When they asked Rav Sheishes whether Beis-Din was permitted to appoint a son to lash his father or to place him in Cherem, what did he reply?
We query Rav Sheishes' reply from a Beraisa 'u'Mah Mi she'Mitzvah Lehakoso, Mitzvah she'Lo Lehakoso; Mi she'Eino Mitzvah Lehakoso, Eino Din she'Mitzvah she'Lo Lehakoso'. What do we mean when we initially establish both sections where there is a Mitzvah?
How do we then explain 'Mi ...
... she'Mitzvah Lehakoso, Mitzvah she'Lo Lehakoso'?
... she'Eino Mitzvah Lehakoso, Eino Din she'Mitzvah she'Lo Lehakoso'?
To answer the Kashya, how do we establish the Beraisa? If the Tana is not making a distinction between a son and a stranger, then what distinction is it making?
When they asked Rav Sheishes whether Beis-Din was permitted to appoint a son to lash his father or to place him in Cherem, he replied - that a son should be no different from anybody else, seeing as, like him, they are forbidden to strike a fellow-Jew, yet the Torah's permits it when Kavod Shamayim (to punish the evildoers) is at stake.
We query Rav Sheishes' reply from a Beraisa 'u'Mah Mi she'Mitzvah Le'hakoso, Mitzvah she'Lo Le'hakoso; Mi she'Eino Mitzvah Le'hakoso Eino Din she'Mitzvah she'Lo Le'hakoso'. Initially we interpret 'Mi she'Mitzvah Le'hakoso' - to refer to anyone else other than a father, and 'Mi she'Eino Mitzvah Le'hakoso' - to a father (both in connection with a person who sinned [a Kashya on Rav Sheishes, who draws no distinction between the two]).
We then explain that 'Mi ...
... she'Mitzvah Le'hakoso, Mitzvah she'Lo Lehakoso' means - that where there is a Mitzvah to lash him, it is nevertheless forbidden to administer even one more stroke than the amount of lashes that he is due to receive.
... she'Eino Mitzvah Le'hakoso, Eino Din she'Mitzvah she'Lo Le'hakoso' means - that where there is no Mitzvah to strike him, one may certainly not strike a fellow-Jew.
We resolve the problem by establishing 'Mi she'Mitzvah Le'hakoso' - as pertaining to someone who sinned (irrespective of whether the Shali'ach Beis-Din is a stranger or the son), and 'Mi she'Eino Mitzvah Le'hakoso' as pertaining to someone who did not sin.
We query Rav Sheishes from a Beraisa that discusses a person who is being taken by Beis Din to be killed. What does the Beraisa state?
How does Rav Chisda interpret the Beraisa, to differentiate between the son and a stranger?
What problem does that create?
How will Rav Sheishes therefore explain the Beraisa?
What is the problem with Rav Sheishes' explanation?
We ask a question on Rav Sheishes from a Beraisa which states that 'If one is being taken by Beis Din to be killed and his son comes and hits him or curses him, the son is Chayav Malkus. However, if a person other than his son comes and hits him or curses him, that person is Patur from Malkus.'
To differentiate between the son and someone else, Rav Chisda interprets the Beraisa 'ha'Yotze Le'hareg u'Ba B'no ve'Hikahu ve'Kilelo Chayav ... Ba Acher ... Patur' - when they were trying to make the Chayav go, but he refused, and he holds that a son is not permitted to become a Sheli'ach Beis-Din to force his father to go.
This poses a Kashya - on Rav Sheishes, who does not differentiate between a son and anybody else.
Rav Sheishes will explain - that the Beraisa is not speaking in a case where the Chayav is refusing, but where they struck him Stam.
The problem with Rav Sheishes' explanation is - that if they struck him Stam, why is a stranger Patur?
We cannot answer that the stranger is Patur because it is as if he killed a dead man, because of another statement of Rav Sheishes. What did Rav Sheishes say about someone who shames a sleeping person?
What does that have to do with our case (of striking a man who is about to be killed)?
So we try to establish the Beraisa when he struck the condemned man a blow that caused a wound that is less than a Shaveh-Perutah. What is the problem with this answer? What did Rebbi Ami Amar Rebbi Yochanan say about Reuven who strikes Shimon a blow that causes a wound of less than a Shaveh-Perutah?
We cannot answer that the stranger Patur because it is as if he killed a dead man, because Rav Sheishes also ruled - that if someone shamed a sleeping person who subsequently died in his sleep, he is Chayav to pay ...
