1) PUNISHING A THIEF WITH "MALKUS"

OPINIONS: The Gemara discusses the opinion of Rebbi Yochanan, who rules that, in most cases, one does not receive a punishment of Malkus for transgressing a Lav for which a Mitzvas Aseh must be performed ("Lav ha'Nitak l'Aseh"). Rebbi Yochanan's reasoning is that a person can choose to fulfill the Mitzvas Aseh and thereby negate the necessity for Malkus. He states that there are only two exceptions to this rule: Shilu'ach ha'Ken and Ones (the Gemara later replaces Ones with Pe'ah as the second exception). The Gemara asks that cases of Gezel and Mashkon also should be exceptions to the rule, because in both of these cases the perpetrator can burn the object that was stolen or deposited and thereby nullify the possibility to perform the Mitzvas Aseh to give it back. The Gemara answers that "since he is obligated to pay [for the object], he does not receive a punishment of Malkus as well as an obligation to pay."

The Gemara apparently means that since the person is punished with a monetary obligation for his act of stealing, he cannot receive a punishment of Malkus as well, in accordance with the rule that two punishments are not administered for one act (see RAMAH cited by the RITVA).

However, that rule applies only when a single act warrants two punishments. In the case which the Gemara here discusses, however, the two punishments -- Malkus and an obligation to pay -- are for two separate acts! The Malkus is for the act of stealing, and the obligation to pay for the object is for the later act of destroying the object. Why, then, should the perpetrator not be punished both with Malkus and with the obligation to pay?

(a) The RITVA explains that the thief's or trustee's obligation to pay for the object takes effect at the moment that he stole it and not later, at the time that he destroyed it. Accordingly, the obligation to give back or pay for the object takes effect at the same time that the Chiyuv of Malkus takes effect, and, therefore, he cannot receive two punishments for the same act.

(b) TOSFOS questions the Ritva's explanation. If the person was obligated to receive Malkus and to pay because of his single act of stealing, then why is the Halachah that he must pay and he does not receive Malkus? The Halachah should be that he must receive Malkus and not pay! Rebbi Yochanan himself says in Kesuvos (32b) that if there is a choice between obligating a person to pay money or giving him Malkus, Beis Din gives him Malkus. Moreover, the Gemara here continues and asks that a case of a deposit given by a convert who dies should also be an exception to Rebbi Yochanan's rule (and the perpetrator should receive Malkus), and it answers that the perpetrator is still obligated to pay, but he merely has no one to whom to give the money (since the convert has no heirs). If the perpetrator does not have to pay in practice, then he should receive the other punishment, Malkus!

Tosfos therefore explains the Gemara based on the Girsa that appears in other texts of the Gemara. In those texts, the Gemara says simply that in cases of theft and deposits, "there is payment." That is, although the object was destroyed, the person still may fulfill the Mitzvas Aseh to return the object by paying money instead. This is also the opinion of the RAMBAN (in Milchamos Hash-m to Bava Metzia 26b) and the ROSH (Bava Metzia 2:9). (The NETZIV in HA'EMEK SHE'EILAH (She'ilta 72:1) points out that according to this explanation, it must be that Tosfos does not follow the opinion of Rav Chisda in Bava Metzia (48a) who says that one fulfills the Mitzvah to return a stolen object only by giving back the original object.)

Tosfos asserts that this explanation is the intention of the Ramah as well.

How does the Ritva answer the questions that Tosfos asks on his explanation? The Ritva answers the first question of Tosfos by saying that although Rebbi Yochanan maintains, in other cases, that Malkus is the preferred punishment, in this case Rebbi Yochanan would agree that the preferred punishment is payment. This is because the Torah explicitly states that a person who steals should pay, and Beis Din cannot rule contrary to the Torah's explicit command.

Why, then, does Tosfos say that Rebbi Yochanan's view that Malkus is the preferred punishment should apply to the case of theft, if the Torah explicitly says that such a person should pay? The SHA'AR HA'MELECH (Hilchos Chovel u'Mazik 1:3) defends the reasoning of Tosfos. He explains that although Tosfos rules that a thief must compensate the owner even though the original object is no longer extant, this obligation of compensation is not directly stated in the Torah. The Torah discusses only the basic case of a thief (and trustee) who must return the original object. Where the original object no longer exists, Beis Din is able to apply Rebbi Yochanan's ruling that Malkus is the preferred punishment.

Although the Ritva defends the Ramah's explanation, he concludes that Tosfos' explanation is correct. (See also RAMBAM, Hilchos Sanhedrin 18:2, and KESEF MISHNEH there). (Y. MONTROSE)

2) A DEAD ANT

QUESTION: The Gemara states that one who eats an ant receives five sets of Malkus. RASHI explains that if one swallows a live ant, there is no minimum amount of ant that he must eat in order to be punished with Malkus, since he swallowed an entire creature.

Rashi implies that the law of "Biryah" (that a whole object is considered significant in itself and it needs no minimum Shi'ur to make it significant) applies only to an ant that is alive.

The ROSH YOSEF (Chulin 96b) and others assert that this cannot be the law. The Gemara in Chulin (102b) states that if one eats a non-kosher bird, he transgresses the prohibition and is punished regardless of whether it was alive or dead. Rashi himself explains there that this is because of the law of "Biryah"! Clearly, the law of "Biryah" applies even when the creature is dead.

Moreover, the continuation of the Gemara here implies that "Biryah" applies to a dead creature as well. The Gemara discusses a case in which a person crushed nine ants and added one more ant to form a k'Zayis. Rashi explains that by crushing the ants, the person removed the status of "Biryah" from the ants. If the law of "Biryah" applies only to a living creature, then it would not be necessary to crush the ants; it would suffice to kill them in one strike!

