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Makos, 20

1) "MA'ASER SHENI" THAT IS AT THE END OF STICK PROTRUDING OUTSIDE OF YERUSHALAYIM

QUESTION: Rebbi Yochanan states that a person transgresses the prohibition of eating Ma'aser Sheni outside of Yerushalayim only after it was brought into Yerushalayim and became fit to be eaten there, and then was taken out of Yerushalayim. The Gemara challenges this ruling from a Beraisa in which Rebbi Yosi teaches that if a non-Kohen eats a fig which includes a part which has been separated as Terumah, Ma'aser, and Ma'aser Sheni, and he is standing in Yerushalayim, he is Chayav for two sets of Malkus -- one for eating Terumah, and one for eating Ma'aser from which Terumas Ma'aser has not been separated. The Beraisa implies that if he ate it outside of Yerushalayim (before it ever entered the city), he would be Chayav for a third set of Malkus -- for eating Ma'aser Sheni outside of Yerushalayim. Why, though, would he be Chayav if the Ma'aser Sheni did not yet enter Yerushalayim? The Gemara continues and says that if the inference from the Beraisa is that the fig was eaten outside of Yerushalayim *after* it had entered Yerushalayim and left, then why does the Beraisa need to mention this Halachah? It is obvious that he is Chayav Malkus for that!

The Gemara first answers that the Beraisa is teaching that one is Chayav for a third set of Malkus for eating Ma'aser Sheni even when the fig was in Yerushalayim only while it was still Tevel -- before the Ma'aser Sheni was separated (this is because of the principle that "Matanos she'Lo Hurmu k'Mi she'Hurmu Damu," which teaches that the Ma'aser Sheni that will eventually be separated from the fig is considered to have already been separated). The Gemara then discusses whether or not Rebbi Yosi holds of the principle that "Matanos she'Lo Hurmu k'Mi she'Hurmu Damu," because we find in another Beraisa that Rebbi Yosi seems to say that if Tevel enters Yerushalayim, one *may* redeem the Ma'aser Sheni that is separated from that Tevel after it leaves Yerushalayim, which implies that while the fruit is still Tevel (before the Ma'aser Sheni has been separated), it is not considered to be Ma'aser Sheni at all.

Ravina suggests a second answer. Ravina explains that the Beraisa is discussing Ma'aser Sheni which is held at the end of a stick outside of Yerushalayim, while the other end of the stick is being held inside Yerushalayim. Ravina's answer also resolves a question that Rav Papa asked earlier (19b): if fruits of Ma'aser Sheni are being held at the end of a stick outside of Yerushalayim by a person who is standing inside of Yerushalayim, may the fruits still be redeemed, or are they considered to have already entered Yerushalayim (and they may not be redeemed)?

The straightforward reading of Ravina's answer implies that when the Beraisa says that in Yerushalayim one transgresses only two Isurim for eating the fig, it is referring to a fig that is not actually in Yerushalayim but that is held by someone who is standing in Yerushalayim at the end of s stick which is protruding outside of Yerushalayim. The Beraisa is teaching that the end of the stick is considered to be inside of Yerushalayim, and therefore one is not Chayav for eating the Ma'aser Sheni outside of Yerushalayim.

However, this interpretation of Ravina's words is problematic. If the Ma'aser Sheni at the end of the stick is outside Yerushalayim, then how can the Beraisa permit eating that Ma'aser Sheni? The Torah permits eating Ma'aser Sheni only inside of Yerushalayim, and the place where this Ma'aser Sheni is being eaten is outside of Yerushalayim! Rav Papa's question is not related to eating Ma'aser Sheni, but rather to *redeeming* Ma'aser Sheni. The criteria that prohibits redeeming Ma'aser Sheni is the fact that the Ma'aser Sheni is being carried by someone who is inside Yerushalayim. Perhaps when it is at the end of a stick, it may be redeemed since the end of the stick is not considered to be part of the person's load that he is carrying (but rather it is as if it is resting on the ground (outside of Yerushalayim); see RIVAN).

This question clearly pertains only to redeeming Ma'aser Sheni, and not to eating Ma'aser Sheni. Even if it is considered as though he is carrying Ma'aser Sheni at the end of the stick, nevertheless it should be prohibited to eat the Ma'aser Sheni at that place, since it is not physically within the walls of Yerushalayim.