... because of the shame sustained by his children; sand that is equally applicable to someone who shamed a man who is about to be killed, even if he is considered like a dead man.
So we try to establish the Beraisa when he struck the culprit a blow that caused less than a Shaveh-Perutah. The problem with this answer is a ruling of Rebbi Ami Amar Rebbi Yochanan, who ruled that if Reuven strikes Shimon a blow that causes less than a Shaveh-Perutah - he receives Malkos (so why should the stranger be Patur)?
What is the problem with the suggestion that 'Patur' (in the Seifa) means Patur from paying (even though he receives Malkos)?
So we suggest that the stranger is Patur because the Torah writes "ve'Nasi be'Amcha Lo Sa'or". What do we learn from the word "be'Amcha"?
We now know why he is Patur for cursing him. But why is he also Patur for striking him?
But then it is unclear why the son is Chayav. What is wrong with the answer 'be'she'Asah Teshuvah' (like Rav Pinchas explained in a different context)?
The problem with then interpreting Patur (in the case of a stranger striking the culprit) to mean Patur from paying (even though he receives Malkos) is - that it would imply that the son is Chayav to pay (what, less than a Shaveh Perutah?)
So we suggest that the stranger is Patur because the Torah writes "ve'Nasi be'Amcha Lo Sa'or" - from which we learn that someone who curses a Jew who does not behave like a Jew, is Patur.
That is why he is Patur for cursing him. And we learn that he is Patur for striking him - from the Din of cursing (either by means of a 'Mah Matzinu' or from a 'Hekesh', seeing as they occur in Mishpatim close to one another (even though there is a Pasuk in between them).
But then it is unclear why his son is Chayav. The answer 'be'she'Asah Teshuvah' (like Rav Pinchas explained in a different context) is unacceptable - because then why is a stranger Patur.
We finally answer that the stranger is Patur because one is only Chayav for 'Mekuyam she'be'Amcha'. What do we mean by that?
Then why is a son Chayav?
That explains why he is Chayav for cursing him, but why is he Chayav for striking him, seeing as he would be Patur if he struck him after his death?
We finally answer that the stranger is Patur because one is only Chayav for 'Mekuyam she'be'Amcha', by which we mean - somebody who is destined to carry on living among the people, and not someone who is about to be killed.
A son is nevertheless Chayav - because this is no worse than after his father's death, where he is also Chayav.
That explains why he is Chayav for cursing him. And he is Chayav for striking his father, even though he would be Patur if he struck him after his death - because that is only due to the fact that technically, it is not possible to make a wound after death (not because the Torah precludes it).
In conclusion, we cite the opinion of Rabah bar Rav Huna. What does he say about a son striking or cursing (i.e. placing a Cherem on) his father? In which case is he permitted to do so?
Why will we accept the opinion of Rabah bar Rav Huna rather than that of Rav Sheishes?
In conclusion, we cite the opinion of Rabah bar Rav Huna, who holds - that a son can never be appointed a Sheli'ach to strike or curse (i.e. place a Cherem on) his father, unless he (the father) is a Meiosis.
We will accept the opinion of Rabah bar Rav Huna rather than that of Rav Sheishes - because it enjoys the support of a Beraisa.
In which regard is our Mishnah more strict with regard to cursing one's father than striking him?
Why is that?
What do we learn from the Pasuk in Kedoshim "Aviv ve'Imo Kilel", which is otherwise superfluous?
Why might we have thought otherwise?
Bearing in mind that Haka'ah is written near K'lalah, why does this Tana not learn Haka'ah from K'lalah with a Hekesh?
Our Mishnah is more strict with regard to cursing one's father than striking him - where the son does so after his father's death ...
... because one is only Chayav for striking a father when one causes a wound, and this is not possible when the father is already dead.
We learn from the Pasuk "Aviv ve'Imo Kilel", which is superfluous - that one is Chayav even for cursing parents after their death.
Besides learning a 'Binyan Av' from Makeh, we might have thought otherwise - by learning a 'Kal va'Chomer' from Makeh; because if Makeh is Patur after death, in spite of the fact that the Torah did not make 'she'Lo be'Amcha like ke'Amcha', how much more so Mekalel, which it exempts by she'Lo be'Amcha.
In spite of the fact that Haka'ah is written near K'lalah, this Tana does not learn Haka'ah from K'lalah with a Hekesh - because there is a Pasuk in between, as we discussed earlier.
