OPINIONS: Rebbi Akiva relates that he asked Raban Gamliel and Rebbi Yehoshua how many Korbanos must a man bring when he unintentionally had relations with his sister who is also his father's sister and his mother's sister. Three separate verses in the Torah prohibit having relations with one's sister, one's father's sister, and one's mother's sister. What happens if a man has relations with a woman who is related to him in all three ways. Must the man bring three Korbanos for having relations with her, or is his act considered a single transgression for which he needs to bring only one Korban?

Raban Gamliel and Rebbi Yehoshua answered that although they did not hear the answer to this exact question, they heard a similar Halachah from which the answer can be deduced. If a man had relations with five women who were all Nidos, and he did not know about the prohibition against having relations with a Nidah, he must bring five separate Korbanos. The logic of a Kal va'Chomer extends this Halachah to Rebbi Akiva's case: if, in the case of having relations with five women who are Nidos -- where the man is considered to have transgressed five Isurim simultaneously because of his single lack of knowledge of the Isur -- the Torah requires a separate Korban for each transgression, then where the man transgressed three separate Isurim at once, he certainly must bring three separate Korbanos!

This logic seems to contradict the Gemara earlier. The Gemara (5b) states that the logic of a Kal va'Chomer cannot be used to administer a punishment when the Torah itself does not prescribe such a punishment ("Ein Onshin Min ha'Din"). Why did Raban Gamliel and Rebbi Yehoshua not consider that principle in their response to Rebbi Akiva?

(a) The RITVA cites the RA'AVAD who answers that Raban Gamliel and Rebbi Yehoshua taught only the number of Korbanos that the transgressor must bring when he transgressed multiple Isurim simultaneously. They were not teaching a new prohibition or punishment. To determine merely the number of Korbanos, a Kal va'Chomer may be used, since it is considered no different from using a Kal va'Chomer to determine the meaning of any other verse.

(b) The RITVA answers that they understood that the rule of "Ein Onshin Min ha'Din" applies only to other punishments, but not to the obligation to bring a Korban. The reason for this difference is that a Korban is primarily a form of Kaparah, atonement, and it is not an Onesh, a punishment. The rule of "Ein Onshin Min ha'Din" applies only to deriving a punishment from a Kal va'Chomer, and not to deriving a Kaparah.

REBBI AKIVA EIGER adduces support for the Ritva's answer from the Gemara in Shevuos (31b). The Mishnah there discusses a person's obligation to bring a Korban when he swore falsely that he was not aware of testimony which could support another person's claim in court. The Mishnah says that even when a person is not asked to testify, but he takes the initiative himself and swears (falsely) that he does not know any information about his friend's case, he is obligated to bring a Korban. The Gemara asks what the source is for the law that such an oath obligates him to bring a Korban, and it says that his obligation to bring a Korban is derived from a Kal va'Chomer: if he is obligated to bring a Korban when others make him swear, then certainly he is obligated to bring a Korban when he swears on his own initiative. It is clear from the Gemara there that an obligation to bring a Korban may be derived from a Kal va'Chomer.

It is interesting to note that the Ritva himself does not refer to that Gemara as proof for his answer. Indeed, the Gemara there may be understood in a way contrary to the Ritva's assertion. The HALICHOS OLAM explains that the Gemara there is showing that a Kal va'Chomer may be used to administer a punishment when the Kal va'Chomer merely supports the intent of the verse. This teaching -- that someone who voluntarily swears falsely about testimony is considered the same as someone who was forced by court to swear -- may be understood as the intention of the verse, independent of any logic. The Kal va'Chomer merely provides logical support for this way of understanding the verse. In contrast, a Kal va'Chomer may not be used to teach something entirely heretofore unknown, where its teaching is not stated in the verse at all. This implies, contrary to the Ritva's assertion, that a Kal va'Chomer may not be used to teach that one is obligated to bring a Korban in a case which is not mentioned at all in the verse.

The ARUCH LA'NER and other Acharonim ask a different question on the Ritva. The Gemara in Sanhedrin (54a) states that a man who has relations with his father transgresses two prohibitions -- the Isur of Mishkav Zachor and the Isur of having relations with one's father, and he is obligated to bring two Korbanos. The Gemara clearly learns the second obligation from a Kal va'Chomer and states explicitly that this is in accordance with the opinion that maintains "Onshin Min ha'Din" (that a Kal va'Chomer may be used to administer a punishment). According to the Ritva, however, the Gemara there should have said that even the opinion that maintains "Ein Onshin Min ha'Din" agrees that the man must bring two Korbanos, because the principle of "Ein Onshin Min ha'Din" does not apply to Korbanos!

