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Nazir, 44


QUESTION: The Gemara suggests that when another person is Metamei a Nazir, that person also transgresses the Isur of Tum'ah of a Nazir, just like the Nazir himself who becomes Tamei. The Gemara says that this should be learned from a Kal v'Chomer from the Isur of shaving. We know that when another person shaves the head of a Nazir, that person transgresses the Lav, even though the shaving of a Nazir is not Soser the entire Nezirus. Certainly, then, the person who is Metamei a Nazir should be Chayav for transgressing the Lav of Tum'ah, since Tum'ah is Soser the entire Nezirus.

Why does the Gemara say that a Kal v'Chomer is needed to teach this? If a person is Metamei a Nazir, then he should be Chayav for transgressing a Lo Ta'aseh even *without* the Kal v'Chomer! The Torah says one may not actively be Metamei a Kohen Katan (see Yevamos 114a). This prohibition should certainly apply to an adult Kohen and to a Nazir as well, and it should be prohibited to actively be Metamei him! Why, then, is it necessary for the Gemara to learn from a Kal v'Chomer that it is prohibited to be Metamei a Nazir? It is prohibited because of the verse that the Gemara cites in Yevamos!

Perhaps we might answer that the verse in Yevamos is only a Mitzvas Aseh (Vayikra 21:1). The Gemara is making a Kal v'Chomer to teach that the Lo Ta'aseh of "Lo Yitama" applies as well, and that the one who makes him Tamei is punishable with Malkus.

However, this answer cannot be correct, because there is a principle that "Ein Onshin Min ha'Din," we may not administer a punishment (like Malkus) based on a Limud from a Kal v'Chomer. What, then, is the Gemara trying to learn from the Kal v'Chomer? (KEREN ORAH)


(a) The KEREN ORAH answers that the Gemara is simply trying to learn from a Kal v'Chomer that one who is Metamai a Kohen has transgressed two Isurim (see Yevamos 33b, which says that the practical consequence of this is "l'Kovro Bein Resha'im Gemurim").

(b) We may suggest another answer based on the MAGID MISHNAH (Hilchos Ma'achalos Asuros 2:1). The RAMBAM there writes that even though the Torah prohibits (with an Isur Lav) eating only four specific types of animals that lack one Siman of Taharah, nevertheless if a person eats an animal that lacks *both* Simanim of Taharah, he receives Malkus because of a Kal v'Chomer. The Magid Mishnah asks how can he receive Malkus based on a Kal v'Chomer if "Ein Onshin Min ha'Din?" The Magid Mishnah answers that the Rambam there writes that there is an Isur Aseh for eating any animal that lacks either one of the two Simanim of Taharah. Since eating such an animal is already prohibited by an Aseh, the Kal v'Chomer can teach that one receives Malkus for it. That is, when the act is already prohibited by an Isur, then a Kal v'Chomer *can* be used to administer a punishment (see MISHNAH LA'MELECH and SHA'AR HA'MELECH).

The source for the Magid Mishnah seems to be a Sifri cited in the Rambam's Sefer ha'Mitzvos (Lo Ta'aseh 172). The Sifri mentions the Kal v'Chomer of the Rambam, and concludes that the Isur Aseh of eating such animals is openly stated in the verse, and the Malkus is learned from a Kal v'Chomer.

In our Sugya, too, the Gemara might be able to learn from a Kal v'Chomer that a person who is Metamei a Nazir receives Malkus, since we already know the Isur Aseh from the verse itself.

What is the logic behind the Magid Mishnah's assertion? Why should we be able to derive a punishment from a Kal v'Chomer once we already know the Isur?

The Rambam himself proposes a logic for this in Sefer ha'Mitzvos (Lo Ta'aseh 172). The Rambam writes that administering Malkus based on this Kal v'Chomer does not present a problem of "Ein Onshin Min ha'Din" since this Kal v'Chomer is only a "Giluy Milsa b'Alma" (see Sanhedrin 76a) and not a full-fledged Kal v'Chomer. This is similar to the Kal v'Chomer that teaches the Isur of living with one's daughter, which is derived from the verse that prohibits living with one's granddaughter.

This might be explained as follows. The reason for the principle of "Ein Onshin Min ha'Din" (according to some) is because a Kal v'Chomer is derived based on logic (and not based on tradition, Kabalah). Since the logic upon which the Kal v'Chomer is based might be flawed, we therefore cannot be confident that our Kal v'Chomer is correct with regard to inflicting corporeal punishment on a person because of it. However, once there is strong reason to believe that the Kal v'Chomer is truly valid, we may even punish a person based on it. This is what the Gemara refers to as a Kal v'Chomer acting as a "Giluy Milsa." The Kal v'Chomer that prohibits living with one's daughter from the Isur of living with one's granddaughter is so obvious that we could punish a person based on it. Similarly, if we know that the Torah intends to prohibit a certain act because it gives an Isur Aseh, and a similar act is prohibited with a Lo Ta'aseh as well, then a Kal v'Chomer can serve as a "Giluy Milsa" to teach that the first act is also prohibited with a Lo Ta'aseh (and hence is punishable Malkus).


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