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Makos, 15

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


QUESTION: The Gemara discusses the Halachos of a man who raped a woman and therefore is obligated to marry her (if the woman agrees). The Torah says that such a man is not allowed to divorce his wife. If a man who is a Yisrael divorces his wife in such a case, he can rectify his transgression by remarrying her (before she marries someone else). A Kohen, however, cannot rectify his transgression, because he is not allowed to marry a divorced woman. If he divorces his wife in such a case, he immediately must receive Malkus, since he cannot remarry his wife. The Gemara compares these Halachos to the similar Halachos of "Motzi Shem Ra." In that case, a man claimed that his wife was unfaithful to him before the marriage, but after the Erusin. If evidence is brought against his claim, showing his claim to be false, then he also may not divorce his wife. If he does divorce her, then the same Halachos regarding remarrying one's divorced wife in a case of a woman who was raped applies in this case: a Yisrael can exempt himself from Malkus by remarrying her, while a Kohen cannot exempt himself from Malkus.

However, in the case of Motzi Shem Ra, these Halachos do not seem to be appropriate. The man claims that his wife committed adultery during the Erusin. Torah law prohibits a woman to her husband if she committed adultery. Hence, according to the husband's claim, his wife is prohibited to him! How can we tell a man who insists that he is forbidden to his wife that he must remain married to her?

(Even though she indeed is innocent, we know that there is a concept that a person may forbid things to himself even if they are not actually forbidden ("Shavyei a'Nafshei Chatichah d'Isura"). Hence, the man may forbid his wife to himself by claiming that she committed adultery and is therefore forbidden to him.)


(a) The MINCHAS CHINUCH answers that the Torah is referring to a case in which the husband retracted his claim that his wife is forbidden to him. Normally, a person may not retract what his says in front of Beis Din when he supports his statements with an action such as bringing witnesses to court to back his claim. However, when there are witnesses who *refute* his claim, such as in the case of Motzi Shem Ra in which the woman's father brings witnesses who attest to his daughter's innocence, the man *may* retract his claim.

In a case in which the main does not retract his claim against his wife, the Torah's commandment to marry her indeed does not apply.

(b) The BEIS YAKOV (in Kesuvos 9b) and the YESHU'OS YAKOV (EH 11) answer that this is a case of "Aseh Docheh Lo Sa'aseh," a positive commandment overriding a negative one. The Mitzvas Aseh in this case is that he must marry her (Devarim 22:29), and it overrides the Lav of staying married to a woman who committed adultery (Devarim 24:4; see RAMBAM, Hilchos Gerushin 11:14).

However, the Yeshu'os Yakov is not satisfied with this answer. When a woman is unfaithful to her husband there is an additional Mitzvas Aseh that prohibits him from living with her (Bamidbar 5:13). One Mitzvas Aseh cannot override a Lav together with another Mitzvas Aseh.

The AHAVAS TZIYON answers this question and explains that this second Mitzvas Aseh is a result of her state of having been Mezanah ("v'Nisterah v'Hi Nitma'ah"). Since she did not actually commit adultery in reality (but rather only in the imagination of her husband), it is not as strong as a normal Mitzvas Aseh. Therefore, the *strong* Mitzvas Aseh (that they remain married) is able to override this weak Mitzvas Aseh (that they separate).

(c) These Acharonim suggest an additional answer. The RAN in Nedarim (90b) writes that a woman does not have the right to proclaim that she is forbidden to her husband by claiming that she committed adultery, because she has no right to take herself out of her husband's domain, since she is bound by a contractual agreement to stay with him. According to the Ran, how can a husband make himself forbidden to his wife? He is also bound by a contractual agreement (in the Kesuvah) to her! We must answer that since a husband has the power to divorce his wife whenever he wants, he may also forbid her to himself whenever he wants. If this is the logic behind a husband's ability to prohibit his wife to himself, it does not apply in a case of Motzi Shem Ra. In a case of Motzi Shem Ra, the Torah does not permit the husband to divorce his wife. Accordingly, he also cannot forbid her to himself, since he is under contractual obligation to remain married to her. (Y. Montrose)


OPINIONS: The Gemara records two arguments between Reish Lakish and Rebbi Yochanan, and it says that these two arguments are dependant upon each other. The first argument involves a case in which a person transgresses a "Lav ha'Nitak l'Aseh." One opinion maintains that in order to be guilty of transgressing the Lav in the fullest extent, the transgressor must never perform the Mitzvas Aseh associated with it. If the transgressor eventually does the Mitzvas Aseh, then he rectifies his transgression. Therefore, he never receives Malkus for transgressing the Lav as long as he can still perform the Aseh ("Bitlo v'Lo Bitlo"). The other opinion argues that the person is in full violation of the Lav and can receive Malkus for it. However, if he rushes to atone for his transgression he can avoid the punishment of Malkus ("Kiyemo v'Lo Kiyemo").

The second argument involves whether a Hasra'as Safek -- the warning given to a person who is about to commit a sin when it is not certain that the potential punishment will be applicable to his sin -- is considered a proper warning or not.

