1) SEIZING A "MASHKON"
QUESTION: Rava states (4b) that when a person does something which the Torah prohibits, his act is ineffective ("Iy Avid Lo Mehani"). Why, then, is the person punished, if his act does not produce any effect? Rava explains that he is punished because he acted contrary to the Torah.
The Gemara questions Rava's opinion from the laws of Mashkon. The verse says, "When you lend to your fellow man any type of loan, do not come into his house to take something as security" (Devarim 24:10). This verse prohibits the lender from entering the borrower's house and forcibly seizing an object as collateral (Mashkon) for the loan. The Mishnah in Bava Metzia (113a) teaches that if a lender forcibly took a pillow from the borrower as a collateral for the loan, the lender must return the pillow at night (so that the borrower can sleep on it); if the lender took a Machareishah (the Gemara there (113b) concludes that this refers to a backscratching instrument), he must return it during the day. The fact that the lender must adhere to the normal laws of returning a Mashkon (which apply when he receives a Mashkon legally, with the consent of the borrower or from the agent of Beis Din) implies that the lender's act of forcibly taking a Mashkon is considered valid and effective. According to Rava, who says that an action that involves a sin is not effective, why should the lender's act of taking the Mashkon be binding, such that he becomes subject to the normal laws of returning a Mashkon? This is the Gemara's question.
Why, though, does the Gemara here assume that the Mishnah in Bava Metzia is discussing a case of a Mashkon taken by force? The Mishnah there makes no mention of does not mention anything about seizing the Mashkon by force. Perhaps the Mishnah there is teaching simply that a normal Mashkon, given willingly to the lender by the borrower, or a Mashkon taken by an agent of Beis Din on behalf of the lender, must be returned when the borrower needs to use it!
(a) RASHI and TOSFOS (DH Machzir) answer that it is obvious from the context of the Mishnah in Bava Metzia that the Mishnah is discussing a case of a Mashkon seized forcibly. As Tosfos explains, the first part of the Mishnah in Bava Metzia states that when one wants to take an object of collateral from his debtor for a loan that has passed its due date, he may do so only in Beis Din. He may not enter the debtor's house to take the Mashkon by force, as the Torah says, "You shall stand outside, and the man to whom you have lent will bring to you the collateral outside" (Devarim 24:11). When the Mishnah then says that the lender must return the borrower's pillow at night, it is likely referring to the case that it discussed previously, that of taking a Mashkon by force.
The TZON KODASHIM questions Tosfos' assertion. Immediately before the statement about the pillow, the Mishnah states that if the borrower has two objects, then the lender "should take one and he should leave one." Since it is forbidden to forcibly take a Mashkon, as implied by the first half of the Mishnah, the Mishnah here must be referring to one who receives a Mashkon legally, and not by force. Although the first part of the Mishnah discusses forceful possession of a Mashkon, the second part of the Mishnah presumably is instructing the Shali'ach Beis Din what to take, and it is not instructing the lender himself what to take (since he is not allowed to take a Mashkon by force). The HAGAHOS HA'GRA also seems to be bothered by this question.
The OLAS SHLOMO answers this question by saying that the text of Tosfos should read like that of Rashi in Bava Metzia. According to Rashi's text, the Mishnah in Bava Metzia says that the lender "should take one and should return one." This implies that the person actually took two items at first (unlawfully), and now he is returning one of them. A Shali'ach Beis Din would not have done such a thing, since he knows that he is not permitted to take an item needed at night along with an item needed during the day. It must be that the Mishnah is referring to the lender himself who took the Mashkon by force, against the law of the Torah.
(b) Tosfos in Bava Metzia (113a, DH Machzir) answers that the Gemara here in Temurah is asking its question on Rava based on "events that happen all the time" ("Ma'asim b'Chol Yom"). It often happens that creditors seize a Mashkon by force even though they are not supposed to, and nevertheless they give back what they have taken when it is necessary, either at night or during the day. The Mishnah is discussing such acts of forceful seizure of collateral as well.
(c) Alternatively, Tosfos in Bava Metzia explains that the Mishnah indeed is not referring to a Mashkon taken by force. The Gemara here is not asking from that Mishnah, but rather it is asking from a Beraisa cited later in Bava Metzia (114b), which states (according to Rav Sheshes there) that one is not allowed to seize a Mashkon after a loan has been transacted, but if he did, he must return it (this means that he must return it when the borrower needs it). From the Beraisa one may infer that the Mishnah, too, is referring to a sinner who takes a Mashkon forcibly. This explanation is also given by the CHIDUSHEI HA'RAN (Bava Metzia 113a) and the HAGAHOS HA'GRA here in Temurah. (Y. MONTROSE)
2) THE DISPUTE BETWEEN ABAYE AND RAVA
QUESTIONS: Abaye and Rava (4b) disagree about whether an act performed in violation of a Torah prohibition is binding and effective. Abaye maintains that the act is effective, and Rava maintains that the act is not effective. The Gemara cites various proofs for and against each opinion, and in each case it concludes that the proof is not valid because that particular law is an exception. In the end of the Sugya, Rav Acha brei d'Rava asks that if all of the cases are exceptions, then where does the argument between Abaye and Rava apply?
