Temurah 4b (ד:) — the Talmud in English

And we answer:

No,

this is not difficult. For Rabbi Yosei bar Rabbi Ḥanina did not say that one who gives teruma before the first fruits “is flogged”; on the contrary,

Rabbi Yosei bar Rabbi Ḥanina

was referring to the exemption,

his words concern the “exemption,”

and this is what he is saying:

Regarding what Rabbi Yosei HaGelili said,

“For a prohibition that does not involve an action, one is not flogged,”

the amoraim said:

“In the name of Rabbi Yosei bar Rabbi Ḥanina they said: Even one who gives teruma before the first fruits

is not flogged!”

And the Gemara understood that he is not flogged because this is a prohibition that does not involve an action, and the Gemara asks:

And what is different,

how is

one who substitutes

flogged, because through his speech he performs an action,

as he transforms an ordinary animal into a sacred one, as explained above; therefore,

one who gives teruma before the first fruits should also be flogged,

for that same reason,

because through his speech he performed an action,

as he designates it by name and brings it into the sanctity of teruma? Why, then, is this considered a prohibition that does not involve an action?

And we answer:

Rabbi Avin said:

The exemption from flogging is not because it does not involve an action. Rather,

that case is different;

the law concerning one who gives teruma before the first fruits is different, as the exemption is because

it is “a prohibition whose correction is through a positive mitzva” [this will be explained below]. The prohibition “You shall not delay the fullness of your produce and the flow of your presses” is followed by a

positive mitzva,

as it is written [Numbers 18]:

[Numbers 18]:

“From all your gifts

you shall raise,”

and we expound [below, 5b] that even though one gave the tithe before the teruma, he must still return and separate teruma. And once a positive mitzva applies to him, the prohibition is detached from liability to flogging for violating the prohibition.

In summary: Rabbi Yosei bar Rabbi Ḥanina holds that one who gives teruma before the first fruits violates a prohibition that involves an action, because through his speech he performed an action. Nevertheless, he is not flogged, because it is

“a prohibition whose correction is through a positive mitzva.” The sugya of a prohibition whose correction is through a positive mitzva

Rav Dimi sat [ sitting] and was stating this teaching, of Rabbi Avin, who explained the reasoning of Rabbi Yosei bar Rabbi Ḥanina that one who gives teruma before the first fruits is not flogged because it is “a prohibition whose correction is through a positive mitzva.”

Abaye said to him:

But

if

everyone subject to a prohibition whose correction is through a positive mitzva is not flogged?!—

Yet

“one who substitutes,” whose prohibition is corrected through a positive mitzva,

as it is stated: “He shall not exchange it and he shall not substitute it, and if he does substitute it, it and its substitute shall be sacred,”

nevertheless

is

flogged?

As we learned as stated in our Mishna: “Not that a person is permitted to substitute, but that if he substituted, the substitute takes effect, and he receives forty lashes.” And we answer: He said to him

and despite

this,

he receives lashes?

Rav Dimi said to Abaye:

The case of one who substitutes is different,

[the law of one who substitutes is different]

because it has

two prohibitions,

as with substitution the Torah states two prohibitions, “he shall not exchange it” and “he shall not substitute it,”

and one positive mitzva. One positive mitzva does not come and uproot two prohibitions,

one positive mitzva cannot uproot two prohibitions.

Abaye challenges this answer

from the law of “the seducer.”

One who rapes a virgin is obligated to marry her, and this is a positive mitzva from the Torah [Deuteronomy 22]: “She shall be his wife; he may not divorce her all his days.” He is forbidden to divorce her, and if he divorces her, he violates a prohibition, as it is stated: “He may not send her away.” From the Torah’s statement “She shall be his wife … all his days,” the Sages expounded [Makkot 15a]: “‘All his days’ means that he stands obligated to restore her.” That is, if he violated this prohibition and divorced her, he must return and marry her. It follows that the prohibition is corrected through a positive mitzva, and according to Rav Avin one is not flogged for this prohibition. Abaye cites a Mishna stating that one is flogged. And we ask: Yet the case of the seducer, which has one prohibition and one positive mitzva, contains one prohibition corrected through a positive mitzva, and nevertheless he is flogged, and does a positive mitzva not come and uproot one prohibition?

as the Torah states two prohibitions concerning substitution: “He shall not exchange it” and “He shall not substitute it,”

and there is one positive commandment. One positive commandment cannot uproot two prohibitions,

one positive commandment does not uproot two prohibitions.

Abaye raises an objection to this answer from the law concerning one who violates a maiden.

As it is taught in a beraita: If a seducer divorced her, if he is an Israelite,

and nothing prevents him from returning and marrying her,

he returns

her to him

and is not flogged.

But if he is a priest,

who is forbidden to return and marry her because she is a divorcee,

he is flogged forty lashes, and he does not return

her.

Thus, a priest is flogged. This is difficult for Rav Avin, who said that for a single prohibition whose correction is through a positive mitzva, one is not flogged .

her,

and he does not receive lashes.

