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Makkot 16a

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Babylonian Talmud · folio map

Makkot 16a

Makkot 16a. The full printed text of this folio side — 18 numbered segments, about 475 words — with the classic commentaries printed on the page.

Original text

Segment 1

מִשּׁוּם דְּהָוֵי לָאו שֶׁאֵין בּוֹ מַעֲשֶׂה, וְכׇל לָאו שֶׁאֵין בּוֹ מַעֲשֶׂה – אֵין לוֹקִין עָלָיו. רֵישׁ לָקִישׁ אוֹמֵר: אֵינוֹ לוֹקֶה, מִשּׁוּם דְּהָוֵי הַתְרָאַת סָפֵק, וְכׇל הַתְרָאַת סָפֵק – לֹא שְׁמָהּ הַתְרָאָה.

because it is a prohibition that does not involve an action. He violates the oath by failing to perform an action, rather than by performing an action, and the principle is: With regard to any prohibition that does not involve an action, one is not flogged for its violation. Reish Lakish says: He is not flogged, because the forewarning in this case is an uncertain forewarning. One cannot properly forewarn him before he takes the oath, because as long as time remains in the day he can still eat the loaf at a later time and fulfill the oath; and any uncertain forewarning is not characterized as forewarning.

Segment 2

וְתַרְוַיְיהוּ אַלִּיבָּא דְּרַבִּי יְהוּדָה. דְּתַנְיָא: ״וְלֹא תוֹתִירוּ מִמֶּנּוּ עַד בֹּקֶר, וְהַנֹּתָר מִמֶּנּוּ עַד בֹּקֶר וְגוֹ׳״, בָּא הַכָּתוּב לִיתֵּן עֲשֵׂה אַחַר לֹא תַעֲשֶׂה, לוֹמַר שֶׁאֵין לוֹקִין עָלָיו, דִּבְרֵי רַבִּי יְהוּדָה. רַבִּי יוֹחָנָן דָּיֵיק הָכִי: טַעְמָא דְּבָא הַכָּתוּב, הָא לֹא בָּא הַכָּתוּב – לוֹקֶה, אַלְמָא: הַתְרָאַת סָפֵק שְׁמָהּ הַתְרָאָה.

The Gemara adds: And both Rabbi Yoḥanan and Reish Lakish hold in accordance with the opinion of Rabbi Yehuda, as it is taught in a baraita : It is stated with regard to the Paschal offering: “And you shall let nothing of it remain until the morning, and that which remains of it until the morning you shall burn in fire” (Exodus 12:10). The verse comes to position the positive mitzva of burning the leftover flesh after the prohibition against leaving over the flesh, to say that one is not flogged for its violation; this is the statement of Rabbi Yehuda. Rabbi Yoḥanan inferred this from the statement of Rabbi Yehuda: The reason he is not flogged is that the verse comes and positions the mitzva after the prohibition; but if the verse had not come and positioned the mitzva after the prohibition, he would have been flogged. Apparently, uncertain forewarning is characterized as forewarning, as he can be forewarned not to leave over the flesh of the offering, even though he would not be flogged were he to burn it.

Segment 3

וְרֵישׁ לָקִישׁ דָּיֵיק הָכִי: טַעְמָא דְּבָא הַכָּתוּב, הָא לֹא בָּא הַכָּתוּב – לוֹקֶה, אַלְמָא: לָאו שֶׁאֵין בּוֹ מַעֲשֶׂה לוֹקִין עָלָיו.

And Reish Lakish inferred this: The reason he is not flogged is that the verse comes and positions the mitzva after the prohibition; but if the verse had not come and positioned the mitzva after the prohibition, he would have been flogged. Apparently, one is flogged even for violating a prohibition that does not involve an action, as he violates the prohibition without performing an action.

Segment 4

וְרַבִּי שִׁמְעוֹן בֶּן לָקִישׁ נָמֵי, הָא וַדַּאי הַתְרָאַת סָפֵק הוּא!

The Gemara asks: And according to Rabbi Shimon ben Lakish too, this is certainly a case of uncertain forewarning; why, then, does he not conclude based on Rabbi Yehuda’s statement that uncertain forewarning is characterized as forewarning?

Segment 5

סָבַר לַהּ כְּאִידַּךְ תַּנָּא דְּרַבִּי יְהוּדָה. דְּתַנְיָא: הִכָּה זֶה וְחָזַר וְהִכָּה זֶה, קִילֵּל זֶה וְחָזַר וְקִילֵּל זֶה, הִכָּה שְׁנֵיהֶם בְּבַת אַחַת אוֹ קִילֵּל שְׁנֵיהֶם בְּבַת אַחַת – חַיָּיב. רַבִּי יְהוּדָה אוֹמֵר: בְּבַת אַחַת – חַיָּיב, בְּזֶה אַחַר זֶה – פָּטוּר.

