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Makos, 22

1) TEARING A GARMENT OF THE "BIGDEI KEHUNAH"

QUESTION: The Mishnah (21b) states that it is possible for a person to plow a single mound and thereby transgress eight Torah prohibitions, which the Mishnah lists. The Amora'im ask that there are additional Isurim which the Mishnah should have listed, which the person could transgress through his act of plowing, such as one who erases a Name of Hashem through his act of plowing, thereby transgressing the Isur of "Lo Sa'asun Ken la'Hashem Elokeichem" (Devarim 12:4). Similarly, Abaye asks that the Mishnah should have included the additional transgression of a Kohen who was plowing and caused the Choshen to move out of its place on the Efod, and caused the poles of the Aron to be removed from their places, thereby transgressing the Isurim of, "Lo Yizach ha'Choshen" (Shemos 28:28) and "Lo Yasuru" (Shemos 25:15), respectively.

The Gemara in Yoma (72a) refers to the two Isurim that Abaye mentions, where Rebbi Elazar teaches that a person who separates the Choshen from the Efod or removes the poles from the Aron is punished with Malkus. The Gemara there cites a teaching of Rav Yehudah who rules that if a person tears one of the Bigdei Kehunah, he is punished with Malkus, because the verse says with regard to the Me'il, "Lo Yikare'a" -- "it shall not be torn" (Shemos 28:32). The Gemara there asks that perhaps the verse simply means that one should make a hem around the neck of the Me'il *in order that* it not be torn. The Gemara answers that this cannot be the intention of the verse, because the verse does not say "*she'Lo* Yikare'a," but "Lo Yikare'a."

Why does Abaye not ask also from the Isur of tearing the Me'il of the Kohen? He should ask that the Mishnah should also include (in its case of a Kohen plowing) the Isur of tearing Bigdei Kehunah in the process of plowing, which is prohibited by the verse, "Lo Yikare'a!" (ARUCH LA'NER, HE'OROS RAV CHAIM MUDA'I to the Ritva in Yoma 72a)

ANSWERS:

(a) The RAMBAM in b (#88) writes that the Isur of "Lo Yikare'a" constitutes a prohibition to tear open the neck-hole of the Me'il while manufacturing it (see RASHI to Makos 3b, DH ha'Pose'ach). The Torah requires that the Me'il be made in such a manner that a circular neck-hole be left at the time of the weaving, without having to tear the material. (See also Rambam, Hilchos Klei ha'Mikdash 9:3.)

RABEINU AVRAHAM BEN HA'RAMBAM explains that the reason for this Isur is that if the neck-hole is made by tearing the fabric, then it will tend to tear more easily while the Kohen is wearing it, and therefore the Torah says that it should not be made in such a manner. (The CHINUCH (Mitzvah 101), who appears to learn this Mitzvah in a similar manner, explains somewhat differently. He writes that it is not respectful to tailor Bigdei Kehunah using an inherently destructive act. This is similar to the prohibition against using iron tools when building the Mizbe'ach because of their association with destruction.)

According to the Rambam, it seems that the Isur of "Lo Yikare'a" is not referring to a destructive act at all, but rather it is an Isur that prohibits making the Me'il in this particular manner. It seems that the Rambam rejects the interpretation of the Gemara in Yoma (72a) -- as the Ritva there points out -- and sides with the Gemara's alternate interpretation of the verse, that the Torah is telling us not to tear the neck-hole *in order that* it not tear further (see SEFAS EMES to Yoma there). Support for this can be adduced from the fact that when the Rambam (in Mitzvah #86 and #87) refers to the Isurim of removing the poles of the Aron and removing the Choshen from the Efod, he cites the Gemara here in Makos as the source, ignoring the Gemara in Yoma.

Perhaps our Gemara is the source for what the Rambam writes in Sefer ha'Mitzvos. Abaye does not ask that the Mishnah should also count the Isur of tearing Bigdei Kehunah, since Abaye understands that this is not an Isur prohibiting tearing the Bigdei Kehunah, but rather it is a specification in the *type of Me'il* that the Kohen Gadol must wear -- that is, its neck-hole must be tailored and not cut.

