THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
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1) IMMERSING IN WINE THAT FELL INTO THE SEA
QUESTION: Rav Yehudah in the name of Rav teaches that if a barrel full of
water falls into the sea and a person who is Tamei immerses himself there,
he does not become Tahor, because we are concerned that there are three
Lugin of water from the barrel gathered together in one place. RASHI (DH Lo
Alsah) explains that when a person immerses in three Lugin of Mayim She'uvin
(water that has been drawn with a vessel), he becomes Tamei because of a
Gezeirah d'Rabanan. The Gemara in Shabbos (14a) relates that the Rabanan
made a Gezeirah that a person who is Tahor who immerses himself in three
Lugin of Mayim She'uvin becomes Tamei (with Sheni l'Tum'ah) and is
prohibited from eating Terumah. The Gemara finds support for Rav's ruling in
a Beraisa which teaches that when a barrel of wine falls into the sea, one
may not immerse in that location because three Lugin of She'uvin might be
gathered together in one place.
2) THE SOURCE FOR "MALKUS" OF "EDIM ZOMEMIM"
How can three Lugin of water in the middle of the sea be Metamei a person?
We know that Mayim She'uvin, or water that is Tamei, which merely touches
("Hashakah;" see Beitzah 17b) the pure water of a Mikvah immediately becomes
Tahor. Mayim She'uvin that is added to a full and valid Mikvah does not
disqualify the Mikvah; it is permitted to immerse there even when most of
the water is She'uvin, since the Mayim She'uvin was added after the Mikvah
was full. The Mishnah in Mikva'os (6:3) teaches that if a pit of Mayim
She'uvin is adjacent to a valid Mikvah, after the waters are made to touch
through "Hashakah" the pit of Mayim She'uvin becomes fit for use as a Mikvah
(if it is filled with 40 Se'ah of water). The Mayim She'uvin loses its
status of She'uvin through "Hashakah" once it is connected to a full Mikvah.
However, if the water from the barrel is no longer considered to be Mayim
She'uvin once it is touching a valid Mikvah (i.e. the sea), then it should
no longer be Metamei a person because of the Gezeirah d'Rabanan! How, then,
can the three Lugin of Mayim She'uvin that spilled in the sea be Metamei a
person? (TOSFOS DH Amar)
(It is evident that Rashi agrees that the Mayim She'uvin loses its status of
She'uvin through Hashakah, because he says that the only reason the person
is Tamei is because of the Gezeirah d'Rabanan. This implies that the Mayim
She'uvin indeed lost its status through Hashakah and was considered a valid
Mikvah to remove the person's original Tum'ah, and now the person is
becoming Tamei because of the Gezeirah.)
In addition, if the person who immerses in the Mayim She'uvin (the water
that spilled from the barrel) becomes Tamei due to the Gezeirah d'Rabanan,
then why does Rav and the Beraisa discuss the immersion of a person who was
*already Tamei*? The same Halachah should apply when the person was Tahor
and immersed where the water spilled from the barrel! (MISHNEH L'MELECH,
Hilchos Avos ha'Tum'ah 9:1)
Finally, how can the Gemara say, in explaining the Beraisa, that perhaps the
person who immersed in the water that spilled from the barrel will become
Tamei "because he has a Chezkas Tum'ah?" According to Rashi, the immersion
was effective in removing the Tum'ah that the he had (and thus he has no
Chezkas Tum'ah), and the only question now is whether he has the new Tum'ah
d'Rabanan for immersing in Mayim She'uvin! (RITVA)
ANSWERS: Many Rishonim argue with Rashi's explanation because of these
questions and offer alternative explanations for the Gemara.
(a) The Girsa of TOSFOS is that both Rav and the Beraisa are discussing a
barrel of *wine* that fell into the sea. The reason a person cannot immerse
in the wine is not because of the Gezeirah that Rashi mentions, but because
the wine acts as a Chatzitzah, an intervening substance, between the
person's body and the seawater. Why, then, does the Gemara say that we are
concerned that the person might be immersing in "three Lugin" of wine? The
RITVA answers that the Gemara does not mean that there might be specifically
three Lugin in one place; rather, the Gemara is telling us merely that it is
likely that at least three Lugin of the wine of the barrel remain together.
