1) REPETITIVENESS IN THE MISHNAH
QUESTION: The Mishnah begins, "Everyone may make a Temurah." The Gemara explains that the Mishnah does not mean that one is permitted to make a Temurah. Rather, the Mishnah means that when one makes a Temurah, his act is effective and the animal becomes Kodesh. Accordingly, the first part of the Mishnah is saying the same thing as the second part, which says, "Not that a person is permitted to make a Temurah, but if he did [b'Di'eved] make a Temurah, his act takes effect."
Why does the Mishnah need to state twice that if one transgressed and made a Temurah, the animal becomes Kodesh?
(a) RASHI (as quoted by TOSFOS DH Ha) explains that the second part of the Mishnah is teaching that a person is punished with Malkus for performing an act of Temurah. That one is punished with Malkus would not have been known from the first statement of the Mishnah.
(b) TOSFOS (DH Ha) quotes RABEINU TAM who says that the Mishnah is teaching that the Temurah takes effect even when it was done deliberately (unlike a case of Me'ilah, in which the animal does not leave the possession of Hekdesh when one deliberately used the animal for his personal benefit).
(c) Tosfos quotes the RI who explains that the first part of the Mishnah is teaching that the Temurah performed by a woman is also effective. (This is why the Gemara, in its answer, makes a point of quoting the part of the Mishnah that mentions women.)
2) A MISHNAH THAT TEACHES A LAW WRITTEN EXPLICITLY IN THE TORAH
QUESTION: The Mishnah states that "everyone may make a Temurah, both men and women. Not that a person is permitted to make a Temurah, but if he did make a Temurah, his act takes effect, and he is punished with forty lashes." The Gemara explains that the first part of the Mishnah does not mean that one is permitted to make a Temurah. Rather, the Mishnah means that when one makes a Temurah, his (or her) act is effective and the animal becomes Kodesh (see previous Insight).
The second part of the Mishnah, however, seems inconsistent with the normal style used in a Mishnah. The Torah explicitly says, "Lo Yachalifenu v'Lo Yamir Oso" -- "Do not transfer or exchange it (an animal that has been designated as a Korban for another animal)" (Vayikra 27:10). Why does the Mishnah need to teach that one is not permitted to do an act of Temurah, when the verse in the Torah explicitly prohibits it?
(a) RASHI in Yevamos (50a, DH Mishnah she'Einah Tzerichah) points out that the Gemara itself asks this question on the Mishnah in Yevamos there. The Mishnah there (49a) states that if a man's wife died, he is allowed to marry her sister. Rav Yosef (50a) says that Rebbi wrote here a Mishnah that was not necessary. What does Rav Yosef mean by this statement? Rashi explains that since the verse explicitly states, "A woman as well as her sister you may not marry, to make them quarrel, in her lifetime" (Vayikra 18:18), it is not necessary for the Mishnah to teach this law. Rav Yosef therefore says that Rebbi wrote a Mishnah that was not necessary.
Why does the Gemara here not ask this question, or at least point out that the Mishnah's statement is not necessary?
The MELECHES CHOSHEV explains that Rashi agrees that the statement of the Mishnah here is necessary. Since the Mishnah begins by saying, "everyone may make a Temurah," one might have misunderstood this statement and assumed that it is permitted to make a Temurah. Therefore, the Mishnah needs to emphasize that even though Temurah takes effect, it is prohibited to do an act of Temurah in the first place.
(b) TOSFOS in Yevamos (50a, DH Shanah Rebbi) questions Rashi's explanation for Rav Yosef's statement in Yevamos. Without giving examples, Tosfos says that it is commonplace for the Mishnayos to teach Halachos that are explicitly mentioned in the verses. Tosfos therefore understands that Rav Yosef is referring to a different statement later in the Mishnah, in which the Mishnah says that when one performs Yibum and the woman dies, he is allowed to marry her sister. Tosfos explains that since the previous Mishnah says that a person is allowed to marry his wife's sister after his wife dies, it is obvious that one is allowed to marry the sister of the woman with whom he does Yibum after that woman dies.
