005a הכל ממירין פרק ראשון תמורה ה ע"א - HAKOL MEMIRIN CHAPTER ONE TEMURAH

An objection: if a man who was forced (אונס)^[1] to divorce his wife is an Israelite, he must take her back and is not flogged. And if you say that since he transgressed a prohibition of the Merciful One he is flogged, then this one too should be flogged.

הא נמי לילקי - That is: granted for Abaye, who holds that where the act takes effect one is flogged, the baraita teaches here that he is not flogged, since what he did has no effect, as he can take her back. But for Rava, who holds that it has no effect, he is flogged because he transgressed a command of the Merciful One. Here too, though it has no effect, he should be flogged for transgressing the command.

This is a refutation of Rava's view^[2]. Rava answers: that case is different, for the verse says "all his days" (Devarim 22:29)^[3]: "all his days" refers to standing by her and taking her back.

לא יוכל לשלחה כל ימיו - That is: the words "all his days" imply that for all his days he may not send her away, so that "if he divorces, he must take her back" is what "all his days" refers to. Therefore he did not transgress a command of the Merciful One. But in general, although the divorce has no effect, he is flogged for transgressing a command of the Merciful One.

Abaye's answer: had the Merciful One not written "all his days," I would have said that he only committed a prohibition, and he may take her back if he wishes or not take her back if he does not wish. This teaches us otherwise.

ולאביי - That is, for Abaye, who holds that where the act takes effect one is flogged, but where it has no effect one is not flogged. For him, why did the verse need to write "all his days"? To teach that it refers to standing by her and taking her back, so he is not flogged. This is not a negative commandment with a positive one, since he can take her back.

איסורא עבד לה - That is: he divorced her, but he is not flogged for it, and the choice is his: if he wishes he may take her back, and if he does not wish, he need not.

קמ"ל - That is: "all his days" teaches that it is his duty to take her back. "All his days" refers to standing and taking her back, so he is not flogged, and not because it is a negative commandment with a positive one.

Another version^[4]. An objection: if a man forced to divorce is an Israelite, he must take her back and is not flogged; if he is a priest, he is flogged and does not take her back. The baraita teaches: if he is an Israelite, he must take her back.

A refutation of Abaye: that case is different, for the Merciful One said "all his days, all his days," referring to standing by her and taking her back.

Rava answers you: had the Merciful One not written "all his days," I would say he is flogged and must then take her back, since this is a plain negative commandment^[5] ("he may not send her away"). Therefore Scripture wrote "all his days," to make this a negative commandment detached from a positive one, for which one is not flogged.

ורבא אמר לך - That is, for Rava, who holds that every negative commandment in the Torah has no effect for him, why did the verse need to write "all his days"? To teach that it refers to standing by her and taking her back. Obviously in every other place too, a negative commandment has no effect. Rava answers: had "all his days" not been written, I would have said he is flogged for transgressing a command of the Merciful One, and then he should take her back after being flogged.

והוה ליה אונס - That is: the reason one might think he is flogged is that this is a forced divorce, where only a plain negative commandment ("he may not send her away") exists. Therefore the verse wrote "all his days" to show that it refers to standing by her and taking her back. So he is not flogged, since it is not a plain negative commandment; it includes a positive commandment. The whole conclusion of the sugya follows the first version.

And one who separates terumah from the inferior for the superior: the Merciful One said (Bemidbar 18:29) "from all its fat, its fat,"^[6] meaning one may not lower it.

חלבו אין - That is: he separates the best from the best.

גרוע לא - That is: one may not lower it, meaning one may not separate from the inferior for the superior. This is the case that the Merciful One said "do not do it," and it is not a plain prohibition but a negative commandment that comes from a positive one.

The Mishnah: one may not separate terumah from the inferior for the superior^[7]. But if he did separate it, his terumah is terumah. Evidently the act takes effect, which is a difficulty for Rava.

תרומתו תרומה - That is: then his terumah is terumah. This is a difficulty for Rava, who says it has no effect.

A refutation of Rava: Rava answers you: that case is different, following R' Ila'a.

For R' Ila'a said: from where do we know that one who separates terumah from the inferior for the superior, his terumah is terumah? Because it says (Bemidbar 18:32) "and you shall not bear sin because of it^[8], when you lift up from it its fat": if it were not holy, what would lifting it up be a sin? From here we learn that his terumah is terumah.

