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Tiresias: The Ancient Mediterranean Religions Source Database



1767
Babylonian Talmud, Makkot, 16a


משום דהוי לאו שאין בו מעשה וכל לאו שאין בו מעשה אין לוקין עליו ר"ל אומר אינו לוקה משום דהוי התראת ספק וכל התראת ספק לא שמה התראה,ותרוייהו אליבא דרבי יהודה דתניא (שמות יב, י) ולא תותירו ממנו עד בקר והנותר ממנו עד בקר וגו' בא הכתוב ליתן עשה אחר לא תעשה לומר שאין לוקין עליו דברי רבי יהודה ר' יוחנן דייק הכי טעמא דבא הכתוב הא לא בא הכתוב לוקה אלמא התראת ספק שמה התראה,ור"ל דייק הכי טעמא דבא הכתוב הא לא בא הכתוב לוקה אלמא לאו שאין בו מעשה לוקין עליו,ור"ש בן לקיש נמי הא ודאי התראת ספק הוא,סבר לה כאידך תנא דר' יהודה דתניא הכה זה וחזר והכה זה קילל זה וחזר וקילל זה הכה שניהם בבת אחת או קילל שניהם בבת אחת חייב רבי יהודה אומר בבת אחת חייב בזה אחר זה פטור,ורבי יוחנן נמי הא ודאי לאו שאין בו מעשה הוא,סבר לה כי הא דאמר רב אידי בר אבין אמר רב עמרם א"ר יצחק א"ר יוחנן ר' יהודה אומר משום רבי יוסי הגלילי כל לא תעשה שבתורה לאו שיש בו מעשה לוקין עליו לאו שאין בו מעשה אין לוקין עליו חוץ מן הנשבע ומימר והמקלל את חבירו בשם,קשיא דרבי יהודה אדרבי יהודה,אי לר"ש בן לקיש תרי תנאי אליבא דרבי יהודה אי לרבי יוחנן לא קשיא הא דידיה הא דרביה,תנן התם הנוטל אם על הבנים רבי יהודה אומר לוקה ואינו משלח וחכ"א משלח ואינו לוקה זה הכלל כל מצות לא תעשה שיש בה קום עשה אין חייבין עליה א"ר יוחנן אין לנו אלא זאת ועוד אחרת,א"ל ר' אלעזר היכא א"ל לכי תשכח נפק דק ואשכח דתניא אונס שגירש אם ישראל הוא מחזיר ואינו לוקה ואם כהן הוא לוקה ואינו מחזיר,הניחא למאן דתני קיימו ולא קיימו,אלא למאן דתני ביטלו ולא ביטלו בשלמא גבי שילוח הקן משכחת לה אלא אונס ביטלו ולא ביטלו היכי משכחת לה,אי דקטלה קם ליה בדרבה מיניה אמר רב שימי מחוזנאה כגון שקיבל לה קידושין מאחר אמר רב אי שוויתיה שליח איהי קא מבטלא ליה אי לא שוויתיה שליח כל כמיניה ולא כלום היא,אלא אמר רב שימי מנהרדעא כגון שהדירה ברבים הניחא למ"ד נדר שהודר ברבים אין לו הפרה אלא למ"ד יש לו הפרה מאי איכא למימר דמדירה לה על דעת רבים דאמר אמימר הלכתא נדר שהודר ברבים יש לו הפרה על דעת רבים אין לו הפרה,ותו ליכא והא איכא (סימן גז"ל משכ"ן ופא"ה) גזל דרחמנא אמר (ויקרא יט, יג) לא תגזול (ויקרא ה, כג) והשיב את הגזלה משכון דרחמנא אמר (דברים כד, י) לא תבא אל ביתו לעבוט עבוטו השב תשיב לו העבוט כבא השמש,ומשכחת לה בקיימו ולא קיימו וביטלו ולא ביטלו התם כיון דחייב בתשלומין אין לוקה ומשלם,מתקיף לה רבי זירא הא איכא משכונו של גר ומת הגרbecause it is a prohibition that does not involve an action. He violates the oath by failing to perform an action, rather than by performing an action, and the principle is: With regard to any prohibition that does not involve an action, one is not flogged for its violation. Reish Lakish says: He is not flogged, because the forewarning in this case is an uncertain forewarning. One cannot properly forewarn him before he takes the oath, because as long as time remains in the day he can still eat the loaf at a later time and fulfill the oath; and any uncertain forewarning is not characterized as forewarning.,The Gemara adds: And both Rabbi Yoḥanan and Reish Lakish hold in accordance with the opinion of Rabbi Yehuda, as it is taught in a baraita: It is stated with regard to the Paschal offering: “And you shall let nothing of it remain until the morning, and that which remains of it until the morning you shall burn in fire” (Exodus 12:10). The verse comes to position the positive mitzva of burning the leftover flesh after the prohibition against leaving over the flesh, to say that one is not flogged for its violation; this is the statement of Rabbi Yehuda. Rabbi Yoḥanan inferred this from the statement of Rabbi Yehuda: The reason he is not flogged is that the verse comes and positions the mitzva after the prohibition; but if the verse had not come and positioned the mitzva after the prohibition, he would have been flogged. Apparently, uncertain forewarning is characterized as forewarning, as he can be forewarned not to leave over the flesh of the offering, even though he would not be flogged were he to burn it.,And Reish Lakish inferred this: The reason he is not flogged is that the verse comes and positions the mitzva after the prohibition; but if the verse had not come and positioned the mitzva after the prohibition, he would have been flogged. Apparently, one is flogged even for violating a prohibition that does not involve an action, as he violates the prohibition without performing an action.,The Gemara asks: And according to Rabbi Shimon ben Lakish too, this is certainly a case of uncertain forewarning; why, then, does he not conclude based on Rabbi Yehuda’s statement that