The Gemara in Masechet Yebamot (70) establishes that an Arel – an uncircumcised male – is forbidden from eating Teruma, the portion of agricultural produce given to the Kohanim. The Sages derived this prohibition on the basis of a “Gezera Shava” – a textual parallel between two verses. The phrase “Toshab Ve’sachir” is mentioned both in the context of the Pesach sacrifice (Shemot 12:45), and also in reference to Teruma (Vayikra 22:10). The Gemara thus inferred that just as an Arel is forbidden from partaking of the Pesach sacrifice (Shemot 12:48), he is likely forbidden from eating Teruma.

This prohibition applies regardless of the reason why the man has not been circumcised – whether he intentionally neglected the Misva of Berit Mila, if he did not realize this was required, or even if this was due to circumstances beyond his control, such as if he has a medical condition which makes circumcision dangerous. In all these situations, the Arel is not permitted to eat Teruma (or, for that matter, sacrifices).

This Misva is exceptional in that the Rambam counts it as one of the 613 Biblical commands despite the fact that it is not explicit in the text of the Torah. One of the rules which the Rambam stipulated for the listing of the 613 Misvot is that he lists only those commands which are explicit in the Torah. Laws which are derived through the thirteen “Middot She’ha’Torah Nidreshet Bahen” (methods of extracting laws from the text), however, are not included in this list. The prohibition against an Arel’s consumption of Teruma, as discussed, in not explicitly introduced by the Torah, but is rather inferred from a “Gezera Shava” – and yet, the Rambam nevertheless counts this prohibition as one of the 613 Biblical commands.

The Sefer Ha’hinuch cites the Rambam’s comments in Sefer Ha’misvot, where he appears to address this question. According to the Sefer Ha’hinuch’s understanding of the Rambam’s discussion, this prohibition is exceptional because the Gemara explicitly refers to this law as a Torah prohibition, indicating that there was an oral tradition that this Misva should be included as one of the 613 Biblical commands. In other words, the Rambam acknowledges that this prohibition marks an exception to the rule, and is apparently based on an oral tradition.

The Sefer Ha’hinuch, with great humility, writes that “it is proper to be careful with the ‘coal’ of the Rabbi” – meaning, to give respect and reverence to the Rambam, but, nevertheless, he says that the Rambam’s comments are difficult to accept. There seems to be no valid reason to list this prohibition as one of the Biblical commands in direct opposition to one of the Rambam’s rules for listing the Misvot. The Sefer Ha’hinuch notes that the Ramban, in his critique of the Rambam’s Sefer Ha’misvot, disagrees with this rule established by the Rambam – that Misvot which are not explicit in the text should not be counted among the 613 Misvot. The Ramban writes that Rambam’s work is precious and beautiful, but this principle, in the Ramban’s view, is mistaken.

The reason why an Arel may not eat Teruma, the Sefer Ha’hinuch explains, is because an Arel is, essentially, a “Zar” (non-Kohen). Without a Berit Mila, this individual is, in a sense, not part of Am Yisrael, and so he cannot be considered a Kohen. As such, he is excluded from the consumption of Teruma, just like other non-Kohanim.

The Gemara cites Rabbi Akiba as deriving this prohibition from a different source. When the Torah introduces the prohibition forbidding those who are Tameh (impure) from eating Teruma, it says, “Ish Ish Mi’zera Aharon Ve’hu Sarua…” – “Any man from Aharon’s offspring who is stricken with leprosy…” (22:4). Rabbi Akiba understood the repetitious phrase “Ish Ish” as alluding to an Arel, such that an Arel is considered Tameh with respect to the consumption of Teruma. According to Rabbi Akiba, then, an Arel is forbidden from eating Teruma because he has the status of a Tameh.

The practical difference between this inference and the “Gezera Shava” mentioned above relates to the punishment for violating this prohibition. As noted by the Minhat Hinuch, according to Rabbi Akiba, it stands to reason that an Arel who eats Teruma would be liable to the punishment assigned by the Torah for eating Teruma in a state of impurity – namely, Mita Bi’ydeh Shamayim (death by G-d, as opposed to execution by the court). However, the Sefer Ha’hinuch writes that an Arel who eats Teruma is liable to Malkut. Consistent with his view, that this prohibition is derived from a “Gezera Shava,” the Sefer Ha’hinuch does not follow Rabbi Akiba’s position, that an Arel has the status of a Tameh. Therefore, if an Arel eats Teruma, he is liable not to the punishment for eating Teruma in a state of impurity, but rather to the standard punishment for violating a Biblical prohibition – Malkut.

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