Certainly, though, even if less than that amount remains together, it will
also invalidate the immersion.
It seems that this answer is in accordance with the Girsa of the Gemara
before Rashi's emendation, according to which Rav and the Beraisa say that
it is "*impossible*" for there not to be three Lugin that do not remain
together. According to Rashi's emendation, the Gemara is saying that we are
concerned that *perhaps* three Lugin remain together. According to Rashi's
Girsa, Rav is not describing the situation (i.e. that it is impossible that
three Lugin are not gathered together), but rather he is describing the
Halachah (that the wine will be a Chatzitzah), and thus he should not
mention three Lugin at all (but rather merely that "some" of the wine will
remain together and cause a Chatzitzah).
The RITVA rejects the explanation of Tosfos because it is refuted through
experimentation. It is clear to the observer that wine poured into a Mikvah
immediately disperses, and, therefore, it should become Batel b'Rov to the
water of the Mikvah, even if the color of wine is still evident.
(b) The Ramban and Ritva cite RABEINU MOSHE HA'DARSHAN who distinguishes
between seawater and other types of water. Although Hashakah with a valid
Mikvah normally removes the Tum'ah from water and the Pesul of Mayim
She'uvin, Hashakah of fresh water with seawater does not remove these
Pesulim, since fresh water cannot become part of seawater because it is not
the same type of water.
According to Rabeinu Moshe ha'Darshan, the text of the statement of Rav and
of the Beraisa can read that a barrel of *water* (and not wine) fell into
the sea. The Pesul of the water from the barrel is due to the fact that the
freshwater is Chotzetz between the person and the Mikvah (the sea).
According to this explanation, the reason why the Gemara mentions
specifically "three Lugin" must be as we explained above.
(c) According to the Girsa of Rashi, however, Rav is discussing *water* and
the Beraisa is discussing *wine*. Rashi clearly rejects both of the
abovementioned explanations of the Gemara. Perhaps the reason he rejects
these two explanations is because he proved that the proper Girsa of the
Gemara is "Chaishinan" -- "we are concerned" that there are three Lugin in
one place. According to this Girsa, we cannot explain the meaning of "three
Lugin" as the Ritva explains (in (a) above).
This is why Rashi explains that the Tum'ah that Rav is discussing is the
Tum'ah d'Rabanan of three Lugin.
Apparently, Rashi learns that although the water that came from the barrel
no longer has the status of Mayim She'uvin with regard to making a valid
Mikvah, nevertheless -- since the water is still in one place -- the
Gezeirah d'Rabanan applies. The Gezeirah depends on the physical status of
the water, and not on the Halachic status.
Why does Rav discuss a person who is Tamei who immerses in that water? The
person who immerses there should become Tamei even if he was previously
The MISHNAH L'MELECH (Hilchos Avos ha'Tum'ah 9:1) cites TOSFOS in Shabbos
(13b) and in Gitin (16a) who writes that the Rabanan enacted Tum'ah for a
person who goes into Mayim She'uvin only when he does so on the same day on
which he previously immersed in a Mikvah. If a person -- who was not Tamei
and who did not immerse in a Mikvah earlier -- immerses in Mayim She'uvin,
he does not become Tamei. (He becomes Tamei only if three Lugin of water are
*poured* on him, due to a separate Gezeirah.) This also seems to be the
opinion of Rashi in Shabbos (14a). For this reason, our Gemara, which is
discussing the Tum'ah of a person who immerses in Mayim She'uvin, must
discuss a person who was Tamei earlier that day (because if he was never
Tamei that day and never immersed in a Mikvah, then going into the three
Lugin will not make him Tamei).
How, though, can the Gemara say, in explaining the Beraisa, that perhaps the
person who immerses in the water from the barrel will become Tamei because
he has a Chezkas Tum'ah? Rashi answers this question when he says that the
proper Girsa in the Beraisa is that it is discussing a barrel of *wine* that
fell into the sea. Wine is certainly not included in the Gezeirah of
immersing in three Lugin (as we find in the Tosefta in Mikva'os 3:6). The
Tum'ah of the Beraisa is apparently due to the fact that the wine is
Chotzetz between the person and the seawater, as Tosfos explains. Therefore,
it is appropriate to say that the person is Tamei because of his Chezkas
Tum'ah, and he never became Tahor from his Tum'ah.
