ME'ILAH 13 (ROSH HASHANAH) - Dedicated l'Zechut Refu'ah Shleimah for Elisheva Chaya bat Leah. Dedicated by Michael Steinberg, David Steinberg, and Ethan Steinberg.
1) "AND OTHERS DONATE SUCH"
OPINIONS: The Mishnah states that the offspring of a sanctified animal may not nurse from its mother. The Mishnah adds that "others would donate such" ("Acherim Misnadvim Ken"). What does this phrase mean?
(a) RASHI (DH v'Acherim) and TOSFOS (DH v'Acherim) explain that since it is forbidden for the offspring of a sanctified animal to drink the milk of its sanctified mother, some animal owners would stipulate -- prior to sanctifying the mother animal as Ma'asar Behemah -- that the Kedushah that will take effect on the mother will be limited, and the animal will not be sanctified with regard to nursing its young. The animal would then be allowed to continue nursing its non-sanctified young even after it becomes sanctified.
How can a person make such a stipulation to limit the Kedushah of Ma'asar Behemah? Rashi explains that since a person may arrange his animals in the corral in such a way that the mother would not be the tenth animal to leave the corral, he has the ability to make conditions limiting the Kedushah that takes effect on the animal of Ma'asar Behemah.
(b) TOSFOS (DH Asya) explains that "Acherim Misnadvim Ken" refers to people who -- knowing that sanctified animals may not nurse their young -- would donate animals of Chulin to Hekdesh for the express purpose of nursing the offspring of sanctified animals, since those young animals could no longer nurse from their mothers.
2) THE "YAD" OF THE BEIS HA'MIKDASH
QUESTION: The Mishnah teaches that when one sanctifies a pit full of water as Hekdesh or a dovecote full of doves, the Isur of Me'ilah applies to the pit or dovecote and its contents. In contrast, if one sanctifies an empty pit or an empty dovecote, and afterwards it becomes full of water or doves, the Isur of Me'ilah applies only to the pit or dovecote itself, but not to the water in the pit or the doves in the dovecote.
Why does Me'ilah not apply to the contents of the pit or the dovecote? A pit or dovecote is considered a Chatzer with regard to its ability to acquire for its owner whatever objects are placed into it. Just as the owner of the pit acquires the water that comes into it, Hekdesh should acquire the water that comes into the pit of Hekdesh, and Me'ilah should apply to the water.
(a) TOSFOS (DH Aval) cites the Gemara in Gitin (21a) which teaches that a Chatzer acquires for its owner because it is considered a "Yad" of the owner, an extension of the owner's own hand. The Beis ha'Mikdash, however, is not considered to possess a Yad, and thus objects found in its domain do not automatically become the property of Hekdesh.
(The RASHBAM in Bava Basra (79a, DH Hachi ka'Amar) adds that the law that an individual's domain acquires for him is derived from the verse, "Im Himatzei Timatzei" -- "If the theft be found in his hand" (Shemos 22:3), which does not apply to Hekdesh. See also Tosfos in Bava Basra there, DH v'Ein.)
(b) The RAMBAN in Bava Basra (79a, DH v'Ha) gives another reason for why Me'ilah does not apply to water that comes into a pit of Hekdesh, or to doves that come into a dovecote of Hekdesh. Even if Hekdesh would possess the ability to be Koneh through Kinyan Chatzer and it would acquire whatever enters its domain, the Isur of Me'ilah would not apply to what it acquires. The KETZOS HA'CHOSHEN (200:1) explains that this is because the Isur of Me'ilah applies only to Kodshim that were sanctified by a person, but not to Kodshim that became sanctified automatically, such as by merely entering the domain of Hekdesh.
Whether or not the Beis ha'Mikdash has the ability to make a Kinyan Chatzer has practical ramifications. The MAGEN AVRAHAM (OC 154:23) cites the AGUDAH who discusses the case of one who finds a lost object in a synagogue. The Agudah rules that one who finds a lost object (that one is not obligated to attempt to return to its owner, such as an object that has no identifying features) in a synagogue may keep the object; we do not say that the synagogue acquired it through Kinyan Chatzer, because Kinyan Chatzer works because of Yad and Hekdesh (such as a synagogue) has no Yad. (The Gemara in a number of places compares a synagogue to the Beis ha'Mikdash. The Gemara in Megilah (29a) interprets the verse, "I shall be for them a small sanctuary (Mikdash)" (Yechezkel 11:16), as referring to synagogues and study halls (see also REMA OC 152). Similarly, the Gemara in Shabbos (11a) derives from the verse, "... to elevate the House of our G-d" (Ezra 9:9), that the synagogue should be the highest building in the town (see MAHARIK, Shoresh 161:6, DH v'Nachzor).)
