1) GIVING "MALKUS" BASED ON A PROHIBITION THAT IS PUNISHABLE WITH "MISAH"
QUESTION: The Gemara teaches that when a person hits someone else and causes less than a Shaveh Perutah's worth of damage and embarrassment, he receives Malkus for transgressing the prohibition of "Lo Yosif" (Devarim 25:3). RASHI (DH u'Mah b'Makom) explains that although the verse discusses the Shali'ach of Beis Din who hits a convicted sinner more than the prescribed number of times, two other laws are learned from this verse (through a Kal va'Chomer): a person who is not appointed by Beis Din is prohibited from hitting another person and inflicting a wound, and a person is warned (with an Azharah) against hitting his parent and inflicting a wound, an act punishable with Chenek.
If the prohibition of "Lo Yosif" provides the Azharah to enable Beis Din to give Misah to one who hits his parent, then why should Beis Din be able to give Malkus to one who hits his fellow man and causes less than a Shaveh Perutah's worth of damage? There is a rule that any Lo Sa'aseh which is written as an Azharah for a sin which is punishable with Misas Beis Din cannot be used as an Azharah for administering Malkus ("Lav she'Nitan l'Azharas Misas Beis Din")! (TOSFOS DH Hikahu)
It seems that this prohibition is not considered a "Lav she'Nitan l'Azharas Misas Beis Din," because the Malkus is administered in a situation in which a person cannot be Chayav Misah -- that is, when one hits his fellow man and not his parent. The rule of "Lav she'Nitan l'Azharas Misas Beis Din" perhaps exempts a person from receiving Malkus when he sins in a way which could bring about a Chiyuv Misah. However, this does not seem to be the case, since the Gemara in Shabbos (154a) states that a person who performs an act of "Mechamer" on Shabbos and transgresses the prohibition of "Lo Sa'aseh Kol Melachah Atah... u'Vehemtecha" (Shemos 20:1) does *not* receive Malkus, because this prohibition is a "Lav she'Nitan l'Azharas Misas Beis Din" since it also prohibits a person from performing any of the 39 Melachos of Shabbos, which are punishable with death (Sekilah). It is clear from the Gemara there that even if a person does an act which cannot lead to a Chiyuv Misah, he cannot be punished with Malkus if the Lav which prohibits that act also prohibits another act which could lead to a punishment of Misah. (The RAMBAM (Hilchos Shabbos 20:1-2) seems to learn this Gemara differently; see MAGID MISHNEH there who suggests a forced explanation for the words of the Gemara in Shabbos according to the Rambam. According to the Rambam, the Gemara in Shabbos does not pose a question on the Gemara here in Sanhedrin, as the RADVAZ points out (Teshuvos #811).)
Another difficulty is that Tosfos in Shabbos (154a) proves that Malkus is not given even when a person's actions cannot lead to a punishment of death, since, otherwise, one who transgresses a sin which is punishable with death but receives Hasra'ah only for Malkus should receive only Malkus. It is clear, however, that there is no Malkus in such a situation. It is obvious that the rule of "Lav she'Nitan l'Azharas Misas Beis Din" applies even when the act cannot lead to a Chiyuv Misah. Why, then, is there a Chiyuv Malkus for hitting one's fellow man?
(a) TOSFOS (Shabbos 154a, end of DH b'Lav) differentiates between a Lav which is given mainly as an Azharah for the sin for which one is Chayav Misah and only incidentally includes other Halachos, and a Lav which is meant to include both the prohibition that leads to punishment with death and the prohibition that leads to Malkus. The Isur of "Lo Sa'aseh Melachah" is written mainly to prohibit an act of Melachah which a person does himself (and which will lead to a punishment of death) and not that his animal does, because the Torah says "Atah" ("you") before "u'Vehemtecha" ("your animal"). Therefore, Beis Din cannot administer Malkus for Mechamer, since the main point of the Lav is to provide an Azharah for Misas Beis Din. The same applies with regard to a person who was given Hasra'ah for Malkus when he transgressed a sin for which he could be Chayav Misah. The main point of the Azharah is to enable Beis Din to give Misah for that sin.
In contrast, in the verse of "Lo Yosif" the prohibition of "Lo Yosif" applies both to hitting a parent and to hitting another person. Therefore, according to Tosfos' hypothesis, Malkus *may* be given to a person who hits someone other than his parent.
This also seems to be the intention of Rashi there (DH l'Azharas), who emphasizes that there is no Malkus for Mechamer, since the main point of the Azharah is to punish with Misah.
