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חושן משפט

חושן משפט א

פרק כז

א ב ג ד ה ו ז ח ט י יא יב יג יד טו טז יז יח יט כ כא כב כג כד כה כו כז כח כט ל לא לב לג לד לה לו לז לח לט מ מא מב מג מד מה מו מז מח מט נ נא נב נג נד נה נו נז נח נט ס סא סב סג סד סה סו סז סח סט ע עא עב עג עד

Choshen Mishpat

Choshen Mishpat 1

Chapter 27

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א ב

27:1 27:2

Sif

הלכה א

שלא לקלל דיין או שום אחד מישראל ובו ב סעיפים:
המקלל א' מישראל ואפי' מקלל עצמו (טור) בשם או בכנוי או בא' מהשמו' שקורין העכו"ם להקב"ה אם היה בעדי' והתראה לוקה אחת משום לא תקלל חרש ואם היה דיין לוקה עוד אחרת משום אלהים לא תקלל וארור הוי לשון קללה:

משנה ברורה

1.

One who curses an Israelite,1Mishna Sheb. 35a and Gemara ibid. 36a. and even [if] he curses himself,2Tur — G. Mishna and Gemara ibid.: ‘For it is written, Only take heed to thyself, and keep thy soul (life) diligently (Deut. IV, 9. In Ber. 32a this verse is taken to mean that one should take good care of the body and its needs and not subject himself to dangers whence it is implied that it is forbidden to curse oneself) and … wherever it is said, take heed, lest, or not, it is nothing but a negative precept (Hence, in this verse take heed to thyself also means ‘do not invoke any curse upon thyself’).’ — by the [Divine] Name or by a substitute,3Mishna ibid.: ‘(If one said to witnesses, I adjure you) by Alef-Daleth (the first two letters of Adonai, the Lord) or by Yod-He (the Tetragrammaton) or by Shaddai (the Almighty) or by Ẓebaoth ([Lord] of Hosts) or by the Merciful and Gracious One, or by Him that is long-suffering and of great kindness, or by any of the substitutes of the Name, they are liable … If a man cursed himself or his fellow by any of them, he transgresses a negative precept.’ Gemara ibid. 36a: ‘R. Jannai said: This is the view of both (i.e., R. Meir and the Sages both agree that one who curses himself or his neighbour not merely by the Name, but even by any of the substitutes, transgresses a negative precept).’ or by one of the names that the heathens call the Holy One, Blessed be He,4 San. 60a whence it is derived that substitutes for the Divine Name employed by heathens are considered valid substitutes. Cf. also Ned. 3a, 10a where substitutes regarding vows are considered the foreign equivalents of the Hebrew. Thus Yad, Sanhedrin XXVI, 3 and Tur a.l. — if this took place in the presence of witnesses5 Deut. XIX, 15. and [was preceded by] warning,6 Ket. 33a. he receives lashes7Thus was the procedure in Temple days. Derived from Tem. 3a-b, 4a: ‘R. Iddi b. Abin stated on the authority of R. Amram, R. Isaac and R. Joḥanan: R. Jose the Galilean reported: With regards to every negative precept laid down in the Torah, if one performs an act (in violating it) he is punished with lashes, but if he does not perform an act (in violating it) he is exempt, save in the case of one who takes an oath, exchanges (an unconsecrated animal for one that is consecrated), and curses his fellow with the Name, in which cases, although he performed no act, he is punished (with lashes) … And he who curses his neighbour with the Name: Whence is this derived? — R. Eleazar stated on the authority of R. Oshaia: The text reads, If thou wilt not observe to do etc. (Deut. XXVIII, 58. The verse continues: That thou mayest fear this glorious and fearful name, the Lord thy God, which intimates that one should not utter the Divine Name in vain and likewise one who curses his neighbour with the Divine Name is included in the same category). And it is written, Then the Lord will make thy plagues wonderful (v. 59). Now I do not know what is the nature of this wonder (peculiarity of punishment). But when it says (ibid. XXV, 2): That the judge cause him to lie down to be beaten (והפילו which is similar to the expression והפלא He will make … wonderful), this indicates that the wonderful (punishment) refers to punishment with lashes … Why not say … since he transgresses two things, first in uttering the Lord’s Name in vain and then in irritating his fellow, consequently, punishment with lashes should not suffice? — You cannot say thus, for it is written, Thou shalt not curse the deaf (Lev. XIX, 14 whether with or without the Divine Name).’ Thus also in Y. Sheb. IV, 10(35d) in accord with R. Jose contra the Colleagues. , however, RaBaD to Yad ibid. who on the basis of Y. ibid. deduces that if one cursed with a substitute he is not punished by lashes. It is only when he curses with the Tetragrammaton, although no act is performed, yet lashes are administered. , Kes. Mish. to Yad ibid. who defends Maim. against RaBaD’s stricture. on account of [the negative precept] 'Thou shalt not curse the deaf,'8Lev. XIX, 14. Actually the negative precept Thou shalt not curse the deaf includes all persons. The deaf was singled out, although he does not hear and is not subjected to any suffering, so that people should not take advantage of his infirmity. Thus Yad, Sanhedrin XXVI, 1 and Tur a.l. — M.E. Cf. also Sifra to Lev. ibid. and if [the cursed person] was a Judge, he receives additional lashes on account of [the negative precept] 'Thou shalt not curse the Judges.'9Ex. XXII, 27. Thus San. 66a. This, however, refers to a permanent Judge — P.Tesh. And [if one cursed by] Arur it is considered a form of curse.10Sheb. 36a. It must, however, contain the Name or its substitutes — M.E.

