THOUGHTS ON THE DAILY DAF
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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
2) "ISUR KOLEL" AND "ISUR MOSIF"
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)
(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
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
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
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
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
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
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.)
3) FORTY LASHES MINUS ONE
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
(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
(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)
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.
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,