How are these two arguments dependant upon each other?

(a) According to the Girsa of the Gemara according to the text of RASHI and TOSFOS, it is Rebbi Yochanan who maintains "Bitlo v'Lo Bitlo" (in order to receive Malkus, the transgressor must entirely negate the possibility of ever fulfilling the Mitzvas Aseh), and who maintains that Hasra'as Safek is considered a valid Hasra'ah. The logic for the connection between these two Halachos is as follows. Rebbi Yochanan holds that it is possible to receive Malkus for transgressing the Lav in a case of a "Lav ha'Nitak l'Aseh," but only in a case in which the transgressor entirely the negates the possibility of ever fulfilling the Mitzvas Aseh. If a Hasra'as Safek would not be a valid Hasra'as, then how could such a transgressor ever be punished with Malkus? If the Hasra'ah was given at the time that he transgressed the Lav, it is a Hasra'as Safek (and not a valid Hasra'ah) because perhaps the transgressor will fulfill the Mitzvas Aseh and rectify his transgression retroactively. If the Hasra'ah was given later, at the time that the transgressor ensures that he can never fulfill the Mitzvas Aseh, it is not a valid Hasra'ah because a Hasra'ah cannot be given for a transgressor post facto. Therefore, it must be that Rebbi Yochanan -- who holds "Bitlo v'Lo Bitlo" -- must also hold that a Hasra'as Safek is a valid Hasra'ah.

Reish Lakish, on the other hand, says that the Lav is fully transgressed at the time the person sins. The transgressor can merely escape punishment by doing the Aseh immediately. Since Reish Lakish explicitly rules that a Hasra'as Safek is not valid, the Hasra'ah must have been given at the time of the transgression of the Lav. This is compatible with the opinion of "Kiyemo v'Lo Kiyemo."

(b) According to the Girsa of the Gemara according to the text of the GE'ONIM, RABEINU CHANANEL, and the RAMBAN, it is Rebbi Yochanan who maintains "Kiyemo v'Lo Kiyemo" and Reish Lakish who maintains "Bitlo v'Lo Bitlo." How, then, are Rebbi Yochanan and Reish Lakish consistent with their respective views concerning Hasra'as Safek? The RITVA explains that according to Rebbi Yochanan, who holds that a Hasra'as Safek is a valid Hasra'ah, the transgressor can be warned with a proper Hasra'ah even though we are unsure if he will fulfill the Mitzvas Aseh. The view of Reish Lakish, on the other hand, involves a novel idea. We must say that Reish Lakish, who holds that a Hasra'as Safek is *not* a valid Hasra'ah, maintains that the Hasra'ah can be given only when the person negates the possibility of ever fulfilling the Aseh (at which point the Hasra'ah is a definite Hasra'ah).

The underlying dispute between these two ways of understanding the Gemara (that of Rashi and that of the other Rishonim) is as follows. Rashi specifically mentions that it is not possible for a Hasra'ah to be valid when given post facto; a warning can be given only at the time the person does the sin. Rashi proves this from the Gemara in Shevuos (28b). The Gemara there discusses a case in which a person swears that he will not eat one loaf of bread if he eats the second loaf of bread. The Gemara says that when he eats the second loaf first and then is warned not to eat the first loaf, the Hasra'ah is a definite Hasra'ah, because if he now eats the first loaf he will definitely be violating his Shevu'ah. If, on the other hand, he eats the first loaf first, then at that moment we can warn him only with a Hasra'as Safek, since he might not end up sinning (in order to violate his Shevu'ah, he will have to eat the second loaf). The Gemara there explicitly calls this a Hasra'as Safek, even though he would definitely transgress his Shevu'ah, retroactively, by eating the second loaf. Why, though, do we not give him Hasra'ah right before he eats the *second* loaf? At that moment, the Hasra'ah would be a definite Hasra'ah, since he definitely will violate his Shevu'ah retroactively by eating the second loaf! It must be that a Hasra'ah is invalid when given after the act of the transgression. This is the view of Rashi.

The other Rishonim refute this proof as follows. In the case of our Gemara, the full transgression of the Lav depends on the nullification of the possibility to fulfil the Mitzvas Aseh. Since the Torah made the Lav dependant on the Mitzvas Aseh, the Mitzvas Aseh is considered like an internal part of the Lav. Consequently, a Hasra'ah not to be Mevatel the Mitzvas Aseh is considered to be a Hasra'ah not to transgress the Lav. In contrast, the case in Shevuos is discussing a contingency made by a person. Eating the second loaf of bread was never prohibited by any intrinsic prohibition; the person merely made it a Tenai, a condition, on which he made his Shevu'ah dependant. He could have chosen not to make a condition with the second loaf, leaving that loaf completely permissible for him to eat. Since it is his own stipulation that makes the second loaf part of his prohibition against eating the first, the link between the two loaves is weak. It is reasonable, therefore, to say that a Hasra'ah given before he eats the second loaf will not be a valid Hasra'ah for the first loaf that he ate previously. (Y. Montrose)

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