What does Rebbi Yashiyah in a Beraisa, learn from "Aviv ve'Imo Kilel"? On what basis does he explain the Pasuk this way?
What does Rebbi Yonasan say to that? On what grounds does he consider this D'rashah redundant?
What is now the problem, according to Rebbi Yashiyah?
If Rebbi Yashiyah learns Mekalel Aviv ve'Imo le'Achar Misah from the Pasuk in Ki Sisa "Mekalel Aviv ve'Imo Mos Yumas", what does Rebbi Yonasan learn from there?
Rebbi Yashiyah in a Beraisa, learns from "Aviv ve'Imo Kilel" - that one is Chayav for cursing either parent (and it is not necessary to curse them both in order to be Chayav). And he explains the Pasuk this way - because now with this extra phrase, "Aviv" is closer to the first "Yekalel", and "Imo" next to the second "Kilel".
According to Rebbi Yonasan, this D'rashah is unnecessary, since "Asher Yekalel es Aviv ve'es Imo" implies either one or the other (as long as the Torah has not written "Yachdav" like it does by Sha'atnez).
The problem according to Rebbi Yashiyah is - from where does he know that one is Chayav for cursing his parents after their death?
If Rebbi Yashiyah now learns Mekalel Aviv ve'Imo le'Achar Misah from the Pasuk "Mekalel Aviv ve'Imo Mos Yumas", whereas Rebbi Yonasan learns from this Pasuk - to include the daughter of a Tumtum and Androginus (the Rambam appears to have the text 'to include a Tumtum and an Androginus') who strikes her father.
Why does Rebbi Yashiyah not learn bas Tumtum ve'Androginus from "Ish Ish (Asher Yekalel)", like Rebbi Yonasan?
According to the Beraisa, which Chumra does Makeh have over Mekalel?
Then why does our Mishnah (which discusses the Chumra of Mekalel over Makeh) not mention it?
Rebbi Yashiyah does not learn bas Tumtum ve'Androginus from "Ish Ish (Asher Yekalel)", like the Tana Kama of the Beraisa - because he holds 'Dibrah Torah ki'Leshon B'nei Adam' (the double Lashon is purely colloquial).
According to the Beraisa, Makeh has a Chumra over Mekalel - inasmuch as it applies even to someone who is not 'Oseh Ma'aseh Amcha'.
Our Mishnah (which discusses the Chumra of Mekalel over Makeh) does not mention it - because, he learns Makeh from Mekalel (either from a 'Mah Matzinu' or from the Hekesh (in spite of the intervening Pasuk).
One Beraisa permits cursing and striking a Kuti. What does a second Beraisa say?
Assuming that both Beraisos consider the Kutim true Geirim, over which point do they argue? Why does one Beraisa permit striking a Kuti and the other forbid it?
One Beraisa permits cursing and striking a Kuti. A second Beraisa - permits cursing him, but forbids striking him.
Assuming that both Beraisos consider the Kutim true Geirim, based on the fact that they later began to worship idols (and are therefore precluded from 'Oseh Ma'aseh Amcha') they argue over - whether we learn Haka'ah from K'lalah or not.
What alternative explanation do we try to offer as a basis for the Machlokes?
On what grounds do we refute this explanation? What does the Beraisa which permits both, say about a Kuti's ox?
What would be the Din in this regard, if the Kutim were Geirei Arayos (and not genuine Geirim)?
What must therefore be the basis of their Machlokes?
Alternatively, we try to base the Machlokes upon - whether the Kutim were true Geirim (the second Beraisa), or not (the first Beraisa), and both Tana'im hold in principle that 'we learn Haka'ah from K'lalah'.
We refute this explanation however - on the basis of the first Beraisa adding that the Dinim of Mazik (with regard to full payment for a Mu'ad and half for a Tam), apply to the Kutim just as they do to the ox of a fellow-Jew.
If the Kutim were Geirei Arayos (and not genuine Geirim) - then a Yisrael would be exempt from paying at all if his ox gored theirs, whereas they would have to pay full damages, even if a Shor Tam of theirs damaged the property of a Jew.
The basis of their Machlokes therefore - must be whether we compare Haka'ah to K'lalah or not (as we explained initially.
Regarding the Pasuk in Ki Seitzei "ve'Nimtza be'Yado" what does the Tana Kama of our Mishnah learn from the word ...
... "be'Yado"?
... "ve'Nimtza"?
What does Rebbi Yehudah add to this, based on the Pasuk there "ve'His'amer bo u'Mecharo"?
