[a - 38 lines; b - 15 lines]

1)[line 1]אמרתAMART?- did you say it?

2)[line 2]האלקיםHA'ELOKIM!- Indeed! (using "ha'Elokim," which is an oath, for emphasis)

3)[line 2]וכתיבא ותנינאU'CHESIVA V'SANINA- and it is a case of a prohibition preceded by a positive commandment and is written in the Torah and taught in a Mishna that one gets malkus for violating the prohibition which the Gemara will discuss

4)[line 4]הבא למקדש טמאHA'BA LA'MIKDASH TAME- one who enters the Beis Ha'Mikdash tame can still perform the positive command to leave the Beis Ha'Mikdash. This shows that a positive commandment suspends malkus only when the sole function of the positive commandment is to remedy the transgression. If a positive commandment applies even without the prohibition being violated (which is our case), it is not a true case of transgression remedied by a positive commandment and one receives malkus

5)[line 5]אונסONES - ONES

(a)If a man rapes a girl (between the ages of 12 and 12 1/2), besides the applicable payments of Chovel b'Chaveiro, he must pay her father a fine of fifty Shekalim, as stated in Devarim (22:28). This amount is the equivalent of a dowry (Kesuvah). The man must also marry the girl and never divorce her, if the girl wishes to be his wife.

(b)The age mentioned above follows the ruling of Rebbi Meir, who states that a man who rapes a Ketanah (a minor) does not pay Kenas. According to the Chachamim, Kenas must be paid if the girl is between the ages of 3 and 12 1/2 years (Kesuvos 29a).

6)[line 8]לא תעשה שקדמו עשה הוא ולילקיLO TA'ASEH SHE'KEDAMU ASE HU V'LILKEI- it is a prohibition preceded by a positive commandment and therefore should get malkus. The din of ones applies not only after he marries and then divorces her. He should get malkus after he remarries her according to Rebbe Yochanan's original opinion that a prohibition preceded by the positive commandment is subject to malkus. Since the beraisa rules that the ones avoids malkus by remarrying her, it shows that the positive commandment, even though it precedes the prohibition, still remedies the transgression of divorce.

7)[line 10]מוציא שם רעMOTZI SHEM RA- If a man marries a Na'arah (12 year old girl who has attained physical maturity) who is a Besulah (a virgin who was never married in the past) and, after the Chupah is performed, he falsely accuses her of committing adultery and losing her virginity prior to the Chupah, he receives Malkos (lashes) for his slanderous speech (Devarim 22:18). He must also give her father 100 Shekalim and never divorce her against her will (ibid. 22:19).

8)[line 13]אם אינו ענין לפניו תנהו ענין לאחריוIM EINO INYAN LEFANAV TENEHU INYAN L'ACHARAV- IM EINO INYAN ... TENEHU INYAN

a) There are times when the Torah appears to teach that which is unnecessary, due to that which another similar teaching has already been taught. The rule of "Im Eino Inyan l'Zeh, Tenehu Inyan l'Zeh" may then apply. This means that "if it is unnecessary for what it appears to be teaching, apply it to a different, related teaching". Through this rule, Halachos can be derived from subjects that do not deal directly with that area of Halachah.

b) In our case, if it is not applicable beforehand to teach that the ones must initially marry his victim, then apply it to the context of afterwards to teach.

9)[line 15]ואכתיV'AKATI- and still ...

10)[line 16]מה למוציא שם רע שכן לוקה ומשלםMAH L'MOTZI SHEM RA SHE'KEN LOKEH U'MESHALEM- that which we say for motzi shem ra that one receives both malkus and has to pay a monetary penalty. In addition to the obligation to keep her as his wife, the rapist receives malkus and is fined.

11)[line 32]במה מצינוMAH MATZINU (Applying the Halachah of One Subject to a Similar Subject)

(a)One method of deriving Halachos is a "Mah Matzinu" - literally, "just as we have found". This entails comparing one area of Halachah to another, and applying what is stated clearly regarding one to the other. This method, however, is very vulnerable to "Pirchos" - questions. If any difference can be shown between the two subjects, then the comparison is negated.

