Don't Drink. Don't Drink

Makkot (3:7) | Yisrael Bankier | 14 days ago

The final perek of Makkot deals with the punishment of lashes. The Mishnah also discusses cases where one can be liable to multiple set of lashes. One case is where a nazir drank wine, despite being warned against doing so. The Mishnah teaches that if the nazir was warned only once, then even if the nazir spent the whole day drinking wine, he would only receive one set of lashes. If however he was warned prior to drinking each cup, then he would be liable for each drink. We shall try to understand this Mishnah.

The Ritva (21a) cites Rashi who explains that one can only punish an individual if he violates the prohibition, toch kedai dibur, within a short time after the warning. That is because if it was after that time, the person can claim that he forgot the warning. Granted that when the person drank the wine all day, one could theoretically divide it into many instances that are each equivalent to the minimum punishable amount. Nevertheless, only the first violation would be close enough to the warning to make the person liable to lashes.

The Ritva however cites the Tosfot who finds this understanding difficult. They direct our attention to the case where a person was warned against having a particular forbidden relationship, for example, a kohen with a divorcee. If he then violates this prohibition with different divorcees, he would be liable to multiple sets of lashes. The reason is that we say each person is distinct, "dividing" the transgression into multiple instances. This is despite the fact that the later transgressions were some time after the initial warning. The Tosfot therefore explain that since he was engaged with the string of prohibitions immediately, we do not say he forgot the warning in the midst of doing so.

If that is the case, why then would the nazir not be liable to multiple sets of lashes with one warning? The Ri explains that drinking the wine is considers one guf, like one body. We only breakup an extended action into multiple transgressions if they involved different bodies (like the example above) or multiple different prohibitions. Unless of course, as explained in our Mishnah he is warned prior to drinking each cup.

Interestingly the Rambam (on the Mishnah) cites the Yerushalmi that raises the following case. Someone warns the nazir that the content of a barrel is a certain multiple of the minimum prohibited amount and if he drank it, he would be liable to that many sets of lashes. If the nazir then drank the wine, he would be liable to multiple sets of lashes.

The Tifferet Yisrael however notes that the Rambam omits this law in the Mishnah Torah (Sanhedrin 12). He explains that that is likely because he rules like Rashi that for one to be punished, the violation must be toch kedai dibur of the warning and these two laws contradict one another.

It interesting then that the Bartenura appears to cite the position of Rashi by explaining that the person is only punished for what he drank toch kedai dibur. Nevertheless, he also cites that law from the Yerushalmi.

Perhaps we can answer the Bartenura as follows. Note that everyone maintains that the violation must be toch kedei dibur. The debate between Rashi and Tosfot is whether an extended violation is still considered toch kedei dibur. Perhaps then the Bartenura maintains like that Tosfot Rid (Kidushin 77b) who maintains that the reason why he can only get one set of lashes if he is warned once, is not because he might forget the warning at time he drank later. Rather it is because he can claim that while he was aware of his violation, he thought that he would be punishable with only one set of lashes. He could say, that had he know each cup made him liable to another set of lashes, he would have never continued beyond the first cup.

According to this understanding the two laws do not contradict one another. His continued drinking is indeed considered toch kedei dibur to the warning (like the Tosfot explained). He however can only be liable to lashes for the first cup that was drank toch kedei dibur, since he can claim that he was unaware that the additional cups would have made he liable to further sets of lashes. If however, he was warned that the continued drinking would make him liable to multiple sets of lashes, then he no longer claim ignorance in his defence and would be liable to multiple sets of lashes as the Yerushalmi explains.

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