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Makos, 21

MAKOS 21-24 - Ari Kornfeld has generously sponsored the Dafyomi publications for these Dafim for the benefit of Klal Yisrael.


QUESTION: The Gemara quotes a Beraisa in which it is taught that one who performs Seritah in mourning for a Mes is punished with Malkus, whether he does it by hand or with a utensil. One who does Seritah for idolatry is Chayav only when he does it with a utensil, but not when he does it by hand (according to the Gemara's conclusion).

What connection does Seritah have to Avodah Zarah? The Gemara earlier says that one is punished for Seritah only when one makes himself bleed out of mourning for the dead!


(a) The RIVAN (DH Al Avodas Kochavim) explains that some forms of Avodah Zarah are performed through the service of making Seritos on one's flesh. If one makes a Seritah for a certain Avodah Zarah in the way that it is normally done, even if that Avodah Zarah is not normally served in such a way, one is Chayav Misah because it is considered a form of serving Avodah Zarah.

How can the Rivan write that one is Chayav Misah for serving Avodah Zarah through Seritah even if that is not the normal way of serving that Avodah Zarah? The Gemara in Sanhedrin (60b) says that one is Chayav Misah only for four forms of worship (and Seritah is not one of them) when one does not serve the Avodah Zarah in the way that it is normally served!

TOSFOS (DH Al) explains that the Rivan is discussing the Chiyuv Malkus for serving an Avodah Zarah (through Seritah) that is not normally served in this manner. The verse of "v'Lo Sa'avdem" (Shemos 23:24) prohibits performing any act of deference to an Avodah Zarah (see Chart #12 to Sanhedrin 63a, footnote 11). However, performing Seritah by hand is not considered an act of deference at all since there is *no* Avodah Zarah that is served in that manner, and therefore one is not Chayav Malkus for serving an Avodah Zarah with Seritah by hand.

The RITVA suggests that our Gemara is discussing an Avodah Zarah with which no one is familiar. Since Avodah Zarah is normally served through doing Seritah with a utensil, if a person serves an unknown Avodah Zarah in that manner -- through Seritah with a utensil -- then he is Chayav Misah, because we assume that this is the manner in which this Avodah Zarah is normally served. However, if he performs Seritah by hand, we may assume that this is not the way the Avodah Zarah is served, and he is exempt from punishment.

(b) The RAMBAM (Hilchos Avodah Zarah 12:13) explains that the Lav of "Lo Sisgodedu" is not limited to one who cuts his flesh for a Mes. It also applies to a person who cuts his flesh in front of an Avodah Zarah (the KESEF MISHNEH explains that this is not a form of worship, but rather a way of beseeching the Avodah Zarah to respond to one's requests). According to this interpretation, it is clear why the Gemara discusses one who cuts his flesh for Avodah Zarah when discussing our Mishnah.

The Acharonim ask how can the Rambam assert that the verse is referring to one who cuts his flesh for Avodah Zarah? The Gemara writes that according to Rebbi Yosi the source that Seritah is forbidden only when it is done as an expression of mourning is because "Seritah and Gedidah are the same," and Gedidah applies when done in mourning! If the laws of Seritah are learned from Gedidah, then the Isur should apply when done for Avodah Zarah as well, just like Gedidah. The Rambam himself, though, writes that Seritah applies only when it is done in mourning for a Mes! We cannot suggest that the Rambam is ruling like the Rabanan who argue with Rebbi Yosi, because the Rambam rules (in Hilchos Avodah Zarah 12:13) clearly like Rebbi Yosi, that Seritah and Gedidah are the same, and one is Chayav for both of them whether it is done by hand or with a utensil (see IMREI BINYAMIN).

Perhaps the Rambam learns that when the Gemara says that Seritah and Gedidah are the same, it only means to compare the Isur of Seritah to the Isur of Gedidah *that is done in mourning*, since an act of making oneself bleed out of pain is described by the Torah both by the expression of Seritah and by the expression of Gedidah. However, Seritah cannot be compared to the Isur of Gedidah that is done for Avodah Zarah, since we never find such that the Torah describes as Seritah an act of making oneself bleed for Avodah Zarah.

