Kiddushin 56b — the Talmud in English

Shmuel: Indeed, according to the basic law, we should have said that the sale is annulled. However, here, in the Mishna’s discussion of second tithe, with what case are we dealing?

It is a case in which the seller fled

while holding the money.

And they raise an objection:

Does this mean that the reason is specifically that he fled, whereas if he did not flee, we penalize the seller

by requiring the money to be returned to its original place? And why should that be so

? Why not penalize the buyer

by requiring him to eat second-tithe produce corresponding in value to that money?

It is not the mouse that is the thief; rather, the hole is the thief.

This is a proverb: When a mouse steals grain and puts it in its hole, the mouse is not considered the thief; rather, the hole is the thief, because without the hole the mouse would not have stolen. Here too, the thief is not the buyer but the seller, because without the seller the buyer would not have made the purchase.

They raise an objection to this:

And

And yet,

if there were no mouse, what would the hole have done

? That is, if there were no buyer, the seller would not have done anything either!

And they answer:

It is reasonable that wherever the prohibition is located, there we impose the penalty

that is, the penalty is imposed where the prohibited item is found. And the second-tithe money is in the seller’s possession.

Mishna:

If one betroths

a woman

with fruit of the first three years of a tree

fruit from a tree during its first three years], which is prohibited to benefit from, or

with produce of a vineyard planted with mixed species

produce that grows from a mixture of two species of grain or vegetables sown in a vineyard], which is prohibited to benefit from—or

with an ox sentenced to stoning

an ox that killed a person, or that had relations with a woman or with which a person had relations, and whose judgment was completed and it was sentenced to stoning]—

And with a calf whose neck was broken [or with a calf whose neck was broken by the nearest city when the identity of the killer of a slain person is unknown,

even before its neck was broken] —

With the birds of a person afflicted with tzara’at

which he brings when he becomes purified from his tzara’at: he slaughters one and sprinkles its blood on the afflicted person, while he sends the other away]—

And with the hair of a nazirite—

and with the hair of a nazirite— and

with

And with the firstborn donkey

the donkey’s firstborn, which is not redeemed but whose neck is broken]—

And with meat cooked with milk

that was cooked together—

and

with

And with non-sacred animals slaughtered in the Temple courtyard:

One who betroths a woman with any of these items, which are prohibited to benefit from,

has not betrothed her.

However, if he

sold these items

that are prohibited for benefit,

and betrothed a woman with the money received for them,

she

is betrothed,

because the money received for them does not itself become subject to the prohibition against benefit. A.

