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Bava Metzia, 91

1) HOW MANY LASHES DOES ONE RECEIVE FOR "TEMURAH"

QUESTION: The Gemara quotes the Mishnah in Temurah (2a) that states that one who makes a statement of Temurah (in an attempt to exchange an animal that he has sanctified as a Korban with a different animal) "receives forty" Malkus for transgressing the Isur of Temurah.

Why does the Mishnah say that he receives only one set of forty Malkus? One who attempts to exchange a sanctified animal transgresses *two* Lavim -- the Lav of "Lo Yamir" and the Lav of "Lo Yachlifenu" (Vayikra 27:10)! (Rishonim)

ANSWERS:

(a) TOSFOS in Temurah (2a, DH v'Sofeg) answers that the Mishnah's intention is not to teach how many lashes the transgressor receives, but rather to teach that one who transgresses the Isur of Temurah receives Malkus. In truth, though, the transgressor will receive two sets of Malkus.

(b) Tosfos there suggests a different answer and says that, in fact, one who transgresses the Isur of Temurah receives only forty lashes. The verse that teaches that there are two Isurim -- "Lo Yamir" and "Lo Yachlifenu" -- is referring to two separate Isurim that apply in two separate situations. One Isur applies to a case when one does Temurah with his own Korban, and the other Isur applies to a case when one does Temurah with someone else's Korban. In each case, since the person transgresses only one Lav, he receives only forty lashes.

(c) RASHI here writes that one receives Malkus because of the Isur of "Lo Yachlifenu." Rashi seems to imply that the transgressor receives only one set of Malkus (see AFIKEI YAM 1:25).

However, in Temurah, Rashi (2a, DH v'Sofeg) says that one receives Malkus for the Isur of "Lo Yamir," and he does not mention the Isur of "Lo Yachlifenu," as he mentions here! Moreover, what Rashi mentions here -- the Isur of "Lo Yachlifenu" -- seems more appropriate to mention, since these words are the beginning of the verse that teaches the Isur of Temurah. How can the words of Rashi be reconciled?

1. In Temurah, Rashi explains that the Malkus is for "Lo Yamir" because the Mishnah there begins with the words, "ha'Kol Mamirin," and Rashi wants to explain why the Isur is called "Temurah." Hence, he quotes the verse of "Lo Yamir." Here, however, Rashi quotes the verse of "Lo Yachlifenu," because that is the first Isur expressed in the verse, as we mentioned above. (Alternatively, Rashi here mentions "Lo Yachlifenu" because that Isur is more encompassing, for it includes both a case of one who makes Temurah with his own animal, and one who makes Temurah with someone else's animal, while the Isur of "Lo Yamir" refers only to one who makes Temurah with his own animal, as the Gemara in Temurah (9a) states.) (M. Kornfeld)

2. The OTZAR CHAIM (Rav Chaim Broyde) suggests a brilliant answer as follows. The Mishnah in Temurah there says, "All are obligated for Temurah -- both men and women." The Gemara there says that women are included because of the extra word "Yamir" in the verse, "v'Im ha'Mer Yamir" (Vayikra 27:10). Accordingly, even if a man transgresses two Isurim when he makes a Temurah, a woman only transgresses one Isur, the Isur of "Lo Yamir." Since the primary Chidush of the Mishnah in Temurah is to teach that women are also obligated for Temurah, Rashi there says that the Isur the Mishnah is discussing is the Isur of "Lo Yamir!"

QUESTION: The Gemara quotes a Beraisa which states that a person who muzzles someone else's animal while working with it is punished with Malkus, and he must pay to the owner of the animal the amount that it eats in one day while threshing (i.e. four Kavin for a cow, three Kavin for a donkey). The Gemara asks that we have a principle that one does not receive two punishments (Malkus and an obligation to pay) for one act. Abaye answers that the Tana of the Beraisa is Rebbi Meir who maintains that when a person is Chayav to receive Malkus, he can also be punished with an obligation of a monetary payment.

The Rishonim ask that when Rebbi Meir says that a person can be punished both with Malkus and with an obligation to pay for one act, he says this only with regard to one act with which the person transgresses *two different Isurim*, one of which obligates him to pay and one of which obligates him to receive Malkus. The case in Makos (4a) in which Rebbi Meir says that one receives both Malkus and an obligation to pay is where Edim testify that a person owes someone else 200 Zuz and they are found to be Zomemin. Rebbi Meir rules that they receive Malkus because of the Isur of "Lo Sa'aneh" (Shemos 20:13) and they must pay because of "va'Asisem Lo Ka'asher Zamam La'asos" (Devarim 19:19). In the case of the Beraisa, though, the Isur of "Lo Sachsom" obligates the person to receive Malkus, and the same Isur of "Lo Sachsom" obligates him to pay! (TOSFOS in Makos 4a, DH Lokin, and in Kesuvos 32b, DH she'Lo, and other Rishonim)

ANSWERS:

(a) The RAMBAN and RITVA here, and the CHIDUSHEI HA'RE'AH in Kesuvos, answer that in the case of the Beraisa the two punishments are also because of two separate Isurim. The reason the person who muzzles the animal receives Malkus is because of "Lo Sachsom" (Devarim 25:4), while the reason while he must pay the owner of the animal is because he "stole" food from the owner by not letting his animal eat what it was entitled to eat, and thus he must pay back because of "v'Heishiv Es ha'Gezeilah Asher Gazal" (Vayikra 5:23).

