QUESTION: The Gemara discusses the form in which a person is required to pay back Tashlumei Terumah (the payment that is owed when a non-Kohen accidentally consumed Terumah). We know that one must give the Kohen a payment of fruit, as opposed to money, which can be turned into Terumah upon payment. Does one pay the Kohen the actual volume of fruit that was consumed ("l'Fi Midah Meshalem"), or does one pay fruits that are presently worth the value of the Terumah that was consumed ("l'Fi Damim Meshalem")?

The Gemara finds only one case in which there would be a practical difference whether one pays "l'Fi Midah" or "l'Fi Damim": a person ate one Se'ah of Terumah when it was worth one Zuz, and now it is worth four Zuzim. If Tashlumei Terumah is paid "l'Fi Midah," then one must give the same amount of fruit that he ate (one Se'ah, or four Zuzim worth of fruit). If Tashlumei Terumah is paid "l'Fi Damim," then one pays the value of the fruit at the time that he ate it -- just one Zuz worth of fruit (considerably less fruit than the actual amount of fruit that he ate).

Why does the Gemara say that this case is the only practical difference between whether one pays "l'Fi Midah" or "l'Fi Damim"? There are several other practical differences that the Gemara could have suggested:

1. When the Se'ah of Terumah was worth four Zuzim at the time he ate it, and now it is worth one Zuz, the Gemara says that regardless of whether one must pay "l'Fi Midah" or "l'Fi Damim," he must pay four Zuzim. REBBI AKIVA EIGER (in Gilyon ha'Shas) points out that although it is true that whether he pays "l'Fi Damim" or "l'Fi Midah" he must pay the sum that he stole to the Kohen from whom he stole it, nevertheless there should be a difference between how he pays, as follows:

When one pays Tashlumei Terumah, he actually accomplishes two things. First, he reimburses the owner (Kohen) for his property. This reimbursement is the same as the normal law of Gezeilah, payment for stolen property. Second, he replaces Terumah that was lost from the world by replacing it with other fruit that will become Terumah upon payment. The question of "l'Fi Midah" or "l'Fi Damim" should be relevant only to the second element of the payment (replenishing lost Terumah, or "Tashlumei Terumah") and not to the first ("Tashlumei Gezeilah").

When the non-Kohen ate one Se'ah of Terumah fruit (which was worth four Zuz at the time he ate it), he must pay back one Se'ah of Terumah fruit as Tashlumei Terumah, which now happens to be worth only one Zuz. If he pays "l'Fi Midah," he must pay only one Zuz worth of fruit that will turn into Terumah, and a fourth of a Zuz as the Chomesh payment. He must also pay the remaining three Zuzim which he owes for stealing from the Kohen -- but this payment, like every other Tashlumei Gezeilah, may be paid with cash.

If, however, one must pay back "l'Fi Damim," then the Torah's requirement to replace Terumah with other fruit that will become Terumah applies to the entire value of what was consumed, and not just to the volume. Therefore, in the Gemara's case one must give back edible fruit (and not money) worth four Zuzim, and one Zuz as the Chomesh payment.

2. TOSFOS REBBI AKIVA EIGER (Mishnayos Terumos 6:4) asks that the Gemara could have given another simple difference, which would apply even if it the value of the stolen Terumah fruit did not change. If one ate four Zuzim worth of Terumah, and he must pay back "l'Fi Midah," then he must pay back four Zuzim worth of fruit. If, however, he must pay "l'Fi Damim," then he may give the Kohen a fraction of the volume of fruit which he ate, since he pays back with fruit which is Chulin. Chulin fruit is worth more than Terumah fruit, because it has many more buyers. Paying a smaller amount of Chulin fruit, which is the same value as the Terumah that was eaten, should suffice if one must pay back the value ("l'Fi Damim") of what one ate, but it should not suffice if one must pay "l'Fi Midah."

3. The SEFAS EMES asks that there is another obvious difference that the Gemara here should have mentioned. What is the Halachah in a case in which a non-Kohen ate Terumah that had not yet been given to a Kohen? In such a case, there is no obligation to pay Tashlumei Gezeilah, since the Terumah was not stolen from any particular Kohen (it was "Mamon she'Ein Lo Tov'im").

