The gemara brings sources for the laws mentioned in the braita on the previous page regarding sanctified items of non-Jews – are they considered like sanctified items of Jews (and if so, in what ways) or are they not? Does one receive lashes for negative commandments that have no action? Most agree that one does not, however some exceptions to the rule are mentioned and the gemara attempts to understand the cases and from where it is derived that one gets lashes.
This week’s learning is dedicated by Robert and Paula Cohen in loving memory of Robert’s brother (my uncle), Richard Cohen on his first yahrzeit. “A true Baal Chesed who helped anyone in need without seeking recognition, he was a friend to everyone, young or old, and always put others’ needs before his own. He is truly missed by so many.”
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This week’s learning is dedicated by Robert and Paula Cohen in loving memory of Robert’s brother (my uncle), Richard Cohen on his first yahrzeit. “A true Baal Chesed who helped anyone in need without seeking recognition, he was a friend to everyone, young or old, and always put others’ needs before his own. He is truly missed by so many.”
Temurah 3
עַל שֶׁל חֲבֵירוֹ — טוֹבַת הֲנָאָה שֶׁלּוֹ!
for the purpose of exempting the produce of another, the benefit of discretion as to which priest or Levite will receive it is his. Apparently, the halakhot of substitution follow the one achieving atonement.
אֲמַר לֵיהּ: הָתָם הוּא דְּקָאָתֵי מִכֹּחַ יִשְׂרָאֵל, מִשּׁוּם הָכִי אָזְלִינַן בָּתַר מִתְכַּפֵּר, וְהָוֵה לֵיהּ תְּחִילָּתוֹ וְסוֹפוֹ בְּיַד יִשְׂרָאֵל. אֲבָל הָכָא, הָכִי קָא מִיבַּעְיָא לֵיהּ: מִי בָּעֵינַן מִתְּחִילָּה וְעַד סוֹף דְּתֵיקוּ בִּרְשׁוּת מַאן דְּעָבֵיד תְּמוּרָה? תֵּיקוּ.
Rami bar Ḥama could say to this: There, in Rabbi Yoḥanan’s statement, the offering comes on behalf of the Jew who consecrated it. Due to that reason, we follow the one atoning, and during both the initial consecration of the offering and its ultimate sacrifice the animal is in the possession of a Jew, who is able to effect substitution. But here, where a gentile consecrated the animal, this is how he raises the dilemma: Do we require that from the initial consecration of the offering until the ultimate act of sacrifice it must be in the possession of one who is able to effect substitution or not? The Gemara concludes: The dilemma shall stand [teiku] unresolved.
אָמַר מָר: מוּקְדְּשֵׁי גּוֹיִם לֹא נֶהֱנִין וְלֹא מוֹעֲלִין. לֹא נֶהֱנִין — מִדְּרַבָּנַן, וְלֹא מוֹעֲלִין — מִדְּאוֹרָיְיתָא.
§ The Master said in the baraita cited on the previous amud: With regard to animals consecrated by gentiles, one may not derive benefit ab initio, but if one benefited from them after the fact, he is not liable for misusing consecrated property. The Gemara explains: The halakha that one may not benefit from them ab initio is by rabbinic law. And that halakha that if one benefited from them after the fact he is not liable for misusing consecrated property is by Torah law.
מַאי טַעְמָא? דִּכְתִיב: ״נֶפֶשׁ כִּי תִּמְעֹל מַעַל וְחָטְאָה בִּשְׁגָגָה״, וְיָלְפִינַן ״חֵטְא״ ״חֵטְא״ מִתְּרוּמָה, וּבִתְרוּמָה כְּתִיב: ״בְּנֵי יִשְׂרָאֵל״, וְלֹא גּוֹיִם.
What is the reason that one is not liable for misuse? As it is written with regard to misuse of consecrated property: “If anyone commit a trespass, and sin through error, in the holy items of the Lord” (Leviticus 5:15). And we derive a verbal analogy from the use of the word “sin” in this verse and the word “sin” used in the context of teruma: “They shall therefore keep My charge, lest they bear sin for it” (Leviticus 22:9). And with regard to teruma it is written explicitly: “Even of all the hallowed items of the children of Israel” (Numbers 18:8), from which one can infer: But not of gentiles. The halakhot of misuse as well, therefore, do not apply to animals consecrated by gentiles.