ANSWERS:

(a) The RIVAN explains that Ravina is not describing the case in which it is permitted to eat Ma'aser Sheni, but the case in which the Beraisa infers that one receives Malkus because it is prohibited to eat Ma'aser Sheni outside of Yerushalayim. The Beraisa means that if the Ma'aser Sheni did not actually enter Yerushalayim, but it was held by someone standing in Yerushalayim holding a stick that protrudes outside of Yerushalayim, it is considered as if the Ma'aser Sheni entered Yerushalayim with regard to the Chiyuv Malkus for eating it outside of Yerushalayim. After that point, if the person holding the stick leaves Yerushalayim and then eats the Ma'aser Sheni, he is Chayav Malkus.

Why should holding the Ma'aser Sheni at the end of a stick be considered as though the Ma'aser Sheni has been brought into Yerushalayim with regard to Malkus? The verse prescribes Malkus only after the Ma'aser Sheni reaches the point at which it can be eaten "before Hashem" (Devarim 12:18). Since it cannot be eaten while at the end of the stick (as we asked earlier), the Isur of eating it outside of Yerushalayim should not apply!

The answer might be that the verse that says that Ma'aser Sheni must be eaten before Hashem (Devarim 12:18) -- and if it is able to be eaten there but is then taken out of Yerushalayim it is prohibited to be eaten outside of Yerushalayim -- does not mean that the Ma'aser Sheni could actually be eaten at that moment, but that the Ma'aser Sheni was in a place where it was prohibited to redeem it, and, consequently, the only thing that could be done with it is to eat it in Yerushalayim. Since the Ma'aser Sheni at the end of the stick cannot be redeemed, it satisfies that condition and the Isur of eating it outside of Yerushalayim takes effect.

According to the Rivan, the words of Ravina are not entirely clear, since Ravina is speaking in the present tense, "He *is holding* at the end of a stick...." According to the Rivan, neither the case of the Beraisa where it is permitted to eat the Ma'aser Sheni nor the case where it is prohibited to eat the Ma'aser Sheni is discussing a situation where the person is holding the Ma'aser Sheni at the end of a stick! Rather, the case in which it is prohibited to eat the Ma'aser is a case in which the Ma'aser *once* was hanging at the end of a stick, and now it is being eaten outside of Yerushalayim.

(b) TOSFOS (DH Ravina) offers a similar explanation. However, Tosfos adds that even in the case where the Ma'aser Sheni is hanging at the end of the stick, if a person eats it outside of Yerushalayim at that point, he will be Chayav Malkus. That is, the Ma'aser Sheni is considered as though it has entered Yerushalayim with regard to making the Isur of not eating it outside of Yerushalayim take effect. However, it is considered to be *outside* of Yerushalayim with regard to whether or not it is permitted to eat the Ma'aser Sheni while standing in that place.

The Rivan apparently rejected this approach because the verse implies that the prohibition of eating Ma'aser Sheni outside of Yerushalayim applies only after the Ma'aser Sheni leaves the state of being fit to be eaten "before Hashem." Therefore, one will be Chayav only if the carrier of the stick goes outside of Yerushalayim. Once he leaves Yerushalayim, though, even if he returns to his former place, he will transgress a Lav for eating the Ma'aser Sheni (that is outside of Yerushalayim).

(c) RABEINU CHANANEL (cited by the Ritva) explains that Ravina is not explaining the Beraisa that discusses the fig of Ma'aser. Rather, he is referring to a second Beraisa, in which Beis Hillel says that fruit which passed through Yerushalayim after the "Gemar Melachah" may be redeemed. Ravina explains that the fruit itself did not pass through Yerushalayim, because if it did, it would be prohibited to redeem it, since "Matanos she'Lo Hurmu" *is* considered to have been separated already. Rather, a person holding the fruit was standing inside Yerushalayim, and the fruit itself was at the end of a stick outside Yerushalayim. The Beraisa holds that such fruit may be redeemed, since it is *not* considered as though it is bring carried in Yerushalayim (with regard to redeeming it). According to this explanation, Ravina's answer pertains to *redeeming* the fruit, which was the subject of Rav Papa's question. Ravina is resolving the question of Rav Papa leniently, l'Kula, and is saying that it is not considered to be in Yerushalayim (and thus it may be redeemed). As the ARUCH LA'NER and others point out, this seems to be the opinion of the RAMBAM (Hilchos Ma'aser Sheni 2:8).

