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Makos, 14

MAKOS 11-15 - Ari Kornfeld has generously sponsored the Dafyomi publications for these Dafim for the benefit of Klal Yisrael.


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 transgression?

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 separate Korbanos!

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. (Y. Montrose)


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)

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