uncertain forewarning is characterized as forewarning?,The Gemara answers: He holds in accordance with the opinion of the other tanna in the name of Rabbi Yehuda, as it is taught in a baraita: If a woman was divorced and remarried soon after, and a son was born seven months after her remarriage and nine months after her divorce, it is unclear whether he is the son of the first husband or of the second husband. In that case, if this son struck this husband of his mother, and then struck that husband, or if he cursed this husband and then cursed that one, and likewise if he struck both of them simultaneously or cursed both of them simultaneously, he is liable for striking or cursing his father. Rabbi Yehuda says: If he cursed or struck both of them simultaneously he is liable, but if he cursed or struck them one after the other, even if he was forewarned prior to cursing or striking each one, he is exempt. Apparently, Rabbi Yehuda is of the opinion that one is not flogged after uncertain forewarning; since in this case it is impossible to determine which of them is the father, inevitably the forewarning is uncertain.,The Gemara asks: And according to Rabbi Yoḥanan too, this is certainly a case of a prohibition that does not involve an action. Why, then, does he not conclude based on Rabbi Yehuda’s statement that one is flogged for violating a prohibition of that kind?,The Gemara answers: Rabbi Yoḥanan holds in accordance with that which was cited in his name, as Rav Idi bar Avin says that Rav Amram says that Rabbi Yitzḥak says that Rabbi Yoḥanan says that Rabbi Yehuda says in the name of Rabbi Yosei HaGelili: With regard to any prohibition in the Torah, if it is a prohibition that involves an action, one is flogged for its violation; if it is a prohibition that does not involve an action, one is not flogged for its violation, except for one who takes a false oath, one who substitutes a non-sacred animal for a sacrificial animal, saying: This animal is substituted for that one, and one who curses another invoking the name of God. In those three instances, the perpetrator is flogged even though he performed no action.,The Gemara asks: Although the difficulties that were raised with regard to the opinions of Rabbi Yoḥanan and Reish Lakish were answered, the apparent contradiction from one statement of Rabbi Yehuda to another statement of Rabbi Yehuda is difficult. The Gemara cited contradictory statements of Rabbi Yehuda with regard to lashes both in the case of a prohibition that does not involve an action and in the case of uncertain forewarning.,The Gemara answers: If it is according to Rabbi Shimon ben Lakish, the contradiction may be resolved with the explanation that the two sources reflect the opinions of two tanna’im, who disagree in accordance with the opinion of Rabbi Yehuda. If it is according to Rabbi Yoḥanan, the contradiction is not difficult, as this baraita reflects his opinion, that one is flogged for violating a prohibition that involves an action, and that baraita reflects the opinion of his teacher, Rabbi Yosei HaGelili, who holds that one is not flogged for violating a prohibition that involves an action.,§ We learned in a mishna there (17a): With regard to one who takes the mother bird with her fledglings, thereby violating the Torah prohibition: “You shall not take the mother with her fledglings; you shall send the mother, and the fledglings you may take for yourself” (Deuteronomy 22:6–7), Rabbi Yehuda says: He is flogged for taking the mother bird, and he does not send the mother, and the Rabbis say: He sends the mother and is not flogged, as this is the principle: With regard to any prohibition that entails a command to arise and perform a mitzva, one is not liable to receive lashes for its violation. Rabbi Yoḥanan says: We have only this mitzva and another where one would be flogged if not for the relevant mitzva.,Rabbi Elazar said to Rabbi Yoḥanan: Which is that other mitzva? Rabbi Yoḥanan said to him: You will know when you discover it yourself. Rabbi Elazar went out, examined the matter, and discovered the answer, as it is taught in a baraita: With regard to a rapist who divorced the woman he raped, if he is a non-priest, he remarries her, and he is not flogged for violating the prohibition: “He may not send her away all his days” (Deuteronomy 22:29). And if he is a priest, he is flogged for violating the prohibition, and he does not remarry her.,The Gemara states: This works out well according