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Makos, 18

MAKOS 16-20 - Ari Kornfeld has generously sponsored the Dafyomi publications for these Dafim for the benefit of Klal Yisrael.


QUESTION: The Gemara discusses various principles that have been mentioned earlier in the Masechta, such as "Ein Onshin Min ha'Din" and "Ein Mazhirin Min ha'Din." The Gemara asks that the Mishnah (17a) seems to contradict the rule of "Ein Onshin Min ha'Din." The Mishnah states that a Kohen who eats the fruits of Bikurim before the owner has read the Parshah of Bikurim, or one who eats Kodshei Kodashim outside of the confines of the Beis ha'Mikdash, is punished with Malkus. This punishment is not written explicitly in the Torah, though, but rather it is apparently derived through a Kal v'Chomer! The Gemara answers that the primary source for Malkus in these cases is not a Kal v'Chomer, but rather a seemingly extra verse in the Torah. The Torah first commands, "The place that Hashem, your G-d, will choose to rest His name, there you shall bring... your Olah offerings..., your tithes..., and all of your choicest pledges that you will pledge to Hashem" (Devarim 12:11)." That verse teaches that these things must be brought to Yerushalayim. The Torah then prohibits eating these things *outside* of Yerushalayim, when it says, "You may not eat in your settlements the tithe of your grain and of your wine and of your oil, the firstborn of your cows and your sheep, all of your pledges [to Hekdesh] that you will pledge, and your free-will offerings and what you separate as Terumah with your hands" (Devarim 12:17). Why does the Torah repeat the list of objects in the second verse? It could have said merely, "You may not eat in your settlements *all of these things*." Why does the Torah bother to list all of these items again after expressing the prohibition? From here we learn that the Torah is specifying that each of these things has its own prohibition of, "You shall not eat...."

However, this is problematic in light of another rule. When the Torah places together a number of actions and includes them all under one statement prohibiting them, none of these actions are subject to a punishment of Malkus. This type of prohibition is called a "Lav shebi'Chelalos." A "Lav shebi'Chelalos" is a single Lav that prohibits many different acts. Since grouping all of the items mentioned in the first verse (Devarim 12:11) would make each one a "Lav shebi'Chelalos," there is good reason for why the Torah does not include them all under one statement of prohibition! How, then, can the Gemara say that the second verse (Devarim 12:17) is extra?

ANSWER: RASHI answers that the Torah here does not mention one item which includes all of the others. Each item is listed separately, and cannot refer to any other item, and thus when the Torah gives the prohibition, it is as if it is written with regard to each item separately. This is not a "Lav shebi'Chelalos." A "Lav shebi'Chelalos" is when the verse prohibits one item which includes all of the items. Rashi gives, as an example of a Lav shebi'Chelalos, the prohibition of eating the Korban Pesach in any manner other than roasted. There is no Malkus for transgressing this Isur of eating the Korban in any way other than "roasted on a fire," because that Lav includes many types of ways of preparing the Korban and does not forbid any specific way of preparing the Korban. Since it is so broad, it is called a "Lav shebi'Chelalos." Similarly, Rashi says that the prohibition for a Nazir to consume any item made from grapes of the vine is a "Lav shebi'Chelalos," since it includes all grape products.

TOSFOS in Bava Metzia (115b) questions Rashi's definition of a "Lav shebi'Chelalos." The Torah says that the Chelev (certain types of fats) of an ox, sheep, and goat cannot be eaten. The Gemara in Kerisus (4a) teaches, according to the Rabanan, that this prohibition is a "Lav shebi'Chelalos," and therefore the transgressor receives only one set of Malkus. According to Rashi's definition of a "Lav shebi'Chelalos," the Chelev of each animal should be prohibited by a separate Lav, because each animal is listed separately!

