Shavuos 4a - Hasra'as Safeik

Tosafos is looking for a case that is not a hasra'as safeik but would still be a la'av sh'ein bo ma'aseh. Tosafos explains that if one would swear to eat a loaf of bread and then throw it into the sea - it would be a definite warning since the throwing of the loaf into the sea will definitely result in the violation of the oath, but it is still a passive violation since the nature of the violation is "not eating" (although it is done through an action, it is considered passive - see steipler in kehilas yacov). Tosafos then undermines this premise and explains that this too would only be hasra'as safeik (according to the opinion who holds bitlu v'lo bitlu), because it is similar to breaking the wings of a bird by shiluach ha'kan which is considered a hasra'as safeik. The violation of the la'av is by taking the birds, but the malkus is pending on destroying the possibility of fulfilling the a'seh by breaking the wings. Warning can't be given at the time of the la'av since he may fulfill the aseh so its hara'as safeik, and also cannot be given at the time of destroying the aseh because warning must be at the time of violating the la'av.

R. Akiva Eiger (gilyon ha'shas) challenges Tosafos assumption. In the situation of shiluach hakan it is clearly a problem of hasra'as safeik - the aveira is at the time of taking the mother, not the breaking of the wings, but the breaking of the wings ruins the possibility of fulfilling the aseh. There is no point to give hasra'ah because if the warning is given prior to breaking the wings, it is not a valid warning since that isn't the time of violation. However, in the context of swearing to eat the bread, the point of violation is not when the shavuah is made, rather it is when the shavuah is violated - the moment of violation is when the loaf is thrown into the ocean by not being able to eat it - warning at this point should be considered a definite warning at the time of violation, not a hasra'as safeik?

The assumption of R. Akiva Eiger is that even though we require warning immediately proceeding the violation of the la'av, the warning at the moment of throwing the bread into the sea is considered the point of violation of the la'av. It is not clear to me why R. Akiva Eiger makes this assumption. When Rashi in Makos 16 writes that warning must be at the point of the violation of the la'av, he doesn't mean that warning must be at the moment of violation, rather that it must be when the l'av is transgressed. It is true that throwing the bread into the sea is an issur since it inevitably causes the la'av to be violated, but it is only a cause of the violation not the actual violation. For example, if he swears to eat the bread today and throws it into the sea at midday, he is doing an issur at midday but only violating the la'av at sundown (which is not possible to be precise about - ritva), therefore warning at the time of throwing into the sea can only be considered a hasra'as safeik.

Shavuos 3a - Shli'ach l'dvar Aveira for a Goy

The gemara in Nazir 53b has a machlokes when an adult cuts off the pei'os of a kattan. R. Huna holds that he is chayev, but R. Adah holds that the makif (barber) and nikef (person getting haircut) go together - whenever the ni'kef is not in violation such as a child (the steipler proves from here that we view a child as one who is not at all obligated, rather than just exempt from the punishment), the makif is also not in violation. However, Tosafos is unsure about the reverse case. Tosafos suggests that even according to R. Adah, we only exempt the makif when the nikef is not a bar chiyuva, but when it is the reverse we don't exempt the nikef just because the barber is not a bar chiyuva. Tosafos proves this from the fact the gemara in baba metziah 10b (in the context of shliach l'dvar aveira) not exploring the possibility of a jew who tells a goy or child to give a haircut to another adult jew. Tosafos holds that if Reuven would tell a goy to give Shimon a haircut, Revuen would be in violation (according to the opinion that we say shliach l'dvar aveira when the shliach isn't a bar chiyuva). But, how can a goy serve as a shliach to make Reuven chayev - a goy is not included in shlichus and cannot serve as a halachic agent?

The Mitzpeh Eisan answers that we must be speaking about a case where the goy is a worker. Even though we don't allow shlichus by a goy, there is a concept of יד פועל כיד בעל הבית which would be a usable concept to make Reuven liable for the goy's action.

The Nesivos HaMishpat 182:1 (quoted by cheshek shlomo) explains that the concept of not having shlichus for a goy only applies when by breaking the shelichus, it will prevent the action from being done. For example, if one appoints a goy to be a shliach to marry a woman or take teruma, we apply the rule of אין שליחות לנכרי because by breaking the shlichus the marriage and teruma would not take effect. But, when the action is not reversible, such as this case where a goy cut of the pei'os, we wouldn't accomplish anything by breaking the shelichus. Since breaking teh shelichus won't fix the problem, and all the shelichus is needed for is to attribute the action back to Reuven who told the goy to do cut off the pei'os, we consider even a goy a shliach and Revuen is chayev.

Shavuos 2b - Is it Permitted to Comb Hair?

Tosafos discusses the prohibition of cutting of pei'os ha'rosh. It is clear from the gemara in makos that for pei'os ha'zakan one is only in violation if they use a razor (or perhaps something that cuts as close as a razor - discussed in a previous blog). Although this stipulation isn't mentioned in regard to pei'os ha'rosh, it is possible that it has the same limitation and that one is only in violation if they cut their pei'os with a razor. Tosafos struggles with this issue and tries to prove that the the issur of pei'os ha'rosh applies even with a scissors (if it is cut to a point that the hair can't be bent back to its root). In Shluchan Aruch (181:2) he cites the opinion that even pei'os ha'rosh requires a razor (and considers this to be the primary opinion), then quotes Tosafos that even with scissors it is assur, and concludes - ויש לחוש לדבריהם.

R. Akiva Eiger (Gilyon HaShas) raises a very interesting point. Based on the opinion of Tosafos that there is a prohibition to even use a scissors, it should follow that even pulling out the hair with a tweezers (מלקט ורהיטני) should be assur - since we expand the issur beyond a razor, we have no source to limit it to scissors and not tweezers. Therefore, even combing one's hair which will pull out hairs should be assur. R. Akiva Eiger explains that this would not qualify as a דבר שאינו מתכוין which is mutar, because the in the context of Nazir we consider combing hair to be a p'sik reisha since it will inevitably pull out hair. How then can one comb their hair?

R. Akiva Eiger in a Teshuva rejects the notion that we can rely on s'feik s'feika, maybe the halacha is like the opinion that forbids only a razor, maybe the halacha is like the opinion that the entire area has to be rounded off to be in violation (rambam holds it is only forbidden if there are less than 40 hairs that remain - chasam sofer understands that 2 remaining hairs are sufficient m'doraysa, but 40 are needed m'drabonon). Using this s'feik s'feika, it should be permitted to cut with a scissors, yet the shulchan aruch is machmir and forbids cutting the area even with a scissors implying that we assume like the s'mag that even cutting 2 hairs in the area of the pei'os would be a violation. How then can one comb their hair?

The Chasam Sofer (Y.D. 139, 140) responds to R. Akiva Eiger's question. One of the points that the Chasam Sofer (140) raises is that even if tweezers is forbidden, combing should be permitted. The concern that combing will pull out hair (which is found by Nazir) is by loose hairs that are already partially out. In the context of Nazir that would be a violation, but it would not constitute a violation of cutting off pei'os. The Chasam Sofer (139) defends the practice of combing hair because he saw his Rebbi R. Nosson Adler do it. The Chasam Sofer develops the same s'fek s'feika that R. Akiva Eiger (teshuva 63 k'sav yad) raises. The fact that the Shulchan Aruch doesn't consider it to be a s'fek s'feika, the chasam sofer (140) considers to be a question on the Beis Yosef, "let someone with a broader mind than us answer up the beis yosef".

Makos 23a - Restoring Semicha: For What Purpose?

Here is a post from wikipedia about an attempt that was made to restore semicha in the time of the Beis Yosef. The issue is based on a Rambam in Yad Hachazaka and Pirush Hamishna, that semicha can possibly be restored by consensus of chachmei yisroel in E.Y.

Attempt by Rabbi Jacob Berab in 1538. Rabbi Berab assembled 25 of the most leading Rabbis of Israel, who at the time were located in Safed, and re-instituted the Semicha. They convened and ordained Rabbi Berab as their "Chief Rabbi". The Rabbis of Jerusalem felt a slight on their honor and declared the election invalid, and a major dispute ensued. Some Rabbis held that it wasn't possible to renew the Semicha, but Rabbi Yosef Karo, author of the Shulchan Aruch, took the position that the procedure was valid and he was one of four Rabbi ordained by Rabbi Berab. Rabbi Karo in turn ordained Rabbi Moshe Alshich who in turn ordained Rabbi Hayyim Vital the prime disciple of the Ari Hakodosh. The new Sanhedrin has modeled its actions after this attempt.

The issue is addressed at length in the kunteros at the end of teshuvos maharal ben chaviv, where he has a heated exchange with the mahari bei rav (R. Yakov beirav) who was the first to receive the semicha. The maharalbach (ben chaviv) was located in Yerushalayim and spills much ink on explaining that without his agreement, their actions were futile.

But what was the purpose in restoring semicha? There was a group of people who committed aveiros for which they deserved kareis. They desperately wanted to do teshuva and receive malkus to remove the status of kareis - for this they needed a beis din of semuchin (to carry out the malkus). The problem was that malkus requires warning and these people never received warning for their aveira, and therefore the malkus would have to be given based on their own admitting to their aveiros. Can one volunteer to receive malkus?

