QUESTION: The Mishnah (104b) records an argument between the Chachamim and Rebbi in the case of a person who forgot exactly how many Esronim he pledged to bring as a Korban Minchah. The Chachamim say that he must bring sixty Esronim. RASHI (DH Yavi Shishim) explains that when the person brings the sixty Esronim, he must stipulate that the amount in those sixty Esronim that he pledged should fulfill his Neder, and any Esronim beyond the amount of his Neder should be a voluntarily Minchah offering. Rebbi argues and says that the person must bring sixty different Menachos. The first should contain one Isaron, the second two Esronim, the third three, and so on. Rashi (DH Rebbi Omer) explains that Rebbi maintains that a person who pledges to bring a set amount of Esronim in his Minchah must bring that amount in one vessel, and not more and not less. Since the amounts are measured by Esronim, with sixty as the maximum amount, he must bring every possible amount as a Minchah in order to ensure that he fulfills his Neder.

The general rule is that in disputes between the Chachamim and a single Tana, the Chachamim's opinion is followed as the Halachah, unless the Gemara says otherwise. Accordingly, the Halachah in this case should follow the view of the Chachamim. Why, then, does the RAMBAM rule like Rebbi and not like the Chachamim? The Rambam (Hilchos Ma'aseh ha'Korbanos 17:8) rules that one who forgot "how many Esronos he pledged and in how many vessels" should bring sixty different Menachos, as Rebbi maintains. Why does the Rambam rule like Rebbi?

Moreover, as the KESEF MISHNEH asks, the Rambam himself in PERUSH HA'MISHNAYOS writes that the Halachah does not follow the view of Rebbi!

(a) The RADVAZ explains that the Rambam indeed rules like Rebbi. The Rambam retracted what he wrote in Perush ha'Mishnayos because of the Gemara's discussion (104b) of the earlier statement in the Mishnah. The Mishnah states that "if one specified [a certain amount of flour to bring as a Minchah], and he does not know how much he specified, he brings a Minchah of sixty Esronim." In the Gemara, Chizkiyah asserts that this statement does not follow the view of Rebbi, since Rebbi would say in such a case that the person must bring sixty separate Menachos in order to ensure that his pledge is fulfilled. Rebbi Yochanan says that even Rebbi agrees with this part of the Mishnah. The case in this part of the Mishnah refers to a person who said that he knew he specified an amount of Esronim (which he forgot), and that he knew that he did not say that he would bring them in a vessel. Rebbi agrees that as long as the person did not specify that he would place the Minchah in a vessel, he may bring one Minchah of sixty Esronim.

The Radvaz explains that the fact that Rebbi Yochanan suggested that Rebbi might agree with this part of the Mishnah shows that Rebbi Yochanan ruled that the Halachah follows the view of Rebbi. Moreover, when the Gemara later (106a) discusses the basis for the argument between Rebbi and the Chachamim, Rav Chisda explains that their argument is based on whether one is allowed to bring Chulin into the Azarah. Rebbi maintains that one is not allowed to bring Chulin into the Azarah, and therefore he rules that the person may not bring the rest of the Minchah, which he did not pledge to bring, into the Azarah. (Rav Chisda learns that the rest of the Minchah remains Chulin; see Rashi to 106a, DH Raban Savri.) Since the Rambam (in Hilchos Shechitah 2:3) rules that one may not bring Chulin into the Azarah, it is logical that he rules like Rebbi in this case.

(b) The LECHEM MISHNEH (Hilchos Ma'aseh ha'Korbanos 17:8) argues that the Rambam does not rule like Rebbi, as he states in Perush ha'Mishnayos. The argument between Rebbi and the Chachamim applies only when the person is uncertain about how many Esronim he dedicated, but he is certain that he dedicated them in one vessel. The Rambam's case of a person who forgot "how many Esronos he pledged and in how many vessels" is entirely different; in that case, the person is in doubt not only about the amount of Esronim he pledged, but also about the amount of vessels he pledged in which to bring them. The Lechem Mishneh suggests that in such a case even the Chachamim agree that one should bring sixty different Menachos, as Rebbi states in the previous case.

The Lechem Mishneh's proof for this approach is that if the Rambam rules like Rebbi, then he does not need to specify that the person forgot "how many vessels," since Rebbi does not require that there be a doubt about this in order for one to be obligated to bring sixty Menachos.

A similar explanation is given by the BIRKAS HA'ZEVACH and the TZON KODASHIM. (See, however, SEFAS EMES on the Mishnah, who has difficulty with both explanations.) (Y. MONTROSE)

QUESTION: The Gemara discusses a case of a doubt about the identity of a Korban. The Korban might be an Asham Metzora, and it might be a Shelamim. The Gemara quotes Rebbi Shimon who says that the owner should bring the Korban together with a Log of oil, and he should stipulate that if the animal is an Asham, then it will serve as his Asham Metzora with the Log of oil. If it is not an Asham, then it will serve as a Korban Shelamim. Since the animal might be either Korban, he must treat it with the stringencies of both types of Korbanos. Consequently, the animal must be slaughtered in the north, its blood must be placed on the fingers of the Metzora, and it may be eaten for only one day and night, in accordance with the stringencies of an Asham Metzora. It must be brought with Nesachim, and Tenufah must be done with it, in accordance with the laws of a Korban Shelamim.