The Mishnah Berurah (OC 154:59) cites the Magen Avraham. However, he cites other opinions that maintain that the synagogue does acquire things placed in its domain. These opinions side with the Ramban cited above who says that Hekdesh does have the ability to acquire through Kinyan Chatzer.
RAV MOSHE FEINSTEIN zt'l in IGROS MOSHE (YD 5:23:13) rules in accordance with the Magen Avraham. Therefore, one who finds a lost object (such as money) with no identifying feature may keep it and does not need to return it to the synagogue. (D. BLOOM)
3) WORKING LAND OF "HEKDESH" AND THRESHING PRODUCE OF "HEKDESH"
QUESTION: The Mishnah states that workers who are working on behalf of Hekdesh in a field of Hekdesh may not eat from the produce while they work (in contrast to workers in a non-sanctified field, who may eat from the produce with which they are working). The Mishnah states further that one must muzzle an animal when it is threshing produce of Hekdesh (in contrast to an animal that is threshing non-sanctified produce, which one is not permitted to muzzle).
RASHI (DH ha'Po'alim) quotes the Gemara in Bava Metzia (87b) that derives this law from the verse "Kerem Re'echa" -- "the vineyard of your fellow man" (Devarim 23:25), which implies that a worker may eat only the produce of the field of his fellow man, but not the produce of a field of Hekdesh. The Gemara here derives the obligation to muzzle an ox when it is threshing produce of Hekdesh from the word, "Disho," which implies that one must allow his animal to eat only when it is threshing the produce of a person, but not when it is threshing the produce of Hekdesh.
TOSFOS in Bava Metzia (87b, DH Re'echa) asks that the Gemara teaches that there is a Hekesh that compares the laws of Achilas Po'alim, the requirement to permit workers to eat from the produce with which they are working, with the laws of muzzling an ox (see also Tosfos here, DH Mai Ta'ama). Why, then, are two separate sources needed to teach that one must muzzle an ox when working with Hekdesh, and that workers are not permitted to eat from produce of Hekdesh?
ANSWER: RAV CHAIM SOLOVEITCHIK (Hilchos Me'ilah 8:1) suggests that with regard to eating from a field of Hekdesh, the laws of muzzling an animal and Achilas Po'alim are not comparable, and thus two verses are necessary. The reason why a worker who toils in a field may eat of the produce of that field is that the right to eat from that field is part of his wages; he has a monetary right to some of the produce of the field. In contrast, an animal has no monetary right to eat from the field. Rather, there is a Mitzvah (based on the precept not to cause pain to animals) to allow the animal to eat of the produce with which it is working.
This difference is obvious from the fact that the Mitzvah of Achilas Po'alim applies to Bnei Noach as well as to Jews, while the prohibition of muzzling an animal does not apply to animals of a Nochri. The Mitzvah of Achilas Po'alim applies to Bnei Noach because it is a monetary right of any worker, Jewish or Nochri. The prohibition against muzzling does not apply to Bnei Noach, since it is not a law of monetary entitlement.
The Isur of Me'ilah prohibits misappropriating the property of Hekdesh for personal benefit. That is, the prohibition is based on the monetary rights of Hekdesh to its property; one who misappropriates that property steals from Hekdesh and transgresses the Isur of Me'ilah. Accordingly, had the Torah prohibited only an animal from eating while working with Hekdesh, one might have thought that workers are permitted to eat the produce while working in a field of Hekdesh because they have a monetary right to eat that produce, and thus their consumption of produce of Hekdesh would not constitute Me'ilah. (They would not be stealing from Hekdesh, since they are fully entitled to eat from the field.) Therefore, a second source is needed to teach that workers may not eat when working in a field of Hekdesh.
On the other hand, had the Torah taught only that workers may not eat in a field of Hekdesh, one might have thought that an animal is permitted to eat from produce of Hekdesh and it must not be muzzled, because an animal is not required (and is not able) to observe the Mitzvos, and, therefore, its prohibition of eating from Hekdesh is not as severe as that of the workers. Therefore, a separate source is needed to teach that one must muzzle an ox in a field of Hekdesh. (See Chidushei Rabeinu Chaim for an in-depth discussion of this issue.)
