QUESTIONS: The Torah (Vayikra 5:15) teaches that one who unintentionally derives benefit from an object of Hekdesh (Me'ilah) is obligated to pay Hekdesh for the benefit that he has derived (Keren), add another fifth of that value (Chomesh) as a penalty, and bring a Korban Asham Me'ilos. The Gemara in Sanhedrin (83a) adds that one who derives benefit from Hekdesh with intent is punished with Malkus, in addition to his obligation to pay back the value of the benefit he derived. According to Rebbi there, the person is punished with Misah b'Yedei Shamayim.

(a) Where does the Torah prohibit Me'ilah with a Lo Sa'aseh, such that Malkus is administered for an intentional transgression of Me'ilah?

(b) Is the Isur of Me'ilah the only prohibition that forbids one from benefiting from an object of Hekdesh, or is such benefit prohibited for other reasons?

(c) What types of Hekdesh are included in the prohibition of Me'ilah, and what types, if any, are excluded?

(a) The Rishonim suggest two sources for the Lo Sa'aseh of Me'ilah.

1. RASHI and TOSFOS in Sanhedrin (84a) explain that a Lo Sa'aseh forbids a non-Kohen (Zar) from eating Terumah (Vayikra 22:13-15). There is a Gezeirah Shavah ("Chet, Chet") that compares Me'ilah to Terumah. Although the punishment for a Zar who eats Terumah is Misah, the Gezeirah Shavah cannot teach that Misah applies to Me'ilah because the Torah explicitly excludes Me'ilah from Misah. However, the comparison of Me'ilah to Terumah does teach the punishment of Malkus, as Rashi explains.

2. The RAMBAM (Hilchos Me'ilah 1:3; see also Hilchos Ma'aseh ha'Korbanos 11:1) quotes the Gemara in Makos (17a-18a) that derives from the verse, "Lo Suchal le'Echol bi'She'arecha... u'Nedarecha Asher Tidor" -- "You may not eat in your settlements... and your pledges [to Hekdesh] that you will pledge" (Devarim 12:17), that one is forbidden to eat the meat of a Korban Olah. The Rambam writes that this verse is the source for the Lo Sa'aseh of Me'ilah.

The Rambam's assertion requires further explanation. That verse teaches only that there is a prohibition against eating a k'Zayis (the Shi'ur of Achilah) of a Korban. What is the source for the additional prohibition against deriving benefit (Hana'ah) from a Perutah's worth (the Shi'ur of Hana'ah for Me'ilah; see Me'ilah 18a) of a Korban?

The MISHNEH L'MELECH explains that another verse forbids eating from what is offered on the Mizbe'ach. The verse says, "Kalil Tiheyeh Lo Se'achel" -- "And every meal-offering of a Kohen shall be entirely offered; it shall not be eaten" (Vayikra 6:16). Since the Torah repeats this prohibition in the verse in Devarim, it must be including more than the original prohibition of eating. It is adding an Isur Hana'ah against benefiting from a Perutah's worth of Hekdesh.

(b) Aside from the Lo Sa'aseh of Me'ilah, there are a number of other prohibitions that forbid deriving benefit from Kodshim.

1. As mentioned above, the Gemara in Makos (17a) teaches that one is forbidden to eat the meat of a Korban before Zerikas ha'Dam. This is derived from the verse, "Lo Suchal le'Echol bi'She'arecha... v'Nidvosecha" (Devarim 12:17). (RAMBAM, Hilchos Ma'aseh ha'Korbanos 11:4; RASHI to Makos 18a, DH Hachi Garsinan.)

2. The Gemara in Rosh Hashanah (28a) teaches that the Torah forbids benefiting from the horn of a ram that was consecrated as a Korban Shelamim, even though it is a part of Kodshim Kalim that is not offered on the Mizbe'ach and is exempt from the laws of Me'ilah (see Chart #1). The SHITAH MEKUBETZES in Menachos (4b, #18) quotes the MAHARAM who suggests that the source for this prohibition is the verse, "Lo Yachel Devaro" (Bamidbar 30:3), the commandment not to transgress one's oath. An animal or object that one consecrated to Hekdesh through a Neder is the same as any other object that became prohibited through a Neder, and one may not benefit from any part of it.

3. It seems that the prohibition against stealing, "Lo Sigzol" (Vayikra 19:13), also prohibits benefiting from Hekdesh. A sanctified object is the property of Hekdesh and one may not use it for his own purposes. One is prohibited to steal from Hekdesh just as one is prohibited to steal from anyone else (see RAMBAM, Hilchos Geneivah 2:1).

(c) Various verses teach which types of Hekdesh are included in the prohibition of Me'ilah, and which are excluded.

1. The Torah teaches that one who derives benefit from any object that is "Kodshei Hash-m" (Vayikra 5:15) transgresses the Isur of Me'ilah. The Gemara (Me'ilah 15a, Temurah 32b) teaches that the only types of Hekdesh that are entirely "for Hash-m" are a Korban Olah and Kodshei Bedek ha'Bayis, since no part of them are consumed or used by anyone other than Hekdesh. Other Korbanos (Chatas, Asham, Kodshim Kalim, etc.) are eaten in part by man and thus are not considered "Kodshei Hash-m."

2. However, a different verse teaches that Me'ilah applies to other forms of Kodshim.

According to RASHI (Me'ilah 15a, end of DH Ela Peshita), the law that Me'ilah applies to other forms of Kodshim is derived from the verse, "v'Ish Ki Yochal Kodesh" -- "When a person eats Kodesh..." (Vayikra 22:14). This verse teaches that Me'ilah applies to any object that is Kodesh, including all forms of Kodshei Kodashim (such as Chatas and Asham). However, this verse does not teach that Eimurei Kodshim Kalim are included in Me'ilah, since Kodshim Kalim belong to their owner prior to Zerikas ha'Dam. (RASHI to Vayikra 22:14, and TOSFOS to Me'ilah 15a, DH me'Hai, learn that this verse refers only to one who eats Terumah unintentionally. They derive the law that Me'ilah applies to other forms of Hekdesh from the following source.)