The MaharalBach writes that there were people who had violated issurei kareis and wanted to receive malkus, so that based on our mishna they will exempt themselves of kareis. The first question that the maharalbach addresses is whether the concept of חייבי כריתות שלקו נפטרו ידי כריתתם only applies in conjunction with teshuva. The gemara in makos 13b implies that teshuva is a necessary component, but the mishna makes no mention of it. There is even a contradiction in the Rambam. In the pirush hamishna both at the beginning and end of the perek he says teshuva is a necessary component but in Hil. Sanhedrin (17:7) he makes no mention of it. The maharal bach explains that Teshuva with malkus is necessary to remove kareis, but either teshuva or malkus can restore his status as being a kasher - כשלקה הרי הוא כאחיך.

Being that malkus really serves the function of "yesurin" which in conjunction with teshuva help to remove the kareis - it is plausible that even if the malkus is given voluntarily without actually being chayev malkus, it would remove the kareis.

This developed into a major debate between the maharalbach and the mahari beirav, whether volunteering for malkus would work to remove the kareis.The argument posed by the Mahari Beirav is that if malkus can work to remove kareis when one is warned, it should certainly be effective in the absence of warning. The rationale is that the smaller the crime, the easier it should be to remove the punishment. If the punishment of kareis can be removed from a major crime with warning, it should certainly be removed through malkus by a smaller crime (without warning). The MaharalBach adamantly disagrees for 3 reasons: 1. Warning isn't a factor for Hashem. Since he knows that the person violated intentionally, it is as if he was warned in G-d's eyes, but for technical reasons, has no ability to receive malkus to remove the kareis. 2. Beis Din is cannot whip him by his own volunteering. The Beis Din is not allowed to due anything that indicates that they are believing him based on his own admitting. 3. The Rambam (Sanhedrin 18) writes that malkus is a gezeiras hakasuv LIKE the death penalty. Just as one cannot volunteer for the death penalty, he cannot volunteer for malkus. In addition he writes that malkus itself can lead to misah, and beis din cannot take on that liability.

Furthermore, the maharalbach explains that the only type of malkus that can replace kareis is when their is severe embarrassment, by the malkus being imposed by the beis din forcefully. Any malkus that is done voluntarily doesn't have the same level of embarrassment and therefore doesn't qualify. R. Chaim Soloveitchik has a similar approach but more lomdush where he explains that the status of "malkus" is only when imposed by a beis din. He continues to be medayek in Rashi 23b to support the point that without witnesses and warning, malkus cannot be given to replace the kareis.

However, the MahariBeirav was not convinced and writes that he has already passed on his semicha to 4 Rabbonim in tzefat just in case he is exiled as a result of the controversy. One of these students is assumed to be R. Yosef Kairo. The debate between the two gedolim takes on a very strong tone - one of the strongest debates of the greatest gedolim in the history of klal yisroel.

Makos 22a - Meat and Milk for Ne'veila

The Dagul Me'rvava (Y.D. 87:3) discusses the prohibition of meat and milk on non-kosher meat (neveila). He writes that the Rambam explicitly writes (ma'achalos asuros 9:4) that the issur to cook meat and milk of a ne'veila is d'oraysa, but the eating of it would not be a violation of eating meat and milk. The issue that the Rambam doesn't address in the halachos is whether there is an issur to benefit from the meat of neveila that is cooked with milk. The dagul m'rvava cites the rambam in his pirush hamishna in krisus (nekuda nif'la'ah) that it would not be an issur hana'ah and permits one to rely on this in a situation of loss of money - which would be the easiest heter for buying stock in McDonalds. The Chasam Sofer, cited by the Pischei Teshuva disagrees and paskens that there would be an issur hana'ah even by meat of ne'veila cooked with milk.

There seems to be a very strong proof from our gemara. The gemara says that the case of cooking a gid ha'nashe with milk and violating 5 issurim, is (at least initially) speaking about a gid ha'nashe (sciatic nerve) of a neveila. By establishing that the braisa is speaking about a gid of neveila that is cooked with milk, and one of the issurim that is violated is for eating meat and milk, clearly implies that there is an issur to eat meat of ne'veila cooked with milk. This would seem to contradict the Rambam who says that the issur of eating wouldn't apply, but perhaps the issur of eating would still be a violation of hana'ah. The gemara would therefore compel one of two things: either meat of neveila cooked with milk would be an issur basar b'chalav to eat in which case it is against the Rambam, or an issur to benefit which would be against the dagul m'rvava.

Makos 21a - Is it Mutar to Shave?

The "heter" to shave using and electric shaver is completely dependent on the interpretation of our gemara. Much has been written to prove that shaving is prohibited, and R. Moshe has always been the person to blame the heter on. Many of the distinctions that are made in determining which shavers are permissible such as the closeness of the shave, lift and cut, rotary vs. screen - are all not so relevant. Those who forbid electric shavers would forbid all types, and those who permit should permit all types.

The gemara explains that there are 2 contradictory verbs used in conjunction with this prohibition: לא תשחית - Don't destroy (the hair), and לא יגלחו - Don't shave. The gemara explains that if we were to forbid all "destruction", then tweezers would also be forbidden. If we were to forbid all "shaving", then even scissors would be assur. However, the contradiction in terms yields an outcome that the only thing which is forbidden is גילוח שיש בו השחתה - when there is a combination of both shaving and destruction, which can only be achieved with a razor (הוי אומר זה תער). The Rivan (rashi) explains that it is only forbidden if it is normal to shave in that method and accomplishes the destruction of the hair by cutting it close to the root - tweezers destroy but are not normal to shave with, and scissors are normal but don't destroy.

The introduction of an electric shaver that shaves very close would likely qualify as "destruction". Although a razor may be slightly closer than the best of electric shavers, it is difficult to accept that the minor difference would be sufficient to no longer consider this a "destruction" of the hair. Therefore, the many poskim who considered electric shavers to be problematic (i.e. chofetz chaim in likutei halachos) is because they achieve the goal of both "destruction" and qualify as "shaving". The gemara didn't recognize anything that could achieve "destruction" other than a razor, but since the Torah doesn't use the term "razor" - we would be forced to include the electric shaver in the category of גילוח שיש בו השחתה which is assur d'oraysa.

I consulted R. Nota Greenblatt on this issue. He said that although R. Moshe never wrote a teshuva about this, he was adamant about it being mutar. "R. Moshe gave a haskama to every ne'bech that asked, but would under no circumstances give a haskama to the sefer hadras panim which prohibits electric shavers". He explained that R. Moshe didn't care about how much hair is left at the end, because he held that a תער - razor, is assur, anything else is mutar. The difficulty with this approach is that it doesn't say "razor" in the Torah? It seems that R. Moshe held that the contradiction between the pesukim led the gemara to conclude the type of action that is prohibited, not the result. It may be true that the result of an electric shaver is identical to that of a razor, but the mechanics used in the hair removal is completely different. The razor rubs against the skin and cuts the hair with one blade, whereas the scissors doesn't rub against the skin rather utilizes the rubbing of 2 blades together to cut. The electric razor which rubs close to the screen and therefore successfully cuts the hair, simulates the scissor action, not the single blade action. This scissor motion is categorized in the language of the shulchan aruch (181:9) as מספרים כעין תער (scissor motion but close as a razor) and is permitted. It should follow that by following R. Moshe's approach, there should be no reason to test the sharpness of the blade, or remove the "lifter", or discuss the closeness of the shave. Being that the mechanics of an electric shaver is a scissor action, they should all be permitted.

Perhaps those who test the shavers are concerned that if the blade is sharp enough to cut by itself, it may be doing just that. This approach is very difficult to understand since the blade is not rubbing against the skin, and not even rubbing against the screen (if it rubbed against the screen, it would sound like metal scraping against metal). Furthermore, the methods that are used to test the shavers don't seem to be valid forms of testing whether the blade could cut the much thicker and stiffer facial hair.

Makos 19a - Kedusha of Eretz Yisroel and Beis HaMikdash

The gemara discusses the concept of the kedusha of the land and whether the original kedusha remains even after the destruction of the beis hamikdash. Simply learning our gemara according to rashi would lead to the conclusion that the kedusha of E.Y. and Yerushalayim/mikdash are completely tied to one another, and that we conclude קדושה ראשונה קדשה לשעתה ולא קדשה לעתיד לבא. Therefore, any halachos that are tied to E.Y. such as Teruma and Ma'aser and halachos that are tied to Yerushalyim such as the issur to bring korbanos on bamos and the ability to eat ma'aser sheini in yerushalayim, no longer apply. The continuation of tithing teruma and ma'aser would only be d'rabonon. However, Tosafos has difficulty with this girsa and argues on both assumtions. Tosafos holds that the discussions in the gemara regarding the kedusha of E.Y. are completely independent of those regarding the kedusha of Yerushalayim. In both places the phrase קדושה ראשונה קדשה לשעת ולא קדשה לעתיד לבא can be used, but means totally different things. Therefore, Tosafos holds that although we have other sources that indicate that the kedusha of E.Y. no longer exists m'doraysa regarding teruma and ma'aser, the kedusha of Yerushalaim was never lost and remains strong. The conclusion of our gemara is that the kedusha of Yerushalayim is still in tact, yet one cannot eat b'chor and ma'aser in Yerushalayim due to a technicality - The ability to eat a b'chor is tied to the ability to sprinkle the blood. So long as there is no altar on which to sprinkle the blood, the b'chor cannot be eaten, and the ma'aser sheini can also not be eaten.

