TALMUD. The 25rd Massekhet – Makkot

Massekhet Makkot is a companion tractate to Massekhet Sanhedrin, and effectively completes it, inasmuch as it also deals with criminal law and the punishments meted out by the Jewish courts. This stands in contrast to the earlier tractates of Seder Nezikin whose focus was on civil law and personal interactions. At the same time, Massekhet Makkot differs from Massekhet Sanhedrin in that Sanhedrin deals mainly with serious crimes that deserve capital punishment, while Makkot discusses other types of crimes whose punishments are less severe.

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15 Responses to TALMUD. The 25rd Massekhet – Makkot

  1. Massekhet Makkot: Introduction to the Tractate

    Massekhet Makkot is a companion tractate to Massekhet Sanhedrin, and effectively completes it, inasmuch as it also deals with criminal law and the punishments meted out by the Jewish courts. This stands in contrast to the earlier tractates of Seder Nezikin whose focus was on civil law and personal interactions. At the same time, Massekhet Makkot differs from Massekhet Sanhedrin in that Sanhedrin deals mainly with serious crimes that deserve capital punishment, while Makkot discusses other types of crimes whose punishments are less severe.

    Aside from capital punishment, there are three types of punishments meted out by the Jewish courts. They are:
    1.Monetary payments
    2.Exile
    3.Lashes

    Jewish law does not recognize imprisonment as a punishment, although there are circumstances when a suspect is held so that he will not escape (see, for example, Vayikra 24:12, Bamidbar 15:34).

    There are three general topics that are discussed mainly in Massekhet Makkot, even though they appear in other places in the Talmud, as well. These are the laws of eidim zomemin (conspiring witnesses), galut and malkot (lashes). While there is no clear connection between these topics, they are included here as a completion of the laws of punishments that were taught in Massekhet Sanhedrin.

    The source for edim zomemin appears in the Torah (Devarim 19:16-21). The main idea is that if witnesses offer testimony against someone that will potentially lead to punishment – a death sentence, lashes or a monetary payment – and another set of witnesses testify and undermine the initial testimony, the first group will receive whatever punishment would have been given to the accused because they conspired to harm the defendant. This ruling is considered to be a ḥiddush – a new, unusual concept taught by the Torah – since other types of contradiction, e.g. witnesses who say that they saw the incident and it happened otherwise, would not lead to this ruling. When there is simply contradiction – two witnesses say that one thing occurred and two witnesses say that they saw something else take place – the court throws out both testimonies, since we do not know which group to believe. Here, the second set of witnesses testifies that the first set was with them at the time of the crime, meaning that the first set could not have testified truthfully. This renders the first witnesses conspiring witnesses.

    The concept of galut is also a unique ruling. According to the Torah (see Bamidbar 35:24-29 and Devarim 19:2-7), a person is sent from his home to one of the six arei miklat – cities of refuge – in the event that he killed his fellow accidentally. It appears that exile accomplishes three things:
    1.It serves as a punishment
    2.It offers some level of atonement
    3.It protects the killer from the go’el ha-dam – the relative who acts as a “blood redeemer” to avenge the death.

    The combination of these three purposes makes clear that not every accidental death will lead to the exile of the perpetrator. On occasion, the accident may be something that should have been prevented, and exile will not be an appropriate punishment, nor is it severe enough to offer atonement. Sometimes the accident may be something that could not possibly have been prevented, and there will be no need for punishment or atonement.

    Malkot are also clearly mandated in the Torah (see Devarim 25:1-4), although the Torah does not specify who is the rasha who deserves malkot. The oral tradition of the Sages on this matter is clear – someone who intentionally transgresses one of the negative commandments of the Torah is liable to receive lashes. The application of malkot accomplishes three things: punishment, atonement and deterrence. The punishment is severe enough that there is a requirement to examine the person who will be receiving the punishment to ensure that it will not cause permanent damage. Deterrence stems from the fact that aside from the physical pain, the lashes are given publicly in order to embarrass the perpetrator.

    In point of fact, this punishment was not given very often, since there are many negative commandments that do not fall into the category of malkot. Furthermore, just as we find with regard to capital punishment, the court does not mete out this punishment unless they are certain beyond any doubt that he performed this crime purposefully and with malice aforethought. Thus we need not only two witnesses to the crime, but we must also know that the perpetrator was warned that the act was forbidden and that he would be punished for doing it.

