Hello rav.
I have 3 points I would like to clarify.
1) Please correct me if I'm wrong but how I understood the gemara, rav yosef holds that "lo yavo" would teach that in a case of tumah bechiburin, one who enters a ohel, even while already tamei, is chayav a second set of malkus. Is this correct?
2) According to Mar bar rav ashi, who holds the case according to rabbah could be where one entered the house while the guy was a goses and then died, he is Chayav for lo yavo as well. From Tosfos "veha lo efshar", which states that entering backwards is not considered "biyah", it's mashma that to be chayav for lo yavo, it has to be a normal "coming in" into the ohel. The case of goses should not make one chayav since he isn't "coming in" to the room with a mes, he is just waiting there till he dies so why is that considered as violating lo yavo?
3) In the above case, how would the witnesses even warn him about lo yavo if the isur is not in existence yet and once again, he is already inside the ohel and should not be violating lo yavo.
Thank you
Elisha Yagudayev, Flushing , United States
Elisha, it is great to hear from you again!
1)
a) This is correct, but, in fact, in the case you give from 42b of Tum'ah b'Chiburin, where somebody enters a tent while already Tamei, this would be liable to a second set of Malkus even according to Rabah and not only according to Rav Yosef.
b) In other words, Tum'ah b'Chiburin is where a person is actually touching Tum'ah and then -- while he is still touching it -- he becomes Tamei to something else. So your case would be where somebody holding a corpse entered a tent where another corpse is to be found. This is what Rashi writes (three lines from the top of 42b) according to the opinion of Rabah, that if he became Tamei to a Mes and then entered a tent which contained another Mes, he would be liable for two sets of Malkus. This is because it is not Tum'ah and Tum'ah which, according to Rabah, is Chayav only once, but rather it is Tum'ah and Bi'ah, which is Chayav twice.
c) One sees that Rashi is referring to Tum'ah b'Chiburin even according to Rabah, because in the next paragraph Rashi writes, "If he became Tamei to a Mes and then touched another Mes while he is still touching the first Mes... he is Chayav only once." We see that the reason he is Chayav only once is because it is Tum'ah and Tum'ah. Since this is all the same Isur, he is Chayav only once, but if it would be Tum'ah and Bi'ah he would be Chayav twice even though it is Tum'ah b'Chiburin; i.e., he is still touching the first Mes.
d) All of this is according to the opinion of Rabah, and according to Rav Yosef he is also Chayav twice even for Tum'ah b'Chiburin. We see this from the fact that Rav Yosef said that Tum'ah and Tum'ah is also Chayav twice. Abaye questioned Rav Yosef from the Beraisa that says that the Kohen with a Mes on his shoulder who is then handed another Mes is Chayav only once. Tosfos (DH A'L) writes that Rav Yosef says that this Beraisa is opposed to the Mishnah that one is Chayav for each one. Tosfos (DH Ela) writes that therefore one has to reject the Beraisa in favor of the Mishnah, and he is Chayav twice.
e) Abaye then answers that one does not have to discard the braisa because there is no dispute between the Mishnah and the Beraisa. The Beraisa refers to Tum'ah b'Chiburin, so he is Chayav only once. The Mishnah refers to Tum'ah she'Lo b'Chiburin, so he is Chayav twice.
f) However, Rav Yosef does not agree with Abaye's distinction between Tum'ah b'Chiburin and Tum'ah she'Lo b'Chiburin, but instead holds that in both cases he is Chayav twice. Therefore, Rav Yosef will hold that someone who is carrying a Mes and enters an Ohel where a different Mes is to be found is Chayav twice.
2) To answer your second question, I will try to answer your third question first, in the hope that it will help us understand the answer to your second question.
3) See the Tosfos ha'Rosh, printed in the margin of 43a, who gives two answers to this question:
a) Mar bar Rav Ashi sides with the opinion that Hasra'as Safek is considered a valid Hasra'ah (see Makos 15b). If one warns someone not to do a certain action -- even though it is doubtful at the moment whether his doing the action will result in a prohibition being transgressed -- if it transpired later on that the prohibition was transgressed as a result of the warning being ignored, the perpetrator is liable for Malkus. This is because the warning not to put himself into a position where he might transgress is considered a valid warning.
Therefore, when witnesses warn him not to enter a house where a Goses is present, he is doing a risky thing by ignoring their warning, because there is a strong possibility that the Goses will die and the Nazir will become Tamei. If the Nazir did enter the house and the Goses did die when the Nazir was inside, he receives Malkus for the action of entering the house; the action of entering the house is considered a transgression if afterwards the Goses dies.
b) Most Gosesim die (see Kidushin 71b). Therefore, since the Torah always follows the majority, it follows that entering a house where a Goses is present is the same as entering a house where a Mes is to be found. One receives Malkus for the very act of entering the house, even if the Goses survives.
c) Now let us go back to your second question. The Kesef Mishneh (Hilchos Evel 3:7) explains according to the first answer I cited above in the name of the Rosh. The warning that the witnesses gave was: "Be careful not to enter this Ohel in case this Goses should die when you are inside!"
The Kesef Mishneh writes that even though this is a Hasra'as Safek, the Rambam (Hilchos Sanhedrin 16:4) rules that a Hasra'as Safek is a valid Hasra'ah.
Kol Tuv,
Dovid Bloom