QUESTION: The Gemara quotes a Beraisa which states, "Individuals who serve
Avodah Zarah are punished with Sekilah (death by stoning); therefore, their
money is saved. Members of an entire community (an Ir ha'Nidachas) which
serves Avodah Zarah are punished with Sayef (death by sword); therefore,
their money is [also] destroyed."
What is the meaning of the word "therefore" ("Lefikach") in this Beraisa?
"Therefore" implies a logical progression, but what is the logical
progression that if one receives the harsher punishment (Sekilah), then he
(i.e. his family) gets to keep his money?
ANSWER: The VILNA GA'ON (end of Shenos Eliyahu in Zera'im) explains that
there is a basic difference between the way the Torah relates to an
individual who serves Avodah Zarah by himself and the way the Torah relates
to a city of people who serve Avodah Zarah collectively. An individual who
serves Avodah Zarah is treated like a regular sinner (albeit a very serious
sinner), and therefore he is punished with Sekilah, but his money is not
destroyed, because in all cases of Chayavei Misas Beis Din, the possessions
of the person who was killed by the court go to his heirs.
In contrast, when an entire city serves Avodah Zarah, the Torah views them
like Nochrim and treats them as such. As far as the punishment for their sin
is concerned, they have forfeited the status of Yisrael. The law regarding
Nochrim who are Chayav Misas Beis Din is that they are always punished with
death by the sword (Sanhedrin 56a). In addition, the Torah considers their
possessions ownerless (Bava Kama 38a). Therefore, when an Ir ha'Nidachas is
punished, its inhabitants are killed by the sword, and their money becomes
ownerless and may be destroyed.
This also explains why an Ir ha'Nidachas can be punished without being warned
with Hasra'ah first, as the Rambam implies. No Hasra'ah is necessary before
killing a Nochri who transgressed one of the seven Mitzvos, Sanhedrin 57b.
QUESTION: According to Rebbi, the Gemara derives from the verse of "Torah
Achas" (Bamidbar 15:16) that an entire city that served Avodah Zarah brings
the same Korban as an individual who served Avodah Zarah brings. The Gemara
says that without this verse, we would have assumed that they bring a
different Korban, since their sin has a different punishment. The Gemara
asks, though, which Korban would we have assumed that they bring -- every
Korban is already taken by a different type of sinner.
Why does the Gemara say that every Korban is taken already? When it
demonstrates how each Korban is already brought by a different type of
sinner, it leaves out a number of Korbanos from its list which are not used
already by a different type of sinner, such as a lamb and a ram! (TOSFOS)
Also, the Gemara itself says that it cannot be that a city brings a Kisbah
(she-lamb) or Se'irah (she-goat) because that is what an individual brings
when he sins. But that is only what he brings when he commits sins other than
the sin of Avodah Zarah! When he commits the sin of Avodah Zarah, he brings a
different Korban. If so, perhaps when an entire city sins with Avodah Zarah,
they bring the Korban that an individual brings for *other* sins! (RITVA,
RASHBA)
ANSWER: The Rishonim answer that it is clear to the Gemara that the new
Korban that we would think must be brought by an Ir ha'Nidachas is one that
is brought only for a sin. If it is not a Korban brought for a sin, then we
cannot create a new Korban for a sin. On the other hand, the Gemara works
with the assumption that the Korban brought for the sin of a city that served
Avodah Zarah must be different from any Korban from for any other sin. If
they bring any Korban that is brought by someone else for another sin, then
they are bringing a Korban that is not unique! And yet they cannot bring a
unique Korban that is not brought for a sin, because we may not invent a new
Korban for a sin! That is what the Gemara here is saying; the statement that
he must bring a different type of Korban is paradoxical. (Rishonim; see
especially TOSFOS HA'ROSH)
QUESTIONS: The Gemara says that our Mishnah is discussing cases of Nisu'in
(where the woman is an Ervah to the surviving brother through a legitimate
marital relationship) and not cases of Onsin (where the woman is an Ervah
through rape). Consequently, Rebbi Chiya's statement cannot apply to the case
of "Bito" (his daughter) of the Mishnah. The logic behind this is as follows:
Rebbi Chiya states, "v'Kulan Ani Korei ba'Hen..." -- it is possible to apply
the following Halachah to all of the cases in the Mishnah: Two sisters
married two brothers, and those two brothers died. One of the sisters is an
Ervah to one of the remaining brothers (Levi), but is not an Ervah to the
other remaining brother (Yehudah), while the other sister is an Ervah to
Yehudah but not to Levi. In that case, each sister may do Yibum or Chalitzah
with the brother to whom she is permitted, and there is no problem of "Eshes
Zekukaso," since the other woman is not considered Zekukah to the man to whom
she is Asur.
Rashi explains that this statement cannot be said about the case of "his
daughter" mentioned in the Mishnah, because it is not possible that it could
be referring to his daughter that he bore through marriage; Levi's daughter
that he bore through marriage could not have a sister that was born to his
brother, Yehudah (for his wife is not permitted to Yehudah). Rebbi Chiya's
statement could apply only to Levi's daughter through rape, (whose mother
later was raped by Yehudah, and bore another daughter).