to the one who teaches that the criterion for determining whether one is flogged for violating a prohibition that entails fulfillment of a positive mitzva is whether he fulfilled the mitzva or did not fulfill the mitzva, and if he does not fulfill the mitzva immediately when he is instructed to do so, he is flogged when he fails to do so.,But according to the one who teaches that the criterion for determining whether one is flogged in that case is whether he nullified the mitzva or did not nullify the mitzva, and one is flogged only if he performed an action that renders it impossible to fulfill the mitzva, granted, with regard to the sending away of the mother bird from the nest, you can find a situation where he nullifies the mitzva, e.g., if he killed the mother bird. But in the case of a rapist, if the criterion is whether he nullified the mitzva or he did not nullify it, how can you find a situation where the man is flogged because he nullified any possibility of remarrying her?,If he cannot remarry her because he killed her, he will be executed, not flogged, based on the principle: He receives the greater punishment. Rav Shimi of Meḥoza said: He nullifies the possibility of remarriage in a case where he received, on her behalf, the money for betrothal from another, thereby ensuring that his own remarriage to her is no longer an option. Rav said: That is not a viable solution; if his ex-wife designated him as an agent to receive the money of betrothal on her behalf, it is she who nullifies the possibility of fulfilling the mitzva for him, as a woman is betrothed only with her consent, and he is not liable at all. If she did not designate him as an agent, is it in his power to accept betrothal on behalf of a woman who did not designate him to do so? His action is nothing, and the betrothal does not take effect.,Rather, Rav Shimi of Neharde’a said: He nullifies the possibility of remarriage in a case where he vowed in public that it is prohibited for him to derive benefit from her, and it is consequently prohibited for him to marry her. The Gemara asks: This works out well according to the one who says that a vow that was taken in public has no nullification; he is flogged, since by taking that vow he has rendered remarriage impossible. But according to the one who says that even a vow taken in public has the possibility of nullification, what can be said? He can nullify the vow and remarry her. The Gemara answers: The reference is to a case where he vows on the basis of the consent of the public that it is prohibited for him to derive benefit from her, as Ameimar says that the halakha is: A vow that was taken in public has the possibility of nullification; a vow that was taken on the basis of the consent of the public has no nullification.,The Gemara questions Rabbi Yoḥanan’s statement: And are there no more prohibitions that entail fulfillment of a positive mitzva for which one is flogged? But aren’t there others? Before stating its challenges, the Gemara provides a mnemonic for the cases that it will cite: Robbery, collateral, and pe’a. The Gemara elaborates: Isn’t there the case of robbery, where the Merciful One states: “You shall not rob” (Leviticus 19:13), and also states: “And he shall return the stolen item” (Leviticus 5:23)? Isn’t there the case of collateral, where the Merciful One states: “You shall not come into his house to fetch his pledge” (Deuteronomy 24:10), and He then states: “You shall return to him the pledge when the sun sets” (Deuteronomy 24:13)?,The Gemara continues: And you find that one is liable to receive lashes in those cases both if the criterion is whether he fulfilled the mitzva or did not fulfill the mitzva, and if the criterion is whether he nullified the mitzva or he did not nullify it. According to the first criterion, he is flogged if he fails to return the stolen item or the collateral; according to the second criterion, he is flogged if he destroys the stolen item or the collateral. The Gemara answers: There, in both those cases, he is not flogged, since he is liable to remit monetary payment for the stolen item or the collateral, as the principle is: One is not both flogged and liable to pay restitution for one transgression.,Rabbi Zeira objects to this: But isn’t there a case where he is not liable to pay, e.g., if he appropriated the collateral of a convert and the convert died with no heirs. In that case, there is no payment, and nevertheless, he is not flogged.


