Makkot 16a (טז.) — the Talmud in English

Because it is a prohibition that does not involve an action.

For he violated his oath by refraining and not eating.

And with regard to every prohibition that does not involve an action—

one is not flogged for it.

But he is not exempt on the grounds that this is a doubtful warning, since he holds that a doubtful warning is considered a warning.

But

Reish Lakish says: He is not flogged, because it is a doubtful warning.

For he has the entire day in which to eat, and at the time they warn him he can say to the witnesses issuing the warning that he still has time. And before the entire day passes, he may forget it. And the one issuing the warning cannot arrange to warn him “within the time necessary to utter a brief statement” at the end of the day.

And since he did not state that the reason for the exemption is that he performs no action, it follows that Reish Lakish holds that one is flogged for a prohibition that does not involve an action.

And both of them,

Rabbi Yohanan and Reish Lakish, derived and stated their positions

in accordance with Rabbi Yehuda’s view.

As it is taught in a beraita

concerning the verse regarding the Paschal offering [Exodus 12]: “

You shall not leave any of it until morning, and whatever is left of it until morning

you shall burn in fire.”

And we derive: The reason the positive mitzva of burning it was juxtaposed to the prohibition against leaving it over is that—

The verse came to place the positive mitzva

of burning what was left over

after the prohibition

of “You shall not leave,”

to teach that one is not flogged for it.

For the prohibition is rectified by a positive mitzva,

the words of Rabbi Yehuda.

The Gemara now explains how each of them derived his position from Rabbi Yehuda’s statement, in accordance with his own view.

Rabbi Yohanan inferred as follows: The reason

Rabbi Yehuda says that one is not flogged is because

“the verse came”

and rectified the prohibition through a positive mitzva. And it follows from his words:

Had the verse not come

to rectify it, he would have been

flogged,

even though the period during which the left-over meat may be eaten extends throughout the night until morning, and it is impossible to warn him at a time when it is certain that he will violate the prohibition if he does not eat it immediately.

It follows

that it is evident from here that

a doubtful warning

is considered a warning.

And

if

Reish Lakish, he inferred as follows

from Rabbi Yehuda’s words:

The reason that “

the verse came

and rectified the prohibition through a positive mitzva.”

Had the verse not come

and rectified the positive mitzva concerning the left-over meat, requiring its burning, he would have been

flogged.

And although the violation of the prohibition consists of refraining and not eating, which does not involve performing an action—

it follows

that it is evident from here that

a prohibition that does not involve an action

is subject to lashes.

The Gemara asks:

And Reish Lakish as well,

must he explain how one would become liable to lashes for the prohibition of notar had it not been rectified by a positive mitzva?

Certainly,

when they warn him not to leave the meat over,

it is a doubtful warning,

since at the time of the warning he still has the possibility of eating it!

If so, he should have derived from Rabbi Yehuda that one is liable even for a doubtful warning!

And we answer: Reish Lakish exempts in the case of a doubtful warning because

he follows the view of another tanna,

another tanna who disagrees and says in the name of

Rabbi Yehuda

that in the case of a doubtful warning one is exempt!

As it is taught in a beraita:

A woman who was divorced and did not wait after her divorce the three-month period of discernment that the Sages required [for the gakkutic determination of the child she would bear—whether he is the son of her first husband or of her second], but instead married another husband after two months and gave birth to a son after seven months from the day she married her second husband.

There is now uncertainty as to who his father is: Is this son the product of nine months of gestation from her first husband, or of seven months of gestation from her second husband?

If, when the son grew up, he

struck

this

this one,

his first husband, who is possibly his father,

and then struck this one,

her second husband, who is also possibly his father—

or if he

cursed

this

this one, and then cursed

that

this one,

and he did so with two separate warnings, each warning concerning each one being a “doubtful warning.”

And likewise if he

struck

the

both of them simultaneously —

Or if he cursed both of them simultaneously,

the warning concerning both of them is a definite warning, since they were both included in one warning, and he struck or cursed both of them together within the time necessary to utter a brief statement after the warning. Whichever way one looks at it, one of them is his father, and he is liable to lashes for striking or cursing him.

