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Yevamos, 90

YEVAMOS 86-90 - Ari Kornfeld has generously sponsored the Dafyomi publications for these Dafim for the benefit of Klal Yisrael.


QUESTIONS: The Gemara continues to attempt to prove that the Rabanan have the authority to uproot something that is written in the Torah. The Gemara cites a Beraisa which discusses Tashlumei Terumah -- compensation paid by a Zar for deriving personal benefit from Terumah. The Beraisa says that if a person ate Terumah Tehorah and intentionally pays Terumah Teme'ah to the Kohen, Rebbi Meir states that "Ein Tashlumav Tashlumin," his payment is not valid. The Chachamim argue and say that his payment is accepted, but he must pay a second time.

The Gemara proves from Rebbi Meir's opinion that the Rabanan are able to uproot something that is written in the Torah, because mid'Oraisa, a payment of Terumah Teme'ah is a valid payment, and it is the Rabanan who revoked the validity of the payment. The enactment of the Rabanan goes so far as to invalidate a Kidushin that the Kohen performed with the payment, and the woman whom he was Mekadesh is *not* Mekudeshes (and she may marry someone else without a Get)!

TOSFOS (DH Azil) asks a number of questions about this proof.

(a) Why does the Gemara infer that the Rabanan are able to change a Halachah in the Torah from the fact that the Kidushin of the woman whom the Kohen was Mekadesh with the Terumah Teme'ah does not take effect? There is a much simpler proof. Normally, the fruit paid as compensation for eating Terumah itself turns into Terumah mid'Oraisa. Here, Rebbi Meir states that mid'Rabanan the payment is not valid, and thus the decree of the Rabanan prevents it from turning into Terumah. The Rabanan removed the status of Terumah from the payment, even though mid'Oraisa it becomes Terumah! (That is, this case is the same as the one that the Gemara cited earlier on 89a, at the beginning of the Sugya.)

(b) The proof from the fact that the Kidushin performed with this payment does not take effect does not seem to be a valid proof at all. When it comes to monetary matters, we apply the principle of "Hefker Beis Din Hefker." How, then, can the Gemara prove from the fact that the Rabanan took the payment away from the recipient (the Kohen) that the Rabanan have the power to uproot something written in the Torah? The Gemara already taught that "Hefker Beis Din Hefker" is different and is not considered to be "uprooting something in the Torah!"

(a) TOSFOS answers that the Gemara cannot bring proof that the Rabanan are able to uproot a Torah law from the fact that the payment does not turn into Terumah according to Rebbi Meir, because Rebbi Meir did not say that outright. He said merely that the payment is not a valid payment. This might mean that the payment is returned to the payer, in contrast to the view of the Rabanan who say that the payment is kept by the recipient, and the payer must pay a second time. When the money is returned to the payer, though, perhaps it retains the status of Terumah! Just because it is not a valid payment and it is returned does not mean that it loses its status of Terumah that it obtained at the moment it was given to the Kohen.

(b) TOSFOS answers the second question by explaining that the principle of "Hefker Beis Din Hefker" cannot apply in this case. Applying "Hefker Beis Din Hefker" here would mean taking away money from the recipient (i.e. the Kohen) that legally belongs to him. The Rabanan have do not apply Hefker Beis Din Hefker to take money away from a person if it is rightfully his, and he did nothing to deserve losing the money. It was the payer who did something wrong here, and not the Kohen. Thus, "Hefker Beis Din Hefker" cannot be applied in this situation.

QUESTIONS: The Acharonim ask a number of questions on this last answer of Tosfos.

