THOUGHTS ON THE DAILY DAF
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Rosh Kollel: Rav Mordecai Kornfeld
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Bava Metzia, 91
BAVA METZIA 91-95 - Ari Kornfeld has generously sponsored the Dafyomi
publications for these Dafim for the benefit of Klal Yisrael.
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.
2) TWO PUNISHMENTS FOR ONE ACT OF MUZZLING
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)
(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
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)
(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.
3) HALACHAH: WHICH FRUIT MAY A WORKER EAT
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
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)