MAKOS 16 - Dedicated by HaGaon HaRav Yosef and Ruthie Pearlman of London, England. May Hashem bless them with good health and all their material needs, and may they enjoy many years of Nachas and joy from their wonderful children and grandchildren.

[16a - 46 lines; 16b - 44 lines]

1)[line 1]וכל לאו שאין בו מעשה, אין לוקין עליוCHOL LAV SHE'EIN BO MA'ASEH, EIN LOKIN ALAV- any prohibition that is transgressed without performing any action, we do not administer Malkus for it. The Tana'im also dispute (Makos 4b) whether or not one receives Malkus for this type of Lav.

2)[line 3]התראת ספקHASRA'AS SAFEK

If a person transgresses a Lav for which the punishment is the death penalty or lashes, he can only be put to death or lashed if he has been given a proper Hasra'ah (warning). The warning must be, "Abstain, because this action is prohibited and you will be punished with the death penalty (or with lashes) for doing it," or something to that effect. The warning must specifically name the Lav (or Av Melachah of Shabbos) that the person is about to transgress. If the warning is, "Abstain, because this action might be prohibited...," it is called Hasra'as Safek. If it turns out that a transgression was done, the Amora'im argue as to whether Malkos may be administered.

3)[line 9]טעמא דבא הכתובTA'AMA D'VA HA'KASUV- the reason is [only] because the verse came [and taught that specifically in this case, one is not punished with Malkus for leaving over the meat of the Korban until the morning]

4)[line 18]בזה אחר זה, פטורB'ZEH ACHAR ZEH, PATUR- [when a son is in doubt about which one of two men is his father, and he hits or curses] one after the other, he is exempt [from punishment, because the warning he received prior to each act was only a Hasra'as Safek]

5)[line 25]ומימרMEIMAR (TEMURAH)

(a)The Torah states, "Do not try to transfer or exchange it (an animal that has been designated as a Korban) [for another animal], neither a good animal for a bad one nor a bad one for a good one. If you do exchange an animal [of Kodesh] for another animal [that is not], both the original animal and the one given in exchange for it, will be Kodesh" (Vayikra 27:10). The Chinuch explains that the reason for the prohibition of Temurah is to teach us the proper reverence that we must have for objects of Kedushah (SEFER HA'CHINUCH #351, #352).

(b)The second animal, or the Temurah, is usually a valid Korban. If it has no Mum (blemish that invalidates it), it must also be offered on the Mizbe'ach (unless the original Korban was a Chatas or an Asham, or unless the original Korban itself was unfit to be sacrificed).

(c)A person who intentionally makes a Temurah receives Malkus (lashes). Sometimes, even if a person makes a Temurah b'Shogeg (unintentionally), he receives Malkos (see Chart to Temurah 17a).

6)[line 31]כל מצות לא תעשה שיש בה קום עשה, אין חייבין עליהKOL MITZVAS LO SA'ASEH SHE'YESH BAH KUM ASEH, EIN CHAYAVIN ALEHA- for any prohibition that has in it a positive commandment, one is not liable for Malkus. (Rather, by fulfilling the positive commandment he avoids the Malkus. According to Rebbi Yehudah, in our case, since the positive commandment to send away the mother bird applies before the transgression and not afterwards, there is no way to correct the transgression with a Mitzvas Aseh.)

7)[line 32]נפק, דק ואשכחNAFAK, DAK V'ASHKACH- (lit. he went out, checked, and found) he checked into the sources and found a Beraisa


(a)A Lo Sa'aseh she'Nitak l'Aseh describes a negative commandment (Lo Sa'aseh or "Lav") that is followed by a positive commandment (Aseh) instructing us what to do if the Lav was transgressed. Usually, the Aseh is an action that is performed to correct the Lav. For example, the Torah states, "v'Lo Sigzol" - "You shall not steal" (Vayikra 19:13); if someone transgresses this prohibition, the Torah tells him to correct his misdeed, "v'Heshiv Es ha'Gezelah" - "He shall return the stolen object" (Vayikra 5:23).

(b)At times, the Aseh follows the Lav (e.g. Temurah - Vayikra 27:10 and Nosar), and at times it is found in a different Parshah altogether (e.g. Gezel).

(c)Reish Lakish rules that the Malkus (lashes) administered for the transgression of a Lav ha'Nitak l'Aseh are contingent upon whether the sinner subsequently fulfills (Kiyemo) the Mitzvas Aseh (in our case, he sends away the mother bird) that is associated with the Lav. RASHI to Chulin explains that the sinner can exempt himself from Malkus only if he fulfills the Aseh within Kedei Dibur (see Background to Shevuos 32:5). Rashi to Makos (15b DH v'Reish Lakish) and other Rishonim explain that he is exempt from Malkus if he fulfills the Aseh at any future time.