1. The MAHARSHA (in MAHADURA BASRA) asks that taking away the payment of Terumah Teme'ah from the Kohen is in no way harming the Kohen. On the contrary -- it is to his advantage, for in order to receive a payment of a higher quality (i.e. Terumah Tehorah), the Rabanan took away the Terumah Teme'ah that he originally received so that the person who paid will pay again with Terumah Tehorah! Why, then, should the Rabanan not apply "Hefker Beis Din Hefker" in this case, when it is for the Kohen's benefit? (See ARUCH LA'NER)

2. REBBI AKIVA EIGER points out that the Gemara is trying to prove that Rebbi Meir *does* hold that the payment is not a valid payment, and the Rabanan *did* take away the money from the Kohen. If it is not because of "Hefker Beis Din Hefker," then it is because the Rabanan may uproot a Torah law. According to Tosfos, who says that the Rabanan would not take away money from the Kohen since he did nothing wrong, then why should they uproot a Torah law to take it away from him? The same reason why they do not apply "Hefker Beis Din Hefker" (so as not to harm the Kohen) is also grounds for not taking away the money from the Kohen by uprooting the Torah law that says that the payment is valid! Conversely, for whatever reason they are able to uproot a Torah law in order to revoke the payment even though it is harming the Kohen, they should also be able to take away the payment from him by applying "Hefker Beis Din Hefker!"

3. How can Tosfos say that we do not apply the principle of "Hefker Beis Din Hefker" to take away something from someone who did nothing wrong? The Gemara earlier said that in the case of the married Ketanah who dies, we apply "Hefker Beis Din Hefker" to take away her estate from the father and give it to the husband, even though the father did nothing wrong!

ANSWERS: We could answer these questions as follows:
1. If the intent of the Rabanan was to make the Zar pay the Kohen the full amount, they still did not have to take away the money that was paid already to the Kohen. They could have simply required that the Zar continue to pay the Kohen more until his payment equals the value of the Terumah Tehorah that he ate. There is no need to take away the Terumah Teme'ah from the Kohen that was already paid.

(True, in the case of the person who separates Terumah from Tamei produce to exempt produce which is Tahor (89a), the Gemara did suggest that the Rabanan uprooted the Terumah in order to *remind* its owner to separate Terumah a second time from produce which is Tahor. They did not simply require him to separate additional Terumah to make up for the loss in value. However, that logic cannot be applied here. Making the Kohen return the payment to the Zar will not ensure that the Zar pays the Tashlumei Terumah in full, since returning the payment does not cause *harm* to the Zar. Uprooting the Terumah, in case of one who separates from Tamei produce for produce that is Tahor, ensures that the owner will separate Terumah again simply because he will realize that he cannot eat the *rest* of his produce until he does so, because it is Tevel mid'Oraisa if the Terumah he separated is not valid. Besides, uprooting the Terumah in the case of "Min ha'Tahor Al ha'Tamei" is done for the sake of enforcing the laws of Terumah, and not for the benefit of the Kohen, as we will explain shortly in the answer to question #2.)

2. Regarding Rebbi Akiva Eiger's question, perhaps we may suggest as follows. Tosfos does not mean to say that the Rabanan required only that the Kohen return the Terumah Teme'ah, and that they did *not* rescind its status as Terumah. Rather, Tosfos means that *we might have thought* that this is what Rebbi Meir in the Beraisa is saying ("Hava Matzi Lemeimar," as Tosfos himself puts it).

The Gemara is proving that Rebbi Meir does *not* mean that, since he says "Ein Tashlumav Tashlumin" -- the payment is not valid -- which implies, at the very least, that the fruits paid to the Kohen *cannot* be used for Kidushei Ishah. Why should the Kohen not be able to use the money? The enactment of the Rabanan is for his benefit, so that he should receive the full value of the Terumah that the Zar ate. What point is there in taking away the money from him, either through "Hefker Beis Din Hefker" *or* through uprooting a Torah law?

