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Shevuos, 3

1) TWO WHICH ARE FOUR

QUESTION: The Gemara explains that Shevuos follows Makos because the Mishnah in the end of Makos says that a person receives two sets of Malkus for transgressing the Isur of shaving his head, and five sets of Malkus for transgressing the Isur of shaving his entire beard. Just as that Mishnah mentions a single sin for which a person is punished twice, the Mishnah in Shevuos mentions two prohibitions that are written in the Torah, from which a Derashah derives another two prohibitions.

What is the comparison between the Mishnah in Makos and the Mishnah here? The Mishnah in Makos is discussing one prohibition for which a person is Chayav two sets of Malkus, while the Mishnah here is referring to two sins which are four. The Mishnah here is more comparable to the second part of the Mishnah in Makos that says that shaving the entire beard is a single sin for which five sets of Malkus can be given. In addition, the two sets of Malkus for cutting the Pe'os ha'Rosh are equally explicit in the verse, while only two of the four sins mentioned in our Mishnah are written explicitly!

ANSWER: The CHASAM SOFER (2b) and CHIKREI LEV answer that the Gemara in Makos (20b) teaches that we learn from "Lo Sakifu" (Vayikra 19:27) that the person who is shaved also transgresses the Lav. Therefore, if a person moves his head while being shaved to facilitate the haircut, he is Chayav Malkus. If a person shaves his own hair, he is Chayav two sets of Malkus -- one for cutting it, and one for having it cut. According to this, the Isur of cutting the two Pe'os ha'Rosh is also an Isur that involves two explicit Isurim (the two Pe'os) which are four according to the Derashah (two for the Makif and two for the Nikaf), and it is identical to the other Isurim that are described as "two which are four" in our Mishnah. (By placing Shevuos after Makos, the Mishnah is hinting to what the Beraisa teaches in Makos (20b); the Isur of cutting the Pe'os ha'Rosh is "two Isurim which are really four," since it includes the Isur of being Nikaf as well.)

3b

QUESTION: The Gemara attempts to determine which Tana is the author of our Mishnah. It suggests that our Mishnah is the view of Rebbi Yishmael. Rebbi Yishmael maintains that one is Chayav to bring a Korban for either He'elem Tum'ah or He'elem Mikdash, which is the view expressed in our Mishnah. However, Rebbi Yishmael does *not* obligate a person to bring a Korban for a Shevu'as Sheker when he swears falsely that an action occurred in the past. If our Mishnah was authored by Rebbi Yishmael, then why does it say that there are four Shevu'os ("two which are four"), including two Shevu'os regarding the past, for which one is Chayav?

The Gemara attempts to answer that the Mishnah is discussing the obligation of Malkus, and not Korban, as Rava teaches. Rava says that just as the Torah obligates Malkus for a Shevu'as Shav (with the word "Lo Yenakeh," Shemos 20:7), so, too, when the Torah obligates Malkus for a Shevu'as Sheker, it is obligating Malkus for a Shevu'as Sheker made for a past event. The Gemara challenges this answer, because even Rava does not give Malkus to a person who swears that he will do something in the future and he does not do what he swore, since it is a Lav she'Ein Bo Ma'aseh. The Gemara answers that Rebbi Yishmael holds that Malkus can be given for a Lav she'Ein Bo Ma'aseh, and that is why he would obligate Malkus for a person who does not fulfill his Shevu'ah to perform an action in the future.

There are a number of difficulties with this Gemara.

First, why does the Gemara cite Rava to prove that Malkus is given for a Shevu'as Sheker, a false oath? Rava's teaching is not the source for Malkus for a Shevu'as Sheker! Rather, we learn it from Rebbi Yochanan's Derashah: the Torah includes Shevu'as Sheker in the Aseres ha'Dibros by writing the word "la'Shav" (Shemos 20:7) a second time. Therefore, the words "Lo Yenakeh" in that verse teach that a Shevu'as Sheker is also punishable with Malkus. Rava's teaching is not cited as the source to give Malkus for a Shevu'as Sheker, but rather to *exempt* a one who makes a Shevu'as Sheker about the future from receiving Malkus (since it is not similar to a Shevu'as Shav, which involves only a matter of the past)!

