Babylonian Talmud

Rodkinson 1918 — source 17, scan section 18

Papa to Rabha: Why did R. Jehanan say above that he gets stripes? The negative in question is not similar to the negative of " muzzling " (which was said that it is placed there to teach that only to such which is not succeeded by a positive stripes apply)? Rejoined Rabh Papa: Should the negative become weaker because of the succeeding positive? Answered Rabha: According to your theory stripes should apply to each negative which is succeeded by a positive, which is not the case. Said Rabh Papa again: There it is different, as the positive usually comes to remove the negative {i.e., one shall not do so, but if he did, s/ia/lhe do so and so). But Rabha's explanation holds good only according to him who holds that the culprit does not get stripes unless he abolishes the succeeding positive command. {I.e., the seducer who has divorced his wife may always say: " I will remarry her." Hence the positive is not abolished, and therefore he is not liable. But according to him who holds that only then is he free from stripes when he fulfils the command {i.e., if he comes to the court, which commands him to marry her immediately, and if he does not listen he gets stripes). Hence, you cannot say that this positive rests upon all his life, and consequently it does not modify its preceding negative? Let us see: this objection applies only to Johanan's foregoing theory, and he said to the disciple who has repeated before the Boraitha concerning a positive which succeeds a negative: " Go and teach thus: Only when he has abolished the succeeding one, but not otherwise." R. Simeon b. Lakish, however, dif- fers, and says: He is free from stripes only when he has fulfilled the succeeding one. What is their point of difTerence? A doubtful warning — e.^., in the case in question, if he was warned that he shall not divorce her, it was still doubtful whether after divorcing he will not remarry her; hence such a warning is not considered cer- tain. But, nevertheless, according to R. Johanan it suffices, so that he may be punished; but according to Resh Lakish he is not. And both differ in the explanation of R. Jehudah's theory in the following Boraitha: It reads [Ex. xii. lo] : " And ye shall not let anything of it remain until morning; and that which remaineth of it until morning ye shall burn." We see, then, TRACT MACCOTH (STRIPES). 3^ that the verse comes to place a positive after a negative for the purpose that if one did leave he shall not be punished, and has only to burn it. Such is the decree of R. Jehudah, R. Johanan explains R. Jehudah's words thus: The reason why he does not get stripes is the succeeding positive, but if it were not he would be punished, although the warning was doubtful, as he could thereafter burn it. Resh Lakish, however, explains it thus: The reason why he does not get stripes is the succeeding, but if it were not he would get stripes, as to a negative command that does not contain manual labor, stripes do apply. But let us see : Resh Lakish cannot deny that such a warning was a doubt- ful one, and R. Johanan cannot deny that such a negative does not concern manual labor; what, then, is the use of their expla- nation? Both agree that, if not for the succeeding, stripes would apply ; notwithstanding that there were both a doubtful warn- ing and a positive of no manual labor. Resh Lakish shares the opinion of R. Jehudah of another Boraitha (Chulin 82, b.), in which R. Jehudah admits that a doubtful warning is not consid- ered; and R. Johanan holds with R. Jehudah of the following: R. Idi b. Abin in the name of R. Amram and R. Itz'hak, quot- ing R. Johanan, said : R. Jehudah in the name of R. Jose the Galilean declared that for the violation of all the negatives of the Torah, if there be manual labor implied, the transgressor is punished with stripes, but not if mental, except in the cases of an oath, exchanging,* and cursing his neighbor by the Holy name. But if so, then, R. Johudah contradicts himself? Resh Lakish may say that there are two Tanaim who said in the name of R. Jehudah differently, and R. Jehanan may say that in the latter Boraitha R. Jehudah declared the theory of his master, but his own opinion he declared in the former Boraitha. There is a Mishna: He who took the mother-bird with her children gets, according to R. Jehudah, stripes, but is not obliged to send away the mother-bird; and according to the sages, he sends away, but is not punished with stripes; as the rule is: for a negative which is conjoined with a positive there is no liability. Said R. Johanan : There is only one more case similar to this. And to the question of R. Elazar, What is it? he rejoined: Go and find out ! He did so and found the follow- ing: " If a seducer has divorced, ' ' etc. , v. above, p. 37. But this can be correct only with him who holds that he is released from * Lev. xxvii., 10. 40 THE BABYLONIAN TALMUD. stripes after the fulfilment of the positive only. But according to him who holds that stripes do not apply unless the positive is abolished, such can be done only with the former mother-bird by killing her, as then the positive he " shall send her away " is abolished. But how can such be found in the case of the divorce in question ; and should you say that he killed her, then he de- serves capital punishment; and there is a rule that stripes do not apply to him who is to be executed? Said R. Simi of 'Huz- nah : " E.g., he accepted betrothal money for her from some one else, hence she becomes the wife of another, and the positive " he shall remarry" is abolished. Said Rabh: Such cannot be considered ; as in case she made him her messenger to accept the above, she may ignore the message; and, if he did it without asking her who gave him the right to such that it should be con- sidered? Therefore said R. Simi of Nehardea: If, e.g., he has made a vow publicly that he must not derive any benefit from her (and such a vow cannot be absolved), hence the positive is abolished and he is liable. Are there indeed no more similar cases to those by R. Johanan stated? Is there not robbery to which it reads, " Thou shalt not steal," and the positive " He shall return it," and also concerning a pledge to which the negative is, " Thou shalt not come to pledge," and the positive is " Thou shalt return the pledge at sunset "? And these two cases also can be explained in both ways: Fulfilled the positives or not, abolished the positives or not? With these cases it is different, for he has to pay, and there is a rule: He who pays does not get stripes. But is there not " Peah," the negative of which " thou shalt not cut . . . the corners " and the positive " unto the poor . . . leave" [Lev. xxiii. 22], which also may be explained in both ways as said above? Therefore we must