According to Tosfos, there is no question on the Mishnah here. Tosfos maintains that the Mishnah in fact does teach Halachos that are known already from the verses.
(c) The Meleches Choshev gives an additional answer based on the words of the RAMBAM in SEFER HA'MITZVOS (Shoresh 8). The Rambam there differentiates between a negative statement in the Torah which is intended to be a prohibition, and a negative statement which merely teaches that a certain Halachah does not apply ("Shelilas ha'Chiyuv"). For example, when the Torah says with regard to Tzara'as, "A Kohen will not check a yellow hair, for it is Tamei" (Vayikra 13:36), the Torah is not teaching a prohibition for the Kohen to check such a hair, but rather the Torah is teaching merely that the Kohen does not need to check the hair. The Rambam gives additional examples of verses that fall under this category of negative statements that are not prohibitions.
Based on this understanding, the Meleches Choshev suggests that one might have thought that the verse of "Lo Yachalifenu" is addressing the owner of a Korban who contemplates making a substitute for his Korban instead of bringing the animal that he originally designated. The Torah is simply saying that such a thought is not effective, and both animals become Kodesh, and not that one is prohibited to have such a thought. The Mishnah therefore states clearly that having such a thought indeed is forbidden; the verse is teaching a prohibition, and it is not merely expressing an informative statement. (Y. MONTROSE)
3) HOW MANY LASHES DOES ONE RECEIVE FOR "TEMURAH"
QUESTION: The Mishnah states that one who makes a statement of Temurah (in an attempt to exchange an animal that he has sanctified as a Korban with a different animal) receives forty lashes for transgressing the Isur of Temurah.
Why does the Mishnah say that he receives only one set of Malkus? One who attempts to exchange a sanctified animal transgresses two Lavim: the Lav of "Lo Yachalifenu" and the Lav of "Lo Yamir" (Vayikra 27:10)! (RISHONIM)
(a) TOSFOS (DH v'Sofeg) answers that the Mishnah's intention is not to teach how many lashes the transgressor receives, but rather to teach that one who transgresses the Isur of Temurah receives Malkus. In truth, the transgressor will receive two sets of Malkus for the two prohibitions that he transgressed.
(b) Tosfos suggests a different answer and says that, in fact, one who transgresses the Isur of Temurah receives only one set of Malkus. The verse that teaches that there are two Isurim -- "Lo Yachalifenu" and "Lo Yamir" -- refers to two separate Isurim that apply in two separate situations. One Isur applies when one does Temurah with his own Korban. The other Isur applies when one does Temurah with someone else's Korban. In each case, he receives only one set of Malkus, since he transgresses only one Lav.
(c) RASHI in Bava Metzia (91a, DH v'Sofeg) writes that one receives Malkus because of the Isur of "Lo Yachalifenu." Rashi implies that the transgressor receives only one set of Malkus (see AFIKEI YAM 1:25).
However, here in Temurah, Rashi (DH v'Sofeg) says that one receives Malkus for the Isur of "Lo Yamir," and he does not mention the Isur of "Lo Yachalifenu" as he mentions in Bava Metzia!
Moreover, it seems more appropriate to say that the Malkus is due to the Isur of "Lo Yachalifenu," because these words are the beginning of the verse that teaches the Isur of Temurah. What is the meaning of Rashi's words?