The Gemara answers: He holds in accordance with the opinion of the other tanna in the name of Rabbi Yehuda, as it is taught in a baraita : If a woman was divorced and remarried soon after, and a son was born seven months after her remarriage and nine months after her divorce, it is unclear whether he is the son of the first husband or of the second husband. In that case, if this son struck this husband of his mother, and then struck that husband, or if he cursed this husband and then cursed that one, and likewise if he struck both of them simultaneously or cursed both of them simultaneously, he is liable for striking or cursing his father. Rabbi Yehuda says: If he cursed or struck both of them simultaneously he is liable, but if he cursed or struck them one after the other, even if he was forewarned prior to cursing or striking each one, he is exempt. Apparently, Rabbi Yehuda is of the opinion that one is not flogged after uncertain forewarning; since in this case it is impossible to determine which of them is the father, inevitably the forewarning is uncertain.

Segment 6

וְרַבִּי יוֹחָנָן נָמֵי, הָא וַדַּאי לָאו שֶׁאֵין בּוֹ מַעֲשֶׂה הוּא!

The Gemara asks: And according to Rabbi Yoḥanan too, this is certainly a case of a prohibition that does not involve an action. Why, then, does he not conclude based on Rabbi Yehuda’s statement that one is flogged for violating a prohibition of that kind?

Segment 7

סָבַר לַהּ כִּי הָא דְּאָמַר רַב אִידִי בַּר אָבִין אָמַר רַב עַמְרָם אָמַר רַבִּי יִצְחָק אָמַר רַבִּי יוֹחָנָן: רַבִּי יְהוּדָה אוֹמֵר מִשּׁוּם רַבִּי יוֹסֵי הַגְּלִילִי: כׇּל לֹא תַעֲשֶׂה שֶׁבַּתּוֹרָה, לָאו שֶׁיֵּשׁ בּוֹ מַעֲשֶׂה – לוֹקִין עָלָיו, לָאו שֶׁאֵין בּוֹ מַעֲשֶׂה – אֵין לוֹקִין עָלָיו, חוּץ מִן הַנִּשְׁבָּע, וּמֵימִר, וְהַמְקַלֵּל אֶת חֲבֵירוֹ בַּשֵּׁם.

The Gemara answers: Rabbi Yoḥanan holds in accordance with that which was cited in his name, as Rav Idi bar Avin says that Rav Amram says that Rabbi Yitzḥak says that Rabbi Yoḥanan says that Rabbi Yehuda says in the name of Rabbi Yosei HaGelili: With regard to any prohibition in the Torah, if it is a prohibition that involves an action, one is flogged for its violation; if it is a prohibition that does not involve an action, one is not flogged for its violation, except for one who takes a false oath, one who substitutes a non-sacred animal for a sacrificial animal, saying: This animal is substituted for that one, and one who curses another invoking the name of God. In those three instances, the perpetrator is flogged even though he performed no action.

Segment 8

קַשְׁיָא דְּרַבִּי יְהוּדָה אַדְּרַבִּי יְהוּדָה!

The Gemara asks: Although the difficulties that were raised with regard to the opinions of Rabbi Yoḥanan and Reish Lakish were answered, the apparent contradiction from one statement of Rabbi Yehuda to another statement of Rabbi Yehuda is difficult. The Gemara cited contradictory statements of Rabbi Yehuda with regard to lashes both in the case of a prohibition that does not involve an action and in the case of uncertain forewarning.

Segment 9

אִי לְרַבִּי שִׁמְעוֹן בֶּן לָקִישׁ – תְּרֵי תַּנָּאֵי אַלִּיבָּא דְּרַבִּי יְהוּדָה, אִי לְרַבִּי יוֹחָנָן – לָא קַשְׁיָא: הָא דִידֵיהּ, הָא דְרַבֵּיהּ.

The Gemara answers: If it is according to Rabbi Shimon ben Lakish, the contradiction may be resolved with the explanation that the two sources reflect the opinions of two tanna’im , who disagree in accordance with the opinion of Rabbi Yehuda. If it is according to Rabbi Yoḥanan, the contradiction is not difficult, as this baraita reflects his opinion, that one is flogged for violating a prohibition that involves an action, and that baraita reflects the opinion of his teacher, Rabbi Yosei HaGelili, who holds that one is not flogged for violating a prohibition that involves an action.

Segment 10

תְּנַן הָתָם: הַנּוֹטֵל אֵם עַל הַבָּנִים, רַבִּי יְהוּדָה אוֹמֵר: לוֹקֶה, וְאֵינוֹ מְשַׁלֵּחַ. וַחֲכָמִים אוֹמְרִים: מְשַׁלֵּחַ וְאֵינוֹ לוֹקֶה. זֶה הַכְּלָל: כׇּל מִצְוַת לֹא תַעֲשֶׂה שֶׁיֵּשׁ בָּהּ קוּם עֲשֵׂה – אֵין חַיָּיבִין עָלֶיהָ. אָמַר רַבִּי יוֹחָנָן: אֵין לָנוּ אֶלָּא זֹאת וְעוֹד אַחֶרֶת.

