Sleep, Anesthesia, and Mitzvos

Vayikra 5780

If one’s offering is a burnt offering from the cattle, he shall offer an unblemished male; he shall bring it to the entrance of the Ohel Moed voluntarily before Hashem. (Vayikra 1:3)

The Gemara (Arachin 21a) deduces from the words “voluntarily before Hashem” (“liRtzono Lifnei Hashem”) that if a person is compelled to offer a Korban it does not atone for him[1]. In other words, a Korban can only be offered with the consent of its owner. Rashi (Sanhedrin 47a) explains that this is why the Korban of a person who became a Shoteh after he consecrated it is invalid, for a Shoteh is not considered Halachically competent to consent.

This topic leads to the discussion of the Halachic status of a person who is sleeping (a “Yashein”), who similarly has no active will or desire. We will examine this Sugya (and several other relevant Sugyos) in greater depth, and also attempt to deduce the Halachic status of a person under anesthesia.

Sanhedrin 47a:

Ulla said in the name of R’ Yochanan: If a person ate forbidden fats, set aside his Korban, and then became a heretic but subsequently returned to his faith; since the Korban was disqualified [as one may not offer a Korban of a heretic] it remains disqualified [even after he returns to his faith].

It was also said: Said R’ Yirmiya in the name of R’ Avahu in the name of R’ Yochanan: If a person ate forbidden fats, set aside his Korban, became a Shoteh, but then returned to sanity; since the Korban has been disqualified, it remains disqualified.

And [both statements in the name of R’ Yochanan] are necessary: For had we only learned the first Halacha [regarding a heretic, one might have said that the reason that his Korban remains disqualified is] because he actively disqualified himself [by becoming a heretic]. But a Shoteh, who became disqualified involuntarily – one might have said that he should be considered like a sleeping person [whose Korban is not disqualified].

And had it only taught us the second Halacha [regarding a Shoteh, one might have said that the reason that his Korban remains disqualified is] because he has no ability to restore [cure] himself. But a heretic, who is able to return [to his faith], one might have said that this is not the case [and his Korban will become valid again once he returns]. For this reason, both statements of R’ Yochanan area necessary [and both the Korban of a heretic and that of a Shoteh are disqualified permanently].

We see that if R’ Yochanan had not specifically taught the Halacha that the Korban of a Shoteh is disqualified permanently, we would have compared his state to that of a sleeping person whose Korban is not disqualified. However, the Gemara only discusses whether the Korban of a Shoteh is disqualified permanently – in other words whether it remains disqualified even after he recovers, for certainly prior to that his Korban is invalid. Is the same true of a person who is sleeping? Does the Gemara consider a sleeping person’s Korban to be valid only after he awakens but not prior to that?

This question is subject to a dispute among the Rishonim. Tosfos (ad. loc. s.v. Eima) hold that it is permissible to offer the Korban of a person who is sleeping. The Gemara only meant to compare a Shoteh (whose Korban may not be offered while he is a Shoteh) to a sleeping person in the sense that in both cases, the return to the awake or competent state does not entail a deliberate act or choice.

Rashi implies otherwise. When the Gemara contends that one might have compared a Shoteh to a sleeping person, Rashi comments that the Korbanos of people who are sleeping “are not disqualified after they awaken”. This clearly implies that before they awaken, their Korbanos are invalid. The same conclusion is drawn by the Yad Ramah.[2]

 

Gittin 78a:

A similar dispute among the Rishonim can be found in the Gemara in Gittin 78a. The Mishna states that if a person gives a Get to his wife while she is sleeping, it is invalid. The Rishonim ask: since it is possible to divorce a woman who is a deaf-mute (as essentially one may divorce a woman without her willful consent), why can’t a man divorce a woman who is sleeping?[3] Two answers are suggested:

1. The Rashba and Ran explain that if a woman is asleep she is perforce unable to guard her Get. To fulfill the requirement of “v’Nasan b’Yadah” – “and he shall place it [the Get] in her hand” a woman must be able to look after the Get she receives. A deaf-mute is capable of taking care of her Get thus it is possible to divorce her but a sleeping woman is not. As an aside, the Rashba adds that as far as the requirement of Da’as for divorce is concerned, it is sufficient that the witnesses understand the process, even if the woman does not.

