1) IMMERSING IN WINE THAT FELL INTO THE SEA
QUESTION: Rav Yehudah in the name of Rav teaches that if a barrel of water falls into the sea and a person who is Tamei immerses himself there, he does not become Tahor, because of the concern that there were three Lugin of water from the barrel gathered in one place. RASHI (DH Lo Alsah) explains that when a person immerses in three Lugin of Mayim She'uvin (water that was drawn with a vessel), he becomes Tamei because of a Gezeirah d'Rabanan. The Gemara in Shabbos (14a) relates that the Rabanan decreed that a person who is Tahor who immerses himself in three Lugin of Mayim She'uvin becomes Tamei (with Sheni l'Tum'ah) and is prohibited from eating Terumah. The Gemara finds support for Rav's ruling in a Beraisa which teaches that when a barrel of wine falls into the sea, one may not immerse in that location because three Lugin of She'uvin might be gathered together in one place.
How can three Lugin of water in the middle of the sea be Metamei a person? The law of "Hashakah" (see Beitzah 17b) teaches that Mayim She'uvin, or water that is Tamei, which merely touches the pure water of a Mikvah immediately becomes Tahor. Mayim She'uvin that is added to a full and valid Mikvah does not disqualify the Mikvah, and one is permitted to immerse there even when most of the water is She'uvin, since the Mayim She'uvin was added after the Mikvah was full. The Mishnah in Mikva'os (6:3) teaches that if a pit of Mayim She'uvin is adjacent to a valid Mikvah, after the waters are made to touch through Hashakah, the pit of Mayim She'uvin becomes fit for use as a Mikvah (if it is filled with at least 40 Se'ah of water). The Mayim She'uvin loses its status of She'uvin through "Hashakah" once it is connected to a full Mikvah.
However, if the water from the barrel is no longer considered Mayim She'uvin once it is touching a valid Mikvah (the sea), then it should no longer be Metamei a person because of the Gezeirah d'Rabanan! How, then, can the three Lugin of Mayim She'uvin that fell into the sea be Metamei a person who immerses there? (TOSFOS DH Amar)
(It is evident that Rashi agrees that the Mayim She'uvin loses its status of She'uvin through Hashakah, because he writes that the only reason the person is Tamei is the Gezeirah d'Rabanan. This implies that the Mayim She'uvin indeed loses its status through Hashakah and is considered a valid Mikvah to remove the person's original Tum'ah, and now the person becomes Tamei because of the Gezeirah.)
Moreover, if the person who immerses in the Mayim She'uvin (the water that spilled from the barrel) becomes Tamei due to the Gezeirah d'Rabanan, then why does Rav and the Beraisa discuss the immersion of a person who was already Tamei? The same Halachah should apply when the person was Tahor and immersed where the water spilled from the barrel! (MISHEH L'MELECH, Hilchos Avos ha'Tum'ah 9:1)
Finally, how can the Gemara say, in its explanation of the Beraisa, that perhaps the person who immersed in the water that spilled from the barrel will become Tamei "because he has a Chezkas Tum'ah"? According to Rashi, the immersion was effective in removing the Tum'ah that he had (and thus he has no Chezkas Tum'ah), and the only question now is whether he has a new Tum'ah d'Rabanan for immersing in Mayim She'uvin! (RITVA)
ANSWERS: Many Rishonim disagree with Rashi's explanation because of these questions and offer alternative explanations for the Gemara.
(a) The Girsa of TOSFOS is that both Rav and the Beraisa are discussing a barrel of wine that fell into the sea. The reason why a person cannot immerse in the wine is not the Gezeirah that Rashi mentions, but that the wine acts as a Chatzitzah, an intervening substance, between the person's body and the seawater. Why, then, is the concerned that the person might have immersed in "three Lugin" of wine? The RITVA answers that the Gemara does not mean that there might be specifically three Lugin in one place; rather, the Gemara means merely that it is likely that at least three Lugin of the wine of the barrel remain together. Certainly, however, even if less than that amount remains together, it will invalidate the immersion.
