1) TEARING A GARMENT OF THE "BIGDEI KEHUNAH"
QUESTION: The Mishnah (21b) states that it is possible for a person to plow a single furrow and thereby transgress eight Torah prohibitions, which the Mishnah lists. The Amora'im ask that there are additional prohibitions which the Mishnah should have listed, which the person could transgress through his act of plowing, such as one who erases a Name of Hash-m as he plows, thereby transgressing the prohibition of "Lo Sa'asun Ken la'Hashem Elokeichem" (Devarim 12:4). Similarly, Abaye asks that the Mishnah should have included the additional transgression of a Kohen who was plowing and caused the Choshen to become detached from the Efod, or caused the poles of the Aron to be removed from their places, thereby transgressing the prohibitions of "Lo Yizach ha'Choshen" (Shemos 28:28) and "Lo Yasuru" (Shemos 25:15).
The Gemara in Yoma (72a) refers to the two prohibitions which Abaye mentions. In the Gemara there, Rebbi Elazar teaches that a person who separates the Choshen from the Efod or removes the poles from the Aron is punished with Malkus. The Gemara there cites Rav Yehudah who rules that if a person tears one of the Bigdei Kehunah, he is punished with Malkus, because the verse says with regard to the Me'il, "Lo Yikare'a" -- "it shall not be torn" (Shemos 28:32). The Gemara there asks that perhaps the verse simply means that one should make a hem around the neck of the Me'il in order that it not be torn. The Gemara answers that this cannot be the intention of the verse, because the verse does not say "she'Lo Yikare'a," but "Lo Yikare'a."
Why does Abaye here not also ask from the prohibition of tearing the Bigdei Kehunah? He should ask that the Mishnah here should include (in its case of a Kohen plowing) one who transgresses, with his act of plowing, the prohibition of tearing Bigdei Kehunah, which is prohibited by the verse, "Lo Yikare'a"! (ARUCH LA'NER, HE'OROS RAV CHAIM MUDA'I to the Ritva, Yoma 72a)
(a) The RAMBAM in SEFER HA'MITZVOS (#88) writes that the Isur of "Lo Yikare'a" constitutes a prohibition against tearing open the neck-hole of the Me'il while manufacturing it (see RASHI to Makos 3b, DH ha'Pose'ach). The Torah requires that the Me'il be made in such a manner that a circular neck-hole be left at the time of the weaving, without having to tear the material. (See also Rambam, Hilchos Klei ha'Mikdash 9:3.)
RABEINU AVRAHAM BEN HA'RAMBAM explains that the reason for this prohibition is that if the neck-hole is made by tearing the fabric, then it will have a tendency to tear more easily while the Kohen is wearing it. Therefore, the Torah says that it should not be made in such a manner. (The CHINUCH (Mitzvah 101), who understands this Mitzvah in a similar manner, explains the reason somewhat differently. He writes that it is not respectful to tailor Bigdei Kehunah using an inherently destructive act. This is similar to the prohibition against using iron tools to build the Mizbe'ach because of their association with destruction.)
According to the Rambam, it seems that the prohibition of "Lo Yikare'a" does not refer to a destructive act at all, but rather it prohibits making the Me'il in this particular manner. The Rambam apparently rejects the interpretation of the Gemara in Yoma (72a) -- as the Ritva there points out -- and sides with the Gemara's alternate interpretation of the verse, that the Torah commands not to tear the neck-hole in order that it not tear further (as cited above in the name of the Rambam's son). (See SEFAS EMES to Yoma there.) Support for this may be adduced from the fact that when the Rambam (in Mitzvah #86 and #87) refers to the prohibitions against removing the poles of the Aron and removing the Choshen from the Efod, he cites the Gemara here in Makos as the source and not the Gemara in Yoma.
Perhaps the Gemara here is the source for what the Rambam writes in Sefer ha'Mitzvos. Abaye does not ask that the Mishnah should also count the prohibition of tearing Bigdei Kehunah, because Abaye understands that this prohibition does not actually forbid tearing the Bigdei Kehunah. Rather, it is a specification in the type of Me'il that the Kohen Gadol must wear; that is, its neck-hole must be tailored and not cut.
In his list of Mitzvos, the BEHAG mentions only the prohibitions against removing the poles from the Aron and the Choshen from the Efod, and he omits the prohibition of "Lo Yikare'a" altogether, as pointed out by the He'oros of Rav Chaim Moda'i on the Ritva (ibid.). He also seems to reject the Gemara's premise in Yoma that "Lo Yikare'a" prohibits tearing Bigdei Kehunah.
