QUESTION: The Beraisa (77b) says that we derive from the word "or" ("O") in the verse, "... an ox or a sheep" (Shemos 21:37), that an animal of Kil'ayim is included in the obligation of Arba'ah v'Chamishah. The Gemara asks that in the verse which mentions which animals may be brought as a Korban (Vayikra 22:27), the word "or" is used to exclude an animal of Kil'ayim!

The Gemara answers that the animals mentioned in the verse of Arba'ah v'Chamishah (an ox and a sheep) cannot be crossbred, and thus an animal of Kil'ayim is automatically excluded. It must be that the word "or" comes to include a crossbreed. In contrast, the verse which discusses which animal may be brought as a Korban mentions a sheep and a goat which can be crossbred, and thus the word "or" there must be meant to exclude a crossbreed.

The Gemara here (78a) asks that the verse of Korbanos also mentions an ox ("an ox, or a sheep, or a goat...") which cannot be crossbred with a lamb or goat. Why, then, does the word "or" there exclude Kil'ayim?

What is the Gemara's question? Whenever it is possible to understand a verse in one of two ways -- a leniency or a stringency -- the verse is interpreted as a stringency. Here, the verse teaches either that an animal of Kil'ayim may be brought as a Korban or that it may not be brought as a Korban. The verse should be interpreted as a stringency, that an animal of Kil'ayim may not be brought as a Korban!

ANSWER: The SHITAH MEKUBETZES cites RABEINU YESHAYAH who explains the Gemara's question as follows. The Gemara asks that if the verse intends to exclude Kil'ayim, it should omit all of the words "or" and write instead, "An ox, and a sheep, and a goat." The verse would have had two opposing implications: "an ox and a sheep" would have implied that Kil'ayim may not be brought as a Korban (since an ox and a sheep cannot be crossbred), while "a lamb and a goat" would have implied that Kil'ayim may be brought. The verse would have been interpreted l'Chumra to exclude an animal of Kil'ayim. Now that the verse inserts the additional words of "or" it must be that it intends to include Kil'ayim.

QUESTION: The Gemara explains that the two extra words "or" (in the verse which mentions which animals may be brought as a Korban) must intend to exclude two types of animals. If the verse taught only one exclusion for Kil'ayim, one would not have known that a "Nidmeh" is also excluded (since a Nidmeh is a lesser form of Kil'ayim). If, however, the two words "or" are meant to include two types of animals, once the verse has included Kil'ayim there is no need for an additional word to include a Nidmeh.

The Gemara's explanation is unclear. Had the verse written only one extra word "or," one would have assumed that it meant to include a Nidmeh, while an animal of Kil'ayim is not included. Therefore, in order to include both Kil'ayim and Nidmeh it was necessary to have two extra words "or"! What is the Gemara's proof that the two extra words are intended to exclude Kil'ayim and Nidmeh?

(a) The RASHBA answers that if the verse taught only one Ribuy, one would have included Kil'ayim and not Nidmeh, even though Kil'ayim is a greater Chidush. One would have reasoned that since it is possible to have a Nidmeh born from an ox or a sheep (and which looks like a crossbreed) and it is not possible to crossbreed an ox and a sheep, a crossbreed is already excluded from being brought as a Korban while a Nidmeh is included. The extra word "or," therefore, must be meant to include Kil'ayim, since a Nidmeh would have been included even without a Ribuy. (The Rashba proves that a Nidmeh would be included without the extra word from the fact that the Gemara includes Kil'ayim from the single extra word "or" written with regard to Arba'ah v'Chamishah, and it does not include Nidmeh.)

(b) The SHITAH MEKUBETZES answers that it is logical that the first "or" in the verse is meant to teach that Kil'ayim is included. (It is not clear why this is logical.)

(c) The PNEI YEHOSHUA answers that one would not have been able to include Nidmeh from a single extra word "or," because one would have had no basis to exclude it such that a Ribuy is needed to include it. Moreover, logically, if the single word "or" was meant to include a Nidmeh, the verse itself should have excluded Kil'ayim (since an ox and a sheep do not produce a crossbreed), which would have implied that only Kil'ayim is excluded but not a Nidmeh, and thus there would have been no need for a Ribuy. A single word "or" would have taught that Kil'ayim is included, and a Kal va'Chomer would have taught that a Nidmeh is included as well. There would have been no need for a second extra word "or." Therefore, it must be, as the Gemara asserts, that the two extra words "or" are meant to exclude Kil'ayim and Nidmeh and not to include them.