What is the meaning of Rashi's words in this Sugya?

ANSWERS:

(a) The CHIKREI LEV (YD, end of 71) explains Rashi's intention as follows. Generally, a prohibition against eating a forbidden item applies only to the normal manner of eating ("Derech Achilah"). Accordingly, one might have thought that the Gemara here refers only to one who eats dead ants, since the normal way to eat ants is when they are dead (that is, even people who eat ants do not eat them live). Therefore, Rashi writes that the rule of "Derech Achilah" does not apply when one eats a "Biryah." The law of "Biryah" is not derived from a prohibition of Achilah but from a different source (see Chulin 96b). Accordingly, eating a "Biryah" -- even in an unusual manner -- constitutes a transgression of the prohibition and is punishable.

(b) The ARUCH LA'NER answers that the reason why Rashi says that the Gemara refers to a live ant is that one of the prohibitions that the person transgresses is learned from the verse, "ha'Sheretz ha'Shoretz..." (Vayikra 11:41), which refers to a crawling (living) creature.

(c) The NACHAL ESHKOL answers that Rashi says that only a live ant is considered a "Biryah" because of an anatomical phenomenon. He explains that immediately after an ant dies, some of its legs disintegrate, thereby disqualifying a dead ant from being considered a "Biryah." (Y. MONTROSE)

3) THE PROHIBITION OF "LO TISHAKTZU"

OPINIONS: The Gemara states that a person who refrains from relieving himself when the need arises transgresses the prohibition of "Lo Tishaktzu" (Vayikra 20:25). The Gemara says that one also transgresses this prohibition when he drinks from a utensil into which a blood-letter poured blood.

Is this prohibition against doing a disgusting act a Torah prohibition or a decree of the Rabanan?

(a) The SEFER HA'YERE'IM, SEMAK, and other Rishonim maintain that this a Torah prohibition. The PRI CHADASH (YD 116:11) and IYUN YAKOV cite the Gemara in Shabbos (90b) to support this opinion. The Gemara there discusses an argument in the Mishnah between the Tana Kama and Rebbi Yehudah. The Tana Kama maintains that one is prohibited to carry the slightest amount of a live, kosher Chagav (a form of grasshopper) on Shabbos into Reshus ha'Rabim (while a dead Chagav is prohibited only when it is a certain minimum size). Rebbi Yehudah argues and maintains that one is prohibited to carry even the slightest amount of a live, non-kosher Chagav. The Gemara explains that the Tana Kama does not consider a non-kosher Chagav to be a significant object in itself (such that it needs no minimum Shi'ur), because one is not permitted to give it to a child to play with, lest he eat it. The Gemara asks that according to this reasoning, one should also be prohibited from giving even a kosher Chagav to a child, because if he eats it he will transgress the Isur of "Lo Tishaktzu."

The Gemara in Shabbos there clearly implies that the Isur of "Lo Tishaktzu" is an Isur d'Oraisa, because if it is an Isur d'Rabanan, the Gemara there should answer that the Tana Kama's concern applies only when a Torah prohibition is involved. It is the manner of the Rabanan to enact an Isur d'Rabanan to prohibit an act which might lead to a transgression of an Isur d'Oraisa, but the Rabanan do not prohibit an act which might lead only to an Isur d'Rabanan.

(The TEVU'OS SHOR (#13) writes that even according to the opinion that "Lo Tishaktzu" is an Isur d'Oraisa, not every disgusting act is prohibited by the Torah.)

(b) The RITVA in the name of "all of the commentators," the ME'IRI, and other Rishonim maintain that the prohibition is only mid'Rabanan. How do they understand the Gemara in Shabbos? The Pri Chadash himself suggests that the Gemara there perhaps is no proof that "Lo Tishaktzu" is an Isur d'Oraisa, because since children constantly put their playthings into their mouths, when one gives them any object it is tantamount to actually feeding them. Accordingly, the Gemara there asks that one should be prohibited from giving a child even a kosher Chagav because he directly causes the child to transgress "Lo Tishaktzu."

(c) The opinion of the RAMBAM is unclear. In Sefer ha'Mitzvos, after the Rambam lists the Mitzvah not to eat these creatures, he writes that one who delays relieving himself and one who drinks from the blood-letter's utensil is not punished with Malkus d'Oraisa, but with Malkus d'Rabanan. Similarly, when the Rambam records the Halachah (in Hilchos Ma'achalos Asuros 17:29-30), he writes that eating disgusting things is included in the prohibition of "Lo Tishaktzu," but he reiterates that an offender is punished only with Malkus d'Rabanan. The CHIKREI LEV (YD 140) infers from the Rambam's statement that "these things are included in Bal Tishaktzu" that he maintains that this is a Torah prohibition. This is also apparent from his wording in Sefer ha'Mitzvos when he says that "there is no Malkus because the straightforward meaning of the verse refers only to a Sheretz." If he maintains that it is an Isur d'Rabanan, that fact alone would suffice as the reason why the transgressor does not receive Malkus, and the Rambam would not need to mention that the simple meaning of the verse is that it refers to a Sheretz.

However, the RASHBATZ (in Zohar ha'Raki'a), the DIVREI CHAMUDOS (Berachos 3:74), and others assert that the Rambam maintains that the prohibition is only mid'Rabanan. The Divrei Chamudos deduces this from the Rambam's introductory words in Hilchos Ma'achalos Asuros, where he says, "The Sages prohibited...." If the Rambam maintains that this is a Torah law, he should state instead, "The Sages said...." His wording implies that eating disgusting things was not forbidden until the Rabanan prohibited it. (Y. MONTROSE)