Ask A Question about the Daf

Previous daf

Makos, 4

4b

QUESTION: Rav Yehudah in the name of Rav teaches that if a barrel full of water falls into the sea and a person who is Tamei immerses himself there, he does not become Tahor, because we are concerned that there are three Lugin of water from the barrel gathered together in one place. RASHI (DH Lo Alsah) explains that when a person immerses in three Lugin of Mayim She'uvin (water that has been drawn with a vessel), he becomes Tamei because of a Gezeirah d'Rabanan. The Gemara in Shabbos (14a) relates that the Rabanan made a Gezeirah that a person who is Tahor who immerses himself in three Lugin of Mayim She'uvin becomes Tamei (with Sheni l'Tum'ah) and is prohibited from eating Terumah. The Gemara finds support for Rav's ruling in a Beraisa which teaches that when a barrel of wine falls into the sea, one may not immerse in that location because three Lugin of She'uvin might be gathered together in one place.

How can three Lugin of water in the middle of the sea be Metamei a person? We know that Mayim She'uvin, or water that is Tamei, which merely touches ("Hashakah;" see Beitzah 17b) the pure water of a Mikvah immediately becomes Tahor. Mayim She'uvin that is added to a full and valid Mikvah does not disqualify the Mikvah; it is permitted to immerse there even when most of the water is She'uvin, since the Mayim She'uvin was added after the Mikvah was full. The Mishnah in Mikva'os (6:3) teaches that if a pit of Mayim She'uvin is adjacent to a valid Mikvah, after the waters are made to touch through "Hashakah" the pit of Mayim She'uvin becomes fit for use as a Mikvah (if it is filled with 40 Se'ah of water). The Mayim She'uvin loses its status of She'uvin through "Hashakah" once it is connected to a full Mikvah.

However, if the water from the barrel is no longer considered to be Mayim She'uvin once it is touching a valid Mikvah (i.e. the sea), then it should no longer be Metamei a person because of the Gezeirah d'Rabanan! How, then, can the three Lugin of Mayim She'uvin that spilled in the sea be Metamei a person? (TOSFOS DH Amar)

(It is evident that Rashi agrees that the Mayim She'uvin loses its status of She'uvin through Hashakah, because he says that the only reason the person is Tamei is because of the Gezeirah d'Rabanan. This implies that the Mayim She'uvin indeed lost its status through Hashakah and was considered a valid Mikvah to remove the person's original Tum'ah, and now the person is becoming Tamei because of the Gezeirah.)

In addition, if the person who immerses in the Mayim She'uvin (the water that spilled from the barrel) becomes Tamei due to the Gezeirah d'Rabanan, then why does Rav and the Beraisa discuss the immersion of a person who was *already Tamei*? The same Halachah should apply when the person was Tahor and immersed where the water spilled from the barrel! (MISHNEH L'MELECH, Hilchos Avos ha'Tum'ah 9:1)

Finally, how can the Gemara say, in explaining the Beraisa, that perhaps the person who immersed in the water that spilled from the barrel will become Tamei "because he has a Chezkas Tum'ah?" According to Rashi, the immersion was effective in removing the Tum'ah that the he had (and thus he has no Chezkas Tum'ah), and the only question now is whether he has the new Tum'ah d'Rabanan for immersing in Mayim She'uvin! (RITVA)

ANSWERS: Many Rishonim argue with Rashi's explanation because of these questions and offer alternative explanations for the Gemara.

(a) The Girsa of TOSFOS is that both Rav and the Beraisa are discussing a barrel of *wine* that fell into the sea. The reason a person cannot immerse in the wine is not because of the Gezeirah that Rashi mentions, but because the wine acts as a Chatzitzah, an intervening substance, between the person's body and the seawater. Why, then, does the Gemara say that we are concerned that the person might be immersing in "three Lugin" of wine? The RITVA answers that the Gemara does not mean that there might be specifically three Lugin in one place; rather, the Gemara is telling us merely that it is likely that at least three Lugin of the wine of the barrel remain together. Certainly, though, even if less than that amount remains together, it will also invalidate the immersion.