In all these cases, the first tanna says

he is liable,

since he does not distinguish between a definite warning and a doubtful warning.

But

Rabbi Yehuda says

that only if he struck or cursed both of them

simultaneously is he liable,

since then the warning is a definite warning.

But if he struck or cursed them

one after the other,

the warning is a doubtful warning, and he is

exempt.

And Reish Lakish likewise held in accordance with Rabbi Yehuda, and therefore he exempts in the case of a doubtful warning.

The Gemara raises the opposite difficulty:

And Rabbi Yohanan as well

should have difficulty: How could one be liable to lashes for leaving over sacrificial meat, for the prohibition of notar [had it not been a prohibition rectified by a positive mitzva]?

And

certainly,

one who leaves over sacrificial meat has

a prohibition that does not involve an action,

and nevertheless he would have been flogged for it had the verse not rectified it through a positive mitzva.

If so, Rabbi Yohanan should have derived from Rabbi Yehuda that one is liable even without performing an action!?

And we answer:

He

Rabbi Yohanan follows in this matter

the position stated by Rav Idi bar Avin, who said that Rav Amram said that Rabbi Yitzhak said that Rabbi Yohanan said:

Rabbi Yehuda would say in the name of Rabbi Yosei HaGelili:

There is a general rule concerning

every prohibition in the Torah:

A prohibition that involves an action—

one is flogged for it.

A prohibition that does not involve an action—

one is not flogged for it.

Except for one who swears

falsely, such as, “I ate,” or, “I did not eat.”

And one who substitutes

a non-sacred animal for a sacrificial animal, who is likewise flogged.

And one who curses his fellow using the Name

of the Lord, who is flogged based on a special exposition of the verse, “If you will not heed to perform, to fear the Lord—and the Lord will make your plagues extraordinary.” The verse teaches that if he did not fear Him, but mentioned the Name of the Lord in order to curse his fellow, he is to be flogged [Temura 3a].

And one is flogged for only these three prohibitions even though they do not involve an action, but not for the other prohibitions, for which one is flogged only if they involve an action. And from here Rabbi Yohanan learned that according to Rabbi Yehuda, one is not flogged for a prohibition that does not involve an action.

But there is still

a difficulty concerning Rabbi Yehuda—

against Rabbi Yehuda,

both according to Rabbi Yohanan and according to Reish Lakish!

The Gemara explains the contradiction between Rabbi Yehuda’s statements according to both of them:

According to Reish Lakish,

there is a contradiction between his statements, since regarding notar it appears that one is liable to lashes for a doubtful warning, whereas regarding striking one’s father—striking this one and then striking that one—it appears that one is exempt from lashes because the warning is a doubtful warning.

And according to Reish Lakish, one must answer that

two tannaim

dispute the matter in accordance with Rabbi Yehuda’s view.

That is, two tannaim disputed Rabbi Yehuda’s position: whether in his view one is liable to lashes for a doubtful warning or not.

According to Rabbi Yohanan,

the contradiction is difficult, since regarding notar it appears that one is liable to lashes even though it does not involve an action, whereas Rabbi Yohanan said in the name of Rabbi Yehuda a general rule that one is not flogged when a prohibition involves no action.

And he will answer:

It is not difficult:

Rabbi Yehuda’s statement concerning notar was

his own,

according to his own position, that one is flogged even when the prohibition involves no action.

But

this

general rule stated by Rabbi Yehuda, that one is not flogged when the prohibition involves no action, was stated according to

his master’s

position, Rabbi Yosei HaGelili. Rabbi Yehuda himself disagrees with him.

We learned there

in a Mishna in tractate Hullin [141a]:

One who takes the mother bird together with the young—

Rabbi Yehuda says: He is flogged, and he does not send her away.

Since the verse says in the section concerning the sending away of the mother bird: “You shall not take the mother together with the young; you shall surely send away the mother, and the young you may take for yourself.” Rabbi Yehuda explains that the sequence stated in the verse is as follows: Do not take the mother; rather, send her away before you take the young.

Therefore, this is not a prohibition rectified by the positive mitzva of sending the mother away after taking her; rather, it is “a prohibition preceded by a positive mitzva,” for which one is flogged.

