Makkot 16a — the Talmud in English

Because it is a negative commandment that does not involve an act.

For he violated his oath by refraining and not eating.

And every negative commandment that does not involve an act—

one is not flogged for it.

But he is not exempt on account of a warning of doubt, because he holds that a warning of doubt is considered a warning.

Whereas

Resh Lakish says: He is not flogged, because it is a warning of doubt.

For he has time to eat throughout the entire day, and when he is warned he will say to the witnesses who warn him that he still has time. And before the entire day passes he will forget it. And the one giving the warning cannot arrange to warn him “within the time of speech” of the end of the day.

And since he did not state the reason for the exemption as being that he performs no act, it follows that Resh Lakish holds that one is flogged for a negative commandment that does not involve an act.

And both of them,

Rabbi Yohanan and Resh Lakish, learned and stated their words—

according to Rabbi Judah.

For it was taught

concerning the verse about 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 expound: For this reason the positive commandment of burning was juxtaposed to the prohibition against leaving it overnight—

The verse came to assign a positive commandment

of burning the leftover meat

after a negative commandment,

of “You shall not leave,”

to say that one is not flogged for it.

For the negative commandment is rectified by a positive commandment,

the words of Rabbi Judah.

The Gemara now explains how both of them learned their views from his words.

Rabbi Yohanan inferred as follows: The reason

that Rabbi Judah says that he is not flogged is because

“the verse came”

and disconnected the negative commandment from the positive commandment. And it follows from his words:

Had the verse not come

to disconnect it, he would have been

flogged,

even though the time for the leftover meat extends throughout the entire night until morning, and it is impossible to warn him at a time when he will certainly violate the prohibition if he does not eat it immediately.

Thus

it is proven from here that

a warning of doubt—

is considered a warning.

And

whereas

Resh Lakish inferred as follows

from Rabbi Judah’s words:

The reason for “

the verse came

and disconnected the negative commandment from the positive commandment”—

Had the verse not come

and disconnected the positive commandment concerning leftover meat, to burn it, he would have been

flogged.

And although the violation of the prohibition consists in refraining and not eating, and this does not involve performing an act—

thus

it is proven from here that

a negative commandment that does not involve an act—

one is flogged for it.

And we ask:

And Rabbi Shimon ben Lakish also

must explain how he would become liable for lashes for the prohibition of leftover meat, had it not been disconnected by a positive commandment?

Is it not certainly the case

that when he is warned not to leave it overnight,

it is a warning of doubt,

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

If so, he should have learned from Rabbi Judah to impose liability in the case of a warning of doubt!

And we answer: Resh Lakish exempts in the case of a warning of doubt because he

adopts the view of that other tanna,

another tanna who disputes him and says in the name of

Rabbi Judah

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

For it was taught:

A woman who was divorced and did not wait after her divorce through the period of discernment of three months, as the Sages required [for the halakha requires every divorced or widowed woman to wait three months, so that there can be discernment concerning the child she will bear—whether he is the son of her first husband or the son of her second husband], but married another husband after two months and gave birth to a son after seven months from the day of her marriage to the second husband.

And now there is a doubt as to who his father is—whether this son completed nine months of gestation from the first husband, or whether he completed seven months of gestation from her second husband.

If, when the son grew up, he

struck

the

one,

the first husband, who is possibly his father,

and then struck the other one,

the second husband, who is also possibly his father—

Or if he

cursed

the

one, and then cursed

the

other one,

and did this with two separate warnings, each warning concerning each one being a “warning of doubt.”

And likewise if he

struck

the

two of them at once —

Or he cursed both of them at once,

for his warning concerning both of them is a certain warning, since he was warned concerning them with one warning, and he struck or cursed both of them together, within the time of speech of his warning. In either event, 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 certain warning and a warning of doubt.

Whereas

Rabbi Judah says

that only if he struck or cursed both of them

at once is he liable,

for then the warning is a certain warning.

But if he struck or cursed

one after the other,

so that the warning is a warning of doubt, he is

exempt.

And Resh Lakish likewise held this according to Rabbi Judah, and therefore he exempts in the case of a warning of doubt.

The Gemara raises the objection from the other side:

And Rabbi Yohanan also

should have difficulty: How could one who leaves sacrificial meat overnight become liable to lashes for the prohibition of leftover meat [had it not been a negative commandment disconnected from a positive commandment]?

And

it is certainly the case that one who leaves sacrificial meat overnight

violates a negative commandment that does not involve an act,

and nevertheless he would have been flogged for it had the verse not disconnected it from a positive commandment.

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

If so, Rabbi Yohanan should learn from Rabbi Judah to impose liability upon him even without an act!?

And we answer:

He adopts the view

that Rabbi Yohanan holds in this matter, like

that which Rav Idi bar Avin said, who said that Rav Amram said, who said that Rabbi Yitzhak said, who said that Rabbi Yohanan said:

Rabbi Judah used to say in the name of Rabbi Yosei the Galilean:

There is a general rule concerning

every negative commandment in the Torah:

A negative commandment that involves an act—

one is flogged for it.