OPINIONS: The Mishnah teaches that if one writes a Kesoves Ka'aka on his skin, he is punished with Malkus. However, he is Chayav only when he both writes with ink upon his skin and perforates his skin to make the ink become absorbed. Is it prohibited to write upon one's skin without perforating the skin to make a tattoo?
(a) The RIVAN writes that even according to Rebbi Shimon, who says that one is Chayav Malkus only when he writes a name of Avodah Zarah on one's skin, it is prohibited to tattoo any type of writing on one's skin. What is the Rivan's source for this ruling?

The BACH (YD 180) writes that the Rivan infers this from the wording of the Mishnah. Rebbi Shimon says that "one is not Chayav unless he writes the name [of an Avodah Zarah]." This implies that if one writes something other than the name of an Avodah Zarah, one is not Chayav Malkus, but nevertheless it is prohibited.

(The Gemara makes a similar inference form the Mishnah in Nedarim 18a with regard to other Halachos. See, however, TOSFOS there (DH d'Katani), who proves that we cannot make such an inference every time this wording appears in the Mishnah. See also RAV CHAIM KANIEVSKY in KUNTRUS PAS'SHEGEN HA'KESAV (#18), who comes to the same conclusion based on a number of Mishnayos.)

Why does the Rivan find it necessary to make this point about Rebbi Shimon's opinion? Perhaps the Rivan follows the ruling of Rebbi Shimon in practice, based on the fact that the Gemara discusses the source for Rebbi Shimon's opinion. This indeed is the ruling of the RIF and the ROSH. Support for this ruling can be found in Gitin (20b; see Tosfos there).

The RITVA here challenges this ruling based on the fact that the Gemara cites the teaching of Rav Malchiya, who rules that a person may not place ashes on a wound, since it is similar to making a Kesoves Ka'aka. According to Rebbi Shimon, who maintains that the Torah prohibits a Kesoves Ka'aka only when one writes the name of an Avodah Zarah, why should placing ashes -- which do not spell the name of an Avodah Zarah -- on a wound be prohibited mid'Rabanan? In order to answer this question, the Rivan writes that the Amora'im knew that Rebbi Shimon agrees that there is an Isur to make a Kesoves Ka'aka even without spelling the name of an Avodah Zarah (see PAS'SHEGEN HA'KESAV).

Further support for the opinion of the Rivan can be found in the Tosefta (3:9), which teaches that one is Chayav for Kesoves Ka'aka only when he does it for Avodah Zarah. The Tosefta continues and says that one who makes a tattoo on his servant so that he not run away is exempt from punishment, implying that even when one is not writing the name of an Avodah Zarah it is still prohibited.

In any case, the MINCHAS CHINUCH (253:1) suggests that if it is appropriate to infer from the words "one is not Chayav unless..." that there is an Isur without Malkus if one does not do the Isur exactly in the manner described by the Mishnah, then we can learn from the Reisha which says "one is not Chayav unless one writes and perforates" that doing only one or the other (the writing or the perforating) is also prohibited (but one is not Chayav Malkus).

It is not clear from the Rivan whether this Isur is mid'Oraisa or mid'Rabanan. It seems more logical to assume that it is d'Rabanan, and that is why there is no Malkus for it.

TOSFOS and the TOSFOS HA'ROSH in Gitin (20b) discuss the Gemara which refers to a Get that is written on the hand of a slave as a Kesoves Ka'aka,. They write that the Get can be written in a manner that does not transgress the Isur d'Oraisa, since the Isur is transgressed only when done in a specific manner, as our Mishnah says (that is, the Get may be written by first perforating the skin and then placing the ink on it, or by scarring the skin without adding ink). However, they add that even such a manner of writing is prohibited mid'Rabanan, since the Gemara says that it is even prohibited to put ashes on one's wound since it gives the appearance of a Kesoves Ka'aka (after the wound heals, the remains of the ashes can still be seen beneath the skin), if not for the fact that the scar of the wound remains to show that it was not a Kesoves Ka'aka.

It might follow that writing without perforating would also be prohibited mid'Rabanan for the same reason, if the coloration will remain permanently.