And the Sages say:

If he took the mother from above the young, he

sends

the mother away from his hands,

and

then he

is not flogged.

For the Sages explain the verse to mean that the mitzva of sending the mother away comes to rectify the prohibition through a positive mitzva: If he took the mother from above the young, he should send her away, thereby correcting his transgression. Therefore, he is not flogged for this prohibition.

This is the general rule: For every prohibition involving a positive command to arise and act—

one is not liable for it!

Rabbi Yohanan said:

Although we learned, “This is the general rule,” implying from this wording that we find many such mitzvot, in which liability to lashes or exemption depends on the nullification of the positive mitzva—

we have no such case

in which liability to lashes depends on the nullification of the positive mitzva

except

for

this

mitzva mentioned here, concerning sending away the mother bird after he took the mother,

and another

single mitzva

besides it,

as will be explained.

And one is flogged for these two only when he nullifies the possibility of rectifying the prohibition. But with regard to the other prohibitions rectified by positive mitzvot, he is not flogged, whether he fulfilled the positive mitzva after violating the prohibition or failed to fulfill it, since he did not actively nullify it.

Rabbi Yohanan holds that only when he actively nullifies the possibility of fulfilling the positive mitzva that rectifies the prohibition is he liable to lashes for a prohibition accompanied by a positive mitzva; not when he simply fails to fulfill the positive mitzva after violating the prohibition.

He

asked

Rabbi Elazar

Rabbi Yohanan:

Where

do we find another prohibition for which one is flogged despite the fact that the Torah contains a mitzva for rectifying the prohibition?

He

answered

him,

Rabbi Yohanan:

You will find it when you come across it!

That is, when you find it, you will know it yourself!

He went out,

Rabbi Elazar,

examined the matter

carefully,

and found

that there is another prohibition:

One who rapes an unmarried young woman is obligated by a positive mitzva from the Torah to marry her, and is prohibited by a Torah prohibition from divorcing her for his entire lifetime. If he violated the prohibition and divorced her, he is obligated to return and remarry her, because of the positive mitzva imposed upon him that this woman remain married to him throughout his life.

As it is taught in a beraita: One who rapes

a young woman

who

he married, and afterward

divorced

her—

If he is an Israelite,

who is permitted to remarry his divorcee, he

returns

her to him, thereby rectifying the violation of the prohibition “He may not send her away,” and

is not flogged.

And if he is a kohein,

who is forbidden to marry a divorcee, he

is flogged

for divorcing her,

and does not return her.

And from the beraita’s statement that the rapist who remarries his divorcee is not flogged, it follows that if he does not remarry her, he is flogged, despite the fact that a mitzva applies here. From this Rabbi Elazar proves that the rapist’s liability to lashes or exemption from lashes depends on fulfillment of the positive mitzva.

But the matter still requires discussion:

Granted, according to the one who teaches “

he fulfilled it”

and “

he did not fulfill it,”

the rapist is properly flogged for divorcing the woman he raped, since he did not fulfill the positive mitzva at the time the court warned him about it.

But according to the one who teaches “

he nullified it”

and “

he did not nullify it”—

how can you find a case

in which he is flogged for sending her away?

Granted, with regard to the sending away of the mother bird, you can find a case

in which he is flogged, when he slaughtered the mother bird, thereby actively nullifying the possibility of sending her away and thus rectifying the prohibition.

But in the case of the rapist

who divorced the woman he raped, “

he nullified it and” “

he did not nullify it”—

how can you find a case

in which he is flogged for actively “nullifying” the positive mitzva?

For

if

he nullified it by

killing

his divorcee, so that he cannot remarry her, he is exempt from lashes for another reason, since

he is placed under—

a punishment greater than it!

for the court puts him to death because he murdered her, but he is not both put to death and lashed, since the more severe punishment is sufficient.

Rav Shimi of Meḥoza said:

There is a possibility in which the rapist actively prevents himself from fulfilling the positive mitzva, in

a case where

after her divorce, he

accepted for her

on her behalf

a betrothal from

a man

other than himself.

