QUESTION: The Gemara (3b) teaches that the source for the punishment of Malkus for one who curses his fellow Jew with the Name of Hash-m, even though the transgression involves no action, is the verse, "If you will not be careful to perform all the words of this Torah... to fear the revered and awesome Name, then Hash-m will make your blows extraordinary" (Devarim 28:58-59). The verse teaches that one who does not fear uttering the Name of Hash-m is deserving of Malkus. The Gemara asks that perhaps Malkus is given only to one who utters the Name of Hash-m in vain, but one who curses another Jew with the Name of Hash-m deserves a much greater punishment and does not receive Malkus.
The Gemara's answer to this question is unclear, particularly since there are numerous different Girsa'os and explanations. How does the Gemara answer its question?
(a) According to RASHI's Girsa ("v'Iy Ba'is Eima"), the Gemara is giving two answers to its question. (This is in contrast to the emendation of the BACH, #1.)
Rashi (DH Lo Sekalel) explains the first answer of the Gemara in two ways. According to his first explanation, the Gemara answers that since one verse (Vayikra 19:14, "Lo Sekalel Cheresh") is the source for both the prohibition against cursing one's fellow Jew without the Name of Hash-m and the prohibition against cursing one's fellow Jew with the Name, it is logical to assume that their punishments are also the same, and thus Malkus suffices for both. (See Insights to Shevuos 35:1.)
(b) In his second explanation, Rashi (citing Rabeinu Yitzchak ben Rabeinu Menachem) says that the verse, "Lo Sekalel Cheresh," refers only to one who curses a Jew with the Name of Hash-m. However, the Gemara in Sanhedrin (66a) expounds a Gezeirah Shavah that compares one who curses a Nasi (leader) without Hash-m's Name to one who curses a Cheresh (a deaf person, or any other person) with Hash-m's Name. Just as Malkus suffices for one who curses a Nasi, Malkus suffices for one who curses any other Jew with Hash-m's Name.
(c) The second answer of the Gemara, according to Rashi, is that every punishment of Malkus requires an Azharah. In order for Beis Din to be able to administer Malkus, the Torah must state explicitly that the act is prohibited with a Lav. Therefore, it is impossible to suggest that the verse, "to fear the revered and awesome Name," means that only one who utters Hash-m's Name in vain is punished with Malkus, because there is no Azharah in the Torah that explicitly prohibits such an act.
The SHITAH MEKUBETZES (#2) points out that according to Rashi's explanation, the second answer of the Gemara disagrees with the first with regard to whether Malkus needs an Azharah just as Misas Beis Din and the obligation to bring a Korban require an Azharah (Makos 13b). According to the first answer, Malkus requires no specific Azharah; if the Torah says that one will be punished with Malkus for doing a certain act, then one who commits that act receives Malkus, even though there is no explicit Lav in the Torah that prohibits that act. According to the second answer, Malkus requires a specific Azharah. (According to TOSFOS (DH Ha Lo Matzis), however, the Gemara's second answer agrees that Malkus does not require an explicit Azharah.) This point is the subject of dispute among Rishonim (see RITVA to Makos 4a, DH ha'Hu).


OPINIONS: The Gemara concludes that according to Rebbi Yosi b'Rebbi Chanina, Malkus is not given to one who separates Terumah before he gives Bikurim, or to one who separates Ma'aser before he separates Terumah, because the Lav in each of those cases is a "Lav she'Nitak l'Aseh," a Lav that is rectifiable with the performance of a Mitzvas Aseh.
The Gemara continues and questions the opinion of Rebbi Yosi b'Rebbi Chanina from a Beraisa. The Beraisa teaches that when a Kohen divorces the woman he raped (and was required to marry), he transgresses the prohibition of the verse, "He may not divorce her all of his days" (Devarim 22:29), and he is punished with Malkus. Even though this prohibition is a Lav she'Nitak l'Aseh since it involves the Mitzvas Aseh of "he must take her for a wife," the Kohen still receives Malkus.
