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MAKOS 16

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(a) Rebbi Yehudah in a Beraisa states that when the Torah writes in Bo "ve'Lo Sosiru Mimenu ad Boker, ve'ha'Noser Mimenu ad Boker, ba'Eish Tisrofu" - by adding an Asei, it exempts the transgressor from Malkos.
(b) Based on what we just learned ...
1. ... Rebbi Yochanan extrapolates from Rebbi Yehudah's statement - that if not for the fact that it is a La'v ha'Nitak la'Asei, the transgressor would receive Malkos, even though it is a Hasra'as Safek.
2. ... Resh Lakish extrapolates from there - that he would receive Malkos, even though it is a 'La'v she'Ein bo Ma'aseh'.
(c) Resh Lakish disagrees with Rebbi Yochanan on the basis of another Beraisa, where the Rabbanan argue with Rebbi Yehudah over 'Hikah Zeh ve'Chazar ve'Hikah Zeh (or 'Kilel Zeh ... '). The case is - where a woman gets married within three months of her divorce from her first husband, and she subsequently give birth to a son who is a 'Safek Tish'ah la'Rishon, Safek Shiv'ah le'Acharon'.
(d) The Tana Kama declares the son Chayav under all circumstances. Rebbi Yehudah - confines the Chiyuv to where he strikes them both within 'Toch k'Dei Dibur (within the time it takes to say 'Shalom Alechcha Rebbi' [or 'Rebbi u'Mori'])
in which case it is a Hasra'as Vadai), but not to where he strikes first one of them, and then the other (which is a Hasra'as Safek).
(e) Resh Lakish has now proved - that Rebbi Yehudah holds 'Hasra'as Safeik Lo Sh'mah Hasra'ah'.

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(a) Rebbi Yochanan on the other hand, disagrees with Resh Lakish, on the basis of a statement of Rav Idi bar Avin ... in his name, quoting Rebbi Yehudah in the name of Rebbi Yossi Hagelili - who specifically exempts a 'La'v she'Ein bo Ma'aseh from Malkos ...
(b) ... except for someone who declares a Temurah, someone who cures a fellow-Jew using the Name of Hash-m - and someone who makes a false Shevu'ah.
(c) And we reconcile our proof from there that Rebbi Yochanan argues with Resh Lakish about 'La'v she'Ein bo Ma'aseh' according to Rebbi Yehudah (in connection with a case of Shevu'ah), with the fact that Rebbi Yehudah himself lists 'Nishba' among the exceptions - by establishing that statement specifically by a Shevu'ah to do with the past (e.g. if he claims that he ate something but didn't, or vice-versa, as we will see in Shevu'os), but not to a Shevu'ah to do with the future.
(d) in spite of the fact that the initial Beraisa (regarding "Lo Sosiru") implies that Rebbi Yehudah ascribes Malkos both to a 'La'v she'Ein Bo Ma'aseh' and to a 'Hasra'as Safek', we reconcile it with ...
1. ... Resh Lakish's Beraisa ('Hikah Zeh ve'Chazar ve'Hikah Zeh'), where he holds that 'Hasra'as Safek' is Patur - by presenting the two opinions as a Machlokes Tana'im as to what Rebbi Yehudah said.
2. ... Rebbi Yochanan's 'Beraisa' ('Kol Lo Sa'aseh she'ba'Torah ... '), where he holds that 'La'v she'Ein bo Ma'aseh' is Patur - by presenting the former as Rebbi Yehudah's own opinion, and the second Beraisa, as that of his Rebbe (Rebbi Yossi Hagelili).

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(a) Rebbi Yehudah learns in the Mishnah (later) 'ha'Notel Eim al ha'Banim 'Lokeh ve'Eino Meshale'ach' - because despite the fact that the Asei is written after the La'v, it is considered a 'La'v she'Kadmo Asei (seeing as it is possible to fulfill it before transgressing the La'v).
(b) The Rabbanan disagree with him - because, the fact that it is written after the La'v, implies that the Torah intends it to be a 'La'v ha'Nitak la'Asei', to be fulfilled after having transgressed it, absolving the transgressor from Malkos.
(c) The Mishnah concludes 'Zeh ha'K'lal, Kol Mitzvos Lo Sa'aseh she'Yesh bah Kum Asei, Ein Chayavin Alav'. Rebbi Yochanan ...
1. ... says that there is only one other case, besides that of Shilu'ach ha'Kein, which will be Chayav through the Bitul of the Asei (as we learned earlier).
2. ... told Rebbi Elazar, who asked him what the second case was - to go and search and find out himself.

