004a הכל ממירין פרק ראשון תמורה ד ע"א - HAKOL MEMIRIN CHAPTER ONE TEMURAH

You cannot say [that], as it is written: "You shall not curse the deaf"^[1] (Leviticus 19:14).

לא תקלל חרש - Because it implies both an ordinary curse and a curse by the Name, to which the prohibition applies; and the verse comes to make one fear the Name, to teach that one is liable to lashes, as it says: "And the Lord will make your plagues wondrous" (Deuteronomy 28:59). Rather, you cannot say that it is not atoned for by mere lashes^[2], since it is surely atoned for by lashes alone, for it is written: "You shall not curse the deaf"; and we learn in Sanhedrin, in the chapter Arba Mitot^[3], a gezeirah shavah^[4] from this prohibition, written about the afflicted, such as "You shall not curse the deaf", which is the worst of them all; and it is written about a ruler (nasi), "a ruler among your people you shall not curse" (Exodus 22:27). Just as there only mere lashes apply, so here, for the afflicted, mere lashes suffice; and it is established there for one who curses using the Name, since he is learned from one who curses his father, of whom it is written: "and one who pronounces the Name" (Leviticus 24:16). Therefore you cannot say that it does not suffice with lashes; and this is not from my teachers, but from R' Yitzchak bar R' Menachem, of blessed memory.

If you say: granted, [the warning] against cursing one's fellow, its warning comes from here, as it is written: "You shall not curse the deaf".

ואב"א - That is: from this verse, "fear the Name", it comes to [warn] one who curses his fellow by the Name, for we do not find that he is punished unless he was warned.

ובשלמא אי אמרת דההוא קרא למקלל חבירו בשם הוא דאתי - And its warning is from "You shall not curse the deaf", and it is established as one who curses his fellow by the Name, as I explained above; therefore it is written here: "if you do not keep to do, etc.", that is: that you curse your fellow by the Name, about which you were warned, "and the Lord will make your plagues wondrous", which makes him liable to lashes.

But if you say [it is about] one who takes the Name in vain, from where is its warning?^[5]

אזהרתיה מהיכא - That is: we found a punishment ("and the Lord will make your plagues wondrous"); from where is the warning, that the Torah warned against taking the Name in vain?

Why not [is there no warning]?

אלמה לא - Rhetorically: why not? For we do not find that [the Torah] warned against taking His Name in vain (the text reads "הויא"); here it warned, and there it punished, "and the Lord will make your plagues wondrous"; and it is written, "if you do not keep to do, etc."; and it can still be established as [referring to] one who takes the Name in vain.

And surely it is written: "Fear the Lord your God and serve Him"^[6] (Deuteronomy 6:13).

That [verse] is a warning of a positive commandment^[7].

ההיא אזהרת עשה היא - And it is not called a warning of a prohibition (lav). Therefore it is established as "fear the honored Name", [applying to] one who curses his fellow by the Name, for which we found a prohibition, "You shall not curse the deaf"; and it cannot be established as one who takes the Name in vain, for we do not find a prohibition for him. Above, [the Gemara] is returning to the question, for R' Yossi said: "even one who brings terumah before bikkurim" is liable.

They said in the name of Rabbi Yossi bar Rabbi Chanina: even one who brings terumah before bikkurim^[8] [is liable].

What is his reason?

Rabbi Yossi bar Rabbi Chanina said: the verse says (Exodus 22:28): "Your fullness and your tears you shall not delay"^[9].

"Fullness" [refers to] bikkurim, "tears" [refers to] terumah, and it says "you shall not delay".

אלו ביכורים - That is why bikkurim is called "fullness" (male'ah): because as soon as the grain fills out and its work is finished, it is designated for bikkurim.

זו תרומה - And since it oozes ("tears") and goes up by one in a hundred and one, the verse expresses it in the language of "tears" (dimu'a), and the Merciful One says "and do not delay fullness for tears". Originally it should have brought in "fullness", which is bikkurim; and if he delays, he is liable.

It was stated: [if] one brings terumah before bikkurim, Rabbi Elazar and Rabbi Yossi bar Rabbi Chanina [disagree]: one said he is liable^[10] to lashes, and one said he is not liable to lashes.

It is concluded^[11]: it is R' Yossi bar Rabbi Chanina who says he is liable.

Since R' Yossi bar R' Chanina said: even one who brings terumah before bikkurim [is liable]...

On the contrary, conclude that it is R' Elazar who says he is liable.

As we learned^[12]: If there were before him two baskets of untithed produce^[13], and he said: "the tithe of this one is in that one"...

