1) "MA'ASER SHENI" AT THE END OF STICK PROTRUDING OUTSIDE OF YERUSHALAYIM
QUESTION: Rebbi Yochanan states that a person transgresses the prohibition against eating Ma'aser Sheni outside of Yerushalayim only after it was brought into Yerushalayim, became fit to be eaten there, and then was taken out of Yerushalayim. The Gemara challenges this ruling from a Beraisa in which Rebbi Yosi teaches that if a non-Kohen eats a fig which includes a part which has been separated as Terumah, Ma'aser, and Ma'aser Sheni, and he is standing in Yerushalayim, he is Chayav for two sets of Malkus: one for eating Terumah, and one for eating Ma'aser from which Terumas Ma'aser has not been separated. The Beraisa implies that if he ate it outside of Yerushalayim (before it ever entered the city), he would be Chayav for a third set of Malkus: for eating Ma'aser Sheni outside of Yerushalayim. Why, though, would he be Chayav if the Ma'aser Sheni had not yet entered Yerushalayim? The Gemara continues and says that if the inference from the Beraisa is that the fig was eaten outside of Yerushalayim after it had entered Yerushalayim and was taken out, then why does the Beraisa need to mention this Halachah? It is obvious that he receives Malkus for such an act.
The Gemara first answers that the Beraisa is teaching that one is liable for a third set of Malkus for eating Ma'aser Sheni even when the fig was in Yerushalayim only while it was still Tevel -- before the Ma'aser Sheni was separated. (This is because of the principle that "Matanos she'Lo Hurmu k'Mi she'Hurmu Damu," which teaches that the Ma'aser Sheni that will eventually be separated from the fig is considered to have already been separated.) The Gemara then discusses whether or not Rebbi Yosi agrees with the principle that "Matanos she'Lo Hurmu k'Mi she'Hurmu Damu," because, in another Beraisa, Rebbi Yosi seems to say that when one brings Tevel into Yerushalayim he may redeem the Ma'aser Sheni that he separates from that Tevel after it leaves Yerushalayim, which implies that while the fruit is still Tevel (before the Ma'aser Sheni has been separated), it is not considered Ma'aser Sheni at all.
Ravina suggests a second answer. Ravina explains that the Beraisa is discussing Ma'aser Sheni which is held at the end of a stick outside of Yerushalayim, while the other end of the stick is held by someone standing inside Yerushalayim. Ravina's answer also resolves a question that Rav Papa asked earlier (19b): if fruits of Ma'aser Sheni are held at the end of a stick outside of Yerushalayim by a person who is standing inside of Yerushalayim, may the fruits still be redeemed, or are they considered to have entered Yerushalayim already (and they may not be redeemed)?
The straightforward reading of Ravina's answer implies that when the Beraisa says that in Yerushalayim one transgresses only two Isurim for eating the fig, it refers to a fig that is not actually in Yerushalayim but that is held by someone standing in Yerushalayim at the end of s stick which protrudes outside of Yerushalayim. The Beraisa is teaching that the end of the stick is considered inside of Yerushalayim, and therefore one is not Chayav for eating the Ma'aser Sheni outside of Yerushalayim.
However, this interpretation of Ravina's words is problematic. If the Ma'aser Sheni at the end of the stick is outside Yerushalayim, then how can the Beraisa permit one to eat that Ma'aser Sheni? The Torah permits one to eat Ma'aser Sheni only inside Yerushalayim, but this Ma'aser Sheni is being eaten *outside* of Yerushalayim. Rav Papa's question is not related to eating Ma'aser Sheni, but rather to redeeming Ma'aser Sheni. The criterion that prohibits redeeming Ma'aser Sheni is the fact that the Ma'aser Sheni is being carried by someone who is inside Yerushalayim. Perhaps when it is at the end of a stick, it may be redeemed since the end of the stick is not considered part of the person's load that he is carrying (but rather it is considered as though it is resting on the ground, outside of Yerushalayim; see RIVAN).
This question clearly pertains only to redeeming Ma'aser Sheni and not to eating Ma'aser Sheni. Even if the Ma'aser Sheni is considered as though it is being carried at the end of the stick, one should be prohibited from eating the Ma'aser Sheni at that place since it is not physically within the walls of Yerushalayim.