The approach of Tosafos is necessary to explain the position of the Rambam. The Rambam (Hil. Beis HaBechira 6:14-16) explains the process of sanctifying the beis hamikdash and courtyard. Rambam writes that when Ezra returned he only brought 2 korban todos as a symbolic kiddush, but in actuality the beis hamikdash and Yerushalayim retained their original kedusha from the time of Shlomo HaMelech. Therefore the Rambam rules that korbanos can be brought in the makom of the mizbei'ach even in the absence of a beis hamikdash, and kodshim can be eaten (kodshei kodshim in the courtyard and kadshim kalim in Yerushalayim). Then the Rambam writes:

ולמה אני אומר במקדש וירושלים שקדושה ראשונה קדושתן לעתיד לבא ובקדושת שאר ארץ ישראל לענין שביעית ומעשרות וכיוצ"ב לא קדשה לעתיד לבוא? לפי שקדושת המקדש וירושלים מפני השכינה ושכינה אינה בטלה, והרי הוא אומר "והשמותי את מקדשכם" ואמרו חכמים אע"פ ששוממין בקדושתן הן עומדים. אבל חיוב הארץ בשביעית ובמעשרות אינו אלא מפני שהוא כבוש רבים וכיון שנלקחה הארץ מידיהם בטל הכבוש ונפטרה מן התורה מן המעשרות ומן השביעית שהרי אינה ארץ ישראל

The Rambam holds that the kedusha of E.Y. is the "kibbush" - Jewish control, therefore when it reverts back to the goyim, the kedusha is lost. But the kedusha of the mikdash and Yerushalayim is attributed to the shechina which never leaves (the rambam concludes by making a distinction between kibbush (capture) and chazaka (control), and writes that Ezra took control of E.Y. which restored its kedusha even after it was taken back by the goyim - this approach if very difficult - see kesef mishna).

The Ra'avad adamantly disagrees with the Rambam and assumes that since ma'aser sheini cannot be eaten, the kedusha of Yerushalayim and the mikdash must be gone, just as it is gone from the rest of E.Y. Furthermore, even the opinion who holds that E.Y. retains it's kedusha would admit that Yerushalayim and the mikdash lose their kedusha upon the destruction of the mikdash.

There is a very practical difference between the Rambam and Ra'avad. Is one allowed to walk into the place of the mikdash nowadays, while they still have tu'mas meis. According to the Ra'vad there wouldn't be any issur kareis, but according to the Rambam it would be an issur kareis (of course, the areas which only have status of machane leviyim, one can technically go even as a tamei meis, so long as they are don't have tu'mas keri).

The kesef mishna points out that the Ra'avad's question on the Rambam from mishnayos that say that ma'aser sheini has to rot and cannot be eaten in Yerushalayim, is a difficulty with the Rambam. However, the Mishneh L'melech explains that the Rambam in Ma'aser Sheini (chapter 2) indicates that he holds like Tosafos in our sugya, that for technical reasons of comparing ma'aser sheini to be'chor it cannot be eaten. But the kedusha of Yerushalayim is still intact. The Magen Avrohom (561:2) writes explicitly that the Rambam will hold like Tosafos in our sugya. Therefore, he concludes - דברי הרמב"ם שרירין וקימים והנכנס עתה למקום המקדש חייב כרת שכולנו טמאי מתים

It is for this reason that those who go up on the har habayis after going to the mikva and waiting for sunset to remove tu'mas keri, have to be confident that they are not overstepping the machaneh l'viya, because by walking into the machane shechina even nowadays would be an issur karies (since our Tosafos answers up the opinon of the Rambam, thus compels the magen avraham to pasken like the Rambam, not the Ra'avad).

To conclude, it is important to see the Chasam Sofer (Y.D. 233: second paragraph, 234 d.h. v'hinei) where he puts the Rambam and Ra'avad in perspective. The Chasam Sofer considers the discussion of whether E.Y. and Yerushalayim retain their kedusha regarding mitzvos, completely independent of the mitzvah to live in E.Y. and Yerushalayim. The mitzvah of living there is connected to their inherent kedusha and being a place of tefila even before the existence of the beis hamikdash. The chasam sofer suggests that according to those who hold that the kedusha for mitzvos is lost, would not even have the excuse that R. Chaim Kohen (Tosafos in Kesubos) offers to justify not living in E.Y. because it difficult to keep the mitzvos. Since the mitzvos aren't considered d'oraysa, the excuse is not applicable so the requirement to live in E.Y. and Yerushalayim is even stronger. He enforces this point by citing the famous Rambam in sefer HaMitzvos 153 who says that the ability of klal yisroel to establish the calendar and yomim tovim (even nowadays) is dependent on Jews living in E.Y. -

נראה מדבריו (רמב"ם) כי אילו ח"ו לא ישאר שום ישראל בארץ ישראל אפילו יהיה יושבים ישראל בחו"ל מקרי כליון אומה ח"ו אחר שאין לנו סמוכים ואי אפשר לקבוע חדשים ולעבר

The chasam sofer considers the Rambam's statement that if Jews wouldn't be in E.Y. it would qualify as a destruction of the nation, to be because of our inability to establish the calendar. However, it is possible that the Rambam means something even deeper. Perhaps the status of "klal yisroel" is dependent on the existence of Eretz Yisroel, therefore if E.Y. would be empty without any Jews living there, it would impact the status of "klal yisroel" and they would lose that title.

Makos 15a - 17a - La'av HaNitak L'aseh

The gemara discusses the concept of l'av ha'nitak l'aseh - a negative prohibition that has a positive commandment to fix it and remove it, thereby replacing the malkus. The gemara says that there are 2 approaches to understanding the mechanics of לאו הניתק לעשה, one is קיימו ולא קיימו and the other is בטלו ולא בטלו. On 16a the gemara explores the la'avin that fit within the framework of בטלו ולא בטלו and can only come up with two (shiluach ha'kan and pe'ah). As the gemara discusses the issue, it becomes apparent that to fulfill בטלו ולא בטלו, one would not only have to lose the opportunity of fulfilling the a'seh, but it would have to be uprooted very actively by him. Rashi 15a explains based on this gemara that according to the opinion of בטלו ולא בטלו, we conceptualize a לאו הניתק לעשה as a prohibition which has two parts, the violation of the l'av and the uprooting of the a'seh. The la'av is not transgressed by the violation of the l'av until the opportunity to fulfill the aseh is destroyed. We consider the uprooting of the a'seh as part of the violation and therefore insist that it is done by him.

However, in the world of קיימו ולא קיימו, the gemara never develops the concept. But, rashi explains that according to this approach we view the l'av to be transgressed immediately upon violation, just that he has an opportunity to fix it. Rashi holds that the opportunity is a one time deal as soon as he walks into beis din (Tosafos suggests that it may be as short as a few seconds from the time of violation). Therefore, one would not have to uproot any possibility of fulfilling the l'av in order to receive malkus.

The opinion of the Rambam in this is very difficult and is already dealt with by the Kesef Mishna and Lechem Mishna. There are primarily 3 different Rambam's:

1. Sanhedrin 16:4 - Rambam uses term "kiyeim" implying he holds קיימו ולא קיימו, but then says that safeik warning is valid, which the gemara says fits with the opinion of בטלו ולא בטלו. The kesef mishna tries to suggest that the Rambam borrows the term "kiyeim" but really means bitul - very difficult to accept. Ultimately he says that the Rambam paskens קיימו ולא קיימו.

2. Sanhedrin 18:2 - Rambam also uses terms that implies he holds קיימו ולא קיימו, but doesn't seem to describe it according to our framework. The Rambam should have written that if he violates the la'v and doesn't fulfill the aseh, he gets malkus. Instead the Rambam writes a very confusing sentence - "He doesn't receive malkus unless he doesn't fulfill the a'seh". The Rambam seems to be describing as default that there is no malkus (unless he doesn't fulfill the aseh), which conforms better to the approach of בטלו ולא בטלו, but uses the term ki'yeim.

3. Na'arah Besula 1:7 - The Rambam writes that if he divorces his wife (that he raped), he doesn't get malkus because he can still fulfill the aseh. But, if she dies or marries someone else then he gets malkus. This Rambam seems to be the most difficult because it doesn't fit into either framework. According to the בטלו ולא בטלו approach, he should have to uproot the aseh himself, and according to the קיימו ולא קיימו framework he should get malkus even without the opportunity being lost by her dying or remarrying someone else.

This last Rambam really serves as the key for his approach (as the lechem mishna explains in hilchos sanhedrin 18). The Rambam understands that both קיימו ולא קיימו and בטלו ולא בטלו require the opportunity of the aseh to be lost in order to get malkus. The difference between them is whether he must uproot it himself (bit'lo), or if it is sufficient for the opportunity to be lost even when not his fault (lo kiymo). The Rambam paskens like the approach of קיימו ולא קיימו but interprets it differently than rashi and tosafos. Rambam understands that the la'av is tied to the opportunity of the a'seh being lost, and only then does he receive malkus. With this all the other Rambam's work out כמין חומר. The Rambam holds that even according to קיימו ולא קיימו, the la'av is not fully violated until the opportunity of the aseh is lost, therefore it still is considered a hasra'as safeik (sanhedrin 16). The Rambam doesn't write that you get malkus unless the aseh is fulfilled, because the default is that you don't get malkus unless the opportunity of the aseh is lost (sanhedrin 18). With this it is very clear why the Rambam holds that the woman he divorced must die or remarry for him to violate the l'av and receive malkus.