    While Massekhet Makkot focuses on these matters, as in every tractate, other topics are discussed, as well. The tractate includes collections of aggadic material, most of which offer another perspective on these topics – on the reward for the performance of the commandments and how sometimes even things that appear to be negative may hint to the ultimate good in the World-to-Come.

  2. Makkot 2a-b: The Discussion Continues

    Massekhet Makkot appears immediately after Massekhet Sanhedrin, and effectively completes it. In contrast with the first tractates in Seder Nezikim (the Order of Damages in the Mishna) whose focus is on civil law, both Sanhedrin and Makkot deal with issues of criminal law and the punishments meted out by the courts in response to individuals who transgress Torah law. While Massekhet Sanhedrin dealt with severe crimes, including those where capital punishment was the appropriate sentence, Massekhet Makkot – as its name indicates – focuses on less severe crimes, whose punishments are less harsh.

    The first Mishna in Massekhet Makkot deals with a situation of edim zomemin – false witnesses whose testimony will condemn the accused to receive punishment, even though they could not have been at the scene of the incident, given that others testify that these witnesses were with them in another place at the time that the crime took place. According to the Torah (see Sefer Devarim 19:15-21), the punishment for edim zomemin is that they will receive the punishment that would have been given to the defendant based on their testimony. Our Mishna teaches that this is not always the punishment that is given. In cases where the false testimony accused the defendant of something that would change his personal status – e.g., having questionable parenthood – we would not change the personal status of the edim zomemin, rather they would receive lashes as a punishment.

    The Ritva asks why Massekhet Makkot begins with an analysis of edim zomemin rather than the laws of malkot that appear to be the central concept of the tractate, which do not appear until the third perek. The obvious answer – that is hinted to in the Gemara – is that this Mishna is the continuation of the Mishnayot in Massekhet Sanhedrin where the various punishments of the Jewish courts are discussed, and the law of edim zomemin is mentioned at the end of the tenth chapter (see Sanhedrin daf 84 where we learned that in many versions of the Talmud, that chapter was at the very end of Massekhet Sanhedrin).

    Some even suggest that originally Massekhet Makkot was part of Massekhet Sanhedrin and that they were only separated at a later date.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz, as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  3. Makkot 3a-b: A Condition That Negates Torah Law

    Can a person make a condition that negates a Torah obligation?

    Although in the Mishna (Ketubot 84a) Rabbi Shimon ben Gamliel rejects such a possibility, some suggest that in situations that are purely monetary we may say tenai she-be-mamon kayyam – making a condition on a Torah law that has to do with money is acceptable.

    One example that is brought by the Gemara is the case of ona’a (exploitative business practices). According to the Torah (See Vayikra 25:14, 17) business transactions must be fair and one side cannot take advantage of another. Thus, overcharging or underpaying is forbidden by the Torah, and the forbidden profits will need to be returned or the transaction voided. What would be the halakha if someone said to his friend “I am selling this to you on the condition that the rule forbidding ona’a does not apply”? Here we find a disagreement between Shmuel who permits such a condition, permitting the sale and Rav who insists that ona’a still applies.

    The source for this discussion of ona’a appears on today’s daf. In truth, it is not only a question of whether a person can make an agreement to dispense with the rules of the Torah with regard to money matters, but also a more basic question of how to define the law of ona’a. Some argue that ona’a has two sides to it. On the one hand there is a question of money, on the other hand there are elements of issur – of forbidden practices – involved, as well. It is therefore possible that even if a person can choose to forgo the Torah rules with regard to money, his agreement to forgo the rule of ona’a will have no legitimacy because of the issur involved.

    According to the Rambam (Hilkhot Mekhira 13:3) and the Shulḥan Arukh (Ḥoshen Mishpat 227:21), even though a person cannot make a condition that ona’a does not apply, if he clearly states the true value of the item at the time of sale and explains that the price that he is demanding is out of line with its cost in the marketplace, the buyer can choose to purchase the item without the rules of ona’a applying.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz, as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  4. Makkot 4a-b: Two Punishments for the Same Act

    As we have learned, Massekhet Makkot opens with a discussion of edim zomemin – conspiring witnesses whose testimony will condemn the accused to receive punishment. Others come and testify that these witnesses were with them in another place at the time that the crime took place, proving that they could not have been at the scene of the incident. According to the Torah (see Sefer Devarim 19:15-21), the punishment for edim zomemin is that they will receive the punishment that would have been given to the defendant based on their testimony.