(a) The RIVAN explains that Ravina is not describing the case in which it is permitted to eat Ma'aser Sheni, but the case in which the Beraisa infers that one receives Malkus because it is prohibited to eat Ma'aser Sheni outside of Yerushalayim. The Beraisa means that if the Ma'aser Sheni did not actually enter Yerushalayim, but it was held by someone standing in Yerushalayim holding a stick that protrudes outside of Yerushalayim, it is considered as if the Ma'aser Sheni entered Yerushalayim with regard to the Chiyuv Malkus for eating it outside of Yerushalayim. After that point, if the person holding the stick leaves Yerushalayim and then eats the Ma'aser Sheni, he is Chayav Malkus.
Why should holding the Ma'aser Sheni at the end of a stick be considered as though the Ma'aser Sheni has been brought into Yerushalayim with regard to one's liability for Malkus? The verse prescribes Malkus only after the Ma'aser Sheni reaches the point at which it may be eaten "before Hash-m" (Devarim 12:18). Since it may not be eaten while it is at the end of the stick (as mentioned earlier), the prohibition against eating it outside of Yerushalayim should not apply!
The answer might be that the verse which says that one must eat Ma'aser Sheni "before Hash-m" (Devarim 12:18), and which implies that if one is able to eat it there but then takes it out of Yerushalayim, he is prohibited to eat it outside of Yerushalayim, does not mean that the Ma'aser Sheni actually could be eaten at that moment, but that the Ma'aser Sheni was in a place where one was prohibited from redeeming it and, consequently, the only thing he could do with it is eat it in Yerushalayim. Since the Ma'aser Sheni at the end of the stick cannot be redeemed, it satisfies that condition and the prohibition of eating it outside of Yerushalayim takes effect.
According to the Rivan's explanation, the words of Ravina are not entirely clear, since Ravina is speaking in the present tense, "He is holding at the end of a stick...." According to the Rivan, neither the case of the Beraisa, in which one is permitted to eat the Ma'aser Sheni, nor the case in which one is prohibited from eating the Ma'aser Sheni discusses a situation in which the person is holding the Ma'aser Sheni at the end of a stick! Rather, the case in which one is prohibited from eating the Ma'aser is a case in which the Ma'aser once was hanging at the end of a stick and now it is being eaten outside of Yerushalayim.
(b) TOSFOS (DH Ravina) offers a similar explanation. However, Tosfos adds that even in the case in which the Ma'aser Sheni is hanging at the end of the stick, if a person eats it outside of Yerushalayim at that point he will be Chayav Malkus. That is, the Ma'aser Sheni is considered as though it has entered Yerushalayim with regard to causing the prohibition against not eating it outside of Yerushalayim take effect. However, it is considered outside of Yerushalayim with regard to whether one is permitted to eat the Ma'aser Sheni while standing in that place.
The Rivan rejects this approach, apparently because the verse implies that the prohibition against eating Ma'aser Sheni outside of Yerushalayim applies only after the Ma'aser Sheni leaves the state of being fit to be eaten "before Hash-m." Therefore, one will be Chayav only if the carrier of the stick goes outside of Yerushalayim. Once he leaves Yerushalayim, though, even if he returns to his former place he will transgress a Lav for eating the Ma'aser Sheni (which is outside of Yerushalayim).
(c) RABEINU CHANANEL (cited by the Ritva) explains that Ravina is not explaining the Beraisa that discusses the fig of Ma'aser. Rather, he is referring to a second Beraisa in which Beis Hillel says that fruit which passed through Yerushalayim after the "Gemar Melachah" may be redeemed. Ravina explains that the fruit itself did not pass through Yerushalayim, because if it did, one would be prohibited from redeeming it, since "Matanos she'Lo Hurmu" are considered to have been separated already. Rather, the person holding the fruit was standing inside Yerushalayim, and the fruit itself was at the end of a stick outside Yerushalayim. The Beraisa maintains that such fruit may be redeemed, since it does not consider such fruit as though it is bring carried in Yerushalayim (with regard to redeeming it). According to this explanation, Ravina's answer pertains to redeeming the fruit, which was the subject of Rav Papa's question. Ravina is resolving the question of Rav Papa leniently, l'Kula, and is saying that it is not considered to be in Yerushalayim (and thus it may be redeemed). As the ARUCH LA'NER and others point out, this seems to be the opinion of the RAMBAM (Hilchos Ma'aser Sheni 2:8).