Why, though, does the Beraisa say that we are afraid that three Lugin of
She'uvin will remain together? According to our explanation, the Tum'ah is
neither because of three Lugin nor because of Mayim She'uvin! Rashi cannot
answer as the Ritva does, because Rashi's Girsa is "Chaishinan," as we
The CHAVOS YA'IR (#107) answers that it is clear that Rashi was not Gores
these words ("three Lugin of She'uvin") in the Beraisa (see also RASHASH).
Indeed, in the Tosefta (Mikva'os 5:9), which is cited by Rabeinu Chananel,
these words do not appear. (The word "She'uvin" is clearly a mistake even
according to the explanations of Tosfos and Rabeinu Moshe ha'Darshan, since
the Tum'ah mentioned in the Beraisa cannot be related to Mayim She'uvin.)
QUESTION: The Mishnah (4a) records two arguments between Rebbi Meir and the
Rabanan. The first involves a case in which Edim testify that a person owes
200 Zuz and they are found to be Edim Zomemim. Rebbi Meir rules that the
Edim Zomemim receive Malkus *and* must pay the defendant what they tried to
cause him to lose. The Rabanan say that the Edim Zomemim must only pay and
do not receive Malkus.
The second argument involves a case in which Edim testify that a person
transgressed an Aveirah which is punishable with Malkus and they are found
to be Edim Zomemim. Rebbi Meir says that each witnesses receives *two* sets
of Malkus -- one for transgressing the Isur of "Lo Sa'aneh" (Shemos 20:13)
and one for "Ka'asher Zamam" (Devarim 19:19). The Rabanan say that they
receive only one set of Malkus, for "Ka'asher Zamam."
The Gemara explains that the reason the Rabanan do not give Malkus to the
Edim Zomemim in the first case of the Mishnah is because of the verse,
"Kedei Rish'aso" (Devarim 25:2), which teaches that the evildoer receives
only one punishment and not two. The Gemara explains that the reason the
Rabanan give only one set of Malkus to the Edim Zomemim in the second case
of the Mishnah is because the verse of "Lo Sa'aneh" serves as the Azharah
for Edim Zomemim, and therefore it cannot be used as a source to give a
second set of Malkus.
RASHI (DH l'Azharah) explains that the Gemara means to say that "Lo Sa'aneh"
is being used as an Azharah so that we will be able to punish the Edim
Zomemim. Without an Azharah, we would not be able to punish them, because of
the rule that the Torah does not administer a punishment unless a Lav has
been designated to prohibit the act that is being punished. Since the Lav of
"Lo Sa'aneh" was given as an Azharah for the punishment, it cannot be used
for a second purpose of giving Malkus. This concept is explained in more
detail by Rashi (13b, DH Ein Lokin Alav) and the Rishonim later. The Gemara
there and elsewhere teaches that whenever the Torah prescribes the death
penalty, we must look for an associated Lo Sa'aseh that gives an explicit
command prohibiting the act for which the death penalty is given. Once we
find such a Lo Sa'aseh, the rule is that Malkus can never be administered
based on that Lav, since the purpose of that Lav is to serve as an Azharah
for the death sentence and not to teach that we should administer Malkus (it
is a "Lav she'Nitan l'Azharas Misas Beis Din").
If the Gemara maintains that the Rabanan never administer Malkus for "Lo
Sa'aneh" because there are times when it is used as an Azharah for the
Misah, the death penalty, of Edim Zomemim, then why does the Gemara explain
that the reason the Rabanan do not give Malkus in the first case of the
Mishnah is because of "Kedei Rish'aso?" The Gemara should have said simply
that the Rabanan do not give Malkus for Edim Zomemim because "Lo Sa'aneh" is
an Azharah for the death penalty -- a "Lav she'Nitan l'Azharas Misas Beis
Din," and not because of "Kedei Rish'aso!"