A negative commandment that does not involve an act—

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 sacrificial animal for an unconsecrated animal, who is also flogged.

And one who curses his fellow by the Name

of God, who is flogged through 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, but mentioned the Name of God in order to curse his fellow, he is to be flogged [Temura 3a].

And it is only for these three negative commandments that one is flogged even though they do not involve an act, but not for the other negative commandments, for one is flogged only if they involve an act. And from here Rabbi Yohanan learned that according to Rabbi Judah one is not flogged for a negative commandment that does not involve an act.

But still there is

a difficulty concerning Rabbi Judah—

against Rabbi Judah,

both according to Rabbi Yohanan and according to Resh Lakish!

The Gemara explains the contradiction in Rabbi Judah’s words according to both of them:

If according to Resh Lakish,

there is a contradiction in his words, since concerning leftover meat it implies that one is liable to lashes for a warning of doubt, whereas concerning striking one’s father, in the case of striking one and then striking the other, it implies that he is exempt from lashes because his warning is a warning of doubt.

And according to Resh Lakish, one must explain that two tannaim disputed this matter,

according to Rabbi Judah.

That is, two tannaim disputed Rabbi Judah’s view: whether in his opinion one is liable to lashes in the case of a warning of doubt or not.

That is, two tannaitic authorities disagree about Rabbi Yehuda's view: whether, according to him, one is liable for flogging on the basis of an uncertain warning or not.

If according to Rabbi Yohanan,

the contradiction is difficult: concerning leftover meat it implies that one is liable to lashes even though it does not involve an act, whereas Rabbi Yohanan said in the name of Rabbi Judah a general rule that one is not flogged when the negative commandment does not involve an act.

And he will answer:

It is not difficult:

For Rabbi Judah’s words concerning leftover meat are

his own,

according to his own view, that one is flogged even when it does not involve an act.

Whereas

this,

the general rule stated by Rabbi Judah, that one is not flogged when it does not involve an act, was stated according to the view of

his master,

his teacher, Rabbi Yosei the Galilean. But Rabbi Judah himself disputes him.

We learned there

in a Mishna in tractate Hullin [141a]:

One who takes the mother together with the young—

Rabbi Judah says: He is flogged and does not send her away.

For the verse says in the passage of sending away the nest: “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.” And Rabbi Judah explains that the order 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 negative commandment disconnected from a positive commandment of sending away after taking, but rather it is a “negative commandment preceded by a positive commandment,” 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 words of the verse as meaning that the mitzva of sending away comes to disconnect the negative commandment through a positive commandment: If he took the mother from above the young, he should send her away, and thereby rectify his transgression. Therefore, he is not flogged for this negative commandment.

This is the general rule: For every negative commandment whose positive commandment is “rise and perform”—

one is not liable for it!

Rabbi Yohanan said:

Even though we learned, “This is the general rule,” implying from this formulation that we find many such mitzvot, in which liability to lashes or exemption depends upon nullifying the positive commandment—

We have none

of whose cases liability to lashes depends upon nullifying the positive commandment,

except

the

one

mitzva mentioned, of sending away the nest after he took the mother,

and also

one

other

mitzva, as will be explained.

And it is only for these that he is flogged when he nullifies the possibility of rectifying the negative commandment. But concerning the other negative commandments disconnected from positive commandments, he is not flogged, whether he fulfilled the positive commandment after violating the negative commandment or did not fulfill it, since he did not nullify it with his hands.

And Rabbi Yohanan holds that only if he nullified with his hands the possibility of fulfilling the positive commandment that rectifies the negative commandment, only then is he liable to lashes for a negative commandment that has a positive commandment. But not when he did not fulfill the positive commandment after violating the negative commandment.

He said,

he asked

Rabbi Elazar

Rabbi Yohanan:

Where

do we find another negative commandment for which one is flogged, despite there being a mitzva in the Torah to rectify the negative commandment?

He said,

he answered

him,

Rabbi Yohanan:

When you forget!

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

He went out,

Rabbi Elazar,

examined,

he analyzed,

and found,

that there is another negative commandment—

One who forcibly has intercourse with an unmarried maiden is obligated by a positive commandment from the Torah to marry her, and he is forbidden by a negative commandment from the Torah to divorce her all his days. If he violated the negative commandment and divorced her, he is obligated to return and take her back, on account of the positive commandment imposed upon him that this woman be married to him all his life.

For it was taught: One who forcibly takes

a maiden,

who

married her, and afterward

divorced

her—

If he is an Israelite,

who is permitted to take back his divorcee, he

takes her back

to him, and thereby rectifies his violation of the negative commandment, “He may not send her away,”

and he is not flogged.

And if he is a priest,

who is forbidden to marry a divorcee, he

is flogged

for divorcing her,

and he does not take her back.