(The other Rishonim reject this explanation, because the Beraisa which discusses fruit that passed through Yerushalayim would, according to this explanation, be omitting the main point of the Machlokes between Beis Hillel and Beis Shamai, namely, that the food is on the end of a stick, as the RITVA writes.)
2) THE SOURCE THAT ONE RECEIVES MULTIPLE SETS OF "MALKUS" FOR SHAVING HIS "PE'OS"
QUESTION: The Mishnah teaches that a person who makes five Seritos on his body because of a single Mes is liable for five sets of Malkus. The Beraisa adds that a person who makes five Korchos on his head because of a single Mes is liable for five sets of Malkus. In both cases this is derived from a verse.
The Mishnah also teaches that according to the Rabanan who argue with Rebbi Eliezer, a person is liable for two sets of Malkus for shaving off both Pe'os of the head, and five sets of Malkus for shaving off the five Pe'os of the Zakan (beard). (The Girsa of most Rishonim, and of the Dikdukei Soferim in the Mishnah, is that a person is "*Chayav* Al ha'Rosh Shtayim.") In these two cases, however, no verse is cited as a source to show that one is liable for multiple sets of Malkus. Why is no source necessary?
(a) The RIVAN explains that it is not necessary to derive from an extra verse that one is liable for multiple sets of Malkus in these cases. Rather, the fact that the verse refers to the Isur as "*Pe'as* ha'Rosh" implies that one is liable for a separate set of Malkus for each Pe'ah that he cuts. He adds that the same logic applies to Seritah and Korchah. When a verse is cited as a source for multiple sets of Malkus in the cases of Seritah and Korchah, the inference from the verse is not from the fact that there is an extra verse, but rather from the fact that the Torah calls each one an individual "Korchah" or "Seret." However, the Rivan concludes that this explanation is inaccurate ("Gimgum"), since the Beraisa implies that the Halachah is derived from an extra letter or word in the verse.
(b) The TOSFOS HA'ROSH and the RITVA in Shevuos (3a) write that some say that since the Torah lists the Isurim of Gilu'ach ha'Zakan and Pe'as ha'Rosh together with the Isurim of Seritah and Korchah (Vayikra 21:5 and 19:27), there is a Hekesh between them which teaches the laws of Pe'as ha'Rosh from the laws of Seritah. Just as one is liable for two sets of Malkus for making two Seritos, he is liable for two sets of Malkus for cutting two Pe'os.
The Tosfos ha'Rosh and Ritva reject this approach, because the Gemara cites separate verses for Seritah and for Korchah to teach this Halachah. If the Isurim can be learned from each other through a Hekesh (in Vayikra 21:5), then only one verse should be necessary.
The RA'AVAD, RASH MI'SHANTZ, and the TORAS KOHANIM (Parshas Kedoshim, Perek 6:3) defend this explanation. They explain that there is no genuine Hekesh between the two Isurim. Rather, the law that a person may be liable for multiple sets of Malkus for Gilu'ach ha'Zakan (for Kohanim) is derived from the fact that it is written (in Vayikra 21:5) between the verses of Korchah and Seritah, both of which have multiple sets of Malkus. The verse which teaches the Isur of Pe'as ha'Rosh and Gilu'ach ha'Zakan (for Yisraelim) precedes the verse of Seritah (in Vayikra 19:27), but the letter "Vav" at the beginning of the verse of Seritah teaches that there is a Halachah of Seritah which applies to Pe'as ha'Rosh and Gilu'ach ha'Zakan as well.
(c) TOSFOS and the RITVA in Shevuos (3a) explain that a verse is necessary only for Korchah and Seritah, but not for the Isur against shaving the Pe'os. The reason for this is the principle that one is liable for individual sets of Malkus for sinning with separate entities. For example, a Kohen Gadol who lives with five different Almanos is liable for five sets of Malkus (even though he received only one Hasra'ah), because the five women are "Gufin Muchlakin," separate entities of Isur (see Tosfos 20b, DH Lo Tzericha).