Intertexts (texts cited often on the same page as the searched text):

7 results
1. Hebrew Bible, Exodus, 21.17, 22.27 (9th cent. BCE - 3rd cent. BCE)

21.17. וּמְקַלֵּל אָבִיו וְאִמּוֹ מוֹת יוּמָת׃ 22.27. אֱלֹהִים לֹא תְקַלֵּל וְנָשִׂיא בְעַמְּךָ לֹא תָאֹר׃ 21.17. And he that curseth his father or his mother, shall surely be put to death." 22.27. Thou shalt not revile God, nor curse a ruler of thy people."
2. Hebrew Bible, Leviticus, 19.14, 20.9, 24.15 (9th cent. BCE - 3rd cent. BCE)

19.14. לֹא־תְקַלֵּל חֵרֵשׁ וְלִפְנֵי עִוֵּר לֹא תִתֵּן מִכְשֹׁל וְיָרֵאתָ מֵּאֱלֹהֶיךָ אֲנִי יְהוָה׃ 20.9. כִּי־אִישׁ אִישׁ אֲשֶׁר יְקַלֵּל אֶת־אָבִיו וְאֶת־אִמּוֹ מוֹת יוּמָת אָבִיו וְאִמּוֹ קִלֵּל דָּמָיו בּוֹ׃ 24.15. וְאֶל־בְּנֵי יִשְׂרָאֵל תְּדַבֵּר לֵאמֹר אִישׁ אִישׁ כִּי־יְקַלֵּל אֱלֹהָיו וְנָשָׂא חֶטְאוֹ׃ 19.14. Thou shalt not curse the deaf, nor put a stumbling-block before the blind, but thou shalt fear thy God: I am the LORD." 20.9. For whatsoever man there be that curseth his father or his mother shall surely be put to death; he hath cursed his father or his mother; his blood shall be upon him." 24.15. And thou shalt speak unto the children of Israel, saying: Whosoever curseth his God shall bear his sin."
3. Hebrew Bible, Numbers, 35.4-35.5 (9th cent. BCE - 3rd cent. BCE)