This answer apparently is consistent with the Girsa of the Gemara before Rashi's emendation, according to which Rav and the Beraisa say that it is "impossible" for there not to be three Lugin that do not remain together. According to Rashi's emendation, the Gemara is saying that there is a concern that perhaps three Lugin remain together. According to Rashi's Girsa, Rav is not describing the situation (and saying that it is impossible that three Lugin are not gathered together), but rather he is describing the Halachah (that the wine will be a Chatzitzah), and thus he should not mention three Lugin at all (but rather merely that "some" of the wine will remain together and cause a Chatzitzah).
The RITVA rejects the explanation of Tosfos on the basis of empirical observation. It is clear to the observer that wine poured into a Mikvah immediately disperses and, therefore, it should become Batel b'Rov to the water of the Mikvah, even if the color of wine is still present.
(b) The Ramban and Ritva cite RABEINU MOSHE HA'DARSHAN who distinguishes between seawater and other types of water. Although Hashakah with a valid Mikvah normally removes the Tum'ah from water and the Pesul of Mayim She'uvin, Hashakah of freshwater with seawater does not remove these Pesulim. Freshwater cannot become part of seawater because it is not the same type of water.
According to Rabeinu Moshe ha'Darshan, the text of the statement of Rav and of the Beraisa can read that a barrel of water (and not wine) fell into the sea. The Pesul of the water from the barrel is due to the fact that the freshwater acts as a Chatzitzah between the person and the Mikvah (the sea).
According to this explanation, the reason why the Gemara mentions specifically "three Lugin" must be as explained above.
(c) According to the Girsa of Rashi, however, Rav is discussing water and the Beraisa is discussing wine. Rashi clearly rejects both of the abovementioned explanations of the Gemara. Perhaps the reason he rejects these two explanations is that he proved that the proper Girsa of the Gemara is "Chaishinan" -- "we are concerned" that there are three Lugin in one place. According to this Girsa, the meaning of "three Lugin" cannot be as the Ritva explains (in (a) above).
This is why Rashi explains that the Tum'ah that Rav is discussing is the Tum'ah d'Rabanan of three Lugin.
Apparently, Rashi learns that although the water that came from the barrel no longer has the status of Mayim She'uvin with regard to making a valid Mikvah, nevertheless -- since the water is still in one place -- the Gezeirah d'Rabanan applies. The Gezeirah depends on the physical status of the water and not on the Halachic status.
Why does Rav discuss a person who is Tamei who immerses in that water? The person who immerses there should become Tamei even if he was previously Tahor!
The MISHNEH L'MELECH (Hilchos Avos ha'Tum'ah 9:1) cites TOSFOS (Shabbos 13b and Gitin 16a) who writes that the Rabanan enacted Tum'ah for a person who immerses in Mayim She'uvin only when he does so on the same day that he previously immersed in a Mikvah. If a person -- who was not Tamei and who did not immerse in a Mikvah earlier -- immerses in Mayim She'uvin, he does not become Tamei. (He becomes Tamei only if three Lugin of water are poured on him, due to a separate Gezeirah.) This also seems to be the opinion of Rashi in Shabbos (14a). For this reason, the Gemara here, which discusses the Tum'ah of a person who immerses in Mayim She'uvin, must discuss a person who was Tamei earlier that day (because if he was never Tamei that day and never immersed in a Mikvah, then immersing in Mayim She'uvin will not make him Tamei).
How, though, can the Gemara say, when it explains the Beraisa, that perhaps the person who immerses in the water from the barrel will become Tamei because he has a Chezkas Tum'ah? Rashi answers this question when he says that the proper Girsa in the Beraisa is that a barrel of wine fell into the sea. Wine is certainly not included in the Gezeirah of immersion in three Lugin (as the Tosefta in Mikva'os 3:6 mentions). The Tum'ah which the Beraisa discusses apparently is due to the fact that the wine separates between the person's body and the seawater, as Tosfos explains. Therefore, it is appropriate to say that the person is Tamei because of his Chezkas Tum'ah, and he never became Tahor from his Tum'ah.
