Temurah 5a (ה.) — the Talmud in English

And the Gemara raises objections to Abaye’s statements and presents Abaye’s resolutions, and likewise with regard to Rava’s statements.

Meitivי

from that which we learned in a beraita:

One who rapes

, who rapes a virgin and takes her as his wife,

who divorced

his rape victim, thereby violating what the Torah said: “He may not send her away,”

if he is an Israelite—

he must take her back, but he does not receive lashes.

The questioner assumed that he does not receive lashes because his act was not effective, since he is obligated

to take her back.

Now, according to Abaye, who says that one receives lashes only when the act is effective, when his act produces a result, here, where the act is not effective, he is exempt from lashes. But according to Rava it is difficult:

And if you say

that even where the act is not effective,

since he violated the word of the Merciful One, he receives lashes

, it is difficult:

should he too not receive lashes?

Should the one who raped her also receive lashes for having violated the prohibition, despite the fact that his act was not effective? And this is

a refutation of Rava!

And we answer:

Rava could say to you:

Do not raise a difficulty against me, because

that case is different

: the case of the one who raped her differs from the other Torah mitzvot, because

the verse says

: “He may not send her away

all his days

,” and we derive:

all his days

And we answer:

—

he must stand and take her back! This indicates that he is prohibited from sending her away with a sending away that lasts “all his days.” Therefore, since he can take her back, he did not send her away with a sending away that lasts “all his days,” and he did not violate the word of the Merciful One. But with regard to the other Torah mitzvot, certainly he receives lashes even though the act is not effective, since in any event he violated the word of the Merciful One.

According to this exposition, the difficulty from the case of the one who raped her returns against Abaye’s position: Why did the Torah need to write “all his days,” to teach us that he does not receive lashes because “all his days” means that he must stand and take her back? Even if the Torah had not written this, we would likewise know that he does not receive lashes, as explained, because the act of the divorce is not effective, and according to Abaye one receives lashes only when the act is effective?

And we answer:

And according to Abaye, had the Merciful One not said “all his days”

we would have thought

—we would have said: If he divorced her,

he performed a prohibited act

, and violated the prohibition “He may not send her away,” and receives lashes for it, since his act was effective—

Now, he would have the choice:

if he wishes, he may take her back

, if he wants, he takes her back,

and if he wishes, he need not take her back

, and he would have no obligation to take her back. That is, if the Torah had said, “She shall remain his wife … He may not send her away,” we would have said: He is commanded to take her as his wife after he rapes her, and he is prohibited from divorcing her. If he divorced her, he violated the prohibition and receives lashes. Yet we would still not know that he is obligated to take her back if he divorced her. Therefore,

it teaches us

, the Torah teaches us through the words “all his days,” that he is obligated to take her back if he divorced her. And since he is obligated to take her back and his act was not effective, he does not receive lashes .

Another formulation:

Meitivי: One who raped a woman and divorced her, if he is an Israelite—

he must take her back, but does not receive lashes; and if he is a koen—

he receives lashes but does not take her back.

In any event, it teaches

: “If he is an Israelite, he must take her back.” The questioner assumes that he is obligated to take her back because his act was not effective. Now, granted, according to Rava, who maintains with regard to all Torah prohibitions, “If one performed an act, it is not effective,” he is properly obligated to take her back. But according to Abaye, who maintains with regard to all Torah prohibitions, “If one performed an act, it is effective,” this is difficult: Here it is proven that the act is not effective, and he is obligated to take her back.

This is a refutation of Abaye!

And we answer:

And we answer:

Abaye could say to you:

Indeed, with regard to the other Torah prohibitions, the act is effective. As for the fact that the one who raped her is obligated to take her back and the act is not effective, it is because

that case is different

: the case of the one who raped her differs from all the Torah prohibitions, because

the Merciful One said, “all his days,”

and we derive:

“All his days”: he must stand and take her back

, and therefore he is obligated to take her back. There is no contradiction here to the other Torah prohibitions, because in this case the Torah explicitly decreed that the act is not effective.

Now the difficulty returns against Rava, who maintains with regard to all Torah prohibitions that the act is not effective: If so, why did the Torah write “all his days” to teach us that he is obligated to take her back? It is obvious! After all, with regard to the other Torah prohibitions as well, the act is not effective?