וְאֵין חַיָּיבִין עֲלֵיהֶם, מִשּׁוּם פִּיגּוּל, נוֹתָר, וְטָמֵא, דִּכְתִיב בַּהּ בְּטוּמְאָה: ״דַּבֵּר אֶל אַהֲרֹן וְאֶל בָּנָיו וְיִנָּזְרוּ מִקׇּדְשֵׁי בְנֵי יִשְׂרָאֵל וְלֹא יְחַלְּלוּ אֶת שֵׁם וְגוֹ׳״.
The baraita continues: And if one consumes them, i.e., animals consecrated by gentiles, one is not liable for committing a transgression, with regard to the prohibitions of piggul, notar, or consuming offerings while ritually impure. The source for this is a verse, as it is written with regard to ritual impurity: “Speak to Aaron and to his sons, that they separate themselves from the holy items of the children of Israel, which they hallow unto Me, and that they profane not My holy name” (Leviticus 22:2). This verse explicitly mentions items consecrated by the children of Israel, to emphasize that the halakha of distancing oneself from consecrated items while in a state of ritual impurity does not include items consecrated by gentiles.
וְיָלֵיף נוֹתָר ״חִילּוּל״ ״חִילּוּל״ מִטּוּמְאָה, דִּכְתִיב גַּבֵּי טוּמְאָה: ״בְנֵי יִשְׂרָאֵל וְלֹא יְחַלְּלוּוְגוֹ׳״, וּכְתִיב גַּבֵּי נוֹתָר: ״וְאוֹכְלָיו עֲוֹנוֹ יִשָּׂא כִּי אֶת קֹדֶשׁ ה׳ חִלֵּל״.
And one derives the exemption from notar by drawing a verbal analogy between the word “profane” used in the context of notar and the word “profane” used in the context of ritual impurity. As it is written in the verse cited above with regard to ritual impurity: “That they separate themselves from the holy items of the children of Israel, which they hallow unto Me, and that they profane not My holy name.” And it is written with regard to notar: “But every one that eats it shall bear his iniquity, because he has profaned the holy item of the Lord” (Leviticus 19:8). Since the prohibition against consuming consecrated items while impure does not apply to the offerings of gentiles, neither does the prohibition of notar.
וְיָלֵיף פִּיגּוּל ״עָוֹן״ ״עָוֹן״ מִנּוֹתָר, דִּכְתִיב גַּבֵּי פִּיגּוּל: ״וְהַנֶּפֶשׁ הָאוֹכֶלֶת מִמֶּנּוּ עֲוֹנָהּ תִּשָּׂא״, וּכְתִיב גַּבֵּי נוֹתָר: ״וְאוֹכְלָיו עֲוֹנוֹ יִשָּׂא כִּי אֶת קֹדֶשׁ ה׳ חִלֵּל״, וְכוּלְּהוּ בְּנֵי יִשְׂרָאֵל וְלֹא גּוֹיִם.
And the tanna of the baraita derives the gentiles’ exemption from piggul by verbal analogy between the word “iniquity” used in the context of piggul and the word “iniquity” used in the context of notar, as it is written with regard to piggul: “And the soul that eats of it shall bear his iniquity” (Leviticus 7:18), and it is written with regard to notar: “But everyone that eats it shall bear his iniquity, because he has profaned the holy item of the Lord” (Leviticus 19:8). And based on these two verbal analogies, one concludes that with regard to all of them, i.e., piggul, notar, and ritually impure offerings, the prohibition against consumption applies only to offerings of the children of Israel, but not to those of gentiles.
וְאֵין עוֹשִׂין תְּמוּרָה, דִּכְתִיב: ״לֹא יַחֲלִיפֶנּוּ וְלֹא יָמִיר״, וּכְתִיב בְּרֵישׁ עִנְיָן: ״דַּבֵּר אֶל בְּנֵי יִשְׂרָאֵל לֵאמֹר אִישׁ כִּי יַפְלִיא נֶדֶר בְּעֶרְכְּךָ״.
The baraita continues: And a gentile cannot render a non-sacred animal a substitute for one he has consecrated. The Gemara cites the source for this halakha: As it is written with regard to substitutions: “He shall not exchange it, nor substitute it” (Leviticus 27:10), and it is written at the beginning of the matter: “Speak to the children of Israel, and say to them: When a man shall clearly utter a vow of persons to the Lord, according to your valuation” (Leviticus 27:2). Since the passage specifically addresses the children of Israel, the halakhot of substitution apply only to them, not to gentiles.
