Having spent two weeks discussing ways in which we ease the lives of those who are currently trying to return to proper service of God, we should take time to investigate a sort of flip side, situations wehre we act particularly harshly with sinners, so that they not profit from their iniquity. The gemara has numerous examples of this priniciple, known as she-lo yehe hote niskar, that the sinner not profit. Some are monetary, where we do not protect the money of a sinner as assiduously as we would that of other people (one example: how would we handle someone who executes a heter iska— a document allowing one Jew to lend money at interest to another Jew by the legal fiction that they are actually becoming business partners— and later finds out that the borrower conducts business on Shabbat? Theoretically, it should be prohibited for the lender to accept the profits from these business ventures, since they include illicit profits from Shabbat activity. At the same time, that would reward the borrower, the sinner in this situation); some are marital, where we would not allow certain people to marry because their relationship began in a sinful fashion; and some are Temple related, such as the rule that sin-offerings are offered without adornments, so that the offering not be seen as beautiful. In a broad range of halakhic areas, in other words, we have the guiding principle that we do not wish a sinner to profit from his/her sin.

An interesting question that comes up is whether by a "sinner" we mean only someone who knew that the act was sinful, or if we would also include someone who sinned unknowingly. I found two contradictory cases. The first is inthe case of aveilut, of mourning. While it comes up in several contexts, the most interesting was a responsum by R. Kook, ztllh"h, in Da`at Kohen (Yoreh Deah), 216. During WWI, R. Kook was asked about a man who, shortly before Pesah 1916 while on active duty in the British artillery, heard that his father had passed away. The man cried bitterly at the news, but had no occasion to perform any of the ritual acts of aveilut. After Pesah, which was also more than thirty days after the father’s passing, the man had the opportunity, and could theoretically have sat shiva. The rabbi who addressed the question to R. Kook had ruled that the man did not have to act as an aveil, fundamentally because he believed that the act of crying was enough of an act of aveilut for us to consider that he had mourned before Pesah, so that the holiday would interrupt the mourning.

R. Kook concurs, but notes that the general practice follows the opinion of Ravad (Shut Raavad, 83), that a holiday only stops a period of mourning if the mourner had already actually performed some meaningful act of mourning. R. Kook suggests that the relevant gemara could easily have been read otherwise, that as long as the person has been buried before the holiday (such that the obligation of mourning has started), the holiday would interrupt the mourning. R. Ovadia Yosef (Yabia Omer 8, Yoreh Deah 34;3) cites a Meiri that makes the point. Nevertheless, the common practice is to follow Raavad, which would mean that regardless of the reason, a holiday will not stop the aveilut unless the mourners performed some ritual of mourning. Since the reason for this ruling is she-lo yehei hotei niskar, that the sinner not benefit from his sin, R. Kook points out that we can consider someone a sinner in these terms even if they acted erroneously rather than maliciously.

Yet in another case that the gemara refers to as she-lo yehei hotei niskar, we do distinguish between deliberate and mistaken acts of sin. If a woman whose husband dies without children (which requires yibum or halitsah, that the wife marry or have halitsah from the brother of the deceased) marries someone else before being freed of her obligations to her brother-in-law, the gemara rules that that man must divorce her, and she may not marry him again (even after she a valid halitsah). While the gemara seems absolute about this— that it would not matter whether she was acting maliciously, deliberately, or mistakenly in marrying this outside party— Rabbenu Tam (as recorded by Rema, Even haEzer, 159, 1) ruled that if they were acting be-shogeg (meaning that, fo rone reason or other, they did not realize there was a brother who needed to be dealt with), we would allow them to marry after a halitsah from that brother.

For Rabbenu Tam, the notion of she-lo yehei hotei niskar clearly applies only to someone who is fully culpable for the sin, since he/she knew that the act was wrong. Interestingly, Terumat haDeshen (cited by Rema) limited that shogeg to a case where they had never known about this brother; had they known that there had been a brother, but simply thought that he had died, they would not be allowed to marry. That view suggests that our standards are not even as simple as knew or did not know, but depend on the type of knowledge and the responsibility that goes with that knowledge. Although I did not find explicit sources dealing with the issue, I think it would be obvious that questions of reasonable education would also play a role here. Imagine if this woman was not observant at the time of the death of her first husband, and got married without ever knowing about the need for halitsah. I can easily imagine a rabbi permitting them to remarry after a proper halitsah along the lines of Rabbenu Tam’s heter, even though in this situation they knew about the brother’s existence.

The two cases suggest, then, that our definition of hotei and who we would prevent from benefitting from their sin would depend on each particular case, rather than being a blanket rule for all situations. Shabbat Shalom.