Halakhah su Deuteronomio 22:18

And Ramban, may his memory be blessed, does not hold of this approach and he does not lean towards it; but [rather] he holds that there always be an explicit warning about the one to be lashed or about the one being killed - and not from a general negative commandment. And even if Scripture makes his death penalty explicit a hundred times, the Rabbi will still say that it does not punish unless it warns (and not from a general negative commandment). And he does not consider a general negative commandment as a warning in the place of lashes, because of that which is a famous law in our hands, "We do not administer lashes for a general negative commandment." And therefore he, may his memory be blessed, said that they already clarified in the Gemara from which verse we learned to administer lashes to the rebellious son: And they said in Sanhedrin 71b, "It is like Rabbi Abahu, as Rabbi Abahu said, 'We learned lashes for one who puts out a bad name, as it is written about him (Deuteronomy 22:18), "and they shall chasten him," from "and they chastised him" (Deuteronomy 21:18) that is written about the rebellious son; and "son" from "son" [in] "And if the evildoer be a son of (liable for) lashing" (Deuteronomy 25:2).'" And there is also a difficulty for Rambam, may his memory be blessed, in this, [since] he writes in the second root, that we do not give lashes by the power of a comparison (which is what seems to be indicated here). And he also challenged the Rabbi about his statement that the rebellious son is liable for the death penalty for his indulging in much eating and he did not distinguish between the first eating and the second. But they said explicitly in the Gemara in Sanhedrin 71 that we do not punish the first eating of the rebellious son with the death penalty, but rather lashes, as they said, "We warn him in front of two [witnesses] and we lash him in front of three. [If] he goes back and goes bad, he is judged by twenty-three [judges for the death penalty]." He, may his memory be blessed, also wrote and this is his language, "And what is fit to take out from this is that the first eating is prevented (forbidden) and its punishment is lashes, and the punishment of the second is death, and they are two preventions (negative commandments) in the tally of commandments, and they are [both] included in 'You shall not eat upon the blood.'" To here [are his words].

One may immerse (inaritual bath³⁰Mikveh, מקוה, is a pool or a bath of clear water. When a person immerses in it, it renders ritual cleanliness to one who has become ritually unclean through contact with the dead (Numbers 19) or any other defiling object, or through an unclean flux from the body (Leviticus 15), especially for a menstruant. The mikveh is also used to purify vessels (Numbers 31:22-23). Today the mikveh is used for the menstruant since the laws of ritual purity no longer apply due to the destruction of the Temple. A woman must immerse in the mikveh and purify herself following her menstruation in order to again participate in marital relations. It is also obligatory for proselytes to immerse as part of the ceremony for conversion. Many people still use the mikveh for spiritual purification and thus immerse in it on the eve of the Sabbath, festivals, and especially on the eve of the Day of Atonement. The mikveh serves to purify the spirit, not the body, as described by Maimonides. One has to have a mental intention to purify oneself by immersing in the mikveh.
According to Biblical law any collection of water whether drawn or collected naturally is suitable for a mikveh as long as one person can immerse himself, but the rabbis later stated that only water which has not been drawn, that is not collected in a vessel or recepticle, could be used. The rabbis also established a minimum for the amount of water to be used, that is the amount of water needed to fill a square cubit to the height of three cubits. This is between 250-1,000 liters depending on various calculations. If it contains at least this much undrawn water, any amount of drawn water can be added to it. A whole talmudic tractate Mikva’ot. is devoted to mikvehs and how they are to be constructed.
A mikveh cannot be prefabricated and just installed on a site since this makes it a vessel and constitutes water that has been drawn or collected. It may be built anywhere and out of any material that is water-tight. No water may leak from it, and it must contain the minimun of forty se’ah (250-1,000 liters) of valid, undrawn, water. Originally its height had to be one-hundred and twenty centimeters so one could stand and be totally immersed (even if bending was required). Later it was established that any height was valid if a person could be immersed laying down provided the minimum quantity of water was there.