If one ate the Terumah fruit when it was worth four Zuzim and it depreciated to one Zuz, the Gemara cannot say that he must still pay back fruit worth four Zuzim in order to reimburse the Kohen, because there is no Kohen to reimburse! Consequently, if one must pay "l'Fi Damim," then one must pay fruit worth four Zuzim, since that was the value of the Terumah which he ate and which he must replace. If one must pay "l'Fi Midah," though, then he pays only one Zuz worth of fruit (that is, one Se'ah which is now worth one Zuz), because that is the amount of Terumah which he ate and which he must replace. He does not have to pay the additional three Zuzim for stealing from the Kohen, because there is no Kohen to whom to pay.

Why does the Gemara not suggest any of these three cases in which there is a difference whether one pays "l'Fi Midah" or "l'Fi Damim"?

ANSWER: The SEFAS EMES answers that all of these questions are based on one premise -- the premise that reimbursing what was stolen and replacing Terumah are two different concepts. Perhaps the reason why the Gemara does not suggest these practical differences is because it understands that the two concepts are one and the same. When the Torah teaches how to replace the Terumah that was eaten, it teaches how to compensate the Kohen for what was eaten. In effect, it rewrites the Halachah of "v'Heshiv Es ha'Gezeilah" for the particular case of a non-Kohen who ate Terumah.

That is, in a normal case of theft, the law is that the thief returns the value of what was stolen either by paying cash, or by paying "Shaveh Kesef" (anything of value). He does not need to return to the owner the same type of article that he stole. The law with regard to Terumah is different. With regard to Terumah, the Torah is more strict and specifies that one must reimburse the owner (i.e., the Kohen) with actual Terumah produce (although the Torah was not so strict as to require that he return the exact same type of produce that he stole). Similarly, although a thief normally is not obligated to reimburse the owners for "Mamon she'Ein Lo Tov'im," the Torah is more strict in the case of a non-Kohen who eats Terumah unintentionally, and it requires that the perpetrator reimburse even "Mamon she'Ein Lo Tov'im" to its owners. The opinion that says "l'Fi Midah Meshalem" adds an additional stringency: the repayment must cover not only the value of what was stolen, it must also replace the volume of what was stolen.

This explanation of the nature of the requirement to repay the Kohen for stolen Terumah answers all three questions.

1. If the one Se'ah of Terumah fruit was worth four Zuzim at the time that the non-Kohen ate it, and the value of fruit decreased to one Zuz per Se'ah, the perpetrator must pay four Zuzim in the form of edible fruit (Tashlumei Terumah). This is because the obligation of Gezeilah requires him to reimburse the Kohen with exactly the value that he stole (four Zuzim), and the law of Tashlumei Terumah (that he must pay back edible fruit) applies to any money he gives to the Kohen as compensation for the theft. (SEFAS EMES)

2. Even if he must pay "l'Fi Damim," he may not pay back with a smaller amount of Chulin fruit which is worth the same as the larger amount of Terumah fruit that he ate, because this will not compensate the Kohen for his loss. Since the fruit will become Terumah as soon as the Kohen receives it, its value will be far less than the fruit that was stolen from him (since it is a smaller amount). Therefore, according to all opinions, it is obvious that first and foremost one must compensate the Kohen. The payment must be such that when it turns into Terumah in the hands of the Kohen, it will be worth the same amount as the Terumah that was eaten. Consequently, the quantity of Chulin fruit that one pays back will have to be the same quantity as the Terumah that he ate. (M. KORNFELD)

3. Even if a non-Kohen takes Terumah of his own (that he has not yet given to any Kohen) and eats it, he must still pay what it was worth before its value decreased, because the Torah considers him to be a thief. Even though, normally, the principle of "Mamon she'Ein Lo Tov'im" exempts him from the obligation to reimburse the Kohanim for Terumah that was not owned by any specific Kohen, here the Gezeiras ha'Kasuv obligates the thief to reimburse the Kohanim. He must pay for what he stole, like an ordinary thief, and he must pay based on the original value of what he stole even though there is no claimant. (SEFAS EMES)

(The only difficulty with the approach of the Sefas Emes is that RASHI (DH Kol Heicha) seems to provide strong support for Rebbi Akiva Eiger's thesis, that Tashlumei Terumah and Tashlumei Gezeilah are two distinct and separate obligations. Rashi writes that "even though a person attains forgiveness for his sin of eating Terumah by paying just one Zuz to the Kohen [in a case where the Terumah was worth four Zuz when he ate it and only one Zuz now], nevertheless he must still reimburse the Kohen for what was taken from him." It seems clear from the words of Rashi that the Tashlumei Terumah indeed is not connected to the requirement to reimburse the Kohen. The Sefas Emes suggests that perhaps Rashi means only that the thief would have been forgiven for his crime by paying the lesser amount, had it not been for the fact that he must reimburse the Kohen before he is forgiven.)

