Makkot 4b — the Talmud in English

Gemara:

And we raised this:

Granted, according to the Rabbis,

who said at the beginning that the witnesses do not receive lashes and pay, they have a source for this. Since

“according to the measure of his wickedness”

is written,

and we learned from here that only

“because of one wickedness you hold him liable, but you do not hold him liable because of two wickednesses.”

And therefore the witnesses are not punished with two punishments.

But Rabbi Meir,

who said that he receives lashes and pays—

what is his reason?

But even though monetary liabilities and lashes are learned from two verses, we should exempt him from one of the punishments, because “according to the measure of his wickedness” is written!

And we answer:

Ulla said: He derived,

Rabbi Meir learned to impose both punishments, lashes and money, together,

from one who brings out an evil name.

For if the husband of a virgin girl said to her father, after he had married her: “I did not find signs of virginity in your daughter, and she committed adultery beneath me, when she was a betrothed maiden to me,” and it was found that he had falsely accused her—it is said concerning him, “They shall chastise him,” which is a punishment of lashes, and also, “They shall fine him one hundred silver pieces,” to give to her father.

Thus Scripture punished him with both together, with lashes and with money, and from it we learn:

What,

just as

one who brings out an evil name receives lashes and pays —

so every

person liable for two punishments, money and lashes,

receives lashes and pays!

And the exemption of “according to the measure of his wickedness” was stated concerning these two punishments of money and lashes only with regard to death and lashes, for one does not receive lashes and die simultaneously.

And if you would say: It is impossible to learn from one who brings out an evil name to the other cases, because—

What is true of one who brings out an evil name,

that it contains a novelty,

for

it is

a fine,

for the Torah fined him to pay money to the father of the girl, although he did not cause him a monetary loss.

And since this payment was introduced here as a novelty, therefore even where he becomes liable together with it for lashes, he receives lashes and pays. But it is impossible to learn from this novel law to the other monetary laws, that in them as well he receives lashes and pays. Once again, we have no source for Rabbi Meir’s reason that he does not exempt him because of “according to the measure of his wickedness” in the case of money and lashes.

It can be said:

He held it

Rabbi Meir

like Rabbi Akiva, who said: Conspiring witnesses

who pay money by virtue of “as he schemed”—

it is a fine,

and not payment for monetary damage, since they have not yet actually caused him to lose money through their testimony, but only schemed to cause him to lose it.

And since the payment of conspiring witnesses is a fine, it is possible to learn it from the fine of one who brings out an evil name, who pays and receives lashes. For one who brings out an evil name contains no greater novelty than conspiring witnesses, since both pay a fine and not money.

There are those who teach this statement of Ulla

who repeat Ulla’s statement, that one learns from one who brings out an evil name with regard to another matter,

as follows—

For it was taught:

It was said concerning the law of eating the Paschal offering [Exodus 12],

“You shall not leave any of it until morning,

and what is left of it you shall burn with fire”—

The verse came to impose a positive commandment

to burn what remains

after a prohibition,

that it is forbidden to leave over from the meat of the sacrifice—

to say that one does not receive lashes for it!

That is, the prohibition forbidding leaving over from the meat of the offering is a prohibition whose correction is a positive commandment: it is a commandment from the Torah to burn in the morning the meat that remains, and through this he repairs the violation of the prohibition and atones for it,

the words of Rabbi Judah,

who holds that for a prohibition whose correction is a positive commandment, one does not receive lashes.

Rabbi Yaakov says: This is not the reason!

His exemption from lashes for one who leaves over from the meat of the sacrifice is not learned from this verse. He does not escape lashes because Scripture transformed the prohibition of leaving over into the positive commandment of burning.

Rather,

the exemption of one who leaves over from lashes is for another reason:

Because it is

the prohibition of leaving over from the meat of the sacrifice

a prohibition that does not involve an act,

for the transgression is committed through not eating the meat of the offering, and he does not leave the meat over by an act of his hands.

And every prohibition that does not involve an act—

one does not receive lashes for it!

And the Gemara analyzes the words of the beraita:

By implication,

from these words of Rabbi Yaakov you learn

that Rabbi Judah

who exempted one who leaves over from lashes only because the prohibition is corrected by a positive commandment,

holds that one receives lashes for a prohibition that does not involve an act.

And therefore he did not exempt him for Rabbi Yaakov’s reason, that leaving over is a prohibition that does not involve an act.

And concerning this we ask:

From where does he have it,

Rabbi Judah, that one receives lashes for a prohibition that does not involve an act?

Ulla said: He derived,

Rabbi Judah learned this

from one who brings out an evil name—

What is true of one who brings out an evil name,

who violates a prohibition that does not involve an act, for he performs no act with his hands, but violates the prohibition of bringing out an evil name through speech alone, and speech is not considered an act, and nevertheless

he receives lashes for it—

so every prohibition that does not involve an act, one receives lashes for it!

And we refute Ulla:

What is true of one who brings out an evil name, for

it contains a stringency, for he

receives lashes and pays,

unlike the other prohibitions, where he does not receive lashes and pay. Only here did the Torah introduce this law.

And since one who brings out an evil name is more severe, one cannot learn from it to the other, less severe prohibitions, even concerning lashes—that one receives lashes for a prohibition that does not involve an act.

