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Chulin, 131

1) A KOHEN WHO SEIZES "MATNOS KEHUNAH"

QUESTION: Rav Chisda (130b) rules that one who damages or eats Matnos Kehunah is exempt from compensation. The Gemara gives two reasons for Rav Chisda's ruling. First, the verse (Devarim 18:3) teaches that only the actual Matnos Kehunah must be given to a Kohen, but not compensation for them. Second, since there is no claimant (since no specific Kohen can claim the damages), one is exempt from paying. Since the owner may give the gifts to any Kohen he chooses, no individual Kohen can claim exclusive rights to the gifts. Hence, they are "Mamon she'Ein Lo Tov'im" -- a debt that has no legal claimants.

The Gemara attempts to refute Rav Chisda's ruling from several sources. One of the sources (cited at the end of 130b) is a Tosefta that implies that a Yisrael who eats Terumah is obligated to pay the Kohen its value, contrary to Rav Chisda's ruling. The Gemara answers that the obligation to pay applies only when the Tevel produce "came into the hands" of a Kohen before Terumah was separated from it. When the produce came into his possession, the Kohen became the legal claimant of the Terumah (when it would be separated) and thus if the owner eats it, he is obligated to pay the Kohen.

RASHI (DH k'Mi) gives two possible ways that the Kohen acquires exclusive rights to the Terumah when the produce "comes into his hands." The first way is that the owner gives the Tevel to the Kohen to hold, and the Kohen takes possession of the ownerless Terumah on his own accord. The second way is that the owner gives the Tevel to the Kohen with specific intent that the Kohen should acquire the Terumah that will be separated from it.

It seems that Rashi gives two explanations, because Rashi is in doubt whether a Kohen can take Terumah for himself without the consent of the owner of the produce. What is the basis for Rashi's doubt? Why should a Kohen need the owner's consent to take the Terumah for himself?

ANSWERS:

(a) The PRI CHADASH explains that Rashi's doubt is based on another question. The Gemara in a number of places (Pesachim 46b, Nedarim 84b, Kidushin 58a) asks whether "Tovas Hana'ah" is considered "Mamon" or not. That is, is the right of the owner to choose to which Kohen he will give the Terumah considered to have any monetary value or not (see Insights to Kidushin 58:1)? Rashi's second explanation maintains that Tovas Hana'ah is considered Mamon, and therefore the Kohen cannot acquire the Terumah without the consent of the owner. The first explanation maintains that Tovas Hana'ah has no value and thus the Kohen can acquire the Terumah without the owner's consent.

A similar explanation for Rashi's doubt may be suggested based on the words of the Pri Chadash. TOSFOS in Bava Metzia (6b, DH v'Ha) suggests that even if Tovas Hana'ah *is* Mamon, a Kohen who seizes Matnos Kehunah is required to repay the owner only for the value of the Tovas Hana'ah; he may keep the value of the Matanos themselves. Rashi here might be in doubt whether Tosfos' suggestion is true. (Tosfos also appears to be in doubt whether his reasoning is valid. Here, Tosfos (DH Yesh) clearly rejects this reasoning. Rashi elsewhere (Bava Kama 66a, DH she'Tzav'o], however, accepts this reasoning.)

(b) THE MAHARATZ CHAYOS suggests another understanding for Rashi's doubt. Rashi's doubt is based on how much Terumah one is obligated to give to a Kohen. If one is obligated to give only the smallest amount (and giving more is merely voluntary; see Chulin 137b), then the Kohen has no right to take any amount of Terumah on his own accord, because perhaps the owner would have given less to fulfill his obligation, and thus the consent of the owner is necessary. On the other hand, if there is a minimum Shi'ur for Terumah, then the Kohen may keep that amount without the owner's permission.

QUESTION: Rav Chisda (130b) rules that one who damages or eats Matnos Kehunah is exempt from compensation. The Gemara states, however, that one who used Matnos Kehunah that were in his granary to pay a debt to the king *is* obligated to reimburse the Kohanim, because "Ka Mishtarshi Lei" - they caused him to benefit.

Why does the logic of "Ka Mishtarshi Lei" not create an obligation to compensate the Kohanim whenever one eats or uses Matnos Kehunah for his own personal purposes?

ANSWERS:

(a) TOSFOS (DH Shani) answers that when a person pays his debts with Matnos Kehunah, he retains other money in his possession as a direct result of paying the debt with the Matnos Kehunah. In that way, he is considered to have benefited from the Matnos Kehunah. In contrast, when a person eats Matnos Kehunah, he does not necessarily retain more money due to the Matnos Kehunah that he ate; he might not have used his own money (or food) had he not eaten the Matnos Kehunah, for he could have gone without eating that day. (See an extensive discourse on this subject by HAGA'ON RAV YISRAEL ZEV GUSTMAN zt'l in Kuntresei Shi'urim, Bava Kama 12:18.)