The BEHAG only counts the Isurim of removing the poles from the Aron and the Choshen from the Efod, and omits the Isur of "Lo Yikare'a" altogether, as pointed out by the He'oros of Rav Chaim Moda'i on the Ritva. He also seems to be rejecting the Gemara's premise in Yoma that "Lo Yikare'a" prohibits tearing Bigdei Kehunah.

According to these Rishonim, it is clear why Abaye, in our Gemara, does not mention the Isur of tearing Bigdei Kehunah.

(b) However, the Rambam in Hilchos Klei ha'Mikdash (9:3), after writing this Halachah, adds that it is also prohibited to tear any Bigdei Kehunah in a destructive manner. It would seem that the Rambam changed his mind and did accept the teaching of the Gemara in Yoma.

However, the MISHNEH LA'MELECH cites the SEFER KORBAN CHAGIGAH which points out that the Rambam (ibid.) differentiates between the Me'il and other Bigdei Kehunah. With regard to the Me'il, the Rambam prohibits tearing it even in a constructive manner, such as when manufacturing it. With regard to the other Bigdei Kehunah, the Isur only prohibits tearing them in a destructive manner. What is the Rambam's source for the difference between the Me'il and other Bigdei Kehunah?

The MINCHAS CHINUCH (101:1) suggests that the prohibition of tearing Bigdei Kehunah in a destructive manner is not based on the verse of "Lo Yikare'a," because that verse refers specifically to tearing the Me'il. Rather, tearing Bigdei Kehunah in a destructive manner is prohibited by the verse "Lo Sa'asun Ken la'Hashem Elokeichem," which prohibits destroying any object of Kedushah (as the Gemara here earlier mention with regard to burning wood of Hekdesh).

According to the Minchas Chinuch, we may suggest a simple answer to our question. Rav Chananya, earlier in the Gemara, already asked that the Mishnah should list the Isur of erasing the name of Hashem, which is prohibited because of the verse of "Lo Sa'asun." Tearing Bigdei Kehunah is prohibited because of the same verse, according to the Rambam! Therefore, it is not necessary for Abaye to include this Isur in his question, since that question was already asked by Rav Chananya.

(c) There are other Rishonim who disagree with this interpretation of the Rambam. RABEINU AVRAHAM BEN HA'RAMBAM writes clearly that the Isur of "Lo Yikare'a" prohibits tearing any Bigdei Kehunah (*as well* as tearing a neck-hole for the Me'il, just as the Isur of "Lo Sisgodedu" includes two unrelated prohibitions). The RITVA in Yoma (72a) also concludes that the verse "Lo Yikare'a" prohibits the tearing of any of the Bigdei Kehunah. How will these Rishonim explain why Abaye does not mention this Isur?

Perhaps we may answer as follows. Abaye may not be proposing an independent suggestion. Rather, each Amora is *adding* to the previous Amora's suggestions. Thus, Abaye is asking why the Mishnah does not list erasing Hashem's name while plowing *as well as* removing the Choshen from the Efod or the poles from the Aron. To understand how this answers our question, we must first review two important points.

First, according to Rabeinu Avraham ben ha'Rambam and the Ritva, when a person tears Bigdei Kehunah in a destructive manner, he transgresses *two* Torah prohibitions: "Lo Yikare'a" (which applies to any sort of tear, destructive or constructive) and "Lo Sa'asun" (which applies to a destructive act performed on any object of Kedushah, such as the Bigdei Kehunah or wood of Hekdesh).

Second, we find that Rashi (21b, DH Yesh) explains that our Mishnah counts only *one* set of Malkus for each type of Isur, and does not count multiple sets of Malkus for transgressing one Isur multiple times (such as by plowing with more than one ox of Hekdesh).

We may therefore propose that Abaye does not ask that the Mishnah should list tearing Bigdei Kehunah in a destructive manner (which is the way Bigdei Kehunah are torn by a plow), since by doing so after *also* listing erasing the Name of Hashem, the Mishnah would be including a redundant Isur -- a second violation of "Lo Sa'asun." One would be Chayav two sets of Malkus for these two Isurim of "Lo Sa'asun" (since the Name of Hashem and the Bigdei Kehunah are "Gufim Mechulakim"), and this would confuse the Malkus count of the Mishnah. That is why Abaye makes no mention of this Isur. (M. Kornfeld)

QUESTION: The RIVAN (DH Migu) explains at length the difference between an "Isur Kolel" and an "Isur Mosif." The general rule is that an Isur is referred to as an "Isur Mosif" when an additional prohibition is added to the *object* that was previously Asur (for example, when the prohibited object becomes Asur with a new prohibition that applies to additional people, or when it becomes a more stringent Isur). In contrast, an "Isur Kolel" refers to a situation in which the change is not in the object that was previously Asur, but rather that the *person* to whom the object was prohibited becomes prohibited to other objects as well.