For by arranging her betrothal to another man, he actively nullifies his own possibility of taking her back, since from that point onward she is the wife of another man.

And even if her second husband divorces her or dies, she can never return to her first husband, since the Torah prohibits everyone from taking back his divorced wife after she has married another man, as the verse states: “after she has been defiled.”

Rabba

asked in astonishment:

Rabba:

How does his accepting her betrothal from another man on her behalf constitute the nullification of a mitzva?

For in either case—

If you made him

the former husband, so that he would be her

agent

to accept her betrothal from the other man—

then

she herself

is the one who

nullifies it for him

—the possibility of her husband taking her back—and it is not the husband who nullifies the positive mitzva by being her agent to accept betrothal from another man.

Therefore, he should not be liable to lashes when he carries out his agency, because he did not actively nullify the positive mitzva that rectifies the prohibition.

And

if you did not make him an agent,

how can his acceptance of her betrothal be effective in order to betroth her at all?

Is that within his power?!

Does he have the power to accept her betrothal on his own, without her agency!?

And

his acceptance is

entirely ineffective!

Rather, Rav Shimi of Nehardea said:

It is possible that the rapist actively nullifies his ability to fulfill the positive mitzva in

a case where he publicly imposed a vow on her

never to derive benefit from him.

A vow imposed publicly has a special force, such that the Sages cannot annul it.

Therefore, from the moment he publicly imposes the vow on her, he can no longer take her back, and it follows that by publicly imposing the vow he performs an act that actively nullifies his ability to take her back.

And we challenge this:

This works well according to the one who says: “

A vow imposed publicly cannot be annulled,”

as there is indeed a possibility for the rapist to actively nullify the positive mitzva by imposing a public vow on her.

But according to the one who says

that even a vow imposed publicly

can be annulled—

what can be said?

And we answer: It is still possible, in a case where he found in her a transgression—for example, she committed adultery while married to him, and she is forbidden to him—

so that

he

imposes a vow upon her “

subject to the consent of the רבים,”

and subject to the consent of the court; that is, it may be permitted only with the consent of the רבים and the court.

For Ameimar said: The halakha is: A vow imposed publicly can be annulled.

But a vow imposed

“subject to the consent of the רבים”

cannot be annulled.

The Gemara now challenges Rabbi Yoḥanan, who holds that there are only two prohibitions linked to a positive mitzva for which one is liable to lashes:

And are there no others,

that are subject to lashes?

But there is [

a mnemonic:

A. the prohibition of

robbery; B. the prohibition of

taking a

pledge; C.

and the prohibition of

the

corner of the field ]

A.

Robbery—

For the Merciful One said: “

You shall not rob,”

and the verse linked it to a positive mitzva, as it is written: “

He shall return the stolen property.”

B.

A pledge—

For the Merciful One said: “

You shall not enter his house,”

the borrower’s,

to take his pledge.”

And the verse linked it to the positive mitzva that rectifies it

And you can find

these two prohibitions in every possible form:

Whether when he fulfilled the positive mitzva

stated concerning them, by returning the stolen property or the pledge;

and

whether when he

did not fulfill

the positive mitzva, when he refuses to return the stolen property or the pledge;

whether when he

nullified

the positive mitzva through his own action, by burning the stolen property or the pledge;

and

whether he

did not nullify

the positive mitzva.

Why, then, did Rabbi Yoḥanan say that there are no other mitzvot of this kind?

And we answer:

There,

in the cases of robbery and a pledge,

since

the robber or the one who took the pledge

is liable to pay

if he burned the stolen property or the pledge, he is exempt from lashes for another reason —

Because

no

person

is both lashed and required to pay

at the same time.

Therefore, Rabbi Yoḥanan did not mention these mitzvot.

Ravina raised an objection: But there is

a circumstance concerning the mitzva of a pledge in which he has completely “nullified it,” with not even the possibility of payment, such as

a convert’s pledge,

and he burned the pledge during the convert’s lifetime,

and the convert died

before he returned it to him.

For if the convert dies without heirs, there is no possibility of payment whatsoever. By law, the lender should be liable to lashes.

The objection therefore returns to its place: we have found another mitzva for which one is lashed when he nullifies it.