Abaye's view: had the Merciful One not said "and you shall not bear sin because of it," I would have said that the verse means: one should do the mitzvah in the best way.

ולאביי - That is: for Abaye, who holds that anything the Merciful One says "do not do" takes effect. Here, in the case of separating terumah from the inferior for the superior, why was it necessary to write "and you shall not bear sin"? It implies that the act takes effect.

I would have said: the Merciful One said, do the mitzvah in the best way.

המובחר - That is: the best, the superior.

And if he does not do so, he is not called a sinner. This teaches us that he is called a sinner.

חוטא לא מיקרי - Meaning: this is only a plain prohibition.

קמ"ל - That is: "and you shall not bear sin" applies even if he is called a sinner.

And one who separates from the same kind for another kind: the Merciful One said (Bemidbar 18:29) "all the best of the oil," to give fat to this one and fat to that one.

ליתן חלב לזה וחלב לזה - That is: so that he separates a separate portion of the best of this one for that one. For example, from the same kind onto its own kind, meaning from oil onto oil. The verse writes "chelev" twice, once for wine and once for oil, to teach that one may give fat to this one and fat to that one, that is, separate from the best of this kind, as from one kind to its own, such as oil onto oil.

וחלב לזה - That is: from wine onto wine, and not from one kind onto a different kind, such as from oil onto wine and from wine onto oil.

And we learned in the Mishnah: one may not separate terumah from one kind for a different kind^[9], and if he did, his terumah is not terumah. Evidently the act does not take effect.

אין תרומתו תרומה - That is: evidently it does not take effect. This is a difficulty for Abaye, who says it does.

A refutation of Abaye: Abaye answers you: that case is different, for the verse says (Bemidbar 18:12) "the first of them^[10], the first for this one and the first for that one," and so R' Ila'a said "reshit."

שאני התם דאמר קרא ראשיתם - That is: the verse writes "reshitam" to restrict it: one may not separate from one kind onto a different kind, and therefore if he did, it does not take effect.

And so R' Ila'a said: the word "reshit."

וכן אמר רבי אילעא - That is: and so R' Ila'a said that "reshit" is written to teach that it is required.

And for Rava: had the Merciful One not said "reshit," I would have said, in the case of tirosh and yitzhar^[11] where "chelev, chelev" is written, that one may not separate from one onto the other.

ולרבא - That is: for Rava, who holds it has no effect, why was it necessary to write "reshitam"? Because it has no effect. Rava answers: "reshitam" had to be written, for had it not been, I would have said that in the case of chelev, chelev, one may not separate from one onto the other.

But in the case of tirosh and grain, grain and grain, where only one "chelev" is written, if one separates from this onto that, he is not flogged. The Merciful One wrote "reshit" to give fat to this one and fat to that one.

ה"ג אבל תירוש ודגן דחד חלב כתיב בהו - That is:^[12] between tirosh and grain only one chelev is written, as it says "all the chelev of tirosh and grain." One might have thought that one may separate from this onto that: from grain onto tirosh, from tirosh onto grain, and grain onto grain, since all kinds of grain may be separated from one onto another, for example wheat onto barley. Therefore the Merciful One again wrote "reshitam."

Some say: the case of tirosh and grain, where one "chelev" is written, if one separates from this onto that, the Merciful One wrote "reshit."

And the cherem of the kohanim: the Merciful One said (Vayikra 27:28) "it shall not be sold, nor redeemed^[13]."

And we learned in the Mishnah: a cherem of the kohanim^[14] has no redemption, but is given to a kohen. Evidently its redemption does not take effect.

חרמי כהנים - That is: the cherem of Israel, given to the kohanim.

Evidently it does not take effect.

אלמא לא מהניא - That is: if he redeemed it, he did nothing, as the Baraita teaches: there is no redemption.

A refutation of Abaye: Abaye answers you: that case is different, for the Merciful One said (Vayikra 27:28) "it is holy of holies in its very nature," so it does not leave to chullin through redemption. (The line continues on the next amud.)

בהווייתו - That is: it does not leave to chullin through redemption.