    Aside from the unique punishment that the conspiring witnesses receive for being edim zomemin, will they be punished separately for transgressing the prohibition of lo ta’aneh be-rei’akhah ed shaker (Shemot 20:13) – the biblical prohibition against testifying falsely?

    In the Mishna on today’s daf we find a disagreement between Rabbi Meir and the %Hakhamim on this point. Rabbi Meir believes that these are two separate issues and that the edim zomemin will pay – if their testimony would have made the accused pay – and also receive lashes for their false testimony. Similarly, if the testimony of the edim zomemin would have made the accused receive lashes as a punishment, then they will receive two sets of lashes – one set because they will get what they tried to force on the other and the other set for the sin of false testimony. The Ḥakhamim rule that in both situations the edim zomemin will not receive two punishments.

    The Gemara explains that according to the Ḥakhamim, Torah law does not allow two punishments for the same act (see Massekhet Ketubot daf 31, daf 32 and daf 33). This is based on the passage in Sefer Devarim (25:2) that is understood to require a single punishment, and no more than that. Tosafot point out that in truth, Rabbi Meir agrees to this; he limits it, however, to situations where the sinner is liable for a death penalty and lashes. In other situations, e.g. where the punishments would be payment and lashes, he rules that both punishments can be carried out.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz, as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  5. Makkot 5a-b: Refuting Not Only the Testimony, But the Witness

    The Mishna on today’s daf offers a greater insight into the rules of edim zomemin – conspiring witnesses.

    According to the Mishna we need the second group of witnesses to deny the edim zomemin themselves, and not simply negate their testimony. Thus, if the second group of witnesses come to court and insist that the testimony of the first witnesses cannot be true because the accused was with them at that time, or because they saw the incident and it happened differently than the way it was described by the first group of witnesses, then we discount the testimony. Such witnesses are called edei hakḥashah – witnesses who refute testimony – and recognizing that there are different versions of the story we discount them both. Neither the accused nor the witnesses will be punished.

    In order for witnesses to be considered edim zomemin who will receive the punishment that would have been given to the accused had he been convicted based on their testimony, the second group of witnesses must testify that they cannot be telling the truth because they were with them at the time of the alleged crime. This rule is not explained by the Mishna or the Gemara; it is a gezerat ha-katuv – a biblical ordinance.

    Another unique rule in the laws of edim zomemin is that the punishment is only applied to the conspiring witnesses if it has not been carried out on the accused. If, however, he was already killed or already received lashes based on their testimony, then they will not receive that punishment. According to the Gemara the source for this is the passage in Sefer Devarim (19:20) that requires the court to give the edim zomemin the punishment that they wanted the accused to receive – not the punishment that he was actually given.

    In his commentary on the Torah the Ramban explains this rule as stemming from the belief that God would not allow an innocent man to be punished in this way, so if he received the punishment it is an indication that he really did deserve the punishment. The Abravanel suggests that this law protects the court, and keeps the people from saying that the court cannot make up its mind and puts innocent people to death.

  6. Makkot 6a-b: Courtroom Translations

    In the multi-cultural world that we live in today, it is common practice for a judge to arrange to have a translator in the courtroom to clarify the words of a witness or of one of the litigants in a court case. It is somewhat surprising to learn in the Mishna on today’s daf that translators were not allowed in the courtrooms of the Mishna. While Rabbi Yosei learns from the biblical statement al pi shnayim eidim (Devarim 17:6) that the witnesses must warn the accused of the consequences of his actions, another approach to that pasuk is to learn that the judges must hear – and understand – the words of the witnesses, and they may not rely on the words of a translator.

    It is not clear whether this ruling is meant to be an actual biblical law based on the pasuk in Sefer Devarim, or if the biblical passage is brought simply to offer support to a rabbinic dictum. Even without a clear biblical source there are a number of reasons to disallow translators:

    Can we be certain that the translator is offering an accurate statement that fully reflects the intention of the witness?

