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Kesuvos 40

(a) When an Isur Lo Sa'aseh prohibits a certain action that prevents a person from performing a Mitzvas Aseh, the Torah states that the Aseh is able to "push aside" the Lo Sa'aseh. For example, when a person wants to wear a four- cornered linen garment, the Isur of Sha'atnez prohibits attaching woolen threads to it. However, the Mitzvah of Tzitzis requires adding threads of Techeles (that are made of wool) to this garment. The Torah commands that in this case the Mitzvas Aseh overrides the Lo Sa'aseh.
(b) The Tana'im argue as to the source of this Halachah. Some learn it from the fact that the Torah specifically wrote the Mitzvah of Tzitzis and the Isur of Sha'atnez as adjacent verses (Semuchin), an indication that the Mitzvah of Tzitzis overrides the Isur of Sha'atnez (Yevamos 4a). Others learn it from different sources (Yevamos 5a, Nazir 41a, 58a).
(c) Even though an Aseh normally overrides a Lo Sa'aseh, this is not the rule in every case. The Gemara explains that in certain instances, the Aseh does not have the power to override the Lo Sa'aseh. Some examples are:

1. A Lo Sa'aseh that is punishable by Kares is not pushed aside by an Aseh (Yevamos 3b).
2. An action that is prohibited by both a Lo Sa'aseh and an Aseh, is not pushed aside by a different Mitzvas Aseh (Chulin 141a).
3. Only in a case where the performance of the Aseh coincides with the transgression of the Lo Sa'aseh did the Torah command that the Aseh takes precedence. If performance of the Aseh is only accomplished after the transgression of the Lo Sa'aseh, the Lo Sa'aseh is not pushed aside (Shabbos 133a). (There are those who write that if a person *begins* to perform a Mitzvas Aseh while transgressing a Lo Sa'aseh, even though the Aseh is not yet completed by the time the Lo Sa'aseh is transgressed, it pushes aside the Lo Sa'aseh -- NIMUKEI YOSEF to Bava Metzi'a 33a).
4. If it is possible to perform the Aseh, in the case under discussion, *without* transgressing the Lo Sa'aseh (by performing the Aseh in a different way or at a different time), the Aseh does not push aside the Lo Sa'aseh (Yevamos 20b -- see TOSFOS YESHANIM to Shabbos 25a). (The Rishonim argue as to whether an Aseh pushes aside a Lo Sa'aseh when it is possible to perform the Aseh without transgressing the Lo Sa'aseh, through the use of a certain item that the person does not currently have the means to obtain (RASHBA Yevamos 4b).
(d) The Rishonim explored the possibility that an Aseh also does *not* push aside a Lo Sa'aseh in other cases:
1. When one person performs a Mitzvas Aseh by doing a certain action in which two people transgress the Lo Sa'aseh.
2. When the action is prohibited by two Mitzvos Lo Sa'aseh, and not only one (TOSFOS Yevamos 3b DH Lo Sa'aseh).
3. When the action is prohibited in another instance by a Lo Sa'aseh and an Aseh, even though in the case at hand there is only a Lo Sa'aseh that prevents it (TOSFOS Kidushin 34a DH Ma'akeh).
(e) The question in our Gemara is whether the Aseh of "v'Lo Siheyeh l'Ishah" (Devarim 22:29) overrides the Mitzvos Lo Sa'aseh that prohibit one from marrying specific women such as a Mamzeres or a Nesinah.

*2*) [line 11] B'SHITAS REBBI AKIVA RABO - that is, the opinion of Rebbi Akiva of the Mishnah (Daf 38a)

3) [line 20] TOVINA D'CHAKIMEI - the most praiseworthy of the scholars
4) [line 25] V'EIMA CHAMISHIM SELA'IM AMAR RACHMANA MI'KOL MILEI - and perhaps you should say that the fifty Sela'im (Shekalim) that the Torah obligates in the cases of Ones and Mefateh include all of these payments (and do not refer to the Kenas alone)

5a) [last line] NOKEV MARGALIYOS - [a jeweler] who pierces gems
b) [last line] OSEH MA'ASEH MACHAT - [a tailor] who sews


6a) [line 3] BA'AL SHELEIMAH - one who had relations with a virgin she'Lo k'Darkah
b) [line 3] BA'AL PEGUMAH - one who had relations k'Darkah with a woman who previously had had relations only she'Lo k'Darkah

7) [line 14] AMAH
A father, under certain circumstances, may sell his daughter into servitude to a Jewish master as long as she is a minor. The sale is for a period of six years or until she becomes a Gedolah (when two pubic hairs grow after she enters her 12th year), whichever comes first. During this period she is called an "Amah Ivriyah."

8) [line 18] MAMONA ME'ISURA LO YALFINAN - we cannot derive the Halachos regarding monetary cases (who owns what) from Halachos that apply to Isur v'Heter (what is permitted and what is not)

9) [line 45] AMAR KERA "NA'AR" - the Torah wrote the word Na'arah missing the final "Heh" (as Noon Ayin Reish)

10) [line 46] BEI KELUCHIS - a place in Bavel

(a) If a man marries a virgin and, after the Chupah is performed, he falsely accuses her of committing adultery and losing her virginity prior to the Chupah, he receives Malkos (lashes) for his slanderous speech (Devarim 22:18). He must also give her father 100 Shekalim and never divorce her against her will (ibid. 22:19).
(b) The husband can prove that she was not a virgin either by bringing witnesses that she had relations with another man after the Eirusin (betrothal), or by making a Ta'anas Damim, in which he proves that he found that she had no virginal blood (see Background to Kesuvos 11:2). The wife (or her father) can prove that her husband is lying, and that she was a virgin, either by bringing testimony that the husband's witnesses are Edim Zomemim (conspiring witnesses, see Background to Kesuvos 32:4), or by proving that she did indeed have virginal blood (and her husband hid the sheet).
(c) If it is found that she indeed *had* committed adultery after not heeding the warning of two witnesses, she is liable to the death penalty by Sekilah (stoning) (ibid. 22:21).
(d) If the wife is a Besulah older than 12 1/2 years old, these Halachos do not apply. Her husband does not receive Malkos and is not fined 100 Shekalim if he is found to be lying. If his claim is true, she is not liable to the death penalty of Sekilah but rather to Chenek (choking). If she was between the ages of three years and one day and 12, the Tana'im argue as to whether she is judged as a Na'arah ha'Me'urasah or as a normal Besulah (Kesuvos 29a).

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