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(a) Rebbi Elazar established the second case of 'Bitlo' as the Mishnah of 'Oneis she'Giresh' (that we discussed on the previous Daf). The problem with that Mishnah however is - to find a case of 'Bitlo'.
(b) We cannot establish the case where ...
1. ... the woman died - because 'Bitlo' by definition, means that he negated the Asei by his actions.
2. ... he killed her - because then, based on the principle 'Kam leih bi'de'Rabah Mineih', he would be Chayav Misah, and Patur from Malkos.
3. ... where he accepted Kidushin on her behalf from a another man (as Rav Shimi from Neherda'a suggested) - because then, as Rav points out, if he was the woman's Shali'ach, then it is she who will have negated the Asei, and not he; whereas, if he did not, then the Kidushin is not valid anyway.
(c) We reject the suggestion that it speaks where, when he divorced her, he declared publicly (in front of ten people) that he would never take her back (a Neder which is not subject to annulment, in which case he would never be able to remarry her) - because there are some who maintain that such a Neder can be annulled.
(d) So, based on a statement of Ameimar, we establish the case of 'Bitlo' by Oneis she'Giresh, where he made a Neder 'al Da'as Rabim' (that he attaches the Neder to the mind of the Beis-Din [see Ritva]), which everyone agrees, cannot be annulled.
(e) Seeing as he would normally be obligated to take her back, such a Neder will only be valid - if she committed adultery and is forbidden to him (see also Tosfos DH 'K'gon').

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(a) Rebbi Yochanan confines the Din of Malkos by Bitlo, to 'Shilu'ach ha'Kein' and 'Oneis'. He does not include 1. the case of 'Gezel', where the Torah writes in Vayikra "Lo Sigzol' and ''Ve'heishiv es ha'Gezeilah', and returning a Mashkon ("Lo Savo el Beiso La'vot Avoto" and 2. that of "Hashev Tashiv lo es he'Avot" [in Ki Seitzei])'Gezel', where the Torah writes in Vayikra "Lo Sigzol' and ''Ve'heishiv es ha'Gezeilah', and returning a Mashkon ("Lo Savo el Beiso La'vot Avoto" and "Hashev Tashiv lo es he'Avot" [in Ki Seitzei]). And we answer - because inasmuch as in both of those cases, one is obligated to pay, they are not subject to Malkos anyway.
(b) We then ask from the Mashkon of a Ger - which speaks where he burned the Mashkon before the Ger died leaving behind no heirs.
(c) We would have thought that this should be different than the Mashkon of a Yisrael - inasmuch as there is no-one to pay, so he ought to receive Malkos.
(d) And we answer - that in fact, when he burned the Mashkon, he became obligated to pay, only there was nobody to claim the money.

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(a) We also ask why Rebbi Yochanan omits Pe'ah, by which the Torah writes "Lo Sechaleh Pe'as Sadcha ... ", and "le'Ani ve'la'Ger Ta'azov Osam". According to the Beraisa, if one failed to leave Pe'ah from the standing corn or even from the sheaves - then one must take it from the pile of corn after Mi'ru'ach (the flattening of the pile that follows winnowing).
(b) The additional obligation that comes into effect once he has made 'Miru'ach' - is separating Ma'asros (before giving it to the poor man).
(c) According to Rebbi Yishmael - one is even obligated to take Pe'ah from the dough (if one did not do so earlier).
(d) 'Bitlo' will then apply, according to ...
1. ... the Rabbanan - if one kneads it into a dough.
2. ... Rebbi Yishmael - if one eats the dough.

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(a) We therefore conclude that the second case of Bitlo referred to by Rebbi Yochanan is Pe'ah. We retract from our original supposition, that it is Oneis, where the man made a Neder al Da'as Rabim - because it is only forbidden to annul such a Neder for a D'var R'shus, but not for a Mitzvah (such as the fulfillment of 'Kol Yamav' in our case).
(b) And we compare it to the case of a children's Rebbe, whom Rav Acha initially deposed with a Neder al Da'as Rabim - because he hit the children excessively.
(c) Ravina nevertheless reinstated him - because there was no other Rebbe who could match him (in which case the annulment of the Neder was a Mitzvah).