    Will the court be able to properly cross-examine the witness if they cannot understand what he says?

    In general we do not allow hearsay evidence – ed mi-pi ed – (a witness who testifies based on what he heard from another witness rather than based on what he actually saw). Would the statement of the translator be considered ed mi-pi ed?

    The Rambam (Mishneh Torah, Hilkhot Sanhedrin 21:8) rules that the court must be able to understand the litigants and the witnesses, although the judges can respond and offer their ruling by means of a translator, if necessary. The Sma adds that today it is commonplace for litigants to accept upon themselves the procedures of the courtroom, and if they do so they effectively accept the participation of a translator if the court feels that there is a need for one.

    This essay is based upon the insights and chidushim of Rabbi Adin Even-Israel Steinsaltz, as published in the English Koren Talmud Bavli with Commentary by Rabbi Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  7. Makkot 7a-b: Preventing a Violent Court

    In Massekhet Sanhedrin and Massekhet Makkot we have been learning about the various punishments meted out by the beit din. In point of fact, how often was capital punishment carried out by the Jewish court system?

    According to the Mishna on today’s daf if the Sanhedrin killed a single individual in the course of seven years, it was considered to be a destructive, or violent, beit din. Rabbi Elazar ben Azarya says that this is true if the court killed someone every 70 years. Rabbi Tarfon and Rabbi Akiva claimed that had they been on the Sanhedrin (during the last 40 years of the Second Temple period the Sanhedrin no longer ruled on capital cases, so neither of them ever served as judges on the high court) no one would have ever been killed. In response Rabbi Shimon ben Gamliel said that such behavior would have led to a proliferation of murderers.

    The statement made by Rabbi Tarfon and Rabbi Akiva is based on the fact that Jewish law does not accept circumstantial evidence, and only the testimony of reliable witnesses will be accepted as fact. These Sages would have questioned the witnesses about details of their testimony until the witnesses would be unable to respond with definitive information. Examples given by the Gemara are:

    Regarding a murder case, Rav Ashi suggests that they would have asked the witnesses whether they were certain that the victim was not a tereifa – perhaps he had a disease or injury that would have led to his death within 12 months. Killing such a person would not lead to a death sentence.

    Regarding sexual crimes that call for a death penalty, Abaye and Rava suggest that they ask whether the witnesses could testify that they saw ke-mikhḥol be-shefoferet – did they see penetration the way a brush is placed in a tube. Since witnesses rarely witness the act that closely, one could claim that the testimony is incomplete.

    Mikhḥol be-shefoferet refers to a commonly applied stibnite-based eye shadow that was also used for medicinal purposes. The material that was applied was kept in a thin tube, or in two connected tubes, and it was removed and applied by means of a thin brush.

  8. Makkot 8a-b: A Killer Sent Into Exile

    The second perek of Massekhet Makkot focuses on the punishment of galut – exile – for a person who killed his fellow accidentally (see Bamidbar 35:24-29 and Devarim 19:2-7). According to the Mishna on today’s daf, any Jewish person may be sent into exile for accidentally killing his fellow; similarly, any Jewish person who is accidentally killed will cause the killer to be sent into exile.

    Who might the Mishna be including when it uses the term “any Jewish person”?

    The Gemara explains that this broad statement comes to include an eved – a slave – and a kuti – a Samaritan. These are two categories of people who were part of the Jewish community, even though their status was not considered to be fully Jewish.

    The eved under discussion is an eved kena’ani – a Canaanite (or non-Jewish) slave – who is circumcised. Such an eved is not obligated in all commandments; generally speaking his obligation in mitzvot parallels that of women, who are, for example, free of the obligation to perform positive, time-bound commandments.

    The term kutim refers to those people who were brought to Israel in a population exchange during first Temple times, when the kings of Assyria exiled the Northern kingdom and replaced them with other nations – not all of whom were truly kutim. They settled in the area around the city of Shomron (Samaria), which is why they are also called Shomronim or Samaritans.

    In II Melakhim (chapter 17) the navi describes how these nations accepted upon themselves some of the Jewish laws and customs out of fear after they were attacked and killed by lions – which is why they are often called gerei arayot – converts because of lions. At the same time they did not renounce their own gods and religious traditions.