But if he is a koHen,

And Rav Dimi answers:

Are you speaking of priests? The case of priests is different; priests have a different law,

for they have another rationale,

there is another reason concerning them, since

her.

the Merciful One increased their sanctity,

the Torah endowed them with greater sanctity than Israelites possess and prohibited them from what is not prohibited to Israelites, such as becoming impure through contact with the dead. Therefore, it also dealt more stringently with them, so that they are flogged for “a prohibition whose correction is through a positive mitzva,” even though an Israelite is not flogged. Another formulation Rav Dimi sat and was stating this teaching. Abaye said to him: “And is everyone subject to a prohibition whose correction is through a positive mitzva not flogged?! Yet ‘one who substitutes,’ whose prohibition is corrected through a positive mitzva, is flogged?”— As we learned: “Not that a person is permitted to substitute, but that if he substituted, the substitute takes effect, and he receives forty lashes.” And we answer: He said to him, Rav Dimi said: The case of one who substitutes is different, the law of one who substitutes is different, and he is flogged even though the prohibition is corrected through a positive mitzva, because it is a prohibition that applies equally to all, everyone is forbidden to substitute, and the prohibition applies also to the public and to partners; if one of them made a substitution, he violated the prohibition, whereas the positive mitzva of substitution does not apply equally to all, it does not apply to offerings of the public or of partners, and substitution does not take effect with respect to their offerings, as will be explained below [13a]—

Are you speaking about kohanim?

The case of kohanim is different; kohanim have a different law,

because they have a different reason,

there is another consideration concerning them, since

the Torah granted them an additional degree of sanctity ,

the Torah increased their sanctity beyond that of Israelites and prohibited them from things forbidden to Israelites, such as becoming impure through contact with the dead. Therefore, the Torah was also stricter with them, so that they receive lashes for “a prohibition rectified by a positive commandment,” even though an Israelite does not receive lashes.

Another version

Since this is so, the positive mitzva is not capable of detaching a prohibition that applies equally to all.

Abaye challenges this from “the seducer.” The case of the seducer is the reverse: The “prohibition” does not apply equally to all, whereas the “positive mitzva”—

applies equally to all.

How so? The Torah states: “She shall be his wife … he may not send her away all his days,” and we expound: She shall not remain divorced from him all his days; rather, he must stand and return her. That is, the prohibition is the failure to return her, and this applies only to an Israelite and not to a priest .

But the positive mitzva applies equally to all, even to priests . It follows that the prohibition is not the stronger one; on the contrary, the positive mitzva is stronger. All the more so, then, the stronger positive mitzva should detach the weaker prohibition. If so, it is difficult: Why are they flogged for this prohibition? After all, according to your words, one is not flogged for a prohibition whose correction is through a positive mitzva! Abaye raises an objection: Yet in the case of the seducer, his prohibition does not apply equally to all, as it does not apply to priests, whereas the positive mitzva applies equally to all,

Rab Dimi said:

the case of substitution is different,

the law of substitution is different, and one receives lashes for it even though it is rectified by a positive commandment,

because it is a prohibition that applies equally to all,

everyone is forbidden to perform a substitution, and the prohibition applies also to communal offerings and offerings belonging to partners; if one of them performed a substitution, he violated the prohibition,

whereas

the

positive commandment

of substitution

does not apply equally to all,

and it does not apply to a communal offering or an offering belonging to partners, and a substitute does not acquire substitution-sanctity when made for their offering, as will be explained below [13a] —

Since this is so, the positive commandment does not have the power to rectify a prohibition that applies equally to all.

Abaye raises an objection from the case of one who violates a maiden. That case is the opposite: the prohibition does not apply equally to all, whereas the positive commandment

applies equally to all.

How so? The Torah says, “She shall be his wife ... he may not send her away all his days,” and we derive: she shall not remain divorced from him all his days; rather, stand and return her! That is, if the prohibition is the failure to return her, this applies only to an Israelite and not to a koHen.

as it applies to priests—

So why is a priest who divorced her flogged? As it is taught: If a seducer divorced her, if he is an Israelite, he returns her and is not flogged; but if he is a priest, he is flogged and does not return her. And we answer: He said to him, Rav Dimi said to Abaye: Are you speaking of priests? The priests have a different rationale [or: a different principle] ; the Merciful One increased their sanctity, and therefore the Torah dealt more stringently with them , so that they are flogged even though this is not “a prohibition that applies equally to all” .

Abaye raises an objection:

But in the case of one who violates a maiden, its prohibition does not apply equally to all,

as it does not apply to kohanim,

whereas

the

positive commandment applies equally to all,

as it applies to kohanim —

Why, then, does a koHen who divorced her receive lashes?

As

it is

taught in a beraita: if one who violated a maiden divorced her, and he is an Israelite,

he must return her and does not receive lashes; but if he is a koHen—

he receives lashes and does not return her.