(The other Rishonim rejected this explanation, because the Beraisa discussing fruit that passed through Yerushalayim would then be omitting the main point of the Machlokes between Beis Hillel and Beis Shamai (namely, that the food is on the end of a stick), as the RITVA writes.)

QUESTION: The Mishnah teaches that if a person makes five Seritos on his body because of a single Mes, he is Chayav five sets of Malkus. The Beraisa adds that if a person makes five Korchos on his head because of a single Mes, he is Chayav five sets of Malkus. In both cases this is derived from a verse.

The Mishnah also teaches that according to the Rabanan who argue with Rebbi Eliezer, a person is Chayav two sets of Malkus for shaving off both Pe'os of the head, and five sets of Malkus for shaving off the five Pe'os of the Zakan (beard). (The Girsa of most Rishonim, and of the Dikdukei Soferim in our Mishnah, is that a person is "*Chayav* Al ha'Rosh Shetayim.") In these two cases, however, no verse is cited as a source to show that one is Chayav for multiple sets of Malkus! Why is no source necessary?

ANSWERS:

(a) The RIVAN explains that it is not necessary to derive from an extra verse that one is Chayav multiple sets of Malkus in these cases. Rather, the fact that the verse refers to the Isur as "*Pe'as* ha'Rosh" implies that one is Chayav a separate set of Malkus for each Pe'ah that he cuts. He adds that the same would apply to Seritah and Korchah. When a verse is cited as a source for multiple sets of Malkus in the cases of Seritah and Korchah, the inference from the verse is not really from the fact that there is an extra verse, but rather from the fact that the Torah calls each one an individual "Korchah" or "Seret." However, the Rivan concludes that this explanation is inaccurate ("Gimgum"), since the Beraisa implies that the Halachah *is* learned from an extra letter or word in the verse.

(b) The TOSFOS HA'ROSH and the RITVA in Shevuos (3a) write that some say that since the Torah lists the Isurim of Gilu'ach ha'Zakan and Pe'as ha'Rosh together with the Isurim of Seritah and Korchah (Vayikra 21:5, and 19:27), there is a Hekesh between them which teaches the Halachos of Pe'as ha'Rosh from the Halachos of Seritah. Just like one is Chayav two sets of Malkus for making two Seritos, he is Chayav two sets of Malkus for cutting two Pe'os.

The Tosfos ha'Rosh and Ritva reject this approach, because the Gemara cites separate verses for Seritah and for Korchah to teach this Halachah. If the Isurim can be learned from each other, then only one verse should be necessary, since the two Isurim appear next to each other (in Vayikra 21:5).

The RA'AVAD, RASH MI'SHANTZ, and the TORAS KOHANIM (Parshas Kedoshim, Perek 6:3) defend this explanation. They explain that there is not a genuine Hekesh between the Isurim. Rather, we derive that a person can be Chayav for multiple sets of Malkus for Gilu'ach ha'Zakan (for Kohanim) because it is written (in Vayikra 21:5) between the verses of Korchah and Seritah, both of which have multiple sets of Malkus. The verse teaching the Isur of Pe'as ha'Rosh and Gilu'ach ha'Zakan (for Yisraelim) precedes the verse of Seritah (in Vayikra 19:27), but the letter "Vav" at the beginning of the verse of Seritah teaches that there is a Halachah of Seritah which applies to Pe'as ha'Rosh and Gilu'ach ha'Zakan as well.

(c) TOSFOS and the RITVA in Shevuos (3a) explain that a verse is necessary only for Korchah and Seritah, but not for shaving the Pe'os. The reason for this is because of the principle that one is Chayav individual sets of Malkus for sinning with separate entities. For example, a Kohen Gadol who lives with five different Almanos is Chayav five sets of Malkus (even though he received only one Hasra'ah), because the five women are "Gufin Muchlakin," separate entities of Isur (see Tosfos 20b, DH Lo Tzericha).

