Bava Metzia 91a — the Talmud in English

For we learned: “All may perform substitution.”

Not that a person is permitted to perform substitution,

for one who consecrates an animal cannot exchange it for another. Rather,

if he performed substitution, the substitution is effective,

and his substitution was effective in imposing sanctity upon the other animal, even though, with regard to the first animal, his substitution was not effective in removing its sanctity.

And he receives forty lashes,

because he transgressed the prohibition “He shall not exchange it,” even though his entire act of exchange was through speech, for he said: “This one in place of that one.”

You have thereby learned that speech is considered an act for which one is lashed.

He said to him

Reish Lakish to Rabbi Yohanan:

This is according to whom?

According to whose method is the Mishna that obligated one who performs substitution to receive lashes stated?

It is according to the method of

Rabbi Yehuda, who says: For a prohibition that does not involve an act, one is lashed.

And the Gemara raises an objection:

And can you establish it as being according to Rabbi Yehuda?

How can you say that Rabbi Yehuda stated this Mishna?

But it teaches in the first clause: “All may perform substitution,”

anyone who is the owner of an animal consecrated as an offering,

both men and women,

and their substitution is effective in consecrating the other animal as well.

And we were engaged in this,

we discussed in the beit-midrash:

“All”—what does it come to include?

What does the word “all,” which is an inclusion, come to include? After all, both men and women are explicitly stated in the Mishna.

And they explained that “all” comes

to include an heir

of an offering from his father, who, by virtue of his inheritance, is considered the owner of the offering, and his substitution is considered substitution. If so, our Mishna is

not according to Rabbi Yehuda.

For if it were according to Rabbi Yehuda, he said: An heir

of an offering from his father

does not perform substitution,

he is not like an owner who is able to perform substitution, and for the same reason

an heir does not place his hands

upon the offering at the time of its sacrifice. For according to Rabbi Yehuda, the inheritance does not take effect with regard to offerings, because they belong to the consecration.

And the Gemara answers:

This tanna,

who taught the Mishna of “all may perform substitution,”

agrees with him

with Rabbi Yehuda

in one matter,

in that he obligates one who performs substitution to receive lashes even though he performed no act but only spoke,

but disagrees with him

with Rabbi Yehuda

in one matter,

in that he considered the heir the owner of the offering, whose substitution is effective.

The Sages taught: One who muzzles the cow and threshes with it receives lashes.

For he transgressed the prohibition “You shall not muzzle an ox while it is threshing,”

and pays

the owner of the cow the amount that the cow would have eaten had he not prevented it. And its measure is

four kav for a cow, and three kav for a donkey.

And the Gemara raises an objection:

But

anyone who performs a single prohibited act for which he is to be punished with two punishments

does not receive lashes and die, and does not receive lashes and pay,

because one does not punish a person with two punishments for a single prohibited act. There are two ways to explain this. (a) Since the Torah prohibited muzzling, when a person rents his cow to another, both of them know that he will have to allow it to eat, and he rents him the cow with this understanding: that he will feed it at the time of threshing. Its eating is included within the rental agreement between them, and if he prevented it from eating, he must pay by virtue of the rental agreement. (b) Since the Torah obligated him to allow it to eat, consequently, when he rents it to another, it is reasonable that the Torah also granted its owner the right that the renter is obligated to feed it, and he claims everything that is due for his cow. And since it is forbidden to muzzle it, it is reasonable that he also claims and acquires this. And in our discussion it is explained that Abaye and Rava held that one who pays for the muzzling receives lashes and pays for a single act, and for this reason they had to resolve the difficulty, for a person does not receive lashes and pay. But Rav Pappa holds that the obligation of payment takes effect at the time of renting the animal, and this is not included in “receives lashes and pays,” since the lashes are for the muzzling, whereas the payment is for the time of the rental. Apparently, their dispute concerns the investigation stated above. According to Abaye and Rava, the muzzling is what creates the obligation to pay, since the animal’s owner has a right that his animal eat; one who prevents it from eating robs the owner, and the robbery was committed at the time of the muzzling. It follows that he receives lashes and pays for the muzzling. In contrast, Rav Pappa holds that the owner does not have a right that it eat from the threshing, but only because he rented it with this understanding, and this is included within the rental agreement. It follows that he becomes obligated to pay not because of the muzzling, but because of his obligation at the time of the rental.

And if so, if he receives lashes for having muzzled the animal during its threshing, how can it be possible to obligate him to pay its owner for the loss caused by the muzzling?!

And the Gemara answers:

Abaye said: This is according to whom?

The beraita that obligated the one who muzzles to receive lashes and to pay—

it is according to Rabbi Meir, who says: He receives lashes and pays.

Rava said:

Even one who receives lashes is obligated to pay in order to fulfill the obligation before Heaven; it was only with regard to the court that it was said that it does not impose two punishments for one act.

And this obligation is learned from the law of

the payment to a prostitute,

one who gives a female lamb to a prostitute in return; the animal is forbidden for sacrifice, as it is stated: “You shall not bring the payment to a prostitute,” and from the fact that the Torah did not distinguish and prohibited every payment to a prostitute, it follows that

the Torah prohibited

a payment to a prostitute

even when he had intercourse with his mother,

and gave her an animal in return.