§ We learned in a mishna there (17a): With regard to one who takes the mother bird with her fledglings, thereby violating the Torah prohibition: “You shall not take the mother with her fledglings; you shall send the mother, and the fledglings you may take for yourself” (Deuteronomy 22:6–7), Rabbi Yehuda says: He is flogged for taking the mother bird, and he does not send the mother, and the Rabbis say: He sends the mother and is not flogged, as this is the principle: With regard to any prohibition that entails a command to arise and perform a mitzva, one is not liable to receive lashes for its violation. Rabbi Yoḥanan says: We have only this mitzva and another where one would be flogged if not for the relevant mitzva.

Segment 11

אֲמַר לֵיהּ רַבִּי אֶלְעָזָר: הֵיכָא? אֲמַר לֵיהּ: לְכִי תַּשְׁכַּח. נְפַק דָּק וְאַשְׁכַּח, דְּתַנְיָא: אוֹנֵס שֶׁגֵּירַשׁ, אִם יִשְׂרָאֵל הוּא – מַחְזִיר וְאֵינוֹ לוֹקֶה, וְאִם כֹּהֵן הוּא – לוֹקֶה וְאֵינוֹ מַחְזִיר.

Rabbi Elazar said to Rabbi Yoḥanan: Which is that other mitzva? Rabbi Yoḥanan said to him: You will know when you discover it yourself. Rabbi Elazar went out, examined the matter, and discovered the answer, as it is taught in a baraita : With regard to a rapist who divorced the woman he raped, if he is a non-priest, he remarries her, and he is not flogged for violating the prohibition: “He may not send her away all his days” (Deuteronomy 22:29). And if he is a priest, he is flogged for violating the prohibition, and he does not remarry her.

Segment 12

הָנִיחָא לְמַאן דְּתָנֵי קִיְּימוֹ וְלֹא קִיְּימוֹ.

The Gemara states: This works out well according to the one who teaches that the criterion for determining whether one is flogged for violating a prohibition that entails fulfillment of a positive mitzva is whether he fulfilled the mitzva or did not fulfill the mitzva, and if he does not fulfill the mitzva immediately when he is instructed to do so, he is flogged when he fails to do so.

Segment 13

אֶלָּא לְמַאן דְּתָנֵי בִּיטְּלוֹ וְלֹא בִּיטְּלוֹ, בִּשְׁלָמָא גַּבֵּי שִׁילּוּחַ הַקֵּן מַשְׁכַּחַתְּ לַהּ, אֶלָּא אוֹנֵס בִּיטְּלוֹ וְלֹא בִּיטְּלוֹ הֵיכִי מַשְׁכַּחַתְּ לַהּ?

But according to the one who teaches that the criterion for determining whether one is flogged in that case is whether he nullified the mitzva or did not nullify the mitzva, and one is flogged only if he performed an action that renders it impossible to fulfill the mitzva, granted, with regard to the sending away of the mother bird from the nest, you can find a situation where he nullifies the mitzva, e.g., if he killed the mother bird. But in the case of a rapist, if the criterion is whether he nullified the mitzva or he did not nullify it, how can you find a situation where the man is flogged because he nullified any possibility of remarrying her?

Segment 14

אִי דְּקַטְלַהּ – קָם לֵיהּ בִּדְרַבָּה מִינֵּיהּ! אָמַר רַב שִׁימִי מָחוֹזְנָאָה: כְּגוֹן שֶׁקִּיבֵּל לָהּ קִידּוּשִׁין מֵאַחֵר. אָמַר רַב: אִי שַׁוֵּויתֵיהּ שָׁלִיחַ – אִיהִי קָא מְבַטְּלָא לֵיהּ, אִי לָא שַׁוֵּויתֵיהּ שָׁלִיחַ – כֹּל כְּמִינֵּיהּ? וְלָא כְּלוּם הִיא!

If he cannot remarry her because he killed her, he will be executed, not flogged, based on the principle: He receives the greater punishment. Rav Shimi of Meḥoza said: He nullifies the possibility of remarriage in a case where he received, on her behalf, the money for betrothal from another, thereby ensuring that his own remarriage to her is no longer an option. Rav said: That is not a viable solution; if his ex-wife designated him as an agent to receive the money of betrothal on her behalf, it is she who nullifies the possibility of fulfilling the mitzva for him, as a woman is betrothed only with her consent, and he is not liable at all. If she did not designate him as an agent, is it in his power to accept betrothal on behalf of a woman who did not designate him to do so? His action is nothing, and the betrothal does not take effect.