All natural spring water provided it was not discolored by any admixtures is valid. Rain water or melted snow or ice is ideal for the mikveh provided that it flows unstopped into the mikveh. Pipes may be used to carry this water provided they touch the ground and are thus not considered vessels. A mikveh must be emptied by any means, even a pump, from above. No drain in the bottom is permitted as it makes the mikveh a vessel and subject to leakage. As long as the mikveh has contained at least forty se’ah of valid water, all water added to it, even drawn water is valid.
David Kotlar and Editorial Staff, E. J., v. 11, pp. 1534-44.
A prayer is normally recited after the immersion called al ha-tevilah, “Blessed art Thou, O Lord, our God, King of the Universe, who hast sanctified us by His commandments, and commanded us concerning the immersion”.) and accept lashes³¹Lashes and Malkkut Ar’ba’im, מלקות ארבעים, forty lashes is also known as flogging which is a Biblical form of punishment. When no other form of punishment was specifically prescribed, flogging became the standard form of punishment (Deuteronomy 25:2). Flogging was the only punishment in the Bible used as a general rule and not in relation to any particular offence except for the slandering of a virgin where the lashes as well as a fine were prescribed (Deuteronomy 22:18).
The maximum number of stripes to be administered in any one case are forty (Deuteronomy 25:3) for any further flogging the Bible stated, would degrade your brother in your eyes (Deuteronomy 25:3). The intent of the Bible seems to be that forty is the maximum number of stripes allowed, but that each offense and its seriousness could determine the number of stripes from one to forty provided the maximum number was not exceeded.
Talmudical law detailed how the Biblical punishment of flogging was to be administered. All the laws are found in the Talmudic tractate Makkot, מכות. The rabbis altered the Biblical law of flogging reducing the number of the maximum number of stripes to ever be received from forty to thirty-nine (Mak. 22a) so as to avoid the danger that the flogger accidentally might exceed the number of forty lashes. If he were permitted to administer forty lashes, the flogger might have given an extra one before he could have been stopped thus administering forty-one lashes which exceeds the maximum number of lashes allowed by the Bible and disgracing the man in the eyes of his brothers and thus also would the flogger be made subject to flogging for his transgression. Therefore the rabbis ruled that the maximum number of stripes they would allow was thirty-nine, for even if the flogger made a mistake he could be stopped before he exceeded the maximum number of forty stripes even if he gave an extra one as he was being stopped. (This is the reason for the comment by Isserles to this law given by Caro, see footnote 55).
The rabbis carefully defined all the offenses for which flogging would serve as a punishment. The number thirty-nine became the maximum number of stripes for offenses for which flogging was administered. The rabbis though, were careful not to cause death by flogging which would have exceeded the Biblical law. Therefore all people to be flogged were first examined to see if they could physically withstand the punishment. The examiner would then determine the safe number of stripes to be inflicted (Mak. 3:11). Flogging would be stopped if it appeared during the stripes that the man could not take anymore (Mak. 17:5). Flogging could also be postponed a day until a person would be fit to under-go the punishment (Mak. 17:3).
Floggings were administered with a whip made of calfskin to the bare upper body of the offender. One-third of the lashes were given on the breast and the other two-thirds on the back. The one being flogged would stand in a bowed position and the flogger would stand on a stone above him. As the stripes were being given admonitory and consolatory verses from the Bible would be recited (Mak. 3:12-14). If death did result and the flogging had been conducted according to the law, the flogger was not liable. If though, he had not faithfully followed the law, he had to flee to a city of refuge which was the case in any accidental homocide.
Flogging for disciplinary reasons as well as for punishment for other than transgressing actively a prohibition of the Torah was also prescribed by the rabbis and this was usually done in a public place so as to be a deterrent to others to violate laws. Usually disciplinary stripes were given in lesser numbers (that is less than thirty-nine) and were not administered to the bare upper body nor were they given with a leather whip. As time passed, people were more often allowed to pay fines rather than be whipped and whipping all but replaced capital punishment in Israel.
On Yom Kippur a custom arose that after the Minḥah Afternoon Service, forty stripes (according to Caro, but only thirty-nine in Ashkenazi communities as pointed out by Isserles) were administered while the victim repeated the confession, viddui (see footnote 39). The one who administered the flogging was to say “And He (God) pities and will atone sins”, (Psalms 78:38). The purpose of this custom was to increase one’s awareness of his need for confession to atone for his sins. This was a visual and physical admission of sins and it was believed to help one receive complete atonement.