Therefore the Gemara brings another source:

Rather, Reish Lakish said:

Rabbi Judah, who said that one receives lashes for a prohibition that does not involve an act,

derived,

he learned this

from conspiring witnesses—

What is true of conspiring witnesses,

whose liability is for the violation of

a prohibition that does not involve an act,

for concerning their testimony about a son of a divorced woman or a son of a ḥalutza they are liable only because of the prohibition “You shall not answer against your fellow as a false witness,” for their speech, which is not considered an act performed by their hands, and nevertheless

they receive lashes for it.

So every prohibition that does not involve an act, one receives lashes for it.

If you would say:

What is true of conspiring witnesses, for they do not require a warning

(and the reason is explained in Tractate Ketubot 33a).

Therefore it is impossible to learn from them to the other prohibitions, that one receives lashes for a prohibition that does not involve an act, since conspiring witnesses are unlike the other people punished by the Torah, who are not punished without a warning before their transgression.

Your answer:

One who brings out an evil name proves it,

who receives lashes for a prohibition that does not involve an act, even though he requires a warning.

And therefore we learn from both of them together, by the principle of

“and the ruling returns.”

This one is not a proof,

the stringency of one who brings out an evil name, that he receives lashes and pays,

like that one,

like conspiring witnesses. One who brings out an evil name requires a warning, and nevertheless he receives lashes even though his transgression involves no act.

And that one is not a proof,

conspiring witnesses; their stringency is not

like that one,

like one who brings out an evil name. For conspiring witnesses do not receive lashes and pay, and nevertheless they receive lashes without an act.

It necessarily follows that these stringencies are not what cause them to receive lashes; rather, we must find a common feature that exists in both of them and causes them to receive lashes.

The common aspect among them

is that both are

prohibitions that do not involve an act, and one receives lashes for them.

So every prohibition that does not involve an act—

one receives lashes for it!

If you would say:

What is true of the common aspect among them, for

their payments are

a fine,

and through this they are more severe than all the others; therefore even from the liability of lashes in their case it is impossible to learn to other, less severe prohibitions?

Your answer:

This is not difficult.

For

Rabbi Judah—

did not hold like Rabbi Akiva

concerning conspiring witnesses, who says that their payments are a fine; rather, he held that their payments have the status of monetary payments.

Therefore it is possible to learn from the common aspect—from conspiring witnesses and from one who brings out an evil name—to impose lashes for every prohibition that does not involve an act.

Rather,

if there is room to ask, this is what you should ask:

What is true of the common aspect among them, for they contain a severe aspect,

that in each of them there is a special stringency not found among the other people liable for lashes. For we do not find that people are punished without a warning as we find with conspiring witnesses, nor do we find that one receives lashes where he pays, as we find with one who brings out an evil name.

If so, how can we learn from them to impose lashes for the other prohibitions that do not involve an act!?

Indeed, on the strength of this refutation, Rabbi Yaakov and the other Sages hold that one does not receive lashes for a prohibition that does not involve an act.

The answer to this question:

And Rabbi Judah,

who learns from both of them together to impose lashes for all prohibitions that do not involve an act, did not concern himself with this refutation, since Rabbi Judah

from a severe aspect—

does not refute!

For Rabbi Judah holds that since their stringencies are not equal, it is proven that their stringency is not what causes them to receive lashes despite the fact that they involve no act. For in each one there is no stringency like that of the other, and in any event he receives lashes.

And now the Gemara returns to explain the latter clause of our Mishna, the position of the Rabbis, who disagree with Rabbi Meir, who holds conspiring witnesses liable for two sets of lashes, because of “You shall not answer” and because of “as he schemed”:

And the Rabbis,

who said in the latter clause that witnesses who schemed to cause lashes to be administered receive only forty because of “as he schemed,” and do not receive lashes for “You shall not answer”—

This

verse of

“You shall not answer against your fellow as a false witness”—

what do they expound from it?

Why do they not impose lashes also by virtue of the prohibition of false testimony?

And we answer: According to them,

that

verse

is needed,

there is a need for it

as a warning for

all

conspiring witnesses.

For without this warning they would not be liable even by virtue of “as he schemed,” since there is no punishment without a warning.

And their warning is from the prohibition “You shall not answer,” which itself was not given in order that one receive lashes for it, but to warn the conspirators concerning their punishment, “as he schemed”; therefore they cannot be held liable for an additional punishment of lashes besides the punishment of “as he schemed.”

And

if

the other one,

Rabbi Meir, who holds that conspiring witnesses receive lashes separately as well for the prohibition “You shall not answer,” then

the warning for conspiring witnesses,

who are liable by virtue of “as he schemed”—

from where does he have it?

But the prohibition “You shall not answer” is needed as a warning for the lashes that they receive for it; from where does he have a warning for the punishment of “as he schemed”?

Rabbi Yirmeya said: He derives

for Rabbi Meir a warning for “as he schemed”

from

the continuation of the verse, “And you shall do to him as he schemed”—as it is said:

“And those who remain shall hear and fear, and shall not again commit such an evil among you.”

And we ask: If so,

for the Rabbis,

why do they learn a warning for the punishment of “as he schemed” from “You shall not answer against your fellow as a false witness”? For in the section concerning conspiring witnesses itself, the warning “they shall not again commit” was stated!?

And we answer:

That

verse

is needed for the Rabbis—