And from the beraita’s statement that the man who forcibly took her, who takes back his divorcee, is not flogged, it follows that if he does not take her back, he is flogged, despite there being a mitzva here. And from this Rabbi Elazar proves that liability to lashes, or exemption from lashes, in the case of one who forcibly took her depends upon fulfilling the positive commandment.

But it still requires discussion:

This works according to the one who teaches “

he fulfilled it”

and “

he did not fulfill it,”

for the man who forcibly took her is properly flogged for divorcing the woman he forcibly took, since he did not fulfill the positive commandment when 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 it

that he is flogged for sending her away?

Granted, concerning sending away the nest, you can find it

that he is flogged when he slaughtered the mother, and thereby nullified with his hands the possibility of sending her away and thereby rectifying the negative commandment.

But in the case of the one who forcibly took her,

who divorced the woman he forcibly took, “

he nullified it and” “

he did not nullify it”—

how can you find it

that he is flogged because he “nullified” the “positive commandment” with his hands?

For

if

he nullified it by

killing

his divorcee, thereby killing her so that he cannot take her back, he is exempt from lashes for another reason, since

it stands to him—

a greater punishment than this!

for the court puts him to death because he murdered her, and he does not die and receive lashes, since the severe punishment is sufficient.

Rav Shimi of Mahuza said:

It is possible for the violator to actively nullify the possibility of fulfilling the positive commandment in the case of one who divorced his raped wife,

for example, when

after her divorce, he

accepted for her

on her behalf

the betrothal of

a man

other.

For through the act of betrothing her to another man, he actively nullifies his possibility of taking her back to him, since from this 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 prohibited every man from taking back his divorced wife after she has married another man, as the verse says: “after she has been defiled.”

He said

Rabba

said

in astonishment: How does the act of accepting her betrothal from another man on her behalf constitute nullification of a mitzva?

For in either case—

If you made him

if the divorced woman made her former husband

an agent

on her behalf, in order to accept her betrothal from the other man—

then

she herself

is the one who

nullifies it

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

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

And

if you did not make him an agent,

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

Is it within his power?!

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

And

his acceptance—

is nothing!

Rather, Rav Shimi of Nehardea said:

It is possible that the violator actively nullifies his possibility of fulfilling the positive commandment,

for example, when he vows in public

that she may never derive benefit from him.

And a vow made in public is a vow with special validity, which the Sages cannot release.

Therefore, from the moment he vows against her in public, he can no longer take her back to him, and it follows that through the act of vowing against her in public he actively nullifies his possibility of taking her back.

And we raise a difficulty:

This works well according to the one who says “

a vow made in public has no release,”

for there is properly a possibility of the violator actively nullifying the positive commandment when he makes a vow against her in public.

But according to the one who says

even a vow made in public

has a release—

what is there to say?

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

for

then he

vows against her “

according to the will of the many,”

and according to the will of the court, that is, that he will have no release except according to the will of the many and according to the will of the court.

For Ameimar said: The halakha is: A vow made in public has a release.

However, a vow made

according to the will of the many—

has no release.

And now the Gemara raises a difficulty against Rabbi Yoḥanan, who holds that there are only two prohibitions redirected to a positive commandment for which one receives lashes:

And there is no more?

Are there no additional such prohibitions for which one receives lashes?

But there is [

a mnemonic:

A. the prohibition of

robbery; B. the prohibition of

the prohibition of

collateral; C.

and the prohibition of

the prohibition of

the corner of the field ]

A.

Robbery—

For the Merciful One said “

You shall not rob,” and the verse redirected it to a positive commandment, as it is written, “

He shall restore the stolen property.”

He shall return the stolen property.”

B.

Collateral—

for the Merciful One said “

You shall not enter his house

of the borrower

to take his pledge.”

And the verse redirected it to a positive commandment that rectifies it —“You shall surely return the pledge to him when the sun goes down.”

And you can find

these two prohibitions in all circumstances:

Whether when he fulfilled the positive commandment

stated concerning them, when he returned the stolen property or the collateral.

And

whether when he

did not fulfill

the positive commandment, when he refuses to return the stolen property or the collateral.

Whether when he

nullified

the positive commandment through his own hands, if he burns the stolen property or the collateral.

And

whether he

did not nullify

the positive commandment.

And why did Rabbi Yoḥanan say that there are no additional mitzvot such as this?

And we answer:

There,

in the case of robbery and collateral,

since he is liable

the robber or the one who took the collateral

for payment

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

Because

one does not

a person

receive lashes and pay

at once.

Therefore Rabbi Yoḥanan did not mention these mitzvot.

Ravina raised an objection to it: But there is

in the mitzva of collateral a case in which he “completely nullified it,” with not even an opportunity for payment, such as

the collateral of a convert,

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

and the convert died

before he returned it to him.

For if the convert dies and has no heirs, then there is no possibility of payment at all. And by law, the lender should receive lashes.

And the difficulty returns to its place: we have found an additional mitzva for whose nullification one receives lashes.