According to this explanation, why does the Beraisa say that there is a concern that three Lugin of She'uvin will remain together? The Tum'ah is neither because of three Lugin nor because of Mayim She'uvin! Rashi cannot answer as the Ritva does, because Rashi's Girsa is "Chaishinan," as mentioned earlier.
The CHAVOS YA'IR (#107) answers that it is clear that Rashi's text of the Gemara did not include these words ("three Lugin of She'uvin") in the Beraisa (see also RASHASH). Indeed, in the Tosefta (Mikva'os 5:9), which is cited by Rabeinu Chananel, these words do not appear. (The word "She'uvin" is clearly a mistake even according to the explanations of Tosfos and Rabeinu Moshe ha'Darshan, since the Tum'ah mentioned in the Beraisa cannot be related to Mayim She'uvin.)
2) THE SOURCE FOR "MALKUS" OF "EDIM ZOMEMIM"
QUESTION: The Mishnah (4a) records two arguments between Rebbi Meir and the Rabanan. The first involves a case in which witnesses testify that a person owes 200 Zuz and they are found to be Edim Zomemim. Rebbi Meir rules that the Edim Zomemim receive Malkus and must pay the defendant the money they tried to cause him to lose. The Rabanan say that the Edim Zomemim only pay and do not receive Malkus.
The second argument involves a case in which witnesses testify that a person transgressed an Aveirah which is punishable with Malkus and they are found to be Edim Zomemim. Rebbi Meir says that each witness receives two sets of Malkus -- one for transgressing "Lo Sa'aneh" (Shemos 20:13) and one for "Ka'asher Zamam" (Devarim 19:19). The Rabanan say that they receive only one set of Malkus, for "Ka'asher Zamam."
The Gemara explains that the Rabanan do not give Malkus to the Edim Zomemim in the first case of the Mishnah because the verse states, "Kedei Rish'aso" (Devarim 25:2), which teaches that the evildoer receives only one punishment and not two. The Rabanan give only one set of Malkus to the Edim Zomemim in the second case of the Mishnah because the verse of "Lo Sa'aneh" serves as the Azharah for Edim Zomemim, and therefore it cannot be used as a source to give a second set of Malkus.
RASHI (DH l'Azharah) explains that the Gemara means that "Lo Sa'aneh" is used as an Azharah so that Beis Din will be able to punish the Edim Zomemim. Without an Azharah, Beis Din would not be able to punish them, because of the rule that the Torah does not administer a punishment for an act unless a Lav has been designated to prohibit the act. Since the Lav of "Lo Sa'aneh" was given as an Azharah for the punishment, it cannot be used for a second purpose of giving Malkus. This concept is explained in more detail by Rashi (13b, DH Ein Lokin Alav) and the Rishonim later. The Gemara there and in other places teaches that whenever the Torah prescribes the death penalty, there must be an associated Lo Sa'aseh that explicitly prohibits the act for which the death penalty is prescribed. Once such a Lo Sa'aseh is found, the rule is that Malkus may never be administered based on that Lav, since the purpose of that Lav is to serve as an Azharah for the death penalty and not to teach that Malkus is administered (that is, it is a "Lav she'Nitan l'Azharas Misas Beis Din").
If the Gemara maintains that the Rabanan never administer Malkus for "Lo Sa'aneh" because there are times when it is used as an Azharah for the death penalty of Edim Zomemim, then why does the Gemara explain that the reason why the Rabanan do not give Malkus in the first case of the Mishnah is the verse, "Kedei Rish'aso"? The Gemara should say simply that the Rabanan maintain that Edim Zomemim are not punished with Malkus because "Lo Sa'aneh" is an Azharah for the death penalty, a "Lav she'Nitan l'Azharas Misas Beis Din," and not because of "Kedei Rish'aso"!
