THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
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1) THE DIFFERENCE BETWEEN THE OFFSPRING AND THE "TEMURAH" OF "PESULEI
QUESTION: The Gemara here discusses the Beraisa (15b) that says that when an
animal sanctified as a Korban develops a Mum, the laws of Temurah apply to
it both before and after it is redeemed. Thus, one who designates another
animal as a substitute for the Korban transgresses the Isur of Temurah, and
both animals are Kadosh.
2) PUNISHMENT FOR TRANSGRESSING A "HALACHAH L'MOSHE MI'SINAI"
Rav Nachman here rules that if the Temurah was made after Pidyon, then the
Temurah animal must be left to die. It cannot be offered as a Korban,
because its Kedushah comes from an animal of Pesulei ha'Mukdashin, which is
a "Kedushah Dechuyah." It also cannot be redeemed, because its Kedushah is
too weak to be able to be transferred by the Pidyon to the money.
What is the difference between the case of an animal that is made as a
Temurah for an animal of Pesulei ha'Mukdashin that was redeemed, in which
case the Temurah takes effect and the animal must be left to die, and the
case of offspring born to an animal of Pesulei ha'Mukdashin that was
redeemed (before the fetus was conceived), in which case the offspring are
not considered to be Kadosh at all (15b)? If the redeemed animal is not
considered to have Kedushah, then the Temurah should also not take effect!
ANSWER: TOSFOS answers that in the case of newborn calves, the only way that
the calves can become Kadosh is by receiving the Kedushah from the mother
animal at birth. However, since the mother was redeemed, she has no
Kedushah. Even though it is prohibited to shear or work with her, this
degree of Kedushah that the mother retains after her redemption is not
strong enough to transfer itself to the calves at birth.
In contrast, the act of Temurah transfers the exact status of the redeemed
animal to the new animal, regardless of how minimal its Kedushah might be.
QUESTION: The Gemara cites a Beraisa that teaches the source for the
Halachah that there are five types of Korban Chatas that cannot be offered
but must be left to die. This Halachah is derived from the verse,
"umi'Mafrisei ha'Parsah" -- "But this is what you may not eat... from those
that have cloven hooves..." (Vayikra 11:4). The words "from those that have
cloven hooves" imply that there are animals that possess all of the signs of
a Kosher animal but nevertheless are forbidden. This includes the five
Chata'os that must be left to die.
The Gemara says that even though the law of the five Chata'os are a
"Hilchesa," a Halachah l'Moshe mi'Sinai, it is still necessary to have a
source for the law in the verse. If not for the verse, we might have thought
that the Halachah l'Moshe mi'Sinai teaches only that one who eats any of the
five Chata'os transgresses an Isur, but not a Lo Sa'aseh. The verse teaches
that he transgresses a Lo Sa'aseh as well. On the other hand, if not for the
Halachah l'Moshe mi'Sinai, we would have understood from the verse that the
five Chata'os do not need to be left to die, but may be put out into the
pasture to graze. The Halachah l'Moshe mi'Sinai teaches that they must be
left to die.
Why would we have thought that without a verse, the Halachah l'Moshe
mi'Sinai teaches that one who eats any of the five Chata'os transgresses,
but not that he violates a Lo Sa'aseh? What makes eating the Chata'os
forbidden if not for a Lo Sa'aseh?
ANSWER: The SHEMEN ROKE'ACH cites the RAN in Shabbos (31b of the pages of
the Rif, DH veha'Motzi) who explains that the reason why the Mishnah in
Shabbos (73a) includes the Melachah of taking an object out of one domain
into another ("Motzi") as one of the 39 Melachos is because Motzi is the Av
Melachah, the primary Melachah of carrying on Shabbos from which the other
Melachos of carrying derive. Even though the Gemara in Shabbos (96b) says
that the Melachah of carrying an object four Amos in Reshus ha'Rabim
("Ma'avir") is a "Hilchesa," a Halachah l'Moshe mi'Sinai, nevertheless it is
only a Toldah of the primary Melachah of Motzi. Had the only source for the
Melachah of Ma'avir been the Halachah l'Moshe mi'Sinai, one who transgressed
would not have received any punishment in Beis Din. However, since Ma'avir
is included in the Melachah of Motzi, one who is Ma'avir on Shabbos is
punished because he has performed the Melachah of Motzi, which is written in
The same applies to the Halachah l'Moshe mi'Sinai of the five Chata'os
Mesos. Had this Halachah only been a Halachah l'Moshe mi'Sinai with no
source in the verse, one who ate them would not have received a punishment,
even though he committed a transgression. It is only because of the verse
that a punishment is also administered.
The Ran gives a similar approach in Sanhedrin (81b; see Insights there). The
Mishnah there says that a Halachah l'Moshe mi'Sinai teaches unusual forms of
punishment for various types of transgressions. For example, if a person
repeatedly commits sins which are punishable with lashes, he may eventually
be punished by being placed in a Kipah, a small confining structure, in
which he is fed barley until his stomach ruptures. A similar punishment is
given to a person who killed intentionally but there is no proper testimony
of witnesses. A person caught stealing a vessel used in the Beis ha'Mikdash
is liable to "Kana'im Pog'in Bo" -- if a zealous, righteous person catches
him then he may kill him. The Ran there (in Chidushim to 81b, DH v'Li
Nir'eh) explains that while many Halachos were transmitted to Moshe at Har
Sinai that were not mentioned in the verses of the Torah, there is no
Halachah of capital punishment that is not written in the Torah. In order
for Beis Din to administer the death penalty, it must be written in the
The Ran is consistent with his view that while a Halachah l'Moshe mi'Sinai
teaches that an object is forbidden, nevertheless Beis Din cannot administer
punishment for it unless the punishment is stated explicitly in the Torah.
3) SPLITTING THE OFFSPRING IN THE PLACE OF THE PARENTS
QUESTION: The Mishnah discusses the case of a limited partnership in which a
Nochri entrusts his animals to the care of a Jew for a certain period of
time, and all of the offspring produced by the animals are divided between
them. In the case of the Mishnah, the Jew must return the established value
of the animals at the end of the stipulated time period. The Mishnah teaches
that the Nochri is considered to be a partner in the parent animals and in
the first generation of offspring. Consequently, all of the firstborn
animals of those two generations are exempt from the laws of Bechor. The
Mishnah adds that if the Jew and Nochri agree to "place the first generation
of offspring in the place of their mothers," the Nochri's joint ownership
extends to one more generation.
Why does the Mishnah refer to the extension of the Nochri's joint ownership
as applying to "the offspring of the offspring," and find it necessary to
teach that it is exempt from Bechorah? The Jew and Nochri are merely making
a separate agreement with regard to the third generation, and thus the
Nochri's ownership is nothing more than the ownership of the *first*
generation in a new agreement! It is obvious that the Nochri's ownership
applies to that generation and the next generation!
(a) RASHI (DH He'emid) explains that they did not make a formal,
unconditional partnership in the second generation of animals. Rather, they
merely agreed that *if* the first generation of offspring dies, then the
Nochri will have partial ownership of the next generation of offspring.
(b) TOSFOS (DH Ta'ama), based on a Tosefta, explains that the Mishnah is
discussing a case in which the first generation of offspring indeed died,
and the Jew made a new agreement with the Nochri. However, the new agreement
was only verbal, and no formal Kinyan was made to finalize it. The Mishnah
teaches that even though no formal Kinyan was made, the Nochri's ownership
still extends to the following generation.