1. Rashi explains here that the Malkus is for "Lo Yamir" because the Mishnah begins with the words, "ha'Kol Mamirin." Rashi wants to explain why the Isur is called "Temurah," and thus he quotes the verse of "Lo Yamir." In Bava Metzia, however, Rashi quotes the verse of "Lo Yachalifenu" because that is the first Isur expressed in the verse, as mentioned above. (Alternatively, Rashi here mentions "Lo Yachalifenu" because that Isur is more encompassing, for it includes both a case of one who makes a Temurah with his own animal, and one who makes a Temurah with someone else's animal, while the Isur of "Lo Yamir" refers only to one who makes a Temurah with his own animal, as the Gemara in Temurah (9a) states.) (M. KORNFELD)
2. The OTZAR CHAIM (Rav Chaim Broyde) suggests a novel answer. The Mishnah here says that "everyone may make a Temurah, both men and women." The Gemara later says that the extra word "Yamir" in the verse, "v'Im ha'Mer Yamir" (Vayikra 27:10), comes to include women. Accordingly, even if a man transgresses two Isurim when he makes a Temurah, a woman transgresses only one Isur -- the Isur of "Lo Yamir." Since the primary Chidush of the Mishnah is to teach that women are also obligated for Temurah, Rashi says that the Isur the Mishnah is discussing is the Isur of "Lo Yamir."
3. RAV YAAKOV D. HOMNICK (in MARBEH CHAIM to Maseches Chulin) proposes a brilliant approach to explain the intention of Rashi not only in Temurah and in Bava Metzia, but in Chulin (2a) as well (where Rashi says that the Isur of Temurah is "Lo Yachalifenu," but Malkus is given because of "Lo Yamir"; see Marbeh Chaim, #2-4). Rav Homnick points out that the Gemara here (3b) establishes that the reason why Malkus is administered for Temurah, even though it seems to be a "Lav she'Ein Bo Ma'aseh" (an Isur transgressed without performing an action), is that the person's act of Temurah is actually a "Lav she'Yesh Bo Ma'aseh," due to the fact that the Temurah accomplishes a tangible effect -- it turns a Chulin animal into a Kodesh animal.
The Gemara in Bava Metzia, in contrast, is discussing whether the movement of one's lips ("Akimas Sefasav") constitutes an action (Ma'aseh). The Gemara there understands that the reason Malkus is given for Temurah is not that it has a tangible outcome (turning a Chulin animal into a Kodesh one), but because the movement of the lips of the person when he spoke the words of Temurah constitutes an action.
Accordingly, Rashi in Bava Metzia explains that Malkus is given because of the Isur of "Lo Yachalifenu," since the Gemara there considers the movement of one's lips to be an action. The outcome of the Temurah is not what mandates the Malkus. "Lo Yachalifenu" expresses an act that was ineffective; these words express an attempt to "exchange" ("Yachalifenu") the two animals and make the Kodesh animal into Chulin. This action was ineffective since no actual exchange takes place (rather, both animals become Kodesh). Since no exchange was accomplished, the punishment of Malkus must be because of another action involved -- the movement of the lips.
In contrast, the Gemara here understands that Malkus is given because the Temurah has an actual outcome: the Chulin animal became Temurah, it became Kodesh. This is the "Ma'aseh" that makes it a "Lav she'Yesh Bo Ma'aseh." Accordingly, Rashi explains that Malkus is given because of "Lo Yamir," because it is this Isur, "Lo Yamir" -- "do not make an animal Temurah," that the person succeeded in transgressing with his words (that is, he succeeded in making the Chulin animal Temurah), and it is for that successful accomplishment of Temurah that Malkus is given. (See Marbeh Chaim there at length.)
4) THE "TEMURAH" AND "SEMICHAH" OF AN HEIR
QUESTION: The Gemara quotes a Beraisa in which Rebbi Meir says that one who inherits an animal that his father designated as a Korban may perform Semichah to the animal, and his act of Temurah with the animal takes effect. Rebbi Meir derives this from the verse, "v'Im ha'Mer Yamir" (Vayikra 27:10), in which the extra word teaches that an heir is also able to make a Temurah. Rebbi Meir compares the beginning of the sanctification of a Korban (Temurah) to the end (Semichah), and thus an heir also may perform Semichah.