Makos 14a - Kareis for Milah

The gemara 13b says that milah and korban pesach are the only two positive mitzvos for which there is kareis, but since they are violated by being passive - שב ואל תעשה, there isn't any korban for an accidental violation. The gemara explains that the concept of shogeig being chayev a korban chat'as applies only to violations similar to avoda zara which are violated actively, but doesn't apply to aveiros that are violated passively (even if done intentionally there is kareis). Tosafos 14 asks why do we need to exclude milah from korban due to passive nature of it's violation, there is a more fundamental difference between milah and avoda zara. When one violates avoda zara, at the moment of violation they are obligated a korban (b'shogeig), but by milah there is never a "moment of violation" since at any point he can do mila until he dies? Tosafos seems to be asking that since we can never considered him to have violated milah, because he always has the possibility of doing it, their should be no possibility of bringing a korban? Tosafos answers that the moment a person becomes bar mitzvah and didn't have milah, he is obligated in the mitzvah and immediately chayev kareis for not doing it. True, by doing it later in life he will remove the status of kareis, but until then he is in fact chayev chareis.

The Maharatz Chiyus asks on Tosafos, even though he is in immediate violation, how can we even suggest the possibility of bringing a korban for this violation? If he would bring a korban for the violation and then later decide to do milah, he would retroactively remove the violation so that the korban will be deemed chulin - how can we ever allow a person to bring a korban when it is not clear that he will be obligated in that korban?

The Rambam and Ra'avad (Milah 1:2) disagree about the kareis by milah. Their argument seems to be the question and answer of Tosafos. The Rambam holds like Tosafos assumed in their question that the kareis (and violation) of milah is at the point where a person dies without getting milah, but until that point he isn't chayev kareis since he still has the ability to do milah. The Ra'avad holds like Tosafos' answer that the moment he can do milah and doesn't, he is immediately chayev kareis, but has the potential to remove the kareis by doing milah later. The language that the Ra'avad uses to express his position is - וכל יום עומד באיסור כרת, similar to Tosafos' language.

We must understand the opinion of the Ra'avad/Tosafos. When a person does passes the age of bar mitzvah without mila and then gets milah at the age of 50 - do we consider that to retroactively remove the issur kareis, as if it were never violated, or do we assume that he did the issur and was chayev kareis until the age of 50 but from here on in is no longer chayev kareis? It seems to me that according to the Ra'avad, the milah done later in life doesn't have retroactive powers, it merely removes the issur kareis מכאן ולהבא, for the future, but not for the past. With this we can answer the question of the maharatz chiyus. If not for the passive nature of the violation, it would have been possible to bring a korban for this violation even after doing milah. Doing milah at the age of 50 wouldn't remove the violation until then, therefore if he violated b'shogeig he would be obligated to bring a korban even after getting milah done for the years of violation until then. It is only because milah is a passive violation and not similar to avoda zara, that there is no obligation to bring a korban.

A proof to this approach is the migdal oz who tries to justify the position of the Rambam by making him somewhat closer to the ra'avad. The migdal oz suggests that the Rambam agrees that he is chayev kareis immediately, but since he always has the ability to do milah and remove the kareis, the absolute violation can only be by dying without milah. He then continues to compare this to a לאו שניתק לעשה, where the la'av was violated but can be fixed. Based on this comparison, it is clear that doing milah at the age of 50 isn't a retroactive fix. Just as if one steals and then returns, he doesn't fix it retroactively and it only is a fix from the point of return, so too when he does milah it is not a retroactive fix and only serves to fix from that point forward.

Makos 13b - Teshuva Works for Kareis But Not Misah of Beis Din

In the Braisa quoted by the gemara, R. Akiva holds that there is malkus for those who deserve kareis, but no malkus for those who deserve capital punishment. The Braisa (according to Ravina at the end of the page) explains the rationale is that teshuva works to achieve atonement in shamayim and therefore works to exempt from kareis, but doesn't work to exempt from the death penalty in beis din. Therefore, the pasuk which says כדי רשעתו- משום רשעה אחת אתה מחייבו, only prevents malkus for capital sins because the death penalty is inevitable, but wouldn't apply to kareis since teshuva can exonerate him from kareis.

The Noda B'Yehuda (kamma, o.c. 135) raises an interesting question. Why doesn't teshuva work to exempt from mi'sas beis din (capital punishment)? One possibility is that beis din doesn't recognize teshuva because that is purely between man and G-d. But, this is inaccurate. Beis Din certainly recognizes teshuva and acts based on it. If one became passul l'eidus, beis din can restore his believability as a witness after they are convinced that he did an adequate teshuva. So why can't they exempt from misah after he does teshuva? Another suggestion could be that Beis Din can't delay his judgement because he MAY do teshuva, so there is no case where he would ever have the ability to do teshuva before being killed. This is also not true. If one violated shabbos then spent the next 5 years doing serious teshuva, even if the witnesses show up in court at the end of 5 years, he would be convicted and killed. Why? The Noda B'Yehuda explains that had the essence of teshuva been torture and suffering, we would have had a tradition teaching us the precise amount of suffering needed for atonement on each aveira, and beis din would have exonerated the criminal after assessing that he did an adequate teshuva. However, the essence of teshuva is in the heart and can be fulfilled in a רגע כמימריה - in an instant. Therefore, if teshuva would help to exempt from capital punishment, the beis din would NEVER be able to carry out capital punishment because there is always the possibility that the person did teshuva. The very fact that the Torah demands capital punishment for certain aveiros forces us to say that there is no possible repentance to acquit from capital punishment. The rationale would be that the Torah wants the death penalty to be a deterrent from the aveira, and would only work as a deterrent if there is no way out.

However, anything which is dependent on Hashem such as kareis, teshuva would certainly work for. The Maharal Ben Chaviv (kunteros HaSemicha) explains that even when the mishna says that malkus helps to exempt from kareis, it really means in conjunction with teshuva. Malkus alone without teshuva would not exempt from kareis. Teshuva alone without malkus would lessen the severity of the karies, but teshuva together with malkus would remove it entirely.

On the side of the shulchan aruch in hilchos aveilus there is a commentary called "milu'im" (not printed in all versions). In Y.D. 340 he elaborates to explain the opinion of the Rambam (Hil. Avoda Zara 4:6) who seems to hold that even after an entire city does avoda zara with warning and witnesses, they have the ability to do teshuva and be exonerated from being killed as an Ir HaNidachas. This Rambam is very difficult because it seems to contradict the premise of R. Akiva that teshuva doesn't remove capital punishment? The Mi'luim explains that although teshuva doesn't exonerate for capital punishment which is meant to serve as a deterrent, it works for an ir hanidachas. The killing out of the Ir HaNidachas is not to serve as a deterrent to other cities (it doesn't say by ir hanidacha - והנשארים ישמעו ויראו or ובערת הרע מישראל which are pesukim that indicate the purpose is to deter others from following suit), rather it is a direct punishment that the city deserves for their public and communal violation of aveirah. Teshuva works for any time of punishment that is not meant to serve as a deterrent and therefore works even for an ir hanidachas.

Makos - Can One Be a Go'el Ha'dam to Kill Their Grandfather?

The gemara has a discussion whether a son is allowed to serve as a go'el ha'dam. The conclusion of the gemara is that Reuven cannot serve as a go'el ha'dam to kill Yacov for murdering Shimon, because a son may not kill his father even as an agent of the beis din. But, the son of Yacov may avenge his father's killing, even if the murderer was Yitzchok - the father of Yacov.

There is a difficult Rambam (Hilchos Rotzei'ach 1:3) writes this din in the halachos of killing intentionally, not within the halachos of sho'geig -

האב שהרג את בנו, אם היה לנהרג בן הר"ז הורג אבי אביו מפני שהוא גואל, ואם אין לו בן אין אחד מן האחין נעשה גואל הדם להמית את אביו אלא בית דין ממיתין אותו, ואחד הזכר ואחד הנקבה בגאולת הדם

The Rambam records this din within the context of the go'el ha'dam serving as the agent of the court to carry out capital punishment to one who killed intentionally. Why does the Rambam not place this halacha within the section dealing with accidental killings, as it seems to be within our gemara? [See aruch la'ner who offers an elaborate explanation. Simply, the Rambam understood from the question that the gemara asked regarding the son serving as an agent for the court, that the entire context of the din is regarding the son serving as an agent of the court - not a freelancing go'el ha'dam].

Rashi explains that one may kill his grandfather because שהוא בן בנו של רוצח ואינו מוזהר על כבודו - "not obligated in the honor of a grandfather". This doesn't seem to be accurate because the Rama y.d. 240:24 paskens that one is obligated in the honor of their grandfather, just not as much as the honor of their father. The source of this is a Midrash that is quoted by Rashi in Chumash to explain the pesukim, indicating that the mitzvah to honor a grandfather is also m'doraysa. How can Rashi write here that one can serve as a go'el ha'dam to kill their grandfather because they aren't obligated to honor him? In truth, Rashi in our sugya is the source of the maharik who is quoted by the Rama that one isn't obligated to honor their grandfather (gr"a 33 and gilyon of r. shlomo eiger), but is rejected by the Rama in light of Rashi in chumash. How can we reconcile the contradiction in Rashi?