2. The Rosh (Gittin 8:4) explains that a person who is asleep “has no Da’as at all”, unlike a deaf-mute who understands a little. The Rosh appears to hold (and this is the understanding of the Beis Yosef E.H. 138) that although one may divorce a woman against her will, she must still be lucid at the time of the divorce.

It is clear that the Rosh holds that a sleeping person is not considered to have Da’as. However, there is not a clear indication of what the Rashba holds. Simply understood, the Rashba seems to focus on the woman’s inability to take care of her Get, and, therefore, would seem to reject the notion that she would not be considered to have Da’as. This is the understanding of the Beis Yosef (ibid.) and Machaneh Efraim (Hilchos Kinyan Chatzer 12). On the other hand, the Rashba adds that to effect a divorce it is sufficient that the witnesses understand the process, even if the woman does not. This implies that he agrees that a sleeping person does not have Da’as, just that the lack of her Da’as does not invalidate the Get as the witnesses provide the required Da’as.

Gittin 70b:

The Gemara in Gittin (70b) discusses a case of a man who sent a Get with a Shliach (an emissary) but became a Shoteh before it was delivered. It cites the Mishna (ibid.) which states: If a person says, “Write a Get for my wife” but is then seized by Kurdikus[4] [a certain mental illness] and then retracts and says “Do not write it”, his latter instructions are meaningless [and the Get is valid]. At what point may the Get be delivered to his wife? According to Reish Lakish, one needn’t wait for the husband to recover from his illness and the Get may be given immediately. According to R’ Yochanan, since Kurdikus renders him a certain Shoteh, they must wait until he recovers before delivering the Get.

The Gemara explains the respective positions of Reish Lakish and R’ Yochanan:

Reish Lakish compared him [the man with Kurdikus] to a person who is sleeping [and whose Get may certainly be delivered]. R’ Yochanan compared him to a Shoteh.

Why did R’ Yochanan not agree that this man should have the same status as a person who is sleeping? The Gemara explains that a person who is asleep will eventually wake up spontaneously, thus, even when he is sleeping, he is not considered to be a Shoteh. However, a man with Kurdikus needs specific treatment in order to recover thus, during his illness, he is considered a Shoteh.

Why did Reish Lakish disagree? The Gemara explains that since there is no cure for a Shoteh but there is a cure for a person with Kurdikus, namely, eating roasted, lean meat with diluted wine, a person with Kurdikus should not be compared to a Shoteh.[5]

This Gemara says explicitly that a person who is sleeping is not considered a Shoteh – precisely the position of the aforementioned Tosfos in Sanhedrin. This appears to contradict the view of Rashi and the Yad Rama who argued that while a person is sleeping he is considered a Shoteh.

Some answer that, according to Rashi and the Yad Rama, a sleeping person is only considered a Shoteh with regard to Korbanos where the Torah demanded that a person’s Korban be brought “liRtzono”, which requires an active awareness and intent that is not necessary in other areas of Halacha. However, this answer is difficult to understand since a person who sends his Korban with a Shliach is unlikely to be thinking about his Korban precisely at the moment that it is being offered. Rather, it must be that we assume that his desire to offer a Korban has not changed since the time that he dispatched it, and that we do not require his affirmative Da’as at the time the Korban is offered. Since this same reasoning can also be applied to a person who is sleeping, we must say that the reason that these Rishonim hold that one may not offer a Korban of a sleeping person is because he is not considered to be a “Bar Da’as” while asleep, and his Korban is therefore not being offered with the “will” of its owner[6]. However, this notion appears to be contradicted by the Gemara in Gittin (70b) that states that Reish Lakish allows the Get of a man with Kurdikus to be written and delivered via Shliach since he compares him to someone who is asleep.

