Q&A: Kim Lei Be-derabba Minei
Kim Lei Be-derabba Minei
Question
Regarding the law of kim lei, Rashi explains that one is still liable under the laws of Heaven, and it is explained that this is a rule directed at the religious court, that they should not punish him twice; but before Heaven he is liable. But this is difficult from the case of those liable to death penalties when the act was unintentional, where there is no rule at all directed at the religious court, and yet there is an exemption.
In that same connection, Rabbi Akiva Eiger’s view (164) is that we also say kim lei even regarding the conditions of liability, because that means the act is considered as though it is not attributed to me; see there. But I have not managed to understand on what basis the act would not be attributed to him. Granted, in a case of duress or mere inadvertence this is understandable (lack of intent, etc.), but here there is no reason at all not to attribute it to him?
Answer
I don’t see the difficulty. The claim that he is punished under the laws of Heaven means that there are two prohibitions involved (even though there is only one punishment). The same is true for those liable to death penalties for unintentional acts: there too there are still two prohibitions and one punishment, except that the other transgression was unintentional.
I didn’t understand what is difficult about Rabbi Akiva Eiger. He writes that one act does not impose two liabilities on him, and that is “as if he did not do it.” It is not that the act is not attributed to him, but rather that the act does not generate an additional liability for him.
Discussion on Answer
I’ll say again the two points I wrote.
When he violates two prohibitions, he is exempted from the punishment, not from the prohibition. And so too in the case of those liable to death penalties for unintentional acts: he violates two prohibitions and is exempted from one of the punishments. You are assuming that the one punishment exempts the second one, whereas I am arguing that for two transgressions only one punishment is administered.
As for Rabbi Akiva Eiger, I did not see any statement that the act is not attributed to him. He writes that the condition does not produce two consequences with respect to him.
What I mean is that if kim lei is an exemption, then there is no reason to obligate him under the laws of Heaven, because the prohibition is exempted as well. So necessarily it is only a rule directed at the religious court not to punish, and therefore conceptually one can still say that he is liable under the laws of Heaven. But in the case of those liable to death penalties for unintentional acts, we see that even where there is no punishment at all imposed on the religious court, we still say kim lei, and that shows it is an exemption.
In Rabbi Akiva Eiger it is explained further that we say kim lei even with respect to the “conditions” of liability, and that is not connected to saying that the act does not create two liabilities; there it is only the practical setup for the prohibition. And the reason he writes that it applies even there is because the act is not attributed to him, and that is not clear why. (Rabbi Akiva Eiger is addressing the question why there is kim lei in a case of duress—after all, the prohibition is at the stage of initial penetration, while the fine is only at the completion of intercourse. To this he answers that although initial penetration does not itself obligate him, it is a necessary condition for the liability.)