Regarding: Davar halamed migzeira shava chozer um'lamed b'hekesh
The tosfos (d"h v'harei) which runs from zvachim 24b to 25a holds that there is someone who holds that ein davar halamed migzeira shava chozer um'lamed b'hekesh. [This contrasts with the bracketed comment within tosfos horiyos 8a (d"h yilmod) regarding davar halamed bigzeira shava chozer um'lamed bigzeira shava.]
The gemara zevachim 50b (in the context of im davar halamed b'kal v'chomer chozer um'lamed b'hekesh) makes that din contingent on Rav Papa's din of davar halamed migzeira shava chozer um'lamed b'hekesh, and indicates that indeed, as tosfos on 24b-25a states, there is an opposing view.
On 50a, mar zutra b'rei d'rav m'ri has a kasha on rav papa's method of learning from a case in which the first step is chullin to kodshim. If he is the opinion who disagrees with rav papa, why doesn't he hold that we don't know whether or not davar halamed migzeira shava chozer um'lamed b'hekesh in kodshim. Instead he seems to hold that it definitely doesn't work.
If so, why is the conclusion teiku in the case of im davar halamed b'kal v'chomer chozer um'lamed b'hekesh according to the opinion that disagrees with rav papa. It should be parallel to the case of im davar halamed gzeira shava chozer um'lamed b'hekesh?
Marc Diamond
Providence, RI, USA
1. Actually, Tosfos in Horayos (8a, DH Yilmod) does not maintain that everyone agrees that something derived through a Gezeirah Shavah cannot teach something else through a Hekesh. Rather, Tosfos points out that since there is such an opinion among the Amora'im (namely, Mar Zutra), how can the Gemara in Horayos, which cites Beraisos expressing the opinions of Tana'im with whom Amora'im may not disagreeing, attempt to derive "Yachid" from "Nasi"? Since Mar Zutra maintains that "Davar ha'Lamed b'Gezeirah Shavah Eino Chozer u'Melamed b'Hekesh," his opinion conflicts with the Beraisa. Therefore, this should prove that the Halachah does not follow Mar Zutra. Tosfos answers that the Beraisa there does not actually refer to a Hekesh but merely to a "Giluy Milsa." Hence, there is no proof against Mar Zutra from that Beraisa. However, Tosfos was never attempting to suggest that there is no opinion which maintains that "Davar ha'Lamed b'Gezeirah Shavah Chozer u'Melamed b'Hekesh," because the Gemara states explicitly in Zevachim (50a-b) that this is Rav Papa's opinion.
2. In fact, Mar Zutra maintains that we do not know whether or not "Davar ha'Lamed b'Gezeirah Shavah Chozer u'Melamed b'Hekesh" applies in Kodshim, but he is not saying that it definitely does not. This is evident from Rashi (50a, DH Chulin). Rashi explains that Mar Zutra deflects Rav Papa's proof from Ma'aser because Ma'aser is Chulin. Rashi writes, "Our question concerned Kodshim." It is clear from Rashi that Mar Zutra is not claiming that no question exists at all concerning "Chozer u'Melamed b'Hekesh," but rather Mar Zutra is responding to Rav Papa and saying that there is no proof to answer this question because Ma'aser is Chulin and not Hekdesh. Hence, according to Mar Zutra, we have no solution to the question, and Mar Zutra does not maintain that it definitely does not work.
3. We now can understand well why the question concerning "Davar ha'Lamed b'Kal va'Chomer Chozer u'Melamed b'Hekesh" is left unanswered ("Teiku"), according to the opinion that disagrees with Rav Papa. This is because the latter opinion, namely Mar Zutra, does not know whether or not "Davar ha'Lamed b'Gezeirah Shavah Chozer u'Melamed b'Hekesh" -- and in the same way he is also uncertain about whether or not "Davar ha'Lamed b'Kal va'Chomer Chozer u'Melamed b'Hekesh."
Kol Tuv,
Dovid Bloom
If so, why is the conclusion teiku in the case of im davar halamed b'kal v'chomer chozer um'lamed b'hekesh according to the opinion that disagrees with rav papa. It should be parallel to the case of im davar halamed gzeira shava chozer um'lamed b'hekesh?
1. Actually, Tosfos in Horayos (8a, DH Yilmod) does not maintain that everyone agrees that something derived through a Gezeirah Shavah cannot teach something else through a Hekesh. Rather, Tosfos points out that since there is such an opinion among the Amora'im (namely, Mar Zutra), how can the Gemara in Horayos, which cites Beraisos expressing the opinions of Tana'im with whom Amora'im may not disagreeing, attempt to derive "Yachid" from "Nasi"? Since Mar Zutra maintains that "Davar ha'Lamed b'Gezeirah Shavah Eino Chozer u'Melamed b'Hekesh," his opinion conflicts with the Beraisa. Therefore, this should prove that the Halachah does not follow Mar Zutra. Tosfos answers that the Beraisa there does not actually refer to a Hekesh but merely to a "Giluy Milsa." Hence, there is no proof against Mar Zutra from that Beraisa. However, Tosfos was never attempting to suggest that there is no opinion which maintains that "Davar ha'Lamed b'Gezeirah Shavah Chozer u'Melamed b'Hekesh," because the Gemara states explicitly in Zevachim (50a-b) that this is Rav Papa's opinion.
Here is a different explanation for Tosfos in Horayos (8a):
Tosfos is asking that a "Chumra" should emerge from the opinion that a law derived through a Gezeirah Shavah cannot teach further through a Hekesh. The Mishnah in Horayos (8a) states that Beis Din is culpable only if it rules wrongly about a prohibition for which the punishment for deliberate transgression is Kares and accidental transgression is a Korban Chatas. The Gemara then states that this law applies to a Nasi as derived through a Gezeirah Shavah, and it applies to an individual ("Yachid") as derived through a Hekesh from Nasi.
This means that a Kula, leniency, is being derived: a Yachid is liable only for a prohibition for which the punishment for deliberate transgression is Kares and accidental transgression is a Korban Chatas, and he is exempt from liability for other prohibitions. Tosfos' question, therefore, is how can we be lenient in such a matter? According to the opinion that "Davar ha'Lamed b'Gezeirah Shavah *Eino* Chozer u'Melamed b'Hekesh," the Yachid would be liable for all types of prohibitions. Even though this opinion is not unanimous, we should nevertheless be stringent and say at least that there is a doubt on the matter and the Yachid therefore should not be totally exempt.
Accordingly, Tosfos does not intend to rule for certain that "Davar ha'Lamed b'Gezeirah Shavah Eino Chozer u'Melamed b'Hekesh." Rather, he is asking that we should take into account this opinion and should be stringent in the case of a d'Oraisa issue and say that the Yachid is not entirely exempt.
Kol Tuv,
Dovid Bloom