1) THE REASON WHY A NOCHRI CANNOT MAKE A "TEMURAH"
QUESTION: The Gemara says that the source for the Beraisa's law that a Nochri cannot make a Temurah is the proximity of the Isur of Temurah (Vayikra 27:9) to the verse before it, "Speak to the Jewish people" (Vayikra 27:2), implying that the Isur of Temurah applies only to the Jewish people. The Gemara cites another view that says that the source is a Hekesh between Temurah of an animal and Ma'aser Behemah (Vayikra 27:32-33); just as a Nochri cannot separate Ma'aser Behemah, a Nochri cannot make a Temurah.
The Gemara earlier (2b) gives a simple reason for why a Nochri cannot make a Temurah. The Gemara asks that perhaps a Nochri cannot make a Temurah because he is not subject to the punishments prescribed by the Torah (and he will never be subject to them). The Gemara there concludes, based on the Beraisa, that a Nochri cannot make a Temurah, presumably for this reason (see Rashi there, DH Lo Mitpis and DH Basar Makdish Azlinan). Why does the Gemara here ignore that reason and suggest different reasons for why a Nochri cannot make a Temurah? (M. KORNFELD)
ANSWER: The Beraisa quotes Rebbi Yosi who argues and says that he is stringent with regard to all of the laws mentioned in the Beraisa. According to Rebbi Yosi, a Nochri is able to make a Temurah. Rebbi Yosi derives this from the word "la'Shem" (Vayikra 22:18), which implies that the Korban of a Nochri is as Kadosh as the Korban of a Jew, and is thus subject to the laws of Temurah.
If the reason why a Nochri cannot make a Temurah would be due to the fact that the Nochri is not subject to the Torah's punishments, and not to the fact that his Korban is less Kadosh, then Rebbi Yosi would have no source on which to base his opinion. It is therefore necessary for the Gemara to find a different source for the ruling of the Tana Kama (Rebbi Shimon) that a Nochri cannot make a Temurah, a source related to the Kedushah of the Nochri's Korban.
(When Rashi (2b, DH Lo Mitpis and DH Basar Makdish Azlinan) explains that a Nochri cannot make a Temurah because he is not a Bar Onshin, he apparently refers to the Gemara's original understanding, and not to the Gemara's conclusion.) (M. KORNFELD)
2) "ME'ILAH" APPLIES TO "KEDUSHAS DAMIM" OF A NOCHRI
QUESTIONS: The Gemara teaches that although Kodshim of Nochrim are excluded from the laws of Me'ilah, only Kodshim with Kedushas ha'Guf are excluded, but not Kodshim of Kedushas Damim (Kedushas Bedek ha'Bayis). The law of Me'ilah is derived through a Gezeirah Shavah from Terumah, and since Terumah has Kedushas ha'Guf, the exclusion of Kodshei Nochrim from Me'ilah also applies only to Kodshim with Kedushas ha'Guf.
There are two questions on this Gemara.
1. If Me'ilah does not apply to Kedushas ha'Guf, then it should be derived from that law through a Kal va'Chomer that Me'ilah does not apply to Kedushas Damim. If the Kedushas ha'Guf -- which is more severe than Kedushas ha'Guf -- of a Nochri is not subject to Me'ilah, then certainly the Kedushas Damim of a Nochri should not be subject to Me'ilah!
2. If a Nochri sets aside money and designates it for the purpose of purchasing a Korban, the money is Kadosh with only Kedushas Damim, and the laws of Me'ilah apply to it. However, when he then buys a Korban with that money, the Kedushah is transferred into Kedushas ha'Guf. How does the Isur of Me'ilah become removed? (SEFAS EMES)
ANSWER: The CHIDUSHIM U'VI'URIM explains that when the Torah teaches that Me'ilah does not apply to Kodshim of Nochrim, it is teaching that the Korban of a Nochri differs from the Korban of a Jew. Since the Korban is owned by a Nochri, it has a lower degree of Kedushah. Such a difference can exist only with the Kedushah of a Korban, because the Korban that the person is Makdish is considered to be "his" Korban; the Korban is related to the one who was Makdish it (such that it attains Kaparah for that person when it is offered).
