CAN A SON BE A SHALI'ACH TO LASH OR CURSE HIS FATHER?
Question: May Beis Din appoint a son to be their Shali'ach to lash or curse (excommunicate) his father?
Question (Rav Sheshes): Why is a stranger permitted to do this?
Answer: You must say that honoring Shamayim (by punishing sinners) overrides the Isur to hit or curse a Yisrael;
Answer (Rav Sheshes): Likewise, it overrides the Isur to hit or curse a parent!
Question (Beraisa): Someone for whom it is a Mitzvah to hit him (lashes in Beis Din), one is commanded not to hit him (an extra lash). Someone for whom there is no Mitzvah to hit him, all the more so one is commanded not to hit him!
Suggestion: In both cases, the person is Chayav lashes. It is a Mitzvah for a stranger to hit him, but not for his son to hit him. (This is the warning against hitting a parent!)
Answer: No, we never distinguish (regarding lashes) between the son and a stranger;
The Beraisa teaches, someone for whom it is a Mitzvah to hit (he is Chayav lashes), one is commanded not to hit him (extra). Someone for whom there is no Mitzvah to hit him (he is not Chayav lashes), and all the more so one is commanded not to hit him! (This is a general warning not to hit a Yisrael.)
(Beraisa): If Reuven was being taken to be executed, and his son hit or cursed him, he is liable;
If someone else hit or cursed him, he is exempt.
Question: What is the difference between the son and a stranger?
Answer #1 (Rav Chisda): The case is, they were insisting that Reuven go, he was refusing. (Beis Din may appoint a stranger to be their Shali'ach to hit or curse Reuven to make him go. They may not appoint his son.)
Answer #2: Rav Sheshes (who says that Beis Din may appoint a son to hit or curse his father) must establish this when they were not insisting that Reuven go.
Question: If so, why is a stranger exempt?
Answer #1: Once Reuven was sentenced, he is considered dead.
Objection: Rav Sheshes taught that if Levi was sleeping and Shimon embarrassed him, he is liable, even if Levi died without waking up (because his children are embarrassed. Here also, the stranger should be liable for embarrassment to Reuven's children!)
Answer #2: The case is, the damage to Reuven was less than the value of a Perutah.
Question: R. Yochanan taught that if assessment for damage is less than the value of a Perutah, the damager is lashed!
Answer: The Beraisa means, he is exempt from paying (but he is lashed).
Question: If so, when it says that the son is liable, it means that he pays (but we said that the damage was less than a Perutah)!
Answer: The Beraisa means, his son is liable his appropriate punishment (Misah).
Objection: If so, when it says that a stranger is exempt, it means 'from his appropriate punishment (lashes)'!
Answer #3: Rather, a stranger is exempt because it says "v'Nasi b'Amcha Lo Sa'or", one who acts like one of your nation.
Question: What is the source to exempt hitting one who does not act like Amcha?
Answer: We equate the laws of hitting and cursing (from a Binyan Av. Alternatively, since they are written near each other, this is like a Hekesh.)
Question: If so, also the son should be exempt!
Answer: The case is like Rav Pinchas answered (elsewhere), he did Teshuvah.
Question: If so, also a stranger should be liable!
Answer (Rav Mari): "B'Amcha" refers to one who will persist in (doing actions of) your nation (but not one sentenced to die, even if he did Teshuvah - Aruch l'Ner).
Question: If so, also the son should be exempt!
Answer: A son is liable for cursing his father even after his father died.
Question: What is the Halachah (may Beis Din appoint a son to lash or curse his father)?
Answer (Rabah bar Rav Huna, also Tana d'Vei R. Yishmael): A son may not be appointed to lash or curse his father, unless his father was a Mesis, about whom it says "v'Lo Sachmol v'Lo Sechaseh Alav."
HITTING AND CURSING A PARENT
(Mishnah): One who wounds his father or mother is not liable unless he made a wound.
In this respect, cursing is more stringent than hitting. One is liable for cursing his father after death, but not for hitting after death.
(Gemara - Beraisa): "Aviv v'Imo Kilel" - after death;
Suggestion: Since one is Chayav Misah for hitting or cursing, just like one is exempt for hitting after death, the same should apply to cursing;
Support: The Torah obligates for hitting even one who is not "Amcha" (our Tana argues with the Tana of the Beraisa on 85a), yet one is exempt for hitting after death. The Torah obligates for cursing only "Amcha", and all the more so one should be exempt for cursing after death!
