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Pesachim 48


QUESTION: The Gemara says that it is possible for a person to transgress five Lavim (and get five sets of Malkus) by (1) burning the wood of Hekdesh to (2) cook a Gid ha'Nasheh on Yom Tov, (3) with milk, and (4, 5) eating it. However, if one is using the wood of Hekdesh, he should be liable for a sixth Lav as well -- benefiting from Hekdesh (Me'ilah)! Why does the Gemara not ask this question?


TOSFOS (Makos 22a) and TOSFOS RABEINU PERETZ here answer that it is possible to derive benefit from the wood of Hekdesh without being Chayav for Me'ilah -- by using less than a Shaveh Perutah's worth of Hekdesh. The Isur of burning Hekdesh, though, applies to even less than a Shaveh Perutah.

QUESTION: RASHI (DH Aval Hacha) cites the explanation of his teachers, who explained that the principle of "Ho'il" can be applied to forbid owning Chalah which is Chametz on Pesach. Although the Chalah does not legally belong to him once he has separated it from the dough, since he can be "Sho'el" on it and remove its status of Chalah and thus become the true owner of the Chametz, it is considered his even now. Rashi disagrees and says that according to that explanation, one should be Chayav for Bal Yera'eh even for having Chametz of *Hekdesh* is one's possession, since ("Ho'il") if he wants, he can redeem it and make the Chametz his. The Gemara (5b), though, clearly states that one does not transgress Bal Yera'eh for having Chametz of Hekdesh in his possession!

Why does Rashi ask, according to his teachers, that the logic of "Ho'il" should also apply to Hekdesh because one can *redeem* it? He should have simply asked that "She'eilah" applies to Hekdesh just like it applies to Chalah -- one can be Sho'el on Hekdesh and make it his again! (TOSFOS YOM TOV)


(a) The TOSFOS YOM TOV answers that we find in Maseches Nazir (9a) that Rebbi Eliezer -- who is the Tana in our Mishnah -- is of the opinion that "Ein She'eilah l'Hekdesh" -- the status of Hekdesh of an item cannot be revoked. Therefore, Rashi had no choice but to discuss *redeeming* Hekdesh.

(b) The RASHASH answers that She'eilah will only work for Hekdesh before the Gizbar (the treasurer of the Beis ha'Mikdash funds) receives the item. After the Gizbar receives it, though, one cannot be Sho'el on it, but only redeem it (see Tosfos 46b, DH Ho'il (#2)). Rashi says that if he wants to he may redeem it, because by redeeming it one can revoke the status of Hekdesh in *any* situation, even if it has already reached the Gizbar.

(c) TOSFOS RABEINU PERETZ points out that She'eilah will put the object in his possession (through the mechanism of Ho'il) only for the person who was Makdish the item to begin with. If someone else was Makdish the Chametz it will not be considered his -- unless we say the "Ho'il" that Rashi suggests here, that he has the ability to redeem the object from Hekdesh. Rashi is asking that *all* Hekdesh should be forbidden to have in one's home during Pesach, even for the person who was not Makdish it.

With this in mind, Rabeinu Peretz suggests an answer to Rashi's questions on his teachers' explanation. Perhaps "Ho'il" only applies if one could be Sho'el on the Hekdesh; "Ho'il" does *not* make one Chayav for Chametz that can be *redeemed*. The reason for this, suggests Rabeinu Peretz, is because Pidyon (redeeming Hekdesh) requires that money be given to the Beis ha'Mikdash in return for the Hekdesh. This puts the Hekdesh further away from becoming one's possession and the logic of "Ho'il" will not be able to make it his. (Tosfos 46b suggests other ways of justifying the explanation of Rashi's teachers.)

The TOSFOS HA'ROSH also differentiates between redeeming and being Sho'el on Hekdesh, but with a more poignant logic. When one redeems Hekdesh which is Chametz, only at that *point* does it become the property of the person who redeems it, and at that point he will have to worry about the Isur of Chametz. Before he redeems it, though, he is doing nothing wrong by having Chametz of Hekdesh in his possession. In such a situation Ho'il cannot make it his; what one might do *later* does not affect the status of the Hekdesh *now*. This is not so when it comes to She'eilah. When one is Sho'el on an item, She'eilah works *retroactively*. When one is Sho'el on the Chalah, the dough is considered to be his property *back from the time that it was separated* as Chalah. Therefore, when one baked the Chalah into Chametz, he was actually baking his own Chametz, and thus it is forbidden have Chalah in one's possession on Pesach. Only in such a case will Ho'il cause the Chametz to become his, even before he is Sho'el on it.


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