(b) The TO'AFOS RE'EM (to the SEFER YERE'IM 338:3) infers from the fact that the Sefer Yere'im mentions no such Isur that it is permitted to write on one's skin (without perforating), l'Chatchilah. The RAMBAM also makes no mention (in Hilchos Avodah Zarah 12:11) of any such Isur d'Rabanan, implying that it is permitted. Even though the Rambam writes that if a person wrote on his skin but did not drive the writing into the skin "he is Patur," we cannot necessarily imply from those words that he holds that it is Asur to do so l'Chatchilah. This is because it is only with regard to the laws of Shabbos that the Rambam (and the Gemara) uses the word "Patur" to refer to an Isur d'Rabanan (for which one is "Patur" from punishment), as the Rambam writes at the beginning of Hilchos Shabbos (Minchas Chinuch 253:1, citing the MISHNAS CHACHAMIM #57; see also Minchas Chinuch 440:11 and 467:3, Pas'shegen ha'Kesav, and YAD MALACHI #526, in the name of the MORDECHAI and others).

Rav Chaim Kanievsky (ibid.) shows that this is also the opinion of the ME'IRI in Gitin (20b).

HALACHAH: The Minchas Chinuch (253:1) concludes that one should not be lenient, but should avoid writing on the skin without perforating the skin because of the Isur d'Rabanan that Tosfos in Gitin mentions. However, he points out that the Isur will apply only when the writing is done with a permanent form of writing which cannot be erased (which is very uncommon).

However, RAV CHAIM KANIEVSKY, shlit'a, points out in his Kuntrus on the laws of writing a Kesoves Ka'aka, PAS'SHEGEN HA'KESAV (#18), that the NIMUKEI YOSEF here writes that a Kesoves Ka'aka is "recognizable for a long period of time," implying that it does not need to remain on the skin permanently (but only for a long period of time) in order to be forbidden. Consequently, writing without perforating the skin should be prohibited even if the writing does not remain on the skin permanently.

Nevertheless, Rav Chaim Kanievsky writes that even if there is an Isur d'Rabanan, it will apply only to scratching the skin without placing ink on the skin, or even branding a mark on the skin with a hot iron. However, writing on the skin without scratching it into the skin does not resemble Kesoves Ka'aka in any manner, even if the ink remains on the skin for an extended period of time. (It seems that if one uses a chemically-treated ink that penetrates the skin and remains there permanently, it will be similar to Kesoves Ka'aka and will be prohibited mid'Rabanan.)


QUESTION: The Mishnah states that a person who is wearing a garment of Kil'ayim who is warned with Hasra'ah to remove it, and who removes the garment and dons it again, is Chayav Malkus. Rav Ashi explains that the person is Chayav Malkus even if he does not actually remove the garment, but merely leaves it on for the amount of time that it takes to remove it and replace it.

Why should he be Chayav Malkus in such a case? All of the Poskim rule like the Rabanan who argue with Rebbi Yehudah and say that one is not punished with Malkus for a "Lav she'Ein Bo Ma'aseh," and here the person wearing the Kil'ayim did no Ma'aseh! (RAMAH cited by the Ritva)

ANSWER: TOSFOS in Shevuos (17a, DH O Ein Tzarich) explains that sometimes a person can be punished with Malkus even though he did not perform an action when he transgressed the Lav. When a transgression must be preceded by an action and the results of that action cause the person to continue to transgress the Torah's prohibition, the person can be punished with Malkus for continuing to transgress the prohibition, since his transgression was brought about through an action. In the case of our Gemara, this means that a person can only wear Kil'ayim by donning the garment, which is an action. Therefore, as long as the Kil'ayim is upon his body, he can be punished with Malkus, since the Kil'ayim reached its present position through his original action. Tosfos gives as another example of this the case in the Gemara in Shevuos wherein a Nazir enters a cemetery by traveling there in a closed box, and then another person opens the box, exposing the Nazir to the Tum'ah of the cemetery. If the Nazir does not leave the cemetery immediately, he can be punished with Malkus, because he could not have entered the cemetery (or the box) without performing an action. The RITVA here offers a similar answer. (See also SHA'AGAS ARYEH #32 and Sha'agas Aryeh Chadashos #12, IMREI BINYAMIN, and Insights to Nazir 17:1:d.)

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