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

1) FORCING A MAN TO REMAIN MARRIED TO A WOMAN HE CLAIMS IS PROHIBITED TO HIM

QUESTION: The Gemara discusses the Halachos of a man who raped a woman and therefore is obligated to marry her (if the woman agrees). The Torah prohibits such a man from divorcing his wife. If a man who is a Yisrael divorces his wife in such a case, he may rectify his transgression by remarrying her (before she marries someone else). A Kohen, however, cannot rectify his transgression, because he is not allowed to marry a divorced woman. If he divorces his wife in such a case, since he cannot rectify his transgression, he is punished with Malkus. The Gemara compares these Halachos to the Halachos of "Motzi Shem Ra." In that case, a man claims that his wife was unfaithful to him during Erusin, the betrothal. If evidence is brought against his claim which proves his claim to be false, he may not divorce his wife. If he does divorce her, then the same Halachos that apply to remarrying one's divorced wife in the case of a woman who was raped applies in this case: a Yisrael may exempt himself from Malkus by remarrying her, while a Kohen cannot exempt himself from Malkus.

However, in the case of Motzi Shem Ra, these Halachos do not seem to be appropriate. The man claims that his wife committed adultery during Erusin. Torah law prohibits a woman to her husband if she committed adultery. Hence, according to the husband's claim, his wife is prohibited to him. How can a man who insists that he is forbidden to his wife be forced to remain married to her?

(Although she indeed is innocent, the man is forbidden to her because of the concept of "Shavyei a'Nafshei Chatichah d'Isura" -- a person may forbid things to himself even if they are not actually forbidden. Hence, by claiming that his wife committed adultery, the man forbids her to him.)

ANSWERS:

(a) The MINCHAS CHINUCH answers that the Torah refers to a case in which the husband retracts his claim that his wife is forbidden to him. Normally, a person may not retract what his says in front of Beis Din when he supports his statements with an action, such as bringing witnesses to court to back his claim. However, when there are witnesses who *refute* his claim, such as in the case of Motzi Shem Ra, in which the woman's father brings witnesses who attest to his daughter's innocence, the man *may* retract his claim.

In a case in which the main does not retract his claim against his wife, the Torah's commandment to marry her indeed does not apply.

(b) The BEIS YAKOV (in Kesuvos 9b) and the YESHU'OS YAKOV (EH 11) answer that this is a case of "Aseh Docheh Lo Sa'aseh," in which a positive commandment overrides a negative one. The Mitzvas Aseh in this case is that the man must marry the woman (Devarim 22:29). It overrides the prohibition against staying married to one's wife who committed adultery (Devarim 24:4; see RAMBAM, Hilchos Gerushin 11:14).

However, the Yeshu'os Yakov is not satisfied with this answer. When a woman is unfaithful to her husband, an additional Mitzvas Aseh prohibits him from living with her (Bamidbar 5:13). One Mitzvas Aseh cannot override both a Lo Sa'aseh and a Mitzvas Aseh.

The AHAVAS TZIYON answers this question and explains that the second Mitzvas Aseh is a result of her act of adultery ("v'Nisterah v'Hi Nitma'ah"). Since she did not actually commit adultery (but rather her husband merely imagines that she did), it is not as strong as an ordinary Mitzvas Aseh. Therefore, the *strong* Mitzvas Aseh (that they remain married) is able to override this weak Mitzvas Aseh (that they separate).

(c) These Acharonim suggest an additional answer. The RAN in Nedarim (90b) writes that a woman does not have the right to forbid herself to her husband by claiming that she committed adultery, because she has no right to take herself out of her husband's domain since she is bound by a contractual agreement to stay with him. According to the Ran, how can a husband make himself forbidden to his wife? He also is bound by a contractual agreement (in the Kesuvah) to remain married to her. It must be that since a husband has the power to divorce his wife whenever he wants, he also may forbid her to himself whenever he wants. This logic for a husband's ability to prohibit his wife to himself does not apply in a case of Motzi Shem Ra. In a case of Motzi Shem Ra, the Torah does not permit the husband to divorce his wife. Accordingly, he also cannot forbid her to himself since he is bound by a contractual obligation to remain married to her. (Y. MONTROSE)

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2) THE ARGUMENT BETWEEN REBBI YOCHANAN AND REISH LAKISH

OPINIONS: The Gemara records two arguments between Reish Lakish and Rebbi Yochanan which, it says, are dependant upon each other. The first argument involves a case in which a person transgresses a "Lav ha'Nitak l'Aseh." One opinion maintains that in order to be guilty of transgressing the Lav in the fullest extent, the transgressor must never perform the Mitzvas Aseh associated with it. If the transgressor eventually does the Mitzvas Aseh, then he rectifies his transgression. Therefore, as long as he can still perform the Aseh, he will never receive Malkus for transgressing the Lav ("Bitlo v'Lo Bitlo"). The other opinion argues that the person is in full violation of the Lav the moment that he transgresses, and he can receive Malkus for it. However, if he rushes to atone for his transgression he can avoid the punishment of Malkus ("Kiyemo v'Lo Kiyemo").

