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Menachos, 83

1) THE "KEDUSHAH" OF THE UNBORN CALF OF A "KORBAN ASHAM"

OPINIONS: The Gemara discusses the Halachos that we learn from each word of the verse, "This is the law regarding the Olah, the Minchah, the Chatas, the Asham, the offerings on the days of the Milu'im, and the offering of the Shelamim" (Vayikra 7:37). The Gemara says that from the word "Asham" in the verse we learn that just as the unborn calf (see BARTENURA to Nidah 3:1) and the placenta of an Asham have no Kedushah (since an Asham cannot have offspring or a placenta, since it is always a male animal), so, too, the unborn calf and placenta of other types of Korbanos have no Kedushah. The Gemara explains that this opinion holds that the offspring of a Korban is Kodesh only when it comes into existence -- that is, when it is born. Moreover, this opinion maintains that we may learn a case that is possible (the status of offspring of a female Korban) from a case that is not possible (an Asham, which is male and therefore has no offspring).

The Gemara's conclusion is not clear. Does the unborn calf of a Korban have no Kedushah at all?

(a) RASHI (Kesav Yad, and DH Mah Asham) explains that the unborn calf of a Korban has no Kedushah whatsoever when it is in the animal's womb. This is also the opinion of RABEINU GERSHOM.

(b) RASHI in Zevachim (98a, DH Mah Asham) explains that the Gemara is excluding the Eimurin of the unborn animal from being brought to the Mizbe'ach. Rashi's words imply that there is some element of Kedushah to the flesh of the unborn calf.

TOSFOS in Zevachim (98a, DH Af Kol) questions Rashi's view from the Gemara in Temurah (11a). The Gemara says that if one slaughters a Chatas and finds a four-month-old fetal calf inside of it, the unborn calf may be eaten by anyone, in any place, and without any time limit. The Gemara explicitly states that the opinion that maintains that the offspring of a Korban is Kadosh only when it comes into existence (at birth) agrees with this Halachah. If the unborn animal had some Kedushah of a Chatas before it was born, then it should not be permitted to eat it like an ordinary piece of meat.

The TZON KODSHIM in Zevachim explains Rashi's view by pointing out that there are two different cases of a pregnant Korban. The Gemara in Temurah (25b) says that when the animal was pregnant before it was designated as a Korban, the unborn animal inside of it also has the Kedushah of the Korban. When the Gemara records a Machlokes regarding a pregnant Korban, it is discussing a case in which the animal was designated as a Korban and afterwards it became pregnant. In the latter case, Rashi in Zevachim (98a) agrees that the fetus may be eaten as ordinary meat, as the Gemara in Temurah (11a) states. Rashi learns that the verse of "Asham" is teaching that even when the animal became pregnant *before* it was designated as a Korban, and everyone agrees that it is treated as Kadosh in some way, the Eimurin of the fetus may not be placed on the Mizbe'ach.

However, Tosfos questions his own reasoning. Why does the Gemara not derive from an *Olah* that the fetus of a Korban has no Kedushah? Why does it specifically derive this Halachah from an Asham? According to Rashi, the answer to this question is that the Gemara prefers to derive this Halachah from Asham to other Korbanos, since other Korbanos are similar to an Asham in that their Eimurin are offered on the Mizbe'ach and some of the meat is eaten. An Olah is different from all other Korbanos in that the entire animal is burned on the Mizbe'ach. Therefore, the Gemara prefers to learn a Halachah regarding the offering of other Korbanos from Asham, and not from Olah. According to Tosfos, who says that the Gemara is teaching that the unborn calf may be eaten as an ordinary piece of meat, the Gemara is deriving a Halachah about Chulin (ordinary meat) and not a Halachah about offering a Korban, and, consequently, there is no reason to learn this Halachah from Asham more than from Olah. (See TAHARAS HA'KODESH who gives an answer to this question according to Tosfos.) (Y. Montrose)

83b

OPINIONS: The Mishnah says that all Menachos may be brought from either grain of Eretz Yisrael or Chutz la'Aretz, and from either Chadash or Yashan grain, except for the Korban ha'Omer and the Shtei ha'Lechem, which must be brought only from grain of Eretz Yisrael and from Chadash. The Gemara infers from the Mishnah that if the Korban ha'Omer and Shtei ha'Lechem were brought from Yashan, then they are Pasul. The Gemara says that the Mishnah is arguing with the Tana of a Beraisa who states that if the Omer and Shtei ha'Lechem were brought from Yashan, they are still valid, even though the Mitzvah to bring them from Chadash was not fulfilled.

Which opinion does the Halachah follow?

