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Makos 22

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



(a) The Amora'im cite many possible La'avin which the Tana could have included in our Mishnah (some of them which have nothing, even remotely, to do with plowing, only according to Rebbi Chanina ben Chachinai). Rav Hoshaya asks from 'Zore'a be'Nachal Eisan' - referring to a the valley where the neck of an 'Eglah Arufah' is broken, which remains forbidden to till forever.

(b) Rav Chananya asks from 'Mochek es Hashem ba'Halichaso', and Rebbi Avahu from 'Kotzetz Baharto' (the prohibition to remove flesh stricken with Tzara'as), whose source is - "Hishamer be'Nega Tzara'as" (since "Hishamer" is always a La'av).

(c) Abaye asks from 'Mezi'ach Choshen me'Al ha'Eifod' and from 'Meisir Badei Aron', and Rav Ashi, from 'Chart ba'Atzei Asheirah'. The source of this latter La'av is -"ve'Lo Yidbak be'Yadcha Me'umah" (as we learnd above).

(a) Ravina asks from 'Kotzetz Ilanos Tovos' and Rebbi Avira comments to Rebbi Mani that the Tana could have asked from where the sinner had sworn that he would not plow on Yom-tov. We reject this latter Kashya - on the grounds that, seeing as we all swore this Shevu'ah already at Har Sinai, a second Shevu'ah, which merely superimposes the first, is not effective (because of the principle 'Ein Shevu'ah Chalah al Shevu'ah').

(b) We nevertheless reinstate it - by establishing our Mishnah when he swore that he would not plow during the week either, in which case the Shevu'ah on Yom-Tov takes effect too (through an Isur Kolel [meaning that since the Shevu'ah is effective regarding the week, it is effective regarding Yom-Tov too).

(c) We refute the suggestion that the Tana does not include the case of Shevu'ah, because he is not concerned with something that can be rescinded, from Hekdesh and Nazir, both of which the Tana mentions even though both can be rescinded. We reinstate the Kashya however, by rejecting the Pircha from ...

1. ... Hekdesh - by establishing the case by Bechor (which cannot of course, be rescinded).
2. ... Nazir - by attempting to establishing it by a N'zir Shimshon ...
(d) ... which we immediately reject, because a N'zir Shimshon is not subject to the Isur of Tum'ah.
(a) We finally answer the Kashya from Shevu'ah - by ascribing the omission to the principle of 'Ein Shevu'ah Chalah al Shevu'ah' as we explained earlier, and by adding that the Tana does not hold of Isur Kolel.

(b) All the other Kashyos however, remain unanswered. In fact, the Tana omits them - because of the principle 'Tana ve'Shiyer' (see Tosfos DH 'Maskif'.

(a) A 'Shor Pesulei ha'Mukdashin' is - an ox of Hekdesh that became blemished and was redeemed.

(b) Rebbi Hoshaya rules that someone who breeds a Shor Pesulei ha'Mukdashin is subject to two sets of Malkos - because the Torah gives it a double status, of Chulin and of Hekdesh (as if it was two animals).

(c) What gives the animal this dual status is - the fact that, on the one hand, it may be eaten anywhere and even be'Tum'ah (like Chulin), whilst on the other, it may not be worked with or shorn (like Hekdesh [see also Tosfos DH 'she'Harei'])

(d) Rebbi Hoshaya's ruling will apply - even if the cow is a Pesulei ha'Mukdashin too.

(e) In the same vein, Rebbi Yitzchak rules - that someone who leads a 'Shor Pesulei ha'Mukdashin' that is hitched to a plow - is Chayav Malkos for transgressing the La'av of "Lo Sacharosh be'Shor u'va'Chamor Yachdav".

(a) Our Mishnah learns from the Pasuk "be'Mispar ... Arba'im" - that Malkos comprises thirty-nine lashes (the number that leads up to forty), and not forty.

(b) According to Rebbi Yehudah, one receives forty lashes. The 'extra' one is administered - between the shoulder-blades.

(c) The Mishnah requires 'Makos Re'uyos le'Hishtalesh' - meaning a number of lashes divisible by three (two thirds at the back, and one third, at the front). Consequently, if the Chachamim assess that a person can take twenty lashes, say, he receives eighteen.

(a) Our Mishnah rules that, in a case where someone is assessed ...
1. ... for 'forty' lashes, and after he has received some of them, it is discovered that he cannot take the full quota - since he was disgraced in Beis-Din, he is Patur from the rest.
2. ... for eighteen lashes, and after he has received them, they conclude that he is able to take the full quota - he is Patur from the rest (for the same reason).
(b) But in a case where he is assessed ...
1. ... for 'forty' lashes, and before he has received any, it is discovered that he cannot take any Malkos at all - then they wait until he becomes stronger, and is able to take the full forty.
2. ... for eighteen lashes, and before he has received any, they conclude that he is able to take the full quota - then he receives the full quota.