מעשר של זו בזו - "Tithe of this one in that one": the tithe that I am obligated to separate from this basket shall be in that basket, that I take from this one to that one; or he says "of this one in that one, and that one in this one", that I will separate from this basket onto the other basket, and from the other basket onto this first basket, the first is tithed, even though he did not separate immediately. As we said regarding a barrel of wine, that I am about to separate, [he] begins and drinks at once, even though he did not separate immediately from the barrel; and all the more so here, where he begins and eats at once, since they are two vessels. But the second is not tithed. And even when he says "of this one to that one and that one to this one", because immediately, when he says "of this one to that one, the first shall be tithed on the second", the second is exempted completely; and when he says "of this one, the second's, shall be tithe on the first", his words are nothing, because the second has already been exempted in the first basket, and one does not separate from exempt produce^[14] on obligatory produce.

The first is tithed in that one, and that one in this one; the first is tithed, and the second is not tithed.^[15]

Their tithes: the tithe of one basket [is placed] in the other^[16].

אם אמר מעשרותיהם מעשר כלכלה בחבירתה - That is: these two tithes that I am about to separate from these two baskets, their tithes, each one of them, shall be the tithe of the basket in the other; that is, that the basket shall be exempted through the basket of its fellow, namely "of this one in that one and that one in this one".

He proclaimed the name.

קרא את השם - That he begins and eats at once from both of them, even though he has not separated at all yet. And here one cannot say "from exempt produce on obligatory produce", because both are set in order at once, with one utterance, and it is obligatory on obligatory.

And it was stated: R' Elazar said he is liable to lashes, because he brought the second tithe of this one before the first tithe of that one^[17].

מפני שהקדים מעשר שני שבה למעשר ראשון - That is: at first, before he said "of this one in that one", he was to separate from it ma'aser rishon and ma'aser sheni; and now, when he returns and separates from it ma'aser rishon and ma'aser sheni for the other basket, it turns out that the ma'aser sheni of this basket comes before the ma'aser rishon which he was to separate from the other basket before that. And similarly when he says "of this one in that one, and that one in this one", that he brings the ma'aser sheni of this one before the ma'aser sheni of that one, in this same way too; and therefore he is liable, because one is obligated to separate ma'aser rishon and ma'aser sheni in this order, as it is written: "Your fullness and your tears you shall not delay". Just as one is warned not to delay fullness for tears, so too one is warned not to delay ma'aser rishon for ma'aser sheni, as it is written: "and your tears you shall not delay"; for anything included in "tears" is "do not delay", that is, anything that has the status of terumah is "do not delay": that he separates ma'aser rishon and then ma'aser sheni; and if he brought ma'aser sheni before ma'aser rishon, he transgresses "do not delay". Another version: we expound in the Mekhilta that bikkurim precede terumah, because bikkurim are more severe, having four names (reishit, male'ah, terumah, bikkurim); terumah has only three names (reishit, dima, terumah); and terumah precedes ma'aser rishon, which has only two names, such as ma'aser and terumat ma'aser; and ma'aser rishon precedes ma'aser sheni, which has only one name, ma'aser sheni. The verse says "your fullness and your tears you shall not delay", for it speaks of all of them: the most severe of them shall not be delayed, the more severe precedes the lighter; and just as R' Elazar said one is liable for bringing ma'aser sheni before ma'aser rishon, so he says here: for bringing terumah before bikkurim.

It is concluded.

Rather, [it is] R' Yossi bar Chanina who says he is not liable.

Let it be a difficulty: R' Yossi bar Chanina [contradicts] R' Yossi bar Rabbi Chanina?

No: [it is] R' Yossi bar Rabbi Chanina (the same person).

Tosafot

הא לא מצית אמרת דהכתיב לא תקלל חרש - And since we found a warning concerning one who curses, we should establish this verse of lashes as [applying to] one who curses his fellow by the Name, rather than to one who takes the Name in vain, for we did not find an explicit warning about him.

מלאתך זו ביכורים - Rashi explains: that is why it is called "fullness" (male'ah), because as soon as the grain swells and its work is finished, it is designated for bikkurim; and "tears" is terumah, since it oozes and rises, so the verse uses the language of "tears" [in Rashi's language]. But this is not clear, for this is only rabbinic. R' Moshe of Pontoise explains that terumah is called dema because it applies to liquid, whereas bikkurim apply only to dry produce, since one brings bikkurim only from fruit, as is stated in the chapter Ha'or veha-Rotev (Chullin 120): "You bring fruit, and you do not bring liquid".

היו לפניו שתי כלכלות של טבל ואמר מעשר של זו בזו הראשונה מעושרת - For example, if each basket has a hundred figs, ten from the second will be the ma'aser rishon on the first; and he also says the ma'aser sheni: all the hundred of the first are tithed. It deals with demai^[18], since he did not separate terumah; and it is taught in Demai (7:6).

של זו בזו ושל זו בזו הראשונה מעושרת - Because as soon as he said "of this one in that one", it is set in order and becomes exempt; then when he again says "and of that one in this one", it turns out that a tithe [is taken] from the exempt onto the obligatory, and it is nothing.