According to these Rishonim, it is clear why Abaye here does not mention the prohibition of tearing Bigdei Kehunah.
(b) However, the RAMBAM in Hilchos Klei ha'Mikdash (9:3), after writing this Halachah, adds that one is also prohibited from tearing any Bigdei Kehunah in a destructive manner. It seems that the Rambam changed his mind and did accept the teaching of the Gemara in Yoma. Accordingly, the question on the Gemara here returns. Why does Abaye not mention tearing Bigdei Kehunah as an added transgression that can be done while plowing, if he accepts the teaching of the Gemara in Yoma (72a)?
However, the MISHNEH L'MELECH cites the SEFER KORBAN CHAGIGAH who states that the Rambam differentiates between the Me'il and other Bigdei Kehunah. With regard to the Me'il, the Rambam prohibits tearing it even in a constructive manner, such as when manufacturing it. With regard to the other Bigdei Kehunah, the Torah prohibits tearing them only in a destructive manner. What is the Rambam's source for the difference between the Me'il and the other Bigdei Kehunah?
The MINCHAS CHINUCH (101:1) suggests that the prohibition of tearing Bigdei Kehunah in a destructive manner is not based on the verse of "Lo Yikare'a," because that verse refers specifically to tearing the Me'il (and even in a constructive manner, as the Rambam writes in Sefer ha'Mitzvos). Rather, tearing Bigdei Kehunah in a destructive manner is prohibited by the verse "Lo Sa'asun Ken la'Hashem Elokeichem," which prohibits destroying any object of Kedushah (as the Gemara here mentions earlier with regard to burning wood of Hekdesh).
According to the Minchas Chinuch, a simple answer to the question on Abaye may be suggested. Rav Chananya, earlier in the Gemara, already asked that the Mishnah should list the prohibition of erasing the name of Hash-m, which is prohibited because of the verse of "Lo Sa'asun." According to the Rambam, tearing Bigdei Kehunah is prohibited because of the same verse, and therefore it is not necessary for Abaye to include this prohibition in his question; that question was asked earlier by Rav Chananya.
(c) Other Rishonim disagree with the Minchas Chinuch's interpretation of the Rambam.
RABEINU AVRAHAM BEN HA'RAMBAM writes clearly that the verse of "Lo Yikare'a" prohibits tearing any Bigdei Kehunah (as well as tearing a neck-hole for the Me'il, just as the verse of "Lo Sisgodedu" includes two unrelated prohibitions). The RITVA in Yoma (72a) also concludes that the verse "Lo Yikare'a" prohibits the tearing of any of the Bigdei Kehunah. How do these Rishonim explain why Abaye does not mention this prohibition?
Perhaps the answer is as follows. Abaye may not be proposing an independent suggestion. Rather, each Amora is adding to the previous Amora's suggestions. Hence, Abaye is asking why the Mishnah does not list the act of erasing Hash-m's name while plowing as well as the act of removing the Choshen from the Efod or the poles from the Aron. To understand how this answers the question, it is necessary to review two important points.
The first point is that according to Rabeinu Avraham ben ha'Rambam and the Ritva, when a person tears Bigdei Kehunah in a destructive manner he transgresses two Torah prohibitions: "Lo Yikare'a" (which applies to any sort of tear, destructive or constructive) and "Lo Sa'asun" (which applies to a destructive act performed on any object of Kedushah, such as the Bigdei Kehunah or wood of Hekdesh).
The second point is that Rashi (21b, DH Yesh) explains that the Mishnah here counts only one set of Malkus for each type of prohibition, and it does not count multiple sets of Malkus for transgressing one prohibition multiple times (such as by plowing with more than one ox of Hekdesh).