(b) The Gemara in Kesuvos (32b) cites a verse that teaches that when one hits his fellow man and causes damage worth more than a Shaveh Perutah, he is obligated to compensate the victim, and he is not punished with Malkus. Perhaps this verse is also the source that teaches that there *is* a punishment of Malkus when a person hits his fellow man and is *not* obligated to pay money (such as when he causes less than a Shaveh Perutah's worth of damage). Such a conclusion is evident from the verse itself: if "Lo Yosif" would be a "Lav she'Nitan l'Azharas Misas Beis Din," it would not be necessary to teach that a person must pay for damages worth more than a Shaveh Perutah, since there is no other punishment that can be administered. (M. KORNFELD)
(c) The RADVAZ (Teshuvos #811) and the SANHEDRI KETANAH point out that the Gemara earlier says that although "Lo Yosif" is written only with regard to a Shali'ach of Beis Din who is appointed to administer Malkus (and it prohibits him from adding extra lashes), a Kal va'Chomer teaches that a person who is not a Shali'ach of Beis Din who hits another person, and a person who hits his parent, are included in the prohibition as well. According to this approach, the verse clearly is not written as an Azharah for Misas Beis Din, since the verse itself is not discussing a son who hits his parent, or one who hits another person for no reason, but rather it is discussing a Shali'ach of Beis Din who is administering Malkus on behalf of Beis Din.
The Azharah for the prohibition against hitting a parent is learned only through a Kal va'Chomer. Therefore, the Lav of "Lo Yosif" is not a "Lav she'Nitan l'Azharas Misas Beis Din."
How, though, can an Azharah (for hitting one's parent) be derived through a Kal va'Chomer? It should not be a valid Azharah for a different reason; the principle of "Ein Mazhirin Min ha'Din" teaches that an Azharah cannot be derived through a Kal va'Chomer!
Tosfos (DH Ha b'Veno) asks this question. He answers that the Kal va'Chomer is actually a "Giluy Milsa b'Alma" (see Insights to Nazir 44:1). This is what the Radvaz concludes as well. He writes that since it is a Giluy Milsa, and it is not written explicitly in the verse, learning the Azharah from the Lav of "Lo Yosif" poses no problem of "Ein Mazhirin Min ha'Din" or "Lav she'Nitan l'Azharas Misas Beis Din."
The SANHEDRI KETANAH, although he follows a similar line of reasoning as the Radvaz, rejects this final step. If there is a Giluy Milsa that the verse of "Lo Yosif" also refers to hitting one's parent, then it is considered as though the verse openly addresses a person who hits his parent, and, consequently, it should again be a "Lav she'Nitan l'Azharas Misas Beis Din." Perhaps the Radvaz means that whenever the *main* intent of the verse is to teach an Azharah for an Isur which is not punishable with Misah, then it is not a "Lav she'Nitan l'Azharas Misas Beis Din," and only when the verse refers to the two types of Isurim equally is it considered a "Lav she'Nitan l'Azharas Misas Beis Din."
(d) Tosfos points out an additional problem with the Kal va'Chomer which teaches the Azharah for one who hits his parent. According to the opinion that the sin of hitting one's parent is compared with the sin of cursing one's parent (85a-b), a person is Chayav for hitting his parent even when his parent has been sentenced to death by Beis Din and is a "Bar Ketala" (because of the verse, "Aviv v'Imo Kilel" (Vayikra 20:9), which teaches, through a Hekesh, that one is Chayav for hitting his parent as well). However, the law is that if a person hits someone else (who is not his parent) who was sentenced to death, he will *not* be Chayav (because of the verse "b'Amcha" (Shemos 22:27), as the Gemara concludes). Tosfos asks that if the verse of "Lo Yosif" -- which is stated with regard to hitting an unrelated person (who is not one's parent) -- applies only when the person is not a Bar Ketala, then how can a Kal va'Chomer teach an Azharah for hitting one's parent even when one's parent *is* a Bar Ketala?
Tosfos concludes that this is another proof that the Kal va'Chomer is not an ordinary Kal va'Chomer, but rather a Giluy Milsa, and it is considered as though it is written explicitly in the verse. According to this, the same two words "Lo Yosif" refer to two different types of Isur. One Isur is the Isur against hitting a live person (which applies to hitting anyone who is not one's parent), and the other Isur is the Isur against hitting one's parent, whether he is alive or dead (or sentenced to death). Perhaps the rule of "Lav she'Nitan l'Azharas Misas Beis Din" applies only to other Isurim which do not lead to Misah but which *do* involve the same type of prohibited act as the act which can lead to Misah. For example, in the case of Mechamer, the words, "Do not perform Melachah," prohibit letting one's animal perform the same type of Melachah that the man himself is prohibited from performing. In contrast, the additional Isur to which "Lo Yosif" refers (i.e. hitting one's parent) is a different type of Isur since it prohibits hitting even a dead person (who is one's parent). Therefore, the prohibition of hitting any other person is not considered a "Lav she'Nitan l'Azharas Misas Beis Din," since it is derived from a different reading of the verse. (This approach also answers the question that Tosfos asks earlier (63a, beginning of DH Mishum).)