The Rivan writes that when a man's mother-in-law (whose first husband died or divorced her) gets remarried and becomes Asur to all other men in the world as an Eshes Ish, this is an Isur Kolel, and therefore she becomes Asur to her son-in-law not only because of the Isur of Chamoso (she is his mother-in-law), but also because of the Isur of Eshes Ish.

Why does the Rivan call this an "Isur Kolel?" According to the definition he provides early, this should be called an "Isur Mosif," since the *woman* who was already Asur is becoming Asur to other people through the new Isur. There are no other women who are becoming Asur together with the mother-in-law such that her new Isur should be considered an Isur Kolel. In fact, the Gemara in Sanhedrin (81a) clearly describes this case as an Isur Mosif, and not as an Isur Kolel! (NODA B'YEHUDAH cited by the GILYON HA'SHAS)

ANSWER: The NODA B'YEHUDAH explains that there is a difference between the Isur that the woman poses for the man, and the Isur that the man poses for the woman. The Gemara in Sanhedrin (and in all other places that discuss the concept of "Isur Chal Al Isur") relate to the Isur of the woman from the perspective of the man. Since no added women become Asur to the man when his mother-in-law marries, the mother-in-law cannot become Asur to him as an Isur Kolel. Rather, she becomes prohibited because of an Isur Mosif, since *she* becomes more Asur in the sense that she is now prohibited to other men.

The Rivan, though, is discussing the Isurim from the perspective of the woman. In what was is the man prohibited to *her* by way of the new Isur? Since, until now, she was only Asur to him but not to other men, and by getting married she becomes Asur to other men as well, the son-in-law becomes Asur to her because of "Eshes Ish" just like all other men, through the principle of "Isur Kolel." Accordingly, the Noda b'Yehudah emends the second-to-last word in the Rivan. The Rivan is not saying that there is an Isur Kolel "to be Mechayev *him* two [sets of Malkus]," but rather that there is an Isur Kolel "to be Mechayev *her* two [sets of Malkus]." (There is a printing mistake in the Gilyon ha'Shas. The word that is to be corrected is not "l'Didei," but the word "l'Chayvo" should be corrected to "l'Chayvah.")

However, the words of the Rivan are still unclear. Why does he refer to the Isur of the son-in-law from the perspective of the mother-in-law, when the Gemara always refers to the Isur from the perspective of the man? (In fact, it seems that the woman will transgress whatever Isur applies to the man, since the Malkus that the woman receives for Isurim of Arayos is learned from the Malkus of the man, as she is not doing an action (see Bava Kama 32a).)

Second, when the Rivan looks for an example of an Isur Mosif, why does he not bring the Isur Mosif of the mother-in-law who became an Eshes Ish from the perspective of the man, which is the Isur that the Gemara itself mentions (in Sanhedrin 81a and Yevamos 32b)?

Third, the example that the Rivan does bring of an Isur Mosif (i.e. an Eshes Ish who becomes a man's mother-in-law) does *not* seem to be a case of an Isur Mosif according to the Gemara (in Sanhedrin 81a and Yevamos 32b). The Gemara there says that Rebbi Yosi agrees to the principle of Isur Mosif but not to the principle of Isur Kolel. For this reason, the Gemara there concludes that Rebbi Yosi *would* maintain "Isur Chal Al Isur" in a case of a mother-in-law who remarried and became an Eshes Ish, which is an Isur Mosif, and he would *not* maintain "Isur Chal Al Isur" in the case of an Eshes Ish who became a man's mother-in-law, which is *not* an Isur Mosif!

