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Wednesday, January 16, 2013

Switcharoo (Post 4: More Svara)

In the last post, we suggested that Rava maintains that there are three different qualitative types of exchange: downgrade, upgrade, and an even exchange.  Thus, if the Torah only prohibited a downgrade and an upgrade, we would need a קל וחומר to prohibit an even exchange. We suggested that Abaye argues that they are quantitatively differentiated and thereby avoids the problem of אין עונשין מן הדין.

We now suggest that even Abaye agrees that there are three different qualitative types of exchange. However, Abaye reasons that once we see that the Torah prohibits a downgrade and an upgrade, it is "revealed" that the Torah does not mean to permit an even exchange (which is worse than an upgrade).  Rather, when the Torah said "don't even exchange a good animal for a bad one", the Torah was really saying "don't exchange it in any situation whatsoever".

Furthermore,  Abaye argues that we can learn this without the mechanism of קל וחומר. Rather, we can deduce that the Torah is not truly interested in prohibiting the particular qualities of exchange, but is prohibiting the entire category of exchange. It teaches this through the explicit mention of downgrade and upgrade, but the logical implication is of one singular prohibition on the entire category as a whole. This relies on the underlying logic of קל וחומר, but does not utilize the technical mechanism of קל וחומר.

We can therefore explain the machlokes as follows:

Abaye: If a halacha is derived by the mechanism of קל וחומר, then it cannot result in an עונש.
Rava If a halacha is derived by the logic of קל וחומר, then it cannot result in an עונש.

Based upon this, Rava argues that you cannot extend from a case which is explicitly prohibited in the Torah (an upgrade) to an even exchange without the underlying logic of קל וחומר, and thereby running into the problem of אין עונשין מן הדין.  Rava therefore needs another לימוד to prohibit an even exchange.

Abaye counters that this extension need not make use of the mechanism of קל וחומר, but can be accomplished through a logical analysis which reveals the underlying general prohibition of the Torah.  He therefore gets around the problem of אין עונשין מן הדין and needs no further לימוד to prohibit an even exchange.

A support for this way of interpreting the machlokes (as a universal question about how to understand אין עונשין מן הדין, as opposed to a particular dispute in  תמורה) is from the fact that the same machlokes between Abaye and Rava appearing in a totally different context in the gemara in Sanhedrin 76a:
בתו מאנוסתו מנין האמר אביי ק"ו על בת בתו ענוש על בתו לא כל שכן וכי עונשין מן הדין גלויי מילתא בעלמא הוא רבא אמר אמר לי ר' יצחק בר אבדימי אתיא הנה הנה אתיא זמה זמה


  1. That seems very strange, though. What kind of logical maneuver makes use of the tools of Kal V'Chomer without getting the label of Kal V'Chomer?

    I'm not clear on how the vague application of a Kal V'Chomer-like derivation is any different than a standard Kal V'Chomer.

    1. There are different types of limudim ( i.e. an extra word, gzaira shava, kal v' chomer, gieluy milsah, etc.).

      We are saying that according to Abaye the Torah is using a gieluy milsah to derive the law, even though one must use logic in order to properly apply it. Hence, the technical mechanism of the limud is a gieluy milsah and not a kal v' chomer.

  2. But why would the principle of ein onshin apply? Aren't all kal v'chomers logical tools of derivation? I'm not sure if my confusion is in the principle of ein onshin, kal v'chomer, or this kal v'chomer-esque logical derivation.

    1. Do you see the difference between the technical vehicle of derivation (the specific limud being used), and a mere logical thought process which is a stepping stone to employing the actual limud?

    2. Not really. Aren't they all simply legitimate tools of derivation? I don't see why one legitimate tool would be in a separate class from another legitimate tool.

    3. We're not saying that according to Abaye every kal v'chomer is a mere logical thought process which is a stepping stone to employing an actual limud. In general, Abaye would agree that a kal v'chomer is the actual technical limud (and hence the principle of אין עונשין מן הדין would apply).

      Rather, we are saying that in this specific case by Temura (and also the case we quoted as a support in Sanhedrin) the kal v'chomer is not the actual limud being used, but is merely a gateway to the gieluy milsah which ultimately reveals the law.

      Does that clarify the point?


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