מעשרותיהם מעשר כלכלה בחבירתה קרא השם - For they are set in order together with each other, and although we hold that [an act] not done one after the other, even at once, [does not count], here, since his intention is to set both in order, it is as if he says: the tithe of the first shall be in the second, except for ten which remain tevel in the first to set the second; and the tithe of this one in that one and that one in this one takes effect.

ואתמר עלה ר"א אומר לוקה מפני שהקדים מעשר שני שבה למעשר ראשון שבחבירתה - For the ma'aser rishon and ma'aser sheni of the first are as if they were separated, and still the ma'aser rishon of the second is tevel within it; this refers to the first clause of the Mishnah, "of this one in that one". In the Yerushalmi^[19] we read: on the first [he transgresses] a positive command, and on the second a prohibition. One may explain: on the first, if he fixes their tithes within it, he transgresses a positive command, for he should have brought ma'aser rishon before ma'aser sheni, and they are named together at once; but there is no prohibition, since he did not bring the second before the first. And on the second, a prohibition, when he set the first within it, for he brought the ma'aser sheni of the first before the ma'aser rishon of the second. Others read it the other way round: on the first a prohibition, on the second a positive command. And this means: on the first clause of the Mishnah, that is, when he says "of this one in that one", he transgresses a prohibition, for he brings ma'aser sheni before ma'aser rishon, as explained; and on the second, that is, the end of the Mishnah, "their tithes, the tithe of one basket in the other", there is no prohibition but a positive command, for they are at once.

שהקדים מעשר שני שבה למעשר ראשון שבחבירתה - Although the verse speaks only of bikkurim and terumah, he also explains it for ma'aser rishon [before] terumah and ma'aser sheni [before] ma'aser rishon, from "and your tears you shall not delay": anything included in "tears" is "do not delay". He gives the reason in the Mishnayot (Terumot 3:7): bikkurim precede terumah because they are called bikkurim and terumah; terumah precedes ma'aser rishon because it is called terumah and reishit; and ma'aser rishon precedes ma'aser sheni because it has terumat ma'aser. In the Mekhilta he gives another reason, and Rashi wrote, in his words: bikkurim precede terumah because they have four names (reishit, male'ah, terumah, bikkurim); terumah has three names (reishit, dima, terumah), and terumah precedes ma'aser rishon, which has only two names, such as ma'aser and terumat ma'aser; and ma'aser rishon precedes ma'aser sheni, which has only one name. The verse says "your fullness and your tears you shall not delay", for it speaks of all of them: the most severe shall not be delayed, the more severe precedes the lighter; and just as R' Elazar said one is liable for bringing ma'aser sheni before ma'aser rishon, so he says here: for bringing terumah before bikkurim.

Notes

1. 1. Leviticus 19:14: 'You shall not curse the deaf.' The Gemara takes this verse as the source of the prohibition on cursing.
2. 2. Mere lashes (malkos garidta): the lashes alone, with no further penalty attached.
3. 3. Sanhedrin 66a, in the chapter Arba Mitot, where this gezeirah shavah appears.
4. 4. Gezeirah shavah: a verbal analogy. Two verses that share the same word are read as teaching the same law.
5. 5. Taking the Name in vain (motzi shem shamayim levatala): using God's name without need, such as a false oath. This has its own explicit prohibition.
6. 6. Deuteronomy 6:13: 'Fear the Lord your God and serve Him,' a positive commandment.
7. 7. A positive command (aseh): a command to act. Failing to carry it out does not bring lashes, unlike a prohibition (lav).
8. 8. Terumah: the portion of the crop given to a kohen. Bikkurim: the first fruits brought to the Temple. The question is what follows when terumah is separated before bikkurim.
9. 9. Exodus 22:28: 'Your fullness and your tears you shall not delay.' The Gemara reads 'fullness' as bikkurim and 'tears' as terumah.
10. 10. Lokeh: liable to lashes, the punishment a court imposes.
11. 11. Tistayyem: 'it is concluded.' The Gemara settles from a source which Amora holds which view.
12. 12. 'We learned': the Mishnah is in Demai 7:6, as Tosfos cites it.
13. 13. Tevel: produce from which terumos and ma'asros have not yet been separated. It is forbidden to eat until they are.
14. 14. Patur (exempt): produce already tithed, or not liable. Chiyuv (obligatory): produce still owing a tithe. One may not separate from exempt produce on obligatory produce.
15. 15. The first basket is tithed from the second: its tithe is set aside from the second basket.
16. 16. The tithes of the two baskets are set aside from each other: one basket's tithe is placed in the other.
17. 17. Ma'aser sheni: the second tithe, one tenth of produce eaten in Jerusalem, set aside after the first tithe (ma'aser rishon).
18. 18. Demai: produce bought from an am ha'aretz, of which it is not certain that tithes were separated. The Rabbis required that it be tithed.
19. 19. The Yerushalmi (Jerusalem Talmud), which Tosfos cites for a view on which clause carries a positive command and which a prohibition.