(b) The RITVA answers then when a person eats Matnos Kehunah, the food is entirely consumed, and therefore he is not obligated to pay for it. When he pays his debts with Matnos Kehunah, the Matanos remain in existence in anoth er person's hands. In such a case, the Rabanan decreed that the owner must repay the Kohanim because he is benefiting from the Matnos Kehunah.

The Ritva's intention in differentiating between Matnos Kehunah that are entirely consumed and Matnos Kehunah that are still in existence is not clear. In both cases, the person benefited from the Matnos Kehunah. Why does he not have to pay for it when it was entirely consumed?

Perhaps the Ritva means that the Rabanan did not require him to pay for the Matnos Kehunah when it is no longer apparent that he benefited from it. Even though he benefited from it at the time that he ate it, since no one can see him benefiting from it now, the Rabanan did not require him to pay for it. When, however, the Matnos Kehunah are still in existence (in the hands of the king's agents), it is evident to all that he is deriving benefit from the Matnos Kehunah, and therefore the Rabanan required him to pay for it.

(c) RASHI (DH Shani) explains that when the Gemara says that when one pays his debts with Matnos Kehunah "he is obligated to separate Ma'aser," it does not mean that he is obligated to compensate the Kohanim for the value of the Matnos Kehunah. Rather, it is referring to a case in which one benefited from produce of Tevel -- the king too untithed produce. He is obligated to separate the Matnos Kehunah for the Tevel produce that was taken by designating other produce in his possession as Terumah and Ma'aser. The logic of "Ka Mishtarshi Lei" never obligates a person to repay the Kohanim for the actual Matnos Kehunah that were taken, eaten, or destroyed.

However, when the person derives no benefit from the fact that the Tevel was taken, he is not obligated to separate Terumah and Ma'aser on behalf of that produce.

Rashi's words imply that only when a person benefits from his produce is he required to separate Terumah and Ma'aser. When he derives no benefit from his produce, such as when the king forcibly takes it from him for no reason, he has no obligation to separate Terumah for that produce. This supports the view of REBBI AKIVA EIGER (YD 1:17) who maintains that a person is obligated to separate Terumah from his produce only when he intends to benefit from the produce. If a person plans on letting the produce of his fields spoil, then he has no obligation to separate Terumah from that produce.

This is in contrast to the view of the TAZ (YD 1:17), who asserts that whether or not a person intends to derive benefit from the produce of his fields, he is obligated to separate Terumah from the produce. The Mitzvah of separating Terumah is not comparable to the Mitzvah of Shechitah, which applies only when one desires to eat meat. How, though, does the Taz understand the words of Rashi?

Perhaps the Taz understands that one is obligated to separate Terumah only when he can do so from the produce itself. When the Tevel is no longer in the owner's possession (as in the case of "Anparus"), he is not required to separate Terumah from other produce in order to exempt the produce that was taken from him by force. (M. Kornfeld)

QUESTION: The Gemara cites the Mishnah in Bikurim (3:12) that states that Matnos Kehunah are a Kohen's personal property and "he may use them to purchase slaves, land, animals... and a Sefer Torah." Why does the Mishnah need to specify that a Kohen may use Matnos Kehunah to purchase a Sefer Torah? Why should a Sefer Torah be different from any other item that the Kohen wishes to purchase?

ANSWER:

(a) The RASH in Bikurim (3:11) explains that all other items that one may buy with Matnos Kehunah are able to be exchanged for food. However, a Sefer Torah may not be used to buy food, and, therefore, we might have thought that it cannot be bought with Matnos Kehunah. That is why the Mishnah must teach explicitly that one may buy a Sefer Torah with Matnos Kehunah.

(b) The Rash suggests a second answer. The Mishnah is not teaching that one may buy a Sefer Torah with Matnos Kehunah, because buying a Sefer Torah is no different from buying any other object with Matnos Kehunah. Rather, the Mishnah is teaching that just as a Kohen may use Matnos Kehunah to pay back a creditor or to pay for a woman's Kesuvah, one may also use a Sefer Torah to pay back a creditor or to pay a woman's Kesuvah. According to this explanation, the text of the Mishnah reads, "k'Sefer Torah" -- "*like* a Sefer Torah," instead of "v'Sefer Torah."

