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Pesachim 32


QUESTION: The Gemara discusses the form in which a person is required to pay back Tashlumei Terumah (when a non-Kohen accidentally consumed Terumah). We know that one must give the Kohen a payment of *fruit* which itself can be turned into Terumah upon payment. Does one pay the Kohen the actual *volume* of fruit that was consumed ("l'Fi Midah Meshalem"), or does one pay fruits that are presently worth the *value* of the Terumah that was consumed ("l'Fi Damim Meshalem")?

The Gemara finds only one case where there would be a practical difference whether one pays "l'Fi Midah" or "l'Fi Damim:" a person ate one Se'ah of Terumah when it was worth one Zuz, and now it is worth four Zuzim. If Tashlumei Terumah is paid "l'Fi Midah," then one must give the same amount of fruit that he ate (one Se'ah, or four Zuzim worth of fruit). If Tashlumei Terumah is paid "l'Fi Damim," then one pays the value of the fruit at the time that he ate it -- just one Zuz worth of fruit (considerably less than the fruit that he actually ate).

Why did the Gemara say that this case is the only practical difference whether one pays "l'Fi Midah" or "l'Fi Damim?" There are several other practical differences that the Gemara could have suggested:

(1) When the Se'ah of Terumah was worth four Zuzim at the time he ate it, and now it is worth one Zuz, the Gemara says that regardless of whether one must pay "l'Fi Midah" or "l'Fi Damim," he has to pay four Zuzim. REBBI AKIVA EIGER (in Gilyon ha'Shas) points out that although it is true that whether he pays l'Fi Damim or l'Fi Midah one must pay the same total amount to the Kohen from whom the Terumah was stolen -- i.e., he pays back a total value of four Zuzim -- nevertheless, there should be a difference between the two in *how* one pays, as follows:

When one pays Tashlumei Terumah, he is actually doing two things: (a) he is reimbursing the owner (Kohen) for his property, which is really the same as the normal law of Gezeilah, paying for stolen property, and (b) he is replacing Terumah that was lost from the world by offering other fruit that will become Terumah upon payment. The question of l'Fi Midah or l'Fi Damim Meshalem should only apply to the second part of the payment (replenishing lost Terumah, or Tashlumei Terumah) and not to the first (Tashlumei Gezeilah). Therefore, in the case we are dealing with, since he ate one Se'ah of Terumah fruit, he must pay back one Se'ah of Terumah fruit as Tashlumei Terumah -- which now happens to be worth only one Zuz. If he pays l'Fi Midah, he only has to pay one Zuz worth of fruit that will turn into Terumah, and a fifth of a Zuz as the Chomesh. It is true that he must also pay the remaining three Zuzim which he owes for *stealing* from the Kohen -- but this, as with every Tashlumei Gezeilah, may be paid with cash.

If, however, one must pay "l'Fi Damim," then the Torah's requirement to replace Terumah with other fruit that will become Terumah applies to the entire *value* of what was consumed, and not just to the volume. Therefore, in the Gemara's case one must give back *edible fruit* (and not money) worth four Zuzim, and a Chomesh of four Zuzim!

(b) TOSFOS REBBI AKIVA EIGER (Mishnayos Terumos 6:4) asks that the Gemara could have said another simple difference, which would apply even if it the stolen fruit did not change in value. If one must pay back "l'Fi Midah," and one ate four Zuzim worth of Terumah, then one must pay back four Zuzim worth of fruit. But if one must pay "l'Fi Damim," then one may give the Kohen a *fraction* of the volume of fruit which he ate, since he pays back with fruit which is Chulin. Chulin fruit is worth more than Terumah fruit, because it has many more buyers. Paying a smaller amount of Chulin fruit which is the same value as the Terumah that was eaten should suffice if one is only required to pay back the *value* ("l'Fi Damim") of what one ate, but it should not suffice if one must pay l'Fi Midah.

(c) The SEFAS EMES asks that another obvious difference should have been mentioned in our Sugya. What will be the Halachah when a non-Kohen ate Terumah that *had not yet been given* to a Kohen. In such a case there is no obligation to pay Tashlumei Gezeilah, since the Terumah was not stolen from any particular Kohen (i.e. it was Mamon sh'Ein Lah Tov'in).

