QUESTION: The Gemara cites a dispute between Rebbi Yochanan and Reish Lakish with regard to whether Nezirus takes effect when a person makes an oath of Nezirus while he is in a cemetery. Mar bar Rav Ashi concludes that both Rebbi Yochanan and Reish Lakish agree that the Nezirus takes effect, and they only disagree about whether or not the person receives Malkus.

Why would the person receive Malkus for accepting an oath of Nezirus while standing in a cemetery? Although he transgresses the Lo Ta'aseh which prohibits a Nazir from becoming Tamei, he did so passively, with no action, and therefore his transgression is a "Lav she'Ein Bo Ma'aseh." The Halachah is that one who transgresses a "Lav she'Ein Bo Ma'aseh" is not punished with Malkus.

(a) The RAN in Nedarim (4a, DH Chaila) explains that Rebbi Yochanan and Reish Lakish do not disagree about whether the person receives Malkus for transgressing the prohibition against becoming Tamei; they agree that he does not receive Malkus for that transgression, since it was committed passively. Rather, they disagree about whether he receives Malkus for the other prohibitions of Nezirus, such as consuming grape products or cutting his hair.

The RASHASH in Nedarim asks a number of questions on the Ran's explanation (see Insights to Nedarim 4:1). If Reish Lakish rules that the person is not punished with Malkus for consuming grape products and for cutting his hair even though his transgression involved an action, it must be that he maintains that the Nezirus did not take effect at all. According to Mar bar Rav Ashi, however, the Nezirus does take effect when he accepts it upon himself while he stands in the cemetery, and it is clear from the Gemara here that he is a Nazir and needs no further acceptance of Nezirus when he leaves the cemetery!

The Ran apparently understands that according to Reish Lakish, the person cannot become obligated to observe the Nezirus of Taharah while he is in the cemetery (since he is Tamei). Since one cannot effect a "partial Nezirus," the person in the cemetery is not obligated to observe Nezirus at all, even the laws of refraining from wine and cutting hair. However, this does not mean that the Nezirus does not take effect at all. Rather, the Nezirus does take effect, but it is suspended as it waits for a moment at which the person can become obligated to refrain from Tum'ah. The moment the Nezirus is able to take effect with regard to Tum'ah, the other laws of Nezirus (refraining from wine and cutting hair) take effect as well. Hence, no new acceptance is necessary when he leaves the cemetery.

(b) TOSFOS here (see following Insight) and the ROSH in Nedarim (4a) explain that when the Gemara says that Rebbi Yochanan and Reish Lakish disagree with regard to Malkus, it indeed refers to Malkus for becoming Tamei. Rebbi Yochanan and Reish Lakish agree that Malkus is given for consuming wine and cutting hair, because there is no reason for the Nezirus not to take effect with regard to those laws. Their dispute is only with regard to Malkus for becoming Tamei.

Still, though, why should one be liable for Malkus for becoming Tamei, which is a "Lav she'Ein Bo Ma'aseh"? TOSFOS (Shevuos 17a DH O Ein) and the ROSH in Nedarim explain that Rebbi Yochanan and Reish Lakish are discussing the opinion of those who maintain that one does receive Malkus for a "Lav she'Ein Bo Ma'aseh." Alternatively, they do not mean literally that Malkus is administered, but rather that it is an Isur of Malkus (that is, becoming Tamei is forbidden and it would have been punishable with Malkus had an action been involved).

However, why does Reish Lakish say that the person in the cemetery is not liable for Malkus for becoming Tamei even according to the opinion that one is liable for Malkus for a "Lav she'Ein Bo Ma'aseh"? Reish Lakish maintains that in order for the Isur of Tum'ah to take effect, it must take effect at a time at which it prohibits the person from becoming Tamei, and not at a time at which he is already Tamei. (That is, the Isur of Tum'ah for a Nazir prohibits him from becoming Tamei, and not from being Tamei.)

(c) The MEFARESH here explains that the argument between Rebbi Yochanan and Reish Lakish applies to Malkus for Tum'ah, as the Rosh and Tosfos explain. However, the Mefaresh writes that according to Reish Lakish, although the person is prohibited from consuming wine and from cutting his hair immediately, he is not prohibited from becoming Tamei until he re-accepts upon himself the prohibition of Tum'ah of Nezirus after he becomes Tahor from his present state of Tum'ah. Hence, when Rebbi Yochanan says that the Nazir is punishable with Malkus, he does not mean that the Nazir is given Malkus for making himself a Nazir while in the cemetery. Rather, he is given Malkus for making himself Tamei (in an active manner, "Lav she'Yesh Bo Ma'aseh") after he leaves the cemetery and makes himself Tahor. Reish Lakish exempts him from Malkus even in such a case because the Nazir did not re-accept upon himself the prohibition of Tum'ah of Nezirus after he became Tahor.