Rashi’s view in Hullin 4b is that money received for items prohibited for benefit is permitted only to others; but it remains prohibited to the person who exchanged the item. The Ran explained Rashi’s view as follows: The reason she is betrothed when he sells these items and betroths her with the money, even though the money is prohibited to the one performing the betrothal, is that this resembles a person who betroths a woman with property stolen from others after the owners have despaired of recovering it. It was explained above, on 52b, that she is betrothed in such a case. According to the Ran, the reason is that the woman acquires the stolen property through the owners’ despair and a change of possession. Thus, although the robber who betroths her did not acquire the stolen property and is not giving her his own money, since his giving it places property in her possession, she is betrothed. The same applies here: She is betrothed with items prohibited for benefit that are prohibited to him but permitted to her. See the notes above, on 52b, where it is stated that according to the Ritva, it is not enough for the woman to acquire the stolen property through a change of possession in order for her to become betrothed to him. In his view, the reason a woman becomes betrothed through the owners’ despair and a change of possession is that the robber also acquires the object [as the Avnei Miluim puts it: “They take effect simultaneously”]. It therefore apparently cannot be explained as the Ran explains it. Indeed, see the Ritva here, who wrote that even if one betroths a woman who is ill and is permitted to benefit from items prohibited for benefit in an unusual manner, she is nevertheless not betrothed, “because he is not giving her property, unless he says to her: ‘You are betrothed to me through the benefit you receive from my having given you something with which you can be cured,’ and that benefit is worth a peruta” The Mishna LeMelekh [chapter 5 of Hilkhot Ishut] was puzzled by the Ritva: How does this differ from one who betroths a woman with stolen property, where she is betrothed because she acquires it through the owners’ despair and a change of possession? But according to what the Ritva himself wrote concerning stolen property—that the reason is specifically that the robber too acquires the stolen property—the Ritva’s words are actually readily understandable [based on Avnei Miluim, section 28, subsection 4]. B. See the notes above, on 52b, in the name of Rabbi Akiva Eiger. He explained the view of the Rosh, whose words indicate that a woman does not become betrothed through the owners’ despair and a change of possession; she becomes betrothed only if despair alone effects acquisition. This is contrary to the aforementioned view of the Ran and to the other early authorities who follow the Ran. Rabbi Akiva Eiger found this difficult: Above, on 52b, Rava said that if the ordinary assumption is that the owners of stolen property despair of recovering it, she becomes betrothed with the stolen property. Yet Rava himself holds that despair alone does not effect acquisition, even by rabbinic law, as the Tosafot wrote in Bava Kamma 67b. He explained that since that discussion deals with a case in which the woman knows that the object in his possession is stolen, even though he did not explicitly say that he was betrothing her through the benefit of placing money in her possession by means of the change of possession, she is nevertheless betrothed through that benefit. See there. Accordingly, it would apparently follow that the Rosh disagrees with the Ritva concerning one who betroths an ill woman with items prohibited for benefit. That is, although the later authorities explain that according to the Rosh, when the man has no property in his possession and causes property to enter her possession, this is not considered “money”—and in this respect he agrees with the Ritva—nevertheless, since if he betroths her through the benefit of giving the prohibited items into her possession she is betrothed, as the Ritva wrote, it follows that according to the Rosh he need not state this explicitly; it is enough that she knows that the items are prohibited for benefit. If so, this provides an explanation of Rashi’s view that items prohibited for benefit remain prohibited to the person who exchanged them, while nevertheless the Mishna teaches: “If he sold them and betrothed her with the money, she is betrothed,” as the Ran asked. We need not say that Rashi holds that it is enough for the money to be property in her possession for her to become betrothed. Even if he agrees here with the Ritva, she is nevertheless automatically betrothed through the benefit of his placing money in her possession, even though he did not state this explicitly. C. Rashi himself wrote in Avoda Zara 54b: “If he sold them and betrothed her with the money, she is betrothed because they do not become subject to the prohibition and it is property . Although he is prohibited from benefiting from them, nevertheless, that benefit came to him through the fruit of the first three years of the tree, whereas she does not receive it through the fruit of the first three years [that is, she is not prohibited from benefiting]. This applies specifically to the betrothal of a woman; but benefiting from the money itself is prohibited by rabbinic law.” The meaning of his words is based on what was written in Zikhron Shmuel, section 53, paragraph 2, which proves from Rashi’s words in Pesahim that not everything prohibited for benefit ceases to be property that can be used for betrothal. Rather, it is the application of the prohibition to the object itself that removes its status as property. For this reason Rashi had to state [Pesahim 7] that one who betroths a woman with items prohibited for benefit by rabbinic law has not betrothed her because “everyone who betroths does so in accordance with the will of the Sages.” That is, the mere fact that the object is prohibited for him to benefit from is not sufficient; rather, because rabbinic law applies a prohibition to it, the Sages annulled the betrothal. He referred to Sha’arei Yosher, Gate 1, where everything relevant to this matter is explained in depth He further cited there the words of the early authorities [see the notes below, on 58a], who distinguish among items prohibited for benefit by rabbinic law according to whether or not their prohibition has a basis in Torah law. This distinction can be understood only if the law depends on the nature of the rabbinic enactment—whether it applied a formal prohibition to the money or not. Based on this, he wrote there [in explaining Rashi’s view and others] that if the prohibition applies only to the person who made the exchange, then no formal prohibition against benefiting applies to the money. Rather, benefiting from the money is treated like benefiting from the object itself, and therefore the money is property that can be used for betrothal. He concluded, “And see the wording of Rashi" in Avoda Zara" 54" b"; Certainly, this explanation clarifies Rashi’s wording there very well. Gemara:

We learned in the Mishna: One who betroths a woman

with fruit of the first three years of a tree ...

has not betrothed her:

And we explain:

From where do we know

that fruit of the first three years of a tree is prohibited for benefit?