Haim Hermann Cohn, E. J., v. 6, pp. 1348-51; Moshe David Herr, E. J., v. 5, p. 1381. (to effect atonement) whenever desired provided that it is before nightfall, but one does not bless over the immersion.
Hagah: One needs to immerse one time without a confession because of pollution (urinary emmission). The same holds true if one pours nine kavs³²A kav, was a unit of measurement for a liquid. According to present day standards a kav is approximately equivalent to 1.2 liters. of water (upon himself), (if the immersion pains him, (מגן אברהם),³³Magen Avraham, מגן אברהם, is a seventeenth century commentary on the Shulḥan Arukh, Oraḥ Ḥayyim which was first printed in Dyhernfurth in 1692. It was highly accepted in Poland and Germany where it became the model for halakhic decisions by the scholars of that country who often differed from other codifiers. The Magen Avraham was written by Abraham Abele ben Ḥayyim ha-Levi Gombiner who lived from 1637 until 1683. He was of Polish birth but he moved to Lithuania after the death of his parents in Chmielnicki Massacres in 1648. After studying there with his relative Jacob Isaac Gombiner he moved to Kalisz where he was appointed head of the yeshivah and dayyan, judge, of the bet din rabbinical court.
Abraham’s commentary is evidence of his vast knowledge of halakhic material. The goal of his work, Magen Avraham was to provide a compromise between the decisions of Joseph Caro and the glosses of Moses Isserles. When no compromise could be arrived at Abraham usually sided with his fellow Ashkenazi, Isserles. Abraham felt that all Jewish customs were valid and sacred and he attempted to justify them even when there was a disagreement among the codifiers. Abraham highly regarded the Zohar and Kabbalists and he occasionally accepted their opinions over that of the codifiers.
Gombiner was also the author of a commentary on the Yalkut Shimoni called Zayit Ra’anan and a collection of homilies on Genesis called Shemen Sason in addition to a short commentary of the Tosefta of Nezikim.
Shmuel Ashkenazi, E. J., v. 7, pp. 766-67.), this is also effective, (מהרי״ו וכל בו ותשב״צ).³⁴Mahariv and Kol Bo and Tashbaẓ, מהרי״ו וכל בו ותשב״ץ.
Mahariv, מהרי״ו, see footnote 27.
Kol Bo, כל בו, which when translated means “everything within” is an anonymous work which contained both halakhic decisions and explanations of halakhot arranged according to subject matter. The book, Kol Bo, was written either at the end of the thirteenth century or at the beginning of the fourteenth century. The work is very similar to a commentary on Oraḥ Ḥayyim called Orḥot Ḥayyim written by Aaron b. Jacob ha-Kohen of Lunel and published in Florence in 1750-51. The fact that they were so similar and covered the same material except that the Orḥot Ḥayyim contained more material than did the Kol Bo caused some scholars to believe that the Kol Bo was a later abridgment to the Orḥot Ḥayyim. But this may not be true due to the differences in their arrangement, the Orḥot Ḥayyim being more systematic. There is another view that the Kol Bo was, the first edition to the Orḥot Ḥayyim and probably by the same author, Aaron b. Jacob ha-Kohen; the material in the Kol Bo certainly preceded that of the Orḥot Ḥayyim.
There are one-hundred and forty-eight sections to the Kol Bo which cover many subjects of Jewish ceremonial, ritual, civil, personal, and community life. The anthology includes collections of laws from numerous and varied halakhic works. The Kol Bo was basically patterned after the Mishneh Torah of Maimonides together with the additions of the scholars of Germany, France, and Provence. There were in addition a few rulings by Spanish scholars included. Many of the laws included in the Kol Bo are from books no longer in existence today. It is possible that the Kol Bo never had much original material, but was mainly an anthology of rules from various sources. The Kol Bo was first printed in Naples in 1490-91.
Shlomoh Zalman Havlin, E. J., v. 10, pp. 1159-60.