    At the beginning of the second Temple period, when Jews of the Diaspora began returning to the land of Israel, the relations between the Jews and the Shomronim became tense, with the Shomronim trying to bring down the efforts to rebuild the wall surrounding the city of Jerusalem and the beit ha-mikdash. At the same time, there were Jewish families – including families of kohanim – who intermarried with the Shomronim and assimilated with them.

    During some periods, the relations between the two groups reached levels of overt warfare; Yoḥanan Hyrcanus even attacked and destroyed their temple on Mount Gerizim. During other periods, however, there was cooperation between the groups – during the bar Kokheva rebellion, for example.

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    This essay is based upon the insights and chidushim of Rabbi Steinsaltz, as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  9. Makkot 9a-b: Cities of Refuge

    As we have learned, the Torah requires that someone who kills accidentally must exile himself to an ir miklat – a City of Refuge. What was the procedure for being accepted into an ir miklat? Where were these cities?

    As the Rambam explains the Mishna on today’s daf, everyone who killed would run to one of these cities in order to protect himself from revenge at the hands of the go’el ha-dam – the relative who serves as a “blood avenger.” The perpetrator would be taken to trial and would either be found guilty and put to death, would be found innocent and set free, or declared an accidental killer and returned to the ir miklat in the company of two guards who would be charged with protecting him from the go’el ha-dam.

    According to the Mishna, the biblical commandment to establish six cities of refuge (see Bamidbar 35:13-14) requiring three on each side of the Jordan River, was first fulfilled by Moshe (see Devarim 4:41) on the eastern side of the river. Nevertheless, the system does not begin to operate until the Children of Israel cross the Jordan and establish cities on the western side of the river, as well. There were three pairs of cities on either side of the Jordan – one set in the south (Hebron and Betzer), one in the middle of the country (Shekhem and Ramot) and one in the north (Kadesh and Golan).

    Abaye explains that although the eastern side of the Jordan was much smaller than the western side, there was still a need for three cities of refuge since in Gilad there were many murderers. The obvious question is that the Cities of Refuge are only meant to serve accidental killers and not murderers – why would the number of murderers affect the need for arei miklat?

    The Ramban explains that since all killers would run to the Cities of Refuge in order to await trial, even murderers would go there in the hope of escaping the go’el ha-dam, and the cities had to be able to accommodate murderers as well as accidental killers.

    Tosafot suggest that according to the continuation of the Gemara, an accidental killing is likely a heavenly arrangement to punish someone who deserved a death penalty. Thus, a place that had a large number of murderers would also have a large number of accidental killings.

    The Meiri offers a different approach, suggesting that the fact that there were many murderers in Gilad offered the possibility of people who the go’el ha-dam might hire to avenge the accidental killing. In order to help the accidental killer escape these people, more Cities of Refuge were needed.

  10. Makkot 10a-b: A Life in Exile

    When describing the escape of an accidental killer to a City of Refuge, the Torah says that he will run to one of the cities and live (see Devarim 4:42). The Gemara on today’s daf understands that the idea that he will “live” implies an active life and not just avoidance of death at the hands of the “blood avenger.” Thus, we learn that when a student is exiled to an ir miklat, his teacher must accompany him there. Similarly, Rabbi Yoḥanan teaches that when a teacher is exiled to an ir miklat, his students must go into exile with him, as well.

    The Iyun Ya’akov suggests that although at first appearance we might think that a teacher brings his students with him because without the interaction of study his life would become bleak and void of meaning, this cannot be the case, since we do not find that the Torah requires other friends to join the accidental killer in exile. He suggests that this must be a punishment of sorts for the students who chose to study with a teacher whose morals must be lacking inasmuch as he became involved in this killing, albeit accidental.

    Rabbeinu Yehonatan argues that these rules relate specifically to Torah teaching, since the Torah is compared to – and essentially considered to be – “life” (see Devarim 30:20).

    The Gemara asks how Rabbi Yoḥanan could possibly require a teacher to go into exile with his students, given that we have another teaching in the name of Rabbi Yoḥanan where he suggests that Torah study itself could serve the purpose of exile/refuge, given the juxtaposition of the laws of the Cities of Refuge (Devarim 4:41-43) to the passage “And this is the law which Moses set before the children of Israel” (Devarim 4:44). (Clearly, as the Ritva notes, the Gemara at first assumes that this statement of Rabbi Yoḥanan is to be understood literally.)