(d)Rebbi Yochanan rules that the Malkus administered for the transgression of a Lav ha'Nitak l'Aseh are contingent upon whether the sinner subsequently annuls (Bitlo) the Aseh or not; i.e. he only receives lashes if he takes the young without sending away the mother bird and then kills the mother bird, so that it can no longer be sent away. (If the mother bird dies on its own he does not receive lashes.)

9)[line 35]שילוח הקןSHILU'ACH HA'KEN

It is forbidden to take a mother bird that is sitting on her nest together with the eggs or baby birds; rather, he must first send the mother away as prescribed in Devarim (22:7). This is a Mitzvas Aseh that is not limited to any particular time, and therefore a woman is obligated in this Mitzvah, as in all Mitzvos Aseh she'Lo ha'Zeman Geraman.

10)[line 36]קם ליה בדרבה מיניהKAM LEI BID'RABAH MINEI - literally, "he remains with the worse of the two," or, "a more severe punishment exempts one from the less severe one")

(a)When one performs a single act from which he incurs two punishments, or a punishment and a monetary liability, the more severe punishment exempts the sinner from the less severe one. For example, one who stabs another to death will not have to pay for the shirt that he tore while stabbing. (See Background to Sanhedrin 79:16.)

(b)In the case of the Gemara here, the man who murdered the woman he was required to remarry is not punished with Malkus for nullifying the Mitzvas Aseh to remarry her, because he is punished with a more severe punishment (death) for murdering her.

11)[line 37]אי שוויתיה שליחIY SHAVISEI SHALI'ACH- if she appointed him as an agent

12)[line 38]כל כמיניה?KOL K'MINEI?- (lit. is everything from him?) does he have the power to accept Kidushin on her behalf from someone else? Rather, she remains unmarried and he still can fulfill the Mitzvas Aseh to remarry her.

13)[line 40]הפרהHAFARAH - annulment of vows

(a)When an adult makes a Neder (or designates Chalah, Terumah, or Kodshim) or Nezirus, and he regrets having made the Neder, he may have it revoked by a Beis Din of three (if they are not outstanding authorities) or a Yachid Mumcheh (an outstanding authority). The general method used is that Beis Din investigates whether the person would not have made the Neder in the first place had he been aware of a particular fact. This investigation provides the person with a "Pesach" (opening) with which the Beis Din can revoke the Neder.

(b)Even though the topic of our Gemara is Hataras Nedarim, it uses the word "Hafarah," which usually refers to Hafaras Nedarim, a slightly different topic (see Background to Bava Metzia 96:13). (A similar interchange of topics is found in Bechoros 37a, as TOSFOS ibid. DH Meferin and the Mesores ha'Shas point out.)

(c)A Neder made in public, or a Neder "Al Da'as Rabim" - at the public's behest, may not be subject to annulment, as the Gemara will now discuss.


14)[line 1]ושעבודא דגר הוא דקא פקעSHIBUDA D'GER HU D'KA PAKA- and it is the claim of the convert that stops upon his death. This means that the obligation to return the pledge by paying its value continued until the time of the convert's death.

15)[line 2]פאהPE'AH - The Corner of One's Field that is Left for the Poor

(a)The "corner" of the harvest must be left in the field for the poor (Vayikra 19:9-10). This means that one must leave some of his produce unharvested. Mid'Oraisa one may leave any amount; however, the Rabanan fixed the minimal Shi'ur at one sixtieth of the field. It is praiseworthy to leave even more than this (Pe'ah 1:2).

(b)Pe'ah applies not only to produce grown in a field such as wheat, but also to fruit that grows on trees (Devarim 24:20). The laws of Pe'ah apply to any food item that grows from the ground, one wishes to retain for himself, is harvested all at once, and can be kept in storage (Pe'ah 1:4).

16)[line 6]הקמהKAMAH- the standing grain. The Mitzvah of Pe'ah is to leave the produce while it still stands in the ground.

17)[line 7]העומריםOMRIM- the sheaves. After grain is reaped, it is bound into sheaves.

18)[line 8]הכריKRI- the heap. After the sheaves are brought in from the field, the wheat is piled into a heap.


(a)By Torah Law, a person is required to tithe his grain only if he harvests it in a normal manner. This includes removing the chaff in the field, piling the grain there, and afterwards bringing it through the front door of his house (Berachos 35b). It is then Hukba l'Ma'aser (designated for tithing).