In contrast, Kodshei Bedek ha'Bayis has no real connection to the one who was Makdish it. As soon as one is Makdish something with Kedushas Damim for Bedek ha'Bayis, the use which Hekdesh gets from it is unrelated to the original owner. Therefore, there is a logical basis to say that it is not exempt from the laws of Me'ilah, and the Kal va'Chomer from Kedushas ha'Guf does not apply.
This difference between Kedushas ha'Guf and Kedushas Damim also answers the second question. When one designates money for the purpose of purchasing a Korban, even though the money is Kadosh only with Kedushas Damim, its Kedushas Damim is for the sake of buying a Korban. Just as the Korban itself is connected to its owner, the money designated to buy the Korban is connected to its owner. Therefore, in the case of money designated to purchase a Korban, the Kal va'Chomer does apply. Since the money is considered connected to the owner, there is no logical basis to differentiate between the Kedushah of this money and the Kedushah of a Korban. Therefore, since the money is the money of a Nochri, Me'ilah does not apply, just as Me'ilah does not apply to the Korban of a Nochri. (Mordechai Zvi Dicker)
According to this understanding, does Me'ilah apply to a Korban that a Nochri was Makdish on behalf of a Jew? In such a case, the Korban is considered to be the Jew's Korban, and not the Nochri's, and perhaps Me'ilah should apply to it. Indeed, this is the conclusion of the ACHIEZER (YD 45:1; see also YOSEF DA'AS).
3) GIVING "MALKUS" FOR A "LAV SHE'EIN BO MA'ASEH"
QUESTION: Rav Yehudah in the name of Rav states that one receives Malkus only for a "Lav she'Yesh Bo Ma'aseh," a transgression committed with an action. The Gemara questions this view from the Mishnah (2a) that states that one receives Malkus for making a Temurah, even though the prohibition of Temurah is transgressed with no action (but only with speech). The Gemara answers that the Mishnah follows the view of Rebbi Yehudah who maintains that Malkus is given even for a "Lav she'Ein Bo Ma'aseh," a prohibition that is transgressed without performing an action.
Rebbi Yochanan later (3b) explains that Temurah indeed is considered a "Lav she'Yesh Bo Ma'aseh," a prohibition transgressed by performing an action, because the person's declaration of Temurah accomplishes a tangible effect -- it turns a Chulin animal into a Kodesh animal.
Why does the Gemara here not answer its question on the statement of Rav Yehudah in the name of Rav by quoting Rebbi Yochanan's teaching? The Gemara should answer that the reason why the Mishnah says that Malkus is given for the Isur of Temurah is because Temurah is a "Lav she'Yesh Bo Ma'aseh," since it causes a Chulin animal to become Kodesh!
ANSWER: The Gemara in Bava Metzia (90b) records a dispute between Reish Lakish and Rebbi Yochanan with regard to whether a person receives Malkus for transgressing the Isur of "Lo Sachsom" (Devarim 25:4) by yelling at it. Rebbi Yochanan rules that even though one transgresses the prohibition (against preventing his animal from eating from what it threshes) through speech alone with no action, he still receives Malkus. Reish Lakish rules that he does not receive Malkus since he performed no action. TOSFOS there (DH Rebbi) explains that Rebbi Yochanan does not consider speech to be an action unless the speech produces some actual consequence, in which case it is considered an action, just as Rebbi Yochanan says in the Gemara here with regard to Temurah. Accordingly, when a person yells at his ox and causes it to stop eating while it threshes, it is considered a "Lav she'Yesh Bo Ma'aseh" since the speech had an effect on the ox.