(c) The Gemara (Me'ilah 15a) quotes a Beraisa in which Rebbi derives from the verse, "Kol Chelev la'Hashem" (Vayikra 3:16), that Me'ilah applies even to Kodshim Kalim. This verse teaches that even Chelev of Kodshim Kalim is considered "la'Hashem," and therefore it is included in the prohibition of Me'ilah which applies to all "Kodshei Hash-m," as mentioned above.

QUESTION: The Mishnah (2a) teaches that if a Korban of Kodshei Kodashim was slaughtered in the southern part of the Azarah, the laws of Me'ilah nevertheless apply to it. Shechitah in the wrong place does not cause the Korban to lose its Kedushah with regard to Me'ilah. Similarly, if the Kabalas ha'Dam was done in the wrong place, or the Shechitah or Kabalas ha'Dam was done at the wrong time, or it was slaughtered with a thought of Pigul, the laws of Me'ilah still apply.

The Gemara asks what the Halachah is in the case of a Korban that was slaughtered in the wrong place and was then offered on the Mizbe'ach. Since the Shechitah was not done in the proper place, the Korban may not be offered. However, b'Di'eved, if it was offered, must it be removed from the Mizbe'ach, or may it be left on the Mizbe'ach? Rabah maintains "Im Alu Yerdu" -- if it was placed on the Mizbe'ach it must be removed. Rav Yosef maintains "Im Alu Lo Yerdu" -- even though it was not supposed to be placed on the Mizbe'ach, once it was placed there it may not be removed.

The Gemara explains that Rabah and Rav Yosef do not argue about the opinion of Rebbi Yehudah in Zevachim (84a), who certainly maintains that if such a Korban was offered on the Mizbe'ach it must be removed. Rather, they argue about the opinion of Rebbi Shimon. Rebbi Yehudah rules that in three cases, a Korban that was not supposed to be offered must be removed from the Mizbe'ach if it was placed there: when the Korban was slaughtered at night, when the blood spilled before it was sprinkled on the Mizbe'ach, and when the blood was taken outside of the Azarah before it was sprinkled. Similarly, when the Korban was slaughtered in the wrong place, it must be removed from the Mizbe'ach. Rebbi Shimon argues and maintains that in these three cases the Korban does not need to be removed from the Mizbe'ach.

Rav Yosef follows the view of Rebbi Shimon and says "Im Alu Lo Yerdu." Rabah, however, asserts that Rebbi Shimon says "Lo Yerdu" only in a case in which the Zerikas ha'Dam should have been performed on the lower half of the Mizbe'ach but was erroneously done on the upper half (or vice versa). In such a case, the Korban is not removed from the Mizbe'ach if it was placed there, because the Shechitah and Kabalah were done in the correct place. When, however, the Shechitah was done in the wrong place, Rebbi Shimon agrees that the Korban must be removed from the Mizbe'ach, because the Shechitah in the wrong place was considered like strangling the animal and killing it without Shechitah, and thus it must be removed from the Mizbe'ach.

The RAMBAM (Hilchos Pesulei ha'Mukdashin 3:6) rules that a Korban that was slaughtered at night, or whose blood spilled on the ground or exited the Azarah before the Zerikah, and was then offered on the Mizbe'ach, must be removed. The Rambam seems to be following the view of Rebbi Yehudah.

However, in the next Halachah the Rambam lists several mistakes that one might make when he offers a Korban, including performing the Zerikah on the wrong half of the Mizbe'ach, or slaughtering Kodshei Kodashim in the southern part of the Azarah. The Rambam writes that although such errors invalidate the Korban, if, b'Di'eved, it was placed on the Mizbe'ach, it is not removed. Here, the Rambam seems to be following the view of Rebbi Shimon!

How are the apparent contradiction in the rulings of the Rambam to be reconciled?

ANSWER: The LECHEM MISHNEH answers that two Sugyos disagree about the cases in which Rebbi Yehudah maintains that the Korban must be removed from the Mizbe'ach. In two places, the Gemara disagrees with the Gemara here. The first place is the Gemara in Zevachim (27b) which says that Rebbi Yehudah agrees with Rebbi Shimon that in a case of Zerikah done on the wrong half of the Mizbe'ach, the Korban is not removed from the Mizbe'ach, b'Di'eved. (Rashi there explains that this is because Zerikah done on the wrong part of the Mizbe'ach is not as severe a mistake as the other mistakes.) Rabah here, however, maintains that Rebbi Yehudah and Rebbi Shimon disagree about the law in such a case.

The second place is the Gemara in Zevachim (36a) which states that the reason why Rebbi Yehudah argues with Rebbi Shimon in the case of Zerikah done on the wrong part of the Mizbe'ach is that Rebbi Yehudah is consistent with his own view that "even though the Korban was brought in the wrong place, it is considered to have been brought in the right place." This explains why the Korban is valid according to Rebbi Yehudah even when it is slaughtered in the southern part of the Azarah.

The Lechem Mishneh explains that since these two Sugyos argue with the Gemara here and say that Rebbi Yehudah permits a Korban to remain on the Mizbe'ach when its Zerikah was done in the wrong place, the Rambam rules in accordance with those two Sugyos.

In contrast, when a Korban was slaughtered at night, or its blood spilled or was taken out of the Azarah, this is a much more severe error for which Rebbi Yehudah maintains that even if the Korban was placed on the Mizbe'ach, it must be removed. (D. BLOOM)