It seems that this answer is in accordance with the Girsa of the Gemara before Rashi's emendation, according to which Rav and the Beraisa say that it is "*impossible*" for there not to be three Lugin that do not remain together. According to Rashi's emendation, the Gemara is saying that we are concerned that *perhaps* three Lugin remain together. According to Rashi's Girsa, Rav is not describing the situation (i.e. that it is impossible that three Lugin are not gathered together), but rather he is describing the Halachah (that the wine will be a Chatzitzah), and thus he should not mention three Lugin at all (but rather merely that "some" of the wine will remain together and cause a Chatzitzah).

The RITVA rejects the explanation of Tosfos because it is refuted through experimentation. It is clear to the observer that wine poured into a Mikvah immediately disperses, and, therefore, it should become Batel b'Rov to the water of the Mikvah, even if the color of wine is still evident.

(b) The Ramban and Ritva cite RABEINU MOSHE HA'DARSHAN who distinguishes between seawater and other types of water. Although Hashakah with a valid Mikvah normally removes the Tum'ah from water and the Pesul of Mayim She'uvin, Hashakah of fresh water with seawater does not remove these Pesulim, since fresh water cannot become part of seawater because it is not the same type of water.

According to Rabeinu Moshe ha'Darshan, the text of the statement of Rav and of the Beraisa can read that a barrel of *water* (and not wine) fell into the sea. The Pesul of the water from the barrel is due to the fact that the freshwater is Chotzetz between the person and the Mikvah (the sea).

According to this explanation, the reason why the Gemara mentions specifically "three Lugin" must be as we explained above.

(c) According to the Girsa of Rashi, however, Rav is discussing *water* and the Beraisa is discussing *wine*. Rashi clearly rejects both of the abovementioned explanations of the Gemara. Perhaps the reason he rejects these two explanations is because he proved that the proper Girsa of the Gemara is "Chaishinan" -- "we are concerned" that there are three Lugin in one place. According to this Girsa, we cannot explain the meaning of "three Lugin" as the Ritva explains (in (a) above).

This is why Rashi explains that the Tum'ah that Rav is discussing is the Tum'ah d'Rabanan of three Lugin.

Apparently, Rashi learns that although the water that came from the barrel no longer has the status of Mayim She'uvin with regard to making a valid Mikvah, nevertheless -- since the water is still in one place -- the Gezeirah d'Rabanan applies. The Gezeirah depends on the physical status of the water, and not on the Halachic status.

Why does Rav discuss a person who is Tamei who immerses in that water? The person who immerses there should become Tamei even if he was previously Tahor!

The MISHNAH L'MELECH (Hilchos Avos ha'Tum'ah 9:1) cites TOSFOS in Shabbos (13b) and in Gitin (16a) who writes that the Rabanan enacted Tum'ah for a person who goes into Mayim She'uvin only when he does so on the same day on which he previously immersed in a Mikvah. If a person -- who was not Tamei and who did not immerse in a Mikvah earlier -- immerses in Mayim She'uvin, he does not become Tamei. (He becomes Tamei only if three Lugin of water are *poured* on him, due to a separate Gezeirah.) This also seems to be the opinion of Rashi in Shabbos (14a). For this reason, our Gemara, which is discussing the Tum'ah of a person who immerses in Mayim She'uvin, must discuss a person who was Tamei earlier that day (because if he was never Tamei that day and never immersed in a Mikvah, then going into the three Lugin will not make him Tamei).

How, though, can the Gemara say, in explaining the Beraisa, that perhaps the person who immerses in the water from the barrel will become Tamei because he has a Chezkas Tum'ah? Rashi answers this question when he says that the proper Girsa in the Beraisa is that it is discussing a barrel of *wine* that fell into the sea. Wine is certainly not included in the Gezeirah of immersing in three Lugin (as we find in the Tosefta in Mikva'os 3:6). The Tum'ah of the Beraisa is apparently due to the fact that the wine is Chotzetz between the person and the seawater, as Tosfos explains. Therefore, it is appropriate to say that the person is Tamei because of his Chezkas Tum'ah, and he never became Tahor from his Tum'ah.

