004b הכל ממירין פרק ראשון תמורה ד ע"ב - HAKOL MEMIRIN CHAPTER ONE TEMURAH

Afturah stands, and this is what it means: a prohibition that involves no act, one is not lashed for it. This is the statement of Rabbi Yose bar Rabbi Chanina.^[1]

ומשני אפטורא קאי - And the answer: there is no difficulty between R' Yose bar R' Chanina and R' Yose bar R' Chanina, for R' Yose bar R' Chanina came to say that one who gives the name of terumah before bikkurim has a prohibition with no act, and is not lashed.

They said: even one who puts terumah before bikkurim.^[2]

And what is different about saying that he is lashed,

ומאי שנא מימר דלקי - As you said above, except for one who swears and exchanges.

because by his speech he performs an act?

אילימא משום דבדיבורו - If it is because by his speech: he says "this in place of that", and performs an act; originally it was chullin, and now it is sanctified.

One who puts terumah before bikkurim should also be lashed, because by his speech he performs an act.

ה"ג מקדים תרומה לבכורים נמי בדיבורו עושה מעשה - Girsa: one who puts terumah before bikkurim also performs an act by his speech: he gives it a name and brings it to terumah sanctity.

Rabbi Avin said: that case is different, since it is a prohibition joined to a positive command^[3], as it is written: "From all your tithes you shall lift up" (Bamidbar 18:26).

לאו שניתק לעשה - A prohibition joined to a positive command: the prohibition is "from your fullness and your tears you shall not delay" ^[4], and the positive command is "from all your tithes you shall lift up". They are expounded in general; and in the case below (5a), one who put the tithe before the terumah transgressed the prohibition of "do not delay" and was given lashes for the two; and they established it as one who separates again. Although they are not juxtaposed, it counts as a prohibition joined to a positive command, and therefore he is not lashed.

Rav Dimi sat and stated this teaching.^[5]

Abaye said to him: then every prohibition joined to a positive command is not lashed?^[6]

But surely in the case of exchanging, it is a prohibition joined to a positive command, and he is lashed, as we learned^[7]:

והרי מימר דהוי לאו שניתק לעשה - And the prohibition of exchange: is it a prohibition joined to a positive command? The prohibition as written (Vayikra 27:10): "He shall not exchange it", and the positive: "and if he exchanges".

"A person is not permitted to exchange; but if he did exchange, he is a mumar and receives forty lashes."^[8]

So there are two prohibitions and one positive command, and a positive command does not come and cancel two prohibitions.

תרי לאוי ועשה - Two prohibitions and a positive command: "he shall not exchange it" and "nor shall he substitute"; therefore he receives the forty.

And the rapist: one prohibition and one positive command, and a positive command does not come and cancel the prohibition.

והרי אונס - And the rapist: as written in that matter (Devarim 22:29): "he may not divorce her".

וחד עשה - And one positive command, as written (ibid.): "and she shall be his wife".

As it was taught: "One who raped and divorced her: if he is an Israelite, he takes her back and is not lashed; if he is a kohen, he is lashed and does not take her back."^[9]

אם ישראל הוא מחזיר - If an Israelite, he returns her: because it stands on "and he returns", and it is possible to fulfil both the positive and the negative, since return is possible. But a kohen, whose case does not stand on "and he returns": since he may not marry a divorcee, he is certainly lashed for "he may not divorce her all his days"; the positive does not come and uproot the negative to say they are not lashed. They are certainly lashed. And this is difficult for one who says a prohibition joined to a positive command is not lashed.

Kohanim, you say? Kohanim are different, for another reason: the verse gives them extra holiness.

ה"ג שאני כהנים דטעמא אחרינא נינהו דרבי בהו קרא קדושה - Girsa: kohanim are different, for another reason, that the verse ascribes holiness to them, as written (Vayikra 21:1): "Speak to the kohanim: none shall defile himself for a dead person." Since their holiness is stricter, it was made stricter upon them more than upon Israelites, so that they are lashed even for a prohibition joined to a positive command, though Israelites are not lashed. Another version: when he asks "and what about saying", it is a different case; there he is lashed because the prohibition of exchange applies equally to all. He asks "and the rapist" because now the prohibition is not equal for all: for an Israelite, who divorced her, may return and fulfil the prohibition; but a kohen who divorced her does not return and cannot fulfil it, and yet is lashed. The answer: kohanim are different for another reason, so we are stricter with them; but for Israelites the prohibition and positive command are equal for all, all of them stand in "and he returns", so they are not lashed, since it is a prohibition joined to a positive command.