And we answer:

And Rava could say to you: Had the Merciful One not written “all his days,” we would have thought

—we would have said:

let him receive lashes

, let him receive lashes for having violated the word of the Merciful One, even though the act is not effective,

and let him take her back

, and afterward let him take her back. And why would we have said this? Because

the case of the one who raped her would be

merely an ordinary prohibition, as it is written, “He may not send her away,”

meaning that it is not like the other Torah prohibitions, for violating which one receives lashes even though the act is not effective. We would not know that this is a special prohibition conditioned on his not taking her back—

For this reason [

because of this ]

the verse wrote “all his days,”

in order

to make the case of the one who raped her

subject to the law of a

prohibition

whose violation is rectified by a positive commandment, for which one does not

receive lashes

. Rashi wrote here: “And according to this formulation, this is the entire conclusion of the discussion.” The commentators explain his words in several ways. a. The Gra explains that Rashi prefers the alternative formulation, whose conclusion exempts him from lashes on the grounds that it is a prohibition whose violation is rectified by a positive commandment, because it then accords with the sugya above [4b], where the Gemara also concluded in this manner. And the Gra slightly emends the wording of Rashi. b. The Hok Natan explains that Rashi prefers the alternative formulation because according to this formulation the question and the answer resemble the entire continuation of the Gemara’s back-and-forth. That is, the Gemara cites a Mishna or a beraita in which the act is effective in order to challenge Rava, or in which the act is not effective in order to challenge Abaye. According to the first formulation, however, this is not so. c. Rabbi Yedei Eliyahu explains that the formulations apparently contradict one another. Initially, the Gemara cited the beraita concerning the one who raped her to challenge Rava, and at the end it cited the same beraita to challenge Abaye. Therefore, Rashi preferred the alternative formulation. According to this formulation, the questioner knew that there was no difficulty against Rava as to why he is exempt from lashes, and knew well that the reason was that it is a prohibition whose violation is rectified by a positive commandment. The question was only against Abaye: Why was his act not effective? The fact that the Gemara subsequently discusses the matter according to Rava is because this is the Gemara’s usual method: it turns the resolution of one authority into a difficulty against the other. See the Tza’an Kedoshim .

The Gemara continues to bring proofs concerning the dispute between Abaye and Rava.

And we challenge:

But what of the one who separates

, who separates teruma,

from inferior produce for superior produce

, for example, from pickling olives, which do not produce oil and are pickled in wine or vinegar to preserve them for eating, for oil olives, which are designated for producing their oil,

as the Merciful One said

in the passage concerning the teruma of the tithe [Numbers 18]: “You shall set aside the teruma of the Lord

from all its best

,” and we derive:

“its best”—yes

, one should separate from the superior produce, but from

inferior produce

for superior produce—

no

—one should not separate—

And one who separates from inferior produce for superior produce violates a prohibition derived from a positive commandment, and performed an act that the Merciful One said not to perform—

And we learned

, and we learned in tractate Terumot [chapter 2, mishna 6]:

One may not separate from inferior produce for superior produce, but if he did separate, his teruma is teruma—

Apparently

, it is proven that the act is

effective.

This is a refutation of Rava

, who maintains that the act is not effective.

And we answer:

Rava could say to you:

There is no proof from there, because

that case is different

: with regard to teruma there is a special exposition teaching us that the act is effective,

as

Rabbi

Ila’a expounded—

As Rabbi Ila’a said: From where is it derived that one who separates from inferior produce for superior produce has teruma that is teruma?

As it is stated [there]:

“And you shall not bear sin because of it when you set aside its best from it,”

indicating that if he does not set aside its best from it, “he will bear sin because of it.” And this is difficult:

If it is not sanctified

—why bear sin?

That is, it is not sanctified, so why should he bear sin?

Rather,

from here [

from here ] it can be derived

that one who separates from inferior produce for superior produce has teruma that is teruma

: that is, he bears sin alone, but nevertheless, his teruma is teruma.

And from this exposition we learn that one who separates from inferior produce for superior produce performs an effective act, unlike the other Torah prohibitions in which the act is not effective.