Why, though, does the Beraisa say that we are afraid that three Lugin of She'uvin will remain together? According to our explanation, the Tum'ah is neither because of three Lugin nor because of Mayim She'uvin! Rashi cannot answer as the Ritva does, because Rashi's Girsa is "Chaishinan," as we mentioned earlier.

The CHAVOS YA'IR (#107) answers that it is clear that Rashi was not Gores these words ("three Lugin of She'uvin") in the Beraisa (see also RASHASH). Indeed, in the Tosefta (Mikva'os 5:9), which is cited by Rabeinu Chananel, these words do not appear. (The word "She'uvin" is clearly a mistake even according to the explanations of Tosfos and Rabeinu Moshe ha'Darshan, since the Tum'ah mentioned in the Beraisa cannot be related to Mayim She'uvin.)

QUESTION: The Mishnah (4a) records two arguments between Rebbi Meir and the Rabanan. The first involves a case in which Edim testify that a person owes 200 Zuz and they are found to be Edim Zomemim. Rebbi Meir rules that the Edim Zomemim receive Malkus *and* must pay the defendant what they tried to cause him to lose. The Rabanan say that the Edim Zomemim must only pay and do not receive Malkus.

The second argument involves a case in which Edim testify that a person transgressed an Aveirah which is punishable with Malkus and they are found to be Edim Zomemim. Rebbi Meir says that each witnesses receives *two* sets of Malkus -- one for transgressing the Isur of "Lo Sa'aneh" (Shemos 20:13) and one for "Ka'asher Zamam" (Devarim 19:19). The Rabanan say that they receive only one set of Malkus, for "Ka'asher Zamam."

The Gemara explains that the reason the Rabanan do not give Malkus to the Edim Zomemim in the first case of the Mishnah is because of the verse, "Kedei Rish'aso" (Devarim 25:2), which teaches that the evildoer receives only one punishment and not two. The Gemara explains that the reason the Rabanan give only one set of Malkus to the Edim Zomemim in the second case of the Mishnah is because the verse of "Lo Sa'aneh" serves as the Azharah for Edim Zomemim, and therefore it cannot be used as a source to give a second set of Malkus.

RASHI (DH l'Azharah) explains that the Gemara means to say that "Lo Sa'aneh" is being used as an Azharah so that we will be able to punish the Edim Zomemim. Without an Azharah, we would not be able to punish them, because of the rule that the Torah does not administer a punishment unless a Lav has been designated to prohibit the act that is being punished. Since the Lav of "Lo Sa'aneh" was given as an Azharah for the punishment, it cannot be used for a second purpose of giving Malkus. This concept is explained in more detail by Rashi (13b, DH Ein Lokin Alav) and the Rishonim later. The Gemara there and elsewhere teaches that whenever the Torah prescribes the death penalty, we must look for an associated Lo Sa'aseh that gives an explicit command prohibiting the act for which the death penalty is given. Once we find such a Lo Sa'aseh, the rule is that Malkus can never be administered based on that Lav, since the purpose of that Lav is to serve as an Azharah for the death sentence and not to teach that we should administer Malkus (it is a "Lav she'Nitan l'Azharas Misas Beis Din").

If the Gemara maintains that the Rabanan never administer Malkus for "Lo Sa'aneh" because there are times when it is used as an Azharah for the Misah, the death penalty, of Edim Zomemim, then why does the Gemara explain that the reason the Rabanan do not give Malkus in the first case of the Mishnah is because of "Kedei Rish'aso?" The Gemara should have said simply that the Rabanan do not give Malkus for Edim Zomemim because "Lo Sa'aneh" is an Azharah for the death penalty -- a "Lav she'Nitan l'Azharas Misas Beis Din," and not because of "Kedei Rish'aso!"