The Gemara is showing that it must be that Rebbi Meir means *something else* when he says that the payment is not valid. He must mean that the Rabanan indeed revoked the status of Terumah from the payment such that the Chulin Teme'im that the Zar gave to the Kohen does *not* become Terumah in the first place. Consequently, the Kohen must give it back because is was given to him by mistake -- that is, it is not a valid Tashlumei Terumah, and the Zar only gave it to him because he thought it *was* Tashlumei Terumah. Since, if the Terumah is uprooted, the payment was not the Kohen's in the first place, we are not directly *taking anything away from the Kohen* by uprooting the Terumah from the Tashlumim. In this sense, uprooting the Tashlumei Terumah is identical to the case in which the Rabanan uprooted the Terumah that was taken from Tamei produce to exempt produce that was Tahor (89a). There, too, if the owner gives the Kohen the invalid Terumah the Kohen must return it. He indirectly loses Terumah because of the Takanah, since what was separated improperly remains Tevel.

(Another way of saying this is, if the Takanah was that the Terumah does not become Terumah in the first place, it was not enacted simply for the benefit of the Kohen, so that he should receive the full value of what was eaten. Rather, it was enacted to protect the honor of Terumah. By paying Tashlumei Terumah with fruits that are Tamei -- and less valuable than the Terumah he ate -- the Zar is degrading the honor of the Terumah that he ate, and that is why the Rabanan enacted that the payment is not valid. If the Kohen loses money indirectly through this Takanah -- and perhaps even if he would lose money directly -- it does not stop the Rabanan from enacting such a Takanah, since they felt it important to ensure that proper respect is given to Terumah.)

3. The reason the Rabanan applied "Hefker Beis Din Hefker" and took away the Ketanah's inheritance from the father was because he willingly married his daughter to a man while she was a Ketanah. He had a choice in the matter, and he chose to give her away, knowing that he will thereby lose the right to inherit her. Therefore, the Rabanan may apply "Hefker Beis Din Hefker" to take away the money that he otherwise would have been entitled to receive. Here, though, the Kohen had no choice in the matter, and thus the Rabanan did not take away his money through "Hefker Beis Din Hefker." (In addition, the Gemara thinks at this stage that the Takanah is only being made for the Kohen's own benefit, so the Rabanan certainly are not interested in causing *harm* to the Kohen through their Takanah.)
(M. Kornfeld)


OPINIONS: The Gemara says that the Rabanan may override the Mitzvah of Tzitzis in a garment made of linen because they are doing so "b'Shev v'Al Ta'aseh" -- by a passive infraction (by requiring that a person *not* do something), and not through a "Kum v'Aseh."

Why is this a case of "Shev v'Al Ta'aseh?" When a person dons a four-cornered garment that has no Tzitzis, he is doing an *act* of donning a garment without Tzitzis! Why is it considered a case of "Shev v'Al Ta'aseh?"

(a) TOSFOS (DH Kulhu) and other Rishonim explain that when the Torah commands us to wear Tzitzis, the Mitzvah is to place Tzitzis on a garment which one is *already wearing*. Before one dons the garment, there is no Mitzvah to put Tzitzis on it (according to the opinion that the Mitzvah of Tzitzis is a "Chovas Gavra," and only applies to Tzitzis that are worn and not to Tzitzis that are in a box). Therefore, when one puts on a four-cornered garment that has no Tzitzis, he has not done any act of Isur at all. Only after he is wearing it and he still does not start tying Tzitzis onto it does he transgress the Isur, "b'Shev v'Al Ta'aseh," since he is obligated to tie Tzitzis on the garment and he is passively not attaching them. (If he would put on a four-cornered garment with no Tzitzis and then immediately start tying the Tzitzis he would be doing no Isur at all.)

TOSFOS HA'ROSH quotes the RITZBA who says that based on this, if one of the four Tzitziyos becomes removed from the garment on Shabbos, one is permitted to wear the garment even l'Chatchilah. Putting on the four-cornered garment is not an Isur, and after he puts it on he is unable to tie the Tzitzis to it because of the Melachah of tying on Shabbos. (Of course, he is not permitted to walk into a Reshus ha'Rabim or Karmelis wearing the garment, because he is carrying the other three Tzitzis, since they do not qualify for the Mitzvah. But inside his house he is permitted to wear the garment and even to put it on l'Chatchilah; see also SHITAH MEKUBETZES in Menachos 37b, #4.)

