MAKOS 15 - Dedicated by Eddie and Esther Turkel of Riverdale, NY, to commemorate the Hakamat Matzeivah of their cousin, Aharon David ben Mordechai Kornfeld
1)
(a)What is an example of a La'av she'Nitak la'Asei?
(b)What is a 'La'av she'Kadmo Asei'?
(c)Even assuming that a 'La'av ha'Nitak la'Asei' is Patur from Malkos, what does Rabah bar bar Chanah Amar Rebbi Yochanan say about a 'La'av she'Kadmo Asei'?
(d)What did Rabah (bar Nachmeni) say, when Rebbi Yochanan denied having said it?
(e)If the Pasuk to which Rabah referred is "vi'Yeshalchu min ha'Machaneh ... ve'Lo Yetam'u es Machaneihem", which Mishnah teaches us that 'La'av she'Kadmo Asei, Chayav'?
1)
(a)An example of a La'av she'Nitak la'Asei is Nosar (leaving over a Korban until after its time has expired ("ve'Lo Sosiru ... ve'ha'Nosar mimenu ... ba'Eish Tisrofu").
(b)A 'La'av she'Kadmo Asei' is - a La'av that is preceded by an Asei (that it is possible to perform before transgressing the La'av).
(c)Even assuming that a 'La'av ha'Nitak la'Asei' is Patur from Malkos, Rabah bar bar Chanah Amar Rebbi Yochanan rules that - a 'La'av she'Kadmo Asei' receives Malkos.
(d)When Rebbi Yochanan denied having said it - Rabah (bar Nachmeni) insisted that, not only did he say it, but that it had the support of a Pasuk and a Mishnah.
(e)The Pasuk to which Rabah referred is "vi'Yeshalchu min ha'Machaneh ... ve'Lo Yetam'u es Machaneihem", and the Mishnah which teaches us that 'La'av she'Kadmo Asei Chayav' - 'ha'Ba le'Mikdash Tamei' (our Mishnah).
2)
(a)Rebbi Yochanan nevertheless denied having said it, because of a Beraisa which discusses a case of 'Oneis she'Giresh'. What is 'Oneis she'Giresh'?
(b)Which Asei and Lo Sa'aseh respectively did he transgress?
(c)What did the Tana say there assuming the man is ...
1. ... a Yisrael?
2. ... a Kohen? Why is that?
(d)What problem did Rebbi Yochanan have with this Beraisa?
2)
(a)Rebbi Yochanan nevertheless denied having said it, because of a Beraisa which discusses a case of 'Oneis she'Giresh' - a man who divorces the girl that he raped and subsequently married.
(b)He transgressed the Asei of "ve'lo Sih'yeh le'Ishah" and the Lo Sa'aseh of "Lo Yuchal le'Shalchah Kol Yamav" (in Ki Seitzei).
(c)The Tana rules, assuming that the man is ...
1. ... a Yisrael - that he takes her back and is Patur from Malkos.
2. ... a Kohen - that he receives Malkos, and does not take her back (since a Kohen is forbidden to marry a divorcee).
(d)The problem that Rebbi Yochanan had with this Beraisa was - why a Yisrael should not receive Malkos, seeing as it is a La'av she'Kadmo Asei?
3)
(a)Ula solves Rebbi Yochanan's problem by pointing out that the Pasuk in Ki Seitzei did not need to write "ve'Lo Sih'yeh le'Ishah" by Oneis, because we could learn it from Motzi-Shem-Ra. How would we learn it from there?
(b)How would this solve the problem?
(c)But how can we apply the Asei after the La'av by Oneis from the Pasuk of Motzi-Shem-Ra, which applies before the La'av?
(d)How do we query the 'Kal va'Chomer' of Oneis from Motzi-Shem-Ra'?
3)
(a)Ula answers Rebbi Yochanan's Kashya, by pointing out that the Torah did not need to write "ve'Lo Sih'yeh le'Ishah" by Oneis, because we could learn it from Motzi-Shem-Ra - with a 'Kal va'Chomer', since Oneis performed an act, whereas Motzi-Shem-Ra did not.
(b)This would solve the problem - because then the Pasuk would be redundant, enabling us to turn it from a 'La'av she'Kadmo Asei' into a 'La'av ha'Nitak la'Asei', who receives Malkos.