Second, how can Rashi say that Edim Zomemim never receive Malkus based on the Lo Sa'aseh of "Lo Sa'aneh?" We see clearly in the Mishnah (on 2a) that Edim Zomemim who testified falsely that a Kohen was a Ben Gerushah receive Malkus. Obviously, the verse of "v'Hitzdiku" (Devarim 25:1) is teaching that Malkus is given to Edim Zomemim despite the fact that "Lo Sa'aneh" is a "Lav she'Nitan l'Azharas Misas Beis Din." (See TOSFOS DH v'Rabanan, and GILYON HA'SHAS there.) If the verse teaches that Edim Zomemim receive Malkus for a "Lav she'Nitan l'Azharas Misas Beis Din," then why should we not administer Malkus even in the case of the Mishnah in which Edim testified that the defendant was Chayav Malkus? What reason is there to limit the verse of "v'Hitzdiku" to the case of Edim Zomemim who testified that a Kohen was a Ben Gerushah, as opposed to other cases of Edim Zomemim? (RITVA)

ANSWERS: The Rishonim have a number of different approaches to these questions.

(a) TOSFOS (DH v'Rabanan and DH L'Azharah) explains that when the Gemara asks that there should be a separate set of Malkus for "Lo Sa'aneh," the Gemara thought that Malkus is given when the Torah specifies a punishment of Malkus for a certain transgression *even when there is no Lo Sa'aseh* associated with the prohibited act. Therefore, in the Mishnah's case, there should be one set of Malkus for "Ka'asher Zamam," and a second case of Malkus for "Lo Sa'aneh." The Gemara answers that a punishment of Malkus cannot be given unless there is a Lo Sa'aseh associated with the prohibited act. Therefore, "Ka'asher Zamam" by itself is not sufficient reason to give Malkus to the Edim Zomemim (when they testify falsely that someone is Chayav Malkus) had it not been for the Lo Sa'aseh of "Lo Sa'aneh." Thus, the Malkus of the Lo Sa'aseh of "Lo Sa'aneh" is one and the same Malkus as that of "Ka'asher Zamam."

This answers our questions. When the Gemara discusses Edim who testified falsely that a person owes money, the Edim do not receive Malkus for "Ka'asher Zamam" in such a case. Therefore, if not for the rule of "Kedei Rish'aso," Malkus for "Lo Sa'aneh" *could* be given in such a case, since "Lo Sa'aneh" is not being used to give any other Malkus in this case. This explains why there *is* Malkus in the case of Edim Zomemim who testified falsely that a Kohen was a Ben Gerushah. In that case, too, there is no other Malkus being administered because of "Lo Sa'aneh," and therefore "Lo Sa'aneh" can warrant a punishment of Malkus. It is only in a case in which "Lo Sa'aneh" is already being used as an Azharah for a punishment of Malkus of "Ka'asher Zamam" that we cannot administer a second punishment of Malkus for the Lav of "Lo Sa'aneh."

According to Tosfos, the wording of the Gemara is somewhat forced. The Gemara does not mean that "Lo Sa'aneh" is being used for an Azharah for "Edim Zomemim" in general, but that it is being used as an Azharah for the punishment of Malkus of "Ka'asher Zamam" which is being given to the Edim Zomemim in this specific case.

(b) The RAMBAN and RITVA explain that "Lo Sa'aneh" is indeed an Azharah for Edim Zomemim in general, and not just for Malkus of Edim Zomemim. They explain that just as the punishment of Malkus is administered only when there is a Lav that serves as an Azharah for the prohibited act (as Tosfos writes), so, too, the punishment of "Ka'asher Zamam" is a punishment which is given only when there is a Lav prohibiting the act. Therefore, whether the witnesses testified that the defendant owes money, or whether they testified that he should receive Malkus or Misas Beis Din, in all of these cases the Lav of "Lo Sa'aneh" is needed as an Azharah to punish the Edim Zomemim by making them pay, receive Malkus, or be killed. Why, then, does the Gemara earlier say that the reason why Edim Zomemim do not receive Malkus for "Lo Sa'aneh" when they testify falsely that someone owes money is because of "Kedei Rish'aso?" The Gemara should have said that they do not receive Malkus because "Lo Sa'aneh" in this case is being used already to punish them with "Ka'asher Zamam" by making them pay!