And why was the animal that he gave her prohibited? After all, his punishment is death, and he is not obligated to give her anything in return; and even if he gives it to her, it is merely an ordinary gift, and not a payment in return for the sexual act?

Necessarily, in the laws of Heaven, even one who is liable to death at the hands of man is obligated to pay. Now, one who causes damage is exempt but is obligated to fulfill the obligation before Heaven. However, the later authorities wrote there that seizure is not effective, even though he is obligated to pay for the damage caused in order to fulfill the obligation before Heaven. The reason is that there are two types of obligation to fulfill before Heaven. The first is in the case of a payment to a prostitute: the debt is a monetary debt under human law. The obligation to give payment in return for the sexual act is fit to create an obligation under human law, and although, because his punishment is severe, they do not obligate him to pay, this means only that the court does not compel him concerning the payment obligation that he bears; fundamentally, however, he bears a complete obligation under the law of the court. The second is in the case of indirect causation of damage: he is not obligated under the law of the court, and is not considered to have damaged; the entire obligation is only under the law of Heaven, and it is like an obligation of a mitzva upon the one who caused the damage. In this case it is impossible to seize, since it concerns the private matter of the one who caused the indirect damage, whether he wishes to fulfill the laws of Heaven. And the position of the Maharshal is that Rashi’s ruling applies only when they did not actually punish him with the severe punishment of lashes or death, as, for example, in the present time, when they do not administer punishments. But if he was punished with the severe punishment, he is completely exempt from the money, and it is impossible to seize from him. The explanation is that when he is punished, the severe punishment takes effect with regard to both of his obligations, and he is punished for both of them with the severe punishment. For example, after he received lashes for the prohibition against muzzling, he has already served the punishment of lashes even for the offense of robbery involved in the act. Since he has already been punished for the robbery, it is impossible to obligate him also through seizure of money from him. But when he is not actually punished with lashes, and the act is merely the type of severe act for which he is warned with a punishment of death or lashes, the law is only that, since the act is so severe, they judge him for this act only with regard to its severe aspect, and not with regard to its lighter aspects. Yet since it would be proper to obligate him also with the lighter monetary obligation, and no punishment for the monetary offense involved in the act has been carried out against him, if one seizes from him, the seizure is effective, since it would be proper to obligate him, but the court does not judge this matter. When he seizes on his own, without the court judging, his seizure is effective.

Rav Pappa said:

Even the court compels the one who muzzles to pay, and this is not considered the imposition of two punishments for one act, because the payment was already

from the time of taking possession,

when he rented the animal from its owner in order to thresh with it,

he became obligated to it for its sustenance.

For the owner gave it to him on the understanding that he would not muzzle it.

And

if it were

lashes, he would not receive lashes

he would not become liable to lashes except

until the time of the muzzling.

And the law that two punishments are not imposed applies specifically when he becomes liable to both punishments through one act. But in the case of the one who muzzles, he became obligated for its sustenance payments at the time of taking possession, whereas he became liable to lashes at the time of the muzzling.

Rav Pappa said: These matters, they asked me, the house of

the beit-midrash of

Rav Pappa bar Abba, and I resolved them for them as prohibited, one in accordance with the halakha,

according to the fundamental law,

and one not in accordance with the halakha,

but it was a stringency that I imposed upon them.

And so

they asked me

:

What is the law concerning kneading dough with milk,

to eat it by itself, without meat?

And I resolved it for them as prohibited, in accordance with the halakha,

lest one come to err and eat the dairy bread with meat.

And this matter is according to the fundamental law:

For it was taught in a beraita: One may not knead dough with milk. And if he kneaded it, the entire bread is forbidden,

even to eat it by itself,

because of habituation to transgression,

lest he forget and eat it with meat.

Similarly,

they said:

One may not smear

[smear]

the oven with tail-fat

[the fat of a sheep’s tail] because of the bread that will be baked in it and will be meaty.

And if he smeared it, the entire bread is forbidden,

even to eat it by itself without milk, as a decree lest he forget and eat it with milk.

Until he heats the oven,

and expels from it the absorbed fat.

And the other one, they asked me

[and the second matter that they asked me],

what is the law concerning bringing

animals

of different and of the same species

together

into the enclosure?

Is it considered that he causes them to mate together, causing one to come upon the other, and is it forbidden, as it is stated: “You shall not mate your animal with a different species”; or is it forbidden only when he himself inserts the male organ into the female?

And I resolved it for them as prohibited,

so that they would not treat the prohibition against mating different species lightly.

And this matter is

not in accordance with the halakha,

for according to the fundamental law it is permitted.

For Shmuel said:

1.

And with adulterers,

witnesses who testify in court concerning adulterers in order to punish them, it is sufficient

until they see them in the manner of adulterers,

lying one upon the other, and they do not need to see the actual act of intercourse.

2.

And with different species,

there is no prohibition against mating two species of animal

until he inserts

the male organ into the female

like a brush into a tube.

But one who brings them together into the enclosure and causes them to mate together does not commit a prohibition.

And the Gemara raises an objection against Shmuel’s ruling that there is no prohibition against mating different species unless he inserts it like a brush into a tube:

Rav Aḥadvoi bar Ami objected

to Shmuel from a beraita: