Makkot 15a (טו.) — the Talmud in English

They said to him

to Rabbi Yohanan:

That is, others who had heard it in his name asked Rabbi Yohanan:

Did you say

this?

He said to them: No!

That is, he retracted, and he no longer maintains this position, as follows.

Rabba said: By God! [A formula of oath], he indeed

[An oath], indeed

said it

Rabbi Yohanan. It is only that he has now retracted!

In truth, however, he need not retract. For we find that

it is written

in the Torah that a positive mitzva preceded a prohibition,

and

nevertheless

we learned

that one receives lashes for this prohibition, and the positive mitzva does not sever it.

It is thus proven that this is the halakha: One receives lashes for a prohibition preceded by a positive mitzva. Rabbi Yohanan therefore did not need to retract.

The Gemara explains:

It is written

a positive mitzva preceding the prohibition—

“They shall send out from the camp”

those who are impure.

Only afterward is the prohibition written:

“And they shall not defile their camps.”

And

we learned here

in our Mishna that one who comes

to the Temple

while

impure

receives lashes!

That is, because this is a prohibition preceded by a positive mitzva, it is not a prohibition severed by a positive mitzva.

But now, since Rabbi Yohanan’s statement is proven from the Mishna, the following difficulty arises:

But for what reason did he retract,

why did Rabbi Yohanan retract?

And we answer:

Because it was difficult for him

the law that we find regarding

the rapist

of a woman.

As it was taught:

The

rapist

of a virgin girl is subject to a positive mitzva and a prohibition.

The positive mitzva is to marry her, as it is stated: “She shall be his wife.”

And the prohibition is that he may not divorce her all his days, as it is stated: “He may not send her away all his days.”

If the rapist married the woman he had raped, and afterward transgressed and

divorced

her, thereby transgressing the prohibition against sending her away—

If he is an Israelite,

he

takes her back,

thereby rectifying the prohibition that he transgressed by divorcing her, and

he does not receive lashes.

But

if he is a priest—

he

receives lashes,

and

he does not take her back

as a wife after her divorce, since a priest is prohibited from marrying a divorcee.

Rabbi Yohanan found this difficult: The beraita said that

if

the rapist

is an Israelite,

he

takes back

the woman he raped and

does not receive lashes

for divorcing her. This is difficult:

Why?

Why does he not receive lashes?

After all, this prohibition is

a prohibition preceded by a positive mitzva!

For the mitzva “She shall be his wife” was written before the prohibition “He may not send her away all his days,” and it is possible to fulfill it beforehand,

and

therefore

let him receive lashes

for it! Since the beraita nevertheless exempts him from lashes, Rabbi Yohanan retracted the principle that one receives lashes for a prohibition preceded by a positive mitzva, and considered it like a prohibition severed by a positive mitzva, for which one does not receive lashes.

Ulla said:

An Israelite who raped a virgin girl and divorced her must take her back and does not receive lashes, since the positive mitzva was written in order to sever the prohibition. Although the Torah wrote the positive mitzva before the prohibition, it did not need to write it for its own sake, since there is no need for this verse to obligate him to marry her, because—

The verse would not say

“

She shall be his wife” regarding

a virgin girl who was raped,

and derive

and learn the mitzva to marry her by means of a kal va-chomer

from one who spreads an evil report [about a woman whom he married, claiming that he did not find her a virgin and that she had committed adultery while betrothed to him and still living in her father’s house]:

[against the woman whom he married by claiming that he did not find her a virgin and that she had committed adultery while she was betrothed to him and remained in her father's house]:

And if one who spreads an evil report, who did not perform an act,

but merely slandered her verbally,

the Merciful One said

that there is a positive mitzva:

“And she shall be his wife”—

The

rapist

of a woman, who performed an act with her—

all the more so

is he obligated to marry her for all his days!

It is necessarily the case that this verse is superfluous and comes to teach a novel matter.

And

if it is not needed

to teach the matter stated

before it,

namely, to marry her before the divorce,

apply it to what follows,

meaning

that

even

if he divorced her, he must take her back. Since the positive mitzva was written for the purpose of rectifying the prohibition, one does not receive lashes for the prohibition, even though the positive mitzva preceded it both in its written formulation and in its fulfillment.

And we challenge:

And we challenge this:

Still, the obligation of the rapist is not derived from one who spreads an evil report, since it can be refuted:

What is true of one who spreads an evil report,

in whom we find a stringency not found in the case of a rapist,

as he receives lashes and pays!

Therefore, it is impossible to derive from him that the rapist, who is less severe, is obligated to marry the woman he raped. Consequently, the Torah had to write regarding the rapist, “She shall be his wife,” and it is not a positive mitzva that severs the prohibition; he should receive lashes.

And we answer: The prohibition can be severed in another way—

Rather, the verse would not say “She shall be his wife” regarding one who spreads an evil report, and derive it from the rapist,

by means of a kal va-chomer:

And if the rapist, who does not receive lashes and pay, the Merciful One said, “And she shall be his wife”; one who spreads an evil report,

who receives lashes and pays,

all the more so

is he obligated to marry her.

It must therefore have come to teach something,

and why is it stated

regarding one who spreads an evil report?

If it is not needed for one who spreads an evil report,

since it is derived by means of a kal va-chomer,

apply it to the rapist.

And if it is not needed for what precedes it,

since this is stated explicitly,

apply it to what follows.

Even if he divorced her, he must take her back all his days, and thereby the prohibition is severed by a positive mitzva.

We again challenge this:

And likewise, the obligation of one who spreads an evil report is not derived from the rapist

either

by means of a kal va-chomer, because

it can be refuted

from the opposite direction:

What is true of the rapist is that he performed an act,

and therefore he is obligated to marry her; it is impossible to derive from him an obligation for one who spreads an evil report, who performed no act.

And we answer:

Rather,

there is another way to derive that the positive mitzva severs the prohibition—

For even if

the verse would not say

“

She shall be his wife” regarding one who spreads an evil report,

we would know this,

since she is his wife,

as the spreading of the evil report occurred after he betrothed and married her.

And

why is it stated?

If it is not needed for one who spreads an evil report—

apply it to the rapist.

And if it is not needed for what precedes it—

apply it to what follows,

as a rapist who divorced her is obligated to take her back, thereby rectifying the prohibition.

And we challenge this:

But say: If it is not needed for what precedes it regarding one who spreads an evil report,

since she is his wife,

apply it to what follows regarding him.

If one who spreads an evil report divorced his wife, he is obligated to take her back, and it should be said that

he does not receive lashes,

since he thereby rectifies his prohibition.

The difficulty would then recur: From where do we know that a rapist rectifies his prohibition when he takes back his divorcee? After all, he has no separate positive mitzva that follows the prohibition.

And we answer:

Indeed, so it is,

that the positive mitzva stated regarding one who spreads an evil report comes to obligate him to take back his wife if he divorced her and to rectify his prohibition.

And the rapist comes and derives it from there,

that if he takes her back he does not receive lashes, as we find in the case of one who spreads an evil report.

We inquire into this:

By what means does he derive it from there?

If by means of a kal va-chomer,

from one who spreads an evil report, who receives lashes and pays, and nevertheless, if he divorced her, he does not receive lashes, all the more so a rapist, who does not receive lashes, should not receive lashes for divorcing her.

If by means of a mah matzinu,

since the two cases are similar—

In any event,

it can be refuted:

What is true of one who spreads an evil report is that he did not perform an act,

and he is not comparable to a rapist; therefore, it is impossible to derive from him by means of a kal va-chomer the law of the rapist.

Rather, Rava said:

The reason for the statement taught in the beraita—that a rapist who divorced her takes her back and does not receive lashes—is that it is a prohibition severed by a positive mitzva.

We infer this from the fact that the Torah added the obligation

“all his days,”

although it is already included in “He may not send her away.” This implies that the verse came to teach us that the command is that she not remain sent away from him all his days, but rather

he stands under the obligation to take her back.

The entire verse concerns one who divorces her: she shall be his wife if he sent her away; the sending away should not last all his life. Thus, the positive mitzva comes after the prohibition and rectifies it.

And likewise, when Ravin came, he said in the name of Rabbi Yohanan: “All his days he stands under the obligation to take her back.”

We return to the beginning of the sugya:

Rav Pappa said to Rava:

According to Rabbi Yohanan, who says that one receives lashes for a prohibition preceded by a positive mitzva,

The following difficulty would apparently arise:

This prohibition is not analogous to the prohibition against muzzling an animal,

from which we learn which prohibitions incur lashes, as it is adjacent to the passage concerning lashes. Since that prohibition has no positive mitzva, from where do we know that one receives lashes for a prohibition that has a positive mitzva, even when the positive mitzva preceded it?

He said to him:

Rava said: Is it the case that

because the Merciful One wrote an additional positive mitzva

as an addition to the prohibition,

it becomes less severe!?

It is certainly the case, then, that the addition of the positive mitzva does not make it unlike the prohibition against muzzling an animal!

And we challenge this:

If so,

even

regarding a prohibition severed by a positive mitzva as well, let us say

this reasoning: Is it the case that

because the Merciful One wrote an additional positive mitzva, it becomes less severe!?

Why, then, does one not receive lashes?

He said to him,

Rava:

That

positive mitzva does not strengthen the prohibition; rather,

it came to sever the prohibition.

Since it can be fulfilled only after the prohibition has been transgressed, it necessarily comes to rectify it and sever it from liability for lashes. Therefore, one does not receive lashes for it.

We challenge Rava, who said that the positive mitzva “She shall be his wife” places the rapist under an obligation to take her back all his days, and he never receives lashes, since he can say that he wishes to take her back.

However,

this works according to the one who says

below that liability for lashes for a prohibition severed by a positive mitzva depends on

“he nullified it and did not nullify it.”

For if he actively nullified the possibility of fulfilling the positive mitzva that severs the prohibition, he receives lashes; but if he did not nullify the positive mitzva, he is exempt even though he did not fulfill it.

This is because he holds that the transgression of the prohibition is not complete until he also nullifies the positive mitzva. According to him, the case of the rapist is understandable: He has a remedy all his days, namely, to take her back, and he receives lashes only if he prohibits himself from deriving benefit from her through a vow that cannot be annulled, thereby nullifying the possibility of taking her back.

But according to the one who says

that liability for lashes for a prohibition severed by a positive mitzva takes effect from the moment one transgresses the prohibition, and it is only that, since he has the possibility of fulfilling the positive mitzva and thereby removing his liability for lashes, the matter depends on

“he fulfilled it and did not fulfill it,”

such that when he is summoned to court, he can fulfill the positive mitzva and be exempt from lashes, while if he refuses to fulfill it, he receives lashes—according to him, the positive mitzva regarding the rapist poses a difficulty: “She shall be his wife all his days”—

what can be said?

For it is impossible to say, as Rava does, that all his days he stands under the obligation to take her back, since if, when he comes before the court, he immediately refuses to take her back, they administer lashes to him.

According to his view, the sinner cannot say that he will fulfill the mitzva at a later time, since he receives lashes for failing to fulfill it; for if he could postpone its fulfillment, he would never receive lashes.

[According to his view, the sinner cannot say that he will fulfill the mitzva later, since he receives lashes for failing to fulfill it. If he could postpone its fulfillment, he would never receive lashes.]