In the Gemara there (91a), Rebbi Yochanan attempts to prove from the Mishnah here that when speech has an effect it is considered an action. The Mishnah here says that one is punished with Malkus for making a Temurah; even though the Isur of Temurah involves only words, since his words had an effect they are considered to be an action. Reish Lakish argues that the Mishnah here follows the view of Rebbi Yehudah who rules that one receives Malkus for a "Lav she'Ein Bo Ma'aseh."
It is evident that the two explanations of the Mishnah here depend on the dispute between Reish Lakish and Rebbi Yochanan. Rav apparently agrees with Reish Lakish and maintains that an effect caused by speech is not equated with a real action. This is why he cannot explain the Mishnah like Rebbi Yochanan (3b), who explains it according to his own reasoning as expressed in Bava Metzia.
4) WHY "TEMURAH" IS PUNISHABLE WITH "MALKUS"
OPINIONS: Rebbi Yochanan says in the name of Rebbi Yosi ha'Glili that there are three exceptions to the general principle that "Lav she'Ein Bo Ma'aseh Ein Lokin Alav" -- one is not punished with Malkus for a transgression that is committed with no action. The three exceptions are the Isurim of swearing falsely, Temurah, and Mekalel (cursing a person with the Name of Hash-m). Even though these three transgressions are not committed with an action, they bear the punishment of Malkus.
Later (3b), Rebbi Yochanan states that Temurah should not be included in this list because Temurah is a "Lav she'Yesh Bo Ma'aseh" -- the words that one speaks when he makes a Temurah are considered to be an action. RASHI explains that this means that since his words are effective in making the Chulin animal become Kodesh, they are considered to be an action.
Is the Halachah in accordance with this qualifying statement of Rebbi Yochanan, or does the Halachah follow the statement that he said in the name of Rebbi Yosi ha'Glili?
(a) The RAMBAM (Hilchos Temurah 1:1) rules like Rebbi Yochanan's statement in the name of Rebbi Yosi ha'Glili. The KESEF MISHNEH asks: Why does the Rambam not rule like Rebbi Yochanan's qualifying statement, in which he said that Temurah is a "Lav she'Yesh Bo Ma'aseh"?
The SHA'AGAS ARYEH (#78) explains that the Rambam's ruling is based on another Halachah which he discusses in Hilchos Temurah (ibid.) with regard to an act of Temurah done with a Korban owned by partners or by the public. If one of the owners of the Korban makes a Temurah, he is punished with Malkus even though the Kedushah is not passed to the second animal and the second animal does not become Kodesh. This clearly shows that Malkus may be given for Temurah even though the Temurah did not accomplish anything and thus no action was done. It must be that Temurah is an exception to the rule of "Lav she'Ein Bo Ma'aseh Ein Lokin Alav."
The MINCHAS CHINUCH (#285), however, questions the Rambam's ruling here from his ruling elsewhere. In Hilchos Isurei Mizbe'ach (1:2), the Rambam states that when a person designates a Ba'al Mum (a blemished animal) as a Korban, he transgresses the Isur of "Lo Sakrivu" (Vayikra 22:20) and is punished with Malkus. Why does the Rambam say that he receives Malkus? This ruling is understandable according to the view of Rebbi Yochanan, since, according to his definition of an action, the Isur against designating a Ba'al Mum as a Korban does have an action -- it changes an animal from Chulin to Kodesh. However, the Rambam does not rule like Rebbi Yochanan; the Rambam rules that the reason why Temurah is punishable with Malkus is that it is an exception to the rule of "Lav she'Ein Bo Ma'aseh Ein Lokin Alav." Why does the Rambam write that the Isur against designating a Ba'al Mum as a Korban is punishable with Malkus? (Although it is clear from the Gemara in a number of places (see Temurah 6b) that one who is Makdish a Ba'al Mum is punished with Malkus, what is the reason for this according to the Rambam?)