I would like to suggest that when one acts as a go'el ha'dam to avenge the blood of their relative, they are in essence honoring the deceased by avenging his blood. Therefore, when the deceased is his father, he has the right to kill his grandfather to avenge the blood of his father. Even according to Rashi in chumash that one has to honor their grandfather, the honor due to a father trumps the honor due to a grandfather. Rashi in our gemara is saying that one isn't commanded to honor his grandfather BECAUSE he is killing the grandfather to avenge the death of his father which is kavod to his father. It is for this reason that the braisa speaks in a case where he is killing the grandfather to avenge the blood of his father, and not a case where he is killing the grandfather to avenge the blood of his brother because to honor his brother he couldn't violate the honor due to his grandfather.

Perhaps the Rambam holds that if the grandfather killed the father accidentally, it wouldn't be such a kavod for the father to avenge his death by killing the grandfather since it was just an acciddent. That is why the Rambam records this din in the context of an intentional killing, where it would certainly be a kavod for the father to avenge his death by killing the grandfather who murdered intentionally.

Makos 11b - Leaving Ir Miklat for Pikuach Nefesh

The mishna says that a person who killed b'shogeg cannot leave the city of refuge even to testify for a mitzvah purpose, "and not even to testify for a capital case, and even if the Jewish people need him, and even a general of the army like Yo'av Ben Tzeruya cannot ever leave". Many commentaries ask that this seems to contradict a famous principal that nothing stands in the way of pikuach nefesh. Why would he not be able to leave if there is someone's life at stake, and he might be able to save him?

The Cheshek Shlomo (Rav Shlomo Vilna) interprets the mishna to be saying something very different. He assumes that surely one would leave the ir miklat to save the life of another Jew, but he would be required to return. The mishna is only addressing if the exemption to leave temporarily would be a permanent exemption, to which the mishna says - אינו יוצא משם לעולם, meaning, he cannot leave permanently (rather than meaning that he cannot leave ever).

The Ohr Sameiach takes a different approach. Although by leaving he may be saving the life of one or many Jews, he would also be risking his own life. One is not required (and according to this approach perhaps not even allowed) to risk their life to save the life of another. Therefore, we can't impose on the one who killed b'shogeg to leave the ir miklat to save the life of another Jew or even the entire Jewish people, since by doing so he would inherently be risking his own life. R. Meir Simcha is medayek this from the language of Rambam

ואפילו כל ישראל צריכין לתשועתו כיואב בן צרויה אינו יוצא משם לעולם עד מות הכה"ג ואם יצא התיר עצמו למיתה

The Rambam makes a point of saying that by leaving, even for the best of reasons such as saving the life of a Jew, he is being matir himself l'misa - causing his own death. Since he isn't obligated to risk his own life, he isn't obligated to leave.

We generally assume (based on a beautiful teshuva of R. Moshe in Igros Moshe) that one is not obligated to risk their life to save another, but has the prerogative to choose to do so (and it would be considered a big mitzvah). According to this assumption, the Mishna and Rambam would only be saying that he wouldn't be obligated to leave, but couldn't be saying that he isn't allowed to leave. The problem is that the language of both the mishna and Rambam imply that it is forbidden to leave, even for pikuach nefesh purposes.

See Aruch HaShulchan 425:57 who raises this very question. He understands that Rambam like the Ohr Sameiach and therefore says it should be permitted for him to leave for pikuach nefesh purposes, just that he isn't obligated to do so.

Makos 10a - Rebbi Goes with Talmid to Exile

The gemara says that in the עיר מקלט we have to take care of both his physical needs (markets, water source...) and spiritual needs. The gemara says:

תנא: תלמיד שגלה מגלין רבו עמו שנאמר "וחי" עביד ליה מידי דתהוי ליה חיותא

The Rambam has a beautiful way of articulating this Halahca (Hilchos Rotzeiach 7:1):

תלמיד שגלה לעיר מקלט מגלין רבו עמו שנאמר "וחי" - עשה לו כדי שיחיה וחיי בעלי חכמה ומבקשיה בלא תלמוד תורה כמיתה חשובין

This is similar to the mashal of Rabbi Akiva in Brachos who compares pulling oneself away from learning to pulling a fish out of water.

Makos 9b - More Killers = More Cities of Refuge

The gemara says that in gil'ad there were many murderers, therefore the amount of cities of refuge for the ratio of the population, was greater. Many meforshim raise the question that the city of refuge is for accidental killing and shouldn't be related to the number of cold blooded murderers?

1. Tosafos answers based on the "mashal ha'kadmonim" that the more intentional killers, the more it was necessary for Hashem to arrange for their accidental death, thereby increasing the number of accidental killings. Therefore, the increased number of murderers demands an increase in the numbers of cities of refuge.

2. Maharsha explains based on R. Yossi Bar Yehuda in the Mishna - immediately following the murder whether intentional or accidental, the murderer would always run to the city of refuge. It was necessary to increase the number of cities for the intentional killers to run right after they killed.

3. Ramban in chumash (quoted in margin) writes that the more intentional killers there are, the more they make the killing seem as a mere accident. Therefore, as the killers increased, it became necessary to increase the numbers of cities of refuge.

4. I would like to suggest another approach, based on the Beis Halevi in Parshas Noach. The more corrupt people become, the more corrupt the world becomes. Laxity in abstaining from aveiros has an influence on society being more liberal and lax with aveiros. Therefore, the more murderers their are who kill intentionally, the less value their is for human life. It would follow that people would be less careful and more negligent with lives of others, leading to more accidental killings.

There seems to be a theological problem with all these approaches. The mitzvah to set up cities of refuge was given before the inhabitance of the east side of the Jordan. By their being a mitzva to set up multiple cities of refuge, because there will in the future be more murders, it became a self fulfilling prophesy and borders on the killings being predestined. But, based on the Rambam's classical approach that a decree on the public doesn't take away from the bechira chafshis (free choice) of the individual, it all works out.

Makos 7a - Sanhedrin and Batei Dinim Outside Eretz Yisroel

The mishna says that sanhedrin applies both in E.Y. and Chutz La'aretz. The gemara says that the source of this din is the pasuk - והיו אלה לכם לחוקת משפט לדורותיכם בכל מושבתיכם, meaning that we have batei dinim בכל מושבתיכם even in chutz la'aretz. But the pasuk by appointing judges implies that it is only a requirement in eretz yisroel - שופטים ושטרים תתן לך בכל שעריך אשר ה' אלקיך נותן לכך לשבטך, implies only in the land that Hashem gave over to the shevatim? The gemara answers that in E.Y. there are batei dinim in each "p'lach" (province) and each "ir" (city), but in chutz la'aretz there are only batei dinim in each province, not in each city.

The Rambam (Sanhedrin 1:1) writes that there is a mitzvas aseh from the torah to appoint judges in every medina and p'lach. He then qualifies this (halacha 2) - the halacha to set up batei dinim in every p'lach and every ir, is only in E.Y. but in C.L. (chutz la'aretz) -אבל בחוצה לארץ אינן חייבין להעמיד בית דין בכל פלך ופלך . The kesef mishna struggles with the Rambam and says that if he had the same girsa in the gemara as we do, then rather than saying you don't have to set up courts in every p'lach, you would have to add the word "אלא בכל פלך ופלך".

However, the Lechem Mishna points out that the Ramban (Parshas Shoftim) seems to understand from the Rambam that there is no mitzvah to set up batei dinim in chutz la'aretz. The Ramban quotes the Rambam to hold - וביאר בכאן שישימו השופטים בכל עריהם כאשר יתן להם וכו' כי בחוצה לארץ אינם חייבים למנות להם בית דין אבל כאשר יצעק המעוות יעמדו עליו הראויים לשפוט וכו' או יעלה לארץ בזמנה ושם ישפטוהו וכו' ולפי"ז אין ישראל שבחוצה לארץ מצווים למנות להם דיינין בעיירות וכ"כ הרב רבינו משה

The Ramban seems to have understood from the Rambam that in chutz la'aretz there is no chiyuv to set up batei dinim in every p'lach, and certainly there is no need to set up in every city. Meaning, the Rambam holds that in chutz la'aretz there is no need to set up batei dinim at all. The Ramban proceeds to ask on the Rambam from our gemara which clearly holds that there is a mitzvah to set up sanhedrin in chutz la'aretz, just that it is sufficient to be in every province, not every city.

It seems that the Ramban already realized the answer to his question when he presented the opinion of the Rambam. The mitzvah to set up courts only applies in E.Y. The pasuk in parshas mas'ei mentions that there will be courts בכל מושבתיכם, but doesn't command this as a mitzvah. The Ramban holds that according to Rambam, for practical purposes it would be necessary to have courts even in C.L. but it would not be a mitzvas a'seh. This is meduyak in the mishna. It doesn't say that there is a mitzvah to set up courts, rather that the Sanhedrin is "noheges" in E.Y. and C.L. Both the Rambam and Ramban agree that it is necessary to have courts in chutz la'aretz, but the Ramban considers this part of the mitzvas a'seh, whereas the Rambam doesn't.