(a) Our Mishnah extrapolates from the Pasuk "be'Mispar ... Arba'im" that Malkos comprises thirty-nine lashes. Had the Torah meant the sinner to receive forty - it might have written "Arba'im ... be'Mispar".

(b) Based on this D'rashah, Rava refers to most people as foolish - because they rise for a Seifer-Torah, but not for a great man (a Talmid-Chacham), seeing as the latter has the power to interpret the former (such as here, where the Torah writes "forty", and the Chachamim 'change' it to thirty-nine.

(c) Rebbi Yehudah learns from the Pasuk "Mah ha'Makos ha'Eileh Bein Yadecha, ve'Amar Asher Hukeisi Beis Me'ahavai" - that a sinner receives one extra stroke between his shoulder-blades, accounting for the forty lashes.

(d) The Rabbanan interpret this Pasuk - with regard to a child in Cheder, getting lashed because he is not learning properly (and not to someone who is Chayav Malkos).

(a) We learned in our Mishnah that if the Chachamim assessed a sinner to receive a certain amount of lashes and before having receiving any, they reassessed that he could take more or less than the original assessment, he will receive the higher assessment. This speaks when they assessed him for that day, and then discovered that he could take more or less that their original assessment, a clear indication that their original assessment was erroneous. Consequently, Beis-Din will wait until he gains strength, and make a fresh assessment then. Similarly, where he was assessed for eighteen and on the same day, they reassessed him for forty, it is clear that their first assessment was made in error, and we go after the second one. Whereas the Beraisa speaks when the assessment was made for a different day, by which time he may well have changed for the better or for the worse, in which case the original assessment stands (even if he did not yet receive anything, either because he is Yotze with the eighteen that he received, or because the assessment itself was a disgrace that rendered him Yotze).

(b) We reject the explanation that if Beis-Din assessed him for that day, then we cannot exempt him before he has received at least some of the Malkos - because a. it would make no sense to give him Malkos on the basis of the original assessment, when now Beis-Din claim that any Malkos that he receives will kill him, and b. the Mishnah says that if he received Malkos, he is Patur, but not that Lechatchilah, he must receive it.

(c) In a case where Beis-Din assessed someone who committed a double-sin (e.g. he plowed with an ox and a donkey, and at the same time, he sowed Kil'ayim in a vineyard), and he received some of the Malkos. our Mishnah rules - that if the Malkos that he received covered some of the second La'av (e.g. forty-two), then he is Patur from the rest; otherwise, he remains due to receive another thirty-nine.

(d) To reconcile this with the Beraisa 'Ein Omdin Omed Echad li'Shenei La'avin', Rav Sheishes interprets the Beraisa - when they assessed him for forty-one lashes, in which case, he will receive thirty-nine lashes for one of the La'avin, and when he has gained strength, he will receives the full quota for the second La'av (but not if they assessed him for forty-two).

(a) Presumably the post to which they tied the sinner's hands, was the width of a person. Its height was - one and a half to two Amos.

(b) The Sheli'ach Beis-Din - then takes hold of his clothes from the hem, and pulls them up, to uncover his body as far as the heart.

(c) In the event that the sinner's clothes tore - the Sheli'ach was not obligated to pay.

(d) The Sheli'ach Beis-Din stood on a stone behind the sinner, but slightly to his left (assuming he was right-handed).

(a) The Sheli'ach Beis-Din folded the two calf straps with which he was about to lash the sinner lengthwise (to make four).

(b) He attached - a strap of donkey hide to inside the fold of each of the two doubled calf straps.

(c) The size of the handle was - a Tefach wide and a Tefach thick.

(d) Each strap was - one Tefach wide and sufficiently long to curl round the sinner's back and reach the beginning of his stomach.

(a) The thirty-nine lashes were divided - one third in front and two-thirds at the back.

(b) We learn from the Pasuk "Vehipilo ha'Shofet" - that the sinner had to bend over when receiving Malkos (though the lashes struck him across his back or across his stomach).

(c) The Sheli'ach Beis-Din was obligated to strike the sinner - with full force.

(a) What do we learn from the Pasuk (in connection with a Shifchah Charufah) "Bikores Tiheyeh" - that one Dayan had to read a Parshah whilst the Malkos was being delivered.

(b) He read - the Parshah from Ki Savo "Im Lo Sishmor La'asos ... ve'Hifla Hashem es Makoscha ... ".

(c) And he concluded - with the Pasuk "ve'Hu Rachum ... ".

(d) If he finished reading before the sinner had received all his Malkos - he would read the Parshah again.

(a) If the sinner died ...
1. ... in the course of the Malkos - the Sheli'ach Beis-Din was Patur.
2. ... as a result of the Sheli'ach Beis-Din adding an extra stroke - he was Chayav to go into Galus.
(b) Our Mishnah learns from the Pasuk "ve'Niklah Achicha le'Einecha" - that if the sinner wetted or sullied himself during the course of the Malkos, he was Patur (since he had been disgraced).

(c) Rebbi Yehudah - agrees with this with regard to a woman, but a man will only be Patur should he sully himself.

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