לִישָּׁנָא אַחֲרִינָא: וְאֵין עוֹשִׂין תְּמוּרָה, מַאי טַעְמָא? דְּאִיתַּקַּשָׁא תְּמוּרַת בְּהֵמָה לְמַעְשַׂר בְּהֵמָה, וּמַעְשַׂר בְּהֵמָה לְמַעֲשֵׂר דָּגָן. וְגַבֵּי מַעְשַׂר דָּגָן כְּתִיב: ״(כֹּל) [כִּי אֶת] מַעְשַׂר בְּנֵי יִשְׂרָאֵל אֲשֶׁר יָרִימוּ לַה׳… בְּנֵי יִשְׂרָאֵל״ — וְלֹא גּוֹיִם.
The Gemara presents another version of the source for this halakha: The baraita states: And a gentile cannot render a non-sacred animal a substitute for one he has consecrated. What is the reason? The reason is that the substitution of consecrated animals is juxtaposed with the animal tithe (see Leviticus 27:32), and the animal tithe is juxtaposed with the grain tithe. And with regard to the grain tithe it is written: “For the tithe of the children of Israel, which they set apart as a gift to the Lord, I have given to the Levites for an inheritance” (Numbers 18:24), indicating that the halakhot of the grain tithe apply only to the children of Israel, but not to gentiles. From the juxtapositions, one derives that the same holds for substitution.
וְאֵין מֵבִיא (עֲלֵיהֶן) נְסָכִים, אֲבָל קׇרְבָּנוֹ טָעוּן נְסָכִים, דִּבְרֵי רַבִּי שִׁמְעוֹן. מְנָא הָנֵי מִילֵּי? דְּתָנוּ רַבָּנַן: ״אֶזְרָח״ — אֶזְרָח מֵבִיא נְסָכִים וְאֵין הַגּוֹי מֵבִיא נְסָכִים. יָכוֹל לֹא תְּהֵא עוֹלָתוֹ טְעוּנָה נְסָכִים? תַּלְמוּד לוֹמַר ״כָּכָה״.
The baraita continues: And one does not bring libations for a gentile as an independent offering, but his offering requires libations. This is the statement of Rabbi Shimon. The Gemara explains: From where are these matters derived? They are derived from a verse, as the Sages taught in a baraita: The verse states with regard to libations: “All that are homeborn shall do these after this manner, in presenting an offering made by fire, of a sweet savor to the Lord” (Numbers 15:13). One who is homeborn, i.e., a Jew, brings libations, but a gentile does not bring libations. One might have thought that a gentile’s burnt offering should not require libations; therefore, the verse states: “So shall it be done for each bull, or for each ram, or for each of the lambs, or of the goats” (Numbers 15:10–11). This teaches that every burnt offering, even that of a gentile, requires libations.
אָמַר רַבִּי יוֹסֵי: רוֹאֶה אֲנִי בְּכוּלָּן לְהַחְמִיר. מַאי טַעְמָא? ״לַה׳״ כְּתִיב בֵּיהּ.
The baraita continues: Rabbi Yosei said: I see the logic of the opinion that in all of these cases it is correct to be stringent about the offerings of gentiles. The Gemara explains: What is the reason? With regard to the offering of a gentile, it is written: “Whosoever he be of the house of Israel, or of the strangers in Israel, that brings his offering, whether it be any of their vows, or any of their gift offerings, which are brought to the Lord for a burnt offering” (Leviticus 22:18). The verse equates the offerings of gentiles, “the strangers in Israel,” with those of Jews, and indicates that the consecrated status of the former is identical to that of the latter.
בַּמֶּה דְּבָרִים אֲמוּרִים — בְּקׇדְשֵׁי מִזְבֵּחַ, אֲבָל בְּקׇדְשֵׁי בֶּדֶק הַבַּיִת — מוֹעֲלִין בָּהֶן. מַאי טַעְמָא? דְּכִי גָּמְרִינַן מְעִילָה ״חֵטְא״ ״חֵטְא״ מִתְּרוּמָה, דֻּומְיָא דִּתְרוּמָה (דקדוש) [דִּקְדוֹשָׁה] קְדוּשַּׁת הַגּוּף, אֲבָל בקדשי בֶּדֶק הַבַּיִת דִּקְדוּשַּׁת דָּמִים — לָא.