As it was taught in a beraita, a tannaitic source not included in the Mishna:

It is written: “When you come into the land and plant any tree that produces food, you shall regard its fruit as forbidden; for three years it shall be

forbidden to you; it shall not be eaten.”

I know

concerning fruit of the first three years of a tree

only that there is a prohibition against eating it,

as it is stated: “It shall not be eaten.” But concerning the prohibition against

benefiting

from such fruit,

from where

do we know

that one may not benefit from it, and may not

use it to dye

or use it to kindle

for example, as oil,

a lamp

? The verse states:

“when you come into the land and plant any tree that produces food,”

“you shall regard its fruit as forbidden

its fruit,”

to include all forms of benefit.

We learned in the Mishna: One who betroths a woman ...

with produce of a vineyard planted with mixed species ...

has not betrothed her:

And we explain:

From where do we know

that produce of a vineyard planted with mixed species is prohibited for benefit?

Ḥizkiya said:

Because

the verse says:

“You shall not sow your vineyard with mixed species, lest the produce of the seed that you sow and the yield of the vineyard become consecrated.” And we interpret what the verse says,

“lest it become consecrated,” as

»,

That is, lest the mixed produce become prohibited for benefit and require burning.

Rav Ashi said:

This is how we interpret the verse:

“lest it become like a sacred object.”

That is, lest the mixed produce be prohibited for benefit like a sacred object.

And we raise a difficulty against Rav Ashi: If so, we should say:

Just as a sacred object takes hold of the money exchanged for it

according to its law, so that the money too becomes sacred,

and the original sacred object

the first sacred object

becomes ordinary property, so too, with regard to produce of a vineyard planted with mixed species,

we should say that it

takes hold of the money exchanged for it

by transferring the prohibition to it,

and the produce

of the vineyard planted with mixed species

becomes ordinary property!?

Rather, it is clear

the clearest explanation is] that we interpret the verse

as Ḥizkiya did.

We learned in the Mishna: One who betroths a woman ... with

an ox sentenced to stoning ...

has not betrothed her:

And we explain:

From where do we know

that an ox sentenced to stoning is prohibited for benefit?

As it was taught in a beraita:

From the implication of what is stated:

“If an ox gores a man or a woman and he dies,

the ox shall surely be stoned,”

is it really the case that

I do not know

from this

that it is an animal carcass, and that an animal carcass is prohibited to eat!? B. Rabbeinu Tam’s view [cited in the Tosafot to Sanhedrin 79b, entry beginning “Concerning an ox,” and to Zevahim 70b, entry beginning “Even”] is that an ox sentenced to stoning is not prohibited while alive, but only after slaughter. It apparently follows that it is prohibited for benefit even while it is still convulsing, once it has been slaughtered, since this is implied by the wording,

“was slaughtered” “after its judgment was completed,” [and see the wording of the Tosafot in Zevahim 71a: “However, once they are slaughtered or die, they become prohibited for benefit ” ;

Accordingly, it would seemingly be impossible to say, as the Tosafot answered in Bava Kamma concerning a fetus found in the womb of a slaughtered animal, that the question is valid in any event. If the law is not as Rabbeinu Tam holds, the matter is one unified law: The Torah prohibited an ox whose judgment was completed, not because it is an animal carcass. But according to Rabbeinu Tam’s view, from where can we learn that the Torah prohibited an ox sentenced to stoning after slaughter, even while it is still convulsing? Even while it is still convulsing, one could say that the Torah came to teach that it becomes prohibited through stoning, with a practical consequence concerning a fetus found in the womb of a slaughtered animal. According to Rabbeinu Tam, one must therefore adopt one of the other answers given for this matter. And if so,

what is the verse teaching: “

and

he shall not eat its flesh, and the owner of the ox is free,”

и владелец быка чист»,

the verse tells you through the words “and he shall not eat its flesh”:

and he shall not eat its flesh”:

that if one slaughtered it after its verdict had been completed

for stoning, it is

forbidden to eat. That is, from the time its verdict for stoning was completed, it is forbidden.

That is to say: from the time its sentence to be stoned has been concluded, it is forbidden.

