Malkos on an issur hana’ah
Rishonim discuss that
a kzais of bbc gets malkos, but what if you get
from bbc (or urlah/khk) which has an issur achilah, would you get malkos?
This is a major machlokes Rishonim.
(Sefer HaMitzvos- [shoresh sheni]) (p14) - says that you
get malkos b/c lotochal means lo teheneh as well.
get malkos [b/c it is a lsbm].
Aside: Machlokes b/t Rambam and Chinuch about lav sheain bo maaseh (lsbm)Sefer HaChinuch-
get malkos by a LSBM if efsahr b’davar acher.
(on baal yerueh and yimetzeh by Pesach)- says that if you have chametz inyour house before pesach then it is a LSBM, but if you bought the chametz on pesachthen you did a maaseh
and you should get malkos
: The Rambam says that you only get malkos if “
you actually did a maaseh
,” but if you didn’t then
you don’t get malkos
. The Chinuch says that if there is
any possible case that you could have an issur hana’ah w/o doing a maaseh,
then it isnot ever a chiuv maaseh even if you happened to do the action with a maaseh [b/c it is“efshar bli maaseh.”]
Machlokes Chinuch/ Rambam about why you don’t get malkos by issur hana’ahSvara for the Sefer HaChinuch
(p7)- says that you don’t get malkos for the issur hana’ah b/c it is a lav sheain bo ma’aseh and ain lokin (ie to sell the urlah). We learn theissur of malkos from “lo tachsom shor,” (not to muzzle a shor). According to the
has a maaseh.
Svara for the Rambam
why don’t you get malkos for an mere issur hanaah byshaar issurim
(w/o a maaseh)
- the reason why you don’t get malkos is b/c you aren’t eating thefood, but you are using an ochel for another purpose and
that is shelo k’derech!!
b/c thedavar ochel is meant to eat. This is why there is no malkos.(Av: But if you do a maaseh then you do get malkos and that is also not the ‘prime issur’)A2)
- says that hana’ah is not written b’perush, but achilah is writtenb’perush so there is no malkos by issur hana’ah.
- What about BBC? According to the Magid Mishna you would get malkos (b/c thehana’ah is k’derech) and according to the Mishna L’melech it is written b’perush so you
- says that BBC you get malkos even though BBC wasn’t written.
Rambam’s Nekudah Nifla’ahChullin
(113b-114a) (p16)- cooking milk and fat (chalav b’chelev) seems to be regular BBC, except that chelev has its own issur. There is a machlokes in the gemara.Q) Do we say that there is also an issur of BBC on the issur chelev (concerning theachilah) OR// is this
ain issur chal al issur (AIC)
and b/c there is already an issur on the