The Gemara answers:

Rab Dimi said to him,

Rab Dimi said to Abaye:

Are you speaking about kohanim? The reason concerning kohanim

or

the matter

is different ,

because the Torah granted them an additional degree of sanctity,

and therefore the Torah was stricter with them so that they receive lashes even when the prohibition does not apply equally to all —

But with regard to an Israelite who left it over, the prohibition and the positive mitzva are equivalent, and all Israelites are obligated to burn it if they left it over. Therefore, we learned in the beraita: If he is an Israelite, he burns it and is not flogged, because the prohibition is indeed remediated by a positive mitzva.

And the Gemara continues

as a dispute between tannaim

: This halakha, that one is not flogged for a prohibition that is remediated by a positive mitzva, is not accepted by everyone; rather, it is a dispute between tannaim .

We learned in the beraita: The Torah states in the passage concerning the Paschal offering [Exodus 12]

“You shall not leave any of it until morning, and that which is left of it until morning you shall burn in fire.”

And we derive:

, the verse comes

“and that which is left, you shall burn in fire,”

to provide a positive mitzva after a prohibition,

in order

to state that one is not flogged for it:

If you leave it over and transgress a prohibition, burn it in fire! The verse thus remediated the prohibition through this positive mitzva, exempting one from the punishment of lashes applicable to other prohibitions, and stating: This is its punishment and the means of rectifying the transgression—that he burn it . These are

the words of Rabbi Yehuda.

Rabbi Yaakov says: This is not the reason

; this is not the fundamental reason, and he is not exempt from lashes because the prohibition is remediated by a positive mitzva .

Rather,

why is he not flogged?

Because it is a prohibition that does not involve an action

: He simply sat and did not eat, and the leftover came into existence on its own .

And for every prohibition that does not involve an action—

one is not flogged for it .

It follows that Rabbi Yaakov does not hold that the exemption from lashes is due to a “prohibition that is remediated by a positive mitzva.”

And the Gemara asks:

And as for Rabbi Yaakov, this

—that the Torah wrote

“and that which is left of it until morning, you shall burn in fire”—what does it come for?

Since he does not require a special verse to exempt one from lashes, as the exemption is included among the other prohibitions that do not involve an action, for what exposition did the Torah write, “and that which is left, you shall burn in fire”?

It is needed for

another exposition,

as

we

learned,

as we learned in the Mishna in tractate Pesaḥim [83a]:

The bones,

which one is not permitted to break in order to eat the marrow inside them, because breaking bones is prohibited with regard to the Paschal offering,

and

likewise,

the sinews

that he did not eat,

and

the meat

that was left over,

because they delayed eating it and it became leftover meat—all are subject to the prohibition of leftover sacrificial meat and require burning . And what should he do with them?

They are burned on the sixteenth

of Nisan, which is the first day of the intermediate days of the Festival, and not on the Festival day, even though they had already become unfit from the morning of the Festival day. And if

the sixteenth falls on Shabbat, they

are burned on the seventeenth, because neither Shabbat nor the Festival day may be overridden

in order to fulfill the mitzva of burning.

And Ḥizkiyya said, and so was taught in the school of

[and so it was taught in the beit midrash of]

Ḥizkiyya: What is the reason

that the mitzva of burning them does not override Shabbat or the Festival day?

The verse states: “And that which is left of it until morning, you shall burn in fire.”

And “until morning” is superfluous, since the Torah had already written, “You shall not leave any of it until morning.” The verse therefore comes

to give it

a second morning for its burning

. This is the meaning of the verse: “You shall not leave any of it until morning,” meaning until the morning of the fifteenth of Nisan, at which point it becomes leftover sacrificial meat and is disqualified from consumption. But one must not burn it yet. Rather, “and that which is left of it until morning”—that is, the second morning, on the sixteenth of Nisan—then “you shall burn it in fire.” But not on the Festival day itself.

The Torah wrote “and that which is left, you shall burn in fire” for this exposition, and not to exempt one from lashes, because according to Rabbi Yaakov he is exempt from lashes on the grounds that there is no action involved in the prohibition of leaving sacrificial meat over.

The sugya of: “Everything that the Merciful One said, ‘Do not do’”

Abaye said: Everything

, every matter,

that the Merciful One said

, meaning that the Holy One, blessed be He, commanded in the Torah,

“Do not do it,”

do not do it!—

if one does it,

if he transgressed the Torah’s command and did it—

his action is effective,

his actions are effective, and what he did takes effect—

For if it should enter your mind—

that it is not effective,

the difficulty would be:

Why is he flogged

, why is he given forty lashes, if his actions were not effective?

Rava said

: Everything that the Merciful One said, “Do not do,” if one does it—

it is not effective at all,

his actions accomplish nothing.

And the reason he is flogged

is that he is flogged

because he transgressed the word of the Merciful One.

He transgressed the Torah’s command, even though his actions accomplished nothing.