Moreover, why does Rashi say that Edim Zomemim never receive Malkus, based on the Lo Sa'aseh of "Lo Sa'aneh"? The Mishnah (on 2a) clearly teaches that Edim Zomemim who testified falsely that a Kohen was a Ben Gerushah receive Malkus. Obviously, the verse of "v'Hitzdiku" (Devarim 25:1) teaches that Malkus is given to Edim Zomemim despite the fact that "Lo Sa'aneh" is a "Lav she'Nitan l'Azharas Misas Beis Din." (See TOSFOS DH v'Rabanan, and GILYON HA'SHAS there.) If the verse teaches that Edim Zomemim receive Malkus for a "Lav she'Nitan l'Azharas Misas Beis Din," then why should Beis Din not administer Malkus even in the case of the Mishnah in which witnesses testified that the defendant was Chayav Malkus? What reason is there to limit the verse of "v'Hitzdiku" to the case of Edim Zomemim who testified that a Kohen was a Ben Gerushah, as opposed to other cases of Edim Zomemim? (RITVA)
ANSWERS: The Rishonim have a number of different approaches to answer these questions.
(a) TOSFOS (DH v'Rabanan and DH L'Azharah) explains that when the Gemara asks that there should be a separate set of Malkus for "Lo Sa'aneh," the Gemara assumes that Malkus is given when the Torah specifies a punishment of Malkus for a certain transgression even when there is no Lo Sa'aseh associated with the prohibited act. Therefore, in the Mishnah's case, there should be one set of Malkus for "Ka'asher Zamam" and a second case of Malkus for "Lo Sa'aneh." The Gemara answers that a punishment of Malkus cannot be given unless there is a Lo Sa'aseh associated with the prohibited act. Therefore, "Ka'asher Zamam" by itself is not sufficient reason to give Malkus to the Edim Zomemim (when they testify falsely that someone is Chayav Malkus) had it not been for the Lo Sa'aseh of "Lo Sa'aneh." Accordingly, the Malkus of the Lo Sa'aseh of "Lo Sa'aneh" is the same Malkus as that of "Ka'asher Zamam."
This explanation answers the questions on Rashi. When the Gemara discusses witnesses who testified falsely that a person owes money, the witnesses do not receive Malkus for "Ka'asher Zamam" in such a case. Therefore, if not for the rule of "Kedei Rish'aso," Malkus for "Lo Sa'aneh" could be given in such a case, since "Lo Sa'aneh" is not being used to give any other Malkus in this case. This explains why there is Malkus in the case of Edim Zomemim who testified falsely that a Kohen was a Ben Gerushah. In that case, too, there is no other Malkus being administered because of "Lo Sa'aneh," and therefore "Lo Sa'aneh" can warrant a punishment of Malkus. It is only in a case in which "Lo Sa'aneh" is already being used as an Azharah for a punishment of Malkus of "Ka'asher Zamam" that Beis Din cannot administer a second punishment of Malkus for the Lav of "Lo Sa'aneh."
According to Tosfos, however, the wording of the Gemara is somewhat forced. The Gemara does not mean that "Lo Sa'aneh" is being used for an Azharah for "Edim Zomemim" in general, but that it is being used as an Azharah for the punishment of Malkus of "Ka'asher Zamam" which is given to the Edim Zomemim in this specific case.
(b) The RAMBAN and RITVA explain that "Lo Sa'aneh" indeed is an Azharah for Edim Zomemim in general, and not just for Malkus of Edim Zomemim. They explain that just as the punishment of Malkus is administered only when there is a Lav that serves as an Azharah for the prohibited act (as Tosfos writes), the punishment of "Ka'asher Zamam" is a punishment given only when a Lav prohibits the act. Therefore, whether the witnesses testified that the defendant owes money or whether they testified that he should receive Malkus or Misas Beis Din, in all cases the Lav of "Lo Sa'aneh" is needed as an Azharah to punish the Edim Zomemim by making them pay, receive Malkus, or be killed. Why, then, does the Gemara earlier say that the reason why Edim Zomemim do not receive Malkus for "Lo Sa'aneh" when they testify falsely that someone owes money is the verse of "Kedei Rish'aso"? The Gemara should say instead that they do not receive Malkus because "Lo Sa'aneh" in this case is being used already to punish them with "Ka'asher Zamam" by making them pay!