Like a dispute among the Tannaim (Shemot 12:10): "Let none of it remain until morning."^[10]

The verse came to give a positive command after the negative, to say that one is not lashed for it^[11].

ליתן עשה - To give a positive command: "and the remainder of it" after the prohibition "do not", and it is a prohibition joined to a positive command.

The words of Rabbi Yehuda.

Rabbi Yaakov says: this is not because of the Name, but because it is a prohibition with no act.

לאו שאין בו מעשה - A prohibition with no act: when he leaves it over, he performs no action.

Every prohibition with no act, one is not lashed for it.

It follows that Rabbi Yehuda holds that one is lashed for it.

And Rabbi Yaakov: what does this "and the remainder of it until morning you shall burn with fire" do? What is it for? It is needed for what we learned^[12]:

ורבי יעקב - And R' Yaakov: who said "this is not from the Name" etc. What does he do with "and the remainder of it"? Since it is not needed for himself as a prohibition joined to a positive command.

לכדתנן - As we learned: in the Mishnah of Pesachim, chapter "Kizad Tzolin" (83a).

"The bones, the sinews and the remainder are burned on the sixteenth. If the sixteenth falls on Shabbat, they are burned on the seventeenth, because one does not push aside Shabbat or Yom Tov for burning."^[13]

ישרפו בט"ז - They are burned on the sixteenth, and not on the fifteenth, since it is Yom Tov; and one does not burn sacred items on Yom Tov.

And Chizkiya said, and so taught the school of Chizkiya.^[14]

What is the reason? The verse says (Shemot 12:10): "And the remainder of it until morning, you shall burn with fire."

מה טעם אמר קרא והנותר ממנו וגו' בקר שני - What is the reason the verse says "and the remainder... second morning"? That is the sixteenth, for so the verse reads: "do not leave of it until morning", that is until the morning of the fifteenth; and if any remains until the other morning, "you shall burn it with fire", that is the sixteenth, which is chol hamoed.

The verse came to give a second morning for its burning.^[15]

Abaye said: any matter that the Merciful One said "do not do" — if one did it, it is effective^[16].

לא תעביד - "Do not do": do not perform.

For if you thought it were not effective, why would he be lashed?

מהני - Is effective: what he did stands, since he is lashed.

Rava said: it is not effective at all.^[17]

לא מהני - Is not effective: as it explains below. This is the reading: "and that he is lashed because he transgressed" etc.

And that he is lashed is because he transgressed the command of the Merciful One.

Tosafot

וכל לאו הניתק לעשה אין לוקין עליו והרי מימר - And if you ask: how could Abaye say that for a prohibition joined to a positive command one is lashed, when the law of sending away the mother bird^[18] from Chullin (141a) is a Mishnah, and one who takes the mother on the young sends her away and is not lashed, because it is a prohibition joined to a positive command? And likewise for the remainder, the verse says "give a further positive command" to say one is not lashed; and likewise for the rapist, we learned that if he divorced her he returns and is not lashed. The Ri explains that Abaye resolves the sending-away of the nest, the remainder and the rapist, since their positive command is joined to the prohibition; but for the tithe, which is not joined ("from all your tithes you shall lift up" is not joined to "do not delay"), that is why he asks "and surely...". Even though the positive command follows the prohibition, he compares one matter to another: just as with exchange one is lashed for a prohibition joined to a positive command, because one does not fulfil the positive command by action, so too we should say "from all your tithes you shall lift up", even though one does fulfil the positive by action. Since it is not joined, we should not treat it as a prohibition joined to a positive command; and even though "and he shall return the robbery" (Vayikra 5:23) is not joined to the prohibition, it is a complete prohibition joined to a positive command, since restitution is only possible after the prohibition; but "from all your tithes" can be fulfilled even if the prohibition was not transgressed. Nevertheless he compares the one matter to the other, to say the same rule applies to the tithe.

הרי אונס דחד לאו וחד עשה ולא אתי חד עשה ועקר לאו - Explanation: according to you, who say that "from all your tithes you shall lift up" refers only to advancing the terumah before the tithe, even so it is a joined prohibition for advancing bikkurim before the tithe. So you hold that a prohibition joined in part is joined in whole; and the rapist's prohibition is joined for Israelites but not joined for a kohen. So where it is joined in part, it is not joined in whole.

