Makkos Daf 15 מאקוס דַף 15

Rebbe Yochanan said: כל לא תעשה שקדמו עשה לוקין עליו – regarding any negative commandment preceded by an עשה, one receives malkus for transgressing it. Although one can avoid malkus for a לאו הניתק לעשה, where the עשה was given to “correct” the violation of the לאו, an עשה which precedes the לאו does not exempt one from malkus. When asked, Rebbe Yochanan denied holding this way, but Rabbah confirmed this was his opinion, and brought proof for it: the Torah requires a טמא to leave the Mikdash (an עשה), and the next passuk prohibits a טמא from entering it (a לאו), and our Mishnah taught that a טמא who enters the Mikdash receives malkus. Later, Rav Pappa asks why one receives malkus for such a לאו, since it is not similar to לאו דחסימה – the prohibition against muzzling a threshing animal (the model for malkus)!? Rava responds: משום דכתב ביה רחמנא עשה יתירא מגרע גרע – is it any less because the Torah wrote an additional עשה for it? Rav Pappa asked that the same could be argued for לאו הניתק לעשה, which does not receive malkus, but Rava explained: ההוא לנתוקי לאו הוא דאתא – that [עשה], which is commanded after violating the לאו, comes to remove the לאו from the standard punishment of malkus by instead requiring the עשה.

The Gemara asks why Rebbe Yochanan had retracted his ruling and explains because a Baraisa teaches: אונס שגירש – one who violated a בתולה, and after marrying her (as required), he divorced her, then if he is a Yisroel (who may remarry her), מחזיר ואינו לוקה – he remarries her and does not receive malkus. Since the עשה to marry the אנוסה precedes the לאו to divorce her, he should receive malkus!? The Gemara attempts at length to answer that the עשה to remarry her is superfluous, since it is also written regarding מוציא שם רע (and is therefore applied to after divorcing), but this answer is ultimately rejected.

Rava eventually answers: כל ימיו בעמוד והחזר – “all his days” he is subject to the commandment to arise and remarry her. The Torah’s superfluous phrase not to divorce her “all his days” teaches that if he does divorce her, she cannot remain divorced “all his days,” and he must remarry her. This עשה follows the לאו.

Someone quoted a Baraisa regarding לאו הניתק לעשה, with contradictory implications. It said that if the transgressor fulfilled the עשה afterwards, he is exempt from malkus, implying that merely failing to fulfill it would incur malkus. Yet, it concludes that if he nullified the עשה, he receives malkus, implying he only receives malkus if he makes it impossible to fulfill the עשה. Therefore, Rebbe Yochanan told him to emend his Baraisa to teach: ביטלו ולא ביטלו – if he nullified [the עשה] he is liable, and if he did not nullify it he is exempt. Reish Lakish held to emend it the opposite way: קיימו ולא קיימו – if he fulfilled it (when ordered by Beis Din) he is exempt, and if he did not fulfill it he is liable. Their machlokes depends on another: Rebbe Yochanan holds התראת ספק שמה התראה – an uncertain warning is considered a valid warning for malkus. Therefore, although when one violates the לאו, it is unknown if he will later nullify the עשה (thereby completing the violation), the התראה is valid for malkus. Reish Lakish holds התראת ספק is not a valid התראה, and is forced to hold קיימו ולא קיימו, where the transgression is complete when he violates the לאו (although he can rectify it by fulfilling the עשה).