Until this point, we have heard that after it was stoned—or even from the time its verdict was completed—it is forbidden only as food.

From where do we know

that it is forbidden to derive benefit from it from the time its verdict was completed?

The verse says: “

and he shall not eat its flesh

and the owner of the ox is free,”

as the Gemara will explain.

And we explain:

what is the indication? How does this verse indicate a prohibition against deriving benefit?

Шимон бен Зома говорит: подобно тому, как человек говорит своему товарищу: «

Shimon ben Zoma says: It is like a person who says to his fellow: “

So-and-so has been cleared of his property, and he has no benefit whatsoever from it.”

So too, the owner of the ox is free of this ox, and he has no benefit whatsoever from it.

And we challenge what we said—that an ox condemned to stoning is forbidden as food and for benefit from the time its verdict was completed:

From where do we know that this verse, “

he shall not eat its flesh” [and similarly, “and the owner of the ox is free”],

and the owner of the ox is clean”]

comes to refer to a case in which it was slaughtered after its verdict was completed, and to teach us that it is forbidden as food and for benefit from the time its verdict was completed?

and to teach us that it is forbidden to eat it and to derive benefit from it from the time its sentence has been concluded?

But

perhaps

in fact,

where it was slaughtered after

its verdict was completed, it is permitted

as food and for benefit.

And

if so, perhaps the phrase

“he shall not eat”

means that it comes to teach that

it is specifically where he stoned it that it is forbidden! [That is, from where do we know that the phrase “he shall not eat its flesh” comes to teach a prohibition after its verdict was completed? Perhaps, in fact, after its verdict was completed it is not forbidden, and the phrase “he shall not eat its flesh” comes to teach that it is forbidden after stoning.]

А если ты скажешь: ведь уже сказано «бык непременно будет побит камнями», и я знаю, что падаль запрещена в пищу, зачем мне «не будет есть»!? Скажу тебе: этот стих пришёл добавить запрет получения пользы [разрешённого в случае падали] в отношении быка, побитого камнями,

And if you say: The verse already says, “The ox shall surely be stoned,” and I know that an unslaughtered carcass is forbidden to eat, so why do I need the phrase “he shall not eat”? I would answer that this verse comes to add a prohibition against deriving benefit [which is permitted in the case of an ordinary unslaughtered carcass] from an ox condemned to stoning.

And

this can be learned from the wording “he shall not eat,”

in accordance with what Rabbi Abbahu said in the name of Rabbi Elazar! For Rabbi Abbahu said in the name of Rabbi Elazar:

Everywhere that it is written “

he shall not eat,”

or “

she shall not eat”

and “

you shall not eat,”

both a prohibition against eating and a prohibition against deriving benefit

are included,

unless the verse specifies

that deriving benefit is permitted,

as it specifies in the case of an unslaughtered carcass: the verse says, “You shall not eat any unslaughtered carcass; [but] you shall give it to the stranger who is within your gates, and he may eat it, or you may sell it to a gentile.” Thus, the verse specifies in the case of an unslaughtered carcass that it is permitted to benefit from it by giving it as a gift or selling it. But if the verse had not permitted this, we would have forbidden deriving benefit from an unslaughtered carcass because it says about it, “he shall not eat.”

И отвечаем: невозможно, чтобы стих «не будет есть» учил о запрете получения пользы после побиения камнями, потому что

And if so, with regard to an ox condemned to stoning as well, let us say that the verse’s statement, “he shall not eat,” comes to prohibit deriving benefit from it after it is stoned. But from where do we know that eating it and deriving benefit from it are forbidden from the time its verdict was completed?

And we answer: It is impossible for the phrase “he shall not eat” to teach about the prohibition against deriving benefit after it is stoned, because

this principle applies—that “he shall not eat” teaches a prohibition against deriving benefit—

when “he shall not eat” also teaches the prohibition against eating,

where we derive the

the

prohibition against

eating

eating from “

he shall not eat.”

But

here, if you were to say that the verse comes to teach a prohibition against deriving benefit after the ox is stoned, then

если ты предположишь, что для запрета получения пользы

the prohibition against

eating is derived

eating is derived from “

the ox shall surely be stoned,”

it is derived. Since in this case the verse would be coming only to add a prohibition against deriving benefit, it should have said, “One may not derive benefit.” It necessarily follows that it comes to teach about the prohibition against eating before it is stoned.

