Clarification: He receives Malkos, because, seeing as the Asei precedes the La'av, it is not a 'La'av ha'Nitak la'Asei'.

Question: Perhaps that case is different, seeing as there are two La'avin involved ("ve'Lo Yetam'u es Machaneihem and "ve'el ha'Mikdashi Lo Savo"), one Asei cannot override two La'avin?

Proof: ... like the Gemara answers in Temurah, regarding "Hamer Yamir" (in connection with Temurah), which is not a 'La'av ha'Nitak la'Asei', because one Asei cannot override two La'avin.

Answer: The case in Temurah is different, inasmuch as the two La'avin "Lo Yachlifenu ve'Lo Yamir oso" appear next to each other; but our case, where they do not, if not for the fact that the Asei preceded the La'av, it would have been a 'La'av ha'Nitak la'Asei'.

Clarification: One cannot say that the Asei comes and overrides the La'av since it does not apply to everyone, bearing in mind that (the Asei too is weak, since), she is able to refuse, should she so wish.

Clarification #1: Rashi connects this with the Pasuk "Lo Yuchal le'Shalchah ... " - meaning that he is not permitted to send her away permanently.

Clarification #2: ... whereas in Kidushin he ascribes it to the earlier phrase " ... and she shall be his wife" - meaning that she shall be his wife forever; in other words, for the rest of his life he is subject to the Asei of "Lo Sih'yeh le'Ishah" (so that should he ever divorce her, he will be obligated to take her back).

Clarification: Rashi explains that this refers to Rava's answer of 'Kol Yamav be'Amod ve'Hachzor', which gives the sinner the option of taking her back, since he does not contravene the Asei until he makes a Neder not to take her back. Only then is he not able to claim that he still intends to take her back. But according to those who learn 'Kiymo ve'Lo Kiymo', what can one say?

Eplanation: Throughout the Sugya Rashi explains that 'Kiymo' means that as soon as Beis-Din order him to fulfill the Asei, he does.

Question: In that case, how can the Gemara ask that, according to those who hold 'Kiymo ve'Lo Kiymo', 'Kol Yamav be'Amod ve'Hachzor' will not apply, seeing as it will apply as long as he has not been to Beis-Din?

Alternative Explanation: It is therefore more correct to say that it is only called 'Kiymo' if he fulfils the Asei within 'Toch K'dei Dibur' of having transgressed the La'av.

Rashi Agrees: And that is indeed how Rashi himself explains 'Kiymo' in Chulin.

Question: Nevertheless, it is a little difficult, seeing as according to this explanation, when the Mishnah says 'Machzir ve'Eino Lokeh', the Tana means that he takes her back within 'Toch K'dei Dibur' after having divorced her, and likewise when the Tana says 'Meshale'ach ve'Eino Lokeh'; And this is not what he seems to mean at all!

Clarifying Question #1: What the Tana implies is that he is looking for a way out to prevent the sinner from receiving Malkos, either by taking the woman back or by sending the bird away - even after 'Kedei Dibur', such as where he comes to Beis-Din and asks how to rectify his sin.

Clarifying Question #2: Because if the Tana was speaking specifically 'Toch K'dei Dibur', what he ought to have said was 'Im Hichzir Eino Lokeh'.

Answer (to Original Question): Perhaps one can resolve the Rashi in our Sugya in that one cannot say that it is considered 'Kol Yamav be'Amod ve'Hachzor' as long as he has not been to Beis-Din (as we originally suggested), because the Lashon 'Kol Yamav ... ' implies forever, even after he comes to Beis-Din, as long as he is able to return it, even if he refuses to do so after he has been to Beis-Din. This is because the D'rashah from the superfluous words "Kol Yamav" implies that he is not permitted to send her away permanently, without taking her back. (Note, that I have amended the final section of Tosfos using the explanation of Tosfos Rabeinu Peretz, rather than the Maharsha).

Clarification: This implies that Resh Lakish, who holds 'Kiymo ve'Lo Kiymo', does not concur with the answer of 'Amod ve'Hachzor Ka'i'; because he explains "Kol Yamav" to mean that all his life she shall be his wife and he is not permitted to send her away.

Question: Why does he not then receive Malkos even if he takes her back, seeing as, according to Resh Lakish (who does not hold of the D'rashah of 'Amod ve'Hachzer Ka'i'), it is not a 'La'av ha'Nitak la'Asei', but a 'La'av she'Kodmo Asei'

Answer (Rashi): Rashi therefore explains that, in the opinion of Resh Lakish, neither a La'av she'Nitak la'Asei nor a La'av she'Kadmo Asei is subject to Malkos.

Question: In that case, it is difficult to understand why, according to Resh Lakish, our Mishnah includes 'Tamei she'Ba el ha'Mikdash' among those who receive Malkos? Seeing as he exempts a La'av she'Kodmo Asei from Malkos, when Beis-Din warns him to leave and he does, why is he not Patur from Malkos?

Answer: According to Resh Lakish who holds 'Kiymo, ve'Lo Kiymo', our Mishnah is speaking wher Beis-Din warned him to leave the Azarah, but he refused, in which case he receives Malkos immediately.

Question: Why did Rabah extrapolate earlier that 'Tamei ha'Ba el ha'Mikdash is both a Pasuk and a Mishnah'? Why can we not refute that by saying that even though generally, a La'av she'Kodmo Asei is Patur from Malkos, our Mishnah is speaking where Beis-Din warned him to leave but he refused?