2) THE OBLIGATION TO HONOR A PARENT WHO IS A "RASHA"
QUESTION: Rav Sheshes was asked whether a son may serve as an emissary of Beis Din to inflict Malkus or to issue a proclamation of Niduy upon his own father. Since one is forbidden to hit or curse his father, and one is punished with Chenek for doing so, perhaps a son is not permitted to be the emissary of Beis Din to punish his father. On the other hand, since it is a Mitzvah to punish an evildoer, perhaps these prohibitions do not apply in such a case. Rabah bar Rav Huna, as well as the Tana d'Vei Rebbi Yishmael, conclude that a son may not serve as an emissary of Beis Din to hit or curse his father (except in the case of a Mesis).
The Gemara's conclusion implies that the Halachic obligations of a son towards his father remain in force even when the father is a Rasha, an evildoer, who is Chayav Malkus or Niduy.
This conclusion, however, seems to contradict the Gemara earlier (85a) which rules that when one's father is a sinner and has not done Teshuvah, one is *not* bound by the prohibition against hitting his father. Why should d'Vei Rebbi Yishmael prohibit a man from serving as an emissary of Beis Din to hit his father if his father did not do Teshuvah?
(a) TOSFOS in Yevamos (22b, DH k'she'Asah) and the CHIDUSHEI HA'RAN (see also SHILTEI GIBORIM) explain that d'Vei Rebbi Yishmael refers to a father who *did* Teshuvah. If he did not do Teshuvah, his son indeed is to hit him, as the Gemara earlier concludes.
(b) The RAMBAM (Hilchos Mamrim 5:12-14) explains that even though a person is not Chayav Misah for hitting his father who is a Rasha, nevertheless he is prohibited from hitting his father. Moreover, the Rambam (Hilchos Mamrim 6:11) clearly states that a son is obligated to give honor to a father who is a Rasha.
Apparently, the Rambam understands that even though the prohibition against hitting one's father does not apply because the father is not "Amcha," the Mitzvas Aseh of "Kaved Es Avicha" still applies.
The SEMAG (Aseh 112) and the TUR (YD 240) question the ruling of the Rambam from the Gemara in Bava Metzia (62a). The Gemara there teaches that if a man receives a cow or other object as interest (Rivis) for a loan and then he dies, his sons should return the object out of respect for their father. The Gemara asks why should they have to return it? Their father was a sinner and therefore he is not included in "Amcha" such that they should be obligated to honor him! The Gemara answers that the requirement for them to return the object applies only when their father did Teshuvah in his lifetime (and died before he was able to return the object). The Gemara there implies that when the father did *not* do Teshuvah, the children are *not* required to honor their father at all.
The Acharonim suggest various ways to reconcile the Rambam's ruling with the Gemara in Bava Metzia.
1. The BEIS YOSEF answers that the Gemara in Bava Metzia does not exempt the children from returning the object because the father is a Rasha. Even if the father died as a Tzadik, they would not have to return it. The Gemara in Kidushin (32a) concludes that children are not required to give away their own money in order to honor their parents. The Gemara in Bava Metzia means that if the father did Teshuvah, the children should return the object because when the father repented and intended to return the object, it was considered as though he had already returned it. Consequently, it is not in his possession any more, and it does not go to his children as part of their inheritance.
This answer, however, does not fit well with the words of the Gemara, which says that the children are exempt from returning the object because their father is not included in "Amcha," as the TAZ points out.
2. As mentioned above, the Rambam (in Hilchos Mamrim 6:11) writes not only that a son is not allowed to hit or curse his father who is a sinner, he writes that a son is required even to *honor* his father who is a Rasha in a positive manner, such as by serving him food and drink and fulfilling his father's other requests. However, the MAHARAM SHIK suggests that this obligation is not due to the positive Mitzvah to honor one's father; rather, when the father requests of his son to feed him and the son does not fulfill the request, the father is disgraced. The Rambam requires a son to show honor to his father who is a Rasha only because the son may not *disgrace* his father.
In contrast, the Gemara in Bava Metzia discusses honoring one's father after the father is dead by returning an object the father took unlawfully. In such a case, failure to return the object would *not* cause disgrace to the father, since the father did not ask his son to return the object and since the father is dead. Thus, even according to the Rambam one will not have to show respect to his father who is a Rasha after the father dies, which is the case in the Gemara in Bava Metzia.