Tashbaẓ, תשב״ץ, see footnote 20. One who incurs a death between Rosh HaShanah and Yom Kippur, it is permissible to wash and to immerse on the Eve of Yom Kippur because Yom Kippur cancels the “shiva³⁵Shiva is a seven day mourning period which begins immediately after the funeral. The mourners traditionally gather in the house of the deceased where they sit on low stools or over-turned couches with their heads enrobed. This is obligatory for close relatives of the deceased, be it husband or wife, mother or father, son or daughter, or brother or sister. The mourners must perform keri’ah, a rending of their garments as a symbol of mourning and they are required to recite the blessing dayyan ha-emet proclaiming God as the true judge. During the shiva period, mourners are not permitted to work physically, conduct financial transactions, bathe, annoint the body, cut the hair, cohabit, wear leather shoes, wash clothes, greet acquaintances, and study the Torah. Study, though of sorrowful portions of the Bible and Talmud, such as Job, Lamentations, parts of Jeremiah and the laws of mourning is permitted.
The first meal of the mourners after the funeral is called se’udat havra’ah, the meal of consolation. This meal is provided by friends and neighbors for the mourners in accordance with the talmudic law that a mourner is forbidden to eat of his own bread on the first day of mourning (Mk. 27b). A mourner is also not permitted to put on teffilin, prayer phylacteries, on the first day of the Shiva period.
The first three days of this period are considered the most intense and are known as the three days for weeping the entire seven day period is known as a time of lamenting. The shiva period is suspended on the Sabbath and ends on a holiday even if the total period of seven days has not elapsed. (see also footnote 37).
Aaron Rothkoff, E. J., v. 12, pp. 488-89.”, (the seven day mourning period), (מהרי״ל, הלכות שמחות).³⁶Maharil, מהרי״ל, “The Laws of Mourning”, הלכות שמחות, (“שמחות”, “Pleasures” is a euphemism). The Laws of Mourning as discussed by Moellin; see footnote 8. Even though it is customary not to wash (bath) during the entire “sheloshim³⁷Sheloshim, means thirty and it refers to the thirty days of mourning after the death of a close relative; mother, father, wife, husband, son, daughter, brother, or sister, and it begins from the time of the burial. The mourner during the sheloshim is not to wear new or even festive clothes; not to shave or have a hair cut; not to participate in festivities including wedding, circumcision, or pidyon ha-ben (redemption of the first born male child) banquets unless it is one’s own child; not to marry; and to abstain from going to entertainment. It is also customary to change one’s usual seat in the synagogue during these thirty days. If the last day of sheloshim falls on the Sabbath then the mourning period ends prior to the Sabbath.
The three pilgrimage feativals and Rosh HaShanah may shorten the shiva or sheloshim period. If the mourner observes at least one hour of the shiva (see footnote 35) before Passover or Shavuot, the shiva is waived and the sheloshim is reduced to fifteen days after the holiday, but in the case of Succot the mourner has to observe only eight days of sheloshim after the festival. If a mourner observes at least one hour of shiva before Rosh HaShanah, the shiva is waived and the Day of Atonement ends the sheloshim. If a mourner observes at least one hour of shiva before Yom Kippur shiva is waived and Succot ends sheloshim. Minor festivals such as Ḥanukkah and Purim do not shorten the shiva or sheloshim. If a person only learns of a death within thirty days of the passing (shemu’ah kerovah) he must observe the complete rites of shiva and sheloshim. If the news reaches him more than thirty days after the death has occurred (shemua’ah reḥokah) then he must only observe the mourning rites of shiva and sheloshim for one hour. When one is mourning the death of one’s parents the prohibitions of the sheloshim period are observed for an entire twelve months along with the recitation of the mourner’s Kaddish (see footnote 177) for eleven months, (see Shulḥan Arukh, Yoreh De’ah, 399).”, (thirty day mourning period), a commanded immersion is permitted, (דעת עצמו).³⁸Da’at Aẓmo, דעת עצמו; this is the way indicated in Isserles’ glosses that the comment he was making was Isserles’ own opinion and was not taken from another source.