    Two answers are offered by the Gemara:

    1.The protection of Torah study would only suffice during the actually learning, but not when they stopped learning.
    2.Rabbi Yoḥanan’s statement did not mean to assert that Torah study offered the protection of an ir miklat, rather that it offered protection from the Angel of Death who cannot take a person’s soul while they are occupied in learning Torah.

  11. Makkot 11a-b: Mothering an Accidental Killer

    Until when will an accidental killer be required to remain in exile in the City of Refuge?

    The Torah is clear on this point. As taught in Sefer Bamidbar (35:25, 28), the killer must remain in the ir miklat until the death of the kohen gadol. The Mishna on today’s daf notes that this leads to an interesting custom – the mothers of the kohanim would supply food and clothing to those exiled killers so that they would not pray that the kohen would die – or, according to some versions, to encourage them to pray that the kohen would have a long life.

    The Gemara asks why there would be any reason for the kohen’s mother to be concerned that the accidental killers would pray that her son would die when Sefer Mishlei (26:2) clearly teaches that a baseless curse will have no effect. In response the Gemara quotes an elderly gentleman who reported that when attending Rava’s lectures he learned that the prayers and curses of the killers confined to the Cities of Refuge may not be in vain, since the kohen gadol should have been responsible to pray on behalf of the community for mercy, so that no murder should transpire, and perhaps his prayers could have kept these incidents from taking place. Given that the omission of the kohen gadol’s prayers may have played a role in the killers’ exile, their prayers may, in fact, be effective.

    The Maharsha explains that these laws are connected with the High Priest because he is responsible to pray on behalf of the entire Jewish people when he enters the Holy of Holies on Yom Kippur. Among his prayers should be a request that no mishap or misfortune take place. The Maharal explains that as the leader – the heart and head – of the Jewish people, the kohen gadol is effectively responsible for all that takes place.

  12. Makkot 12a-b: The Laws of Revenge

    We have been discussing the laws of an accidental killer who is exiled to an ir miklat – a City of Refuge – which serves both as a punishment and as a haven of protection from the go’el ha-dam, the “blood avenger” who would otherwise kill him. What status does the go’el ha-dam have? Is the Torah sanctioning the murder of an accidental killer for reasons of revenge?

    Three opinions are offered regarding this question by the Gemara on today’s daf.

    Basing himself on Bamidbar (35:27) Rabbi Yosei HaGelili rules that it is a mitzva for the go’el ha-dam to avenge his relative’s death and slay his killer if he finds him outside of the ir miklat. At the same time, in the event that the go’el ha-dam does not do so, it would be appropriate – albeit not a mitzva – for anyone else to kill him. Rabbi Akiva disagrees, ruling that the go’el ha-dam is permitted to take revenge and kill the person who killed his relative by accident, but he is not obligated to do so. This dispensation applies only to the go’el ha-dam; no one else would be allowed to carry out this killing. A radically different view of this law is offered by Rabbi Eliezer who interprets the passage (Bamidbar 35:12) to mean that the go’el ha-dam has no right to do anything to the killer until he is tried in court.

    Rabbi Eliezer’s position is somewhat unclear. Some understand that he forbids the go’el ha-dam from ever taking revenge on an accidental killer. It is only if the killer is put on trial and found guilty of murder that the beit din will invite the go’el ha-dam to fulfill the death penalty and kill the murderer. Rabbeinu Ḥananel, however, offers an alternative approach. According to him, Rabbi Eliezer would forbid the go’el ha-dam from taking revenge prior to trial. After he is found to be an accidental killer who is required to be exiled, he would agree with Rabbi Akiva or Rabbi Yosei HaGelili should the killer leave the ir miklat.

  13. Makkot 13a-b: Who is Liable to Receive Lashes?

    The third perek of Massekhet Makkot begins on today’s daf and as its name – Elu hen ha-lokin (“These are the ones who receive lashes”) – indicates, we are now embarking on the central theme of the tractate by examining the most basic punishment meted out by Jewish courts.

    The Torah makes clear (see Devarim 25:1-4) that there are times that the Jewish court will punish a rasha – an “evildoer” – with a punishment of malkot – lashes. What is left unclear is who might be considered to be a rasha. Is anyone who transgresses biblical commandments deserving of lashes, or perhaps only some transgressions will require such punishment?