Each Pe'ah is defined by its different location, and therefore each one is considered a separate entity. A Seritah, in contrast, is not limited to any particular location. Therefore, a Seritah or a Korchah on any part of the head should be the same as a Seritah or Korchah on any other part of the head (and one should be liable for only one set of Malkus for making multiple cuts), if not for the verse that teaches that each Seritah or Korchah should be viewed as a separate entity.
3) MULTIPLE SETS OF "MALKUS" FOR MULTIPLE "KORCHOS"
QUESTION: The Beraisa teaches that when a person makes five Korchos for one Mes, he is liable for five sets of Malkus. This is derived from a verse. The Gemara asks that if the person was given only one Hasra'ah, how can he be liable for more than one set of Malkus? The Mishnah teaches that when a Nazir drinks wine all day but is warned with Hasra'ah only once when he starts to drink, he is liable for only one set of Malkus. The same should apply to the prohibition of Korchah; the person should be liable for only one set of Malkus for all of the Korchos that he makes. The Gemara answers that the case in which a person is liable for five sets of Malkus for Korchah is when he applied some depilatory agent on his fingers and then touched his head, simultaneously removing hair from five parts of his head immediately following the Hasra'ah.
Why does the Gemara compare a case of a Nazir who drinks wine to a case of a person who makes a Korchah on his head? In the case of Korchah, the Beraisa cites a verse which clearly teaches that a person is liable for five sets of Malkus for making five Korchos, even though one would have thought that he is liable for only one set of Malkus. In the case of a Nazir, for which no verse teaches that one is liable for multiple sets of Malkus, one receives only one set of Malkus. The case of Korchah is different because the verse teaches that one liable for five sets of Malkus!
ANSWERS: There are two approaches in the Rishonim to the Gemara's question. Both approaches are based on the premise mentioned earlier (see previous Insight): the reason why the Torah prescribes multiple sets of Malkus for multiple Korchos is that it views each Korchah as a separate entity. When a person sins with different entities, he can be Chayav for multiple punishments, even though he was warned with a single Hasra'ah (Kidushin 77b; see also Kerisus 2b, with regard to the obligation to bring multiple Korbanos for sinning with multiple Nidos b'He'elem Echad). This is known as "Gufin Mechalkin" (the separate entities of Isur require that he receive separate punishments). The Torah does not obligate multiple sets of Malkus for Korchah under all circumstances, but only where the Korchos can be viewed as different entities. This principle may be used in several ways to explain the Gemara here:
(a) The RIVAN (DH d'Osvinhu) implies that the Gemara seeks to prove that one is not liable for multiple sets of Malkus even for different "Gufin" when the sins with those different "Gufin" were not committed immediately at the time of the Hasra'ah. When a Nazir drinks wine all day, each cup that he drinks is a different "Guf," separate and distinct from the previous cup. Nevertheless, he receives only one set of Malkus -- for drinking the first cup. The subsequent cups of wine do not obligate him to receive Malkus since he did not drink them within "Toch Kedei Dibur" of receiving the Hasra'ah.
The Gemara answers that the verse which teaches that each Korchah is a separate entity is referring to a person who makes five different Korchos all within "Toch Kedei Dibur" of the Hasra'ah. This also seems to be the intention of the RAMBAN here.
(b) TOSFOS argues with the Rivan, based on the Gemara in Kidushin which implies that one can be obligated for five sets of Malkus for separate "Gufin" even if the person sins with the other "Gufin" after the time of "Toch Kedei Dibur" has passed since the Hasra'ah. According to Tosfos, apparently the cups of wine that the Nazir drinks are not considered separate "Gufin." What, then, is the question of the Gemara from the laws of Nazir to the Isur of Korchah? (See MAHARAM.)
It seems that Tosfos learns the question of the Gemara as follows. The Gemara's question assumes that the Beraisa obligates a person to receive five sets of Malkus even in a case where he makes five Korchos on his head which are adjacent to each other (meaning that they create one large Korchah, bald spot). The Gemara challenges this assertion from the laws of Nazir. The Gemara attempts to prove that when the Korchos are adjacent, they cannot be viewed as separate "Gufin," and therefore one should be liable for only one set of Malkus. The logic for this is based on the reason for *why* the separate cups of wine indeed are not considered separate "Gufin" to obligate the Nazir to receive a separate set of Malkus for each one. Apparently, the reason is that the Nazir's prohibition against drinking wine is not defined by what he does to the wine, but by the fact that he ingests the wine. After the wine is ingested, all of the wine is joined together and thus his acts of drinking are considered one single act of continued drinking. (The same applies to cutting the Nazir's hair. The Isur is not that the Nazir has damaged the hair, but that he has removed hair from his head. Since all of the hair has been removed from the same head, it is considered one continuous act of Isur.)
