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Kollel Iyun Hadaf, Jerusalem

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Makos 13

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



(a) Our Mishnah learns from the Pasuk in Shoftim "ve'Zeh D'var ha'Rotze'ach" - that a murderer whom the residents of the Ir Miklat wish to honor is initially obligated to say to them 'Rotze'ach Ani'.

(b) He may however accept their offer - should they persist.

(c) According to ...

1. ... Rebbi Yehudah, the murderers had to pay the Levi'im rent. Rebbi Meir - maintains that they live there free of charge.
2. ... Rebbi Meir, when the murderer returned to his hometown, he would return to whatever prominent position he held previously (such as Nasi or Beis-Din); according to Rebbi Yehudah - he doesn't.
(d) Rav Kahana extrapolates from the Pasuk ve'Hayu *Lachem* he'Arim le'Miklat mi'Go'el ... " - that the first of the two Machlokos is confined to the six initial Arei Miklat.
(a) Rebbi Yehudah interprets "Lachem" to mean 'to take you in', whereas Rebbi Meir interprets it to mean - 'for all your needs' (i.e. even without having to pay).

(b) According to this explanation - they would most certainly have to pay rent to the Levi'im for residing in the other forty-two towns.

(c) Rava objects to Rav Kahana's interpretation - because to his mind "Lachem" certainly implies 'for all your needs' (which, according to both Tana'im is the Halachah regarding the six initial towns).

(d) According to Rava, the basis of the Machlokes is then how to interpret the Pasuk (in connection with the forty-two towns) "va'Aleihem Titnu", which Rebbi Yehudah interprets to mean - exactly like the initial six (having to pay rent), and Rebbi Meir, that they are Kolet like the first six, but no more.

(a) Rebbi Yehudah explains the Pasuk "ve'Shav el Mishpachto (ve'el Achuzas Avosav Yashuv") to mean that he - meaning an Eved Ivri, returns to his family, but not to his previous position.

(b) Rebbi Meir interprets the Pasuk to mean - that he also returns to any previous position that he may have held.

(c) Rebbi Meir learns from the word "Yashuv" - that this Din also extends to the Din of a murderer who returns from the Ir Miklat.

(d) Rebbi Meir's real source for his latter ruling is (not solely because "Yashuv" is a 'Ribuy', but) - because it is superfluous, enabling us to learn the 'Gezeirah-Shavah' ("ve'Acharei Mos ha'Kohen ha'Gadol *Yashuv* ha'Rotze'ach ... ") from it.

***** Hadran Alach 'Eilu Hein ha'Golin' *****

***** Perek ve'Eilu Hein ha'Lokin *****

(a) Our Mishnah includes in the list of 'Lokin', seven cases of Arayos that are Chayav Malkos 'a sister, a paternal and a maternal aunt, a wife's sister and brother's wife (sisters-in-law), a father's brother's wife (an aunt by marriage) and a Nidah - which are all Chayav Kareis.

(b) The list of 'Lokin' is not comprehensive, seeing as there are three hundred and sixty-five La'avin (most of which are subject to Malkos). The Tana chose to insert ...

1. ... Tevel, Ma'aser Rishon she'Lo Nitlah Terumaso and Hekdesh she'Lo Nifdeh - because in neither case, is the La'av is not clearly spelt out in the Torah.
2. ... Ma'aser Sheini she'Lo Nifdeh - because, it is similar to Hekdesh she'Lo Nifdeh, inasmuch as it too, is based on the fact that it has not been redeemed.
3. ... most other La'avin - because there is a Chidush attached to them.
(c) The Tana includes 'Almanah le'Kohen Gadol' and 'Gerushah va'Chalutzah le'Kohen Hedyot' in the list - to teach us that a Kohen Gadol who marries a woman who is both receives two sets of Malkos.

(d) Nevertheless, a Kohen only receives one set of Malkos for a woman who is both a Gerushah and a Chalutzah - because Chalutzah does not have its own Pasuk, and is only learned from a superfluous word ("ve'Ishah") that is written in the Parshah of Gerushah (see also Tosfos DH 'Gerushah').

(a) He also includes 'Mamzares u'Nesinah le'Yisrael'. The source of the La'av pertaining to a Nesinah is - the Pasuk in Va'eschanan "Lo Sischaten Bam".

(b) Malkos will apply equally the other way round (to a 'bas Yisrael le'Nasin u'le'Mamzer').