Citing Rava's statement only raises a problem with asserting that the Mishnah follows the view of Rebbi Yishmael, since Rava makes it clear that not every Shevu'ah is punished with Malkus! (TOSFOS DH v'ch'd'Rava)

Second, according to the Gemara's conclusion that Rebbi Yishmael maintains that one receives Malkus for a Lav she'Ein Bo Ma'aseh, we no longer need the teaching of Rava to obligate Malkus for a Shevu'as Sheker. Rather, Malkus will be given because it is a Lav she'Ein Bo Ma'aseh. Why, then, does the Gemara not precede this answer with the word "Ela" ("rather"), which denotes the beginning of a new answer? (See MAHARSHA.)

Third, according to the Gemara's conclusion, the Malkus given for all Shevu'os are based on the same principle -- that Malkus is administered for a Lav she'Ein Bo Ma'aseh. Why, then, does the Mishnah group the Shevu'os as "two which are four?" The Malkus for the first two Shevu'os (which are l'ha'Ba, regarding the future) are just as explicit as those for the other two Shevu'os (regarding the past)!

With regard to bringing a Korban, the Mishnah has good reason to list the Shevu'os regarding the future separately, since the verse that discusses Korban (Vayikra 5:4) mentions only this type of Shevu'ah, Shevu'ah l'ha'Ba. However, with regard to Malkus, there is a specific Lav for Shevu'ah l'she'Avar (regarding the past) in the verse, "v'Lo Tishav'u" (Vayikra 19:12), and with regard to a Shevu'ah l'ha'Ba there is an explicit Lav in the verse, "Lo Yachel Devaro" (Bamidbar 30:3). All of the four Shevu'os, therefore, should be equal! (See TOSFOS DH Aval, RITVA, and TOSFOS HA'ROSH.)

ANSWERS:

(a) RABEINU CHANANEL, TOSFOS (DH Aval), and the RASHBA explain that when the Gemara says that there is Malkus for a Lav she'Ein Bo Ma'aseh according to Rebbi Yishmael, it does not mean that Rebbi Yishmael *always* gives Malkus for a Lav she'Ein Bo Ma'aseh (like the view of Rebbi Yehudah). Rather, Rebbi Yishmael administers Malkus only for the Isur of a Shevu'as Bituy, even when it does an involve a Ma'aseh (for example, a Shevu'ah to eat, and then he does not eat). He learns this from the extra word "la'Shav" in the verse that says "Lo Yenakeh" (Shemos 20:7), as Rebbi Yochanan says. (This approach will avoid the contradiction between our Gemara and the Gemara in Makos 13b regarding whether Rebbi Yishmael administers Malkus for a Lav she'Ein Bo Ma'aseh. See Rashi DH Kashya.) This answers our questions as follows:

1. There are two opinions that obligate Malkus for a Shevu'as Bituy, even though a Lav she'Ein Bo Ma'aseh is normally not punishable with Malkus. First, according to Rava, "la'Shav" teaches that one is Chayav Malkus for a Shevu'as Bituy regarding the past. Second, according to the teaching of Rebbi Yochanan, if one does not accept Rava's argument, one can be Chayav Malkus for a Shevu'as Bituy regarding both the past and the future.

We must explain that Rebbi Yishmael holds like one of these two opinions. However, each opinion has a disadvantage. Originally, the Gemara suggests that Rebbi Yishmael holds like Rava, because there is a disadvantage to saying that he holds that all Shevu'os Bituy are punishable with Malkus, since there would be no reason for the Mishnah to divide the Shevu'os into two sets, "two which are four," as we asked in our third question. Later, the Gemara rejects this approach, since, according to Rava, Malkus is not given at all for a Shevu'ah l'ha'Ba, a Shevu'ah regarding the future, and therefore we remain with the position that Rebbi Yishmael must hold that Malkus is given for all Shevu'os Bituy because of Rebbi Yochanan's teaching.

2. The Gemara should have used the word "Ela," since it is changing its position entirely. Why does it not say "Ela?" (See MAHARSHA.) The RITVA explains that the Gemara does not always use the word "Ela" even when it does start a new answer. TOSFOS also uses this approach in many places where the original answer of the Gemara was not given in the name of any Amora (see Yevamos 27a, DH Shmuel, and Shabbos 105b, DH Havah Amina).

