MAKOS 15 - Dedicated by Eddie and Esther Turkel of Riverdale, NY, to commemorate the Hakamat Matzeivah of their cousin, Aharon David ben Mordechai Kornfeld

[15a - 38 lines; 15b - 15 lines]

1)[line 1]אמרת?AMART?- did you say it?

2)[line 2]הא-לקים!HA'EL-KIM!- Indeed! (using "ha'El-kim," which is an oath, for emphasis)

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

4)[line 4]הבא למקדש טמאHA'BA LA'MIKDASH TAMEI- One who enters the Beis Ha'Mikdash while Tamei can still perform the positive command to leave the Beis Ha'Mikdash, and yet, this prohibition is listed in our Mishnah as being punishable by Malkus. This shows that a positive commandment suspends Malkus only when the sole function of the positive commandment is to remedy a transgression. If a positive commandment applies even without the prohibition being violated (such as one who became Tamei while already in the Beis ha'Mikdash), it is not a true case of transgression remedied by a positive commandment, and one receives Malkus.

5)[line 5]אונסONES (ONES - Rape)

(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 Me'anes (rapist) 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 SA'ASEH SHE'KIDMO ASEH HU, V'LILKEI- it is a prohibition preceded by a positive commandment, and he therefore should get Malkus. The Mitzvas Aseh to marry the victim of Ones applies not only after he marries and then divorces her, but initially as well. According to Rebbi Yochanan's original opinion that a prohibition preceded by a positive commandment is subject to Malkus, he should therefore get Malkus even after he remarries her. Since the Beraisa rules that the Me'anes avoids Malkus by remarrying her, it shows that a positive commandment, even though it precedes the prohibition, still remedies the transgression of divorce.

7)[line 11]ממוציא שם רעMOTZI SHEM RA

If a man marries a Na'arah (a 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 L'FANAV, TENEHU INYAN L'ACHARAV (IM EINO INYAN - Applying the Words of One Verse to the Subject of Another Verse)

(a)There are times when the Torah appears to teach that which is unnecessary, e.g. 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 necessary beforehand (to teach that the Me'anes must initially marry his victim), then apply it to the context of afterwards (to teach that he must remarry should he divorce her).

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- what [do we find] regarding Motzi Shem Ra, that he receives both Malkus and has to pay a monetary penalty. We would not be able to derive the obligation of a Me'anes to keep her as his wife, as he does not (initially) receive Malkus.

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

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 והחזרKOL YAMAV B'AMOD V'HA'CHAZER- all his days he is under the obligation to arise and remarry. Devarim 22:29 states that the Me'anes must marry his victim, and that he cannot divorce her "all his days." The Torah could have merely said he cannot divorce her. The addition of "all his days" is understood not as defining the duration of the prohibition, but rather that his divorce of her shall not be for "all his days," i.e., if he divorces her, he must remarry her.

13)[line 35]ללאו 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 a Mitzvas Aseh, any Lav that is correctable is not similar, and therefore is not punishable by Malkus.

14)[line 36]מגרע גרע?MIGRA 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 next entry, and Background to Bava Kama 84:8)

16)[last line]ביטלוֹ, ולא ביטלוֹ / קיימוֹ, ולא קיימוֹBITLO V'LO BITLO / KIYEMO V'LO KIYEMO (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 a a positive commandment connected to it unless he does something that makes it impossible for him ever to fulfill the positive commandment. Here, for example, if the Me'anes 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 sin 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.

(d)According to view of Kiyemo v'Lo Kiyemo, on the other hand, he must fulfill the positive commandment immediately upon being ordered to by Beis Din in order to avoid receive Malkus.

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

17)[line 1]מידי הוא טעמא אלא לרבי יוחנןMIDI HU TA'AMA ELA L'REBBI YOCHANAN- are we not trying to explain the reasoning of Rebbi Yochanan?

18)[line 9]בהתראת ספקHASRA'AS 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 of Shabbos that the person is about to transgress.

(b)Our topic involves cases where those administering the warning are uncertain whether performing the act will necessarily result in violation of the prohibition. Reish Lakish learns that an uncertain warning is invalid for administering Malkus.

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