The Ramban, cited by the Ritva (beginning of 4b), answers that it appears that the Gemara indeed could have used this argument to exempt the Edim Zomemim from Malkus. It mentions "Kedei Rish'aso" as an extra reason for why they do not receive Malkus. In fact, when Rebbi Meir in the Mishnah says that the reason why Edim Zomemim -- who testified falsely that the defendant owes money -- receive Malkus is that "the verse that gives them Malkus is not the same verse that obligates them to pay," his intention is to rebut the reasoning of the Rabanan who exempt the witnesses from Malkus on the grounds that the Lav of "Lo Sa'aneh" is the Lav which obligates them to pay because of "Ka'asher Zamam." Rebbi Meir follows his own opinion as expressed in the end of the Mishnah, in which he maintains that "v'Lo Yosifu" (Devarim 19:20) is the Azharah that obligates the witnesses for the punishment of "Ka'asher Zamam" (that is, the monetary payment), and therefore "Lo Sa'aneh" is free to teach that they must receive Malkus as well.
According to the Ramban and Ritva, in the case of Edim Zomemim who testify falsely that a Kohen is a Ben Gerushah, the witnesses can be punished with Malkus of "Lo Sa'aneh" since that Lav is not being used in that case to administer a punishment of "Ka'asher Zamam."
There is an important difference between the approaches of Tosfos and the Ramban with regard to the nature of the punishment of Edim Zomemim. According to Tosfos, "Ka'asher Zamam" is punishable with one of three different types of punishments. Sometimes the punishment of "Ka'asher Zamam" is a monetary payment, sometimes it is a punishment of Malkus, and sometimes it is a punishment of Misah. In contrast, according to the Ramban and Ritva there is only one punishment for Edim Zomemim: that punishment is named "Ka'asher Zamam," and it is an entirely new punishment. Sometimes that punishment entails obligating the Edim Zomemim to pay, and sometimes it entails killing them. However, according to the Ramban, in all of these cases the punishment is the same: a punishment of "Ka'asher Zamam." (See Insights to Sanhedrin 40:2:b.)
This difference in understanding "Ka'asher Zamam" affects a number of Halachos of Edim Zomemim. For example, Tosfos in Bava Kama (4b, DH v'Edim) cites the RI who explains that Edim Zomemim who succeeded in obligating a person to pay money are punished with "Ka'asher Zamam," because -- with regard to monetary punishment -- the rule is "Onshin Min ha'Din" (and thus if they are punished when they did not succeed in carrying out their plot, then certainly they are punished when they did succeed). According to the Ramban and Ritva, this argument is not valid. The punishment of witnesses who testified that a person owes money is not a monetary punishment; rather, it is a punishment of "Ka'asher Zamam," which is equivalent to a punishment of Malkus (as is evident in the Gemara here with regard to the Azharah); consequently, no punishment based on a Kal va'Chomer may be administered (because of the general rule of "Ein Onshin Min ha'Din").
The Ritva earlier in Makos (3a, DH u'Parchinan Kol k'Minei) indeed writes that in cases of monetary punishment, the rule of "Ka'asher Zamam v'Lo Ka'asher Asah" also applies.
(c) RASHI, however, does not seem to accept either of these approaches. Rashi explains that the Lav of "Lo Sa'aneh" is used for an Azharah for the punishment of "Ka'asher Zamam" and not for the punishment of Malkus. Therefore, he does not intend to say as Tosfos explains. Rashi also seems to disagree with the Ramban and Ritva. Although he agrees that the Lav of "Lo Sa'aneh" is an Azharah for the punishment of "Ka'asher Zamam," Rashi seems to understands that since "Lo Sa'aneh" is written as an Azharah, the Rabanan maintain that Malkus may never be administered for "Lo Sa'aneh," even when no punishment of "Ka'asher Zamam" applies. For this reason, Rashi in the Mishnah does not explain Rebbi Meir's expression that "the verse that gives them Malkus is not the same verse that obligates them to pay" in the same way that the Ramban and Ritva explain it. Rashi maintains that if "Lo Sa'aneh" would be the Azharah for the punishment of "Ka'asher Zamam," then even in a case where the punishment of "Ka'asher Zamam" is not applied, there still should be no Malkus for "Lo Sa'aneh." Therefore, had Rebbi Meir meant to say that "Lo Sa'aneh" is not being used as an Azharah for "Ka'asher Zamam," he should not have mentioned Tashlumin, monetary payment. He should have said that "Lo Sa'aneh" does not bring a punishment of "Ka'asher Zamam." Accordingly, the two questions posed above return.