12)[line 33]כל ימיו בעמוד והחזירKOL YAMAV B'AMOD V'HA'CHAZER- all his days he is under the obligation to arise and remarry. (Devarim 22:29) states that the ones must marry his victim and he cannot divorce her all his days. The Torah could have said he can't divorce her. The addition of "all his days" is understood not as defining the duration of the prohibition but rather the verse means that his divorce of her shall not be for "all his days" and that if he divorces her, he has to remarry her.

13)[line 35]לאו דחסימהLAV D'CHASIMAH- [it must be] similar to the prohibition against muzzling [an animal when it is threshing grain (Devarim 25:4)]. This prohibition is written immediately following the injunction to administer Malkus to one who has transgressed. Due to this proximity (Semuchin), we derive that one receives Malkus only for those prohibitions that are similar to it. Since the Lav d'Chasimah is not correctable by an Asei, any Lav that is correctable is not similar and therefore is not punishable by Malkus.

14)[line 36]מגרע גרעMIGRA GERA- (lit. should it be less?) Is it any less of a prohibition because there is an extra positive commandment? This is no worse than any other prohibition and therefore remains punishable by malkus.

15)[line 36]לאו שניתק לעשהLAV SHE'NITAK L'ASEH - (see Background to Yoma 85:26), etc. A prohibition that is implied by a positive commandment is never punishable by Malkus. In addition, in order to be liable he must transgress in front of witnesses after receiving a proper warning.

(b)For a further discussion of the topic of Malkus, see Background to Bava Kama 84:8.

16)[line 38]ביטלו ולא ביטלוKIYEMO V'LO KIYEMO / BITLO V'LO BITLO (LAV HA'NITAK L'ASEH)

(a)A Lo Sa'aseh she'Nitak l'Aseh describes a negative commandment (Lo Sa'aseh or "Lav") that is followed by a positive commandment (Aseh) instructing us what to do if the Lav was transgressed. Usually, the Aseh is an action that is performed to correct the Lav. For example, the Torah states, "Lo Sigzol" - "You shall not steal" (Vayikra 19:13); if someone transgresses this prohibition, the Torah tells him to correct his misdeed, "v'Heshiv Es ha'Gezelah" - "He shall return the stolen object" (Vayikra 5:23).

(b)At times the Aseh follows the Lav (e.g. Temurah - Vayikra 27:10 and Nosar) and at times it is found in a different Parshah altogether (e.g. Gezel).

(c)According to the view of bitlo v'lo bitlo, the transgressor does not incur malkus for a prohibition that has in it a positive commandment unless he does something that makes it impossible for him ever to fulfill it. Here, for example, the ones married and divorced his victim, and then prohibited himself from remarrying her by means of an unalterable vow. Once he made the vow, he has nullified the possibility of redressing his on by remarrying her, and he now gets malkus. Unless the transgressor actively nullifies the positive commandment, he has not fully violated the prohibition and cannot receive malkus. If on the other hand, he fulfills the positive commandment, he must fulfill it not to receive malkus.

15b----------------------------------------15b

17)[line 9]מידי הוא טעמא אלא לרבי יוחנןMIDI HU TA'AMA ELA L'REBBE YOCHANAN- are we not trying to explain the reasoning of Rebbe Yochanan

18)[line 9]בהתראה ספקB'HASRA'AH SAFEK - HASRA'AH SAFEK

(a)If a person transgresses a Lav for which the punishment is the death penalty or lashes, he can only be put to death or lashed if he has been given a proper Hasra'ah (warning). The warning must be, "Abstain, because this action is prohibited and you will be punished with the death penalty (or with lashes) for doing it," or something to that effect. The warning must specifically name the Lav or Av Melachah that the person is about to transgress.

(b)Our case is where there is an uncertain warning and Resh Lakish learns that an uncertain warning is invalid to receive malkus.

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