Siman 261

The obligation of milah is upon the father, as I have written. However, if the father did not circumcise him, the obligation is upon the beit din to circumcise him, as it is written: "Every male among you shall be circumcised" (Kiddushin 29a). But there is no obligation upon the mother, as it is written: "As God commanded him" — him and not her (ibid.). And it appears that there is an obligation upon the beit din even if the father is here, and he does not wish to trouble himself with his circumcision — the beit din is obligated to circumcise him. And it further appears that whether it is in its proper time or not in its proper time — the obligation is first upon the father and afterwards upon the beit din. And even though we learned the obligation of the father from the verses of milah in its proper time, nevertheless, it is not logical to say that afterwards there is no obligation upon the father. (And so it is implied from Rashi, Shabbat 132b, s.v. "beinoni," see there. And so it is implied from the wording of the poskim. And the term "milah" includes also periah, for one who circumcised but did not perform periah — it is as if he did not circumcise. Therefore, in a place where one is obligated to circumcise — he is also obligated to perform periah. And it is simple.)

It is a simple matter that in a place where there is no beit din and no father—the obligation is incumbent upon all of Israel in that place to circumcise him. For it is written: "Every male among you shall be circumcised." And it was said to all of Israel, except that when there is a beit din, the obligation is naturally more upon the beit din. And there is room to doubt if the beit din or the rest of the Israelites there are unable to circumcise by themselves, and must incur expenses to send for a mohel, whether they are obligated to incur expenses. For certainly the father, since the primary obligation is cast upon him, is obligated to incur expenses when he cannot circumcise by himself and there is no mohel in his place, like all the mitzvot. But the beit din, upon whom the primary obligation does not rest except when the father did not circumcise him, are they obligated in this or not? And there is somewhat of a proof for this from the fact that the Torah did not obligate the beit din in the redemption of the son when there is no father, but rather that he should redeem himself when he grows up—deduce from this that in a place of monetary loss, the Torah did not obligate others. Nevertheless, as a matter of law, it appears to me that the beit din are obligated even to spend money to circumcise him, for ultimately the Torah obligated them. And it is for them like all the mitzvot that are upon their bodies. And one does not learn from the redemption of the son, for the reasons of the Torah are hidden from us.

And if the beit din also did not circumcise him – he is obligated to circumcise himself when he grows up. And if he did not circumcise, he is punished with kareth, as it is written: "And an uncircumcised male who does not circumcise etc. that soul shall be cut off from its people." But the father and the beit din are not subject to the obligation of kareth, and only transgress a positive commandment. And there is one who wrote that before twenty years of age, since the Heavenly beit din does not punish those younger than twenty – they lash him and he is exempt, as we maintain: all those liable for kareth who were lashed – are exempt from kareth (Be'er Heitiv). And I do not understand this at all. First: if it is in our power to compel him to circumcise himself with any form of compulsion, are we not obligated to compel him, whether before twenty or after twenty? And if it is not in our power, then what shall we do? Furthermore: that which those liable for kareth who were lashed are exempt – applies to the kareth of eating or the desecration of Shabbat and the like, which he did once, and when he was lashed he was atoned. But regarding the kareth of milah, what use are lashes? For the prohibition of kareth has not departed from him until he circumcises. Therefore, there is no basis for these words. And besides this, lashes do not apply to milah and pesach, which are positive commandments, as we learned at the beginning of Keritot. And that which we learned at the end of Makkot: all those liable for kareth who were lashed are exempt from their kareth – this refers to the thirty-six instances of kareth in the Torah, which are negative commandments, and not to pesach and milah which are positive commandments. (And so it is implied in Tosafot Makkot 13b, starting with "Rabbi Yitzchak," who wrote that if so they are included in lashes etc., for in every negative commandment there are lashes etc. Thus far their words.)