Tosfos answers this question on Rashi and says that the Isur of Chelev is different. The Torah prohibits eating the Chelev of all of these animals, and thus all types of Chelev are included in the statement not to eat Chelev. Regarding the prohibitions mentioned in our Mishnah, the Torah does not command that a certain item may not be eaten, and then proceed to list various types of that item. Rather, the Torah says that one may not eat *entirely different* items outside of their designated area -- Bikurim, Kodshei Kodashim, Kodshim Kalim, etc. Each item is entirely different than the other. Such a variation of items shows that the Lav applies to each item individually.

The MARGANISA TAVA points out that Tosfos to our Gemara does not seem to agree with the answer of Tosfos in Bava Metzia. Tosfos here asks why the verse needs to mention Ma'aser again if it was already mentioned in the earlier verse. According to Rashi's understanding, this is no question; Ma'aser needs to be mentioned again in order to warrant a punishment of Malkus! The Marganisa Tava explains that Tosfos here does not agree with the answer of Tosfos in Bava Metzia. Tosfos here apparently learns that the Gemara in Kerisus and the Gemara here differ regarding whether a Lav which specifies many types of items is called a "Lav shebi'Chelalos" or not (and our Gemara maintains that it is *not*).

The ARUCH LA'NER explains that according to Tosfos the Gemara in Kerisus and the Gemara here are *not* arguing. Rather, the difference lies in the opinion of Rava. Rava holds -- like the minority opinion -- that a "Lav shebi'Chelalos" *is* punishable with Malkus (see Pesachim 41a and Insights there). Since the Gemara is discussing the opinion of Rava (who holds like Rebbi Shimon), there is no practical ramification from the fact that the prohibitions here fall in the category of a "Lav shebi'Chelalos." (Y. Montrose)


QUESTION: Rebbi Eliezer states that it is necessary to place the fruits of Bikurim next to the Mizbe'ach in order to fulfill the Mitzvah of Bikurim. In contrast, reading the Parshah of Bikurim, while it is a Mitzvah, is not essential to fulfilling the Mitzvah of Bikurim; if one fails to read the Parshah of Bikurim, according to Rebbi Eliezer, one may still fulfill the Mitzvah of Bikurim.

In a different statement, Rebbi Eliezer says that if a person separates his Bikurim before Sukos but does not bring the fruit to the Beis ha'Mikdash until after Sukos, he should leave them to rot. Apparently, this is because one cannot read the Parshah of Bikurim after Sukos. This statement implies, however, that the reading of the Parshah is an integral part of the Mitzvah, and without it one cannot fulfill the Mitzvah of Bikurim at all!

The Gemara reconciles the two statements of Rebbi Eliezer with the principle of, "Kol ha'Ra'uy l'Vilah, Ein Bilah Me'akeves Bo; ve'she'Ein Ra'uy l'Vilah, Bilah Me'akeves Bo." This rule teaches that it is possible for an act which is not an integral part of a Mitzvah to still be an obstacle to the fulfillment of the Mitzvah. If part of the Mitzvah cannot apply at all in a certain case, then that component of the Mitzvah prevents the fulfillment of the entire Mitzvah. If that part *can* be done but just happens not to have been fulfilled, then it does not impede the fulfillment of the entire Mitzvah. This explains the statements of Rebbi Eliezer. Rebbi Eliezer maintains, as he says in his first statement, that the reading of the Parshah is not integral to the Mitzvah of bringing Bikurim. However, if a person is in a situation in which he *cannot* read the Parshah, such as when he delayed the bringing of the Bikurim until after Sukos, the inability to read the Parshah impedes the fulfillment of the entire Mitzvah.

This answer, however, seems to be at odds with the Gemara elsewhere. The Gemara in Gitin (47b) and Bava Basra (81b) states that one who sends his Bikurim to Yerushalayim with a Shali'ach who dies on the way is obligated to bring his Bikurim, but he does not read the Parshah of Bikurim. This is because the Parshah is read only when the Bikurim is brought from the place of origin, to Yerushalayim, by the same person, as derived from the verse (Devarim 26:2).