(a) The RAMBAM (Hilchos Temidin u'Musafin 8:2) writes that if the Shtei ha'Lechem was not able to be brought from Chadash, then it could be brought from Yashan, as the Beraisa says.

(b) The RA'AVAD comments that the Rambam's ruling is "the opposite" ("Halachah Zo b'Hefech"). What does the Ra'avad mean? The KESEF MISHNEH explains that the Ra'avad's intention is to say that the Rambam should not have ruled like the Beraisa when the Mishnah argues with the Beraisa. The Ra'avad obviously maintains that the Halachah is like the Mishnah.

Why, though, does the Rambam rule like the Beraisa?

1. The Kesef Mishneh explains that the Rambam inferred from the fact that the Gemara explains only the opinion of the Beraisa (and does not bother to explain the opinion of the Mishnah) that the Gemara maintains that the primary opinion is that of the Beraisa.

2. Alternatively, the Kesef Mishneh explains that the Rambam has a different understanding of the argument between the Mishnah and the Beraisa. The Mishnah maintains that only *l'Chatchilah* one should not bring the Omer and Shtei ha'Lechem from Yashan. If one brought those Menachos from Yashan (or if Yashan is the only type of grain available), then, b'Di'eved, they are valid. The Beraisa maintains that there is a difference between the Omer and Shtei ha'Lechem (and thus it does not group the two together). The Beraisa first states that a Korban ha'Omer that is brought from Yashan is valid b'Di'eved, like the opinion of the Mishnah. However, it then states that when the Shtei ha'Lechem is brought from Yashan, it is valid, and one merely does not fulfill the Mitzvah to bring it from Chadash. This means that l'Chatchilah one may bring the Shtei ha'Lechem from Yashan, and there is merely a special Mitzvah Min ha'Muvchar, the most preferred way of performing the Mitzvah, to bring it from Chadash. The argument between the Mishnah and the Beraisa is whether bringing the Shtei ha'Lechem from Chadash is l'Chatchilah, as the Mishnah maintains, or whether it is only a Mitzvah Min ha'Muvchar, as the Beraisa maintains. Accordingly, the Rambam is ruling in accordance with the Mishnah. (It should be noted that RASHI Kesav Yad (DH Afilu Min ha'Aliyah) and TOSFOS (DH Masnisin) explicitly argue with this explanation of the Mishnah. They maintain that, according to the Mishnah, Yashan is *not* valid even b'Di'eved.)

The KEREN ORAH has difficulty with the explanation of the Kesef Mishneh. If the Rambam rules, like the Mishnah, that both the Omer and Shtei ha'Lechem may be brought, b'Di'eved, from Yashan, then why does he write this Halachah only with regard to the Shtei ha'Lechem and not with regard to the Omer?

The MAHARI KURKAS, who gives a similar explanation to that of the Kesef Mishneh (but differs when he explains that the Beraisa holds that both the Omer and Shtei ha'Lechem may be brought l'Chatchilah from Chadash, and it does not differentiate between the two), answers this question. He explains that because the verse says, "Minchah Chadashah" -- "a new Minchah" (Vayikra 23:16) regarding the Shtei ha'Lechem, we might have thought that there is greater reason to say that "Chadash" ("Minchah *Chadashah*") is required for the Shtei ha'Lechem. When the Rambam rules that the Shtei ha'Lechem is valid b'Di'eved when brought from Yashan, it is obvious that the Korban ha'Omer -- for which the verse does not explicitly say "Chadash" -- is also valid when brought from Yashan. (See Mahari Kurkas for a second answer.)

3. The MA'ASEH ROKE'ACH explains that there are actually three different opinions. The Mishnah maintains that both the Omer and Shtei ha'Lechem are Pasul even b'Di'eved. The Beraisa maintains that both are valid b'Di'eved. The Gemara then cites a third Beraisa that quotes Rebbi Nasan and Rebbi Akiva who maintain that Shtei ha'Lechem brought from Yashan is valid. Since the two Beraisos maintain that Shtei ha'Lechem brought from Yashan is valid b'Di'eved, the Rambam rules this way, against the Tana of our Mishnah.

However, we do not find two opinions that maintain that the *Omer* is valid b'Di'eved when brought from Yashan, and, therefore, the Rambam rules only that the Shtei ha'Lechem is valid b'Di'eved, but not the Omer.

A similar explanation is proposed by the Keren Orah. (See also Keren Orah and YAD BINYAMIN regarding possible reasons for why the Shtei ha'Lechem, but not the Omer, may be brought b'Di'eved from Yashan.) (Y. Montrose)