(c)We can apply the Asei after the La'av by Oneis from the Pasuk of Motzi-Shem-Ra, even though it applies there before the La'av - due to the principle 'Im Eino Inyan' (if we don't need the Pasuk for itself, we use it for whatever it is needed for).
(d)We query the 'Kal va'Chomer' of Oneis from Motzi-Shem-Ra' however - in that Motzi-Shem-Ra has the Chumra of Lokeh u'Meshalem, whereas Oneis pays but does not receive Malkos.
4)
(a)We therefore reverse the Limud, suggesting that the Torah could have learned the Asei by Motzi-Shem-Ra (who has a Din of Lokeh u'Meshalem) from Oneis (who has not), and that we should now learn it 'Im Eino Inyan', as an Asei by Oneis, only after having transgressed, to exempt him from Malkos. How do we refute that suggestion too?
(b)So we try to apply "ve'Lo Sih'yeh le'Ishah" written by Motzi-Shem-Ra, to Oneis after having transgressed (to turn it into a 'La'av ha'Nitak la'Asei') because it is superfluous in its own context. Why is that?
(c)On what grounds do we refute this suggestion as well? What then might the Pasuk by Motzi-Shem-Ra be coming to teach us?
(d)And how do we refute even the suggestion that we might then learn the P'tur from Malkos by Oneis from Motzi-Shem-Ra with a 'Kal va'Chomer' or with a 'Mah Matzinu'?
4)
(a)We therefore suggest that we reverse the Limud, that the Torah could have learned the Asei by Motzi-Shem-Ra (who has a Din of Lokeh u'Meshalem) from Oneis (who has not), and that we should now learn it 'Im Eino Inyan', as an Asei by Oneis, only after having transgressed, to exempt him from Malkos. We refute that suggestion too however - on the grounds that we could not learn Motzi-Shem-Ra from Oneis in the first place, because Motzi-Shem-Ra did not perform an act like Oneis did (as we explained earlier).
(b)So we try to apply "ve'Lo Sih'yeh le'Ishah" written by Motzi-Shem-Ra, to Oneis after having transgressed (to turn it into a 'La'av ha'Nitak la'Asei') because it is superfluous in its own context - since they are already married.
(c)We refute this suggestion too however, because - in that case, we would rather apply the redundant prase to Motzi-Shem-Ra itself after having transgressed, to turn *it* into a La'av ha'Nitak la'Asei.
(d)And we refute even the suggestion that we might then learn the P'tur from Malkos by Oneis from Motzi-Shem-Ra with a 'Kal va'Chomer' or with a 'Mah Matzinu' - because whereas the latter did not perform an act (and that is why he is Patur from Malkos), the latter did.
5)
(a)How does Rava finally solve our problem by Darshening the words " Kol Yamav" (in the Pasuk "Lo Yuchal le'Shalchah Kol Yamav")?
(b)What did Ravin Amar Rebbi Yochanan say about that?
(c)Rav Papa asked Rava how Rebbi Yochanan can possibly ascribe Malkos to a case of 'La'av she'Kadmo Asei', since it is not like the standard La'av of Chasimah (which is the La'av from which we learn Malkos, and which is not attached to an Asei at all). What was Rava's reply?
(d)But do we not exempt a 'La'av ha'Nitak la'Asei' for that very reason?
5)
(a)Rava finally solves our problem by Darshening the Pasuk "Lo Yuchal le'Shalchah *Kol Yamav*" - which implies that, even after having divorced the woman he raped, he remains obligated to take her back (finally turning the 'La'av she'Kadmo Asei' into a 'La'av ha'Nitak la'Asei').
(b)And Ravin Amar Rebbi Yochanan said - exactly the same.
(c)Rav Papa asked Rava how Rebbi Yochanan can possibly ascribe Malkos to a 'La'av she'Kadmo Asei', since it is not like the standard La'av of Chasimah (which is the La'av from which we learn Malkos, and which is not attached to an Asei at all). To which Rava replied that - the fact that a La'av has as additional Asei does not render it different from any other La'av.
(d)We do indeed exempt a 'La'av ha'Nitak la'Asei' from Malkos for that very reason - but that is because there the Asei comes to qualify the La'av, to exempt it from Malkos.
15b----------------------------------------15b
6)
(a)Even a 'La'av ha'Nitak la'Asei' is subject to Malkos, either in a case of 'Bitlo ve'Lo Bitlo' or in a case of 'Kiymo ve'Lo Kiymo'. What is the definition of ...