According to our Gemara, though, in such a case -- when the Shali'ach bringing the Bikurim dies -- the Bikurim should be left to rot, since it is a situation in which one cannot possibly read the Parshah of Bikurim. How are we to reconcile our Gemara with the Gemara in Gitin and in Bava Basra?


(a) The RITVA in Bava Basra (81b) answers that in the case of the Shali'ach, the rule of "Kol ha'Ra'uy l'Vilah" mentioned in our Gemara does not apply. In that case, the owner still has the option to bring the Bikurim back to his home, and then embark on a new trip to Yerushalayim, thereby making him the sole carrier of the Bikurim and enabling him to recite the Parshah of Bikurim. Only in a case in which there is no possible way to read the Parshah of Bikurim, such as in the case of our Gemara, does the rule of "Kol ha'Ra'uy l'Vilah" impede the fulfillment of the entire Mitzvah.

(b) TOSFOS answers based on the Yerushalmi that teaches that since the fruit was harvested originally with intent to send the Bikurim with a Shali'ach, the Parshah of Bikurim was not intended to be read in the first place. This is because the Mishnah in Bikurim states that a Shali'ach does not read the Parshah of Bikurim, since the Shali'ach cannot declare the words, "I have brought the first of the fruits of the land which You, Hashem, have given to me" (Devarim 26:10), because the land does not belong to him. The rule of "Kol ha'Ra'uy l'Vilah" applies only when one originally could have recited the Parshah of Bikurim on bringing these fruits and then lost the opportunity because of the circumstances. In the case of our Gemara, the person delayed bringing his Bikurim until after Sukos, rendering his Bikurim unfit. In the case in the Gemara in Gitin, the Parshah of Bikurim was never supposed to be read, and therefore the Bikurim can still be brought without reading the Parshah.

This answer, however, seems to contradict a fourth Gemara. The Gemara in Yevamos (104b) states that a mute man and woman cannot perform Chalitzah, since they cannot read their respective parts of the Parshah of Chalitzah. According to the logic of Tosfos, this should not be a problem, because there never was any expectation that they would read their parts.

The OR SAME'ACH (Hilchos Bikurim 4:13) answers this question on Tosfos. He explains that Bikurim differs from Chalitzah, as there are two different references to Bikurim in the Torah. The verse in Parshas Mishpatim (Shemos 23:19) does not even mention the requirement of reading the Parshah of Bikurim. The Mechilta learns from that verse that women and converts bring Bikurim even though they cannot read the Parshah of Bikurim. The verse there apparently teaches that there are people who may bring Bikurim even though they cannot read the Parshah of Bikurim. Their situation is different from the situation of a person who *could* read the Parshah originally and then became unable to read it. Chalitzah, in contrast, has no such Halachah, and therefore *all* people who cannot read the Parshah of Chalitzah -- regardless of the reason -- are unable to perform Chalitzah.

(c) The OR SAME'ACH (ibid.) himself offers another answer to all of these questions. He says that there is a difference between not having something to read, and not having the ability to read. In the case of the Shali'ach who brings Bikurim, the Shali'ach does not read the Parshah Bikurim *not* because he does not have the ability to read it, but rather because he does not have any verses to read! The Parshah of Bikurim says, "I have brought the first of the fruits of the land which You, Hashem, have given to me," and since the Shali'ach does not own the land, he cannot recite this statement. It is as if the Torah is saying that the part of the Mitzvah of Bikurim that requires reciting the Parshah does not apply to him, since there is nothing for him to read. In the case of our Gemara and in the case of Chalitzah, the people involved must read the parts that apply to them in totality. The problem is that they do not have the ability to read those parts. Their inability to read the Parshah of Bikurim is not because it does not apply to them; in the case of bringing Bikurim after Sukos, the Parshah cannot be read because it must be read out of happiness, and after Sukos the happiness of having the first fruits has dissipated. Similarly, in the case of Chalitzah, the Parshah entirely applies to the person, but since the person is mute he (or she) cannot read the Parshah. Therefore, it is the inability to read that stops him from performing the Mitzvah. (Y. Montrose)

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