More Discussions for this daf
1. Korbanot today 2. Lav she'Ein Bo Ma'aseh

Daniel Gray asks:

end of today's daf says there is malkus for not immediately leaving the mikdash after contracting tumah therein, if one stayed there the shiur. The gemarah wonders if this applies eve when staying less than the shiur. Rashi explains that the person merely stays in his place, taking no action, after being warned to leave. The gemarah thus understands that the malkus-limitation rule applied to lav shein bo maaseh is NA here. Can you pls explain why that is so? Is it because lav shein bo maaseh doesn't mean that one merely does nothing, it only refers to talking but standing still IS considered a maaseh for this rule and standing still can be considered an action for certain Torah laws (e.g., not violating taking a shortcut thru a shul by standing still in it for a period as MB says) but not for other areas such as 'shev veal tassah' where standing still would not constitute an action.

Daniel Gray, TORONTO

The Kollel replies:

1) There is an action involved here. Tosfos (17a, DH Tzarich) writes that the scenario involved is where the person had made himself Tamei b'Shogeg.

2) The Minchas Chinuch (363:16) writes that a Tamei person who entered the Azarah is liable for the entry, because this is considered a Lav she'Yesh Bo Ma'aseh since entering the Azarah was a forbidden action. The Minchas Chinuch compares this to wearing Sha'atnez clothing. Somebody who wears Sha'atnez receives Malkus (Rambam, Hilchos Kilayim 10:30), because the action involved was putting on the suit, and when he does not remove the suit when warned to do so, he then receives malkus even if one would consider the failure to take off the clothing as not constituting a Ma'aseh.

3) The Mishneh l'Melech (Hilchos Bi'as ha'Mikdash 3:21) discusses at length cases where there is an action at the beginning but no action afterwards (see Minchas Chinuch 266:3).

4) After further research, I found other answers to your question:

Tosfos (17a, DH O Ein writes) in one of his answers that the question of the Gemara of whether one receives Malkus for staying in the Beis ha'Mikdash applies only according to the opinion that one recives Malkus for a Lav she'Ein Bo Ma'aseh. According to the opinion that one does not receive Malkus for a Lav without an action, one does not receive Malkus for merely staying inside.

5) In a different answer, Tosfos writes that when the Gemara refers to Malkus, this does not mean actual Malkus, but rather that there is an "Isur Malkus." Staying inside is something that *should* deserve Malkus, but since there is no action there is no Malkus in practice. Still, though, the prohibition is of the severity that would receive Malkus if there would be a Ma'aseh involved.

6) According to the above two answers of Tosfos, one does not say that since he entered with an action, remaining inside is considered an action, as I wrote in the first answer above (2). However, there are other Rishonim who give this answer. See Ritva to Makos 21b, who writes that a Nazir who entered a cemetery while inside a wagon, from which the roof was then removed, is liable for remaining inside, even though this act (the removal of the roof) involved no action on his part, since entering the cemetery did involve an action.

7) However, according to all of the answers mentioned above, no one says that merely standing there could be considered an action, even without any prior action. However, I have found a source that one could possibly receive Malkus for merely standing there. This is from the Rambam in Hilchos Melachim 5:8, concerning living in Egypt. One is allowed to travel to Egypt for business reasons. The prohibition against living in Egypt is only if one lives there permanently. The Rambam writes that one does not receive Malkus for living permanently in Egypt, because entering the country was permitted, and if one then decides to stay there permanently, this is considered a Lav without a Ma'aseh.

8) See the Yalkut Me'am Lo'ez to Devarim 28:68 (DH v'Kasav ha'Rambam) who writes that the Mefarshim question the Rambam from the Din in Hilchos Nezirus that someone who entered with permission (for instance, before he became a Nazir) a shelter containing a dead body receives Malkus for remaining there after he became a Nazir. The reason he receives Malkus is that he could have left the Ohel ha'Mes, so his failure to do so is considered a Ma'aseh. The Yalkut Me'am Lo'ez answers that he does not receive Malkus because it is a Hasra'as Safek, because we do not know what is in his mind; he might not intend to remain permanently in Egypt.

9) One sees from the question that the Mefarshim ask on the Rambam that merely failing to leave Egypt should be considered a Ma'aseh, even though one had a Heter to enter the country.

10) It should just be pointed out that the Mishnah Berurah does not actually say that standing still in a shul avoids the prohibiton of taking a short cut. The Shulchan Aruch (Orach Chayim 151:1) writes that if one needs to enter a shul in order to call someone, he should learn something in the shul first. If a person does not know how to learn, he should merely sit there, because sitting in a shul is also a Mitzvah, as we say "Ashrei Yoshvei Veisecha."

Kol Tuv,

Dovid Bloom