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Wednesday, December 26, 2012

Switcharoo (Part 1: Facts)

We know that the following sugya is in an unfamiliar area (תמורה) for most people, but we'll try to give the appropriate background that will allow you to think about the problem.  Feel free to ask any questions if you think you need more information.

The Torah in Vayikra 27:10 discuses an animal that has the sanctity of a קרבן (i.e. it is designated to be brought as a sacrifice on the alter):
לֹא יַחֲלִיפֶנּוּ וְלֹא יָמִיר אֹתוֹ טוֹב בְּרָע אוֹ רַע בְּטוֹב וְאִם הָמֵר יָמִיר בְּהֵמָה בִּבְהֵמָה וְהָיָה הוּא וּתְמוּרָתוֹ יִהְיֶה קֹּדֶשׁ
You are not allowed to switch the sanctified animal for a different animal.  It doesn't matter if the original קרבן was good (i.e. has no blemish), and the substituted animal (תמורה) is bad (i.e. has a blemish); or if the original קרבן was bad, and the substituted animal is good.  If you try to switch the original קרבן for another animal, both the original animal and the substitute end up consecrated, and you get lashes. (Not a good idea to try.)

The gemara in Temura 9a brings down an argument between Rava and Abaye regarding substitution when both animals are good (a case not explicitly taken up in the verse):
תנו רבנן ממירין מן בעלי מומין על התמימים ומן התמימים על בעלי מומין... רבא אמר... חד טוב, אפי' בטוב נמי כי ממיר לקי ואביי אמר קל וחומר הוא ומה טוב ברע דעלויי קא מעלי ליה לקי טוב בטוב דכי הדדי נינהו לא כל שכן דלקי ורבא אין עונשין מן הדין ואביי אמר לך האי לאו עונשין מן הדין הוא מי גרע טוב מרע
The basic machlokes between Abaye and Rava revolves around whether we need an extra word 'טוב' in order to derive the law that you get the punishment of lashes for a substitution when both animals are good.

Rava:  We need an extra word 'טוב' to teach us that you get the punishment of lashes for substitution when both animals are good.

Abaye:  We don't need the extra word 'טוב', as we would already know it from basic logic (קל וחומר):  If the Torah explicitly prohibits substituting a good animal in the place of bad animal (where you are improving upon the original קרבן), of course you get lashes for substituting a good animal for another good animal.

Rava:  Your logic Abaye is impeccable.  Nevertheless, we do need the extra word 'טוב', as we have a general principle throughout the Torah of אין עונשין מן הדין (you cannot derive a punishment through the logic of קל וחומר).

Abaye:  This is not a problem of עונשין מן הדין.  How could substituting a good one in place of a good one, be any less prohibited than in place of a bad one?!

Rashi explains this last reply of Abaye:
ואביי אמר לך האי לאו עונשין מן הדין הוא. אלא אגלויי מילתא בעלמא היא דהיכא דגלי קרא דלקי אטוב דחולין כי מימר ליה ברע דקדש גלי נמי דאי מימר ליה בטוב דקדש לקי: דמי גרע טוב מרע. כלומר מי גרע טוב דקדש מרע דקדש כי היכי דרע דקדש כי מחליף ליה לקי ה"ה לטוב דקדש דרחמנא לא קפיד אלא דלא יחליף מידי דקדש
It's not a problem of עונשין מן הדין, as the logical reasoning is simply being used to reveal the true intent of the Torah; when it said "don't switch a good for a bad" (where you're improving the situation), what the Torah was really saying is "don't switch at all, in any situation".  This obviously includes the case of a good animal in place of another good one, as how could this be any better than switching a good animal in place of a bad one?!

How can we define the machlokes between Rava and Abaye?  What do have to understand first, before we can even begin to try to define the machlokes?

10 comments:

  1. I'm not really sure how abaye gets around this אין עונשין מן הדין problem. Even if it's being used to reveal the true intent of the torah, doesn't it still fall under the category of "logical reasoning"?

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    1. Great question. That is one of the key issues that has to be explained in order to properly understand this sugya.

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  2. It seems like a strange machlokes-they both agree to the halacha, it's a matter of where we derive it from.

    A thought: perhaps this 'logical reasoning' is different than others.Here the logical reasoning is really taking a particular case-good for good-which is part of the overall issur of the torah. Meaning, good for good, and good for bad, all partake of an issur maaseh hachlafa, as rashi says at the end "the torah is only makpid that one does not exchange any entity of kodesh." However 'logical reasoning' in general is creating a case from another case where the newly created halacha does not partake of the halachik structure of the original one. (Obviously I'm not positive about this, as this would have to demonstrated from all cases in shas.)