Rebbi Yishmael B'no shel Rebbi Yochanan ben Berokah includes a father who kidnaps his own son in the Din of Gonev Nefesh. What does Rebbi Yehudah say about someone who kidnaps a Chatzi Eved ve'Chatzi ben Chorin?
What do the Rabbanan of both Rebbi Yishmael B'no shel Rebbi Yochanan ben Berokah and of Rebbi Yehudah say?
Regarding the Pasuk in Ki Seitzei "ve'Nimtza be'Yado" what the Tana Kama of our Mishnah learns from the word ...
... "be'Yado" that - the kidnapped person must be taken into the kidnapper's domain.
... "ve'Nimtza" that - witnesses must actually see the kidnapped person in the kidnapper's domain.
Based on the Pasuk there "ve'His'amer Bo u'Mecharo", Rebbi Yehudah adds to this that - the kidnapper must also work with the kidnapped person before selling him.
Rebbi Yishmael B'no shel Rebbi Yochanan ben Berokah subjects a father who kidnaps his own son - and Rebbi Yehudah someone who kidnaps a Chatzi Eved ve'Chatzi ben Chorin, to the Din of Gonev Nefesh ...
... whereas the Rabbanan (of both Rebbi Yishmael B'no shel Rebbi Yochanan ben Berokah and of Rebbi Yehudah) - preclude both requirements from the Din of Gonev Nefesh.
We just cited Rebbi Yehudah, who requires the kidnapper to work with the person he kidnapped. What does the Tana Kama say, and what is their Machlokes?
What does Rebbi Yirmiyah ask about someone who kidnaps a sleeping person and sells him?
What is the second case that he incorporates in his She'eilah?
What sort of 'Imur' is Rebbi Yirmiyah talking about?
What is the outcome of Rebbi Yirmiyah's She'eilos?
We just cited Rebbi Yehudah, who requires the kidnapper to work with the person he kidnapped. In fact, the Tana Kama agrees with Rebbi Yehudah in principle (seeing as it is an explicit Pasuk), and they are arguing over - whether he requires a Perutah's-worth of work (Rebbi Yehudah) or not (thye Tana Kama).
Rebbi Yirmiyah asks whether someone who kidnaps a sleeping person and sells him - is Chayav, whether the Imur (work) he does with him is considered conventional work (as we will explain shortly) or not.
The second case that he incorporates in his She'eilah is - where he kidnaps a pregnant woman for her baby.
The 'Imur' referred to by Rebbi Yirmiyah is - leaning on the sleeping person, and using the woman together with her baby to block a draft.
The outcome of Rebbi Yirmiyah's She'eilos is - 'Teiku' (Tishbi Yetaretz Kushyos ve'Ibayos').
Having written ...
... "Ki Yimatzei Ish Gonev Nefesh ... ", why does the Torah need to add "ve'Gonev Ish u'Mecharo ... "?
... the above, why does the Torah then add the word "ha'Ganav" (in the Pasuk "u'Meis ha'Ganav ha'Hu")?
What does a second Beraisa (based on the first of the above Pesukim) say about someone who steals a Ger, an Eved Meshuchrar or a Katan?
The first Beraisa learns his Din from the 'Hey' in "ha'Ganav". What does the Sifri learn from "ha'Hu"? What does it come to exclude?
What does the second Beraisa say about a kidnapper who ...
... did not sell the person whom he kidnapped or who sold him without first taking him into his domain?
... sold him to his own father, brother or any other relation?
... kidnapped an Eved and sold him?
Having written ...
... "Ki Yimatzei Ish Gonev Nefesh ... ", the Torah needs to add "ve'Gonev Ish u'Mecharo ... " - to teach us that a woman kidnapper is Chayav, too.
... the above, the Torah nevertheless adds "u'Meis ha'Ganav ha'Hu" - to teach us that even a woman who kidnaps a woman is Chayav.
And a second Beraisa (based on the first of the above Pesukim) rules - that someone who steals a Ger, an Eved Meshuchrar or a Katan - is Chayav.
The Tana of the first Beraisa learns his Din from the 'Hey' in "ha'Ganav". The Sifri uses "ha'Hu" - to preclude someone who kidnaps an Eved.
The second Beraisa rules that a kidnapper who ...
... did not sell the person whom he kidnapped or who sold him without first taking him into his domain - is Patur.
... sold his own father, brother or any other relation - is Chayav.
... kidnapped an Eved and sold him - is Patur.