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Another point is that the Ramban (Shoftim) writes that this mitzvah no longer applies since we no longer have semicha - כיון שכל המשפטים בטלים מן התורה וכו' ואנן הדיוטות אנן וכו' אין אנו חייבים במצות מינוי השופטים מן התורה כלל. Clearly, the Ramban holds that this mitzvah only applies when it is possible to appoint those with se'micha, but afterward there is no mitzvah. The Ramban in Parshas Ma'sei quotes from the gemara that after the destruction of the beis hamikdash there is no longer a Sanhedrin in E.Y. or C.L. But, the Ramban asks that the language of לדורותיכם בכל מושבותיכם certainly implies that there should be batei dinim after the churban of the beis hamikdash? The Ramban answers that the ability to judge capital cases was lost with the destruction of the beis hamikdash, but there is still a mitzvah to set up courts to judge penalty cases, monetary issues and give malkus even after the churban. That is why the torah uses the language of לדורותיכם בכל מושבותיכם, to teach that even after dinei nefashos can no longer be judged, there must still be courts set up to judge the other things. The Ramban seems to hold that the mitzvah of setting up judges applies literally לדורותיכם בכל מושבותיכם, in all generations. Even after the churban there is a mitzvah of שופטים ושוטרים תתן לך, a mitzvah aseh to set up courts to judge whatever can be judged. However, once we lost the mesorah of semicha and were no longer able to set up "judges" (only "hedyotos"), the mitzvah becomes impossible to fulfill. The Ramban holds that the mitzvah is completely no'heig l'doros, just that it is impossible to fulfill when there are no se'muchin. The Ramban doesn't mean to say that we aren't technically chayev in the mitzvah nowadays, he just means to say that we aren't practically chayev since we don't have semuchin to appoint.

The difficulty with the Ramban is that since there is a mitzvah d'oraysa to set up courts both in E.Y. and C.L. and in all generations, why is there a difference between E.Y. and C.L. regarding batei dinim in each city? The Ramban (shoftim) writes that the idea of batei dinim in each city and each province is to create a system of lower and higher courts, so that the beis din of the province can override the local beis din. Perhaps the Ramban understands that the mitzvah of setting up courts in chutz la'aretz is to make sure that each locale has the courts that it needs to judge and maintain justice. In chutz la'aretz it is purely a practical requirement to make sure that there are enough courts to judge the people. However, in E.Y. the responsibility is to set up a court SYSTEM for the purpose of being able to ensure a ושפטו את העם משפט צדק - the ability to differ to a higher court and ensure that "mishpat tzedek" is being achieved.

Makos 6a - One Witness who is Passul in the crowd

The mishna says that if there is a group of witnesses and just one is a passul eid, the entire group is invalidated. R. Yossi and Rebbi seem to argue in the mishna if the entire group would be passul, even if the one person in the group who is passul didn't intend to be a witness. We pasken like R. Nachman who holds like Rebbi that the group would only be invalidated if the passul eid intended to be a witness. But, Tosafos asks on Shmuel who paskens like R. Yossi, how can we ever allow a mesiras ha'get or kiddushin to be performed in a large crowd that contains relatives - one relative even if he doesn't intend to be an eid can invalidate the entire group? From this Tosafos says that according to the conclusion of the gemara, a passul eid can only invalidate the group if he actually comes to court to testify, but by simply watching it will not have an impact. Therefore, in a wedding hall, even if a relative would intend to be a witness, he wouldn't invalidate the group since he never comes to testify. The Rosh quotes the Ramban who holds that only when the pessulim intend to be part of the group with the ke'sherim, and the ke'sheirim with the pessulim, do they combine to be one group. But, the Rosh himself rejects this approach and holds that if they both testify in beis din, it isn't relevant whether they intended to be part of a group together and the entire group would be invalid.

The Rosh himself (to explain the tosefta) writes that the din of one passul invalidating the whole group only applies when they are all "invited" to be witnesses. But, if the lender would designate witnesses, the fact that a passul eid will also be watching and intending to be an eid, it won't have any impact and wouldn't invalidate the group. Although the shach (c.m. 36:16) holds that designating witnesses doesn't work when the passul eid watches with the intent to be an eid, the ketzos (36:6) rejects the shach based on the explicit language of the Rosh in our sugya.

The sevara of the Rosh seems to make sense by a loan, but not by kiddushin. A loan is in control of the lender, therefore it is logical to say that he has the power to pick and choose his witnesses. Therefore, the designation of the lender works, as the Rosh writes. But a murderer isn't in control to designate his witnesses and decide who should and who should not be witnesses, rather everyone who watches is potentially a witness if they intent to be one. Similarly, by gittin and kiddushin, why should it be in the control of the husband to pick his witnesses (although the sevara of Tosafos that they would only invalidate the entire group if they actually testify in court, would still apply)?

The Ketzos HaChoshen (also in avnei mi'luim) offers a very interesting peshat and holds that for gittin and kiddushin this entire din doesn't apply. He proves from the fact that kiddushin isn't binding if the bride and groom are unaware of their existence such as when they are hiding behind a fence, that they must have an awareness and acceptance of the eidim for them to qualify as eidim. Therefore, the entire din of נמצא אחד מהן קרוב או פסול עדותן בטלה wouldn't apply to kiddushin since the chassan and kallah would obviously only intend to include those who are kasher. The only cases where we would ever have an issue of נמצא אחד מהן קרוב או פסול עדותן בטלה would be when eidim aren't necessary to make it go into effect (i.e. gittin and kiddushin) and the eidim aren't designated. But by kiddushin and gittin even if the eidim aren't designated, the passul eid wouldn't have the ability to invalidate anything since only those recognized by the chosson and kallah can be eidim, and they would surely only have in mind to include valid witnesses.

We see from here that there is absolutely no reason to be machmir for the chosson and kallah to announce that they are designating the eidim: 1. because they are essentially announcing this when the eidi kiddushin are called up. 2. even if they had to designate eidim, they wouldn't need to announce it to the crowd. 3. they are never testifying in court (so according to tosafos there isn't any problem). 4. for gittin and kiddushin even if they didn't think about specific eidim, the passul eidim are automatically excluded since the chassan and kallah must be aware of the eidim for them to qualify as eidim (ketzos).

Makos 5b - כאשר זמם ולא כאשר עשה by Malkus

Tosafos in Baba Kama 4b says that the concept of כאשר זמם ולא כאשר עשה, which means that after the person has been killed, the eidim can't become zomimin, doesn't apply to monetary cases. Tosafos offers 2 rationals for this: 1. Money can be returned so it is never too late. 2. The reason we can't be mechayev after the person has been killed by the court is אין עונשין מן הדין but by money we can learn from a kal v'chomer that after it has been paid they should certainly become zomimin. Tosafos seems to hold that it is only for monetary issues where we don't apply this concept, but by malkus we would apply this concept. Meaning, if eidim were mechayev someone malkus and he already received the lashes, they can't become zomimin.

Rambam (Hil. Eidus 20:2) disagrees with Tosafos and holds that even by malkus they can become eidim zomimin after the person they were testifying about had already received the malkus. Although the Ra'avad disagrees with the Rambam, the Kesef Mishna comes to stick up for the Rambam with 2 very interesting approaches. His first approach is that the reason we don't turn them into eidim zomimin after the person has been killed is that their crime was to severe to allow them to have a kapara by becoming zomimin. But, malkus which is not so severe, we allow them to have a kapara by becoming zomimin. His second approach is that when someone was actually killed, he must have been guilty because hashgacha wouldn't allow an innocent life to be lost, but malkus could have been given even though he didn't deserve it so they can still become zomimin. Nonetheless, these reasons aren't sufficient to explain the opinion of the Rambam, since it is not the derech of the Rambam to create distinctions in sevara that aren't muchrach in the gemara.

Rav Chaim Soloveitchik offers a brilliant approach to the Rambam. Malkus is very different than capital punishment. Malkus only has a status because he violated an issur that is mechayev him malkus, and that he received the lashes in beis din, which gives it a status of malkus. If one would receive malkus without there being an absolute chiyuv of malkus, it would not longer qualify as malkus. Therefore, if later realize that the person who received malkus didn't deserve it, it would retroactively not be considered malkus - although he was hit 39 lashes, he never received "malkus". This is not the case by the death penalty, because even if someone retroactively wouldn't have deserved the death penalty, they still received the death penalty. In a case of eidim zomimin, where their testimony is retroactively uprooted, the consequence would be that the person received malkus or mi'sah wrongfully. Regarding the mi'sah, it can't be undone retroactively, therefore based on the concept that הרגו אין נהרגין we can't punish the witnesses as eidim zomimin. But, by malkus where by uprooting their testimony the malkus would retroactively turn into ordinary lashes, it is still as if he never received malkus - so they can still become eidim zomimin.

The basic premise that malkus requires a chiyuv malkus is also found in the kuntres ha'smicha in the discussion of semicha between the maharal ben chaviv and the chachmei tzefat (include mahari bei rav). The whole incentive to restore semicha was to give malkus to those who are chayev kareis, but one of the dissenting arguments is that since there was no warning of malkus and therefore no chiyuv malkus, it doesn't qualify as malkus.

The distinction of Rav Chaim explains the fact that we find in the gemara סנהדרין לז - אע"פ שבטלה ד' מיתות, דין ד' מיתות לא בטלה - substitutions post the destruction of the beis hamikdash for capital punishment. But we don't find that one who is chayev malkus would also be punished with malkus. Perhaps the distinction is that sekila and serei'fa that would occur outside of beis din would still be considered to have the din of סקילה ושריפה, but malkus outside of beis din wouldn't have a status of malkus and therefore it wouldn't accomplish anything.

Makos 5b - Like they tried to do, BUT did not do

The famous yet non-existent drasha of כאשר זמם - ולא כאשר עשה - Rashi quotes it both in chumash and on the gemara 2b (top). But, in the gemara we don't find this drasha out all. The gemara expresses the concept using the term - הרגו, אין נהרגין - if they succeeded in killing the ni'don, they aren't killed. The closest thing we have as a source for this din is that the mishna interprets the pasuk of כאשר זמם לעשות לאחיו implies that the person their "brother" is alive and well. Why does Rashi (and tosafos 2b) seem to cite their own drasha from the words כאשר זמם?