The Gemara asks, therefore, that even if each Korchah is viewed as a separate entity, then when the Korchos are joined to each other and they contribute to a single large bald spot they certainly cannot be viewed as separate "Gufin," and the verse would not punish the person with multiple Malkus.
The Gemara answers that the case in which the Beraisa prescribes multiple Malkus indeed is where the Korchos are not adjacent, but are separated by blocks of hair. That is when they are considered separate entities.
Tosfos points out that according to his interpretation, the Gemara did not need to emphasize that the five Korchos were done simultaneously. The same Halachah would apply if the Korchos were done consecutively. The Gemara merely wants to point out that there is a way to do five Korchos even simultaneously.
This also seems to be the intention of the Ritva.
4) EATING DATES IN A SIEVE
QUESTION: A Beraisa taught in the presence of Rav Chisda states that both the Makif and Nikaf receive Malkus. Rav Chisda objected to that ruling, saying, "Should one who eats dates in a sieve be punished with Malkus?" The Gemara explains that the Beraisa must have been taught by Rebbi Yehudah, who maintains that a "Lav she'Ein Bo Ma'aseh" is punishable with Malkus.
The RIVAN explains that Rav Chisda -- by comparing the case to one who eats dates in a sieve -- was asking what did the Nikaf do wrong for which he should be punished with Malkus? All he did was a "Lav she'Ein Bo Ma'aseh" for which one is not punished with Malkus.
What is the basis for Rav Chisda's comparison of a person who commits a "Lav she'Ein Bo Ma'aseh" to a person who innocently eats dates? Although a "Lav she'Ein Bo Ma'aseh" is not punished with Malkus, it certainly is an act prohibited by the Torah!
The Gemara in Sanhedrin (89b) uses the same expression in response to the statement that a Navi who suppresses his prophecy is punished with Malkus. The Gemara there asks, "Should one who eats dates in a sieve be punished with Malkus? Who can give Hasra'ah to him?" However, there the expression is more easily understood, since, in the eyes of the observer, the Navi seems to be doing a totally innocent and permitted act; the observer cannot know if the Navi is suppressing a prophecy. In contrast, in the case of the Gemara here, it is clear to the person who gives the Hasra'ah that the Nikaf is transgressing a prohibited act by allowing his hair to be cut. Why, then, should he be compared to a person who innocently eats dates?
(a) The RAMBAM (in Hilchos Avodah Zarah 12:1 and 7) writes that the Torah forbids one from shaving his Pe'os ha'Rosh and the Zakan. The Rambam adds that a man who allows someone else to cut his beard does not receive Malkus unless he does some action to assist the person shaving him. The RA'AVAD points out that even though the one being shaved is not Chayav Malkus unless he helps the person shaving him, he still transgresses a Lav since he willingly allows himself to be shaved. The Ra'avad reiterates this in the Rambam's list of Mitzvos at the beginning of Mishneh Torah (#43). The Rambam there writes that the Torah forbids an act of "Makif" and an act of "Mashchis." The Ra'avad writes that the Lav applies to the one who allows himself to be Nikaf and Nishchas as well. It appears that the Ra'avad understands that the Rambam's words imply that the Nikaf does not transgress even a Lav unless he helps the Makif, and this is what prompted the Ra'avad's comment. (The same ruling presumably applies to one who allows a Kesoves Ka'aka, Seritah, or Korchah to be done to his flesh. In all of these cases, the Rambam obligates the person to receive Malkus only if he assists the perpetrator to commit the act. See Hilchos Avodah Zarah 12:11 and 16.) The KESEF MISHNEH (Hilchos Avodah Zarah 12:1) indeed understands the Rambam in this way. He comments that the Nikaf cannot be considered as though he has transgressed a Lav since he has not done any action at all.