(b) The KEHILOS YAKOV (#2) prefaces his answer by examining the nature of the Isur against making a Chulin animal become Kodesh through Temurah. Does the Torah prohibit giving Kedushah to the Chulin animal through making it Temurah, or does the Torah merely prohibit one from attempting to remove Kedushah from the first animal and transfer it onto another, with the result being that the Chulin animal becomes Kodesh? According to the second possibility, the animal does not acquire its Kedushah through the transgression of an Isur, but rather its Kedushah comes about as a side effect of the prohibition of Temurah.
The Kehilos Yakov suggests (tentatively) that perhaps the Rambam understands that the Isur of Temurah works according to the second possibility. Accordingly, the Rambam indeed rules like Rebbi Yochanan, but the Rambam maintains that Rebbi Yochanan's reasoning does not apply to Temurah. Since the Torah does not say that a transgression of Temurah is committed by the Chulin animal becoming Kodesh, it cannot be said that the prohibition that was done involved an action of changing an animal from Chulin to Kodesh. The fact that the animal becomes Kodesh is merely a side effect of transgressing the prohibition against attempting to exchange a Korban with another animal. In contrast, the prohibition against being Makdish a Ba'al Mum is, by definition, a prohibition against making this Chulin animal become Kodesh. This is why the person's declaration (when he is Makdish a Ba'al Mum) is considered an action and is punishable with Malkus. (Y. MONTROSE)
5) WHEN IS SPEECH CONSIDERED AN ACTION
QUESTION: Rebbi Yochanan explains that one who makes a Temurah is punished with Malkus, because the Isur of Temurah accomplishes a tangible effect -- it turns a Chulin animal into a Kodesh animal. Even though the Isur is transgressed with speech alone, it nevertheless is considered a "Lav she'Yesh Bo Ma'aseh" due to the effect that it has on the animal.
In Bava Metzia (90b), Rebbi Yochanan proves from the fact that Temurah is punishable with Malkus that one also receives Malkus for transgressing the Isur of "Lo Sachsom" (Devarim 25:4) by yelling at his animal in order to prevent it from eating from what it threshes, because "the moving of one's lips constitutes an action."
How can Rebbi Yochanan compare the Isur of "Lo Sachsom" to the Isur of Temurah? In the Gemara here, Rebbi Yochanan implies that the fact that one's lips move is not enough to make the words of Temurah be considered an action, but rather it is necessary that his speech have a tangible effect. How are the two statements of Rebbi Yochanan to be reconciled? (TOSFOS to Bava Metzia 90b, DH Rebbi Yochanan)
ANSWER: TOSFOS answers that lip-movement is not enough of an action to make the transgression committed through speech be considered to have been done with an action. In order for one's speech to be considered an action, the speech must achieve an immediate, tangible effect. What noticeable effect is achieved by muzzling an ox through yelling at it?
Tosfos there explains that the action accomplished by the speech is that the animal walks and threshes without eating.
Tosfos in Shevuos (21a, DH Chutz) explains that the action is that the animal refrains from eating.
Tosfos in Sanhedrin (65b, DH Ho'il v'Yeshno) explains that Malkus is administered only when the animal bends its head down to eat and at that moment the owner yells at it, causing it to lift its head and not eat.
Perhaps these three explanations of Tosfos disagree about how much of an action is needed in order for one's speech to be considered an action. Tosfos in Shevuos maintains that one's speech is considered an action as long as his speech causes some active consequence. The speech does not need to cause a positive action directly. By causing the animal to refrain from eating, the speech becomes more than just spoken words.
Tosfos in Bava Metzia maintains that it is not sufficient for the speech merely to cause some consequence. One's speech must cause a positive action in order to have the status of a real action. Therefore, Tosfos there says that it is necessary that his speech cause the animal to walk in order to be considered an action.
Tosfos in Sanhedrin maintains that one's speech is considered an action when it has a tangible effect only when the speech causes an active transgression of the Isur. When one transgresses the Isur of "Lo Sachsom" by yelling at an animal, he is punished with Malkus only if his yelling results in an immediate transgression, by causing the animal to life its head and refrain from eating. (M. KORNFELD)