1. ... 'Bitlo ve'Lo Bitlo'
2. ... 'Kiymo ve'Lo Kiymo'?
(b)What is the problem with Rava's D'rashah 'Kol Yamav be'Amod ve'Hachzer', if we say 'Kiymo ve'Lo Kiymo'?
(c)How do we solve the problem?
6)
(a)Even a 'La'av ha'Nitak la'Asei' is subject to Malkos, either in a case of ...
1. ... 'Bitlo ve'Lo Bitlo' - where, after having transgresses the La'av, one negates the possibility of fulfilling the Asei.
2. ... 'Kiymo ve'Lo Kiymo' - if the transgressor failed to fulfill the Asei after being ordered by Beis-Din to do so (see also Tosfos DH 'Hasam').
(b)The problem with Rava's D'rashah 'Kol Yamav be'Amod ve'Hachzer', if we say 'Kiymo ve'Lo Kiymo' is that - since he has to fulfill the Asei immediately after being ordered by Beis-Din to do so, 'Kol Yamav be'Amod ve'Hachzer' makes no sense.
(c)We solve the problem - by recalling that it is Rebbi Yochanan who exempts a 'La'av she'Kadmo Asei' from Malkos, and Rebbi Yochanan is the one who holds 'Bitlo ve'Lo Bitlo' (as we will now see).
7)
(a)In the Beraisa quoted by the Beraisa expert, 'Kol Mitzvos Lo Sa'aseh she'Yesh bah Asei, Kiyem Asei she'bah Patur, Biteil Asei she'bah, Chayav', what is the problem with the current text?
(b)What ought the Tana to have said?
(c)How does ...
1. ... Rebbi Yochanan therefore amend the text?
2. ... Resh Lakish amend it?
(d)What is the basis of their Machlokes?
(e)Why will warning the transgressor before he negates the Asei (in which case it will be a 'Hasra'as Vadai') not solve the problem?
7)
(a)The problem with the Beraisa quoted by the Beraisa expert 'Kol Mitzvos Lo Sa'aseh she'Yesh bah Asei, Kiyem Asei she'bah Patur, Biteil Asei she'bah, Chayav' is that - he begins with 'Kiyem' and ends with 'Biteil'.
(b)In other words, if the criterion for avoiding Malkos is the Kiyum of the Asei, then the Tana ought to have concluded 'Lo Kiyum ha'Asei, Chayav' (hence the expression 'Kiymo, ve'Lo Kiymo'); whereas if it is that it should not be negated, then he should have begun with 'Kol Mitzvos Lo Sa'aseh, Lo Biteil ha'Asei, Patur' (hence the expression 'Bitlo' ve'Lo Bitlo').
(c)Consequently ...
1. ... Rebbi Yochanan amends the text to read - 'Bitlo' ... 'Lo Bitlo'.
2. ... Resh Lakish amends it to read - 'Kiymo' ... 'Lo Kiymo'.
(d)The basis of their Machlokes is - whether 'Hasra'as Safek' (where there remains a doubt after the warning, that the sinner will be Chayav) is considered a Hasra'ah (Rebbi Yochanan) or not (Resh Lakish), since every case of 'Bitlo ve'Lo Bitlo' is a Hasra'as Safek.
(e)Warning the transgressor before he negates the Asei (in which case it will be a 'Hasra'as Vadai') will not solve the problem - because the Hasra'ah must be made before the sinner contravenes the La'av.
8)
(a)As a matter of fact, Rebbi Yochanan and Resh Lakish follow their own opinions in an independent Machlokes. What do they both agree, in a case where someone swears that he will eat a loaf of bread on the same day, and fails to do so by the time nightfall arrives?
(b)Rebbi Yochanan attributes this ruling to the fact that it is a 'La'av she'Ein bo Ma'aseh'. What does Resh Lakish say?
(c)According to which Tana are they arguing?
8)
(a)As a matter of fact, Rebbi Yochanan and Resh Lakish follow their own opinions in an independent Machlokes. They both agree, in a case where someone swears that he will eat a loaf of bread on the same day, and fails to do so by the time nightfall arrives that - he is Patur from Malkos.
(b)Rebbi Yochanan attributes this ruling to the fact that it is a 'La'av she'Ein bo Ma'aseh'; Resh Lakish - to the fact that it is a Hasra'as Safek (since he has the entire day to fulfill his Shevu'ah).