Now the difficulty turns against Abaye. Why did the Torah need to write, “And you shall not bear sin because of it,” to teach us that his teruma is teruma? Even without this exposition we would know that if one performed an act, it is effective?

And we answer:

And according to Abaye, had the Merciful One not said, “And you shall not bear sin because of it,” we would have thought

—we would have said:

This is what the Merciful One said: Perform

[

do ]

the mitzva in the optimal manner

and

separate from the superior produce!

But if he does not perform it

—if he separated from the inferior produce and violated the Torah’s command—not only did he fail to perform the mitzva in the optimal manner, but nevertheless he is

not called a sinner

; the Torah teaches us

that he is called a sinner.

And what of

the one who separates

from one species for another species

, for example, needles for wine,

as the Merciful One said

[in the passage cited above]: “

All the best of the oil and all the best of the wine

and grain,” and from the fact that the Torah wrote “best” and “best” with regard to oil and wine, we derive:

to assign ‘best’ to this and ‘best’ to that

. That is, one should separate from the best of the oil for oil and from the best of the wine for wine, and not from wine for oil or from oil for wine. One who separates from one species for another species violated the word of the Merciful One [a prohibition derived from a positive commandment].

And we learned

, and we learned in tractate Terumot [there, mishna 4]:

One may not separate from one species for another species, but if he did separate

—his teruma is not teruma.

Apparently

, it is proven that the act is

not effective.

This is a refutation of Abaye

, who says that the act is effective!

And we answer:

Abaye could say to you: With regard to the other Torah prohibitions, indeed, the act is effective, but

that case is different

: the law of one who separates from one species for another species differs, because

the verse says

[there]: “All the best of the oil and all the best of the wine and grain,

their first portion

,” and we derive:

a first portion for this and a first portion for that

—that is, from each species. And since the Torah repeated its statement that one should not separate from one species for another species after it had already written “best” and “best,” this repetition comes to teach us that the act is not effective.

And Rabbi Ila’a likewise said

that the act is not effective because it is stated

“their first portion”

, and we derive: to assign a first portion to this and a first portion to that.

Now the difficulty returns against Rava: Why did the Torah repeat the word “their first portion”? With regard to all Torah prohibitions, the act is not effective.

And we answer:

And according to Rava, had the Merciful One not said “their first portion,” we would have thought

—we would have said that the Torah wrote “all the best of the oil and all the best of the wine and grain” [and did not say “the best of the grain”]. Therefore,

wine and oil, with regard to which “best” and “best” are written

—they

are what one may not separate from one for the other. But with regard to wine and grain, for which a single “best”

is written

, as it is stated, “and all the best of the wine and grain,” we would have said:

one may separate from this for that

—it would be permitted to separate from wine for grain, from grain for wine, or from grain for grain, such as wheat for barley—

Therefore,

the Merciful One wrote, “their first fruits,”

to teach us that one may not separate from grain for wine, from wine for grain, or even from one type of grain for another type of grain

. The Gemara continues to challenge Abaye based on the law of “herem”.

One who declares his property herem, thereby consecrating his property with the designation “herem”—for example, if he said concerning his slave or his animal, “This is herem”—it must be given to a koэн

. And we challenge this:

But what about herem, concerning which the Merciful One said

[Leviticus 27]

“Any herem that a man declares as herem to the Lord, from all that is his, whether of a person, an animal, or of the field of his possession, shall not be sold and shall not be redeemed.”

And we learned,

and we learned in tractate Arakhin [28b]:

the herem of kohanim,

which Jews declared as herem in order to give it to the kohanim,

has no redemption; rather, it is given to the kohanim.

Evidently,

it is proven from the Mishna’s statement, “has no redemption,” that

“it does not take effect,”

and if one redeemed it, he accomplished nothing.

This is a refutation of Abaye,

who holds that “it takes effect”!

And we answer:

Abaye could say to you:

There it is different,

because the Torah expressly revealed that “it does not take effect”,

for the Merciful One said, “It is a most holy thing,”

to teach us that

it shall remain as it is,

and does not leave the realm of consecrated property through redemption.