What is the Gemara's question? In the case of a Kohen who divorces the woman he raped, he is not permitted to remarry her (since a Kohen may not marry a divorcee), and thus the Lav is not "Nitak l'Aseh"!
There are a number of ways of understanding the Gemara's question.
(a) RASHI offers two explanations. In order to understand Rashi's first explanation (DH Im Yisrael Hu Machzir), two introductory points must be clarified. The first point is that Rashi maintains that the Mitzvah to marry the woman one raped applies only to the initial act of marriage. That is, once the man marries her, he has fulfilled the Mitzvah, even if he later divorces her. His obligation to remarry her if he divorces her does not stem from the Mitzvah to marry her, but from the Lav that prohibits him from divorcing her. The Torah states, "He may not divorce her all of his days," which means that if he transgresses the Lav and divorces her, the divorce should not last for "all of his days," but rather he must remarry her immediately (see also Rashi to 5a, DH Lo Yuchal). (Even though the source for the obligation to remarry her comes from the Lav and not from the Aseh, since the Lav was also in effect at the moment that he first married her -- when the Aseh applied -- it is called a Lav ha'Nitak l'Aseh.)
The second point is that Rashi maintains that whenever a Lav is rectifiable with an Aseh, the Lav itself is intrinsically weakened and will never be punishable with Malkus. Even in a case in which the Aseh no longer applies, one who violates the Lo Sa'aseh will not receive Malkus.
The Gemara, therefore, is asking as follows. If it is true that a Lav that is rectifiable with an Aseh is not punishable with Malkus, then even a Kohen who divorces his wife (his Anusah) should not receive Malkus, because the Lav has been intrinsically weakened by the fact that it is Nitak l'Aseh (by being associated with an Aseh at the time that he married her in the first place). The Gemara answers that Kohanim are different; the Torah is strict with Kohanim and does not exempt them from Malkus for a Lav that is Nitak l'Aseh. (It appears that this stringency applies only to a Lav such as divorcing an Anusah, which relates to the Kohen's marital status and has the potential to harm the sanctity of the Kohen, and his descendants, if he must marry a woman whom he divorced.)
(b) Rashi's second explanation (DH Lishna Acharina) is based on the same two premises as the first, but with an additional premise. Rashi's second explanation is based on a different text in the Gemara earlier. According to that alternate text, the Gemara concludes that the rule that a Lav ha'Nitak l'Aseh is not punishable with Malkus applies only when the Aseh is equal to, or stronger than, the Lav. This means that when the Aseh applies to all people (and the Lav does or does not apply to all people), the Aseh is equal to (or stronger than) the Lav and the Lav is not punishable with Malkus. When, however, the Lav is stronger than the Aseh -- such as when the Lav applies to everyone while the Aseh applies only to certain people or in certain situations, the Lav is punishable with Malkus even though it is Nitak l'Aseh. This is the reason why Malkus is given for the Lav of Temurah; the Aseh does not apply to a Tzibur or to partners who jointly own a Korban. This understanding of the Gemara is expressed more clearly by RABEINU GERSHOM and by the SHITAH MEKUBETZES (#5, #7). (See also RASHASH.)
Accordingly, the Gemara asks why a Kohen receives lashes for transgressing the prohibition, "He may not divorce her all of his days." The Lav does not apply to everyone (if a Kohen divorces her, he cannot remarry her, and thus the divorce will necessarily be for "all of his days"), while the Aseh does apply to everyone equally (the Kohen must marry the woman he rapes just as a Yisrael must do so), and thus it should be considered a Lav ha'Nitak l'Aseh! To this the Gemara replies that Kohanim are different (as explained in (a) above).
(The text that appears in the last two lines of Rashi's commentary (DH Sha'ani Kohanim) apparently is a later addition, based on a misunderstanding of Rashi's commentary. If this indeed is this case, then Rashi's second explanation is consistent with the explanation of Rabeinu Gershom, as stated above.)