Each Pe'ah is defined by its different location, and therefore each one is considered a separate entity. A Seritah, in contrast, is not limited to any particular location. Therefore, a Seritah or a Korchah on any part of the head should be the same as a Seritah or Korchah on any other part of the head (and one should be Chayav only one set of Malkus for making multiple cuts) if not for the verse that tells us to view them as though they were separate entities.

20b

QUESTION: The Beraisa teaches that when a person makes five Korchos for one Mes, he is Chayav five sets of Malkus. This is derived from a verse. The Gemara asks that if the person was given only one Hasra'ah, then how can he be Chayav more than one set of Malkus? The Mishnah teaches that if a Nazir drinks wine all day but is warned with Hasra'ah only once when he started to drink, then he is Chayav only one set of Malkus. The same should apply to Korchah; the person should be Chayav only one set of Malkus for all of the Korchos. The Gemara answers that the case in which a person is Chayav five sets of Malkus for Korchah is when he applied some depilatory agent on his fingers and then touched his head, simultaneously removing hair from five parts of his head immediately following the Hasra'ah.

Why does the Gemara compare a case of Nazir drinking wine to a case of a person who makes a Korchah on his head? In the case of Korchah, the Beraisa cites a verse which teaches clearly that a person is Chayav five sets of Malkus for making five Korchos, even though we would have thought that one is Chayav only one set of Malkus. In the case of a Nazir, where there is no verse teaching that one is Chayav multiple sets of Malkus, one is Chayav only one set of Malkus. The case of Korchah is different because the verse teaches that one is Chayav five sets of Malkus!

ANSWERS: There are two approaches in the Rishonim to the Gemara's question. Both approaches are based on the premise that we mentioned earlier (see previous Insight): the reason the Torah prescribes multiple sets of Malkus for multiple Korchos is because we view each Korchah as a separate entity. We know that when a person sins with different entities, he can be Chayav multiple punishments, even though there he was warned with only a single Hasra'ah (Kidushin 77b; see also Kerisus 2b, with regard to the obligation to bring multiple Korbanos for sinning with multiple Nidos b'He'elem Echad). This is known as "Gufin Mechalkin" (the separate entities of Isur require that he receive separate punishments). The Torah does not obligate multiple Malkus for Korchah under all circumstances, but rather in a case where the Korchos can be viewed as different entities. This principle can be used to explain our Gemara in different ways.

(a) From the words of the RIVAN (DH d'Osvinhu), it seems that the Gemara is trying to prove that one is not Chayav for multiple sets of Malkus even for different "Gufin" if the sins with those different "Gufin" were not committed immediately at the time of the Hasra'ah. When a Nazir drinks wine all day, each cup that he drinks is a different "Guf," separate and distinct from the previous cup. Nevertheless, he is Chayav only one set of Malkus, for drinking the first cup. The subsequent cups of wine do not obligate him to receive Malkus, since he did not drink them within "Toch Kedei Dibur" of receiving the Hasra'ah.

The Gemara answers that the verse which teaches that each Korchah is a separate entity is referring to a person who makes five different Korchos all within "Toch Kedei Dibur" of the Hasra'ah. This also seems to be the intention of the RAMBAN here.

(b) TOSFOS argues with the Rivan, based on the Gemara in Kidushin which implies that one can be obligated for five sets of Malkus for separate "Gufin" even if the person sins with the other "Gufin" *after* the time of "Toch Kedei Dibur" has passed after receiving of the Hasra'ah. According to Tosfos, apparently the cups of wine that the Nazir drinks are not considered to be separate "Gufin." What, then, is the question of the Gemara from the laws of Nazir to the Isur of Korchah? (See MAHARAM.)

It seems that Tosfos learns the question of the Gemara as follows. When the Gemara asked this question, it assumed that we were trying to obligate a person to receive five sets of Malkus even in a case where he makes five Korchos on his head which are adjacent to each other (meaning that they create one large Korchah, bald spot). The Gemara is challenging this assertion from the laws of Nazir. It is attempting to prove that when the Korchos are adjacent, it is not possible to view them as separate "Gufin," and therefore one should be Chayav only one set of Malkus. The proof for this is as follows: why indeed are the separate cups of wine not considered to be separate "Gufin" to obligate the Nazir to receive a separate set of Malkus for each one? Apparently the reason is because the Nazir's prohibition of drinking wine is not defined by what he does to the wine, but by the fact that he ingests the wine. After the wine is ingested, all of the wine is joined together and thus his drinking is considered to be one single act of continued drinking. (The same applies to cutting the Nazir's hair. The Isur is not that the Nazir has damaged the hair, but that he has removed hair from his head. Since all of the hair has been removed from the same head, it is considered one continuous act of Isur.)