If one ate such Terumah fruit when it was worth four Zuzim and it went down to one Zuz, the Gemara cannot say that he must still pay back fruit worth four Zuzim in order to reimburse the Kohen, because there is no Kohen to reimburse! Consequently, if one must pay "l'Fi Damim," then one must pay fruit worth four Zuzim, since the value of the fruit that he ate was four Zuz, and that is the *value* of the Terumah which he ate and which he must replace. If one must pay "l'Fi Midah," though, one pays only one Zuz worth of fruit (that is, one Se'ah which is now worth one Zuz), because that is the *amount* of Terumah which he ate and which he must replace. He does not have to pay the additional three Zuzim for stealing from the Kohen, because there is no Kohen to whom to pay.

Why did the Gemara not suggest any of these three obvious scenarios in which there is a difference whether one pays l'Fi Midah or l'Fi Damim?

ANSWER: The SEFAS EMES answers that all of these questions are based on one premise. These questions are based on the understanding that *reimbursing what was stolen* and *replacing Terumah* are two completely different concepts. However, perhaps the Gemara understood that the two concepts are one and the same. When the Torah tells us how to replace the Terumah that was eaten, it is telling us how to *compensate the Kohen* for what was eaten. It is rewriting the Halachos of "v'Heshiv Es ha'Gezeilah" for the particular case of Terumah eaten by a non-Kohen.

That is, normally the rule is that a thief may return the value of what was stolen by paying either cash, or "Shaveh Kesef," anything of value. He need not refund the owner the same type of article as was stolen. When it comes to Terumah, the Torah is more strict, and specifies that one must reimburse the owner (i.e., the Kohen) with actual Terumah produce (although the Torah was not so strict as to require tha he return the exact same *type* of produce that was stolen.) Similarly, although a thief normally does not have to reimburse the owners for "Mamon sh'Ein Aleiha Tov'in," in the case of a non-Kohen who eats Terumah unintentionally, the Torah was more stringent and required that even Mamon sh'Ein Aleiha Tov'in must be reimbursed to its owner/s. The opinion who holds "l'Fi Midah Meshalem" adds an additional stringency: the reimbursement must *not only* cover the *value* of what was stolen, it must also replace the volume of what was stolen.

This answers all three questions, as follows:

(1) If the one Se'ah of Terumah fruit was worth four Zuzim when the non- Kohen ate it and the value of one Se'ah of fruit went down to one Zuz, since one is obligated to reimburse the Kohen with four Zuzim because of Gezeilah, *all four Zuzim* must be paid with edible fruit (Tashlumei Terumah). That is, the laws of Tashlumei Terumah apply to *any* money which is given to the Kohen as compensation for the theft. (SEFAS EMES)

(2) Even if one must pay "l'Fi Damim," one may not pay it back with a smaller amount of *Chulin* which is worth the same as the larger amount of Terumah that one ate, because doing so will not compensate the Kohen for his loss. Since the fruit will become Terumah as soon as the Kohen receives it, its value will be far less than what was stolen from him (since it is a smaller amount than what was eaten). Therefore, it is obvious that according to *all* opinions, one must first and foremost compensate the Kohen. The payment must be such that when it turns into Terumah in the hands of the Kohen, it will be worth the same amount as the Terumah that was eaten, and thus the quantity of Chulin fruit that one pays back will have to be the same quantity as the Terumah that was eaten. (M. Kornfeld)

(3) Even if one takes Terumah of his own and eats it, he must still pay what it was originally worth before it went down in price, since the Torah considers him to be a thief. That is, even though, normally, one does not have to reimburse the Kohanim for Terumah that was not owned by a specific Kohen ("Mamon sh'Ein Lo Tov'im"), here, the Gezeiras ha'Kasuv obligates the theif to reimburse the Kohenim. He must pay for what he stole like a regular thief, based on the original value of what was stolen, even though there is no claimant. (SEFAS EMES)

(The only problem with this approach is that Rashi (DH Kol Heicha) seems to provide strong support for Rebbi Akiva Eiger's thesis, that Tashlumei Terumah and Tashlumei Gezeilah are *two* distinct and separate obligations. Rashi writes that "even though a person is forgiven for eating Terumah by paying just one Zuz to the Kohen [in a case where the Terumah was worth 4 Zuz when stolen, and only one Zuz now], nevertheless, he must still reimburse the Kohen for what was taken from him...." It seems clear from Rashi that the Tashlumei Terumah is indeed not connected to the reimbursement of the Kohen. The Sefas Emes however suggests that Rashi may only mean that the theif *would have* been forgiven for his crime by paying the lesser amount, *had it not been* for the fact that he must reimburse the Kohen before he is forgiven.)