The Aruch la'Ner answers that the Gemara in Sanhedrin is using a Kal va'Chomer in its most powerful form -- to obligate a person to receive Kares (and bring a Korban when the act is done unintentionally) when it never would have been known it otherwise (without the Kal va'Chomer). In that case, even the Ritva would agree that a Kal va'Chomer may not be used to teach so much new information. In the Gemara here, in contrast, it is already known that all of these offenses (of living with one's sister) are punishable with Kares. The question involves only the number of Korbanos brought when all of these Isurim are transgressed simultaneously. This amount of information may be learned from a Kal va'Chomer, even according to the Ritva. (Y. MONTROSE)

QUESTION: Rebbi Yochanan states that when a positive commandment precedes a negative commandment relating to the same Mitzvah, someone who transgresses the negative commandment receives Malkus.

What does Rebbi Yochanan mean when he refers to a positive commandment that "precedes" a negative one? Does he mean the order of the verses, or does he mean the chronological order of the performance of the acts (that is, the positive commandment is performed prior to the prohibition)?

RASHI explains that Rebbi Yochanan is addressing the opinion that maintains that when the negative commandment is first, the offense is not punishable with Malkus. It is a "Lav ha'Nitak l'Aseh." This means that the Torah -- by writing the positive commandment after the negative one -- is teaching how to correct one's action; the positive commandment takes the place of a punitive punishment. Rashi says that this applies when the positive commandment can be fulfilled only after the Isur was done. When the positive commandment can be fulfilled before the Isur, this logic does not apply (since there is no prohibition yet to rectify). This is why Rebbi Yochanan rules that one who performs a positive commandment before its corresponding negative one is punished with Malkus.

Rashi seems to understand that Rebbi Yochanan refers to the order of the performance of the actions, and not to the order in which they are written in the Torah.

The RITVA questions Rashi's explanation from the proof that the Gemara gives for Rebbi Yochanan's ruling. Rabah proves Rebbi Yochanan's ruling from the fact that a Tamei person who enters the Beis ha'Mikdash is punished with Malkus, despite the fact that there is a positive commandment to leave the area. In that situation, the Mitzvah to leave the Mikdash applies after the person has entered and, nevertheless, the person is Chayav Malkus! According to Rashi, the fulfillment of the Mitzvah to leave the Mikdash should suffice to exempt him from Malkus. If, however, Rebbi Yochanan means that one is Chayav Malkus when the positive commandment precedes the negative one in the Torah, then the Gemara's support for Rebbi Yochanan is clear. The positive commandment to leave the Mikdash is stated in the Torah before the Isur against entering. How does Rashi reconcile his explanation with the Gemara's proof?

(a) The RITVA answers that everyone agrees that when the positive commandment precedes the negative one in the Torah, there is a punishment of Malkus. Rashi means that even when this is not the order of the verses, Rebbi Yochanan's law may still apply if this is the chronological order. The Ritva explains that in a case in which a person became Tamei while he was in the Beis ha'Mikdash, he immediately is obligated to leave the area (the positive commandment), and he does not immediately transgress the negative prohibition against defiling the Mikdash (see ARUCH LA'NER for a discussion of why this is so). That is, the chronological order is that the positive commandment precedes the negative one. As long as it is possible for the positive commandment to be fulfilled first, it is evident that the reason why the Torah gives such a Mitzvah is not in order to exonerate the person from punishment. Therefore, the transgression of this negative commandment is still punishable with Malkus.

(b) The PNEI YEHOSHUA, GINAS VERADIM (#23), and others explain that Rashi's intention is to say that Rebbi Yochanan's rule applies when both criteria -- the order in the Torah and the chronological order -- are met. They prove this from the Mitzvah of Shilu'ach ha'Ken. The positive commandment is to send away the mother bird, and the negative one is not to take the mother bird away when she is among her offspring. Although it is possible to perform the positive commandment before the negative one in that case, the Halachah follows the view of the Rabanan who say that one does not receive Malkus for transgressing the negative commandment. According to the Ritva's explanation of Rashi, one still should be Chayav Malkus, since it is possible to perform the positive commandment first.

The Acharonim explain that Rashi understands that one does not receive Malkus for this Isur, because the Isur is stated in the Torah before the positive commandment. Rashi requires both criteria in order to administer Malkus. (The Ritva himself answers this question here by stating that according to the Rabanan, in the case of Shilu'ach ha'Ken the Mitzvah to send away the mother bird applies only after one did not take the mother bird for his own use. The Ritva says that Rashi understands that there is no Malkus in that case because the positive Mitzvah is done only after the negative one, in chronological order.) (Y. MONTROSE)