(c) The La'av for Nosar is the Pasuk "ve'Sarafta es ha'Nosar ba'Eish, Lo Ye'achel". From the continuation of the Pasuk "Ki Kodesh Hu", we incorporate - Pigul and all cases of Hekdesh that became Pasul ('P'sulo ba'Kodesh').

(a) The basic difference between 'ha'Mefatem es ha'Shemen' and 've'ha'Sach be'Shemen ha'Mishchah' is - that whereas the former pertains to making a replica of the anointing oil, that latter pertains to anointing oneself with the original oil itself.

(b) The source for the La'av for eating ...

1. ... Tevel is the Pasuk in Emor "ve'Lo Sechalelu es Kodshei B'nei Yisrael Asher *Yarimu* la'Hashem" ('ba'Asidin li'Terom ha'Kasuv Medaber') ...
2. ... and the same source applies to Ma'aser Rishon whose Terumah has not been taken, since it is also called Tevel.
(c) One receives Malkos for eating Ma'aser Sheini that was not redeemed from the Pasuk in Re'ei "Lo Suchal Le'echol bi'She'arecha". In order to transgress, he must eat it - in Yerushalayim.

(d) The source of the La'av for eating ...

1. ... Terumah is - the Pasuk in Emor "ve'Chol Zar Lo Yochal Kodesh".
2. ... Hekdesh that was not redeemed is - the 'Gezeirah-Shavah' "Chet" "Chet" from Terumah.
(a) The author of our Mishnah that includes Chayvei K'risus in Malkos but not Chayvei Misas Beis-Din, is Rebbi Akiva, who explains in a Beraisa - that whereas Kareis is subject to Divine pardon, Misas Beis-Din is not.

(b) Rebbi Yishmael rules - that both Chayvei K'risus and Chayvei Misas Beis-Din are subject to Malkos.

(c) Rebbi Yitzchak learns from 'Achoso', which was included in the Pasuk in Acharei-Mos "Ki Chol Asher Ya'aseh mi'Kol ha'To'avos ha'Eileh ve'Nichresu", yet the Torah mentions it separately (in Kedoshim "ve'Ish Asher Yikach es Achoso ... ve'Nichr'su") - that even Chayvei Kareis are not subject to Malkos.

(d) Rebbi Yitzchak knows that this extends to all Chayvei Kareis - from the principle 'Kol Davar she'Hayah bi'Chelal ve'Yatza min ha'K'lal Lelamed, Lo Lelamed al Atzmo Yatza Ela Lelamed al ha'K'lal Kulo Yatzta'.




(a) We cite Rebbi Yishmael's source (to give Malkos to both Chayvei K'risus and Chayvei Misas Beis-Din) as the Pasuk in Ki Savo "Im Lo Sishmor La'asos es Kol Divrei ha'Torah ha'Zos ... ve'Hiflah Hashem es Makoscha". Rebbi Yoshmael extrapolates Malkos from - the word "*ve'Hiflah" (which is similar to the Pasuk in Ki Seitzei (in connection with Malkos) "*Vehipilo* ha'Shofet, Veikahu Lefanav").

(b) We nevertheless preclude Chayvei Asei from Malkos, initially based on a principle of Rebbi Avin Amar Rebbi Ilai, who states the principle that 'Kol Makom she'Ne'emar Hishamer, Pen ve'Al - Eino Ela Lo Sa'aseh (and here too, the Torah writes "Im Lo *Sishmor*).

(c) We initially think that Rebbi Yishmael learns from "La'asos" - that a 'La'av she'Ein Bo Ma'aseh' is precluded from Malkos.

(a) Finally however, we preclude a 'La'av she'Ein Bo Ma'aseh' from Malkos from the same source as a 'La'av she'Nitak la'Asei' - (a La'av which the Torah enables one to rectify by performing an Asei and) which we learn from the La'av of Chasimah ('Lo Sachsom Shor be'Disho') which is a Binyan Av.

(b) We also preclude - Mitzvos Asei from the La'av of Chasimah.

(c) We learn specifically from that La'av more than from any other - because it is juxtaposed to the Parshah of Malkos in Ki Seitzei.

(a) Rebbi Akiva learns from the Pasuk (in connection with Malkos) "K'dei Rish'aso" - that there are no two punishments for one sin (in which case someone who is Chayav Misas Beis-Din will not receive Malkos).

(b) Rebbi Yishmael disagrees with that - because he confines that D'rashah to Misah and Mamon or Malkos and Mamon, but not to Misah and Malkos, since Misah is really an extension of Malkos ('Misah Arichta Hi').

