Daf 16 Amud Alef
1.
HASRA'AS SAFEK AND LAV SHE'EIN BO MA'ASEH
(a) Each of them teaches like he taught elsewhere.
1. R. Yochanan and Reish Lakish: If Reuven swore 'I will eat this loaf
today' and he did not eat it, he is not lashed;
i. R. Yochanan: He is not lashed because this Lav does
not come through an action;
ii. Reish Lakish: He is not lashed because he cannot
receive definite warning (perhaps he will eat the loaf later), and Safek
warning is invalid.
(b) They both explain R. Yehudah.
1. Beraita - R. Yehudah: "Lo Sosiru (do not leave over
from the Korban Pesach until morning)... veha'Nosar... ba'Esh Tisrofu (burn
what is left over)" - the verse gives an Aseh to fix the Lav, therefore
one is not lashed for it.
2. R. Yochanan infers, had the Torah not given an
Aseh, one would be lashed for it, even though the warning is doubtful (perhaps
he will finish eating before morning)!
3. Reish Lakish infers, had the Torah not given an
Aseh, one would be lashed for it, even though Ein Bo Ma'aseh.
Question: Why doesn't Reish Lakish also
learn like R. Yochanan, that doubtful warning is (proper) warning?
Answer: He holds like a different Tana
according to R. Yehudah;
1. (Beraisa): If we are unsure if Reuven is the son
of David or Moshe, and Reuven strikes or curses David and Moshe, one after the
other or at the same time, he is liable (even though the warning is doubtful);
2. R. Yehudah says, he is liable only if he struck or
cursed both at the same time.
Question:
Why doesn't R. Yochanan also learn like Reish Lakish, that one is lashed for a
Lav she'Ein Bo Ma'aseh?
Answer: He holds like the following
teaching;
1. (R. Yochanan citing R. Yehudah
citing R. Yosi ha'Galili): One is lashed for a Lav that is done through an action;
2. The only Lavim without an action for which one is
lashed are swearing (falsely), Temurah and cursing a person with Hashem's name.
Question:
According to both R. Yochanan and Reish Lakish, R. Yehudah contradicts himself!
Answer - part 1 (for Reish Lakish): Tana'im argue about the opinion of R.
Yehudah.
Answer - part 2 (for R. Yochanan): R. Yehudah himself holds that one is
lashed for Lav she'Ein Bo Ma'aseh. He said in the name of R. Yosi ha'Galili
that one is not lashed.
2)
LASHES FOR NOT FULFILLING THE ASEH
(a) (Mishnah - R. Yehudah): If one takes a mother bird sitting on
her chicks or eggs, he is lashed, and he has no Mitzvah to send it away;
(b) Chachamim say, he sends it away, and he is not
lashed;
1. The general rule is, one is not lashed for a Lav
which has an Aseh.
(c) R. Yochanan: There is only one other such Mitzvah
(in which lashes depend on failure to fulfill the Aseh).
Question (R. Elazar): Which is the other Mitzvah?
-R. Yochanan: Go investigate!
Answer #1 (R. Elazar - Beraisa): If a Yisrael raped a woman and
divorced her, he remarries her, and he is not lashed;
1. If a Kohen (who may not marry a divorcee) did so,
he is lashed, and he does not remarry her.
2. A Yisrael is not lashed, even though the Aseh
precedes the Lav!
Question:
We understand according to the opinion Kiymo v'Lo Kiymo. He is lashed if he
does not remarry her.
1. According to the opinion Bitlo v'Lo Bitlo, we
understand how he can (permanently) Mevatel the Mitzvah to send the mother bird
(he can kill it), but how can a rapist be Mevatel the Mitzvah to remarry her?
If he kills her, he is not lashed, for he is
Chayav Misah!
Answer #1 (R. Simi of Chuzna'ah): He accepted Kidushin for her from
another man.
Objection (Rav): If she made him her Shali'ach, she was
Mevatel the Mitzvah. If she did not, he cannot accept Kidushin for her!
Answer #2 (R. Simi of Chuzna'ah): He vowed in public not to remarry her.
Question: This is like the opinion that
a vow taken in public can never be permitted;
1. However, according to the opinion that it can be
permitted, how can we answer?
Answer: He vowed Al Da'as Rabim
(according to the will of many people).
1. (Ameimar): The Halachah is, a vow taken in public
can be permitted, but a vow Al Da'as Rabim cannot be permitted.
Question: There are more (Mitzvos in
which lashes depend on failure to fulfill the Aseh)!
Question #1: It says "v'Lo Sigzol", and
"v'Heshiv Es ha'Gezelah" (a Mitzvah to return the theft)!
Question #2: "Lo Savo El Beiso La'avot
Avoto" (do not enter the borrower's house to take a security. If you did,
return it -) "Hashev Tashiv Lo Es ha'Avot"!
