1) "ME'ILAH" FOR "KONAMOS"

OPINIONS: The Gemara discusses whether "Yesh Me'ilah l'Konamos" or "Ein Me'ilah l'Konamos." Is there a Chiyuv of Me'ilah when one makes a Neder ("Konam") and then violates the Neder?

The transgression of Me'ilah, an act of using the property of Hekdesh for one's personal benefit, generates two obligations. The first obligation is that the person must pay Hekdesh for the benefit that he received from the property of Hekdesh, just as one must pay his friend when he steals his friend's object. The second obligation is that he is required to bring a Korban Asham.

What is the Gemara's intention when it says that one who violates a Neder is Chayav Me'ilah? Perhaps the Gemara means that the item prohibited by the Neder is treated as property of Hekdesh and therefore one who benefits from it must pay Hekdesh. Alternatively, perhaps the Gemara means that one must bring a Korban Me'ilah but does not have to pay Hekdesh, since the item does not actually belong to Hekdesh.

(a) The Gemara proves from the Mishnah that there is a Chiyuv Me'ilah for violating a Neder. The Mishnah says that if one finds a lost object and returns it to the owner who is prohibited to receive Hana'ah from the finder, and the finder does not accept the compensation he deserves, the owner of the lost item should give the money of the compensation to Hekdesh instead. This implies that an item prohibited by a Neder is treated like Hekdesh, and just as there is a Chiyuv of Me'ilah for Hekdesh, there is a Chiyuv of Me'ilah for Konamos.

The ROSH explains that when one receives monetary gain from violating a Neder, it is not enough to destroy the money he gained so that he not receive further pleasure from it, but it must be paid to Hekdesh. The Rosh seems to understand that an item prohibited by a Neder is treated like the property of Hekdesh, and thus the person must pay Hekdesh.

The RAMBAM (Hilchos Me'ilah 4:10) writes that the laws of Me'ilah apply to a Neder only when the person received a Perutah's worth of benefit from the item. He seems to understand that the law of Me'ilah of Konamos has all of the details of the law of Me'ilah of Hekdesh.

(b) The RAN writes that the Gemara's question is only whether one must bring a Korban Me'ilah for violating his Neder. The Ran explains that when the Gemara proves from the Mishnah that "Yesh Me'ilah l'Konamos," it does not mean that the money must be given to Hekdesh. Rather, when the Gemara says "it should go to Hekdesh" it means that the item prohibited by a Neder is treated like Hekdesh (so that one must bring a Korban). The Ran agrees that the offender must destroy the monetary gain so that he will not derive pleasure from it, but the Ran maintains that he does not have to give it to Hekdesh.

TOSFOS (34b) writes that if there is Me'ilah for Konamos, then one is Chayav for Me'ilah even if the benefit that he receives from the prohibited item is worth less than a Perutah. One who benefits from ordinary Hekdesh is Chayav Me'ilah only when he receives benefit worth at least a Perutah.

Tosfos apparently learns like the Ran, that the laws of Me'ilah for Konamos differ from the laws of Me'ilah for Hekdesh. The Chiyuv of Me'ilah for Hekdesh is for stealing and misusing the property of Hekdesh, and therefore there is no Me'ilah when the benefit is worth less than a Perutah since no monetary claim can be made against one who steals less than a Perutah. In contrast, one who derives personal benefit from an item of Konam is not considered as though he steals property of Hekdesh. Therefore, any amount of personal benefit he receives from the item constitutes a transgression of the prohibition of the Neder, even if the benefit he receives is worth less than a Perutah.

2) WHO IS PUNISHED FOR TRANSGRESSING THE NEDER

OPINIONS: The Gemara asks which person is Chayav Me'ilah when one person declares to his friend, "My loaf of bread is Konam to you," and then he gives the loaf to his friend. The Gemara says that the one who gives the loaf is certainly not Chayav Me'ilah since the loaf is not prohibited to him but is prohibited to his friend.

(a) The RAN writes that the Gemara here disproves the opinion of the RAMBAM who rules that if one made a Neder to prohibit his friend from having benefit from his object, and then he gave the object to his friend, the owner of the object transgresses the Isur of "Lo Yachel Devaro," violating his word. The Ran seems to equate the Isur of Me'ilah (using a sanctified item for personal benefit) with the Isur of "Lo Yachel." Hence, just as the owner of the object is not Chayav Me'ilah (as the Gemara says), so, too, he does not transgress the Isur of "Lo Yachel."