The Ritva in Kesuvos (32b, DH she'Lo), however, rejects this answer, saying that if there were no Isur of "Lo Sachsom," then there would be no Gezeilah in this case, and therefore the two punishments cannot be considered to come from two different sources.

The D'VAR YAKOV suggests that these Rishonim are arguing about the nature of the obligation of a Socher. Does the Socher's obligation to pay take effect because he knows that it is forbidden to muzzle the animal that he is renting, and therefore it is considered as though the owner rented the animal to the Socher on condition that the Socher feed it, and by not feeding the animal he failed to fulfill his obligation? Or does the obligation to pay take effect because once the Torah prohibits muzzling an animal, when the Socher muzzles it, it is considered as though he is causing the owner a loss? (See CHAZON ISH, Likutim to Choshen Mishpat, #20, KEHILOS YAKOV to Bava Kama #13, and SHI'UREI REBBI SHMUEL ROZOVSKY, Makos #121).

It could be that the Ramban and the Ritva here maintain that the obligation to pay is a result of the unspoken stipulation between the owner and the Socher. Accordingly, the obligation to pay is not related at all to the Isur of "Lo Sachsom," but rather it is merely compensation for failure to fulfill his commitment, which falls into the general category of Gezeilah. According to the Ritva in Kesuvos, on the other hand, the obligation to pay is directly a result of the Isur of "Lo Sachsom," for by transgressing that Isur the Socher caused a loss to the owner of the animal. Hence, the obligation to pay is not because of Gezeilah, but because of the Isur of "Lo Sachsom," the same Isur for which he receives Malkus.

(b) The RITVA in Kesuvos (32b) gives a different answer. He says that when Rebbi Meir in Makos says that the two punishments must come from two different sources, he is referring only to two punishments given to Edim Zomemin. The Torah says, with regard to Edim Zomemin, "va'Asisem Lo Ka'asher Zamam La'asos" (Devarim 19:19), implying that the *only* punishment we can give to Edim Zomemin is that which they attempted to do to the victim (in this case, an obligation of monetary payment). We would not be able to give them Malkus because the Torah specifically says to do to them only that which they attempted to do. Therefore, there needs to be an additional Isur (i.e. "Lo Sa'aneh") for which they receive Malkus. In our case of muzzling an animal, though, there is no indication in the verse that tells us not to give more than one punishment. Therefore, for the single Isur of "Lo Sachsom," one can be punished with both Malkus and an obligation to pay. (I. Alsheich)

91b

The Gemara asks whether a hired laborer may eat the grapes of one vine while he is working with a different vine (such as when the grapes of the vine with which he is not working are of a higher quality than the grapes on the vine with which he is working). The Gemara cites several source in attempts to prove whether or not a laborer may eat from the grapes of a different vine, but the Gemara refutes all of the proofs and does not come to any conclusion. What is the Halachah?

HALACHAH: The RAMBAM (Hilchos Sechirus 12:10) rules that a laborer may *not* eat the grapes of a vine with which he is not working.

The LECHEM MISHNEH asks why the Rambam does not mention that if the laborer *did* eat from a different vine, he does not have to pay for what he ate. In all similar cases where the Gemara leaves the question as a doubt, the Rambam rules that if the person took the item in doubt, then the owner cannot take it from him ("Im Tafas, Lo Mafkinan Minei").

When the ROSH (7:10) writes this ruling, he adds that "*mi'Safek*" the laborer may not eat from another vine. He adds that if the laborer did eat from another vine, then the owner cannot make him pay for it, because of the same Safek. This is also the ruling of the TUR and SHULCHAN ARUCH (CM 337:10).

The Acharonim ask, however, that the Rosh himself maintains that in any Safek regarding a Halachah (as opposed to when the Halachah is known but there is a Safek regarding what happened), if one unlawfully took that which, mi'Safek, he was not supposed to take ("Tefisah"), then we *do* make him give it back (or pay for it)!

(a) The SHACH (in TAKFO KOHEN, cited by the KUNTRUS HA'SFEIKOS 4:8) gives a novel approach and says that the Rosh rules that "Tefisah" does not work where the Halachah is in doubt *only* where the doubt involves a Kenas, a penalty. However, in a case of monetary law that is in doubt (i.e. whether a person is entitled to this money or not), then "Tefisah" *does* work when the Halachah is in doubt. The reason why "Tefisah" does not work in the case of a Kenas that is doubt is because even if there was no doubt, Beis Din would not have the power to force the person to pay, since today there is no Beis Din that has Semichah, and thus no one is empowered to collect a Kenas. In cases of normal monetary rulings, though, Beis Din today does have the power to collect money, and thus "Tefisah" does work if the person went ahead and seized the item or the money.

(b) The KUNTRUS HA'SEFEIKOS (4:13) and the NESIVOS HA'MISHPAT (#28, Klalei Tefisah 4) answer that the Safek whether the laborer may eat grapes from a different vine is not a Safek whether those fruits belong to him or not. Those fruits certainly belong to the owner of the field, and the laborer merely is given permission to eat them (as the Gemara concludes on 92b, "mi'Shel Shamayim Hu Ochel"). Therefore, the Safek is only whether the laborer is obligated to pay or not when he eats grapes from a different vine. With regard to this Safek -- whether or not he has to pay -- the laborer is considered "Muchzak" since he is in possession of the money, and therefore if he goes ahead and eats the grapes of a different vine, the owner cannot make him pay, because he has a Chazakah ("Mara Kama") that the money belongs to him and that he does not have to pay. (I. Alsheich)