Additionally, this Gemara asserts that a sleeping person is not considered to be a Shoteh and appears to contradict the view of the Rosh in Gittin who explained that the reason that one cannot divorce a woman who is sleeping is because she does not have Da’as. This obviously cannot be answered by distinguishing between the laws of Korbanos and other areas of Halacha. In fact, the Gemara which clearly validates a divorce performed by a man who is sleeping and does not consider him a Shoteh, seems to imply precisely the opposite message to the Rosh’s interpretation of the Gemara cited above which disqualifies a Get given to a woman who is sleeping because she is considered a Shoteh[7].

[It is obvious that without the use of a Shliach, the acts of a sleeping person certainly have no validity. He therefore cannot acquire things while he is asleep for he isn’t lucid at the time. See Rashi Yevamos 54a, s.v. Yashan]

Regardless, the Gemara clearly implies that while a sleeping person does bear some similarly to a Shoteh, since he will awaken spontaneously, he is not considered a Shoteh. See below.

Shulchan Aruch O.C. 55:6:

The Shulchan Aruch rules that a sleeping person can be counted towards a Minyan for the recital of Devarim sheb’Kedusha. The source of this ruling is R’ Yaakov Birav, the teacher of the Beis Yosef, who compares it to the ruling of the Maharam miRottenberg that a person who cannot answer Amen, Kaddish or Kedusha together with the Tzibur because he is still saying his personal Shemona Esrei may nevertheless be counted towards the Minyan. The Maharam miRottenberg derived this from R’ Yehoshua ben Levi’s ruling that even a baby in a crib completes a Minyan for reciting Zimun (Brachos 47b). A sleeping person, though not as cognizant as a person who is awake and still reciting Shemona Esrei, may similarly be included when it comes to counting towards a Minyan.

The Acharonim discuss this novel ruling at length[8]. Firstly, they note that the comparison between a sleeping person and a child in a crib (which is essentially the basis of the Shulchan Aruch’s ruling) is problematic. The Zohar describes how a sleeping person is bereft of Kedusha for his Neshama has departed him and there are other sources that compare his state to a corpse (which is the reason why we recite the Bracha of “Hamachazir Neshamos liFgarim Meisim” each morning). How then could he be included in a Minyan?[9]

Moreover, as the Taz (ibid. 4) notes, the ruling that even a child in a crib may complete a Minyan, is only that of R’ Yehoshua ben Levi and according to the vast majority of the Rishonim (aside from Rabbenu Tam), the Halacha is not in accordance with his view (Beis Yosef ibid.) Furthermore, it is possible that even R’ Yehoshua ben Levi would agree that a sleeping person cannot be included in a Minyan given that it is possible to wake him. Why should we include him while he is asleep when it is possible to remedy the situation? A child, by contrast, cannot be transformed into an adult.

Thus far, we have not seen the Acharonim challenge the ruling of the Shulchan Aruch by claiming that a sleeping person should be considered a Shoteh who cannot complete a Minyan (though it is likely that this is the position of the Taz). However the Pri Chadash (ibid. 6 and cited by the Mishna Berura ibid. 33) does make this claim, supporting his claim with the aforementioned Rosh in Gittin who holds that the reason that a woman who is sleeping cannot be divorced is because she is considered a Shoteh.

 

 

Sleeping and Mitzva Performance

Modern Poskim discuss the well-known question of whether one is required to awaken a person who is sleeping close to Sof Zman Krias Shema. They similarly discuss whether one may remove a sleeping person from a Sukkah in order to make space for others. The question depends upon whether a sleeping person should be considered a Shoteh who is exempt from Mitzva performance.

Famously, Rav Shlomo Zalman Auerbach zt”l (Halichos Shlomo 2:9) ruled that a person who is sleeping has no Mitzva obligations, just like a Shoteh. Therefore, if he misses Krias Shema he will not be punished for not performing a Mitzva, as he is considered to have been an Anus at that time. Likewise one may remove a sleeping person from the Sukkah, for while sleeping in the Sukkah is a Mitzva, a person’s obligation is only to ensure that he goes to sleep in the Sukkah. Once he is asleep, he is like a Shoteh who is exempt from all Mitzvos, including Sukkah.