The baraita continues: In what case is this statement said? It is said with regard to animals consecrated for the altar, but with regard to animals consecrated for Temple maintenance, one who benefits from them is liable for misusing consecrated property. The Gemara explains: What is the reason? The reason is that when we learn that items consecrated by gentiles are not subject to liability for misuse by the verbal analogy between the word sin and another instance of the word sin from the context of teruma, this applies only to consecrated property that is similar to teruma, which is consecrated with inherent sanctity. But with regard to an item that has the sanctity of the Temple maintenance, whose sanctity inheres in its value, as it will ultimately be sold and the proceeds used for Temple maintenance, the analogy does not apply.
אָמַר רַב יְהוּדָה, אָמַר רַב: כׇּל ״לֹא תַעֲשֶׂה״ בַּתּוֹרָה, עָשָׂה (בָּהּ) מַעֲשֶׂה — חַיָּיב, לֹא עָשָׂה (בָּהּ) מַעֲשֶׂה — פָּטוּר.
§ The mishna teaches that one who effects substitution receives lashes. Rav Yehuda says that Rav says: With regard to any prohibition in the Torah, if one performed an action to transgress it, he is liable to receive lashes. But if he did not perform an action to transgress it, he is exempt from receiving lashes.
וּכְלָלָא הוּא דְּלָאו שֶׁאֵין בּוֹ מַעֲשֶׂה פָּטוּר? וַהֲרֵי מֵימֵר, דְּלָאו שֶׁאֵין בּוֹ מַעֲשֶׂה הוּא, וְלָקֵי, דִּתְנַן: ״לֹא שֶׁהוּא רַשַּׁאי לְהָמִיר, אֶלָּא שֶׁאִם הֵמִיר מוּמָר, וְסוֹפֵג אֶת הָאַרְבָּעִים״.
The Gemara asks: But is it an established principle that one who transgresses a prohibition that does not involve an action is exempt? But there is the prohibition of substitution, which is a prohibition that does not involve an action, and one is flogged for transgressing it, as we learned in the mishna: That is not to say that it is permitted for a person to effect substitution; rather, it means that if one substituted a non-sacred animal for a consecrated animal, the substitution takes effect, and the one who substituted the non-sacred animal incurs the forty lashes.
אָמַר לְךָ רַב: הָא מַנִּי? רַבִּי יְהוּדָה הִיא, דְּאָמַר: לָאו שֶׁאֵין בּוֹ מַעֲשֶׂה — לוֹקִין עָלָיו.
The Gemara answers: Rav could have said to you: In accordance with whose opinion is this mishna written? It is in accordance with that opinion of Rabbi Yehuda, who said: With regard to a prohibition that does not involve an action, one is flogged for transgressing it. The Rabbis, however, disagree.
וּמִי מָצֵית מוֹקְמַתְּ לְמַתְנִיתִין כְּרַבִּי יְהוּדָה? וְהָא אוֹקֵימְתַּאּ לְרֵישָׁא דְּלָא כְּרַבִּי יְהוּדָה, דְּקָתָנֵי ״הַכֹּל מְמִירִין״, ״הַכֹּל״ לְאֵיתוֹיֵי מַאי? לְאֵיתוֹיֵי יוֹרֵשׁ, וּדְלָא כְּרַבִּי יְהוּדָה!
The Gemara counters: But can you establish the mishna as being in accordance with the opinion of Rabbi Yehuda? But we established the first clause of the mishna as not being in accordance with the opinion of Rabbi Yehuda, as it teaches: Everyone substitutes a non-sacred animal for a consecrated animal, and the Gemara added (2a): What does the expansive term everyone serve to include? It serves to include an inheritor, and accordingly, this mishna is not in accordance with the opinion of Rabbi Yehuda, who holds that an inheritor cannot effect substitution.
