THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
Ask A Question about the Daf
MAKOS 11-15 - Ari Kornfeld has generously sponsored the Dafyomi publications for
these Dafim for the benefit of Klal Yisrael.
1) BRINGING A KORBAN BASED ON A "KAL V'CHOMER"
OPINIONS: Rebbi Akiva relates that he asked Raban Gamliel and Rebbi Yehoshua
how many Korbanos must a man bring when he unintentionally had relations
with his sister. There are three separate verses in the Torah for the Isur
of having relations with one's paternal half-sister, one's maternal
half-sister, and with one's full sister (who shares the same parents). Does
this man have to bring three Korbanos, or is his act considered one general
They answered that although they had not heard the answer to this exact
question, they heard a similar Halachah which can answer it. If a man had
relations with five women who were all Nidos without knowing about the
prohibition against having relations with a Nidah, he must bring five
separate Korbanos. Applying the logic of a Kal v'Chomer, we can extend this
Halachah to Rebbi Akiva's case and say that here, too, one must bring three
Korbanos: If, in the case of having relations with five women who are
Nidos -- where the man is considered to have transgressed five Isurim
simultaneously because of his single lack of knowledge of the Isur -- the
Torah requires a separate Korban for each transgression, then where the man
transgressed three separate Isurim at once, certainly he must bring three
This logic seems to contradict the Gemara earlier. The Gemara (5b) states
that the logic of a Kal v'Chomer cannot be used to administer a punishment
when the Torah itself does not prescribe such a punishment ("Ein Onshin Min
ha'Din"). Why did Raban Gamliel and Rebbi Yehoshua not consider that
principle in their response to Rebbi Akiva?
(a) The Ritva cites the RA'AVAD who answers that Raban Gamliel and Rebbi
Yehoshua were teaching only the *number* of Korbanos that the transgressor
must bring when he transgressed multiple Isurim simultaneously. There were
not teaching a new prohibition or punishment. To determine merely the number
of Korbanos, a Kal v'Chomer may be used, since it is considered no different
from using a Kal v'Chomer to determine the meaning of any other verse.
(b) The RITVA answers that they understood that the rule of "Ein Onshin Min
ha'Din" applies only to other punishments, but not to the obligation to
bring a Korban. The reason for this difference is that a Korban is primarily
a form of Kaparah, atonement, and it is not an Onesh, a punishment. The rule
of "Ein Onshin Min ha'Din" applies only to deriving a punishment from a Kal
v'Chomer, and not to deriving a Kaparah.
REBBI AKIVA EIGER adduces support for the Ritva's answer from the Gemara in
Shevu'os (31b). The Mishnah there discusses a person's obligation to bring a
Korban upon swearing falsely that he is not aware of testimony which can
support another person's claim in court. The Mishnah says that even when a
person is not asked to testify, but takes the initiative himself and swears
that he does not know any information about his friend's case, he is
obligated to bring a Korban. The Gemara discusses how we know that the
breaking of such an oath obligates him to bring a Korban, and it says that
this obligation to bring a Korban is derived from a Kal v'Chomer: If he is
obligated to bring a Korban when others make him swear, then certainly he is
obligated to bring a Korban when he swears on his own initiative. We see
from the Gemara there that a Kal v'Chomer can be used to teach the
obligation to bring a Korban.
It is interesting to note that the Ritva himself did not refer to that
Gemara as proof to his answer. In addition, we find that the HALICHOS OLAM
understands that Gemara differently. He explains that the Gemara there is
showing that we do use a Kal v'Chomer to administer a punishment when the
Kal v'Chomer is merely supporting the intent of the verse. The fact that
someone who voluntarily swears falsely regarding testimony should be
considered the same as someone who was forced by court to swear can be
understood as the intention of the verse. We would not use a Kal v'Chomer to
teach something entirely heretofore unknown, where its teaching is not
stated in the verse at all. This implies, contrary to the Ritva's assertion,
that we do *not* use a Kal v'Chomer to teach that one is obligated to bring
a Korban in a case which is not mentioned at all in the verse.
The ARUCH LA'NER and other Acharonim ask a different question on the Ritva.
The Gemara in Sanhedrin (54a) states that a man who has relations with his
father transgresses two Isurim -- the Isur of Mishkav Zachor and the Isur of
having relations with one's father, and he is obligated, therefore, to bring
two Korbanos. The Gemara clearly learns the second obligation from a Kal
v'Chomer and states explicitly that this is in accordance with the opinion
that maintains "*Onshin* Min ha'Din" (that we *do* use a Kal v'Chomer to
administer a punishment). According to the Ritva, though, the Gemara there
could have said that even the opinion that holds "Ein Onshin Min ha'Din"
agrees that the person must bring two Korbanos, because the principle of
"Ein Onshin Min ha'Din" does not apply to Korbanos!