The Gemara asks, therefore, that even if we were to view each Korchah as a separate entity, nevertheless if the Korchos are joined to each other, since they contribute to a single large bald spot, they certainly cannot be viewed as separate "Gufin," and the verse would not punish the person with multiple Malkus.

The Gemara answers that the case in which the Beraisa prescribes multiple Malkus is indeed when the Korchos are not adjacent, but are separated by blocks of hair. That is when they are considered separate entities.

Tosfos points out that according to his interpretation, the Gemara did not have to emphasize that the five Korchos were done simultaneously. The same Halachah would apply if the Korchos were done consecutively. The Gemara is merely pointing out that there is a way to do five Korchos even simultaneously.

This also seems to be the intention of the Ritva.

QUESTION: A Beraisa was taught in the presence of Rav Chisda, saying that both the Makif and Nikaf receive Malkus. Rav Chisda objected to that ruling, saying, "Should someone who eats dates in a sieve be punished with Malkus?!" The Gemara explains that it must be that this Beraisa was taught by Rebbi Yehudah who holds that a "Lav she'Ein Bo Ma'aseh" is punished with Malkus.

The RIVAN explains that Rav Chisda was asking -- by comparing the case to one who eats dates in a sieve -- what did the Nikaf do wrong for which he should be punished with Malkus? All he did was a "Lav she'Ein Bo Ma'aseh" for which he should not receive Malkus!

What is Rav Chisda's comparison of a person who commits a "Lav she'Ein Bo Ma'aseh" to a person who innocently eats dates? Although a "Lav she'Ein Bo Ma'aseh" is not punished with Malkus, it is certainly an act prohibited by the Torah!

The Gemara in Sanhedrin (89b) uses the same expression in response to the statement that a Navi who suppresses his prophecy is punished with Malkus. The Gemara there asks, "Should someone who eats dates in a sieve be punished with Malkus? Who can give Hasra'ah to him?!" However, there the expression is more easily understood, since, in the eyes of the observer, the Navi seems to be doing a totally innocent and permitted act; the observer cannot know if the Navi is suppressing a Nevu'ah. In contrast, in the case of our Gemara, it is clear to the person who gives the Hasra'ah that the Nikaf is transgressing a prohibited act by allowing his hair to be cut! Why, then, should he be compared to a person who innocently eats dates?

ANSWERS:

(a) The RAMBAM (in Hilchos Avodah Zarah 12:1 and 7) writes that it is prohibited to shave the Pe'os ha'Rosh and the Zakan. The Rambam adds that the man who allows someone else to cut his beard does not receive Malkus unless he does some action to assist the person shaving him. The RA'AVAD points out that even though the one being shaved is not Chayav Malkus unless he helps the person shaving him, nevertheless since he willingly allows himself to be shaved, he transgresses a Lav. The Ra'avad reiterates this in the Rambam's list of Mitzvos at the beginning of Mishneh Torah (#43). The Rambam there writes that it is Asur to do an act of "Makif" and an act of "Mashchis." The Ra'avad writes that the Lav applies to being Nikaf and Nishchas as well. It appears that the Ra'avad understood the implication of the Rambam's words to be that the Nikaf does not even transgress a Lav unless he helps the Makif, and this is what prompted his comment. (The same presumably would apply to someone who allows a Kesoves Ka'aka, Seritah, or Korchah to be done to his flesh. In all of these cases, the Rambam obligates the person to receive Malkus only if he assists the perpetrator to commit the act. See Hilchos Avodah Zarah 12:11 and 16.) The KESEF MISHNEH (Hilchos Avodah Zarah 12:1) indeed understands the Rambam in this way. He comments that we cannot consider the Nikaf to be transgressing a Lav since he has not done any action at all.