According to this understanding of the Rambam, the Gemara's comparison to eating dates is clear. Just as one is permitted to eat dates, one is permitted to passively allow his beard to be shaven (such as when a Nochri shaves him).
The Acharonim ask a number of questions on the Kesef Mishneh's explanation.
1. What does the Kesef Mishneh mean when he writes that one does not transgress a Lav since no act is involved? In every case of a "Lav she'Ein Bo Ma'aseh," no act is involved and yet one transgresses the Lav! For example, when one leaves over the meat of a Korban until the morning, he transgresses the Lav of "Lo Sosiru" (Vayikra 22:30) even though he does not receive Malkus because there is no action involved.
The NODA B'YEHUDAH (OC 2:76) answers that the verse which includes the Nikaf in the prohibition says "Lo Sakifu" (Vayikra 19:27) in the plural form. This implies that both parties to whom the Isur applies are actively involved in cutting the hair.
Another possible way to understand the Kesef Mishneh is as follows. Although passively allowing an act to happen can constitute a transgression of a Lav, it constitutes a transgression only when there is no other person to whom the Lav can be attributed. When one person is Makif another person, the Makif clearly is the perpetrator, and thus what the Nikaf does should not be considered a transgression.
2. The Acharonim ask that the Gemara here seems to contradict the explanation of the Kesef Mishneh. If no Isur is being transgressed, then why does Rav Chisda say that according to Rebbi Yehudah the Nikaf receives Malkus even though he does no action?
The Noda b'Yehudah (ibid.) answers that the intent of the Kesef Mishneh is as follows. Since it is illogical to say that the Nikaf transgresses an Isur, it is assumed that the verse obligates the Nikaf only when he does an action. However, according to Rav Chisda, the act of tilting one's head to help the Makif is not enough to be considered an action. (He also does not consider Megale'ach Es Atzmo, one who shaves himself, to be an action with regard to his transgression of being a Nikaf.) Therefore, Rav Chisda has no choice but to say that the verse prohibits a person from being a Nikaf even though he performs no action. Accordingly, Rebbi Yehudah maintains that he is Chayav Malkus for being a Nikaf. The Halachah, however, follows the view of Rav Ashi, according to whom the Nikaf transgresses the Lav only when he assists the Makif.
(b) The RITVA and ME'IRI explain that the Gemara refers to a person who eats dates which were collected in a manner in which a Lav was transgressed, obligating the transgressor to receive Malkus. For example, if a person eats dates that someone else picked on Yom Tov, Beis Din cannot give him Malkus for merely benefiting from the transgression committed by the person who picked the dates. Similarly, the person who allowed himself to be shaved cannot be punished with Malkus merely for benefiting from the transgression which the Makif performed, for which the Makif receives Malkus.
The Gemara's analogy, according to the Ritva, may be understood better based on the words of TOSFOS in Bava Kama (32a, DH Ihu). A woman is Chayav Malkus for having forbidden relations even though she was passive and did no action, because the Torah considers the fact that she derived Hana'ah from the prohibited act as if she did an act herself. It is because of this reasoning that one might think that a person who eats dates that were picked by someone else who transgressed an Isur should be Chayav Malkus. (In truth, the two cases are not comparable. The person who eats the dates does not benefit at the time of the prohibited act, nor does he benefit from the actual act itself but only from a later consequence of the act. That is why the Gemara says that he does not receive Malkus for benefiting from someone else's transgression.)
The Gemara's use of this analogy in Sanhedrin cannot be explained in this manner, because in that case the Navi who suppresses his prophecy is not benefiting from anyone else's transgression. The ME'IRI there suggests another explanation for the analogy in that Gemara. He explains that the Gemara's analogy refers to a person who eats wormy dates inside a sieve. Those who see him eating the dates do not know that the dates are wormy, and therefore they cannot give him Hasra'ah and thus he cannot be punished for his transgression.
(c) The RIVAN does not seem to learn like either of these explanations. Apparently, he understands that this expression means simply that the person does not deserve to be punished for what he was seen to do. If the Nikaf is innocently eating dates during his haircut, the only action that he has done is the eating of dates, which is not a transgression. Therefore, he is not liable for Malkus. That is the Gemara's point when it uses the analogy of a person eating dates.