(c) In that case, we ask, why Rebbi Akiva does not also preclude Chayvei Kareis from Malkos. The fact that they can do Teshuvah (which is what he says) is not a good enough answer - because meanwhile, he receives Malkos even if he has not.

(d) When Rebbi Avahu says that the Torah specifically includes Chayvei Kareis in the Din of Malkos with the Gezeirah-Shavah of "le'Einei" "le'Einecha" - he means that we learn Chayvei K'risus (where the Torah writes "ve'Nichr'su le'Einei ... ") from Chayvei Malkos (where it writes "ve'Niklah Achicha le'Einecha").

(e) When Rebbi Akiva gave the fact that one can do Teshuvah as the reason - he was only explaining why the Torah was more stringent by Chayvei Kareis than by Chayvei Misos Beis-Din (Hagahos ha'Bach).

(a) We initially reject Rebbi Aba bar Mamal Kashya that, in that case, why do we not also learn "me'Einei" (written by Misas Beis-Din of Avodas-Kochavim) from "le'Einecha" (and include Misas Beis-Din in Malkos) - on the grounds that the two words differ in two details, making them too different to learn one from the other.

(b) We overrule this Kashya however, with a statement of de'Bei Rebbi Yishmael, who says about learning a 'Gezeirah-Shavah' "Shiyvah" from "Bi'ah" - 'Zu Hi Shiyvah, Zu Hi Bi'ah' (since the words have the same meaning it doesn't matter that their grammatical format differs completely).

(c) Besides we ask, if we can learn "le'Einei" from "le'Einecha" (K'risus from Malkos) - why can we not also learn "me'Einei" from "le'Einei" (Misos from K'risos), where the two words only differ in one detail?

(d) Rebbi Shmuel bar Rav Yitzchak gave an answer to Rebbi Aba bar Mamal's Kashya, and gave an answer. Alternatively, 'Kiblah Mineih Rebbi Shmuel bar Rav Yitzchak' might mean - that he heard the answer from Rebbi Avahu (against whom the Kashya was initially directed).

(a) In any event, to answer Rebbi Aba bar Mamal's Kashya, we qualify the D'rashah 'Mishum Rish'ah Achas Atah Mechayvo, ve'I Atah Mechayvo Mishum Sh'tei Rish'ayos' - by confining it to punishments that are at the hands of Beis-Din (since that is what the Pasuk is talking about), but not to those that are at the Hand of Hashem (such as Kareis).

(b) Rava disagrees with the previous interpretation of the Machlokes Tana'im. Even Rebbi Yishmael agrees he says, that if they warned the culprit that he will be killed, he will not receive Malkos - because of the principle 'Mishum Rish'ah Achas Atah Mechayvo ... ' (as Rebbi Akiva explained).

(c) And they argue over - where he was warned for Malkos only, whether an Azharah that is written in the Torah for Misas Beis-Din is subject to Malkos (like every other Azharah in the Torah, Rebbi Yishmael) or not (Rebbi Akiva, since it is needed for the Chiyuv Misah).

(d) In spite of what we just said, according to Rebbi Akiva, Chayvei Kareis are subject to Malkos. We do not say there too, that the Azharah is needed for Kareis - because Kareis does not require an Azharah.

(a) Rav Mordechai, quoting Avimi me'Hagrunya in the name of Rava, proves this from Pesach and Milah, which are Chayav Kareis even though there is no Azharah.

(b) We try contend that the La'av is needed for a Korban be'Shogeg (by Chayvei Misas Beis-Din, and not for Malkos) - from Pesach and Milah, by which the Torah does not write an Azharah, and which do not bring a Korban be'Shogeg.

(c) We refute this contention however - by attributing the absence of a Korban to the fact that they constitute only an Asei, whereas we learn from Avodas-Kochavim (one of the sources of Korban Chatas) that only the contravention of a Lo Sa'aseh requires a Korban.

(d) Ravina reinstates our original interpretation of Rebbi Akiva, and he takes his statement, 'she'Im Asu Teshuvah, Beis-Din shel Ma'alah Mochlin Lahen' literally. He answers the Kashya that we asked earlier 'Ha Lo Avud Teshuvah' - by pointing out that nevertheless, the fact that Teshuvah rescinds the Kareis makes its implementation uncertain. That is why it is not called 'Sh'tei Rish'ayos, and that is why he receives Malkos, too (even if he has not yet done Teshuvah).

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