The Mefaresh apparently maintains that a declaration of Nezirus in a cemetery is an acceptance of two thirds of Nezirus (consuming grape products and cutting hair); it does not constitute acceptance of the prohibition of Tum'ah of Nezirus.

How, though, can one accept a Nezirus for some laws of the Nezirus and not for others? The Halachah does not allow one to accept a partial Nezirus. When a person accepts Nezirus, all of the laws must apply (11a).

The answer is that this rule applies only to a person who accepts Nezirus while he is not in a cemetery and the prohibition of Tum'ah can take effect. When a person accepts Nezirus while he is in a cemetery and the prohibition of Tum'ah cannot take effect, he indeed is able to accept upon himself a partial Nezirus.

(d) The SHA'AGAS ARYEH suggests that if a prohibition can be transgressed only if it is preceded by an action, it is called a "Lav she'Yesh Bo Ma'aseh" even when the transgression itself involves no action. He proves this from cases of Isurim which are transgressed passively and yet Malkus is administered. He cites the Gemara later (17b, 43a) which discusses a Nazir who was carried inside of a box into a cemetery (according to the opinion that a box separates between the person and the Tum'ah), and another person came and removed the cover of the box. If the Nazir does not leave the cemetery immediately but stays in his place, he transgresses the prohibition against becoming Tamei in a cemetery and he receives Malkus. The action of entering the cemetery, even though done in a permissible manner, renders the Isur a "Lav she'Yesh Bo Ma'aseh." The Sha'agas Aryeh cites support for this explanation from TOSFOS in Shevuos (17a, DH O).

The Sha'agas Aryeh reasons that the Isur which prohibits a Nazir from becoming Tamei states that he may not be in a cemetery (as that is how the Torah describes the Isur), and not that he must stay outside of a cemetery. Since the Isur is transgressed only when preceded by an action (entering the cemetery), the Isur is considered one that was transgressed with an action ("Kum v'Aseh") and therefore Malkus may be administered.

This may be the reasoning of the RAMBAM (Hilchos Nezirus 5:21; see LECHEM MISHNEH) who rules that Malkus is given to a person who accepts Nezirus while standing in a cemetery.

QUESTION: Rava asks whether a person who becomes a Nazir while standing inside a cemetery receives Malkus for becoming Tamei only if he tarries in the cemetery for a certain amount of time ("Shehiyah") or even if he leaves immediately. Rava's question remains unanswered ("Teiku").

According to both possibilities, it is clear that a Nazir who becomes Tamei in a cemetery receives Malkus for standing in the cemetery, even if he becomes Tamei without doing any action (for example, another person removed the partition which separated him from the cemetery and thereby caused him to become Tamei). Why, though, does he receive Malkus if he does no action? One does not receive Malkus for transgressing a "Lav she'Ein Bo Ma'aseh"!

Most Rishonim answer that this Sugya follows the opinion that one does receive Malkus for a "Lav she'Ein Bo Ma'aseh." TOSFOS (end of 17a), however, takes a different approach. Tosfos makes a cryptic statement: although acceptance of Nezirus is not considered a Ma'aseh (the person's statement, "I am a Nazir," which he says while in a cemetery, is not considered an action, because it is merely speech), nevertheless the act of not leaving the cemetery after he accepts Nezirus is considered a Ma'aseh.

What does Tosfos mean when he writes that "not leaving" is considered an action?

(a) The ORACH MISHOR explains that the definition of a "Lav she'Ein Bo Ma'aseh" is not an Aveirah committed with no action. Rather, it is an Aveirah committed without the use of one's body (but rather through the use of something external, such as the passage of a certain amount of time, or words which he utters). In the case of the Gemara here, the Aveirah is done by the presence of the Nazir's body in the cemetery. His presence in the cemetery is considered a "Lav she'Yesh Bo Ma'aseh."

However, the BIRKAS ROSH and others reject this answer based on logical grounds, and based on the Gemara elsewhere which implies that a "Lav she'Yesh Bo Ma'aseh" is an Aveirah which involves an action which the person does, and not merely an Aveirah which involves the use of his body.