4) BEING LENIENT IN A CASE OF A "HALACHAH L'MOSHE MI'SINAI"
QUESTION: The Gemara quotes the Mishnah in Zevachim (110b) in which Rebbi Eliezer says that one who pours, outside of the Beis ha'Mikdash, a container of water that was filled up with intention to use the water for the Nisuch ha'Mayim on Sukos, transgresses the prohibition of Ma'aleh ba'Chutz, performing the Avodah outside of the Beis ha'Mikdash. The Gemara infers from Rebbi Eliezer's ruling that the Nisuch ha'Mayim is mid'Oraisa, an offering mandated by the Torah, because one is Chayav for Ma'aleh ba'Chutz only for an offering that is fit to be offered in the Beis ha'Mikdash.
The RAMBAM (in PERUSH HA'MISHNAYOS to Zevachim 110b) writes that the Halachah does not follow the opinion of Rebbi Eliezer, because the pouring of the water on Sukos is merely a "Halachah l'Moshe mi'Sinai," and not an ordinary Halachah d'Oraisa.
The Rambam's statement is very difficult to understand. What difference does it make whether a Halachah is written explicitly in the Torah or whether it was transmitted as a Halachah l'Moshe mi'Sinai? Both types of Halachos have the status of a Halachah d'Oraisa! (TOSFOS YOM TOV, Zevachim 13:6)
(a) Perhaps the Rambam maintains that although a Halachah l'Moshe mi'Sinai is mid'Oraisa, one cannot receive a punishment (such as Malkus) for transgressing a Halachah l'Moshe mi'Sinai. This view is expressed by the RITVA in Shabbos (96b). The YAD BINYAMIN in Zevachim writes that this view is explicitly stated by the Gemara in Nazir (25b), which says that "if we would have learned this from a Halachah l'Moshe mi'Sinai, then we might have thought that if transgressed, one would not be Chayav [to receive punishment] for it." Accordingly, the reason why we do not rule in accordance with the view of Rebbi Eliezer is that we do not administer a punishment to one who transgresses a Halachah l'Moshe mi'Sinai, and the Nisuch ha'Mayim of Sukos is a Halachah l'Moshe mi'Sinai.
(b) The TOSFOS YOM TOV in Zevachim says that the Girsa in our text of the Perush ha'Mishnayos is incorrect. Indeed, in the Eretz Yisrael printing of the Rambam's commentary, the Rambam writes that "Rebbi Eliezer maintains that even if one offers a small amount of water outside of the Beis ha'Mikdash, one would be Chayav." The Rambam adds that the Halachah does not follow this opinion; "since it is a Halachah l'Moshe mi'Sinai, everyone would agree that one is Chayav only if he offers three Lugin of water." This is the Halachah as recorded by the Rambam in the Mishneh Torah (Hilchos Temidin u'Musafin 10:6, Hilchos Ma'aseh ha'Korbanos 19:4).
However, that text is problematic for a different reason. The Gemara in Zevachim comes to the opposite conclusion: if the law of Nisuch ha'Mayim is based on a verse in the Torah, then three Lugin are required, and if it is a Halachah l'Moshe mi'Sinai, then any amount suffices! This is also implied by the Gemara here in Me'ilah. Why does the Rambam rule against the apparent conclusion of the Gemara?
The ZEVACH TODAH in Zevachim explains that the Rambam chose to rule in a way that is not in accordance with the Gemara here, because had he ruled like the Gemara he would have been contradicting a number of Beraisos (cited by the Gemara in Zevachim 109a and 109b) that explicitly state that one is Chayav only if he offers three Lugin of water, but not less. The Rambam chose to rule like those Beraisos.
The CHOK NASAN explains that when the Gemara says that there is no minimum amount if Nisuch ha'Mayim is a Halachah l'Moshe mi'Sinai, it does not mean that one may offer as little as one wants. Rather, the Gemara means (as the Rambam rules) that the minimum is three Lugin, but if one wants to offer more he may do so, as the Gemara here implies, in contrast to other Korbanos which have a specific amount to which one may neither add nor subtract. (See RASHI to Zevachim 110b, DH b'Yesh Shi'ur, in contrast to TOSFOS there, DH b'Yesh Shi'ur; see also KEREN ORAH and PANIM ME'IROS there, and Insights to Zevachim 110:2.) (Y. MONTROSE)