3. One can be lashed for these, whether one holds
Kiymo v'Lo Kiymo (he does not return it) or Bitlo v'Lo Bitlo (he destroys it)!
Answer (to both qestions): Since he must pay for it, he is not
lashed in addition to this.
Question (R. Zeira): If someone took a convert's security and the convert died (without
heirs), there is no one to pay! (He should be lashed!
The Gemara here says that if a Yisrael rapes a woman and divorces her, he remarries her, and he is not lashed. This seems to imply that the man gets a "second chance" to fulfill his obligation of being married to the woman whom he raped, even though he did an areyah by divorced her. He divorced her, but is not punished for this action because he "undoes" his action by remarrying her. Are there any other mitzvoth like this where we receive a second chance to undo an averah before being punished for it, and if so, why do we get this second chance for only particular aveyrot?
Other than the mitzvot mentioned by the Gemara as mitzvot she'yesh bahem kum aseh (aveirot that can be fixed by an action), I don't think there are more mitzvot that fall into this category. Perhaps the reason these can be "fixed" is that they are aveirot without permanent repercussions-- they can be fixed easily, no (or very little) harm done. In your example, the woman suffers because she has been raped and is now left unmarried, but as soon as he marries her, she is no longer suffering (in that way, at least).
ReplyDeleteThis mitzvah is not exactly related but it has a similar idea. In Hilchot Shabbat we have an idea that if someone makes something by accident on Shabbat, he doesn't have to throw it way. He can wait the בכדי שיעשו, the amount of time it would take him to produce it after Shabbat, and then use the object on Shabbat. The Rabbanim recognize that if we acknowledge that we sinned, and don't benefit from the time that we save, we are able to use the object. I think this relates to the Yisrael divorcing the woman he raped because he acknowledges that he did something wrong by divorcing her, and therefore we allow him to benefit from that with which he sinned (remarrying the woman) without repercussions.
ReplyDeleteBesides the mitzvot mentioned in this Gemara I can’t think of other mitzvot that have this same rule that we can receive a second chance at an averah before being punished for it. However, I liked the reason that Chana gave for why these specific mitzvot all give the same opportunity of a second chance. It makes sense that perhaps the reason is that they can be fixed without a lot of harm done because that is a common factor in the aveirot mentioned.
ReplyDeleteIt is very difficult to rectify an averah, and it is important that people are penalized for their actions. In this case, I don't think it's a second chance as much as a protection for the woman involved. Therefore other averot would not have the same opportunity for a "second chance."
ReplyDeleteI think that Yom Kippur is a good example of a time where we get second chances. HaShem is merciful and gives us the opportunity to pray for forgiveness for all mitzvot and to remove our punishments. Here, HaShem is giving us the gift of a second chance to redeem ourselves.
ReplyDeleteThis is different, though, from this case of the rapist; the fact that one can 'undo' the aveirah not by praying but by literally taking back their actions is interesting. I do not feel particularly comfortable with this, with the fact that this is his only punishment and he can easily make up for it. However, I believe that maybe by remarrying his victim after divorcing her he is not punished on Earth, but in Shamayim he may be punished for doing this aveirah (of divorcing his victim). While he can get rid of his Earthly punishment, he might not be able to get rid of his punishment from Shamayim.
Although it is a "second chance," I think it is important to note that the rapist is only free of physical punishment, however, he may still be punished bidei shamayim. Also, although we don't always see it this way, it is better to get punished on earth, than later in shamayim. I remember reading in a sefer (i forgot which one, I think Derech Hashem) that sometimes tzadikim are inflicted with terrible pain here on earth so that in shamayim, they can experience complete greatness. Whereas, rashaim may not be punished as much on earth, but in shamayim have to deal with the consequences eternally. So just because he is not punished on earth does not necessarily mean he does not get punished at all, and it is even worse to get punished in shamayim.
ReplyDeleteAdditionally, I think that this whole concept of him getting a "second chance" is really embedded in most aveirot that people commit, because although a person might still get the punishment, Hashem gives us a chance at any point to do Teshuva, and thereby rectify our sins.
I want to start off saying I agree with the point Elisheva raised. The rapist may be exempt from a physical punishment of lashes, but still may be obligated in Shamayim, which as we have learned in the past may be even worse really then getting a physical punishment here in this world. Although I cannot think of a specific case like this, I think all of Judiasm believes in this for the most part. I think that we are generally taught that we can fix our mistakes if we catch them, and go back on them and try to fix the situation. That is why we have teshuvah. Here the rapist is trying to go back and fix his mistake. I am not trying to excuse his act, for as mentioned above he will probably get some kind of punishment in Shamayim, I think this still teaches and important lesson. We believe you can go back on your ways and fix what you have done wrong. The rapist had to admit to themselves and recognize what they had done wrong here, and that is a step in the right direction.
ReplyDelete