The Ramban, cited by the Ritva (beginning of 4b), answers that it appears that the Gemara indeed could have used this argument to exempt the Edim Zomemim from Malkus. It mentions "Kedei Rish'aso" as an *extra* reason for why they do not receive Malkus. In fact, when Rebbi Meir says in the Mishnah that the reason Edim Zomemim who testified falsely that the defendant owes money receive Malkus is because "the verse that gives them Malkus is not the same verse that obligates them to pay," his intention is to rebut the reasoning of the Rabanan who exempt the Edim from Malkus because the Lav of "Lo Sa'aneh" is the Lav which obligates them to pay because of "Ka'asher Zamam." Rebbi Meir is following his own opinion as expressed in the end of the Mishnah, in which he maintains that "v'Lo Yosifu" (Devarim 19:20) is the Azharah that obligates the Edim for the punishment of "Ka'asher Zamam" (i.e. the monetary payment), and therefore "Lo Sa'aneh" is free to teach that they must receive Malkus as well.

According to the Ramban and Ritva, in the case of Edim Zomemim who testify falsely about a Kohen being a Ben Gerushah, the Edim can be given Malkus of "Lo Sa'aneh" since that Lav is not being used in that case to administer a punishment of "Ka'asher Zamam."

There is an important difference between the approaches of Tosfos and the Ramban with regard to the nature of the punishment of Edim Zomemim. According to Tosfos, "Ka'asher Zamam" is punishable with one of three different types of punishments. Sometimes the punishment of "Ka'asher Zamam" is a monetary payment, sometimes it is a punishment of Malkus, and sometimes it is a punishment of Misah. In contrast, according to the Ramban and Ritva there is only one punishment for Edim Zomemim; that punishment is named "Ka'asher Zamam," and it is an entirely new punishment. Sometimes that punishment entails obligating the Edim Zomemim pay, and sometimes it entails killing them. However, according to the Ramban, in all of these cases the punishment is the same: a punishment of "Ka'asher Zamam." (See Insights to Sanhedrin 40:2:b.)

This difference in understanding affects a number of Halachos of Edim Zomemim. For example, Tosfos in Bava Kama (4b, DH v'Edim) cites the RI who explains that Edim Zomemim who succeeded in obligating a person to pay money are punished with "Ka'asher Zamam," because -- with regard to monetary punishment -- the rule is "Onshin Min ha'Din" (and thus if they are punished when they did not succeed in carrying out their plot, then certainly they are punished when they did succeed). According to the Ramban and Ritva, this argument is not valid. The punishment of Edim who testified that a person owes money is not a monetary punishment; rather it is a punishment of "Ka'asher Zamam," which is equivalent to a punishment of Malkus (as we see in our Sugya regarding Azharah); consequently, we cannot give a punishment based on a Kal v'Chomer (because of the normal rule of "Ein Onshin Min ha'Din").

The Ritva earlier in Makos (3a, DH u'Parchinan Kol k'Minei) indeed writes that in cases of monetary punishment, we also apply the rule of "Ka'asher Zamam v'Lo Ka'asher Asah."

(c) RASHI, however, does not seem to accept either of these approaches. Rashi explains that the Lav of "Lo Sa'aneh" is used for an Azharah for the punishment of "Ka'asher Zamam" and not for the punishment of Malkus. Therefore, he is not explaining like Tosfos explains. Rashi also does not seem to agree with the Ramban and Ritva. Although he agrees that the Lav of "Lo Sa'aneh" is an Azharah for the punishment of "Ka'asher Zamam," nevertheless Rashi seems to be learning that since "Lo Sa'aneh" is written as an Azharah, we can *never* administer Malkus for "Lo Sa'aneh according to the Rabanan, even when we are not applying a punishment of "Ka'asher Zamam." For this reason, Rashi in the Mishnah does not explain Rebbi Meir's expression that "the verse that gives them Malkus is not the same verse that obligates them to pay" in the same way that the Ramban and Ritva explain it. Rashi maintains that if "Lo Sa'aneh" would be the Azharah for the punishment of "Ka'asher Zamam," then even in a case where the punishment of "Ka'asher Zamam" is not being applied, there still would be no Malkus for "Lo Sa'aneh." Therefore, had Rebbi Meir meant to say that "Lo Sa'aneh" is not being used as an Azharah for "Ka'asher Zamam," he should not have mentioned Tashlumin, monetary payment. He should have said that "Lo Sa'aneh" does not bring a punishment of "Ka'asher Zamam." According to this, our two questions return according to Rashi.