The Poras Yosef 5b points out the the requirement of the "brother" being alive, which the mishna seems to consider necessary, would imply that even if he wasn't killed because of the testimony, but even if he just died due to natural causes, the witnesses couldn't become eidim zomimin. The Ritva points out that this is not true. The Ritva writes that the real source that we can't create zomimin if the ni'don has already been killed is that the Torah describes כאשר זמם and we can't include in that more than it says (since we can't learn mi'sah from a kal v'chomer, as it says in the gemara). Perhaps it is for this reason that Rashi and Tosafos don't want to quote the pasuk of "a'chiv" which implies he is still alive, because it would then seem to include even cases where he just dies, therefore they quote כאשר זמם, ולא כאשר עשה. Rashi and Tosafos don't mean that this is a drasha, rather they are saying that since the pasuk only speak of what they tried to do, the only possibility of including what they actually did would be a kal v'chomer, but since we cannot learn this from a kal v'chomer, it doesn't qualify as a case of zomimin.

The Meshech Chochma offers a very nice explanation to justify the concept of ולא כאשר עשה. It is likely that if witnesses succeed in causing a killer to receive capital punishment, his family will hire false witnesses to turn the first group into zomimin. So long as they haven't succeeded in their act, the family would be smarter to hire false witnesses to simply contradict the first group, creating contradictory testimony, which would force the beis din to acquit the killer. This would be a safer system since there wouldn't be a chance of another group turning the second group into zomimin. Therefore, if there is a second group trying to turn the first into zomimin, we trust their testimony. But, after the killer has been executed, they want revenge and would have incentive to hire false witnesses - that is why we cannot believe the second group after the killer has been executed.

Makos 5a - Chiddush of Eidim Zomimin

The gemara in Baba Kama 72b has a discussion whether eidim zomimin are passul retroactively from the time they gave their false testimony, or only from here on in, from the time that they are turned into zomimin. Rava holds that they are only passul from now on because the concept is a chiddush, why believe the latter more than the former, therefore we only invalidate them from the moment of chiddush. Abaye disagrees and holds that we invalidate them retroactively, implying that it is not a chiddush at all.

The mishna in Makos says that eidim zomimin only applies when the testimony to invalidate the first group is a testimony on their time and place, but not when the testimony is on the murderer or victim. There seems to be a machlokes Rambam and Tur in understanding this din. The Rambam (Hilchos Eidus 18:2) that eidim zomimin only applies when the second group is only testifying about the first witnesses, but if they are testifying about both the witnesses AND the murderer and victim, it is considered just contradictory testimony (trei u'trei), not a case of zomimin. Rambam seems to hold that it only qualifies as a case of eidim zomimin if it models exactly the case spoken in the Torah, but if it includes a contradictory testimony, such as claiming that the murderer or victim weren't even present, it doesn't qualify as a case of zomimin. However, the Tur (c.m. 38) writes that the rationale to believe the second group more than the first is that the second group are character witnesses, they are undermining the people, not just their testimony. He compares this to testifying that they are mechalilei shabbos, or passul for eidus - they are believed more since they are testifying about the first witnesses themselves. The Ramban (Devorim 19:19) says exactly the same thing. The Tur and Ramban would seem to hold, based on their rationale that so long as the testimony of the second group includes character testimony and not just testimony contradicting their testimony, the second group is believed. The Lechem Mishna holds that the machlokes between the Rambam and Tur (ramban) is whether according to Abaye who holds that eidim zomimin are passul retroactively, agrees that it is a chiddush or holds that it is rationale. Rambam holds that it is a chiddush and therefore must directly resemble the case in the Torah (see p'nei yehoshua who makes the Rambam consistent with the Tur, just that if they testify that the eidim were in the same location as the murderer/victim, even if it is a different place, it isn't zomimin since the original group may have messed up about the place but did indeed witness the murder). The Tur (ramban) hold that it is perfectly rationale since they are giving character testimony, therefore if they add in their testimony a contradiction to the original testimony, it doesn't undermine the aspect of zomimin.

The Rambam seems to go li'shitaso that it must resemble the case of the Torah exactly where the second group is only testifying about the location of the first group and not saying anything about the eidus. In Pirsuh HaMishna the Rambam writes:

ולא באו להעיד על עצמה של עדות לא לקיימה ולא לבטלה לפי שהם אומרים אנו אין אנו יודעים אם זה הרג כמו שאתם חושבים או שלא הרג, ואין עלינו לדעת עדותם, אבל מה שאנו מעידים שאתם הייתם במקום פלוני ביום פלוני לפיכך שומעין דבריהם ויהרגו העדים

The Rambam seems to hold that the second group must focus their testimony only on the time and location of the first group, but not make any comment about the testimony of the first group. Of course, it is impossible for them to actually know anything about the testimony since they were in a different place, but the nafka mina may be where the second group were located in the middle between the murder scene and the first group. If the second group would testify that the first group could not have seen the crime - that is zomimin. But, if in addition the second group confirms or contradicts the crime, it undermines their believability and wouldn't be able to turn the first group into zomimin.

Makos 4b - La'av She'ein Bo Ma'aseh

The gemara says that R. Yehuda and R. Akiva argue whether there is malkus for a la'av sh'ein bo ma'aseh. We pasken like R. Akiva that there is no malkus for a la'av that doesn't require an action. The gemara considers both motzi shem rah and eidim zomimin to be a l'av she'ein bo ma'aseh. However, the Aruch La'ner discusses what the halacha is if a person would be motzi shem rah against his wife, in writing, without speaking. He concludes that even according to the Rambam who holds that a witness cannot send his testimony to beis din in writing, if he would actually write it in the presence of the beis din, it would qualify as motzi shem rah. He supports this conclusion with the Node B'Yehuda (kama c.m. 30) who says the same thing, within the context of discussing an oath taken in writing (see also r. akiva eiger who discusses this in a teshuva). Based on this the Aruch La'ner asks a very strong question on the Magid Mishna. The M.M. (Sechirus 13) holds that when we exempt a לאו שאין בו מעשה from malkus, it only includes la'avin that cannot be violated with action, but any la'av that can be violated with action, would receive malkus even if violated passively. Now, since both eidim zomimin and motzi shem rah can be violated with the action of writing, why does the gemara consider them to be לאו שאין בו מעשה? The Aruch Hashulchan himself points out that the sha'ar hamelech (chometz u'matza 1) already rejects the opinion of the magid mishna. He himself limits the suggestion of the magid mishna to the prohibitions where the Torah itself describes an action in the la'av such as "do not muzzle". But, when the description of the l'av in the Torah is passive, one would not receive malkus for a passive violation even if it can be violated actively. Since motzi shem rah is described in the Torah passively, it is a לאו שאין בו מעשה even according to the magid mishna.

After establishing that a לאו שאין בו מעשה that is violated passively doesn't get malkus even if it can be violated actively, we can still ask about prohibitions that are violated with in action, but the actual issur is violated passively. For example, when one swears to eat a loaf of bread and throws it into the ocean, he may have done an act, but his violation is still passive - not eating the loaf of bread (see steipler in shavuos). Tosafos writes that R. Akiva who holds that there is no malkus for a לאו שאין בו מעשה, still holds that there would be malkus for allowing kelayim to exist. Tosafos is forced to say that the malkus for מקיים כלאים בכרם isn't by just having it, rather for building a fence to protect it. It seems from Tosafos that although the actual issur is to be מקיים כלאים, which is by definition passive, when it is violated through an action such as by building a fence, there would be malkus for it.

Makos 4b - La

Makos 4a - Tevila in drawn Water that falls into a mikvah

רש"י בד"ה לא עלתה- פירש דשמא בא זה ראשו ורובו במים שאובין וזה אחד מן הפוסלין את התרומה. וביאר הריטב"א דכוונתו ליישב קושיית התוס', שהרי הקשו התוס' בד"ה אמר, דלא שייך כל החשש דשמא כל המים קוו וקיימי במקום אחד שהרי המים נטהרו בהשקה ונצטרפו להיות מי מקוה ממש. ובאמת גם רש"י סובר שאין חילוק בין השקה לטהר המים מטומאה, והשקה להשוות המים למי מקוה עצמה דמהני בהו טבילה. ולכן כתב רש"י דודאי אהני השקה ואילו היה האדם טמא וטבל במקום שנפלו המים עלתה לו טבילה מדאורייתא. מ"מ לענין הדין דרבנן דכל הבא ראשו ורובו במים שאובין פסול לתרומה, לא אהני השקה מדרבנן דעדיין שם שאובין עלייהו לענין זה [ועיי"ש בריטב"א מש"כ עוד בשם הראב"ד ליישב קושיית התוס' אף לגירסא דגרסי מים].

והקשה הריטב"א לפרש"י חדא מלישנא ד"לא עלתה לו טבילה" הול"ל שפוסל בתרומה לחוד. עוד הקשה מהגמ' לקמן דקאמר בברייתא סד"א דדוקא באדם טמא דאוקי גברא אחזקתיה הא אדרבה כיון דודאי נטהר מטומאה דאורייתא ורק מספק שמא בא ראשו ורובו במים שאובין אתה בא לפוסלו, אל תפסילנו מספק. עוד הקשה אמאי אהני השקה לעשות המים כמקוה שיכול לטבול בהו, ואעפ"כ עדיין נחשבים כשאובין לענין גזרה דרבנן, כלומר אמאי החמירו רבנן בגזירתם יותר מדין תורה לגבי גוף המים.