כהנים קאמרת שאני כהנים דרבי רחמנא בהן קדושה יתירתא - Rashi explains: therefore I am stricter, that they are lashed, though it is a prohibition not equal in all; and the Ri explains that since the prohibition "he shall not divorce her" binds kohanim, it is not a joined prohibition, unlike the earlier case where "lift up" is a joined one, since one can correct if he errs and advances terumah before bikkurim, as if he advanced the tithe before the terumah.

כתנאי - Does not concern this discussion of a joined prohibition, but the dispute about a prohibition with no act.

ורבי יעקב האי והנותר מאי עביד ליה - And if you ask: is it needed to teach us the law of burning? One can say that from the juxtaposition it is subtle for what law; he wrote it here adjacent to the prohibition. If it were to exclude a joined prohibition, he should have written it elsewhere.

רבא אמר לא מהני מידי - Difficult: if so, one who slaughters the Pesach over the chametz should be disqualified. One can say that the Yerushalmi has a verse to validate. Difficult: a firstborn with a pierced ear^[19] should be forbidden; we know it is forbidden only as a fine, and it is like a blemish that happened by itself, which is permitted. This explains why piercing the ear is not included in "you shall not eat" like the prohibition of meat and milk, since meat and milk, even if it fell by itself, is forbidden; but a piercing that happened by itself is permitted, not an eating prohibition even if done by hand. To be examined.

Notes

1. 1. A prohibition that involves no act (lav she-ein bo ma'aseh): a violation without any physical action; one is not lashed for it.
2. 2. Terumah is the portion of produce given to the kohen; bikkurim are the first fruits brought to the Temple. The Gemara discusses one who puts one ahead of the other.
3. 3. A prohibition joined to a positive command (lav she-nitak la'aseh): a prohibition with a separate positive command that can still be fulfilled after the violation. By Abaye's view one is not lashed for it.
4. 4. 'Your fullness and your tears you shall not delay' (Shemot 22:28): do not delay bringing the gifts from the threshing floor and the winepress.
5. 5. Rav Dimi, an Amora who travelled between Babylonia and Eretz Yisrael. Here he states a teaching; the Gemara brings the scene as a side-discussion.
6. 6. Abaye, a Babylonian Amora, pupil of Rabbah bar Nachmani. He raises the objection to Rav Dimi's statement.
7. 7. 'As we learned': the quotation that follows is a Mishnah, which the Gemara now argues from.
8. 8. Forty: the lashes given for a transgression of a prohibition. In practice thirty-nine are given.
9. 9. One who violated an unbetrothed virgin must marry her and may not divorce her (Devarim 22:28-29). A kohen may not marry a divorcee (Vayikra 21:7).
10. 10. 'Like a dispute among the Tannaim': the verse 'let none of it remain until morning' (Shemot 12:10) concerns the Paschal offering.
11. 11. The verse adds a positive command (to burn the remainder) beside the prohibition; by R' Yehuda's view this is why one is not lashed for the prohibition.
12. 12. 'As we learned': as taught in the Mishnah of Pesachim (chapter Kizad Tzolin, 83a) about burning the bones, sinews and remainder.
13. 13. The 15th of Nissan is Yom Tov and the 16th is Chol HaMoed. If the 16th falls on Shabbat they burn on the 17th, since burning does not push aside Shabbat or Yom Tov.
14. 14. Chizkiya: a sage whose school taught this baraita; the Gemara cites his words as a source.
15. 15. 'Second morning': the 16th, the morning after the 15th on which the Paschal meal is eaten.
16. 16. Abaye states the principle: when the Torah forbids an act and it was done, the act is effective (mehani). This is the basis of the question about an exchange made in violation.
17. 17. Rava, a leading Babylonian Amora, pupil of Rav Yehuda. He disagrees with Abaye: the act is not effective at all.
18. 18. Shilu'ach ha-ken (Devarim 22:6-7): sending away the mother bird before taking the young. An example of a positive command accompanying a prohibition.
19. 19. Piercing the ear of a firstborn animal (tzoram ozen bekhor) gives it a blemish that disqualifies it as a sacrifice; a point in the laws of the firstborn.