According to this understanding of the Rambam, the Gemara's comparison to eating dates is clear. Just as it is permitted to eat dates, it is permitted to passively have one's beard shaven (such as when a Nochri shaves him).

The Acharonim ask a number of questions on the Kesef Mishneh's explanation.

1. How can the Kesef Mishneh write that one does not transgress a Lav since no act is involved? In every "Lav she'Ein Bo Ma'aseh," there is no act involved, and yet one transgresses the Lav! For example, when one leaves over the meat of a Korban until the morning, he transgresses the Lav of "Lo Sosiru" (Vayikra 22:30), but he does not receive Malkus because there is no action involved.

The NODA B'YEHUDAH (OC 2:76) answers that the verse which includes the Nikaf in the prohibition says "Lo Sakifu" (Vayikra 19:27), in the plural form, implying that both people who are obligated in the Isur are *actively* involved in cutting the hair.

Another possible way of understanding the Kesef Mishneh is as follows. Although passively allowing something to happen can constitute a transgression of a Lav, that is only when there is no other person to whom the Lav can be attributed. When one person is Makif another person, the Makif is clearly the perpetrator, and thus what the Nikaf does should not be considered a transgression.

2. The Acharonim ask further that our Gemara seems to contradict the explanation of the Kesef Mishneh. If no Isur is being transgressed, then why does Rav Chisda say that according to Rebbi Yehudah, the Nikaf receives Malkus without doing an action?

The Noda b'Yehudah (ibid.) answers that the Kesef Mishneh means to say as follows. Since it is illogical to consider the Nikaf to be transgressing an Isur, we should assume that the verse is only obligating the Nikaf if he does an action. However, according to Rav Chisda, the act of tilting one's head to help the Makif is not enough to be considered an action. (He also does not consider Megale'ach Es Atzmo, one who shaves himself, to be doing an action with regard to his transgression of being a Nikaf.) Therefore, Rav Chisda has no choice but to say that the verse *is* prohibiting a person from being a Nikaf even though he performs no action. Accordingly, Rebbi Yehudah will maintain that he is Chayav Malkus for being a Nikaf. The Halachah, however, follows the view of Rav Ashi, according to whom the Nikaf transgresses the Lav only when he assists the Makif.

(b) The RITVA and ME'IRI explain that the Gemara is referring to a person who eats dates which were collected in a manner in which a Lav was transgressed, obligating the transgressor to receive Malkus. For example, if a person eats dates that were picked on Yom Tov, we cannot obligate him to receive Malkus just because he benefited from the transgression that the person who picked the dates committed. Similarly, the person who allowed himself to be shaved cannot be punished with Malkus just because he benefited from the transgression which the Makif performed, for which the Makif receives Malkus.

The Gemara's analogy, according to the Ritva, can be better understood based on the words of TOSFOS in Bava Kama (32a, DH Ihu). A woman is Chayav Malkus for having forbidden relations even though she was passive and did no action, because the Torah considers the fact that she derived Hana'ah from the prohibited act as if she did an action herself. That is why one might think that a person who eats dates that were picked by someone who transgressed an Isur should be Chayav Malkus. (In truth, the two are not comparable. The person who eats the dates does not benefit at the time of the prohibited act, nor does he benefit from the actual act itself but only from a later consequence of the act. That is why the Gemara says that he does not receive Malkus for benefiting from someone else's transgression.)

We cannot explain the Gemara's use of this analogy in Sanhedrin in this manner, because there, the Navi who suppresses his Nevu'ah is not benefiting from anyone else's transgression. The ME'IRI there suggests another explanation for the analogy in that Gemara. He explains that the Gemara is referring to a person who eats wormy dates that are inside of a sieve. Those who see him eating the dates do not know that the dates are wormy, and therefore they cannot give him Hasra'ah and thus he cannot be punished for his transgression.

(c) The RIVAN does not seem to be learning like either of these explanations. Apparently, he understood this expression as saying simply that the person does not deserve to be punished for what we have seen him do. If the Nikaf is innocently eating dates during his haircut, the only action that he has done is the eating of dates, which is not a transgression. Therefore, how can we give him Malkus? That is the Gemara's point in using the analogy of a person eating dates.