Accordingly, one may propose that Abaye does not ask that the Mishnah should list the act of tearing Bigdei Kehunah in a destructive manner (which is the way Bigdei Kehunah are torn by a plow), since, if it would list such an act after also listing the act of erasing the Name of Hash-m, the Mishnah would be including a redundant prohibition -- a second violation of "Lo Sa'asun" (besides the prohibition of "Lo Yikare'a). One would be Chayav two sets of Malkus for these two transgressions of "Lo Sa'asun" (since the Name of Hash-m and the Bigdei Kehunah are "Gufim Mechulakim"), and this would confuse the Malkus count of the Mishnah. That is why Abaye makes no mention of this Isur. (M. KORNFELD)
2) "ISUR KOLEL" AND "ISUR MOSIF"
QUESTION: The RIVAN (DH Migu) explains at length the difference between an "Isur Kolel" and an "Isur Mosif." The general rule is that a prohibition is called an "Isur Mosif" when an additional prohibition is added to the object that was already forbidden (for example, when the prohibited object becomes forbidden with a new prohibition that applies to additional people, or when it becomes a more stringent prohibition). In contrast, an "Isur Kolel" refers to a situation in which the change is not in the object that was already forbidden, but rather the person to whom the object was prohibited becomes prohibited to other objects as well.
The Rivan writes that when a man's mother-in-law (whose first husband died or divorced her) remarries and becomes forbidden to all other men in the world as an Eshes Ish, this is an Isur Kolel. She therefore becomes forbidden to her son-in-law not only because of the Isur of Chamoso (his mother-in-law) but also because of the Isur of Eshes Ish.
Why does the Rivan call this an "Isur Kolel"? According to the definition he provides early, this should be called an "Isur Mosif," since the woman who was already forbidden to her son-in-law now becomes forbidden to other men through the new Isur. There are no other women who are becoming forbidden together with the mother-in-law such that her new Isur should be considered an Isur Kolel. In fact, the Gemara in Sanhedrin (81a) clearly describes this case as an Isur Mosif and not as an Isur Kolel! (NODA B'YEHUDAH cited by the GILYON HA'SHAS)
ANSWER: The NODA B'YEHUDAH explains that there is a difference between the Isur that the woman poses for the man, and the Isur that the man poses for the woman. The Gemara in Sanhedrin (and everywhere else the Gemara discusses the concept of "Isur Chal Al Isur") relates to the Isur of the woman from the perspective of the man. Since no added women become forbidden to the man when his mother-in-law remarries, the mother-in-law cannot become forbidden to him as an Isur Kolel. Rather, she becomes prohibited because of an Isur Mosif, since she becomes more forbidden in the sense that she is now prohibited to other men.
The Rivan, in contrast, is discussing the Isurim from the perspective of the woman. In what way is the man prohibited to her by way of the new Isur? Since, until now, she was forbidden only to him but not to other men, and by remarrying she becomes forbidden to other men as well, the son-in-law becomes forbidden to her because of "Eshes Ish" just like all other men, through the principle of "Isur Kolel." Accordingly, the Noda b'Yehudah emends the second-to-last word in the Rivan. The Rivan is not saying that there is an Isur Kolel "to be Mechayev him two [sets of Malkus]," but rather that there is an Isur Kolel "to be Mechayev her two [sets of Malkus]." (There is a printing mistake in the Gilyon ha'Shas. The word that is to be corrected is not "l'Didei," but rather the word "l'Chayvo" should be corrected to "l'Chayvah.")
However, the words of the Rivan are still unclear. Why does he refer to the Isur of the son-in-law from the perspective of the mother-in-law, when the Gemara always refers to the Isur from the perspective of the man? (In fact, it seems that the woman will transgress whatever Isur applies to the man, since the Malkus that the woman receives for Isurim of Arayos is learned from the Malkus of the man, as she does no action (see Bava Kama 32a).)
Moreover, when the Rivan looks for an example of an Isur Mosif, why does he not mention the Isur Mosif of the mother-in-law who becomes an Eshes Ish from the perspective of the man, which is the Isur that the Gemara itself mentions (in Sanhedrin 81a and Yevamos 32b) as a case of Isur Mosif?
Finally, the example an Isur Mosif that the Rivan mentions (an Eshes Ish who becomes a man's mother-in-law) does not seem to be a case of an Isur Mosif according to the Gemara (in Sanhedrin 81a and Yevamos 32b). The Gemara there says that Rebbi Yosi agrees with the principle of Isur Mosif but not with the principle of Isur Kolel. For this reason, the Gemara there concludes that Rebbi Yosi would maintain "Isur Chal Al Isur" in a case of a mother-in-law who remarried and became an Eshes Ish, which is an Isur Mosif, and he would not maintain "Isur Chal Al Isur" in the case of an Eshes Ish who became a man's mother-in-law, which is not an Isur Mosif!