Segment 15

אֶלָּא אָמַר רַב שִׁימִי מִנְּהַרְדְּעָא כְּגוֹן שֶׁהִדִּירָהּ בָּרַבִּים. הָנִיחָא לְמַאן דְּאָמַר נֶדֶר שֶׁהוּדַּר בָּרַבִּים אֵין לוֹ הֲפָרָה, אֶלָּא לְמַאן דְּאָמַר יֵשׁ לוֹ הֲפָרָה, מַאי אִיכָּא לְמֵימַר? (דְּמַדִּירַהּ לַהּ) [כְּגוֹן שֶׁהִדִּירָהּ] עַל דַּעַת רַבִּים. דְּאָמַר אַמֵּימָר: הִלְכְתָא, נֶדֶר שֶׁהוּדַּר בָּרַבִּים – יֵשׁ לוֹ הֲפָרָה, עַל דַּעַת רַבִּים – אֵין לוֹ הֲפָרָה.

Rather, Rav Shimi of Neharde’a said: He nullifies the possibility of remarriage in a case where he vowed in public that it is prohibited for him to derive benefit from her, and it is consequently prohibited for him to marry her. The Gemara asks: This works out well according to the one who says that a vow that was taken in public has no nullification; he is flogged, since by taking that vow he has rendered remarriage impossible. But according to the one who says that even a vow taken in public has the possibility of nullification, what can be said? He can nullify the vow and remarry her. The Gemara answers: The reference is to a case where he vows on the basis of the consent of the public that it is prohibited for him to derive benefit from her, as Ameimar says that the halakha is: A vow that was taken in public has the possibility of nullification; a vow that was taken on the basis of the consent of the public has no nullification.

Segment 16

וְתוּ לֵיכָּא? וְהָא אִיכָּא (סִימָן גָּזֵל מַשְׁכֹּן וּפֵאָה), גָּזֵל, דְּרַחֲמָנָא אָמַר ״לֹא תִגְזֹל״, ״וְהֵשִׁיב אֶת הַגְּזֵלָה״. מַשְׁכּוֹן, דְּרַחֲמָנָא אָמַר ״לֹא תָבֹא אֶל בֵּיתוֹ לַעֲבֹט עֲבֹטוֹ״, ״הָשֵׁב תָּשִׁיב לוֹ הָעֲבוֹט כְּבֹא הַשֶּׁמֶשׁ״.

The Gemara questions Rabbi Yoḥanan’s statement: And are there no more prohibitions that entail fulfillment of a positive mitzva for which one is flogged? But aren’t there others? Before stating its challenges, the Gemara provides a mnemonic for the cases that it will cite: Robbery, collateral, and pe’a . The Gemara elaborates: Isn’t there the case of robbery, where the Merciful One states: “You shall not rob” (Leviticus 19:13), and also states: “And he shall return the stolen item” (Leviticus 5:23)? Isn’t there the case of collateral, where the Merciful One states: “You shall not come into his house to fetch his pledge” (Deuteronomy 24:10), and He then states: “You shall return to him the pledge when the sun sets” (Deuteronomy 24:13)?

Segment 17

וּמַשְׁכַּחַתְּ לַהּ בְּקִיְּימוֹ וְלֹא קִיְּימוֹ, וּבִיטְּלוֹ וְלֹא בִּיטְּלוֹ! הָתָם כֵּיוָן דְּחַיָּיב בְּתַשְׁלוּמִין – אֵין לוֹקֶה וּמְשַׁלֵּם.

The Gemara continues: And you find that one is liable to receive lashes in those cases both if the criterion is whether he fulfilled the mitzva or did not fulfill the mitzva, and if the criterion is whether he nullified the mitzva or he did not nullify it. According to the first criterion, he is flogged if he fails to return the stolen item or the collateral; according to the second criterion, he is flogged if he destroys the stolen item or the collateral. The Gemara answers: There, in both those cases, he is not flogged, since he is liable to remit monetary payment for the stolen item or the collateral, as the principle is: One is not both flogged and liable to pay restitution for one transgression.

Segment 18

מַתְקֵיף לַהּ רַבִּי זֵירָא: הָא אִיכָּא מַשְׁכּוֹנוֹ שֶׁל גֵּר, וּמֵת הַגֵּר!

Rabbi Zeira objects to this: But isn’t there a case where he is not liable to pay, e.g., if he appropriated the collateral of a convert and the convert died with no heirs. In that case, there is no payment, and nevertheless, he is not flogged.

Makkot 16a

Makkot 16a

Rashi

Tosafot

Rabbeinu Chananel

Ritva

Meiri

Maharsha (Chidushei Halachot)

Maharam

Penei Yehoshua

Gilyon HaShas

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