Rebbi Shimon mentions one more thing in his list of stringencies. He says that the animal requires Semichah. Why does Rebbi Shimon mention Semichah as a stringency of a Korban Shelamim? Semichah is required for both a Shelamim and an Asham Metzora!

(a) TOSFOS (DH u'Semichah) answers that Rebbi Shimon follows the opinion in Zevachim (33a) that says that the Semichah done for an Asham Metzora is only mid'Rabanan. When one does Semichah, he must place both of his hands on the animal's head and lean all of his weight on the animal. The Gemara in Chagigah (16b) says that leaning on the animal when there is no obligation to do Semichah constitutes an unnecessary labor with Kodshim, which is prohibited. Tosfos therefore says that the Semichah done to this animal must be done by placing the hands over the animal's head, but not by leaning on it. (See Insights to Menachos 93:1.)

However, Semichah done in this manner is also problematic. If the animal is actually a Shelamim, it needs a proper Semichah! Tosfos answers that since the person needs to remove his status of a Metzora, the law is lenient and permits him to bring the Korban without a proper Semichah.

(b) In his second explanation, Tosfos suggests that Rebbi Shimon agrees that the Semichah of an Asham Metzora is mid'Oraisa. Why does Rebbi Shimon mention Semichah in his list of stringencies, each of which relate to only one of the two possible Korbanos? Tosfos answers that Semichah indeed is not a characteristic of the stringencies in Rebbi Shimon's list. Rebbi Shimon is not listing stringencies that apply only to one or the other type of Korban, but rather he is listing all of the stringencies that apply in this case. This is evident from the fact that he also mentions that the person must bring Nesachim with this Korban. Although other Ashamos do not require Nesachim, an Asham Metzora requires Nesachim. A Korban Shelamim also requires Nesachim. It must be that the reason why Rebbi Shimon mentions Nesachim is that he is listing everything that must be done with the Korban, and not just the stringencies of each type of Korban.

However, Tosfos concludes that since an Asham Metzora is the only type of Asham that requires Nesachim, it makes sense that Rebbi Shimon should mention it. In contrast, Semichah is required for all Ashamos and all individual Shelamim. Tosfos, therefore, prefers the first answer to this question. (See also Tosfos to Zevachim 76a, DH u'Semichah.)

(c) Tosfos in Zevachim (33a, DH Semichas Asham) presents a third way to understand the words of Rebbi Shimon. Tosfos says that Rebbi Shimon follows the opinion that an Asham Metzora does not require Semichah mid'Oraisa. Rebbi Shimon is teaching that, in this case, "the Korban requires Semichah according to the Torah because of the doubt that the Korban might be a Shelamim."

This approach is problematic. One may not perform a real Semichah to a Safek Asham Metzora, because he might be doing a prohibited Avodah with the Korban. Why does Tosfos say that the Torah requires him to perform Semichah on such an animal when there is a possibility that he is transgressing the prohibition against doing an Avodah with Kodshim?

1. The TZON KODASHIM indeed omits the word "d'Oraisa" ("according to the Torah") from the words of Tosfos. He apparently understands that the answer of Tosfos there is the same as the answer of Tosfos here in Menachos, that the Semichah is done without leaning one's weight on the animal.

2. RAV YITZCHAK ISAAC CHAVER and the MELO HA'RO'IM argue that the word "d'Oraisa" certainly belongs in the text of Tosfos. Tosfos is employing the rule of "Safek d'Oraisa l'Chumra"; in the case of a doubt about a Torah law, one must conduct himself stringently. The Rishonim argue about whether the obligation to be stringent in the case of a Safek d'Oraisa is mid'Oraisa or mid'Rabanan. (See Insights to Kidushin 73:1, Bava Metzia 7:1, and Chulin 11:3.) Rav Yitzchak Isaac Chaver and the Melo ha'Ro'im understand that Tosfos maintains that "Safek d'Oraisa l'Chumra" is a Torah principle. Tosfos, therefore, says that even though the animal might be an Asham Metzora and does not need Semichah according to the Torah, since it is a Safek d'Oraisa, according to the Torah one must act stringently and perform Semichah because of the possibility that it is a Shelamim.

3. The KEHILOS YAKOV (Zevachim 45:6) suggests a different understanding for the words of Tosfos. Perhaps Tosfos means that just as there is a rule that "Aseh Docheh Lo Sa'aseh" (a Mitzvas Aseh overrides a Mitzvas Lo Sa'aseh), there is a rule that a "Safek Aseh Docheh Safek Lo Sa'aseh" -- a Mitzvah that is in doubt overrides a Lo Sa'aseh that is in doubt. Thus, when there is a doubt about whether the animal is a Shelamim and requires Semichah, or whether the animal is an Asham Metzora and does not require Semichah, the Safek Mitzvah of Semichah overrides the Safek Lo Sa'aseh against doing prohibited work with Kodshim. However, the Kehilos Yakov concludes that this is a very novel idea, and he is uncertain about whether this is the intention of Tosfos. (Y. MONTROSE)