«не будет есть»

The reason it is impossible to say that the verse prohibits deriving benefit when it does not also teach a prohibition against eating is

that if you should think that it is only a prohibition against deriving benefit

alone

that is written in the words “he shall not eat,” then

then

the verse should have written: “

One may not derive benefit.”

Alternatively, another reason can be given why the phrase “he shall not eat” cannot be interpreted as referring to after stoning: If so,

А скажи: это относится к тем случаям, когда Писание запретило его после окончательного вынесения приговора,

let it write only “

he shall not eat.” But why do I need the words

alone. But why do I need

“its flesh”

at all?

Rather, certainly they come to teach:

even though one slaughtered it in a manner resembling the treatment of flesh,

having slaughtered it rather than stoned it, it is

forbidden.

Mar Zutra raises another objection against deriving that eating it and benefiting from it are forbidden from the time its verdict was completed:

to the derivation of the prohibition against eating and deriving benefit from the time its sentence has been concluded:

But perhaps this principle applies—that the verse forbade it

after its verdict was completed—

where one tested a stone

and

slaughtered it with it, so that it appears like stoning [that is, it appears like stoning with stones] and not like slaughtering—

не будет есть», ведь получается, что мы можем вывести запрет получения пользы с момента окончательного вынесения приговора из «не будет есть» [поскольку и запрет еды выводится из него], и если так,

but if he slaughtered it with a knife, it is not

forbidden as food and for benefit!

And we answer:

Is a knife

for slaughter

written in the Torah [that is, was a knife mentioned in the passage concerning slaughter]? Even when he slaughtered it with a stone, it is slaughtering, and necessarily it is forbidden when slaughtered in that manner as well. If so, what difference is there whether he slaughtered it with a stone or whether he slaughtered it with a knife?

мы могли бы предположить: «

Furthermore,

it is explicitly

taught that slaughtering with a stone is slaughtering:

that slaughtering with a stone is slaughtering:

One may slaughter with anything: whether with a stone, whether with glass, or whether with a sharp reed.

And we challenge this:

1.

everywhere

both the prohibition against eating and the prohibition against deriving benefit from “

he shall not eat,”

2.

“

and the owner of the ox is free”—

which was mentioned above as coming to teach the prohibition against deriving benefit after its verdict was completed—

what does it come to teach? [Why is it needed? We already know the prohibition against deriving benefit from “he shall not eat.”]

откуда им запрет получения пользы от его кожи,

And we answer: “And the owner of the ox is free” does not come to teach that deriving benefit from the ox is forbidden from the time its verdict was completed. Rather, it comes

to teach about benefiting from its hide, whether its verdict has been completed or whether it has already been stoned. This is because, had the verse not included the hide as well,

из «и не будет есть

it might have occurred to us to say: “

He shall not eat its flesh”

is written; its flesh is forbidden, and

if so,

its hide is permitted.”

And we challenge this:

And what will those other tannaim, who derive this “

and the owner of the ox is free”

from the verse for other teachings, say?

A.

To exempt the owner of an unconditioned ox that killed a person from

exempt the owner of an innocuous ox that killed a person from

half a ransom—that is, to exempt an unconditioned ox from the ransom paid by the owner of an ox with established liability that killed a person. Had the verse not exempted it, it would have been liable for only half a ransom, just as an unconditioned ox pays half the damage when it causes damage; this is how Rabbi Eliezer derived it from this verse in Bava Kamma 41b.

B.

And to exempt an ox from

exempt an ox from

compensation for miscarried fetuses if it gored a pregnant woman and her children emerged, teaching that the ox is not liable for compensation for miscarried fetuses, as a person is liable; this is how Rabbi Yosei HaGelili derived it from this verse in Bava Kamma 42a.

And for these tannaim the question arises:

from where do they derive that

benefiting from its hide is forbidden?

And we explain: From the phrase

“

and he shall not eat

its flesh,” and “et” comes to include

and “et” comes to include

the

hide,

which is secondary to its flesh;

it too is forbidden for benefit.