35.4. וּמִגְרְשֵׁי הֶעָרִים אֲשֶׁר תִּתְּנוּ לַלְוִיִּם מִקִּיר הָעִיר וָחוּצָה אֶלֶף אַמָּה סָבִיב׃ 35.5. וּמַדֹּתֶם מִחוּץ לָעִיר אֶת־פְּאַת־קֵדְמָה אַלְפַּיִם בָּאַמָּה וְאֶת־פְּאַת־נֶגֶב אַלְפַּיִם בָּאַמָּה וְאֶת־פְּאַת־יָם אַלְפַּיִם בָּאַמָּה וְאֵת פְּאַת צָפוֹן אַלְפַּיִם בָּאַמָּה וְהָעִיר בַּתָּוֶךְ זֶה יִהְיֶה לָהֶם מִגְרְשֵׁי הֶעָרִים׃ 35.4. And the open land about the cities, which ye shall give unto the Levites, shall be from the wall of the city and outward a thousand cubits round about." 35.5. And ye shall measure without the city for the east side two thousand cubits, and for the south side two thousand cubits, and for the west side two thousand cubits, and for the north side two thousand cubits, the city being in the midst. This shall be to them the open land about the cities."
4. Hebrew Bible, Ecclesiastes, 3.11 (5th cent. BCE - 2nd cent. BCE)

3.11. אֶת־הַכֹּל עָשָׂה יָפֶה בְעִתּוֹ גַּם אֶת־הָעֹלָם נָתַן בְּלִבָּם מִבְּלִי אֲשֶׁר לֹא־יִמְצָא הָאָדָם אֶת־הַמַּעֲשֶׂה אֲשֶׁר־עָשָׂה הָאֱלֹהִים מֵרֹאשׁ וְעַד־סוֹף׃ 3.11. He hath made every thing beautiful in its time; also He hath set the world in their heart, yet so that man cannot find out the work that God hath done from the beginning even to the end."
5. Josephus Flavius, Jewish War, 2.147-2.149 (1st cent. CE - 1st cent. CE)

2.147. They also avoid spitting in the midst of them, or on the right side. Moreover, they are stricter than any other of the Jews in resting from their labors on the seventh day; for they not only get their food ready the day before, that they may not be obliged to kindle a fire on that day, but they will not remove any vessel out of its place, nor go to stool thereon. 2.148. Nay, on theother days they dig a small pit, a foot deep, with a paddle (which kind of hatchet is given them when they are first admitted among them); and covering themselves round with their garment, that they may not affront the Divine rays of light, they ease themselves into that pit 2.149. after which they put the earth that was dug out again into the pit; and even this they do only in the more lonely places, which they choose out for this purpose; and although this easement of the body be natural, yet it is a rule with them to wash themselves after it, as if it were a defilement to them.
6. Palestinian Talmud, Yoma, None (2nd cent. CE - 5th cent. CE)

7. Porphyry, On Abstinence, 4.13 (3rd cent. CE - 4th cent. CE)

4.13. 13.Before, however, he who is admitted touches his common food, he takes a terrible oath, in the first place, that he will piously worship divinity; in the next place, that he will preserve justice towards men, and that he will neither designedly, nor when commanded, injure any one; in the third place; that he will always hate the unjust, but strenuously assist the just; and in the fourth place, that he will act faithfully towards all men, but especially towards the rulers of the land, since no one becomes a ruler without the permission of God; in the fifth place, that if he should be a ruler, he will never employ his power to insolently iniquitous purposes, nor will surpass those that are in subjection to him in his dress, or any other more splendid ornament; in the sixth place, that he will always love the truth, and be hostile to liars; in the seventh place, that he will preserve his hands from theft, and his soul pure from unholy gain 14; and, in the eighth place, that he will conceal nothing from those of his sect, nor divulge any thing to others pertaining to the sect, though some one, in order to compel him, should threaten him with death. In addition to these things, also, they swear, that they will not impart the dogmas of the sect to any one in any other way than that in which they received them; that they will likewise abstain from robbery 15, and preserve the books of their sect with the same care as the names of the angels. Such, therefore, are their oaths. But those among them that act criminally, and are ejected, perish by an evil destiny. For, being bound by their oaths and their customs, they are not capable of receiving food from others; but feeding on herbs, and having their body emaciated by hunger, they perish. Hence the Essenes, commiserating many of these unfortunate men, receive them in their last extremities into their society, thinking that they have suffered sufficiently for their offences in having been punished for them till they were on the brink of the grave. But they give a rake to those who intend to belong to their sect, in order that, when they sit for the purpose of exonerating the belly, they make a trench a foot in depth, and completely cover themselves by their garment, in order that they |125 may not act contumeliously towards the sun by polluting the rays of the God. And so great, indeed, is their simplicity and frugality with respect to diet, that they do not require evacuation till the seventh day after the assumption of food, which day they spend in singing hymns to God, and in resting from labour. But from this exercise they acquire the power of such great endurance, that even when tortured and burnt, and suffering every kind of excruciating pain, they cannot be induced either to blaspheme their legislator, or to eat what they have not been accustomed to. And the truth of this was demonstrated in their war with the Romans. For then they neither flattered their tormentors, nor shed any tears, but smiled in the midst of their torments, and derided those that inflicted them, and cheerfully emitted their souls, as knowing that they should possess them again. For this opinion was firmly established among them, that their bodies were indeed corruptible, and that the matter of which they consisted was not stable, but that their souls were immortal, and would endure for ever, and that, proceeding from the most subtle ether, they were drawn down by a natural flux, and complicated with bodies; but that, when they are no longer detained by the bonds of the flesh, then, as if liberated from a long slavery, they will rejoice, and ascend to the celestial regions. But from this mode of living, and from being thus exercised in truth and piety, there were many among them, as it is reasonable to suppose there would be, who had aforeknowledge of future events, as being conversant from their youth with sacred books, different purifications, and the declarations of the prophets. And such is the order [or sect] of the Essenes among the Jews. SPAN


