Wednesday, October 17, 2007

Lashes without an Action

The Gemora (Kesuvos 46a) states: If the husband defames his wife, he receives lashes. This is true even though this prohibition does not entail any action.

Tosfos in Shavuos (21a) asks: The Gemora there lists three prohibitions that one violates without performing an action, and nevertheless, one incurs lashes for transgressing them. They are: Violating an oath, making a temurah (attempting to exchange an animal that possesses sanctity with one that does not) and one who curses his fellow using the name of Hashem. Why doesn’t the Gemora include the case of a husband who defames his wife? It is also a prohibition that does not involve an action, but yet, one incurs lashes for its violation.

Tosfos answers: It is not necessary for the Gemora to include this case in the listing because the fact that the husband receives lashes is explicitly written in the Torah. Tosfos adds that even if you say that this case should be included in the listing, it is not a question as to why it was omitted because the Gemora wasn’t listing every applicable case.

The Ramban answers that the Gemora is in accordance with Rabbi Yehudah who rules that the husband does not receive any penalties unless he has hired the witnesses. Accordingly, this prohibition does involve an action, and that is why it is not included in the listing.

The Brisker Rav (Temurah 3a) answers that the lashes received is not because the husband violated the prohibition of slandering, for anyone who talks lashon harah does not receive lashes. The lashes are one of the laws for one who defames his wife; he is required to pay a fine, he may not divorce her and he receives lashes. The Gemora required a verse for the warning only because there is a rule that one may not receive lashes unless the Torah states a warning. Accordingly, this is why it is not included in the listing; he does not receive lashes because he violated a negative prohibition, but rather, it is one of the components of the laws for one who defames his wife.