The second argument involves whether a Hasra'as Safek -- the warning given to a person who is about to commit a sin when it is not certain that the potential punishment will be applicable to his sin -- is considered a proper warning or not.

How are these two arguments dependant upon each other?

(a) According to the Girsa of the Gemara according to the text of RASHI and TOSFOS, it is Rebbi Yochanan who maintains "Bitlo v'Lo Bitlo" (in order to receive Malkus, the transgressor must entirely negate the possibility of ever fulfilling the Mitzvas Aseh), and who maintains that Hasra'as Safek is considered a valid Hasra'ah. The logic for the connection between these two Halachos is as follows. Rebbi Yochanan maintains that it is possible to receive Malkus for transgressing the Lav in a case of a "Lav ha'Nitak l'Aseh," but only in a case in which the transgressor entirely negates the possibility of ever fulfilling the Mitzvas Aseh. If a Hasra'as Safek would not be a valid Hasra'as, then how could such a transgressor ever be punished with Malkus? If the Hasra'ah was given at the time that he transgressed the Lav, it is a Hasra'as Safek (and not a valid Hasra'ah) because perhaps the transgressor will fulfill the Mitzvas Aseh and rectify his transgression retroactively. If the Hasra'ah was given later, at the time that the transgressor ensures that he can never fulfill the Mitzvas Aseh, it is not a valid Hasra'ah because a Hasra'ah cannot be given for a transgressor post facto. Therefore, it must be that Rebbi Yochanan -- who maintains "Bitlo v'Lo Bitlo" -- also maintains that a Hasra'as Safek is a valid Hasra'ah.

Reish Lakish, on the other hand, says that the Lav is fully transgressed at the moment the person sins. The transgressor merely can avoid punishment by doing the Mitzvas Aseh immediately. Since Reish Lakish explicitly rules that a Hasra'as Safek is not valid, the Hasra'ah must have been given at the time of the transgression of the Lav. This is compatible with the opinion of "Kiyemo v'Lo Kiyemo."

(b) According to the Girsa of the Gemara according to the text of the GE'ONIM, RABEINU CHANANEL, and the RAMBAN, it is Rebbi Yochanan who maintains "Kiyemo v'Lo Kiyemo" and Reish Lakish who maintains "Bitlo v'Lo Bitlo." How, then, are Rebbi Yochanan and Reish Lakish consistent with their respective views concerning Hasra'as Safek?

The RITVA explains that according to Rebbi Yochanan, who maintains that a Hasra'as Safek is a valid Hasra'ah, the transgressor can be warned with a proper Hasra'ah even though there remains a doubt about whether he will fulfill the Mitzvas Aseh. The view of Reish Lakish, on the other hand, involves a novel idea. Reish Lakish, who maintains that a Hasra'as Safek is *not* a valid Hasra'ah, maintains that the Hasra'ah may be given only when the person negates the possibility of ever fulfilling the Mitzvas Aseh (at which point the Hasra'ah is a definite Hasra'ah).

The underlying dispute between these two ways of understanding the Gemara (that of Rashi and that of the other Rishonim) is as follows. Rashi specifically mentions that it is not possible for a Hasra'ah to be valid when given post facto; a warning is effective only when given at the time the person does the sin. Rashi proves this from the Gemara in Shevuos (28b). The Gemara there discusses a case in which a person swears that he will not eat one loaf of bread if he eats the second loaf of bread. The Gemara says that when he eats the second loaf first and then is warned not to eat the first loaf, the Hasra'ah is a definite Hasra'ah, because if he now eats the first loaf he definitely will violate his Shevu'ah. If, on the other hand, he eats the first loaf first, then at that moment the witnesses can warn him only with a Hasra'as Safek, since he might not end up sinning (because in order to violate his Shevu'ah, he will have to eat the second loaf). The Gemara there explicitly calls this a Hasra'as Safek even though he definitely will transgress his Shevu'ah, retroactively, by eating the second loaf. Why, though, do the witnesses not give him Hasra'ah right before he eats the *second* loaf? At that moment, the Hasra'ah would be a definite Hasra'ah, since he definitely will violate his Shevu'ah retroactively by eating the second loaf! It must be that a Hasra'ah is invalid when given after the act of the transgression. This is the view of Rashi.

The other Rishonim refute this proof as follows. In the case of the Gemara here, the full transgression of the Lav depends on the nullification of the possibility to fulfill the Mitzvas Aseh. Since the Torah made the Lav dependant on the Mitzvas Aseh, the Mitzvas Aseh is considered an internal part of the Lav. Consequently, a Hasra'ah not to be Mevatel the Mitzvas Aseh is considered a Hasra'ah not to transgress the Lav. In contrast, the case in Shevuos involves a contingency made by a person. Eating the second loaf of bread was never prohibited by any intrinsic prohibition; the person merely made it a Tenai, a condition, on which he made his Shevu'ah dependant. He could have chosen not to make a condition with the second loaf, leaving that loaf completely permissible for him to eat. Since it is his own stipulation that makes the second loaf part of his prohibition against eating the first, the link between the two loaves is tenuous. It is reasonable, therefore, to say that a Hasra'ah given before he eats the second loaf will not be a valid Hasra'ah for the first loaf that he ate previously. (Y. MONTROSE)

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