However, the Maharil Diskin (cited by Rav Shlomo Zalman) ruled that if a person is sleeping on Erev Sukkos outside of the Sukkah, he must be awakened at the onset of the Chag as at that point he is obligated to sleep in a Sukkah. The Maharil Diskin appeared to have held that a sleeping person does have Mitzva obligations. Likewise, several modern Poskim also contend that regarding the obligation to perform Mitzvos, a sleeping person is certainly not to be considered a Shoteh. The Rishonim who dubbed a sleeping person a Shoteh, did not mean to exempt him from Mitzva performance, but merely to disqualify him from performing certain Halachic acts due to his lack of Da’as.[10]

Anesthesia

Though anesthesia has been used in medical practice for well over a century, the mechanism of action is still poorly understood. It was popularly believed that the anesthetic medications depressed global brain functions and activity, thus eliminating memory, voluntary or involuntary movements, and any messages to and from the brain. However, recent studies have clarified that while the suppression of consciousness may be by the disruption of higher-level cortical function, there are neurobiological correlates of anesthesia and sleep. Researchers are studying dreaming and memory formation under anesthesia as compared to during sleep.

These question does not particularly impact on the Halachic status of a person under anesthesia. As we have seen, while a person sleeping, his acts certainly have no validity as he has no Da’as in the asleep state and the same would be true if he is anesthetized. Nevertheless, one of the characteristics of a sleeping person and which, as we have seen, distinguishes him from a Shoteh, is that he will spontaneously awaken from his slumber (unlike a Shoteh who will not find himself to be suddenly cured), and while this is also true of a person under anesthesia, there is a difference. A sleeping person can be awakened at any moment, whereas a person under anesthesia cannot – one need wait until the effects of the medications wear off.

HaGaon Rav Asher Weiss Shlit”a ruled that a person under anesthesia should be considered a “Bar Chiyuva” (a person obligated in Mitzvos). Though while anesthetized or sedated, he is considered an “Anus”, he is nevertheless obligated still carries an obligation of Mitzvos, therefore, if it is possible to lay Tefillin on him, for example, it is worthwhile to do so.

[1] If he refuses to fulfill his obligation to offer a Korban the Beis Din must compel him until he says, “I want to”.

[2] Tosfos adduce proof for their position from the Gemara in Gittin (28a) which rules that if a person sends a sin offering from abroad, it may be offered and one needn’t assume that he has died in the interim. Tosfos argue that if one may not offer the Korban of a person who is sleeping, we should not offer a Korban arriving from abroad for we have no way of knowing whether he is awake at the time. Rabbenu Yona (ad. loc.) counters that it would perhaps be possible to offer the Korban at a time of day that we estimate that he is likely to be awake.

[3] See Gittin 55a, the Rambam Hilchos Geirushin 10:23 and Shulchan Aruch E.H. 119:6.

[4] See Rashi and other Rishonim ibid. 67b who explain the source of this illness

[5] We should point out that according to the Rambam (Hilchos Geirushin 2:15, as understood by the Kesef Mishna and consequently codified in the Shulchan Aruch E.H. 121:2) R’ Yochanan agrees that the Get of a man with Kurdikus is only invalid mid’Rabbanan due to the argument of Reish Lakish that a person for whom there is a cure cannot be compared to a complete and utter Shoteh.

[6] In other words, a person’s Da’as is required at the time his Korban is brought, and when he sends it with a Shliach we assume that he hasn’t changed his mind and can “apply” that Da’as when bringing the Korban as long as he is in a state (i.e. awake and sane) that he would be considered a Bar Da’as.

[7] Moreover, one would have expected the woman’s threshold for Da’as to receive the Get to be lower than that of the man who is effecting the divorce!

[8] See the Taz, Pri Chadash, Aruch haShulchan and Mishna Berura ad. loc.

[9] Aruch haShulchan, ibid. 12

[10] A sleeping person does not have an actual status of Shoteh, and if he sins while he is sleeping, although he is an Anus, it is still considered a “Ma’aseh Aveira”. (For this reason, one shouldn’t cause him to sin in his sleep). Conversely, if he performs a Mitzva at that time it is considered a “Ma’aseh Mitzva”, though it was wrought with no intention whatsoever (see Minchas Asher, Bereishis, Mahadura Chadasha, 57).

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