    The first Mishna in the perek lists those individuals who are liable to receive the punishment of lashes, ranging from people who engage in sexual transgressions to those who eat forbidden foods. All of the commentaries note that this is not a full, all-encompassing list of cases whose punishment would be lashes – the Meiri counts a total of more than two hundred forbidden actions for which this punishment would be given – rather they are a collection of cases that we would not have known otherwise or are brought because they are connected with one or another of those cases. Even though Mishnayot that open with the word elu usually give a full list of cases to be included in the topic under discussion, in this case the Mishna was interested in clarifying three general types of negative commandments for which lashes are given. These are:

    •negative commandments that will be punished by karet – literally “to be cut off” from the community, a Heavenly punishment
    •negative commandments that will be punished with mitah be-yedei shamayim – a Heavenly death sentence
    •ordinary negative commandments.

    In each of these cases, irrespective of the punishments that are in the hands of God, the beit din will carry out malkot.

  14. Makkot 14a-b: Talking Torah at the Butcher Shop

    As we learned on yesterday’s daf, the third perek of Massekhet Makkot focuses on the punishment of malkot (lashes). According to the Mishna (13a) someone who engages in a variety of incestuous relationships is liable to receive malkot. The Gemara on today’s daf tries to establish whether someone who engaged in a number of different forbidden unions would receive a separate punishment for each one, or, perhaps, a single punishment would suffice for all.

    The Gemara quotes a baraita that relates that this question was not raised in the beit midrash, rather that Rabbi Akiva posed the matter to Rabban Gamliel and Rabbi Yehoshua when he chanced upon them in the itliz in the city of Emmaus (the city was situated about 30 kilometers west of Jerusalem and was a popular vacation spot thanks to its thermal pools). According to the baraita, Rabban Gamliel and Rabbi Yehoshua could not answer this question directly, and their attempts to cite comparable cases with clear rulings as precedent were rejected.

    In modern Hebrew an itliz is a butcher store, and it is likely that that was where these Sages met. The source for the word in Latin may be a marketplace, or, perhaps a duty-free zone, which eventually became interchangeable with a market.

    According to Tosafot, the detail describing that the interaction took place in the itliz was brought in order to teach that even while busy in the marketplace the Sages were open to discuss topics of Torah. Furthermore the Tiferet Yisrael points out that according to this story even though they were standing in a public place with crowds of people watching, Rabban Gamliel and Rabbi Yehoshua were not embarrassed to admit that they did not know the answer to Rabbi Akiva’s question (when this story appears in Massekhet Keritot there is a list of questions to which they admit that they did not know the answer).

  15. Makkot 15a-b: A Crime Without Punishment

    We have learned that there are many Biblical prohibitions that will lead to different types of punishment. Are there any for which there is no punishment at all?

    It should be noted that generally speaking, a person will only receive punishment for actions that he did that are prohibited. Were someone to neglect to perform a positive commandment, in most cases, the Torah does not punish him at all; he simply missed out on his opportunity to do a mitzva.

    The Gemara on today’s daf mentions a number of situations where a person may commit a forbidden act, and yet the normal punishment of malkot (lashes) would not apply to him.

    One such case is a lav she-ein bo ma’aseh – a negative commandment that does not have an action attached to it. The example in the Gemara is someone who takes an oath that he will eat a loaf of bread today, and then the day passes and he has not eaten the bread. In this case Rabbi Yoḥanan explains that as a lav she-ein bo ma’aseh there will be no punishment at all.

    Another situation where there is no punishment is in a case of a lav ha-nitak la’asei – a negative commandment that entails performance of a positive commandment. An example of this is the prohibition against stealing (see Vayikra 19:13) that is followed by a positive commandment to return stolen property (Vayikra 5:23).

    Although the ruling is the same in these two cases, the mechanism behind them differs. In the case of a lav she-ein bo ma’aseh, we have a situation that is similar to someone who overlooks a positive commandment. He has not done anything that is a punishable offense. On the other hand, in the case of a lav ha-nitak la’asei the person did commit a punishable crime, but the Torah prefers that a different, more equitable, correction be made to the act, rather than simply offer a random punishment to the offender.

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