It seems that the Rivan had a different Girsa in those Gemaras, according to which Rebbi Yosi agrees to the principle of Isur Kolel, but not to Isur Mosif. (See Yevamos, beginning of 33a, where at least one Amora asserts that Rebbi Yosi agrees to Isur Kolel.) That is why the Rivan writes that when Chamoso, one's mother-in-law, becomes an Eshes Ish, it is an Isur Kolel, and that is why Rebbi Yosi agrees that "Isur Chal Al Isur" in that case, while an Eshes Ish who becomes Chamoso is an Isur Mosif, in which case Rebbi Yosi does not hold that "Isur Chal Al Isur."

This will also answer a number of questions raised by the Rishonim (see TOSFOS to Yevamos 32b, DH Isur Kolel). What, though, according to the Rivan, is the definition of an Isur Kolel? Why, according to the Rivan, is a mother-in-law who becomes an Eshes Ish not considered an Isur Kolel? It would seem that any Isur which adds either more objects to the Isur or which makes the object Asur to more people is called an Isur Kolel. An Isur Mosif is when the addition to the Isur is not expressed in terms of quantity, but in terms of quality, such as when a person who was Asur with an Isur of Chenek becomes Asur with an Isur of Sereifah (such as when an Eshes Ish becomes Asur to the man with an Isur of Chamoso), or when something Asur with an Isur Lav becomes Asur with an Isur of Hekdesh (for example, when Chelev becomes Nosar, it is considered an Isur Mosif, since originally the object was Asur with a Lav but had no additional requirements; now that it becomes Nosar, it has the additional requirement that it must be burned). (However, if this is true, then this is an entirely unique opinion which is not discussed by the Rishonim or Acharonim at all.)

22b

QUESTION: The Gemara quotes Rava who comments how foolish people are who stand up for a Sefer Torah but not for one who learns the Torah. They should respect the Chachamim *more* than the Sefer Torah, since the Sefer Torah says that Malkus is comprised of 40 lashes, and the Chachamim stated that only 39 lashes are administered (alleviating some of the suffering of the person being punished).

What does the Gemara mean when it says that the Chachamim decreased the number of lashes by one to 39? The Mishnah (22a) states that it is the Torah's own intention that 39 lashes be given and not 40; it was not the Chachamim's innovation!

ANSWERS:

(a) The Gemara may be understood in a straightforward sense based on what the Gemara in Kidushin (66a) teaches. The Gemara there says that Yanai ha'Melech made a decree that all of the Chachamim should be killed. At that time that his advisors suggested that he kill the Chachamim, he wondered what would happen to the Torah if there are no Chachamim. He was answered that "the Torah is resting over there -- whoever wants can come and learn it." The Gemara says that by accepting this claim, Yanai expressed heresy. While the Torah she'Bichtav will endure, Torah she'Ba'al Peh will not endure without the Chachamim. This principle is referred to in the Gemara in Sanhedrin (99b), where the Gemara says that one who says that we have no need for the Chachamim is an Apikorus.

It is to such people that Rava is referring when he says that those who stand for the Sefer Torah but not for the Chachamim are foolish. Rava is saying that all of the Derashos of the Torah, such as the Derashah which teaches that we give 39 lashes and not 40, are part of the Mesorah of Torah she'Ba'al Peh. Therefore, those who do not give respect to the Chachamim as they do to the Sefer Torah are foolish, for without the Chachamim, one would not know how to understand the Sefer Torah. It is the Chachamim who teach us how to understand the Torah, sometimes even providing rulings that seem, at first glance, more lenient than what the Torah says.

(The question of whether the Derashos of Chazal are considered part of Torah she'Bichtav or Torah she'Ba'al Peh is, according to some, a Machlokes Amora'im in Gitin 60b. See MAHARSHA and GILYON HA'SHAS there. See also RASHI to Sukah 31a, DH Lo Makshinan.)