הַאי תַּנָּא סָבַר לַהּ כְּוָותֵיהּ בַּחֲדָא — דְּלָאו שֶׁאֵין בּוֹ מַעֲשֶׂה לוֹקִין עָלָיו, וּפְלִיג עֲלֵיהּ בַּחֲדָא — דְּאִילּוּ רַבִּי יְהוּדָה סָבַר: יוֹרֵשׁ אֵינוֹ סוֹמֵךְ, יוֹרֵשׁ אֵינוֹ מֵמִיר, וְתַנָּא דִידַן סָבַר: יוֹרֵשׁ סוֹמֵךְ, יוֹרֵשׁ מֵמִיר.
The Gemara answers: The tanna of this mishna holds in accordance with the opinion of Rabbi Yehuda with regard to one matter, that one is flogged for transgressing a prohibition that does not involve an action, and disagrees with him with regard to one other matter, as Rabbi Yehuda holds that an inheritor does not place his hands on the head of the offering when he sacrifices it, and an inheritor is not able to substitute a non-sacred animal for a consecrated one that he inherited; and the tanna of our mishna holds that an inheritor places his hands on the head of the offering when he sacrifices it, and an inheritor is able to substitute a non-sacred animal for a consecrated one that he inherited.
אָמַר רַב אִידִי בַּר אָבִין, אָמַר רַב עַמְרָם, אָמַר רַבִּי יִצְחָק, אָמַר רַבִּי יוֹחָנָן מִשּׁוּם רַבִּי יוֹסֵי הַגְּלִילִי: כׇּל לֹא תַעֲשֶׂה שֶׁבַּתּוֹרָה, עָשָׂה בּוֹ מַעֲשֶׂה — לוֹקֶה, לֹא עָשָׂה בּוֹ מַעֲשֶׂה — פָּטוּר, חוּץ מִנִּשְׁבָּע, וּמֵימֵר, וּמְקַלֵּל חֲבֵירוֹ בַּשֵּׁם, אַף עַל פִּי שֶׁלֹּא עָשָׂה מַעֲשֶׂה — חַיָּיב. מִשּׁוּם רַבִּי יוֹסֵי בְּרַבִּי חֲנִינָא אָמְרוּ: אַף הַמַּקְדִּים תְּרוּמָה לְבִיכּוּרִים.
Rav Idi bar Avin says that Rav Amram says that Rabbi Yitzḥak says that Rabbi Yoḥanan says in the name of Rabbi Yosei HaGelili: With regard to every prohibition in the Torah, if one performed an action to transgress it, he is flogged. But if he did not perform an action to transgress it, he is exempt from lashes, except for one who takes an oath, and one who effects substitution, and one who curses another using the name of God. For these three transgressions, even though he did not perform an action, he is liable to receive lashes. They said in the name of Rabbi Yosei, son of Rabbi Ḥanina: Also one who separates teruma prior to designating the first fruits is flogged, even though teruma can be separated by intention alone, without an action.
נִשְׁבָּע מְנָלַן? אָמַר רַבִּי יוֹחָנָן מִשּׁוּם רַבִּי מֵאִיר: אָמַר קְרָא ״כִּי לֹא יְנַקֶּה ה׳ אֵת אֲשֶׁר יִשָּׂא אֶת שְׁמוֹ לַשָּׁוְא״, בֵּית דִּין שֶׁל מַעְלָה
The Gemara discusses the sources for these exceptions. From where do we derive that one who takes an oath using the name of God is flogged? Rabbi Yoḥanan says in the name of Rabbi Meir that the verse states: “For the Lord will not hold him guiltless that takes His name in vain” (Exodus 20:7). One can infer: The higher, i.e., heavenly, court
אֵין מְנַקִּין אוֹתוֹ, אֲבָל בֵּית דִּין שֶׁל מַטָּה מַלְקִין אוֹתוֹ וּמְנַקִּין אוֹתוֹ.
does not hold him guiltless, as repentance alone will not atone for the sin, but the lower, i.e., earthly, court flogs him, thereby allowing him to atone, and absolves him of guilt.
אֲמַר לֵיהּ רַב פָּפָּא לְאַבָּיֵי: וְאֵימָא לָא תִּיהְוֵי לֵיהּ נְקִיּוּת כְּלָל! אֲמַר לֵיהּ: אִם כֵּן, לִכְתּוֹב קְרָא ״לֹא יִנָּקֶה״ וְלִישְׁתּוֹק, ״ה׳״ לְמָה לִי? בֵּית דִּין שֶׁל מַעְלָה הוּא דְּאֵין מְנַקִּין אוֹתוֹ, אֲבָל בֵּית דִּין שֶׁל מַטָּה מַלְקִין וּמְנַקִּין אוֹתוֹ.