(c) The MAHARI BEN MALKI-TZEDEK explains that the Mishnah is teaching that when a Kohen uses fruits of Bikurim to make a purchase, the Bikurim retain their Kedushah just as a Sefer Torah retains its Kedushah. (His text of the Mishnah also reads, "k'Sefer Torah.")

(d) The RAMBAN, RASHBA, and RITVA here answer that the Mishnah in Bikurim is teaching that a person may use Matnos Kehunah to purchase a Sefer Torah even though he does not acquire actual monetary ownership of the Sefer Torah through the purchase. This is because the value of a Sefer Torah is independent of its physical composition. Its value is not determined by the length or weight of its parchment or by the amount of ink used, but rather it is determined by the information that it contains (its "Tzurah," and not its "Chomer"). Since, when one buys it one does not pay for its physical worth, it cannot be purchased with a normal Kinyan Kesef (similar to the law that a Shtar cannot be purchased with a Kinyan Kesef, but must be purchased with Mesirah (M. Kornfeld); see Bava Basra 75a).

OPINIONS: The Gemara relates that a certain Levi seized the Matanos of Zero'a, Lechayayim, and Keivah from children who were bringing them to the Kohanim. When Rav was informed of this Levi's conduct, he said, "Is it not enough for him that he is exempt from giving these Matanos when he slaughters an animal, such that he also must seize them for himself!"

The Gemara asks that if Rav holds that a Levi is included in the word "ha'Am" in the verse that obligates us to give the Zero'a, Lechayayim, and Keivah to the Kohanim (Devarim 18:3), then the Levi should be obligated to give these Matnos Kehunah to the Kohen. If, on the other hand, Rav holds that a Levi is not included in the word "ha'Am," then why does Rav let him keep the Matanos that he seized?

The Gemara explains that Rav was uncertain whether a Levi is considered to be "ha'Am" and is obligated to give the Zero'a, Lechayayim, and Keivah to the Kohen. Since there is a doubt, the rule of "ha'Motzi me'Chaveiro Alav ha'Re'ayah" applies, and we cannot take the Matanos away from him.

If he is not considered "ha'Am," though, why does that allow him to seize the Matanos for himself? He is not a Kohen who is entitled to take the Matanos!

(a) The BACH (YD 61:17, DH u'Mah she'Kasav Aval) writes that when a Levi seizes the Zero'a, Lechayayim, and Keivah, he does not need to return them to a Kohen, because perhaps he is not considered "ha'Am" and has no obligation to give them to a Kohen. This implies that if he is not considered "ha'Am," a Levi may even take these Matanos. Whenever there is no obligation to give the Matanos, one may keep them for himself. The MAHARSHA in Shabbos (56a, DH v'Rebbi Akiva) appears to take a similar approach.

(b) However, the SHACH (YD 61:12), PRI MEGADIM, and MISHNEH L'MELECH (Hilchos Bikurim 9:5) strongly object to this approach. Even though a Levi is not included in "ha'Am," he also is not a Kohen. The verse explicitly says, "v'Zeh Yiheyeh Mishpat *ha'Kohanim*" (Devarim 18:3), with regard to the Zero'a, Lechayayim, and Keivah.

To answer this question on the Bach, we may suggest that the Bach does not mean that one who gives the Zero'a, Lechayayim, and Keivah to a Levi has fulfilled the obligation of giving the Matanos to a Kohen. Rather, he means that a Levi is exempt from giving his own Zero'a, Lechayayim, and Keivah to a Kohen. When he seizes them, or receives them from a Yisrael, he becomes the new owner of them (since they are "Mamon she'Ein Lo Tov'im" and cannot be claimed by a Kohen). As their new owner, he is exempt from passing them along to a Kohen and may keep them for himself. Consequently, the original owner has not fulfilled his obligation of giving the Zero'a, Lechayayim, and Keivah to a Kohen, and yet the Levi may keep them! (M. Kornfeld)

131b

QUESTION: The Gemara quotes a Beraisa that clearly implies that a Levi is obligated to give Zero'a, Lechayayim, and Keivah to a Kohen. The Beraisa, while discussing the various forms of Matnos Aniyim and Matnos Kehunah, says, "And the other Matnos Kehunah, like Zero'a, Lechayayim, and Keivah... are not taken from a Kohen to give to a Kohen, and they are not taken from a Levi to give to a Levi," implying that they *are* taken from a Levi to give to a Kohen. The Gemara attempts to prove from here that a Levi is included in the category of "ha'Am" (Devarim 18:3) and is obligated to give Zero'a, Lechayayim, and Keivah to a Kohen.