Rebbi Yehudah argues and maintains that an heir is neither able to make a Temurah nor perform Semichah. He derives this from the word "Korbano" (Vayikra 3:8) written with regard to Semichah, which teaches that only the owner of the Korban may perform Semichah, and not his heir. Rebbi Yehudah compares the end of the sanctification of a Korban (Semichah) to the beginning (Temurah), and thus an heir may not perform Semichah.
The SHITAH MEKUBETZES (Hashmatos to 2b, #1) points out that this comparison between Semichah and Temurah is neither a Gezeirah Shavah nor a Hekesh. Therefore, it cannot be used to teach other laws from Semichah to Temurah or from Temurah to Semichah. (For example, it cannot be used to teach that a woman -- who can make a Temurah -- is able to perform Semichah.) Only with regard to an heir one subject be learned from the other, because there is a logical reason to do so. The verse of Semichah teaches that Semichah is done only by the owner of the Korban ("Korbano"), excluding an heir. The Gemara (9a) teaches that one cannot make a Temurah with a Korban that is not his (without the owner's permission). It therefore is logical that since an heir is not considered the owner of the Korban that he inherits, he cannot make a Temurah with it.
Why, though, is an heir not considered the owner of the Korban that he inherits from his father, both according to Rebbi Meir (who requires a special Derashah to teach that he may make a Temurah and do Semichah) and according to Rebbi Yehudah (who maintains that an heir may not make a Temurah or do Semichah)? When a person inherits property from his father, he becomes the new owner of that property!
ANSWER: The BRISKER RAV points out that a Korban is not an entity that can be inherited, since it is the possession of Hekdesh. When the Torah calls it "Korbano" -- "his Korban," it means that the Korban will serve to attain atonement or fulfill the obligations of the one who designated it. Even after the person dies, the Korban still is considered his in this respect. Therefore, only the Makdish can make a Temurah with it.
Nevertheless, the Gemara in Zevachim (5a) teaches that the heirs do have a certain degree of ownership of the inherited Korban. The Gemara there teaches that the heirs receive a "slight" atonement through offering the inherited Korban, but not a full atonement ("mi'Kiv'a Lo Mechapra, mi'Kufya Mechapra" -- literally, "it does not have the effect of fixed atonement, but merely that of 'floating' atonement"). According to Rebbi Meir, it is this partial ownership of the Korban of their father (or, more accurately, the fact that they are, to some degree, the "Miskaper," the ones receiving atonement) that enables the heirs to make a Temurah, and gives them the right to perform Semichah.
However, the Brisker Rav proves that even though an heir may perform Semichah according to Rebbi Meir, his Semichah does not have the same status as the Semichah of the actual owner. Rabeinu Gershom in Erchin (2a) writes that an heir performs Semichah only if the father did not have a chance to perform Semichah before he died. This implies that if the father performed Semichah before he died, then the son does not perform Semichah. However, the Gemara here says that Rebbi Meir requires that all of the owners of a jointly-owned Korban do Semichah (as he derives from the word "Korbano"). If the heir has the status of a partial owner in the Korban, then why should he not be required to do Semichah after his father's death, even if his father already did Semichah? It must be that the heir's limited degree of ownership does not give him the status of a partner in the Korban. Rather, the partial ownership of the heir is relevant merely in that if his father's Korban requires Semichah (such as in the event that Semichah was not done by the father), the heir can step in for his father and perform Semichah, since it is not considered as though he is doing Semichah on someone else's Korban. If, however, the father did Semichah already, it is not necessary for the heir to do it again. He is not considered a full owner of the Korban such that he must perform Semichah.
This point has another practical consequence. What is the Halachah in a case in which there is more than one heir? Do all of the heirs do Semichah (because all of the owners of a jointly-owned Korban must do Semichah, as mentioned above), or does it suffice for one of them to do Semichah? With regard to Temurah, the Gemara in Zevachim (ibid.) says that since "partners cannot make a Temurah," multiple heirs who inherit a Korban also cannot make a Temurah. Since heirs are considered partners with regard to Temurah (and thus they cannot make a Temurah), are they also considered partners with regard to Semichah (and thus they are required to do Semichah)?