QUESTION: The Gemara cites a Beraisa which teaches that one is Chayav to bring a Korban for Me'ilah only when he benefits from something Kodesh accidentally, but not intentionally. The Beraisa says that we might have assumed that one is not Chayav to bring a Korban for Me'ilah done intentionally because of a Kal v'Chomer from other Isurim: one is not Chayav to bring a Korban for other Isurim done intentionally which are Chayav Kares, so certainly one is not Chayav to bring a Korban for Me'ilah done intentionally, which is only Chayav Misah, which is less severe than Kares.

The Beraisa responds to this that there is another way of looking at things: Me'ilah, which is Chayav Misah, certainly requires a Korban when done intentionally, while other Isurim, which are *merely* Chayav Kares, which is less severe than Misah, have no Korban when done intentionally. The Gemara goes on to point out the obvious contradiction in the Beraisa -- is Kares more sever a punishment, or Misah?

We know that the punishment of Kares includes the death of one's children, but Misah affects only the transgressor himself. In addition, when being punished with Kares, a person dies between the ages of 50 and 60, but when punished with Misah, although a person passes away before his destined time, he can even be older than 60. (See Background to the Daf)

If so, why did the Gemara have to ask that the Beraisa *contradicts* itself? It should have simply pointed out that the latter part of the Beraisa is stating an illogical statement, since Misah cannot be more severe than Kares? It seems as though the Gemara is not bothered by the illogical suggestion that Misah is more severe than Kares, only by the contradiction! (TOSFOS RABEINU PERETZ)


(a) TOSFOS RABEINU DAVID says that it is true that the Gemara could have asked what the logic is to even suggest that Misah is more severe than Kares, but it preferred to ask a better question. It showed that there was an internal contradiction within the Beraisa itself.

(b) TOSFOS RABEINU PERETZ quotes RABEINU SHMUEL of Evreux, who cites a Yerushalmi that states that Misah is more severe than Kares in one respect. When one is punished with Misah, all of his possessions are also destroyed. When one is punished with Kares, though, his possessions are spared. This is also the opinion of RABEINU YONAH in Sha'arei Teshuvah (section 3, fourth level): when it comes to Misah, the punishment includes the slow passing of a person's animals and possessions, "Alah Maves b'Chaloneinu."

Perhaps this phenomenon may be understood as follows. The Gemara (Sanhedrin 48b) teaches that "When the court kills a person (who is deserving of the death penalty), his belongings pass on to his legal heirs; however when the king kills someone for disobeying his word, the king takes the person's property as well." Kares is a punishment dealt out by the "heavenly court," often because the earthly courts are not able to deal with the matter (because the sinner did not have Hasra'ah etc.). Part of the framework of Torah punishments, it is in the same category as Misas Bes Din. Misah b'Yedei Shamayim, though, is punishment "at the hands of heaven," i.e. it is a direct punishment from Hashem for offending His majesty in some manner, comparable to those killed for offending the king. It is prescribed only to those who defile His chosen portion or sanctuary. (Examples of this are a Zar who eats Terumah Bikurim or Chalah, a Kohen Tamei who eats Terumah, one who eats Tevel from which Terumah was not separated, misusing Hekdesh according to Rebbi, improper behavior in the Mikdash, such as a Zar who serves or a Kohen who enters the Kodesh ha'Kodoshim for no reason, etc. -- as listed in Rambam Hil. Sanhedrin 19:2. Interestingly, even the instances of Misah b'Yedei Shamayim "d'Rabanan" that Rabeinu Yonah, ibid., lists, fit neatly into this category.)

When Misah is administered, the person is, in a sense, being killed for offending the King. Just as when one offends a king of flesh and blood, the person's heirs lose the family fortune as Hashem, the King, confiscates the guilty party's property and takes back what was always his. (M. Kornfeld)

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