Mishnah Berurah

הלכה ב

אם לא היתה שם התראה או שקלל בלא שם ובלא כינוי או שהיתה הקללה באה מכלל הדברים כגון שאמר אל יהי פלוני ברוך לה' אינו לוקה (וה"ה המקלל את המת פטור) (טור) אבל איסורא מיהו איכא ואם חרף ת"ח מנדין אותו ואם רצו הדיינים להכותו מכת מרדות מכין ועונשין אותו כמה שיראו ואם חרף עם הארץ עונשין אותו כפי שהשעה צריכה (אפי' מחל המתחרף (נ"א המתקלל) עונשין אותו שכבר חטא ונתחייב) (טור) מי שנתחייב נידוי מפני שהפקיר בב"ד ורצו ב"ד למחול על כבודם ולא נידוהו הרשות בידם והוא שלא יהיה בדבר הפסד בכבוד הבורא כגון שהיו העם מבעטין בכבוד התורה ובדיינים הואיל ופקרו העם בדבר צריכי' לחזק ולענוש כפי מה שירא' להם:

משנה ברורה

2.

If no legal warning [preceded] therein,11e., when one uttered a curse. Thus Yad, Sanhedrin XXVI, 4. For we might have thought that since transgressing this negative precept does not involve the performance of any act (v. supra nn. 6 and 7), consequently, warning should not be required, we are, therefore, informed otherwise. or where one uttered a curse without the [Divine] Name, or without a substitute, or the curse was the result of an implication [from] the words [that he uttered],12 supra par. 1. e.g., where he stated, 'May So-and-so not be blessed unto the Lord,' he receives no lashes.13Mishna Sheb. 35a in accord with the Sages. For when God withholds his blessing it follows that the person is under a curse — M.E. So too, one who curses the dead is exempt.14Tur — G. Yad, Sanhedrin XXVI, Derived from Sifra ibid. , also Mishna San. 85b: ‘One who curses (his parents) after death is liable.’ Hence, since the verse His father or his mother he hath cursed (Lev. XX, 9) was singled out, it follows that for other dead he is not held liable. However, there is, nevertheless, a prohibition [against this]. If one put a scholar to shame, they pronounce the ban against him,15 Y.D. § 242 and § 334; Kid. 70b. , text supra § 7, n. 3 and if the Judges wish to inflict upon him the penalty of chastisement,16 supra § 8, 5, n. 45. This may mean either in addition to proclaiming the ban against him, or it means that if inflicting stripes for disobedience would be more effective, we administer the latter punishment — M.E. The penalty of chastisement is administered at the discretion of the Court and is Rabbinical in origin. , Maim. Comm. to Naz. IV, 3; Hul. 141b. Heb. מרדות according to Rashi is equivalent to רדיה ‘blows enforcing submission.’ This is inflicted for a past offence, but one who refuses to observe a positive precept, even if it is Rabbinical, they may admnister blows until his soul departs, if he is still stubborn, or until he observes the precept (Ket. 86a; Tosef. Mak. III, 10). they may strike him and [thus] punish him as much as they see fit.16 supra § 8, 5, n. 45. This may mean either in addition to proclaiming the ban against him, or it means that if inflicting stripes for disobedience would be more effective, we administer the latter punishment — M.E. The penalty of chastisement is administered at the discretion of the Court and is Rabbinical in origin. , Maim. Comm. to Naz. IV, 3; Hul. 141b. Heb. מרדות according to Rashi is equivalent to רדיה ‘blows enforcing submission.’ This is inflicted for a past offence, but one who refuses to observe a positive precept, even if it is Rabbinical, they may admnister blows until his soul departs, if he is still stubborn, or until he observes the precept (Ket. 86a; Tosef. Mak. III, 10). And if one put an illiterate person to shame, they punish him according to the demand of the hour,17B.K. 91a (ref. to Mishna ibid. 90a: ‘If he spat on his neighbour and the spittle reached him [he must pay him four hundred Zuz’]): Said R. Papa: This was taught only where it reached him (his person), but if only his garment, it is not so. But why should this not be equated to an insult in words? — It was said in the West on the authority of R. Jose b. Abin that this means that if he insulted him in words, he would be exempt from any liability.’ R. Sherira observes that what is meant here is that he is exempt from paying the above-mentioned sum, but it does not exclude punishment entirely. This may be seen from Mishna ‘Ar. 15a: ‘One who speaks with his mouth suffers more than he who commits an act.’ Hence, the Beth Din subjects him to a punishment according to their discretion. Consequently, the ruling here. [and according to the status of the one who puts to shame and the one put to shame],18Thus Yad ibid. even if the one put to shame (another version: the one cursed) has foregone [his honour], we punish him [the offender], for he had already committed a sin and had become guilty.19Tur — G. This Gloss should come at the end of par 1 — Be’er ha-Golah. Derived from Mak. 13b whence it is seen that the Earthly Tribunal does not grant remission to those who have become liable by sentence of a human Court, even if they should do penance. One who was sentenced to be placed under the ban because he acted contumaciously towards the Court of Law, and [the members of] the Court of Law wished to forego their honour and did not place him under the ban, they have a right to do so,20Yad, Sanhedrin XXVI, 6. Derived from Ket. 17a: ‘If a Nasi foregoes his honour, his honour is foregone.’ , Kes. Mish. ibid. provided [that as a result of the Court's leniency] there will not result in this matter a lessening of honour towards the Creator, e.g., where the people acted rebelliously towards the honour of the Torah and the Judges, — [then the law is that] since the people act contumaciously in [this matter], they [the Court of Law] should enforce measures [for the protection of the Law] and mete out punishment according to their discretion.21For sometimes adopting a leniency might lead to the profanation of the Name of Heaven. , Yoma 22b.

Mishnah Berurah

חושן משפט חושן משפט א פרק כז

Choshen Mishpat Choshen Mishpat 1 Chapter 27