3. Perhaps, as mentioned above, the Rambam derives the obligation to respect one's father who is a Rasha from the Mitzvas Aseh of "Kaved Es Avicha." That verse, however, might be limited to honoring a father during his lifetime. The obligation to show respect to one's father after the father's death is learned only from the Lo Sa'aseh which teaches that a person is not allowed to curse his father even after his father's death. However, that Lo Sa'aseh includes the word "Amcha" and thus it does not apply when the father was a Rasha. Therefore, after the father's death the son might not be required to honor his father who was a Rasha, just as he is not punished with Misah for cursing his father who was a Rasha. (M. KORNFELD)
(c) The SEMAG (Lo Sa'aseh 119) and the TUR (YD 241) also write that a person may not curse or hit his father who is a Rasha, even though one is not punished with the death penalty if he does curse or hit him. However, unlike the Rambam, they write that a person has *no* obligation at all to honor his father who is a Rasha, based on the Gemara in Bava Metzia (Tur YD 240, Semag Lo Sa'aseh 113). That is, they distinguish between *honoring* a father who is a Rasha, which is not required, and *disgracing* a father who is a Rasha. Although one need not honor his father who is a Rasha, one may not disgrace him by hitting or cursing him, even as a court-appointed emissary.
The BEIS YOSEF (ibid.) explains that according to the Tur, the prohibition of cursing or hitting a father who is a Rasha is only mid'Rabanan, since mid'Oraisa no obligations of "Kavod" or "Mora" apply to a Rasha.
HALACHAH: The SHULCHAN ARUCH (YD 240:18) rules like the Rambam, that one is obligated not to hit, and even to honor, his father who is a Rasha. The REMA (YD 240:18, 241:4), however, rules like the TUR and says that although one may not hit his father who is a Rasha, one is not required to honor his father who is a Rasha. (See a novel approach to the ruling of the Rema in the SEDEI CHEMED, Erech Kibud Av.)
(The CHAZON ISH ruled that in our days, no person qualifies as a Rasha since there is no one fit today to give proper Tochechah. In practice, every question should be brought to a competent Halachic authority, as there are many factors that may affect the ruling in every individual situation.)
3) THE SEVERITY OF CURSING AND EMBARRASSING
QUESTION: The Mishnah states that a person who curses his father after his father's death is liable for punishment. In contrast, a person who hits the body of his father after his father's death is not punished. The Gemara derives this difference from a verse. What is the reasoning behind this difference?
RASHI (DH Midi) explains that hitting a father after his death is not prohibited because it does not create a wound, which is defined as a weakening of the body through loss of blood.
However, by the same criterion, the prohibition should not apply to *cursing* a father after death, since a curse is defined as making a pronouncement of wishing harm to the father, and after death he cannot be harmed. Why should one be liable for cursing his father after his death if his pronouncement does not harm his father?
ANSWER: The ME'IRI and the SEFER CHASIDIM (#576) explain that hitting the body is akin to hitting the ground and does nothing to the person. A curse, in contrast, affects the soul. Similarly, the TASHBETZ (in MILCHEMES MITZVAH) cites this Halachah as proof for Techiyas ha'Mesim. He explains that it goes without saying that a person who hits the corpse of his father performs a terrible act, and Hash-m certainly will redress the embarrassment which he caused to his father. A curse, on the other hand, clings to the soul which continues to live on in the World to Come. Therefore, the son must be punished for cursing his father as if his father was still alive.
In the same manner, the TORAS CHAIM in Bava Kama (90a) explains why the Gemara in Sanhedrin (58b) considers a person who slaps another Jew across his face (causing him embarrassment) like who has slapped the face of the Shechinah, but it does not say the same about a person who causes only physical damage (without embarrassment) to his fellow Jew. He states that the physical pain of being hit stays within the realm of the physical world. The pain of embarrassment, however, reaches the soul, which is rooted in the spiritual world. Therefore, the infliction of embarrassment upon a person is considered like slapping the Shechinah. The same applies to a curse. A curse causes embarrassment, and thus it affects the soul of the person. For this reason, a son is liable for cursing his father even after his father's death, because the soul still can experience embarrassment and pain from the curse. (Although the soul is not embarrassed by other things, it *does* experience pain from a curse.)
However, according to this approach, why should one who curses a deceased person who is not related to him *not* be punished? If the reason why a son who curses his deceased father is punished is that the curse affects the soul even after the father's death, then this should apply to cursing anyone and not just one's father! It must be that the strength of a curse directed at one's father is much stronger than a curse directed at an unrelated person. (Y. MONTROSE)
This is because the prohibition against cursing one's father is much more severe than the prohibition against cursing an unrelated person. It is so severe that it applies after the father's death. The prohibition against cursing any other Jew is not as severe as the prohibition against cursing one's father, and it does not affect the soul of the deceased so much that it must apply even after the person has died.