It seems that Rashi learns the Gemara's conclusion the same way that Tosfos learns the Gemara's initial question. When the verse specifies a punishment of Malkus for a certain act, it is not necessary to find a Lo Sa'aseh associated with the prohibited act. Therefore, when the verse says either "Ka'asher Zamam" or "v'Hitzdiku," Malkus is given even if there is no Lo Sa'aseh to serve as an Azharah.
This answers the first question. When the Gemara says that "Kedei Rish'aso" is the reason why the Rabanan do not give Malkus to Edim Zomemim who testify falsely that someone owes money, the Gemara does not refer to Malkus of "Lo Sa'aneh." Malkus is never administered for "Lo Sa'aneh," since that verse is used as an Azharah for the punishment of "Ka'asher Zamam" ("Ka'asher Zamam" is a stronger punishment than Malkus and, therefore, like the punishment of Misah, it does need an Azharah). Rather, the Gemara means to ask why do the Rabanan not give Malkus because of the verse of "v'Hitzdiku Es ha'Tzadik," which applies whenever witnesses are found to be lying.
The second question -- how can the Gemara say that "Lo Sa'aneh" is used for an Azharah already, if Edim Zomemim who testified that a Kohen was a Ben Gerushah receive Malkus for "Lo Sa'aneh" -- may be answered in a similar manner. Edim Zomemim in the case of Ben Gerushah do not receive Malkus for "Lo Sa'aneh," but rather for "v'Hitzdiku."
Why, according to this approach, do the Rabanan not administer two sets of Malkus when the Edim Zomemim testify falsely that someone is Chayav Malkus -- one for "Ka'asher Zamam" and one for "v'Hitzdiku"? The answer to this is that "v'Hitzdiku" is not a separate cause for Malkus. It is only a statement the Torah makes to teach that Malkus is to be administered in a case of Edim Zomemim. Since -- when witnesses testify that someone is Chayav Malkus -- Beis Din administers a set of Malkus because of "Ka'asher Zamam," that set of Malkus fulfills the requirement of the verse of "v'Hitzdiku" as well. "V'Hitzdiku" therefore cannot obligate a new set of Malkus.
The Gemara's question is from the verse of "Lo Sa'aneh," because "Lo Sa'aneh" should obligate a second set of Malkus since it is a separate cause for Malkus. One cause for Malkus is the Edim Zomemim's intention to inflict the defendant with a punishment of Malkus, and the second cause is the Edim Zomemim's transgression of the Lo Sa'aseh of "Lo Sa'aneh."
One more point, however, needs to be resolved according to Rashi. The Gemara here says that there is no Malkus for "Lo Sa'aneh" because it is an Azharah for "Ka'asher Zamam." Earlier, the Gemara (2b) says that there is no punishment for "Ka'asher Zamam" because it is a Lav she'Ein Bo Ma'aseh. Why does the Gemara in the two places not give the same reason? (See Tosfos.)
The answer is that the Gemara earlier follows the initial assumption of the Gemara here, that "Ka'asher Zamam" is comparable to Malkus -- which does not need a verse as an Azharah, and it is not comparable to Misas Beis Din (which does need a verse as an Azharah). That is why the Gemara assumes that "Lo Sa'aneh" is not punishable with Malkus because of another reason (because it is a Lav she'Ein Bo Ma'aseh). Why, though, does the Gemara here not say that there is no Malkus for "Lo Sa'aneh" because it is a Lav she'Ein Bo Ma'aseh?
The answer is that it is evident from the Mishnah that Rebbi Meir maintains that there is Malkus for a Lav she'Ein Bo Ma'aseh, and that is why Malkus is given for "Lo Sa'aneh." The Gemara prefers to show that even if the Rabanan agree that there is Malkus for a Lav she'Ein Bo Ma'aseh, they still would not give Malkus for a different reason (because "Lo Sa'aneh" is an Azharah for the punishment of "Ka'asher Zamam").