(b) It may be suggested that the Ran's proof is based on his understanding that even if there is Me'ilah for benefiting from an item prohibited by a Neder, it is not because the item is treated like the property of Hekdesh. Rather, there is Me'ilah simply because the transgression of a Neder requires that a Korban Me'ilah be offered (see previous Insight). Based on this understanding, the Ran asserts that since the Gemara says that the owner of the loaf is not Chayav for Me'ilah, this proves that he also does not transgress the Isur of "Lo Yachel," because the Chiyuv of Me'ilah is dependent on the Isur of "Lo Yachel."

The Rambam, however, may understand that the two issues (Me'ilah and "Lo Yachel") are not related. There is one transgression of violating a Neder ("Lo Yachel"), and there is a separate transgression of deriving forbidden pleasure from an item prohibited by a Neder, which is considered like deriving pleasure from Hekdesh (see Rambam, Hilchos Me'ilah 4:10, cited in previous Insight). Even if the owner of the loaf transgresses his Neder by giving it to the one to whom it is prohibited, he does not transgress Me'ilah since he does not have any forbidden pleasure from it.

35b----------------------------------------35b

3) ARE KOHANIM THE AGENTS OF HASH-M OR THE AGENTS OF THE PEOPLE?

QUESTION: The Gemara inquires whether the Kohanim who offer Korbanos on behalf of the people are considered the messengers of the people or the messengers of Hash-m.

The Gemara in Yoma (19a) and Kidushin (23b) discusses the same issue and immediately proves that the Kohanim must be the messengers of Hash-m, from the rule that one cannot make a Shali'ach for something which he cannot do himself. Since a non-Kohen cannot offer Korbanos in the Beis ha'Mikdash (a Yisrael is permitted to perform only the Shechitah of a Korban and nothing else), he cannot make the Kohen his messenger to do so. It must be that the Kohanim are messengers of Hash-m.

Why does the Gemara here have a lengthy discussion about the issue and not resolve the question as the Gemara in Yoma and Kidushin does?

ANSWERS:

(a) The RAN and TOSFOS here write that although there is a logical resolution to this question (as the Gemara in Yoma and Kidushin presents), the Gemara here seeks proof from a Mishnah or a Beraisa.

(b) TOSFOS in Yoma and Kidushin (see Maharsha there) offers another answer. Tosfos understands that the Gemara in Yoma discusses whether the Kohanim are only the messengers of Hash-m or only the messengers of the people. The Gemara here, on the other hand, is based on the conclusion of those Gemaras that the Kohanim must be the messengers of Hash-m, and it is asking whether they are also the messengers of the people. Although the Gemara knows that non-Kohanim, who cannot offer the Korbanos themselves, do not have the power to appoint Kohanim as their messengers, the Gemara asks that perhaps once the Kohanim are appointed by Hash-m they perform the Avodah directly for the people as well and thus are considered the messengers of the people as well.

The words of Tosfos provide an answer to another question. The Gemara states that the practical difference between whether the Kohen is the agent of Hash-m or the agent of the people is whether the Kohen is permitted to bring a Korban on behalf of a person to whom he is prohibited to give pleasure. Why does the Gemara not give the more obvious practical difference -- that if the Kohen is an the agent of the people, he cannot offer the Korban without explicitly being appointed by the owner?

The answer is that according to Tosfos, the Gemara assumes that Hash-m appoints the Kohanim and there is no need for the owner of the Korban to appoint them. The only issue in question is whether the Kohen performs a service for the owner of the Korban (in which case the Kohen is prohibited from offering the Korban when there exists a Neder which prohibits him from giving pleasure to the owner), or whether he performs a service solely for Hash-m (and the fact that the owner of the animal gains as a result is only an indirect result ("Gerama") of the Kohen's act and not its primary purpose). Therefore, the practical ramification of the Gemara's question is not whether the owner needs to appoint the Kohen as his agent, but whether or not a Kohen is permitted to bring the Korban of a person prohibited to receive pleasure from him.

OTHER D.A.F. RESOURCES ON THIS DAF