The Brisker Rav answers these questions as follows. With regard to Temurah, the heirs are considered partners in the Korban because of the minimal Kaparah that they receive. Therefore, in a case of multiple heirs, they cannot make the Korban a Temurah because "partners cannot make a Temurah." However, with regard to Semichah, heirs are not obligated to do Semichah because of their own partial ownership in the Korban. An heir is allowed the opportunity to do Semichah with his father's Korban only if Semichah is required, but he is not obligated to perform Semichah with his father's Korban since he is not a full owner of the Korban. Accordingly, as long as one of the heirs does Semichah, the father's Korban has received the Semichah it needs and it is not necessary for the other brothers to do Semichah. It is not necessary for each heir to perform Semichah, because, with regard to Semichah, multiple heirs are not considered partners in the Korban they inherit. (Mordechai Zvi Dicker)
5) THE "TEMURAH" OF A NOCHRI
QUESTION: The Gemara quotes Rami bar Chama who asks about whether a Nochri can make a Temurah. Perhaps a Nochri's Temurah is effective, since a Nochri is able to be Makdish an animal as a Korban. On the other hand, perhaps a Nochri's Temurah is not effective, since a Nochri is not subject to the punishments prescribed by the Torah. Rava answers by citing a Beraisa that explicitly says that a Nochri cannot make a Temurah.
Rava's proof from the Beraisa is difficult to understand. The Beraisa begins by saying, "The Kodshim (Korbanos) of Nochrim...," and then it says, "we cannot make [them] Temurah." The Beraisa is clearly saying that a Jew cannot make a Temurah with the Korban of a Nochri (even with the owner's permission), because the Korban of a Nochri is not subject to the laws of Temurah. It does not say that a Nochri cannot make a Temurah with the Korban of a Jew!
How does Rava infer from the Beraisa that a Nochri cannot make a Temurah with the Korban of a Jew? (SEFAS EMES)
(a) The SEFAS EMES answers that Rava understands that if a Temurah cannot be made with a Nochri's Korban, then all the more so a Nochri himself cannot make another person's animal a Temurah.
This Kal va'Chomer of the Sefas Emes is difficult to understand. The reason why a Temurah cannot be made with a Nochri's Korban apparently is that the Kedushah that a Nochri can create is a lower degree of Kedushah. This is evident from the fact that the Beraisa gives a lengthy list of laws that do not apply to a Nochri's Korban, such as Me'ilah, Pigul, and Nosar. Accordingly, the reason why Temurah cannot be made with a Nochri's Korban is unrelated to the fact that a Nochri is not obligated by the Isur of "Lo Yamir." How, then, can Rava relate the Halachah of the Beraisa to the question of Rami bar Chama, who asks about whether the Nochri is able to make a Temurah with a Korban (even a Korban of a Jew), which depends upon whether a person who is not obligated in "Lo Yamir" can make a Temurah?
Rava might have inferred from the Beraisa that if a Temurah cannot be made from a Nochri's Korban because it has a lower degree of Kedushah, then the lower degree of Kedushah that a Nochri creates is not sufficient for him to create the Kedushah of Temurah. (See CHIDUSHEI HA'GRIZ.)