Tosafot

מיתיבי אונס שגירש אם ישראל הוא מחזיר ואינו לוקה - That is, the objection now: the reason he is not flogged is not an overriding (nitak) but because the divorce has no effect, as he must take her back. If you say that since he transgressed a command he is flogged, then this one too should be flogged. Rava's refutation works for Abaye: he is not flogged because his deeds have no effect. Tosfos asks: since the divorce has no effect, why is the man who has relations with her not liable for adultery even before he takes her back, and why is the kohen flogged and does not take her back? Answer: divorce is compared^[15] to death through a verbal analogy (as in Kiddushin ch. 1): just as death removes her from the husband's domain, so divorce does too. The sending away does not last "all his days", since he must take her back, and the Gemara asks Rava: since it has no effect, why is he flogged?

אמר לך רבא שאני התם דאמר קרא כל ימיו כל ימיו בעמוד והחזיר קאי - Rava says: that case is different: the verse says "all his days" refers to standing by her and taking her back. This is a complete overriding (nitak gamur), not a negative commandment that precedes a positive one. The verse means: he may not send her away, and if he sends her away the sending does not last all his days, since he must take her back. Even though "all his days" could refer to a divorce without sending, since it is not written "she shall be his wife all his days" and it is written "all his days" for the other one ("he may not send her away"), we learn that the prohibition is detached from the positive commandment. Here the rule is that wherever the verse indicates a positive commandment, it stands after the negative one, and this is not a negative commandment that precedes a positive one.

אם אינו קדוש נשיאות חטא למה - That is, if he divorced her under duress and sent her away, the verse says "all his days" for that. Tosfos asks: if the verse "all his days" is needed, the same holds for the Torah's law of "and you shall not bear sin", and Rabbeinu Shimshon (abbreviation as printed in the source) explains that even without the verse we would know that there is a sin of lifting up, since it says "from all its fat", which means "its fat, one may not lower it".

שאני התם דאמר קרא ראשיתם ראשית לזה וראשית לזה - Tosfos asks: in Bekhorot (end of the last chapter, 54b) Abaye derives^[16] from this verse that grain from grain is excluded. And Tosfos answers: the derashah there comes from "reshit" and the one here comes from "reshitam".

ולרבא אי לאו דאמר רחמנא ראשיתם כו' - Tosfos asks: the end of Bekhorot says that even without "reshitam" the word "kol" means that one kind of grain cannot be taken from another. And one should say that the discussion here follows the view that "reshit" is needed for grain on grain.

Notes

1. 1. Forced (אונס): a husband compelled, for example by a court, to divorce his wife. The Gemara asks whether he is flogged for the divorce.
2. 2. Rava and Abaye were Babylonian Amoraim of the fourth century whose disputes fill this sugya. Here a baraita is brought against Rava's view.
3. 3. Devarim 22:29: a man who seduced an unbetrothed girl must marry her and "may not send her away all his days". The Gemara uses these words for the case of a forced divorce.
4. 4. "Another version" (lishna acheret): the Gemara records a second version of the same discussion, with a different baraita.
5. 5. A negative commandment (lo ta'aseh) is a prohibition; a positive commandment (aseh) is an obligation. One is not flogged for a prohibition that is set alongside a positive commandment.
6. 6. Chelev (fat), in the language of Scripture, means the best part of a thing; here the best of the terumah.
7. 7. A Mishnah (general knowledge; to check the chapter): one may not separate terumah from the inferior crop for the superior crop.
8. 8. Bemidbar 18:32 concerns the terumah of the tithe that the Levites give to the kohanim: "you shall not bear sin because of it, when you lift up from it its fat".
9. 9. A Mishnah (general knowledge; to check the chapter): terumah may not be taken from one species for a different species, for example from wine onto oil.
10. 10. Bemidbar 18:12: the "reshit" (first) of oil, wine and grain is given to the kohen. The verse uses "reshitam" (the first of them).
11. 11. Tirosh is new wine (must), yitzhar is oil, and dagan is grain.
12. 12. Rashi's wording of the Gemara differs from the printed text (the Gemara reads "dagan dagan" here). The variant is noted for checking against the scan.
13. 13. Vayikra 27:28: a cherem (an object irrevocably devoted to the sanctuary) may not be sold or redeemed.
14. 14. A cherem is property devoted to the Temple and not returned to its owner. The cherem of kohanim is given to the kohanim.
15. 15. Tosfos: divorce is compared to death through a verbal analogy (gezeirah shavah) in Kiddushin ch. 1 (general knowledge). So divorce removes the wife from the husband's domain, as death does.
16. 16. Bekhorot 54b (general knowledge): Abaye's derashah from "reshit" excludes grain from grain.