The Rambam wrote in the first chapter of Milah, law 2: Every single day that passes for him from the time he grows up and does not circumcise himself—behold, he is nullifying a positive commandment. But he is not liable for kareth until he dies while remaining uncircumcised intentionally. Thus far his words. The explanation of his words appears to be that he means as follows: that he violates a positive commandment every day, even if he circumcises himself afterwards; nevertheless, every day that he did not circumcise—he violated a severe positive commandment, a positive commandment involving kareth. However, he is not liable for actual kareth until he dies, for how is it possible to judge him with kareth, perhaps tomorrow he will circumcise? And the liability for kareth is only when he did not circumcise at all all the days of his life. And so wrote our teachers, the authors of the Tosafot in Makkot: This is their wording: For it will never be clarified that he is subject to kareth until he dies, for he can always circumcise himself and be exempt from kareth. Thus far their words. Rather, there is a punishment of kareth upon him, and this is what the Rambam wrote, that he nullifies a positive commandment, meaning the positive commandment of kareth, and it is one and the same. And the Tur challenged him, and this is his wording: And I do not know why he is not under the prohibition of kareth until he passes away? Thus far his words. And in my humble opinion, the intention of the Rambam is also so, and the positive commandment is the prohibition of kareth. And the Ra'avad also challenged him similarly, and according to our words it settles well. However, there is one who challenged him that after his death what relevance does kareth have, for is kareth not only during life? (Kessef Mishneh in the name of the Ramak). And this is not a challenge, for certainly there are several types of kareth, as we see completely wicked people who violate several kareth prohibitions and grow old. Rather, perforce there are several types of kareth. And who has ascended to Heaven? And the Rambam in chapter eight of Teshuvah, law 5, wrote explicitly that the essence of kareth is in the World to Come, see there. (Also in the Commentary on the Mishnah, Shabbat, end of chapter nineteen, he explained so. But that which apparently seems from his words, that when he circumcises afterwards he rectifies also the positive commandment of the days that passed—his intention is not so, for he wrote so also regarding the father, and the father certainly did not rectify the positive commandment of milah in its proper time. Rather, his intention is that he rectified the mitzvah and circumcised himself, see there. And be precise and you will find it easy.)

One does not circumcise a person's son on the eighth day without his knowledge, for it is his own mitzvah. And it is not only necessary to say if he himself is able to be a mohel, but even if he is not a mohel – behold, he shall make another mohel his agent, and a person's agent is like himself. And even if several hours of the day passed and he did not circumcise, even though it is a mitzvah to be diligent regarding circumcision, nevertheless, we do not circumcise without his knowledge because of this. Unless the day passed and they did not circumcise him, for then on the next day the beit din circumcises him without his knowledge, and even against his will. And when they circumcised without his knowledge on the eighth day, and the father was able to circumcise by himself – the mohel is obligated to give him ten gold pieces, as I wrote in Choshen Mishpat siman 382. And it was likewise explained there that in this time we do not collect this fine, and he should only appease him. And we explained further there regarding these laws, see there. And one who is able to circumcise by himself – certainly he should not honor others to circumcise, and he should perform the milah and the periah. However, the metzitzah he may give to another, for there is no mitzvah of milah in metzitzah, but rather for the health of the child (see Shach in Choshen Mishpat ibid. subsection 4). However, if the other is a better mohel than him, or if he is anxious lest due to his nature he might cause damage, certainly he should give it to another to circumcise. And it appears to me a simple matter that when the father is on a journey, they should not wait for him at all on the eighth day in the morning, even though it is possible that he will arrive in a few hours. But the custom is not so, for they are accustomed to wait for the father even until midday. And in my humble opinion it is not so, for we do not delay the performance of a mitzvah. And know that that which we wrote, that on the next day they circumcise without the father's knowledge, certainly also on the eighth day close to evening they circumcise without his knowledge, but it is impossible to be exact, for perhaps the father will circumcise him close to evening, and automatically it will remain until the next day.

Our teacher, the Rema, wrote: A father who does not know how to perform milah, and there is a mohel here who does not want to perform the milah for free but only for payment—the beit din should rebuke this mohel, for this is not the way of the seed of Abraham. On the contrary, mohels seek out opportunities so that people will allow them to perform milah. And if he persists in his rebellion, and the man's means do not suffice to give him his payment, it is as if he has no father, and the beit din is obligated to circumcise him. Therefore, the beit din coerces him, since there is no one else to perform the milah. Thus far his words. And I heard of one large city, where Jews are many and mohels are few, and the mohels refuse because they have a loss of livelihood in this, that the city leaders hired one mohel who would not engage in any other livelihood, and he would receive from each milah such and such. And he is like a hired worker for the people of the city to circumcise their sons. And it is very proper, and especially in these times, may Hashem have mercy.