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Makos, 16

MAKOS 16-20 - Ari Kornfeld has generously sponsored the Dafyomi publications for these Dafim for the benefit of Klal Yisrael.


OPINIONS: The Gemara discusses the opinion of Rebbi Yochanan, who rules that, in most cases, one does not receive a punishment of Malkus for transgressing a Lav which requires a Mitzvas Aseh to be performed ("Lav ha'Nitak l'Aseh"). Rebbi Yochanan's reasoning is that a person could always fulfill the Mitzvas Aseh, thereby negating the necessity for Malkus. He states that there are only two exceptions to this rule: Shilu'ach ha'Ken and Ones (the Gemara later concludes that Ones is not an exception, but rather Pe'ah is). The Gemara asks that cases of Gezel and Mashkon should also be exceptions to the rule, because in both of these cases, the perpetrator can burn the object that was stolen or deposited, nullifying the possibility to perform the Mitzvas Aseh of giving it back. The Gemara answers that "since he is obligated to pay [for the object], he does not receive a punishment of Malkus as well as an obligation to pay."

The Gemara seems to be saying that since the person is punished with a monetary obligation for his act of stealing, he cannot receive a punishment of Malkus as well, in accordance with the rule that we do not administer two punishments for one act (see RAMAH cited by the Ritva).

However, that rule applies only when a single act warrants two punishments. In our case, the two punishments -- Malkus and an obligation to pay -- are for two separate acts! The Malkus is for the act of stealing, and the obligation to pay for the object is for the later act of destroying the object. Why, then, should the perpetrator not be obligated to receive both Malkus and to pay?

(a) The RITVA explains that the thief's or trustee's obligation to pay for the object went into effect the moment that he stole it and not later, at the time that he destroyed it. Accordingly, the obligation to give back or pay for the object takes effect at the same time that the Chiyuv of Malkus takes effect, and, therefore, he cannot receive two punishments for the same act.

(b) TOSFOS questions this explanation. If the person was obligated to receive Malkus and to pay because of his single act of stealing, then why do we rule that he must pay and he does not receive Malkus? Why do we not rule that he must receive Malkus and not pay? Rebbi Yochanan himself says in Kesuvos (32b) that if there is a choice of obligating a person to pay money or giving him Malkus, we give him Malkus! In addition, the Gemara here continues and asks that a case of a deposit given by a convert who dies should also be an exception to Rebbi Yochanan's rule (and the perpetrator should receive Malkus), and it answers that the perpetrator is still obligated to pay; it is just that he has no one to whom to give the money (since the convert has no heirs). If the perpetrator does not, in practice, have to pay, then he should receive the other punishment -- Malkus!

Tosfos therefore explains the Gemara based on the Girsa that appears in other texts of the Gemara. In those texts, the Gemara says simply that in cases of theft and deposits, "there is payment." That is, even though the object was destroyed, the person can still fulfill the Mitzvas Aseh of returning the object by paying money instead. This is also the opinion of the RAMBAN (in Milchamos Hashem to Bava Metzia 26b) and the ROSH (Bava Metzia 2:9). (The NETZIV in HA'EMEK SHE'EILAH (She'ilta 72:1) points out according to this explanation, it must be that Tosfos does not follow the opinion of Rav Chisda in Bava Metzia (48a), who says that one fulfills the Mitzvah of returning a stolen object only by giving back the original object.)

Tosfos asserts that this explanation is the intention of the Ramah as well.

How, though, does the Ritva answer the questions that Tosfos asks on his explanation? The Ritva answers the first question of Tosfos by saying that although Rebbi Yochanan maintains, in other cases, that Malkus is the preferred punishment, in our case Rebbi Yochanan would agree that the preferred punishment is payment. This is because the Torah explicitly states that a person who steals should pay, and we are not to undermine the Torah's explicit order.

Why, then, does Tosfos say that Rebbi Yochanan's view that Malkus is the preferred punishment should apply to the case of theft, if the Torah explicitly says that such a person should pay? The SHA'AR HA'MELECH (Hilchos Chovel u'Mazik 1:3) defends the reasoning of Tosfos. He explains that although Tosfos holds that a person must compensate the owner even though the original object is gone, this obligation of compensation is not directly stated in the Torah. The Torah seems to discuss the basic case of a thief (and trustee) who must return the original object. Where the original object no longer exists, we are able to apply Rebbi Yochanan's ruling that Malkus is the preferred punishment.

Even though the Ritva defends the Ramah's explanation, he concludes that Tosfos' explanation is correct (see also RAMBAM, Hilchos Sanhedrin 18:2, and KESEF MISHNEH there). (Y. Montrose)


QUESTION: The Gemara states that someone who eats an ant receives five sets of Malkus. RASHI explains that if someone swallows a live ant, there is no minimum amount of ant that he must eat in order to be punished with Malkus, since he swallowed an entire creature.

Rashi implies that the law of "Biryah" (that a whole object is considered significant in itself and it needs to minimum Shi'ur to make it significant) applies only to an ant that is alive.

The ROSH YOSEF (to Chulin 96b) and others assert that this cannot be true. The Gemara in Chulin (102b) states that if someone eats a non-Kosher bird, he transgresses the prohibition and is punished regardless of whether it was alive or dead. Rashi himself explains there that this is because of the law of "Biryah!" We see that the law of "Biryah" applies even when the creature is dead.

In addition, the continuation of the Gemara here implies that "Biryah" applies to a dead creature as well. The Gemara discusses a case in which someone crushed nine ants and added one more any to form a k'Zayis. Rashi explains that by crush the ants, the person removed the status of "Biryah" from the ants. If the law of "Biryah" applies only to something living, then it would not be necessary to crush the ants; it would suffice to kill them in one strike!