Answer: The reason that we just gave is confined to Resh Lakish, who holds 'Kiymo ve'Lo Kiymo', whereas when Rabah says here 'Tenina, Tamei ha'Ba el ha'Mishkan Kesiva u'Tenina!', it goes according to R. Yochanan, who holds 'Bitlo ve'Lo Bitlo'.

Refutation: This answer however, is a Dochek (forced).

Alternative Explanation: The correct explanation is therefore that of ha'R. Shlomoh from Droyes, who explains that the question 'Hanicha le'Ma'an de'Amar Bitlo ... (R. Yochanan)' refers to Rabah, who extrapolates from our Mishnah 'ha'Ba el ha'Mikdash Tamei', Lokeh!' that a La'av she'Kodmo Asei, Lokin. It is according to him that Rabah makes this inference, because if 'La'av she'Kodmo Asei' was not subject to Malkos, and the reason that our Mishnah rules Lokin is because it is considered a La'av she'Nitak la'Asei as long as he has not nullified it and it is in his power to fulfil it, then, seeing as he wants to leave the Azarah and fulfill the Asei, how will we find a case of Bitlo?

Alternative Explanation (cont.): Whereas according to those opinion who hold 'Kiymo ve'Lo Kiymo', how can we extrapolate 'La'av she'Kodmo Asei Lokin', even assuming 'Ein Lokin' because it is considered a 'La'av she'Nitak la'Asei, here he would receive Malkos. This is because 'Lo Kiymo' will be fulfilled there where he entered the Mikdash be'Tum'ah, they warned him to leave, and he refused (in which case he will receive Malkos immediately, as we explained earlier).

Proof: And a further proof for this explanation is that, according to Rashi (that 'Midi Hu Ta'ama Ela le'R. Yochanan' refers to 'Amod ve'Hachzer ... ', bearing in mind that we Darshen from "Kol Yamav" 'Kol Yamav be'Amod ve'Hachzer Ka'i', how can we justify the Gemara's Kashya on Resh Lakish? Even assuming that by other La'avin, 'La'av ha'Nital la'Asei' would be Chayav Malkos, there where he does not fulfill the Asei, he will not be Chayav, due to the D'rashah 'Amod ve'Hachzer Kol Yamav'.

Query: One could say however, that it is illogical to consider his case better than all other cases of 'La'av ha'Nitak la'Asei throughout Shas, merely because we Darshen "Kol Yamav".

Conclusion: This is also how Mashi'ach queried (Rashi's explanation) and answered. However, this needs looking into.

Clarification: The reason that Resh Lakish does not learn 'Bitlo Chayav' (for example, where one took the mother from the babies and Shechted it, is because he would not then receive Malkos, seeing as it is a Hasra'as Safek (since he may not negate the Asei, and as long as he has not negated the Asei, he is Patur from Malkos).

Question: There is a case of Hasra'as Vaday, namely, there where they warned him as he is about to negate it?

Answer: Rashi therefore explains that the warning must always take place before the sinner performs the La'av (even if the La'av is dependent upon some external matter), as we have learned in Shevu'os, in the Sugya of 'Loaves'. Therefore, Resh Lakish cannot hold 'Bitlo, ve'Lo Bitlo', and say 'Kiymo Patur, ve'Lo Kiymo, Chayav'.

Question: If he did not send the mother away when told to do so by the Beis-Din, he ought not to receive Malkos. This is because when he committed the La'av, it was a Hasra'as Safek, seeing as it was possible that he would fulfill the Asei immediately and send the mother bird away as soon as he took it?

Answer: At this point (when the warning takes place), he is transgressing the La'av of "Lo Sikach ... ", and is not lacking, as far as the act is concerned. Consequently, we can safely assume that, as long as he continues to do what he is doing now (of not sending the mother away), he will continue to do so and will not therefore fulfill the Asei.

Precedent: ... like we find with regard to a Nazir who was drinking wine ... . (on Daf 21a) who receives Malkos on each warning, which is not considered Hasra'as Safek because he might have his Neder revoked, because, since he is currently transgressing, we can assume that he will continue to do as he doing now, without asking a Chacham to revoke his Neder. Consequently, as long as he has not asked, he will receive Malkos, as it is a Hasra'as Vaday. In our case too, we can assume that he will not fulfill the Asei, rendering it a Hasra'as Vaday.

R. Yochanan #1: ... whereas according to R. Yochanan, in whose opinion Malkos depends on negating the Asei, it is considered lacking an act, because as long as he has not done anything to negate the Asei, he will not receive Malkos.

Refutation: Rashi's explanation however, is difficult to understand (see Maharsha).

R. Yochanan #2: The Gemara gives no reason as to why R. Yochanan does not hold 'Kiymo' and 'Lo Kiymo' (like Resh Lakish), because 'Bitlo' and 'Lo Bitlo' is more plausible, and no explanation is necessary. It is Resh Lakish who needs to explains why he disagrees with R. Yochanan.

Question: According to what we explained earlier, that if he continues to do what he is doing, it is not considered a 'Hasra'as Safek', and he has transgressed, it ought not to be considered a Hasra'as Safek here either?

Answer: Nevertheless, he is not Chayav, since close to the warning he has not yet transgressed. It is only in the case of Nazir where he drank wine immediately that we say that just as he did not nullify his Neder now, he is unlikely to do so later (but not in our case, where he is not currently transgressing).