Subjects of this text:

subject book bibliographic info
abaye Schiffman, Testimony and the Penal Code (1983) 152
amoraim, amoraic period Schiffman, Testimony and the Penal Code (1983) 152
angels Schiffman, Testimony and the Penal Code (1983) 152
essenes Schiffman, Testimony and the Penal Code (1983) 152
essenes (judean desert sect, qumran sect Faßbeck and Killebrew, Viewing Ancient Jewish Art and Archaeology: VeHinnei Rachel - Essays in honor of Rachel Hachlili (2016) 55
god Schiffman, Testimony and the Penal Code (1983) 152
halakah, halakic Faßbeck and Killebrew, Viewing Ancient Jewish Art and Archaeology: VeHinnei Rachel - Essays in honor of Rachel Hachlili (2016) 55
health Faßbeck and Killebrew, Viewing Ancient Jewish Art and Archaeology: VeHinnei Rachel - Essays in honor of Rachel Hachlili (2016) 55
hebrew, qumran Schiffman, Testimony and the Penal Code (1983) 152
hellenism, hellenistic period Schiffman, Testimony and the Penal Code (1983) 152
jerusalem Faßbeck and Killebrew, Viewing Ancient Jewish Art and Archaeology: VeHinnei Rachel - Essays in honor of Rachel Hachlili (2016) 55
magic Schiffman, Testimony and the Penal Code (1983) 152
oath, avoidance of Schiffman, Testimony and the Penal Code (1983) 152
oath, false (shevu'at sheqer)" Schiffman, Testimony and the Penal Code (1983) 152
oath Schiffman, Testimony and the Penal Code (1983) 152
palestine Faßbeck and Killebrew, Viewing Ancient Jewish Art and Archaeology: VeHinnei Rachel - Essays in honor of Rachel Hachlili (2016) 55
palestinian talmud Schiffman, Testimony and the Penal Code (1983) 152
rabbi, rabbinic' Faßbeck and Killebrew, Viewing Ancient Jewish Art and Archaeology: VeHinnei Rachel - Essays in honor of Rachel Hachlili (2016) 55
rabbis, rabbinic literature Schiffman, Testimony and the Penal Code (1983) 152
sabbath Faßbeck and Killebrew, Viewing Ancient Jewish Art and Archaeology: VeHinnei Rachel - Essays in honor of Rachel Hachlili (2016) 55
sol (helios), solar worship Faßbeck and Killebrew, Viewing Ancient Jewish Art and Archaeology: VeHinnei Rachel - Essays in honor of Rachel Hachlili (2016) 55
tetragrammaton Schiffman, Testimony and the Penal Code (1983) 152