How, then, are we to understand the words of Rashi in our Sugya?


(a) The CHIKREI LEV (Yoreh De'ah, end of 71) answers that Rashi's intention here is as follows. When discussing a transgression that involves eating, it is presumed that the transgression applies only to the normal manner of eating ("Derech Achilah"). Accordingly, we might have thought that the Gemara here refers only to someone who eats dead ants, since the normal way of eating ants is when they are dead. Therefore, Rashi tells us that this rule of "Derech Achilah" does not apply when one eats a "Biryah." The law of "Biryah" is not derived from any prohibition of Achilah, but from a different source (see Chulin 96b). Therefore, eating a "Biryah" -- even in an abnormal manner -- constitutes a transgression of the prohibition and is punishable.

(b) The ARUCH LA'NER answers that Rashi says that the Gemara is referring to a live ant, because one of the prohibitions that the person transgresses is learned from the verse, "ha'Sheretz ha'Shoretz..." (Vayikra 11:41), which refers to a crawling creature.

(c) The NACHAL ESHKOL answers that Rashi says that only a live ant is considered a "Biryah" because of an anatomical phenomenon. He explains that immediately after an ant dies, some of its legs disintegrate, thereby disqualifying a dead ant from being considered a "Biryah." (Y. Montrose)

OPINIONS: The Gemara states that a person who refrains from relieving himself when the need arises transgresses the Isur of "Lo Tishaktzu" (Vayikra 20:25). The Gemara says that one also transgresses this Isur when he drinks from a utensil into which a blood-letter poured blood. Is the prohibition against doing a disgusting act a Torah prohibition or a decree of the Rabanan?
(a) The SEFER HA'YERE'IM, SEMAK, and other Rishonim maintain that this a Torah prohibition. The PRI CHADASH (YD 116:11) and IYUN YAKOV cite a Gemara in Shabbos (90b) to support this opinion. The Gemara there discusses an argument in the Mishnah between the Tana Kama and Rebbi Yehudah. The Tana Kama maintains that it is prohibited to carry the slightest amount of a live, kosher Chagav (a form of grasshopper) on Shabbos into Reshus ha'Rabim (while a dead Chagav is only prohibited when it is a certain minimum size). Rebbi Yehudah argues and maintains that it is prohibited to carry even the slightest amount of a live, non-kosher Chagav. The Gemara explains that the Tana Kama does not consider a non-kosher Chagav to be a significant object in itself (such that it needs no minimum Shi'ur), because one is not permitted to give it to a child to play with, lest he eat it. The Gemara asks that according to this reasoning, it should also be prohibited to give even a kosher Chagav to a child, because if he eats it he will transgress the Isur of "Lo Tishaktzu."

The Gemara in Shabbos there clearly implies that the Isur of "Lo Tishaktzu" is an Isur d'Oraisa, because if it were an Isur d'Rabanan, then the Gemara should have answered that the Tana Kama's concern is only when a Torah prohibition is involved. We know that it is normal for the Rabanan to make an Isur d'Rabanan to prohibit an act which might lead to a transgression of an Isur d'Oraisa, but they do not prohibit an act which might lead only to an Isur d'Rabanan.

(The TEVU'OS SHOR (#13) states that even according to the opinion that "Lo Tishaktzu" is an Isur d'Oraisa, not everything that is disgusting is prohibited by the Torah.)

(b) The RITVA, citing "all of the commentators," the ME'IRI, and other Rishonim maintain that this prohibition is only mid'Rabanan. How, then, do they understand the Gemara in Shabbos? The Pri Chadash himself explains that the Gemara there is not necessarily proof that "Lo Tishaktzu" is an Isur d'Oraisa, because perhaps since children constantly put their playthings into their mouths, giving them any object is tantamount to actually feeding them, and thus the Gemara there asks that it should be prohibited to give a child even a kosher Chagav because one is directly causing the child to transgress "Lo Tishaktzu."

(c) The opinion of the RAMBAM is unclear. In Sefer ha'Mitzvos, after listing The Mitzvah not to eat these creatures, the Rambam writes that one who delays relieving himself and one who drinks from the blood-letter's utensil is *not* punished with Malkus d'Oraisa, but he does receive Malkus d'Rabanan. Similarly, when the Rambam records the Halachah (in Hilchos Ma'achalos Asuros 17:29-30), he writes that eating disgusting things is included in the prohibition of "Lo Tishaktzu," but he reiterates that an offender is punished only with Malkus d'Rabanan. The CHIKREI LEV (YD 140) infers from the Rambam's statement that "these things are included in Bal Tishaktzu" that he maintains that this is a Torah prohibition. This is also apparent from his wording in Sefer ha'Mitzvos when he says that "there is no Malkus because the straightforward meaning of the verse refers only to a Sheretz." If he holds that it is an Isur d'Rabanan, that fact alone would suffice as the reason the transgressor does not receive Malkus, and he would not have to mention that the simple meaning of the verse is that it refers to a Sheretz.

However, the RASHBATZ (in Zohar ha'Raki'a), the DIVREI CHAMUDOS (Berachos 3:74), and others assert that the Rambam maintains that the Isur is only mid'Rabanan. The Divrei Chamudos deduces this from the Rambam's introductory words in Hilchos Ma'achalos Asuros, where he says, "The Sages prohibited...." If the Rambam held that this was a Torah law, he would have stated, "The Sages *said*...." His wording implies that eating disgusting things was not forbidden until the Rabanan prohibited it. (Y. Montrose)

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