The Aruch la'Ner answers that the Gemara in Sanhedrin is using a Kal
v'Chomer in its most powerful form -- to obligate a person to receive Kares
(and bring a Korban when the act is done unintentionally) when we never
would have known it otherwise, without the Kal v'Chomer. There, even the
Ritva would agree that we cannot use a Kal v'Chomer to teach so much new
information. In our Gemara, in contrast, we already know that all of these
offenses (of living with one's sister) are punishable with Kares. The
question involves only the number of Korbanos brought when all of these
Isurim are transgressed simultaneously. This amount of information regarding
Korbanos can be learned from a Kal v'Chomer, even according to the Ritva.
2) THE SIGNIFICANCE OF THE ORDER OF A POSITIVE AND NEGATIVE COMMANDMENT
QUESTION: Rebbi Yochanan states that when a positive commandment precedes a
negative commandment relating to the same Mitzvah, someone who transgresses
the negative commandment receives Malkus.
What does Rebbi Yochanan mean when he refers to a positive commandment that
"precedes" a negative one? Is he referring to the order of the verses, or is
he referring to the chronological order of the performance of the acts (i.e.
the positive commandment is performed prior to the prohibition?
RASHI explains that Rebbi Yochanan is addressing the opinion that maintains
that when the negative commandment is first (it is a "Lav ha'Nitak l'Aseh"),
the offense is not punishable with Malkus. This is because the Torah -- by
writing the positive commandment after the negative one -- is teaching how
to correct one's action; the positive commandment takes the place of a
punitive punishment. Rashi says that this applies when the positive
commandment can be fulfilled *only* after the Isur was done. When the
positive commandment is fulfilled before the Isur, this logic obviously does
not apply (since there is no Isur yet to rectify). This is why Rebbi
Yochanan rules that one who performs a positive commandment before its
corresponding negative one is punished with Malkus.
Rashi seems to hold that Rebbi Yochanan is referring to the order of the
performance of the actions, and not to the order in which they are written
in the Torah.
The RITVA questions Rashi from the proof that the Gemara gives for Rebbi
Yochanan's ruling. Rabah proves Rebbi Yochanan's ruling from the fact that a
person who is Tamei who enters the Beis ha'Mikdash is punished with Malkus,
despite the fact that there is a positive commandment to leave the area. In
that situation, the Mitzvah to leave the Mikdash applies *after* the person
has entered, and, nevertheless, the person is Chayav Malkus! According to
Rashi, the fulfillment of the Mitzvah of leaving the Mikdash should suffice
to exempt him from Malkus! If, however, Rebbi Yochanan means that one is
Chayav Malkus when the positive commandment precedes the negative one in the
Torah, then the Gemara's support for Rebbi Yochanan is clear. The positive
commandment of leaving the Mikdash is stated in the Torah before the Isur of
entering. How does Rashi reconcile his explanation with the Gemara's proof?
(a) The Ritva answers that everyone agrees that when the positive
commandment precedes the negative one in the Torah, there is a punishment of
Malkus. Rashi is telling us that even when this is not the order of the
verses, Rebbi Yochanan's law can still apply if this is the chronological
order. The Ritva explains that in a case in which a person became Tamei
while he was in the Beis ha'Mikdash, he immediately has the Mitzvah to leave
the area, and he does not immediately transgress the negative prohibition
against making the Mikdash Tamei (see ARUCH LA'NER for a discussion of why
this is so); that is, the chronological order is that the positive
commandment precedes the negative one. As long as it is possible for the
positive commandment to be fulfilled first, it is evident that the reason
the Torah is giving such a Mitzvah is *not* in order to exonerate the person
from punishment. Therefore, the transgression of this negative commandment
is still punished by Malkus.
(b) The PNEI YEHOSHUA, GINAS VERADIM (#23), and others explain that Rashi's
intention is to say that Rebbi Yochanan's rule applies when both criteria --
the order in the Torah and the chronological order -- are met. They prove
this from the Mitzvah of Shilu'ach ha'Ken. The positive commandment is to
send away the mother bird, and the negative one is not to take the mother
bird away when she is among her offspring. Although it is possible to
perform the positive commandment before the negative one in that case, we
rule like the Rabanan who say that one does *not* receive Malkus for
transgressing the negative commandment. According to the Ritva's explanation
of Rashi, one should still be Chayav Malkus, since it is possible to perform
the positive commandment first.
They explain that Rashi understands that one does not receive Malkus for
this Isur, because the Isur is stated in the Torah before the positive
commandment. Rashi requires both criteria in order to administer Malkus.
(The Ritva himself answers this question here by stating that according to
the Rabanan, in the case of Shilu'ach ha'Ken, the Mitzvah to send away the
mother bird is only after not having taken the mother bird for one's own
use. The Ritva says that Rashi understands that there is no Malkus in that
case because the positive Mitzvah is done only after the negative one, in
chronological order.) (Y. Montrose)