Another possibility is that Rava understands that the reason why a Temurah cannot be made from a Nochri's Korban is unrelated to the lower degree of Kedushah created by a Nochri. A lower degree of Kedushah can effect only the strength of the prohibitions involved with that Kedushah; it cannot prevent the Kedushah from being transferred through the means of Temurah. Rather, there is an entirely different reason for why a Temurah cannot be made from a Nochri's Korban. One way of understanding the Halachah might be that the Torah entirely excludes ("Mafki'a") a Nochri from the laws of Temurah. When the verses in the Torah teach that a Nochri's animal cannot be made a Temurah, they mean that a Nochri is entirely excluded from the laws of Temurah. The CHIDUSHEI HA'GRIZ presents this approach, and he explains that if a Nochri is excluded from the laws of Temurah, then it follows logically that he also is not able to make a Temurah. The Brisker Rav finds a parallel to this reasoning in the laws of Terumah. The RAMBAM infers from the fact that a Nochri's produce has no obligation to have Terumah separated from it that a Nochri is entirely excluded from the laws of Terumah, and that he cannot even separate Terumah on behalf of a Jew.
The Sefas Emes notes, however, that these approaches are not consistent with Rashi's interpretation of the Gemara (DH Lo and DH Basar Makdish). According to both approaches, the reason why a Nochri cannot make a Temurah is not that he is not commanded to observe the Mitzvah of "Lo Yamir," but rather that he is excluded by the Torah from the laws of Temurah. Rashi, however, writes that the Gemara is following its original approach -- that the reason why a Nochri cannot make Temurah is that he is not included in the Torah's prohibition of "Lo Yamir."
6) "NESACHIM" OF NOCHRIM
QUESTION: The Gemara quotes a Beraisa that teaches that Nochrim may not bring Nesachim as an offering to the Beis ha'Mikdash. RASHI (DH v'Ein Mevi'in) explains that the Beraisa refers to bringing Nesachim alone, when they accompany no animal offering. Although a Jew may bring an offering of Nesachim alone, a Nochri may bring Nesachim only as an accompaniment to an animal offering, but he may not bring Nesachim alone.
Rashi's words teach three different laws about the Nesachim of a Nochri. The first law is that when a Nochri sends Nesachim alone to the Beis ha'Mikdash, they are not offered on the Mizbe'ach, as the Beraisa here says. The second law is that when a Nochri sends a Korban together with its Nesachim, the Korban is offered on the Mizbe'ach and the Nesachim are also offered on the Mizbe'ach because of an enactment of the Chachamim. The third law is that when a Nochri sends a Korban without any Nesachim, the Korban is offered with Nesachim from the communal funds.
The VILNA GA'ON questions Rashi's words from the Mishnah in Shekalim (7:6). The Mishnah there teaches that when a Nochri sends Nesachim alone, they are not offered on the Mizbe'ach, as Rashi writes. However, when a Nochri sends a Korban without Nesachim, the Chachamim enacted that the Korban be offered with Nesachim from the communal funds, not as Rashi writes (that the enactment of the Chachamim was that the Nesachim that the Nochri himself sends are offered with his Korban). When the Nochri sends a Korban together with its Nesachim, both the Korban and Nesachim are offered according to Torah law, and not because of an enactment of the Chachamim, contrary to what Rashi writes.
How are the words of Rashi to be reconciled with the Mishnah in Shekalim?
ANSWER: The Mishnah in Shekalim states, "Beis Din decreed that... when a Nochri sends his Korban Olah from a distant land, and he sends Nesachim with it, we bring [his Korban and the Nesachim that he sent]. If he did not [send Nesachim with the animal], then they are brought from the communal funds." The Vilna Ga'on and others understand that when the Mishnah says that "Beis Din decreed," it refers to the case mentioned at the end of the Mishnah, the case in which the Nochri sent no Nesachim with his Korban, in which case Nesachim are brought from the communal funds (just as the other decrees mentioned in the Mishnah there address what is done with the communal funds). Rashi, however, understands that Beis Din not only enacted that Nesachim be brought from the communal funds when the Nochri sent none with his Korban, but that Beis Din also enacted that the Nochri's Nesachim be accepted when he does supply them. (According to Torah law, the Nesachim of a Nochri's Korban must be donated by a Jew.) This also appears to be the way RABEINU GERSHOM here understands the Mishnah in Shekalim. (M. KORNFELD)