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  3. This might be similar to what Mio is saying. Perhaps Abaye's argument is that he is only using the kal v'chomer to show that the case of being machlif tov b'tov is part of the issur temurah. Since the onesh for the issur temurah is malkus one is lokeh when he is machlif tov b'tov. Here he has only used the kal v'chomer to learn an inclusion in the issur temurah but has not derived an onesh from the kal v'chomer.

    There are (at least) 2 ways that Rava can argue with this.

    1. He can say that the onesh of malkus is only for the temurah when one swithces ra b'tov and tov b'ra and not for the issur temurah in general. Therefore, although it would be assur to switch tov b'tov you cannot learn out that you receive malkus without deriving the onesh from the kal v'chomer. We would then have to investigate the relationship between the issur temurah and the onesh in order to understand the machlokus.

    2. He could argue that although technically Abaye's kal v'chomer is just including the case of tov b'tov in the issur temurah it practically results in the onesh of malkus. Rava would be maintaing that this still falls under the problem of ain onshin min ha din. We would then have to investigate the nature of the problem of ain onshin min ha din in order to understand the machlokus.

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  4. He can say that the onesh of malkus is only for the temurah when one swithces ra b'tov and tov b'ra and not for the issur temurah in general. ***Therefore, although it would be assur to switch tov b'tov you cannot learn out that you receive malkus without deriving the onesh from the kal v'chomer***

    Isn't the halacha that anything which is an issur deorisa you get malkoos for? Isn't the 'logical reasoning' teaching us that good for good is in fact assur and therefore you get malkoos? Meaning, according to rava, he is not learning out the chiyuv malkoos for good for good, from the word 'tov', he is learning that it is in fact part of the issur itself.

    We would then have to investigate the nature of the problem of ain onshin min ha din in order to understand the machlokus.

    That seems like you're taking this machlokes and making it a universal machlokes regarding 'logical reasoning'; wouldn't it be more appropriate to localize it, and perhaps try to define the essence of the issur according to both shitos, which would explain the reason for why they learn it out from different methods?

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    1. It is true in general that lavin in the Torah for which there is no explicit onesh the onesh is malkus. However there are exceptions. Lavin sh'ain bo maaseh do not have an onesh malkus, Also there is a shittah that learns chatzi shiur as an issur deorisa although there is no onesh malkus.

      I agree it would be nicer to have the machlokus boil down to different understandings of the issur temurah. However, it is also a possibility that their machlokus arises from a question about the nature of the problem of ain onshin min ha din.

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  5. I've been thinking a bit more about this in light of Mio's comment. I think something needs to be clarified about the principle of ain onshin min ha din. Does it only apply when actually trying to derive the onesh for one lav based upon the onesh of another? That is, would deriviing an onesh min ha din mean to say - since the onesh in the kal area is so and so certainly by the chomer area it should also be so and so? Or does it even mean learning out that something is prohibited from a kal v'chomer and this prohibition generates an onesh? As Mio pointed out, since almost every prohibition carries an onesh it would seem that according to the second way it is nearly impossible to learn out a prohibition from the mechanism of kal v'chomer.

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    1. The basic principle of אין עונשין מן הדין is with regard to using a kal v'chomer to derive any punishment (including malkus). However, we think that you can derive a simple prohibition that carries no punishment with its violation (such as a prohibition that is implicit in a positive commandment).

      The machlokes here between Abaye and Rava does not seem to be about whether "good for good" would be prohibited, but about whether you would get malkus without the extra word. (Because in this case, the kal v'chomer is extending a regular lav.)

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    2. To clarify the facts RAZ/REF:

      The machlokes is NOT where 'good for good' which is assur is learnt out from, as that is learnt out from the kal vchomer which both rava and abbaye agree to. The question is whether from that kal vchomer we can derive the malkus, or we need 'tov' to learn out the onesh of malkus.

      Then the question is, according to abbaye we still have the problem of 'logical reasoning' for the onesh of malkus, even though Abbaye holds that the passuk is merely revealing its true intent.

      According to this understanding of the facts, it would seem that rava and abbaye would not be disagreeing upon the fundamental nature of the lav itself(which is what I was saying earlier according to the understanding that they are arguing over where the issur of 'good for good' is derived from.)

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    3. All would agree that were it not for the problem of ein onshin min hadin, you would use kal ve'chomer and extend the lav to "good for good". Now that we cannot use the kal ve'chomer and the onesh doesn't extend, it is not clear if you can separately extend the lav/issur and not the malkus. Perhaps, by a lav the issur and the malkus go together.

      Your last paragraph doesn't necessarily follow. Just because they both would use the kal ve'chomer to assur good for good (were it not for ein onshin...) doesn't mean that they understand the lav the same way conceptually. Perhaps because of different understandings of the lav, Abayei can say "gilui milsa...", but Rava necessarily applies "ein onshin..."

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