(b) The MISHNEH L'MELECH (Hilchos Bi'as ha'Mikdash 3:21) and the SHA'AGAS ARYEH (#32) explain that a "Lav she'Yesh Bo Ma'aseh" is an Aveirah which can be committed only through an action, whether the action itself constitutes the Aveirah or whether the action merely enables the person to transgress the Aveirah at a later time (when he is no longer doing an action). In either case, it is called a "Lav she'Yesh Bo Ma'aseh" because he committed (or caused) the Aveirah through an action which he did. In the case of the Gemara here, the Aveirah of becoming Tamei can be committed only through the Nazir's action of walking into the cemetery. Accordingly, the Nazir's act of walking into the cemetery is considered the Ma'aseh even though he walked into the cemetery before he accepted upon himself to be a Nazir, or he entered the cemetery when a partition separated him from the cemetery, and the prohibition against being there took effect only after he had entered the cemetery (either because he accepted the Nezirus upon himself while he was there, or because someone removed the partition). Since his entry into the cemetery was accomplished though his action, the transgression of being in a cemetery is considered a "Lav she'Yesh Bo Ma'aseh."

This seems to be the approach of the RAMBAM as well. The Rambam writes in numerous places that one does not receive Malkus for a "Lav she'Ein Bo Ma'aseh" (see Hilchos Avodah Zarah 11:11). However, the Rambam also writes that when a Nazir enters a house and waits for a person to die there, or he is brought into a cemetery in a box and asks someone to remove the partition between him and the cemetery, he receives Malkus for being Metamei himself (Hilchos Nezirus 5:18)! Why does he receive Malkus if he performed no action at the moment of the transgression? He merely stood in the house and remained there after the person died, or in the cemetery after someone else removed the partition.

It must be that the Rambam does not agree with the Rishonim who maintain that the Sugya here follows the opinion that one receives Malkus for a "Lav she'Ein Bo Ma'aseh." Rather, the Rambam maintains that although normally one does not receive Malkus for a "Lav she'Ein Bo Ma'aseh," he nevertheless receives Malkus for being in the house when someone dies or for being in the cemetery when the partition is removed, because he did an action when he entered the house or the cemetery. Similarly, the Rambam (Hilchos Nezirus 6:8) writes that when a person accepts Nezirus upon himself while in a cemetery, he receives Malkus for being there if he had received Hasra'ah (warning) not to become a Nazir in the cemetery (this is according to the Girsa which the KESEF MISHNEH proves correct -- that the words of the Rambam should read "Im Hisrah" and not "v'Im Hisrah").

Similarly, the Rambam (Hilchos Nezirus 5:19) writes that when a Nazir accidentally (b'Shogeg) enters a cemetery or a house with a corpse after he was been warned that it is a place of Tum'ah, he receives Malkus if he lingers there for a certain amount of time ("Kedei Hishtachava'ah"), just as a person who enters the Beis ha'Mikdash while he is Tamei is liable only after the passage of a certain amount of time. The fact that the Rambam writes that the person must wait "Kedei Hishtachava'ah" implies that he rules leniently with regard to the Gemara's question. Since there is a doubt whether Malkus is given only after one has waited "Kedei Hishtachava'ah," the Rambam rules that Malkus is not given until the person has tarried in the cemetery. The same leniency should apply when someone else removes the partition between the Nazir and the cemetery.

However, the Rambam elsewhere (Hilchos Nezirus 6:9) seems to interpret the Gemara in an entirely different way. The Rambam there writes that if a person is brought into a cemetery while he is in a box and someone else removes the partition which separates him from the cemetery (the case of Rava's question in the Gemara), he does not receive Malkus mid'Oraisa even if he waits there a long time (rather, he receives Malkus d'Rabanan). Why does he not receive Malkus? He should receive Malkus either if leaves immediately or if he tarries in the cemetery for a certain amount of time ("Kedei Hishtachava'ah"). Why does the Rambam write that he does not receive Malkus at all? The Rambam himself rules that when a Nazir enters a cemetery b'Shogeg, he receives Malkus after he waits there "Kedei Hishtachava'ah." Why is this case different?

The Acharonim discuss the words of the Rambam here at length.

