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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.



(a) A 'La'av she'Kadmo Asei' is - a La'av which is preceded by an Asei, can also be performed before transgressing the La'av.

(b) Even assuming that a 'La'av ha'Nitak la'Asei' is Patur from Malkos, Rabah bar bar Chanah Amar Rebbi Yochanan rules - that a 'La'av she'Kadmo Asei' receives Malkos.

(c) When Rebbi Yochanan denied having said it - Rabah insisted that, not only did he say it, but that it had the support of a Pasuk and a Mishnah.

(d) The Pasuk to which Rabah referred was "vi'Yeshalchu min ha'Machaneh ... ve'Lo Yetam'u es Machaneihem", and the Mishnah - 'ha'Ba le'Mikdash Tamei' (our Mishnah).

(a) Rebbi Yochanan nevertheless denied having said it, because of a Beraisa in connection with 'O'nes she'Giresh', where the Tana said ...
1. ... 'Im Yisrael Hu - Machzir ve'Eino Lokeh'.
2. ... 'Im Kohen Hu - Lokeh ve'Eino Machzir' (because a Kohen is forbidden to marry a Gerushah).
(b) The problem that Rebbi Yochanan had with this Beraisa was - why a Yisrael should not receive Malkos, seeing as it is a La'av she'Kadmo Asei?
(a) Ula answers Rebbi Yochanan's Kashya, by pointing out that the Torah did not need to write "ve'Lo Siheyeh le'Ishah" by O'nes, because we could learn it from Motzi-Shem-Ra - with a 'Kal va'Chomer', since O'nes performed an act, whereas Motzi-Shem-Ra did not.

(b) This would solve the problem - because then the Pasuk would be redundant, enabling us to turn it from a 'La'av she'Kadmo Asei' into a 'La'av ha'Nitak la'Asei'.

(c) We could apply the Asei after the La'av by O'nes from the Pasuk of Motzi-Shem-Ra, even though it applies there before the La'av - because of the principle 'Im Eino Inyan' (if we don't need the Pasuk for itself, we use it for whatever it is needed for).

(d) We ask a Pircha on the 'Kal va'Chomer' of O'nes from Motzi-Shem-Ra' however - because Motzi-Shem-Ra has the Chumra of Lokeh u'Meshalem, whereas O'nes pays but does not receive Malkos.

(a) We then reverse the Limud, suggesting that the Torah could have learned the Asei by Motzi-Shem-Ra (who has a Din of Lokeh u'Meshalem) from O'nes (who has not), and that we should now learn it 'Im Eino Inyan', as an Asei by O'nes, only after having transgressed, to exempt him from Malkos. But we refute this suggestion - on the grounds that we could not learn Motzi-Shem-Ra from O'nes in the first place, because Motzi-Shem-Ra did not perform an act like O'nes did.

(b) So we try to apply "ve'Lo Siheyeh le'Ishah" written by Motzi-Shem-Ra, to O'nes after having transgressed (to turn it into a 'La'av ha'Nitak la'Asei') because it is superfluous in its own context - since they are already married.

(c) We refute this suggestion too however, on the grounds that - in that case, we would rather apply the redundant "ve'Lo Siheyeh le'Ishah" to Motzi-Shem-Ra itself after having transgresses, to turn *it* into a La'av ha'Nitak la'Asei.

(d) And we refute even the suggestion that we might then learn the P'tur from Malkos by O'nes from Motzi-Shem-Ra with a 'Kal va'Chomer' or with a 'Mah Matzinu' - because whereas the latter did not perform an act (and that is why he is Patur from Malkos), the latter did.

(a) Rava finally solve our problem by Darshening the Pasuk "Lo Yuchal le'Shalchah *Kol Yamav*" - which implies that, even after having divorced the woman he raped, he remains obligated to take her back (finally turning the 'La'av she'Kadmo Asei' into a 'La'av ha'Nitak la'Asei').

(b) And Ravin Amar Rebbi Yochanan says - exactly the same.

(c) Rav Papa asked Rava how Rebbi Yochanan can possibly ascribe Malkos to a 'La'av she'Kadmo Asei', which is not like the standard La'av of Chasimah. To which Rava replied - that the fact that a La'av has as additional Asei does not render it different from any other La'av.

(d) We do indeed exempt a 'La'av ha'Nitak la'Asei' from Malkos for that very reason - but that is because there the Asei comes to qualify the La'av, to exempt it from Malkos.




(a) Even a 'La'av ha'Nitak la'Asei' is subject to Malkos, either in a case of 'Bitlo ve'Lo Bitlo' or in a case of 'Kiymo ve'Lo Kiymo'.
1. ... 'Bitlo ve'Lo Bitlo' means - when after having transgresses the La'av, one goes on to negate the possibility of fulfilling the Asei.
2. ... 'Kiymo ve'Lo Kiymo' means - if the transgressor fails to fulfill the Asei after being ordered by Beis-Din to do so (see also Tosfos DH 'Hasam').
(b) The problem with Rava's D'rashah 'Kol Yamav be'Amod ve'Hachzer', if we say 'Kiymo ve'Lo Kiymo' is - that since he has to fulfill the Asei immediately after being ordered by Beis-Din to do so, 'Kol Yamav be'Amod ve'Hachzer' makes no sense.

(c) We solve the problem - by recalling that it is Rebbi Yochanan who exempts a 'La'av she'Kadmo Asei' from Malkos, and Rebbi Yochanan is the one who holds 'Bitlo ve'Lo Bitlo' (as we shall now see).

(a) The problem with the Beraisa quoted by the Beraisa expert 'Kol Mitzvos Lo Sa'aseh she'Yesh Bah Kum Asei, Kiyem Asei she'Bah Patur, Bitel Asei she'Bah, Chayav' is - that if the criterion for avoiding Malkos is the Kiyum of the Asei, then the Tana ought to have concluded 'Lo Kiyum ha'Asei, Chayav' (hence the expression 'Kiymo, ve'Lo Kiymo'); whereas if it is that it should not be negated, then he should have begun with 'Lo Biteil ha'Asei, Patur' (hence the expression 'Bitlo' ve'Lo Bitlo').


1. Rebbi Yochanan amends the text to read - 'Bitlo' ... 'Lo Bitlo'.
2. Resh Lakish amends it to - 'Kiymo' ... 'Lo Kiymo'.
(c) The basis of their Machlokes is - whether 'Hasra'as Safek' (where there remains a doubt after the warning, that the sinner will be Chayav) is considered a Hasra'ah (Rebbi Yochanan) or not (Resh Lakish), since every case of 'Bitlo ve'Lo Bitlo' is a Hasra'as Safek.

(d) Warning the transgressor before he negates the Asei (in which case it will be a 'Hasra'as Vadai') will not solve the problem - because the Hasra'ah must be made before the sinner contravenes the La'av.

(a) As a matter of fact, Rebbi Yochanan and Resh Lakish follow their own opinions in an independant Machlokes. They both agree, in a case where someone swears that he will eat a loaf of bread on the same day, and fails to do so by the time nightfall arrives - that he will be Patur from Malkos.

(b) Rebbi Yochanan attributes this ruling to the fact that it is a 'La'av she'Ein Bo Ma'aseh'; Resh Lakish - to the fact that it is a Hasra'as Safek (since he has the entire day to fulfill his Shevu'ah).

(c) They are arguing - according to Rebbi Yehudah.

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