Rejection: It says "Aviv v'Imo Kilel" to teach that this is not so.
Question: R. Yonason can learn like this, but R. Yoshiyah expounds this verse differently!
(Beraisa - R. Yoshiyah): "Ish Ish" includes a daughter, Tumtum (someone of unknown gender) or Androginus (who has male and female genitals) who curses a parent.
Question: "Asher Yekalel Es Aviv v'Es Imo" teaches only if he curses both. What is the source if he curses only one of them?
Answer #1: "Aviv v'Imo Kilel" - cursing is written next to the mother (as well as next to the father) to teach that he is liable even if he curses only one of them.
Answer #2 (R. Yonason): "Aviv v'Es Imo" connotes even one, unless the Torah explicitly says 'together' (as it does regarding Kilayim).
Answer: R. Yoshiyah learns from "u'Mekalel Aviv v'Imo Mos Yumas";
R. Yonason uses this to obligate a daughter, Tumtum or Androginus.
Question: Why doesn't he learn from "Ish Ish"?
Answer: He holds that the Torah speaks like people do. (They sometimes double words, therefore, we need not expound the repetition.)
Question: Why didn't the Mishnah teach that hitting is more stringent than cursing? One is liable for hitting even one who is not "Amcha", but one is exempt for cursing such a person!
Answer: The Tana of our Mishnah equates the laws of hitting and cursing.
Suggestion: The Tana'im of our Mishnah and the Beraisa argue like the following Tana'im do:
(Beraisa #1): We are commanded not to hit Kusim (the people Sancheriv settled in place of the 10 exiled Shevatim, who later converted), but we are not forbidden to curse them.
(Beraisa #2): We are not forbidden to hit or curse Kusim.
Assumption: All agree that Kusim are valid converts (just they do not act like Amcha). The second Tana equates the laws of hitting and cursing, and the first Tana does not.
Rejection: No, neither Tana equates hitting and cursing;
The first Tana holds that Kusim are valid converts. The second Tana holds that their conversion was only to avoid being eaten by lions (it was insincere), so they are Nochrim.
Rejection (of rejection): Beraisa #2 continues 'the law of his ox is like a Yisrael's ox (if it damaged or was damaged).' This shows that they are considered Yisraelim!
Conclusion: Indeed, the Beraisos argue about whether or not we equate hitting and cursing.
LIABILITY FOR KIDNAPPING
(Mishnah): One who kidnaps a Yisrael is not liable until he takes him into his premises.
R. Yehudah says, he is not liable until he takes him into his premises and makes him work - "v'His'amer Bo."
R. Yishmael the son of R. Yochanan ben Brokah says, if one kidnaps his son he is liable;
R. Yehudah says, if one kidnaps a half-slave he is liable;
(Gemara) Question: Does the first Tana obligate even though he did not make him work?!
Answer (Rav Acha brei d'Rava): They argue about Imur (making him work) less than the value of a Perutah.
Question (R. Yirmeyah): If he kidnaps and sells while he is sleeping (this will be explained), what is the law? If he sold a fetus in a pregnant woman, what is the law?
Is this the way of Imur?
Question: The one sold cannot work at all now, surely the kidnapper is exempt!
Answer: The case is, he can work now. The buyer can lean on the sleeping person, and the fetus (enlarges his mother's stomach and) blocks the wind.
These questions are not resolved.
(Beraisa #1): "Ki Yimatzei Ish Gonev Nefesh me'Echav" teaches about a man who kidnapped a man or woman;
"V'Gonev Ish" includes a woman who kidnapped a man;
Question: What is the source for a woman who kidnapped a woman?
Answer: "U'Mes ha'Ganav ha'Hu" - in any case.
(Beraisa #2): "Ki Yimatzei Ish Gonev Nefesh me'Echav" obligates for kidnapping a man, woman, convert, freed slave, or minor.
If Ploni kidnapped Reuven but did not sell him, or he sold him but Reuven is still on his own premises, Ploni is exempt.
If he sold him to one of Reuven's relatives, he is liable.
One who kidnaps a slave is exempt.