(b)If one of these steps is missing, the produce still may not be eaten without separating Terumos and Ma'asros mid'Rabanan. The Rabanan did not prohibit eating such produce, however, in a temporary fashion (Achilas Ara'i). Achilas Ara'i includes situations such as eating the produce while it is still in the field and feeding it to one's livestock.

20)[line 10]העיסהISAH- the dough

21)[line 14]מקרי דרדקיMAKRI DARDEKEI- a teacher of school boys (who teaches them to read verses)

22)[line 15]דהוה פשע בינוקיD'HAVAH PASHA BINUKEI- who was hitting the children more than necessary

23)[line 18]ביניתא דבי כרבאBINISA D'VEI KERAVA- (a) a worm found in cabbage (RASHI); (b) a type of fish (TOSFOS)

24)[line 21]ונגדיהV'NAGDEI - and they lashed him (MAKAS MARDUS)

Beis Din has the power to inflict lashes upon a person when lashes mid'Oraisa cannot be instituted. These lashes are called Makas Mardus (lit. lashes for rebelliousness) and may be unlimited in number. (See Insights to Chulin 110:1 for a discussion of the various opinions regarding how Makas Mardus is administered.)

25)[line 21]פוטיתאPUTISA- a small non-Kosher fish or aquatic reptile

26)[line 22]נמלהNEMALAH- an ant


(a)A Sheretz (a crawling pest - see Vayikra 11:29-38 for a list of the eight Sheratzim that cause Tum'ah, and Background to Chulin 122:7), even if it or a part of it is only the size of an Adashah (lentil bean), is an Av ha'Tum'ah (Chagigah 11a, Ohalos 1:7). It makes a person or object Tamei at the level of a Rishon l'Tum'ah through Maga (contact), whether the Sheretz was touched willingly or unwillingly. The person who becomes Tamei by touching a Sheretz may not eat Terumah or Kodshim or enter the Azarah of the Beis ha'Mikdash. However, he can immediately immerse in a Mikvah. After nightfall he becomes Tahor and may eat Terumah or Kodshim or enter the Azarah.

(b)In addition to Tum'as Maga, a dead Sheretz that is found in an earthenware oven makes the oven and all food or drink items that are in it Teme'im, whether the Sheretz touches them or not.

(c)It is forbidden to eat the abovementioned Sheratzim that generate Tum'ah, as well as all other creeping pests, as the verse states, "v'Chol ha'Sheretz ha'Shoretz Al ha'Aretz, Sheketz Hu, Lo Ye'achel" - "And all creeping things that creep on the ground are an abhorrence, they shall not be eaten" (Vayikra 11:41). If a person eats a k'Adashah of a dead Sheretz (of the eight Sheratzim that generate Tum'ah) or a k'Zayis of a live Sheretz (or of all other types of Sheratzim, dead or alive) b'Mezid (intentionally) after Hasra'ah (being forewarned), he is punished with Malkus (lashes). (Chulin 122a; SEFER HA'CHINUCH Mitzvah #162)

28)[line 23]צרעהTZIR'AH- a hornet

29)[line 24]המשהה את נקביוHA'MESHAHEH ES NEKAVAV- one who holds back his bodily functions and resists his body's urge to urinate or defecate

30)[line 26]דשתי בקרנא דאומנאD'SHASI B'KARNA D'UMANA- [a person] who he drinks from a bloodletter's tube [transgresses the verse, "Do not make yourselves abominable"]. The RAMBAM learns that this applies even to eating or drinking something that is revolting. There is a disagreement among the Rishonim if this is a Torah prohibition or merely an Asmachta.

31)[line 28]ריסקRISEK- he mashed or crushed

32)[line 29]בריהBERYAH- a creature. (One who eats a whole insect is liable for five punishments.)

33)[line 32]ברברביRAVREVEI- [Rava is dealing with] large ones (ants)

34)[line 33]בזוטריZUTREI- [Rabah is dealing with] small ones (ants)

35)[line 44]דמאיDEMAI

(a)Produce bought from an Am ha'Aretz (an unlearned Jew who is lax in his Torah-observance; see Berachos 47b) is referred to as Demai ("Da Mai?" - "what is this?").

(b)Terumas Ma'aser and Ma'aser Sheni must be separated from this produce, since a minority of Amei ha'Aretz cannot be trusted to have separated them before selling the produce. Terumah Gedolah, however, because of its stringency, is presumed to have been separated. Ma'aser Rishon and Ma'aser Ani are separated from the produce, but they are eaten by the owner and not given to the Levi or the Ani (in keeping with the principle of "ha'Motzi me'Chaveiro Alav ha'Re'ayah").

(c)Since most people separate Ma'aser, the Rabanan were lenient with the laws of Demai.