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(a) Rav Yehudah rules - that someone who eats a cabbage-worm receives Malkos (more than one set, as we shall see). See also Tosfos DH 'Binisa de'bei Karba'.
(b) All insects are subject to two sets of Malkos (both in Shemini) "Al Teshaktzu es Nafshoseichem" and "ve'Lo Sitam'u Bahem". For eating ...
1. ... a water insect - he will receive an additional two sets of Malkos (one in Shemini and the other, in Re'ei) for eating a Sheretz ha'Mayim.
2. ... an ant - an extra three (those mentioned with regard to Sheretz ha'Aretz in Shemini).
3. ... a hornet - he will receive the five of an ant, plus one in Parshas Re'ei pertaining to Sheretz ha'Of.
(c) We do not add one set of Malkos for the Pasuk in Kedoshim "ve'Lo Seshaktzu es Nafshoseichem" - because that pertains, not to insects, but to larger animals exclusively.
(d) One is Chayav for eating an ant, even though it is smaller than a ke'Zayis - because we are speaking about where the ant is still alive, and a whole live creature does not require a ke'Zayis.

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(a) Rav Acha'i rules that someone who does not relieve himself when he needs to - transgresses the La'v of "Lo Seshaktzu" (which we just cited, and which implies that one should not do things that are disgusting).
(b) Rav Bibi bar Abaye applies the same La'v - to someone who drinks from a blood-letter's horn. Note, that according to most commentaries, this is only an Asmachta [a de'Rabbanan supported by a Pasuk]).
(c) Rabah bar Rav Huna rules that if someone crushes nine ants and adds one live one to make up a ke'Zayis. says Rabah bar Rav Huna - he will receives six sets of Malkos; five for eating a live ant, as we learned earlier, plus one for eating a ke'Zayis of Sheratzim.
(d) The live ant combines with the nine dead ones to make up the Shiur - because it inevitably dies as one swallows it (see also Tosfos DH 'Risak).

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(a) Rabah Amar Rebbi Yochanan adds that the same will apply even to two ants plus the live one. And Rav Yosef says - even one.
(b) The Amora'im do not in fact argue - because Rabah bar Rav Huna is speaking about small ants and Rabah and Rav Yosef about large and super large ants, respectively.

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(a) Rav rules that one receives Malkos for eating Tevel of Ma'aser Rishon - even though (unlike all the other Ma'asros), it contains not the slightest vestige of Kedushah.
(b) This is also the opinion of Rebbi Yossi in a Beraisa, who says that someone who eats crops from which Terumah was taken, but not Ma'aser Rishon, Ma'aser Sheini or Ma'aser Ani - receives Malkos.
(c) And he learns from the Gezeirah-Shavah "bi'She'arecha" ("ve'Achlu bi'She'arecha ve'Save'u" in Ki Savo) "bi'She'arecha" ("Lo Suchal Le'echol bi'She'arecha" in Re'ei, which contains the La'v for eating Tevel of Ma'aser Rishon and Ma'aser Sheini) that the latter Pasuk incorporates Ma'aser Ani, too ...
(d) ... since the Pasuk is Ki Savo is talking about Ma'aser Ani.

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(a) In the Mishnah in D'mai, Rebbi Eliezer holds that one does not even need to designate Ma'aser Ani of D'mai - the obligation to separate all Ma'asros except Terumah Gedolah from whatever one buys from an Am ha'Aretz.
(b) Yochanan Kohen Gadol instituted it - when he saw that the Amei-ha'Aretz were lax in Ma'asros (though not in Terumah Gedolah).
(c) According to the Rabbanan - one needs to designate and declare Ma'aser Ani of D'mai (but not to separate it).

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(a) Rav Yosef attempts to connect the Machlokes between Rebbi Eliezer and the Rabbanan with Rav's previous ruling - as to whether Ma'aser Ani of D'mai is considered Tevel (the Rabbanan) or not (Rebbi Eliezer, like Rav).
(b) Abaye refutes Rav Yosef's explanation however - because then, they ought to have argued even by Vadai Tevel of Ma'aser Ani (and not just by D'mai).
(c) According to Abaye, Rebbi Eliezer does not suspect the Amei ha'Aretz of not separating Ma'aser Ani. It is easier than ...
1. ... Ma'aser Sheini, inasmuch as a. it and Ma'ser Rishon contain no Kedushah and unlike Ma'aser Sheini, it contains no Kedushah and is not forbidden to the owner - which will encourage him to separate them) and b. it does not need to be taken to Yerushalayim and eaten there.
2. ... Ma'aser Rishon, despite the fact that, like Ma'aser Ani, it is Chulin and does not need to be taken to Yerushalayim to be eaten there - nevertheless, the Amei-ha'Aretz were loathe to separate it, on account of the Terumas Ma'aser that it contains (which is Kadosh and which then needs to be separated from it and given to the Kohen).
(d) The Rabbanan disagree with Rebbi Eliezer however - on the grounds that the Am ha'Aretz probably considers even the actual separating too much bother.

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