QUESTION: The Gemara cites a Beraisa which teaches that one is obligated to bring a Korban for Me'ilah only when he benefits from an item of Kodesh accidentally, but not when he benefits intentionally. The Beraisa says that we might have assumed that one is not obligated to bring a Korban for intentional Me'ilah because of a Kal v'Chomer from other sins: since one is not obligated to bring a Korban for intentional transgression of a sin which is punishable with Kares, certainly one is not obligated to bring a Korban for intentional transgression of Me'ilah, which is not punishable with Kares but only with Misah, which is less severe than Kares.

The Beraisa rejoins that perhaps Me'ilah is more severe than other sins: Me'ilah, which is punishable with Misah, certainly requires a Korban when done intentionally, while other sins, which are punishable merely with Kares, which is less severe than Misah, require no Korban when done intentionally.

The Gemara points out the obvious contradiction in the Beraisa. The Beraisa first says that Kares is more severe than Misah, and then it says that Misah is more severe than Kares.

We know that the punishment of Kares includes the death of one's children, but Misah affects only the transgressor himself. In addition, one who is punished with Kares dies between the ages of 50 and 60, but one who is punished with Misah dies only before his destined time, but he can live to be older than 60. (See Background to the Daf.)

These differences make it clear that Kares is more severe than Misah. Why, then, does the Gemara ask that the Beraisa contradicts itself? It should ask simply that the second part of the Beraisa makes an illogical statement when it says that Misah is more severe than Kares. Why is the Gemara bothered only by the contradiction in the Beraisa, but not by the Beraisa's illogical suggestion that Misah is more severe than Kares? (TOSFOS RABEINU PERETZ)

(a) TOSFOS RABEINU DAVID explains that the Gemara indeed could have asked why the Beraisa even suggests that Misah is more severe than Kares, but it preferred to ask a better question and to show that there is an internal contradiction in the Beraisa itself.

(b) TOSFOS RABEINU PERETZ quotes RABEINU SHMUEL of Evreux who cites the Yerushalmi that says that Misah is more severe than Kares in one respect. When one is punished with Misah, all of his possessions are also destroyed. In contrast, when one is punished with Kares, his possessions are spared. This is also the opinion of RABEINU YONAH (Sha'arei Teshuvah 3:6): the punishment of Misah includes the eventual destruction of a person's animals and possessions, as the verse says, "Alah Maves b'Chaloneinu" (Yirmeyahu 9:20).

Perhaps this phenomenon -- that Misah is more severe than Kares in one respect -- may be understood as follows. The Gemara in Sanhedrin (48b) teaches that "when the court kills a person [who deserves the death penalty], his belongings pass to his legal heirs. However, when the king kills someone for disobeying his word, the king takes the person's property as well." Kares is a punishment meted out by the court -- the "heavenly court." The heavenly court administers Kares when the earthly courts are unable to prosecute the perpetrator (for example, the sinner did not receive proper Hasra'ah, warning, from witnesses before the act). In the framework of Torah punishments, Kares is in the same category as Misas Beis Din.

In contrast, Misah b'Yedei Shamayim is punishment "at the hands of heaven." It is carried out by the King, Hash-m Himself, when a person disobeys Him and slights His majesty in a particular way. Specifically, Mishah b'Yedei Shamayim is administered to those who defile His chosen portion or sanctuary. (Examples of this are a non-Kohen who eats Terumah, Bikurim or Chalah, a Kohen Tamei who eats Terumah, one who eats Tevel from which Terumah was not separated, one who misuses Hekdesh (according to Rebbi), improper behavior in the Mikdash such as a Zar who performs the Avodah or a Kohen who enters the Kodesh ha'Kodashim for no reason; see RAMBAM in Hilchos Sanhedrin 19:2. It is interesting to note that even the instances of Misah b'Yedei Shamayim "d'Rabanan" that Rabeinu Yonah lists (ibid.) fit precisely into this category.)

When Misah is administered, the person is killed for having offended the King. Just as an earthly king, who executes a person who disobeyed him, takes away all of the person's property as well, so, too, Hash-m, the King, confiscates the guilty party's property and takes back what was always His. (M. KORNFELD; see also Insights to Yevamos 73:2.)