TOSFOS (DH v'Hashta) asks two questions on Rav Acha brei d'Rava's question.
(a) Why does the Gemara not explain that the argument between Abaye and Rava applies in a case in which a man swore that he would not divorce his wife, and then he divorced her? According to Abaye, the divorce is valid even though the act of divorce transgressed the Torah's prohibition against violating one's oath, while according to Rava, the divorce is not valid since the act involved a transgression!
(b) The Gemara earlier (5b) quotes verses which teach that if one attempts to redeem his Bechor, Ma'aser, or Charamim with money, the redemption is not valid. Why does the Gemara not give this case as the case in which the argument between Abaye and Rava applies? Since one's attempt to redeem the sanctified animal does not take effect (as derived from the verses), according to Abaye the owner should not receive Malkus since accomplished nothing with his act. According to Rava, he should receive Malkus merely for acting against the will of Hash-m.
(a) TOSFOS answers that since divorcing his wife was prohibited not because of an independent prohibition in the Torah but because the man himself created a prohibition through his oath, the prohibition is not powerful enough to prevent the act from taking effect. Even Rava agrees that in this case, the divorce is valid.
(b) The SHITAH MEKUBETZES (#36) answers the second question of Tosfos by saying that the Gemara seeks a case in which Abaye and Rava argue about the act itself (that is, a case in which Abaye maintains that the act is binding and effective even though it constituted a transgression of a Torah prohibition, while Rava maintains that the act is not binding since it constituted a transgression). In the case of the redemption of Bechor, Ma'aser, or Charamim, everyone agrees that the act is ineffective; the only difference is whether the person receives Malkus. The Gemara is not seeking a case in which there would be a difference of opinion between Abaye and Rava merely with regard to Malkus.
2) WHEN A "SA'IR HA'MISHTALE'ACH" CAN BECOME "SHECHUTEI CHUTZ"
QUESTION: The Beraisa says that in order to be guilty of transgressing the prohibition of Shechutei Chutz (slaughtering a Korban outside of the Beis ha'Mikdash), the animal that one slaughters must be one that is fit to be brought as a Korban into the Beis ha'Mikdash, and not a Ba'al Mum. The Gemara states that this condition apparently would not exempt one who slaughters the Parah Adumah and the Sa'ir ha'Mishtale'ach outside of the Beis ha'Mikdash, because those animals are permitted to be brought into the Beis ha'Mikdash as Korbanos, since they have no Mum. The Beraisa concludes that the verse of "to Hash-m" (Vayikra 22:22) teaches that only the act of slaughtering a Korban that is offered "to Hash-m" in the Beis ha'Mikdash transgresses the prohibition of Shechutei Chutz, but not slaughtering a Korban that is offered outside of the Beis ha'Mikdash.
The Gemara implies that one cannot transgress the Isur of Shechutei Chutz by slaughtering a Sa'ir ha'Mishtale'ach outside of the Beis ha'Mikdash.
TOSFOS (DH v'Lo Otzi), however, cites two contradictory sources with regard to the Shechitah of a Sa'ir ha'Mishtale'ach outside of the Beis ha'Mikdash. The Gemara in Yoma (62b) quotes a Beraisa which explicitly states that a person who does an act of Shechutei Chutz with one of the two goats before the Goral is performed transgresses the Isur of Shechutei Chutz. The Gemara in Zevachim (113b) seems to say the opposite: before the Goral, one cannot transgress the Isur of Shechutei Chutz with one of the goats, because the verse says "to Hash-m." How are these two contradictory Gemaras to be reconciled?
(a) TOSFOS answers that the Gemara in Zevachim concludes that one might have thought that before the Viduy is recited on the Sa'ir, it is subject to the Isur of Shechutei Chutz, since the Sa'ir must remain in the Beis ha'Mikdash until the Kohen Gadol recites Viduy over it. This is why a special verse is needed to teach that it is not subject to Shechutei Chutz, even before the Viduy. It certainly is not subject to Shechutei Chutz after the Viduy, because it no longer belongs in the Beis ha'Mikdash at that point. The Gemara in Zevachim agrees with the Beraisa in Yoma that says that before the two goats are designated for their respective purposes ("la'Shem" and "la'Azazel") through the Goral, slaughtering either one outside of the Beis ha'Mikdash constitutes a transgression of Shechutei Chutz, since both are fit to be brought to the Beis ha'Mikdash.
(b) The TOSFOS YESHANIM in Yoma (63a, DH Ad she'Lo) answers that the Gemaras are not arguing, even before the Gemara in Zevachim concludes that the goat is not subject to Shechutei Chutz before Viduy. The Gemara in Yoma maintains that before the Goral, both animals are subject to the Isur of Shechutei Chutz. The Gemara in Zevachim is teaching a different Halachah. When it says that the verse of "la'Shem" excludes the animal before the Goral from Shechutei Chutz, it means that it is excluded before the results of the Goral are revealed. That is, the lots have been selected but have not yet been revealed. Since the role of each animal has not yet been revealed, one might have thought that both animals are subject to Shechutei Chutz. The Gemara in Zevachim derives from the verse of "la'Shem" that once the Goral has taken place, the animals are no longer subject to the Isur of Shechutei Chutz. (Y. MONTROSE)