(b) The SHA'AGAS ARYEH (#32) disputes the explanation of Tosfos and his ruling for a number of reasons.

1. As Tosfos himself points out, the blessing which one recites upon donning a garment with Tzitzis -- "l'His'atef ba'Tzitzis" -- implies that the Mitzvah is to actively *wrap oneself* in Tzitzis, and not to place Tzitzis on the garment once it is already being worn.

2. The Gemara in Shabbos (132b) says that a Mitzvas Aseh is only Docheh a Lo Ta'aseh in a manner "similar to the way Tzitzis is Docheh the Isur of Kil'ayim;" which includes the clause that at the moment one transgresses the Isur, he already fulfills the Aseh. According to Tosfos, though, the Isur of Kil'ayim is transgressed *before* fulfilling the Mitzvah of Tzitzis. Kil'ayim is transgressed through an act of "Kum v'Aseh," by actively donning a garment of Kil'ayim (as Tosfos proves from the Gemara in Berachos 20a). One fulfills the Mitzvah of Tzitzis only *after* one is already wearing the garment. Consequently, one transgressed the Isur of Kil'ayim *before* fulfilling the Mitzvah of Tzitzis!

3. The SHA'AGAS ARYEH suggests further that any prohibition that can be transgressed only if it is *preceded* by an action is called an act of "Kum v'Aseh," even if no action is done at the time that the transgression is actually done. Therefore, even if there is no Mitzvah of Tzitzis until the garment is donned, wearing a Tzitzis-less garment should still be considered uprooting a prohibition "b'Kum v'Aseh!" He proves this from examples of Isurim that are transgressed without an action, and yet Malkus (which is normally administered only for *actively* transgressing a prohibition, "Lav she'Yesh Bo Ma'aseh") is administered.

For example, the Gemara in Nazir (40a) says that if a Nazir was carried inside of a box into a cemetery (according to the view that a box separates between him and the Tum'ah), and then another person came and removed the cover of the box, if the Nazir does not leave the cemetery immediately but stays in his place, he will transgress the Isur of becoming Tamei in a cemetery *and receive Malkus*. We see from that Gemara that the action of going into the cemetery -- even though done in a permissible manner -- makes the Isur into a "Lav she'Yesh Bo Ma'aseh." Here, too, putting on the garment should make the prohibition of wearing a Tzitzis-less garment a prohibtion that is accomplished through a "Kum v'Aseh."

Therefore, the Sha'agas Aryeh suggests a different answer to the question of Tosfos. He says that any time an act is forbidden not because of what *is* done, but because of what is *not* done, it is called a "Shev v'Al Ta'aseh."

In the case of wearing a four-cornered garment without Tzitzis, what is wrong is not that the person is *wearing* the garment without Tzitzis, but that he has *not tied on* the Tzitzis. Even though the act of putting on the four-cornered garment is forbidden when it has no Tzitzis, what is causing the prohibition is the fact that he did not put on Tzitzis on the garment. This is in contrast to the Isur of Kil'ayim, which is considered an infraction "b'Kum v'Aseh," since the person who puts on a garment of Kil'ayim transgresses the Isur not because he is not removing the Kil'ayim from upon him, but because he has actively donned a garment of Kil'ayim.

Similarly, the Isur of a Nazir in a cemetery is that a Nazir may not *be* in a cemetery (for that is how the Torah described the Isur), and not that a Nazir *must be outside of* a cemetery. For this reason, the Isur of a Nazir entering a cemetery is considered a "Kum v'Aseh," and Malkus may be administered.

(According to this reasoning, it would certainly be prohibited to don a four-cornered garment without Tzitzis even on Shabbos.)

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