OPINIONS: The Gemara concludes that a Ganav who stole a Shor which had been sanctified to be offered as a Korban Olah may fulfill his obligation to return the stolen object by returning a sheep according to the Rabanan, or a bird according to Rebbi Elazar ben Azaryah. Since the Ganav stole a Korban Olah, he is required to return a Korban Olah, and thus it suffices for him to give any animal that may be offered as an Olah. Although a sheep and bird are not worth as much as a Shor, the Ganav may return any animal that may be used as a Korban Olah and the owner may not insist that the Ganav return a Shor to him so that he can fulfill the Mitzvah in the best possible way.

The Acharonim resolve a similar Halachic question based on this Gemara. If a person steals or ruins his friend's Esrog that is Mehudar, is he required to pay back an Esrog that is Mehudar or does it suffice to pay back any Esrog that is valid for the Mitzvah?

(a) The MAHARAM MINTZ (#114) proves from the Gemara here that one may fulfill his obligation by returning any kosher Esrog. He adds, however, that if the owner would have been able to sell the nicer Esrog after Sukos, the Ganav must pay him back with an Esrog of equal value (or with money equal to the value of the nicer Esrog) since he clearly caused the owner a loss.

(b) The CHACHAM TZVI (#120) argues that the case of the Esrog is not comparable to the case of the Gemara here. Only when the Ganav steals a Korban Olah may he pay back with any animal that may be offered as an Olah, because the Korban has no monetary value for the owner (since it is Hekdesh). The Ganav must pay back only in order to enable the owner to fulfill his obligation to bring a Korban, and since he may fulfill his obligation by bringing a sheep, the Ganav only needs to pay back a sheep. An Esrog, on the other hand, certainly has monetary value for its owner, for he is able to sell it if he wants. Since the Ganav caused him to lose that value, he is obligated to pay it back. (See also MISHNEH L'MELECH, Hilchos Ma'aseh ha'Korbanos 16:7.)

(c) The CHASAM SOFER (Gitin 54b, DH ha'Kohanim) answers the question of the Chacham Tzvi on the ruling of the Maharam Mintz. He explains that since the owner of the Esrog bought an Esrog that was Mehudar in order to give honor to Hash-m, he obligated himself to use such an Esrog and he cannot sell it (in the words of the Chasam Sofer, "Neder Gadol Nadar l'Elokei Yisrael"). The Chasam Sofer writes that this also seems to be the view of the RA'AVAD and RASHBA in the Gemara here, and the RAMBAM (Hilchos Ma'aseh ha'Korbanos ch. 16). They explain that when the Gemara concludes that the Ganav may pay back a sheep in place of the Shor he stole, it means to teach that even though the owner -- by sanctifying a Shor to be offered as a Korban -- made a Neder to give honor to Hash-m with the nicest type of Korban (and thus one might have thought that he must offer specifically a Shor and not any other animal), once the animal has been stolen he may fulfill his obligation with any animal that may be brought as an Olah. This implies that as long as the item of the Mitzvah still exists, he must fulfill the Mitzvah with the item that he originally intended to use.

The Chasam Sofer, however, asks a different question on the view of the Maharam Mintz. He asks that the case of the Esrog is not comparable to the case of the Gemara here because the Gemara is not discussing the Ganav's obligation with regard to the actual item that he stole. The Ganav's obligation to return the stolen item in this case is based on the principle that "Davar ha'Gorem l'Mamon k'Mamon Dami" (and the Sugya here follows the view of Rebbi Shimon). Hence, since the owner can fulfill his obligation to bring a Korban Olah by bringing a sheep, the value of a sheep is the extent of the financial loss that the Ganav caused the owner, even though it was a Shor that the Ganav stole. In contrast, the reason why the Ganav must pay back the Esrog he stole is not due to "Davar ha'Gorem l'Mamon." He must pay back because of the very fact that he took the property of someone else (since an Esrog is not Hekdesh and it belongs to its owner). Therefore, the Ganav must pay back an Esrog of a value equal to the one he stole.

(d) The OR SAME'ACH (Hilchos Geneivah 2:1) rules that although the theft of a normal Esrog cannot be compared to the theft of a Korban Olah, the theft of an Esrog of Ma'aser Sheni is comparable to the theft of a Korban Olah. The Halachah is that a person can fulfill the Mitzvah with an Esrog of Ma'aser Sheni, and yet it is not considered to be the property of the owner (the Halachah follows the opinion of Rebbi Meir that Ma'aser Sheni is Mamon Gavoha). Since such an Esrog is not considered the owner's property, when someone steals such an Esrog he has not stolen anything of value from the owner. However, he must give back an Esrog in order for the owner to fulfill the Mitzvah. Hence, the Gemara here is the source that he may pay back with a kosher Esrog of lesser value.