3. TOSFOS (DH Aval) explains that the Mishnah divides the Shevu'os into two groups, because the Shevu'os l'ha'Ba are written more explicitly with regard to the obligation to bring a Korban, even though it is mentioned in our Mishnah only in the context of Malkus (according the Gemara's initial assumption). We indeed find a similar logic used even if the Mishnah is referring to the Korban that is brought for making such Shevu'os: why should the Mishnah refer to the Shevu'os regarding having done or not done something in the past as two separate categories? In both cases, the Shevu'ah is false as soon as it leaves his mouth, because he did not actually do or not do what he said. The only reason we distinguish between the two is because the verse makes such a distinction regarding Shevu'ah l'ha'Ba ("l'Ha'ra O l'Heitiv"). (See Tosfos there for another answer in the name of the RITZBA.)

According to Tosfos and Rabeinu Chananel, why does the Gemara later try to prove that Malkus is not given for a Lav she'Ein Bo Ma'aseh from the Mishnah which says that Malkus is not given for the Isur of ha'Mosir, one who leaves over the Korban Pesach? Since that Mishnah is not discussing Shevu'ah, even Rebbi Yishmael will agree that Malkus is not given when there is no Ma'aseh! (MAHARSHA) Apparently, Tosfos will assert that the Gemara indeed could have pointed that out, but instead it chose to give another reason to reject the proof from the Mishnah regarding ha'Mosir.

(b) The RITVA suggests another approach. Indeed, Rebbi Yishmael holds that Malkus *is* given for every Lav she'Ein Bo Ma'aseh. Why, then, does the Mishnah divide the Shevu'os into two groups, "two which are four?" The reason is because Malkus for Shevu'os regarding the past is written explicitly in the verse that says "Lo Yenakeh" which is referring to Shevu'as Shav and Shevu'as Sheker l'she'Avar. The Malkus for a Shevu'ah Sheker l'ha'Ba is not written explicitly, but rather is derived from the verse of "Lo Sachsom" (Devarim 25:3-4; see Makos 13b) which teaches that Malkus is given for all Lavim, including the transgression of a Shevu'ah.

This answers our questions as follows.

1. The Gemara cites Rava in order to show that only with regard to a Shevu'ah about the past does the verse explicitly administer Malkus. That is why the Mishnah divides the Shevu'os into two groups, "two which are four."

2. The Gemara does not say "Ela" when it proposes that Rebbi Yishmael gives Malkus for every Lav she'Ein Bo Ma'aseh, because we still require the teaching of Rava to teach that the Malkus for a Shevu'ah about the past is written more explicitly that the Malkus for a Shevu'ah about the future.

3. The reason the Mishnah divides the Shevu'os into two groups is because the Malkus for Shevu'os about the past is written explicitly.

The problem with this approach is that the Mishnah later (19b) explains that the phrase "two Shevu'os which are four" refers first to the two Shevu'os regarding the future, and then to the additional two Shevu'os regarding the past. The sequence of the Mishnah implies that the "two" of the Mishnah are the Shevu'os regarding the future, and not the Shevu'os regarding the past. The Ritva writes that according to this approach, although our Mishnah here is referring to Malkus, the Mishnah later (19b) is referring to "two Shevu'os which are four" with regard to Korban, and it is following the opinion of Rebbi Akiva.

(c) The TOSFOS HA'ROSH and the RAV ABAD (cited by the RAN) explain that since the Torah specifies with regard to Korban that a Korban is brought only for a Shevu'ah about the future, we would have concluded that even with regard to Malkus, the Torah prohibits a Shevu'as Sheker only when it is about the future, since the Torah does not mention a Shevu'ah about the past explicitly. It is only because of the verse of "la'Shav" that we learn that the Isur of Shevu'as Sheker applies also to the past.

The Gemara is forced to take this approach, since, otherwise, there would be no reason for the Mishnah to divide the Shevu'os into two groups. The RITVA also offers this as an alternate solution.

This answers our questions as follows.

1. The Gemara cites Rava to show that the verse of "la'Shav" is specifically referring to a Shevu'ah about the past, since, without that verse, we would not know that a Shevu'ah about the past is included in the Isur of Shevu'as Sheker.

2. The Gemara does not say "Ela" when it concludes that Rebbi Yishmael administers Malkus for every Lav she'Ein Bo Ma'aseh, since we still must rely on the teaching of Rava to show that the Isur of Shevu'as Sheker also includes swearing falsely about the past.

3. The reason why the Mishnah divides the Shevu'os into two groups, "two which are four," is because the Shevu'ah l'ha'Ba is written explicitly in the verse. However, we only know that a Shevu'ah about the past is prohibited from the Derashah of the extra word "la'Shav."