Second, how can Rashi say that Edim Zomemim never receive Malkus based on
the Lo Sa'aseh of "Lo Sa'aneh?" We see clearly in the Mishnah (on 2a) that
Edim Zomemim who testified falsely that a Kohen was a Ben Gerushah receive
Malkus. Obviously, the verse of "v'Hitzdiku" (Devarim 25:1) is teaching that
Malkus is given to Edim Zomemim despite the fact that "Lo Sa'aneh" is a "Lav
she'Nitan l'Azharas Misas Beis Din." (See TOSFOS DH v'Rabanan, and GILYON
HA'SHAS there.) If the verse teaches that Edim Zomemim receive Malkus for a
"Lav she'Nitan l'Azharas Misas Beis Din," then why should we not administer
Malkus even in the case of the Mishnah in which Edim testified that the
defendant was Chayav Malkus? What reason is there to limit the verse of
"v'Hitzdiku" to the case of Edim Zomemim who testified that a Kohen was a
Ben Gerushah, as opposed to other cases of Edim Zomemim? (RITVA)
ANSWERS: The Rishonim have a number of different approaches to these
(a) TOSFOS (DH v'Rabanan and DH L'Azharah) explains that when the Gemara
asks that there should be a separate set of Malkus for "Lo Sa'aneh," the
Gemara thought that Malkus is given when the Torah specifies a punishment of
Malkus for a certain transgression *even when there is no Lo Sa'aseh*
associated with the prohibited act. Therefore, in the Mishnah's case, there
should be one set of Malkus for "Ka'asher Zamam," and a second case of
Malkus for "Lo Sa'aneh." The Gemara answers that a punishment of Malkus
cannot be given unless there is a Lo Sa'aseh associated with the prohibited
act. Therefore, "Ka'asher Zamam" by itself is not sufficient reason to give
Malkus to the Edim Zomemim (when they testify falsely that someone is Chayav
Malkus) had it not been for the Lo Sa'aseh of "Lo Sa'aneh." Thus, the Malkus
of the Lo Sa'aseh of "Lo Sa'aneh" is one and the same Malkus as that of
This answers our questions. When the Gemara discusses Edim who testified
falsely that a person owes money, the Edim do not receive Malkus for
"Ka'asher Zamam" in such a case. Therefore, if not for the rule of "Kedei
Rish'aso," Malkus for "Lo Sa'aneh" *could* be given in such a case, since
"Lo Sa'aneh" is not being used to give any other Malkus in this case. This
explains why there *is* Malkus in the case of Edim Zomemim who testified
falsely that a Kohen was a Ben Gerushah. In that case, too, there is no
other Malkus being administered because of "Lo Sa'aneh," and therefore "Lo
Sa'aneh" can warrant a punishment of Malkus. It is only in a case in which
"Lo Sa'aneh" is already being used as an Azharah for a punishment of Malkus
of "Ka'asher Zamam" that we cannot administer a second punishment of Malkus
for the Lav of "Lo Sa'aneh."
According to Tosfos, the wording of the Gemara is somewhat forced. The
Gemara does not mean that "Lo Sa'aneh" is being used for an Azharah for
"Edim Zomemim" in general, but that it is being used as an Azharah for the
punishment of Malkus of "Ka'asher Zamam" which is being given to the Edim
Zomemim in this specific case.
(b) The RAMBAN and RITVA explain that "Lo Sa'aneh" is indeed an Azharah for
Edim Zomemim in general, and not just for Malkus of Edim Zomemim. They
explain that just as the punishment of Malkus is administered only when
there is a Lav that serves as an Azharah for the prohibited act (as Tosfos
writes), so, too, the punishment of "Ka'asher Zamam" is a punishment which
is given only when there is a Lav prohibiting the act. Therefore, whether
the witnesses testified that the defendant owes money, or whether they
testified that he should receive Malkus or Misas Beis Din, in all of these
cases the Lav of "Lo Sa'aneh" is needed as an Azharah to punish the Edim
Zomemim by making them pay, receive Malkus, or be killed. Why, then, does
the Gemara earlier say that the reason why Edim Zomemim do not receive
Malkus for "Lo Sa'aneh" when they testify falsely that someone owes money is
because of "Kedei Rish'aso?" The Gemara should have said that they do not
receive Malkus because "Lo Sa'aneh" in this case is being used already to
punish them with "Ka'asher Zamam" by making them pay!