(b) The YAE'AROS DEVASH (2:11) suggests that the Gemara can be explained based on the Midrash (Bamidbar Rabah 5:5), which says that the 40 lashes of Malkus correspond to the 40 days that Moshe Rabeinu was on Har Sinai receiving the Torah. One who transgresses the Torah which was given to Moshe in 40 days is punished accordingly with 40 lashes. However, according to Rebbi Akiva's opinion that the Torah was given on the seventh of Sivan and Moshe ascended on the following day, he was only there for 39 days, until he came down on the seventeenth of Tamuz. According to that opinion, Hashem originally told Moshe that the Torah would be given on the sixth of Sivan but Moshe delayed it for one day until the seventh of Sivan and Hashem agreed with his decision, as the Gemara relates in Shabbos (88a). Because the Torah was actually given to Moshe in 39 days, a person who transgresses the Torah receives only 39 lashes! The Torah, though, writes that Malkus is comprised of 40 lashes based on what *should* have been had Moshe not pushed off the day of Kabalas ha'Torah. (Since Hashem knew that Moshe Rabeinu would delay the giving of the Torah by one day, Hashem provided a hint, through a Derashah, that only 39 Malkus would actually be given)! Thus, it emerges that since Moshe Rabeinu delayed the giving of the Torah for one day and Hashem agreed, one who transgresses the Torah receives only 39 lashes. This is what the Gemara means when it says that people should respect the Chachamim at least as much as the Torah, because the Chachamim caused the Torah to require only 39 lashes, while the Torah itself would have required 40 lashes.

(c) The RAMBAM seems to provide an original answer to our question. The Rambam writes (in Hilchos Sanhedrin 17:1) that in truth the Torah considers it fitting for a person to receive 40 lashes. However, the Chachamim said that even the healthiest person is given only 39 Malkus, so that if one lash is accidentally added, we still will have given him only 40 lashes, which is an appropriate amount. According to the way that the KESEF MISHNEH and others understand the Rambam, the Rambam seems to be understanding Rava's statement literally, that even the Chachamim who argue with Rebbi Yehudah in the Mishnah agree that there should be 40 lashes mid'Oraisa, and that mid'Rabanan the number was decreased to 39 as a form of a "Seyag," a protective measure (by stating, "Lo Yosif...," the Torah is telling us to take precautions not to give extra lashes). Further support to this can be adduced from the Mishnah's expression, "They estimated that he can receive 40," implying that Beis Din can evaluate a person as being fit to receive *40* lashes, and not just 39.

This is also evident from the words of the Rambam in Perush ha'Mishnayos here (and from what he writes in Hilchos Sanhedrin 17:4; see OR SAME'ACH). The Acharonim point out that strong support for this view can be found in the Midrash Rabah and Midrash Tanchuma (end of Parshas Korach). The Midrash says that mid'Oraisa there are 40 lashes, but the fortieth lash is not given in order for us not to transgress "Lo Yosif;" the Chachamim decreased the number of lashes to 39 because of "Lo Yosif."

There are a number of difficulties with the Rambam's explanation.

1. In the Mishnah, the Chachamim learn that there are only 39 lashes from a Derashah from the verse, "b'Mispar Arba'im." How, then, can the Rambam say that the number 39 is only mid'Rabanan? (SEFER HA'CHINUCH, Mitzvah 594)

The LECHEM MISHNEH answers that according to the Rambam, that Derashah teaches only that 40 lashes is the *maximum*, and is not the *required* amount. Since the Torah does not require that we give 40 lashes, but rather as many lashes as the Chachamim see fit to give *up to* 40, the Chachamim have the right to diminish the maximum number by one and never give more that 39 lashes. This also seems to be the intention of the Rambam in Perush ha'Mishnayos (see KAPACH edition).

2. The Mishnah says that the number of lashes must be divisible by three. How, then, can the Malkus mid'Oraisa be forty?

The answer to this question is that according to the Rambam, just as Rebbi Yehudah holds that although lashes must be divisible by three, it is a Gezeiras ha'Kasuv to give a fortieth lash if the person is strong enough to withstand it, so, too, according to the Chachamim there is a Gezeiras ha'Kasuv stating that we may give a fortieth lash. (See MINCHAS CHINUCH.)

3. If we are concerned with giving an extra lash, then when the Beis Din assesses that the person can receive 18 lashes, they should not give 18, lest they add an additional lash above their assessment! (See PORAS YOSEF, MINCHAS CHINUCH.)

We may answer that the Chachamim were not concerned that the Shali'ach of Beis Din would give an extra lash if there is a chance that that lash will kill the transgressor. In such a case, the Shali'ach Beis Din will see that the person is about to die and will avoid hitting him further. They were concerned only that he would give an extra lash when the transgressor is exceptionally strong, and even if he is given more than 40 lashes he will not be in danger of dying. In such a case, the Shali'ach Beis Din will not be able to discern that the additional lash is inappropriate.