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(a) We cite Rebbi Yishmael's source (to give Malkos to both Chayvei K'risus and Chayvei Misas Beis-Din) as the Pasuk in Ki Savo "Im Lo Sishmor La'asos es Kol Divrei ha'Torah ha'Zos ... ve'Hiflah Hash-m es Makoscha". He extrapolates Malkos from - the word *ve'Hiflah* (which is similar to the Pasuk in Ki Seitzei (in connection with Malkos) Vehipilo ha'Shofet, Veikahu Lefanav).
(b) We nevertheless preclude Chayvei Asei from Malkos, initially based on Rebbi Avin Amar Rebbi Ilai, who states the principle that 'Kol Makom she'Ne'emar Hishamer, Pen ve'Al - Eino Ela Lo Sa'aseh (and here too, the Torah writes "Im Lo Sishmor La'asos").
(c) We initially think that Rebbi Yishmael learns from "La'asos" - that a 'La'v she'Ein bo Ma'aseh' is precluded from Malkos.
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(a) Finally however, we preclude a 'La'v she'Ein Bo Ma'aseh' from Malkos from the same source as a 'La'v she'Nitak la'Asei' - (a La'v which the Torah enables one to rectify by performing an Asei.
(b) We learn that a 'La'v she'Nitak la'Asei' does not receive Malkos from the La'v of Chasimah ('Lo Sachsom Shor be'Disho') which is a Binyan Av.
(b) We also preclude - Mitzvos Asei from the La'v of Chasimah.
(c) We learn specifically from that La'v more than from any other - because it is juxtaposed to the Parshah of Malkos in Ki Seitzei.
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(a) Rebbi Akiva learns from the Pasuk (in connection with Malkos) "K'dei Rish'aso" - that there are no two punishments for one sin (in which case someone who is Chayav Misas Beis-Din cannot receive Malkos).
(b) Rebbi Yishmael disagrees with this - because he confines that D'rashah to Misah and Mamon or Malkos and Mamon, but not to Misah and Malkos, since Misah is really an extension of Malkos ('Misah Arichta Hi').
(c) In that case, we ask, why Rebbi Akiva does not also preclude Chayvei Kareis from Malkos. His explanation (the fact that they can do Teshuvah will not suffice - since meanwhile, he receives Malkos even if they did not.
(d) When, to answer the Kashya, Rebbi Avahu says that the Torah specifically includes Chayvei Kareis in the Din of Malkos with the Gezeirah-Shavah of "le'Einei" "le'Einecha" - he means that we learn Chayvei K'risus (where the Torah writes "ve'Nichr'su le'Einei ... ") from Chayvei Malkos (where it writes "ve'Niklah Achicha le'Einecha").
(e) When Rebbi Akiva gave the fact that one can do Teshuvah as the reason (despite the fact that it is really a Gezeirah-Shavah') - he was only explaining why the Torah was more stringent by Chayvei Kareis than by Chayvei Misos Beis-Din (Hagahos ha'Bach).
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(a) We initially refute the Kashya of Rebbi Aba bar Mamal Kashya that, in that case, why not also learn "me'Einei" (written by Misas Beis-Din of Avodas-Kochavim) from "le'Einecha" (and include Misos Beis-Din in te Din of Malkos) - on the grounds that, since the two words differ in two details, we cannot learn one from the other.
(b) We overrule this Kashya however, with a statement of de'bei Rebbi Yishmael, who says - that, since the words "Shiyvah" and "Bi'ah" have the same basic meaning, we can learn one from the other via a 'Gezeirah-Shavah' ('Zu Hi Shiyvah, Zu Hi Bi'ah'). The fact that their grammatical format differs completely is irrelevant.
(c) Besides we ask, if we can learn "le'Einei" from "le'Einecha" (K'risus from Malkos) - we can also learn "me'Einei" from "le'Einei" (Misos from K'risos), where the two words only differ in one detail?
(d) 'Kiblah mineih Rebbi Shmuel bar Rav Yitzchak' might mean that Rebbi Shmuel bar Rav Yitzchak accepted Rebbi Aba bar Mamal's Kashya, and gave an answer. Alternatively, it means - that he heard the answer from Rebbi Avahu (against whom the Kashya was initially directed).
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(a) In any event, to answer Rebbi Aba bar Mamal's Kashya, we qualify the D'rashah 'Mishum Rish'ah Achas Atah Mechayvo, ve'I Atah Mechayvo Mishum Sh'tei Rish'ayos' - by confining it to punishments that are at the hands of Beis-Din (since that is what the Pasuk is talking about), but does not apply to those that are at the Hand of Hash-m (such as Kareis).
(b) Rava disagrees with the previous interpretation of the Machlokes Tana'im. Even Rebbi Yishmael will agree he says, that if they warned the culprit that he will be killed, he will not receive Malkos - because of the principle 'Mishum Rish'ah Achas Atah Mechayvo ... ' (as Rebbi Akiva explained).
(c) And they argue over - where he was warned for Malkos only, whether an Azharah that is written in the Torah for Misas Beis-Din is subject to Malkos (like every other Azharah in the Torah, Rebbi Yishmael) or not (Rebbi Akiva, since it is needed for the Chiyuv Misah).
(d) Nevertheless, according to Rebbi Akiva, Chayvei Kareis are subject to Malkos. We do not say there too, that the Azharah is needed for Kareis - because Kareis does not require an Azharah.
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(a) Rav Mordechai, quoting Avimi me'Hagrunya in the name of Rava, proves this from Pesach and Milah, which are Chayav Kareis even though there is no Azharah.
(b) We suggest that the La'v is needed for a Korban be'Shogeg (by Chayvei Kareis), and not for Malkos - since Pesach and Milah are not subject to a Korban be'Shogeg, presumably because the Torah does not write an Azharah.
(c) We refute this proof however - by attributing the P'tur from a Korban to the fact that they constitute only an Asei, whereas we learn from Avodas-Kochavim (one of the sources of Korban Chatas) that only a Lo Sa'aseh requires a Korban.
(d) Ravina reinstates our original interpretation of Rebbi Akiva, and he takes his statement, 'she'Im Asu Teshuvah, Beis-Din shel Ma'alah Mochlin Lahen' literally. And he answers the Kashya that we asked earlier 'Ha Lo Avud Teshuvah' - by pointing out that nevertheless, the fact that Teshuvah rescinds the Kareis makes its implementation uncertain. That is why it is not called 'Sh'tei Rish'ayos, and that is why he receives Malkos, too (even if he has not yet done Teshuvah).
Index to Review Questions and Answers for Maseches Makos