The Ramban, cited by the Ritva (beginning of 4b), answers that it appears
that the Gemara indeed could have used this argument to exempt the Edim
Zomemim from Malkus. It mentions "Kedei Rish'aso" as an *extra* reason for
why they do not receive Malkus. In fact, when Rebbi Meir says in the Mishnah
that the reason Edim Zomemim who testified falsely that the defendant owes
money receive Malkus is because "the verse that gives them Malkus is not the
same verse that obligates them to pay," his intention is to rebut the
reasoning of the Rabanan who exempt the Edim from Malkus because the Lav of
"Lo Sa'aneh" is the Lav which obligates them to pay because of "Ka'asher
Zamam." Rebbi Meir is following his own opinion as expressed in the end of
the Mishnah, in which he maintains that "v'Lo Yosifu" (Devarim 19:20) is the
Azharah that obligates the Edim for the punishment of "Ka'asher Zamam" (i.e.
the monetary payment), and therefore "Lo Sa'aneh" is free to teach that they
must receive Malkus as well.
According to the Ramban and Ritva, in the case of Edim Zomemim who testify
falsely about a Kohen being a Ben Gerushah, the Edim can be given Malkus of
"Lo Sa'aneh" since that Lav is not being used in that case to administer a
punishment of "Ka'asher Zamam."
There is an important difference between the approaches of Tosfos and the
Ramban with regard to the nature of the punishment of Edim Zomemim.
According to Tosfos, "Ka'asher Zamam" is punishable with one of three
different types of punishments. Sometimes the punishment of "Ka'asher Zamam"
is a monetary payment, sometimes it is a punishment of Malkus, and sometimes
it is a punishment of Misah. In contrast, according to the Ramban and Ritva
there is only one punishment for Edim Zomemim; that punishment is named
"Ka'asher Zamam," and it is an entirely new punishment. Sometimes that
punishment entails obligating the Edim Zomemim pay, and sometimes it entails
killing them. However, according to the Ramban, in all of these cases the
punishment is the same: a punishment of "Ka'asher Zamam." (See Insights to
This difference in understanding affects a number of Halachos of Edim
Zomemim. For example, Tosfos in Bava Kama (4b, DH v'Edim) cites the RI who
explains that Edim Zomemim who succeeded in obligating a person to pay money
are punished with "Ka'asher Zamam," because -- with regard to monetary
punishment -- the rule is "Onshin Min ha'Din" (and thus if they are punished
when they did not succeed in carrying out their plot, then certainly they
are punished when they did succeed). According to the Ramban and Ritva, this
argument is not valid. The punishment of Edim who testified that a person
owes money is not a monetary punishment; rather it is a punishment of
"Ka'asher Zamam," which is equivalent to a punishment of Malkus (as we see
in our Sugya regarding Azharah); consequently, we cannot give a punishment
based on a Kal v'Chomer (because of the normal rule of "Ein Onshin Min
The Ritva earlier in Makos (3a, DH u'Parchinan Kol k'Minei) indeed writes
that in cases of monetary punishment, we also apply the rule of "Ka'asher
Zamam v'Lo Ka'asher Asah."
(c) RASHI, however, does not seem to accept either of these approaches.
Rashi explains that the Lav of "Lo Sa'aneh" is used for an Azharah for the
punishment of "Ka'asher Zamam" and not for the punishment of Malkus.
Therefore, he is not explaining like Tosfos explains. Rashi also does not
seem to agree with the Ramban and Ritva. Although he agrees that the Lav of
"Lo Sa'aneh" is an Azharah for the punishment of "Ka'asher Zamam,"
nevertheless Rashi seems to be learning that since "Lo Sa'aneh" is written
as an Azharah, we can *never* administer Malkus for "Lo Sa'aneh according to
the Rabanan, even when we are not applying a punishment of "Ka'asher Zamam."
For this reason, Rashi in the Mishnah does not explain Rebbi Meir's
expression that "the verse that gives them Malkus is not the same verse that
obligates them to pay" in the same way that the Ramban and Ritva explain it.
Rashi maintains that if "Lo Sa'aneh" would be the Azharah for the punishment
of "Ka'asher Zamam," then even in a case where the punishment of "Ka'asher
Zamam" is not being applied, there still would be no Malkus for "Lo
Sa'aneh." Therefore, had Rebbi Meir meant to say that "Lo Sa'aneh" is not
being used as an Azharah for "Ka'asher Zamam," he should not have mentioned
Tashlumin, monetary payment. He should have said that "Lo Sa'aneh" does not
bring a punishment of "Ka'asher Zamam." According to this, our two questions
return according to Rashi.