It seems that the Rivan had a different Girsa in those Gemaras, according to which Rebbi Yosi agrees with the principle of Isur Kolel but not with Isur Mosif. (See Yevamos, beginning of 33a, where at least one Amora asserts that Rebbi Yosi agrees with Isur Kolel.) That is why the Rivan writes that when Chamoso, a man's mother-in-law, becomes an Eshes Ish, it is an Isur Kolel, and that is why Rebbi Yosi agrees that "Isur Chal Al Isur" in that case, while an Eshes Ish who becomes Chamoso is an Isur Mosif, in which case Rebbi Yosi maintains that "Ein Isur Chal Al Isur." This approach answers a number of other questions raised by the Rishonim (see TOSFOS to Yevamos 32b, DH Isur Kolel).
What, according to the Rivan, is the definition of an Isur Kolel? Why is a mother-in-law who becomes an Eshes Ish not considered an Isur Kolel?
Apparently, any Isur which either makes more objects forbidden or which makes the object forbidden to more people is called an Isur Kolel. An Isur Mosif is when the addition to the Isur is not expressed in terms of quantity but in terms of quality, such as when a person who was forbidden with an Isur of Chenek becomes forbidden with an Isur of Sereifah (for example, when a woman who was forbidden to a man as an Eshes Ish becomes forbidden to him with an Isur of Chamoso as well), or when something forbidden with an Isur Lav becomes forbidden with another Isur which requires that it be burned (for example, when Chelev becomes Nosar, it is considered an Isur Mosif since, originally, the object was forbidden with a Lav alone, with no additional requirements; now that it becomes Nosar, it has the additional requirement that it must be burned). If this explanation is true, then the Rivan represents an entirely unique opinion which is not discussed by the Rishonim or Acharonim at all. (M. KORNFELD)
3) FORTY LASHES MINUS ONE
QUESTION: The Gemara quotes Rava who comments how foolish people are who stand up for a Sefer Torah but not for one who learns the Torah. They should respect the Chachamim more than the Sefer Torah, since the Sefer Torah says that Malkus is comprised of 40 lashes, and the Chachamim stated that only 39 lashes are administered (alleviating some of the suffering of the person being punished).
What does the Gemara mean when it says that the Chachamim decreased the number of lashes by one to 39? The Mishnah (22a) states that it is the Torah's own intention that 39 lashes be given and not 40; it was not the Chachamim's innovation!
(a) The Gemara may be understood in a straightforward sense based on what the Gemara in Kidushin (66a) teaches. The Gemara there says that Yanai ha'Melech made a decree that all of the Chachamim should be killed. At the time that his advisors suggested that he kill the Chachamim, he wondered what would happen to the Torah if there are no Chachamim. He was answered that "the Torah is resting over there -- whoever wants can come and learn it." The Gemara says that by accepting this claim, Yanai expressed heresy. While the Torah she'Bichtav will endure, Torah she'Ba'al Peh will not endure without the Chachamim. This principle is referred to in the Gemara in Sanhedrin (99b), where the Gemara says that one who says that there is no need for the Chachamim is an Apikorus.
To such people Rava refers when he says that those who stand for the Sefer Torah but not for the Chachamim are foolish. Rava means that all of the Derashos of the Torah, such as the Derashah which teaches that 39 lashes are administered and not 40, are part of the Mesorah of Torah she'Ba'al Peh. Therefore, those who do not give respect to the Chachamim as they do to the Sefer Torah are foolish, for without the Chachamim no one would know how to understand the Sefer Torah. It is the Chachamim who explain the Torah, sometimes even providing explanations that seem, at first glance, more lenient than what the Torah says.
(The question of whether the Derashos of the Chachamim are considered part of Torah she'Bichtav or Torah she'Ba'al Peh is, according to some, a Machlokes Amora'im in Gitin 60b. See MAHARSHA and GILYON HA'SHAS there. See also RASHI to Sukah 31a, DH Lo Makshinan.)