The Gemara refutes this proof by asserting that the Beraisa is referring to *other* Matnos Kehunah that are *like* Zero'a, Lechayayim, and Keivah, which are usually given to a Kohen. A Levi must give those other Matnos Kehunah to a Kohen, but he does not have to give the Zero'a, Lechayayim, and Keivah.

The Gemara's answer is difficult to understand. If the Beraisa is referring to other Matnos Kehunah and not to the Zero'a, Lechayayim, and Keivah, then why does it not mention those other Matanos explicitly? Moreover, what indication is there in the Beraisa that it does not mean literally that the Levi must give the Zero'a, Lechayayim, and Keivah?

ANSWER: TOSFOS (DH Kegon) explains that the Gemara understands that the Beraisa is not to be understood literally from the fact that it mentions Matanos "like" Zero'a, Lechayayim, and Keivah, and it does not say merely, "*the* Zero'a, Lechayayim, and Keivah."

Tosfos adds that had the Beraisa explicitly mentioned the other Matanos, we might have understood that the Zero'a, Lechayayim, and Keivah must be collected from Leviyim as well, and the other Matanos are mentioned only as examples of Matnos Kehunah. Since the Beraisa says, "*like* Zero'a, Lechayayim, and Keivah," we may infer that it is *only* the other Matanos that must be collected from Leviyim.

OPINIONS: The Gemara relates that Ula used to give Matnos Kehunah to a Kohenes. As RASHI (DH l'Kohenes) explains, Ula understood that when the verse says that one should give Matnos Kehunah "to a Kohen" (Vayikra 22:14), it means to any Kohen, even a woman.

The Gemara until now has been discussing the specific Matanos of Zero'a, Lechayayim, and Keivah. The Gemara here, though, does not say that Ula would give the Zero'a, Lechayayim, and Keivah to a Kohenes, but rather that he would give the "Matnos Kehunah" to a Kohenes. Does the Gemara use this term as a generic term to refer to Zero'a, Lechayayim, and Keivah, or does it mean that Ula would give all of his Matnos Kehunah to a Kohenes? Would Ula also permit redeeming a firstborn son from a Kohenes?

(a) REBBI AKIVA EIGER (YD 61:8) understands that Ula was referring to all Matnos Kehunah. He suggests that it would be permitted to perform Pidyon ha'Ben by redeeming a firstborn son from a Kohenes. As mentioned above, the basis for Ula's view is that whenever the Torah says that the Matnos Kehunah are to be given "to a Kohen," it refers to a Kohenes as well (unless otherwise specified). Although we find that Rebbi Eliezer ben Yakov argues and says that when the verse says "Kohen" it generally *excludes* a Kohenes unless specified (he agrees with Ula with regard to Zero'a, Lechayayim, and Keivah), the Gemara explicitly says later (132a) that the Halachah follows the view of Ula. This means that we apply his reasoning, and a Kohenes should be allowed to accept Matnos Kehunah whenever there is no specific verse forbidding her from doing so.

Rebbi Akiva Eiger cites another proof for this from the words of TOSFOS in Kidushin (8a, DH Rav Kahana), who says that although Rav Kahana was not a Kohen, he took money for a Pidyon ha'Ben on behalf of his wife who was a Kohenes.

(b) The PNEI YEHOSHUA in Kidushin, however, has difficulty with the words of Tosfos. He asks that the only Matanah a Kohenes is allowed to take is Zero'a, Lechayayim, and Keivah. How, then, can Tosfos say that he took money for Pidyon ha'Ben on behalf of his wife?

Rebbi Akiva Eiger discusses the view of the Pnei Yehoshua at length. He points out that the Pnei Yehoshua's opinion regarding Pidyon ha'Ben definitely seems to be the opinion of many Rishonim. The RASHBA (Teshuvos #837), RAMBAM (Hilchos Bikurim 1:10), and others maintains that when the verse regarding Pidyon ha'Ben says, "v'Nasata ha'Kesef l'Aharon u'Vanav" -- "You will give the money to Aharon and his sons" (Bamidbar 3:48), it is teaching the money may be given only to a male Kohen. This is similar to the Derashah regarding the Minchah offering of a Kohenes which may be eaten, as opposed to that of a Kohen which must be burned, because the verse says that only the Minchah of "Aharon u'Vanav" is burned.

The ARUCH HA'SHULCHAN (YD 61:33) rules, like the Pnei Yehoshua, that one does not fulfill his obligation of giving other Matnos Kehunah to a Kohenes, besides the Zero'a, Lechayayim, and Keivah. It is important to note that Rebbi Akiva Eiger himself concludes by saying that he needs to analyze the issue further to determine whether or not this is the Halachah. (Y. Montrose)