It seems that Rashi learns the Gemara's conclusion the same way that Tosfos
learns the Gemara's initial question. When the verse specifies a punishment
of Malkus for a certain act, it is not necessary to find a Lo Sa'aseh that
is associated with the prohibited act. Therefore, when the verse says either
"Ka'asher Zamam" or "v'Hitzdiku," Malkus is given even if there is no Lo
Sa'aseh given as an Azharah.
This answers our first question. When the Gemara says that "Kedei Rish'aso"
is the reason why the Rabanan do not give Malkus to Edim Zomemim who testify
falsely that someone owes money, the Gemara is not referring to Malkus of
"Lo Sa'aneh." Malkus is never administered for "Lo Sa'aneh," since it is
used as an Azharah for the punishment of "Ka'asher Zamam" ("Ka'asher Zamam"
is a stronger punishment than Malkus, and therefore, like the punishment of
Misah, it *does* need an Azharah). Rather, the Gemara means to ask why do
the Rabanan not give Malkus because of the verse of "v'Hitzdiku Es
ha'Tzadik," which applies whenever Edim are found to be lying.
Our second question was how could the Gemara say that "Lo Sa'aneh" is used
for an Azharah already, when we know that Edim Zomemim who testified that a
Kohen was a Ben Gerushah receive Malkus for "Lo Sa'aneh." According to our
explanation, this can be answered in a similar manner as the first question.
Edim Zomemim in the case of Ben Gerushah do not receive Malkus for "Lo
Sa'aneh," but rather for "v'Hitzdiku."
Why, according to this, do the Rabanan not administer two sets of Malkus
when the Edim Zomemim testify falsely that someone is Chayav Malkus -- one
for "Ka'asher Zamam" and one for "v'Hitzdiku?" The answer to this is that
"v'Hitzdiku" is not a separate cause for Malkus. It is only a statement the
Torah makes to teach that Malkus is to be administered in a case of Edim
Zomemim. Since -- when witnesses testify that someone is Chayav Malkus -- we
administer a set of Malkus because of "Ka'asher Zamam," that set of Malkus
will fulfill the requirement of the verse of "v'Hitzdiku" as well.
"V'Hitzdiku" therefore cannot obligate a new set of Malkus.
The Gemara's question was from the verse of "Lo Sa'aneh," because "Lo
Sa'aneh" *should* obligate a second set of Malkus, since it is a separate
*cause* for Malkus. One cause for Malkus is because the Edim Zomemim wanted
to inflict the defendant with a punishment of Malkus, and the second cause
is that the Edim Zomemim transgressed a Lo Sa'aseh of "Lo Sa'aneh."
One more point, however, needs to be resolved according to Rashi. The Gemara
here is saying that there is no Malkus for "Lo Sa'aneh," because it is an
Azharah for "Ka'asher Zamam." Earlier, the Gemara (2b) says that there is no
punishment for "Ka'asher Zamam," because it is a Lav she'Ein Bo Ma'aseh. Why
does the Gemara there not give the reason of our Gemara, and why does our
Gemara not give the reason of the Gemara there (see Tosfos)?
The answer is that the Gemara earlier followed the initial assumption of the
Gemara here, that "Ka'asher Zamam" is comparable to Malkus -- which does not
need a verse as an Azharah, and it is not comparable to Misas Beis Din
(which does need a verse as an Azharah). That is why the Gemara thought that
"Lo Sa'aneh" is not punishable with Malkus because of another reason (i.e.
because it is a Lav she'Ein Bo Ma'aseh). Why, though, does our Gemara not
say that there is no Malkus for "Lo Sa'aneh" because it is a Lav she'Ein Bo
The answer is that it is evident from the Mishnah that Rebbi Meir maintains
that there *is* Malkus for a Lav she'Ein Bo Ma'aseh, and that is why Malkus
is given for "Lo Sa'aneh." The Gemara prefers to show that even if the
Rabanan agree that there is Malkus for a Lav she'Ein Bo Ma'aseh, they still
would not give Malkus for a different reason (because "Lo Sa'aneh" is an
Azharah for the punishment of "Ka'asher Zamam").