not.
It appears that the Rambam has a different understanding of the principle of shelo Ke-derekh hana'atan. The cases the Rambam cites, in addition to the one of raw cheilev found in our gemara, are not cases of an unusual manner of eating, but one's where the taste of the food provides no hana'a at all. Apparently the Rambam is saying that if one eats (and presumably has the caloric benefit of nutrition) but does not have a pleasant taste experience, because the food is too hot, or too bitter, or spoiled (and apparently raw cheilev fits into this category as well), this is not a transgression of the issurei akhila. The reason is based on the Rambam which we have already learnt a few weeks ago. Akhila, wrote the Rambam in the Sefer HaMitzvot, means "hana'at akhila." Akhila is a particular kind of hana'a, the kind associated most directly with food. "Akhila shelo Ke-derekh hana'ato" (notice the hybrid form) means akhila that does not provide the standard hana'a of akhila, which is "hana'at hacheich ve-hagaron" - taste. All hana'a is forbidden; however receives malkot only for the "ikkar halav," the standard hana'a of foods, which is not merely eating, as we were taught a month ago, but the taste of eating.
Here there is a difference between other issurim and klai hakerem. In all cases, even in klai hakerem and basar bichalav, hana'a is an extension of akhila, even if the Torah did not use the term akhila. This is because, as we explained then, the prohibition is a food prohibition, and R. Abahu's principle is a logical one, concerning the relationship of hana'a to akhila. Here though, there is a gezeirat hakatuv concerning what is the main hana'a of akhila itself. there are two possibilities - nutrition or taste. If the Torah uses the term akhila, I restrict the ikkar halav to the taste of eating; if not, any form of hana'at akhila is liable, whereas other hana'ot are always not liable.
It is clear that the Rambam is in fact arguing the exact opposite of R. David. R. David claimed that akhila was a forbidden ACTION, which is distinct from forbidden hana'ot (states). Hence, "shelo Ke-derekh akhilato" meant an action performed in an unusual, non-normative manner. According to the Rambam, all akhila is just a particular form of hana'a. "Shelo Ke-derekh hana'ato" is akhila without the expected hana'a.
It might be expected according to this that shelo Ke-derekh hana'a according to the Rambam will be excluded from malkot, but will still be an issur mid'oraita (like other hana'ot in general). This in fact would be the simple conclusion here, since the Rambam states no more than that one does not receive malkot. This would also explain why the Rambam does not bring any cases of HANA'A shelo Ke-derekh hana'a, but only cases of AKHILA shelo Ke-derekh hana'a. All cases of hana'a are assur mid'oraita but without malkot; if it is shelo Ke-derekh, it is also assur mid'oraita without malkot - so there is no reason to cite the principle in regards to issurei hana'a. However, there is one place where there is an application of hana'a shelo Ke-derekh hana'ato (Hilkhot Yesodei HaTorah, 5,8). Since this relates to the gemara on 25b, we shall wait until after Pesach to discuss it, and thereby complete the analysis of the Rambam's opinion. It is clear however that this Rambam is a continuation of the Rambam's unique understanding of issurei hana'a which we examined on 21b).
Sources for the next shiur:
Gemara: From 24b, "Meitivi, Issi ben Yehuda...", to 25a "...lo hosif lo."
The shiur will mostly serve as an introduction to the NEXT topic, which is pikuach nefesh. For this purpose, you should learn the following:
Sanhedrin 74a "Amar R. Yochanan meshum R"S ben Yehotzadak" to 75a, the end of the perek.
Tosafot 74b, s.v. "veha."
Ramban, Milchamot ad.loc (17b in the Rif pagination), s.v. "ve-od").
[This is a long and complicated Ramban, but a very important one. Do as much as you can.]