The logic of the Rambam's distinction between the case of a Nazir who enters a cemetery in a box and someone else removes the partition, and the case of a Nazir who enters a cemetery b'Shogeg, may be explained as follows. The Rambam may understand that when a person makes himself a Nazir while in a cemetery, the reason why his transgression of becoming Tamei is not considered a "Lav she'Ein Bo Ma'aseh" is not that it is considered to have been performed with an action (as Tosfos writes), but that Hasra'ah does not need to be given before the person begins the Aveirah in order to be effective; it may be given at any point before the person finishes the Aveirah. (See PANIM YAFOS, end of Parshas Shelach, with regard to "Mekoshesh.") When a person walks into a cemetery and makes himself a Nazir, the Aveirah is considered to begin at the moment he walks into the cemetery and it is considered to be complete when he makes himself a Nazir. Even if he does not intend to become a Nazir at the time he enters, since he eventually makes himself a Nazir while in the cemetery his transgression is considered one long act of an Aveirah. Accordingly, the Hasra'ah he receives before he makes himself a Nazir in the cemetery comes before the end of the Aveirah. The Aveirah is considered "Yesh Bo Ma'aseh" because of the beginning of the Aveirah (the act of walking into the cemetery), and the Hasra'ah was given before the end of the Aveirah (his acceptance of Nezirus while in the cemetery). Similarly, when a Nazir enters a cemetery b'Shogeg and is given Hasra'ah that he must leave, the Aveirah is not complete until "Kedei Hishtachava'ah" has passed. This means that the Aveirah involves entering the cemetery and waiting "Kedei Hishtachava'ah" after he has been notified of the Aveirah. Although he does no action after the Hasra'ah, the Aveirah is considered to have been done with an action since the beginning of the Aveirah involved an action (walking into the cemetery).

What is the logic behind the Rambam's ruling (5:18) that Malkus is given in the case of a Nazir who enters a house and waits for someone to die there, and in the case of a Nazir who enters a cemetery in a box and asks someone to remove the partition which separates him from the cemetery? The moment the person dies in the house or the separation in the cemetery is removed, the Aveirah is completed entirely. Why should Hasra'ah at that point be able to make him liable for Malkus?

The answer is that the Rambam does not write there that the Hasra'ah was given only before the person died or before the partition was removed. Perhaps the Hasra'ah was given when the Nazir walked into the house which contained a dying person, or when the Nazir entered the cemetery in a box. At that point he was told, "Do not go into this house, lest the sick person die," or, "Do not go into the cemetery, lest someone remove the partition."

However, in the case of a Nazir who enters a cemetery with a partition between him and the cemetery and who has no intention to remove the partition, and someone else comes and removes it against his will, the act of his Aveirah does not begin when he enters into the cemetery. Rather, the Aveirah begins when he refrains from leaving the cemetery the moment the partition is removed. There is absolutely no action (b'Shogeg or b'Mezid) involved in the person's Aveirah, since another person came and removed the partition against his will (b'Ones). Therefore, his Aveirah (whether b'Shogeg or b'Mezid) begins only after the partition is removed. Since the Nazir does no action at that point, the Rambam rules that he does not receive Malkus.

One question remains unanswered. How does the Rambam derive his ruling from the Gemara here? The Gemara says that the Nazir receives Malkus either for tarrying in the cemetery for a certain amount of time or even for being in the cemetery for one moment (even if he leaves immediately after he becomes Tamei). Also, why does the Rambam write that the person receives Malkus d'Rabanan. What is his source?

Apparently, the Rambam has a different Girsa in the text of the Gemara. According to the common Girsa, Rava's question was, "Does he need (Mahu Ba'i) Shehiyah in order to punish him with Malkus?" According to the Girsa of the Gemara according to the Rambam, Rava's question was, "Does Shehiyah work (Mehani) to punish a Nazir with Malkus?" That is, it is obvious to the Gemara that Shehiyah is necessary for punishing a Nazir with Malkus, just as Shehiyah is necessary for Tum'as Mikdash. The Gemara's question is whether Shehiyah is enough to warrant giving him Malkus, or will his transgression still be a "Lav she'Ein Bo Ma'aseh"? The Gemara's question, according to the Rambam, is whether the logic of Tosfos is correct: when the Shehiyah is not part of a Ma'aseh or part of a Hasra'ah for an Aveirah done with an action, but rather the Shehiyah is the Aveirah itself without an action, does he receive Malkus for the Shehiyah, as Tosfos says (since he entered the cemetery with a Ma'aseh and he could not have entered without a Ma'aseh), or does he not receive Malkus for Shehiyah because the Aveirah itself did not include a Ma'aseh?

The Rambam rules leniently, that he does not receive Malkus (because "Safek Onshim l'Hakel"). However, the Rambam maintains that he does receive Malkus d'Rabanan (either because the Gemara is in doubt about whether he receives Malkus, or because the Rambam maintains that whenever the Torah does not impose Malkus for a transgression (such as a "Lav she'Ein Bo Ma'aseh"), the Rabanan decreed that Malkus d'Rabanan be given).