(b) The YA'AROS DEVASH (2:11) suggests that the Gemara may be explained based on the Midrash (Bamidbar Rabah 5:5) which says that the 40 lashes of Malkus correspond to the 40 days that Moshe Rabeinu was on Har Sinai receiving the Torah. One who transgresses the Torah which was given to Moshe in 40 days is punished accordingly with 40 lashes. However, according to Rebbi Akiva's opinion that the Torah was given on the seventh of Sivan and Moshe Rabeinu ascended on the following day (and returned on the seventeenth of Tamuz), he was there for only 39 days. According to that opinion, Hash-m originally told Moshe that the Torah would be given on the sixth of Sivan but Moshe delayed it for one day until the seventh of Sivan and Hash-m agreed with his decision, as the Gemara in Shabbos (88a) relates. Since the Torah was given to Moshe in 39 days, a person who transgresses the Torah receives only 39 lashes! The Torah, however, writes that Malkus is comprised of 40 lashes based on what should have been the case had Moshe not delayed the day of Kabalas ha'Torah. (Since Hash-m knew that Moshe Rabeinu would delay the giving of the Torah by one day, Hash-m provided a hint, through a Derashah, that only 39 Malkus would actually be given!) Thus, it emerges that since Moshe Rabeinu delayed the giving of the Torah for one day with Hash-m's consent, one who transgresses the Torah receives only 39 lashes. This is what the Gemara means when it says that people should respect the Chachamim at least as much as the Torah, because the Chachamim caused the Torah to require only 39 lashes, while the Torah itself would have required 40 lashes.
(c) The RAMBAM implies an original answer to this question. The Rambam writes (in Hilchos Sanhedrin 17:1) that in truth the Torah considers it fitting for a person to receive 40 lashes. However, the Chachamim said that even the healthiest person is given only 39 Malkus so that if one lash is accidentally added, he still will receive only 40 lashes, which is an appropriate amount. According to the way that the KESEF MISHNEH and others understand the Rambam, the Rambam apparently interprets Rava's statement literally, that even the Chachamim who disagree with Rebbi Yehudah in the Mishnah agree that there should be 40 lashes mid'Oraisa, and that mid'Rabanan the number was decreased to 39 as a form of a "Seyag," a protective measure. (By stating, "Lo Yosif...," the Torah is teaching that Beis Din must take precautions to avoid giving extra lashes.) Further support for this approach may be adduced from the Mishnah's expression, "They estimated that he can receive 40," which implies that Beis Din may evaluate a person as fit to receive 40 lashes and not just 39.
This is also evident from the words of the Rambam in Perush ha'Mishnayos here (and from his words in Hilchos Sanhedrin 17:4; see OR SAME'ACH). The Acharonim point out that strong support for this view may be found in the Midrash Rabah and Midrash Tanchuma (end of Parshas Korach). The Midrash says that mid'Oraisa there are 40 lashes, but the fortieth lash is not given in order to prevent violating the prohibition of "Lo Yosif." That is, the Chachamim decreased the number of lashes to 39 because of "Lo Yosif."
There are a number of difficulties with the Rambam's explanation.
1. In the Mishnah, the Chachamim derive through a Derashah from the verse, "b'Mispar Arba'im," that only 39 lashes are given. How, then, can the Rambam say that the number 39 is only mid'Rabanan? (SEFER HA'CHINUCH, Mitzvah 594)
The LECHEM MISHNEH answers that according to the Rambam, that Derashah teaches only that 40 lashes is the maximum, and it is not the required amount. Since the Torah does not require that Beis Din give 40 lashes, but rather as many lashes as the Chachamim see fit to give up to 40, the Chachamim have the right to diminish the maximum number by one and never give more that 39 lashes. This also seems to be the intention of the Rambam in Perush ha'Mishnayos (see KAPACH edition).
2. The Mishnah says that the number of lashes must be divisible by three. How, then, can the number of lashes mid'Oraisa be forty?
The answer to this question is that according to the Rambam, just as Rebbi Yehudah maintains that although lashes must be divisible by three the Torah prescribes (as a Gezeiras ha'Kasuv) to give a fortieth lash if the person is strong enough to endure it, so, too, according to the Chachamim there is a Gezeiras ha'Kasuv that Beis Din may give a fortieth lash. (See MINCHAS CHINUCH.)
3. If Beis Din is concerned with giving an extra lash, then when the Beis Din assesses that the person can receive 18 lashes, why does the person receive that number of lashes? Beis Din should give less than 18 lashes, lest they add an additional lash above their assessment. (See PORAS YOSEF and MINCHAS CHINUCH.)
Apparently, the Chachamim were not concerned that the Shali'ach of Beis Din would give an extra lash if there is a chance that that lash will kill the transgressor. In such a case, the Shali'ach Beis Din will see that the person is about to die and will avoid hitting him further. They were concerned only that he would give an extra lash when the transgressor is exceptionally strong, and even if he is given more than 40 lashes he will not be in danger of dying. In such a case, the Shali'ach Beis Din will not be able to discern that the additional lash is inappropriate.