בקושיא שניה של הריטב"א, ראיתי במגיה על הריטב"א שהביא מהעונג יו"ט (ס' ע') דדעת רש"י הוא דמחזיקינן מאיסור לאיסור, וכיון דהאי גברא היה טמא ועכשיו הוא פסול לתרומה אע"פ שבינתיים טיהר את עצמו מטומאה דאורייתא אכתי יש בו חזקת טומאה. ואפשר ליישב בדרך אחרת דכל הקשיא מעיקרא ליתא, שהרי בברייתא אף לפרש"י גרסינן "יין" ולא "מים" והתם לא שייך כל הענין של ראשו ורובו במים שאובין, ועל כרחך מיירי התם באדם טמא שנכנס למקוה ואתי למימר דלא עלתה לו טבילה כיון שטבל ביין וע"ז קאמר בגמ' דס"ד דאוקי גברא אחזקתיה, אבל הכא דגרס במימרא דר"י "מים" ס"ל לרש"י מחמת קושיית התוס' דע"כ מיירי מכח הגזרה דרבנן שבא לתוך ג' לוגין מים שאובין ופסלו לתרומה, ולכן מיירי באדם טהור, ולפי"ז הא דהביא ראיה מהברייתא היינו מהככר של תרומה דאילו מהאדם עצמו לאו ראיה היא דשאני התם דאוקי גברא אחזקת טומאה אבל הכא הגברא הוא בחזקת טהרה, אלא הביא ראיה מככר דאע"ג דאית בה חזקת טהרה נטמא ה"נ אע"ג שהיה לו חזקת טהרה חיישינן שבא ראשו ורובו למים שאובין, אלא דק"ק לפירוש זה אמאי חיישינן כ"כ בספק דרבנן (וכבר העיר הריטב"א בזה).

Makos 3b - Mikvah: Passul with 3 Lug of Drawn Water

There is a major machlokes rishonim whether a mikva that is made of drawn water would be a p'sul d'oraysa or only d'rabonon. In my sefer, Mayim Rabim (page 37), I elaborated about this issue and presented many shitos in the rishonim. The Rambam holds that she'uvin (drawn water), even an entire mikva of drawn water, would only be passul d'rabonon. The Rash disagrees because a mikva that is man made - הוייתו ע"י אדם, would be pasul m'doraysa, but not because it is "drawn" rather because it is made through keilim that are susceptible to tu'mah. According to the Rash, when the Rabbonon make a gezeira that 3 Lug of drawn water passul the mikva, they would also include in this gezeira any 3 lug of water that is brought to the mikva by means of something that is susceptible to tu'mah. Since the source of the problem with drawn water is tu'mah, it makes no sense to make a distinciton. However, the Rashabam and Rabbeinu Tam (baba basra 66a) hold that a mikva comprised of mostly drawn water would be passul m'doraysa. This is the prevalent opinion. The Rabbonon are then gozer that even 3 lug of drawn water invalidates the mikva. But, there is even an opinion (rosh in the namne of Rabbeinu Tam) that the p'sul of 3 lug is halacha l'moshe misinai, meaning that it is d'oraysa.

As we see from our gemara, the concept of 3 lug of drawn water passuling the mikva (prior to the mikva having 40 se'ah), only applies to water. But, 3 lug of any other liquid such as wine, even white wine wouldn't passul the mikva (the only way that wine would passul the mikva is by changing the color). Based on this, there is a very interesting question, when one adds white wine to a mikva that is less than 40 se'ah, and the wine completes the shiur of 40 se'ah, would the mikva be valid? It seems that although wine doesn't ruin a mikva, it also can't create a mikva. Meaning, that without a full 40 se'ah of water, the mikva would not be kasher.

We pasken like the tana kama of the braisa based on rav papa's question, that in order to passul the mikva we would require a full 3 lug of water, and it must have the appearance of water. If either it has a kurtav less than 3 actual lug of water, or it looks like wine, it wouldn't passul the mikvah. Based on this, the Aruch Hashulchan raises a question: What if 3 lug of drawn water got mixed with 4 lug of white wine, and the mixture then fell into the mikva - do we say that it passuls since there is 3 lug of actual water and it has the appearance of water, or do we say that the water is batul in the wine and it is as if wine is falling in so it wouldn't passul (so long as you add enough actual rain water afterward to be mashlim the shiur of the mikva)?

Sanhedrin 112a - Animal and Dough of an Ir HaNidachas

The gemara says that if there are 2 partners in an animal, one partner belongs to an ir hanidachas and the other one does not, the entire animal is assur. But, if they are partners in dough, it is mutar. The gemara explains that an animal is not כמאן דפליגא דמי whereas the dough is as if it is divided. R. Akiva Eiger is metzayen the Sha'agas Aryeh (89) who assumes that the gemara is saying that the portion of the dough that is divided and distributed to the partner who isn't part of the ir hanidachas, is permitted based on breira. The Sha'agas Aryeh asks that since the heter to the non-ir hanidachas portion of the dough is based on breira, how can the Rambam pasken this din. The Rambam (Hilchos Shemita 11:20) holds that we don't allow breira to be used by something which is d'oraysa, so why does the Rambam (hilchos akum 4:11) pasken that the dough is mutar since it can be divided?

The maharatz chiyus says to look at the mekor chaim on hilchos pesach siman 448 for an answer to this question. I have to wait until I get home to look at it. To add to the question of the sha'gas aryeh, the language of both the gemara and the Rambam read simply, implies that the entire dough is permitted, not just the portion owned by the non-ir hanidachas partner. If this is correct, the question of the Sha'agas Aryeh would be answered since we wouldn't require breira, but what would the rationale be? Why would the entire dough be mutar?

It seems that the Rambam and gemara are saying that since the dough is as if it were already divided, it is not considered "shalal" of the Ir Hanidachas. What is the sevara for this?

Just found the Me'kor Chaim (448:1) - he writes based on the Ran in Nedarim 46 who says that we don't say breira by d'oraysa, yet when one partner makes a neder of issur hana'ah on another, even a courtyard that is not large enough to be divided (so it was never meant to be divided) can be divided and is mutar. The rationale is that there is an assumption that people join a partnership with the understanding that his friend will not be able to impose an issur that will last through a division of the property. Similarly here, since it was the actions of the person belonging to the ir hanidachas that created this issur, it is assumed that the entire partnership was conditional and that the part of the dough taken by the non-ir hanidachas partner will be mutar.

Based on this approach it should follow that if it was not the actions of the ir hanidachas partner that created the issur, for example he never committed avoda zara but his items become assur because they are in the ir hanidachas, then the splitting should not work to permit the portion of the other partner - v'dok.

Sanhedrin 110a - Supporting Machlokes

The gemara says that one who is machzik a machlokes is in violation of a negative commandment - ולא יהיה כקרח וכעדתו. The gemara says that it is for this reason that Moshe went to speak with Dasan and Aviram. It seems from the gemara that the issur of not being machzik a machlokes obligates one to take action to avoid the machlokes. Rashi seems to say this - מכאן שאין מחזיקין במחלוקת - שמחל על כבודו והוא עצמו הלך לבטל מחלוקת

The fact that Moshe Rabbeinu was willing to be mochel on his own kavod to confront dasan and aviram implies that one is obligated to take action in order to avoid machlokes.

The chofetz chaim (pesicha, l'av 12) points out that the Sma"g and Rabbeinu Yona seem to consider this an actual l'av. He considers the fact that there may be an obligation on the listener to show contempt at the teller for saying over the loshon ho'rah to avoid this l'av. Although he doesn't cite rashi, perhaps he understands from rashi that there is an obligation to take action to avoid machlokes.

In his sefer Shemiras Halashon (sha'ar ha'zechira #15) the chofetz chaim suggests that one who takes an oath to join with a group that is creating a machlokes, would constitute a shavu'as shav since they are in essence swearing to violate a l'av in the Torah. Although none of the counters of the mitzvos (Rambam, Ramban) count this as a l'av (other than sma"g and Rabbeinu Yona), it is still clear from the Torah that it is forbidden and no worse than swearing to violate an issur of chatzi shiur which would also render the oath a shavu'as shav. The difficulty with this approach is that און בן פלת had to figure out a way to avoid violating his oath (bottom of 109b) - why? His oath should never have been binding since it was to join machlokes? The Chofetz Chaim suggests that און didn't yet to teshuva, he was merely following the logic of his wife that either way he will be a nobody so what is the difference whether he is subject to Moshe or Korach. It is only later that he realized the mistake and did teshuva. From here we learn that the merit of the wife of און בן פלת is not just that she saved her husband. Rather, she came up with a tactical approach to play on his ego and prevent him from joining. It was only later that he actually did teshuva l'sheim shamayim.

The Rambam in Sefer Ha'Mitzvos (shoresh 8) says that this l'av should be counted because it is not a command, rather it is a consequence that if one argues on kehuna he will get tzara'as. The Ramban disagrees saying that it is an es'machta. See Meshech Chocham (17:5) who explains the opinion of the Rambam that it is a "shelila" - a consequence or cause and effect, meaning that to avoid suffering a similar fate to Korach, one should not be like Korach.