It seems that Rashi learns the Gemara's conclusion the same way that Tosfos learns the Gemara's initial question. When the verse specifies a punishment of Malkus for a certain act, it is not necessary to find a Lo Sa'aseh that is associated with the prohibited act. Therefore, when the verse says either "Ka'asher Zamam" or "v'Hitzdiku," Malkus is given even if there is no Lo Sa'aseh given as an Azharah.

This answers our first question. When the Gemara says that "Kedei Rish'aso" is the reason why the Rabanan do not give Malkus to Edim Zomemim who testify falsely that someone owes money, the Gemara is not referring to Malkus of "Lo Sa'aneh." Malkus is never administered for "Lo Sa'aneh," since it is used as an Azharah for the punishment of "Ka'asher Zamam" ("Ka'asher Zamam" is a stronger punishment than Malkus, and therefore, like the punishment of Misah, it *does* need an Azharah). Rather, the Gemara means to ask why do the Rabanan not give Malkus because of the verse of "v'Hitzdiku Es ha'Tzadik," which applies whenever Edim are found to be lying.

Our second question was how could the Gemara say that "Lo Sa'aneh" is used for an Azharah already, when we know that Edim Zomemim who testified that a Kohen was a Ben Gerushah receive Malkus for "Lo Sa'aneh." According to our explanation, this can be answered in a similar manner as the first question. Edim Zomemim in the case of Ben Gerushah do not receive Malkus for "Lo Sa'aneh," but rather for "v'Hitzdiku."

Why, according to this, do the Rabanan not administer two sets of Malkus when the Edim Zomemim testify falsely that someone is Chayav Malkus -- one for "Ka'asher Zamam" and one for "v'Hitzdiku?" The answer to this is that "v'Hitzdiku" is not a separate cause for Malkus. It is only a statement the Torah makes to teach that Malkus is to be administered in a case of Edim Zomemim. Since -- when witnesses testify that someone is Chayav Malkus -- we administer a set of Malkus because of "Ka'asher Zamam," that set of Malkus will fulfill the requirement of the verse of "v'Hitzdiku" as well. "V'Hitzdiku" therefore cannot obligate a new set of Malkus.

The Gemara's question was from the verse of "Lo Sa'aneh," because "Lo Sa'aneh" *should* obligate a second set of Malkus, since it is a separate *cause* for Malkus. One cause for Malkus is because the Edim Zomemim wanted to inflict the defendant with a punishment of Malkus, and the second cause is that the Edim Zomemim transgressed a Lo Sa'aseh of "Lo Sa'aneh."

One more point, however, needs to be resolved according to Rashi. The Gemara here is saying that there is no Malkus for "Lo Sa'aneh," because it is an Azharah for "Ka'asher Zamam." Earlier, the Gemara (2b) says that there is no punishment for "Ka'asher Zamam," because it is a Lav she'Ein Bo Ma'aseh. Why does the Gemara there not give the reason of our Gemara, and why does our Gemara not give the reason of the Gemara there (see Tosfos)?

The answer is that the Gemara earlier followed the initial assumption of the Gemara here, that "Ka'asher Zamam" is comparable to Malkus -- which does not need a verse as an Azharah, and it is not comparable to Misas Beis Din (which does need a verse as an Azharah). That is why the Gemara thought that "Lo Sa'aneh" is not punishable with Malkus because of another reason (i.e. because it is a Lav she'Ein Bo Ma'aseh). Why, though, does our Gemara not say that there is no Malkus for "Lo Sa'aneh" because it is a Lav she'Ein Bo Ma'aseh?

The answer is that it is evident from the Mishnah that Rebbi Meir maintains that there *is* Malkus for a Lav she'Ein Bo Ma'aseh, and that is why Malkus is given for "Lo Sa'aneh." The Gemara prefers to show that even if the Rabanan agree that there is Malkus for a Lav she'Ein Bo Ma'aseh, they still would not give Malkus for a different reason (because "Lo Sa'aneh" is an Azharah for the punishment of "Ka'asher Zamam").