RASHI here (DH Keivan d'Bito) explains that when the Gemara says that "it is
only discussing Nisu'in, and it is not discussing Onsin," the Gemara is
referring to our Mishnah (2a). The Gemara is not saying that Rebbi Chiya is
discussing Nisu'in and not Onsin, but that *our Mishnah* is discussing
Nisu'in and not Onsin.
How are these words of Rashi to be reconciled with the Rashi's words earlier
on the Mishnah (2a, DH v'Em Chamoso)? There, Rashi writes that "Bito" in the
Mishnah *cannot* be referring to his daughter from his wife, because that
would be the same as "Bas Ishto." Therefore, says Rashi, it must be talking
about one's daughter through rape, "Bito m'Anusaso." If so, the Mishnah *is*
discussing cases of Onsin as well as Nisu'in, counter to what the Gemara here
says! (TOSFOS 2a, DH Bito)
Second, the Gemara here is attempting to understand why Rebbi did not want to
include "Imo Anusas Aviv" (one's mother who was raped by, and not married to,
his father) in the list of Arayos in the Mishnah which are exempt from Yibum
and which release their Tzaros from Yibum. The Gemara here (and on 10a) gives
a number of explanations for why Rebbi did not want to list it.
If it is true, as the Gemara here asserts according to Rashi, that the
Mishnah is discussing only cases of Nisu'in and not Onsin, then the Gemara
should have given a very simple answer: Rebbi does not list the case of "Imo
Anusas Aviv" in the Mishnah because the Mishnah is not discussing cases of
Onsin! Although the Gemara suggests a number of answers to why the Mishnah
does not list Anusas Aviv, it does not mention this simple answer. (MAHARSHA)
ANSWER: Many of the Rishonim and Acharonim discuss these questions, but none
of the answers that they propose seem to fit smoothly into the words of Rashi
in our Mishnah (see TOSFOS YESHANIM 2a, ARUCH LA'NER 2a and 9b, YASHRESH
YAKOV, and others).
Perhaps we may suggest the following approach. The Gemara here seems to
assume that not all of the cases in the Mishnah are suitable for the Halachah
of Rebbi Chiya, of "Achosah sh'Hi Yevimtah." That is evident from the remarks
of Rebbi Yehudah, Abaye, and Rav Safra, who discuss the limitations of this
Halachah -- that is, to which Arayos in the Mishnah it can be applied and to
which it cannot.
The Gemara later (10a), however, evidently has a different approach. The
Gemara there says that in order to be included in the Mishnah, each case in
the Mishnah *must* fit into this category of Rebbi Chiya's Halachah. If it is
not suitable for that Halachah, then it is omitted from the Mishnah; fitting
into Rebbi Chiya's rule is a criterion for being listed in the Mishnah. The
Gemara apparently changed its understanding of the statement of Rebbi Chiya.
According to the Gemara's final understanding of Rebbi Chiya -- that the
Mishnah only lists things that fit into this category -- the Mishnah should
*only* list "Bito m'Anusaso" (one's daughter from rape) and *not* "Bito
me'Ishto" (one's daughter from marriage), since "Bito me'Ishto" does not fit
into this category of Halachah!
Rashi on the Mishnah (2a), therefore, is explaining the Mishnah according to
the Gemara's final understanding (10a) of Rebbi Chiya, that fitting into this
Halachah (of "ha'Asurah la'Zeh Muteres la'Zeh") is a criterion for inclusion
in the Mishnah. According to that view in the Gemara, why does the Mishnah
say "Bito" (which implies that she is his daughter through his wife as much
as it implies that she is his daughter through rape), if "Bito" cannot be
included in the Halachah of Rebbi Chiya? Rashi answers this question by
saying that "Bito" mentioned in the Mishnah can be implicitly understood as
referring only to his daughter from rape (since the Mishnah lists "Bas Ishto"
separately from "Bito"). The Mishnah did not have to specify that it means
"Bito m'Anusaso," because we could understand it to mean that by ourselves.
Abaye, on Daf 9b, though, is of the opinion that holds applicability to Rebbi
Chiya's Halachah is *not* a criterion for inclusion in the Mishnah. That
opinion holds that our Mishnah is referring specifically to "Bito me'Ishto"
(one's daughter from his wife), the normal case of "Bito." Even though the
Mishnah already lists "Bas Ishto," it mentions "Bito" again simply because
that title of Ervah is also involved in such a relationship. According to
that understanding, Rebbi could indeed have said that our Mishnah does not
list "Imo Anusas Aviv" because it does not list cases of Ones, however he
mentioned another reason that is just as good -- the Mishnah does not list
cases about which the Tana'im disagreed.
The Gemara later rejects Abaye, as well as the notion that Rebbi did not want
to list cases about which the Tana'aim disagreed. At that point, why did the
Gemara not give the Maharsha's reason for not including "Imo Anusas Aviv" in
the Mishnah -- that the Mishnah does not refer to cases of rape? The answer
is that that reasoning is no longer valid, since the Gemara, at this point,
maintains that Rebbi Chiyah's rule is a criterion for being listed in the
Mishnah, and that the Mishnah *is* referring to Bito me'Anusaso! (M.
Kornfeld)