Rav Pappa said to Abaye: But why not say that the verse means he cannot be absolved of guilt at all? Abaye said to him: If so, let the verse write only: “Will not hold him guiltless,” and be silent. Why do I need the verse to specify: “For the Lord will not hold him guiltless”? This serves to teach that it is the higher court that will not hold him guiltless, but the lower court flogs him and absolves him of guilt.
אַשְׁכְּחַן שְׁבוּעַת שָׁוְא, שְׁבוּעַת שֶׁקֶר מְנָלַן? רַבִּי יוֹחָנָן דִּידֵיהּ אָמַר: ״לַשָּׁוְא״ ״לַשָּׁוְא״ שְׁנֵי פְּעָמִים, אִם אֵינוֹ עִנְיָן לִשְׁבוּעַת שָׁוְא — תְּנֵיהוּ עִנְיָן לִשְׁבוּעַת שֶׁקֶר, דְּלוֹקֶה.
§ The Gemara continues: We found a source for the halakha that one who takes an oath in vain using the name of God is flogged. From where do we derive that the same holds for a false oath? The Gemara answers: Rabbi Yoḥanan himself says the derivation: The verse states with regard to an oath taken in vain: “You shall not take the name of the Lord your God in vain; for the Lord will not hold him guiltless that takes His name in vain” (Exodus 20:7). It says: “In vain…in vain,” twice in this verse. If the second instance of the term is not necessary for the matter of an oath taken in vain, which is derived from the first instance, apply it to the matter of a false oath, to teach that one who takes such an oath is flogged.
מַתְקֵיף לַהּ רַבִּי אֲבָהוּ: שְׁבוּעַת שֶׁקֶר הֵיכִי דָּמֵי? אִי נֵימָא דַּאֲמַר ״שֶׁלֹּא אוֹכַל״ וַאֲכַל — הָתָם (הוּא) מַעֲשֵׂה עֲבַד, וְאֶלָּא דְּאָמַר ״שֶׁאוֹכַל״ וְלָא אֲכַל — הָהוּא מִי לָקֵי? וְהָאִיתְּמַר: ״שְׁבוּעָה שֶׁאוֹכַל כִּכָּר זֶה הַיּוֹם״ וְעָבַר הַיּוֹם וְלֹא אָכַל — רַבִּי יוֹחָנָן וְרַבִּי שִׁמְעוֹן בֶּן לָקִישׁ אָמְרִי: אֵינוֹ לוֹקֶה.
Rabbi Abbahu objects to this explanation of Rabbi Yoḥanan: What are the circumstances of the false oath under discussion? If we say that the one taking the oath said: I take an oath that I will not eat a certain item, and he then ate that item; there he performed an action to violate his oath by eating the item, and the prohibition would then involve an action. And if it was rather a case where he said: I take an oath that I will eat a certain item, and he did not eat that item; is that individual flogged? But wasn’t it stated: If one says: I take an oath that I will eat this loaf today, and the day passed and he had not eaten it, Rabbi Yoḥanan and Rabbi Shimon ben Lakish both say: He is not flogged.
רַבִּי יוֹחָנָן אוֹמֵר: אֵינוֹ לוֹקֶה, דְּלָאו שֶׁאֵין בּוֹ מַעֲשֶׂה הוּא, וְכׇל לָאו שֶׁאֵין בּוֹ מַעֲשֶׂה אֵין לוֹקִין עָלָיו. וְרֵישׁ לָקִישׁ אָמַר: אֵינוֹ לוֹקֶה, מִשּׁוּם דְּהָוֵה לֵיהּ הַתְרָאַת סָפֵק, וְכׇל הַתְרָאַת סָפֵק אֵין לוֹקִין עָלָיו!
Rabbi Yoḥanan says that he is not flogged, as it is a prohibition that does not involve an action, and one is not flogged for any prohibition that does not involve an action. And Reish Lakish says that he is not flogged, as there was only an uncertain forewarning for the transgressor. One must be warned immediately before the transgression to be held liable, but here there was no single moment of transgression, and one is not flogged for any transgression that follows an uncertain forewarning. If Rabbi Yoḥanan holds he is not flogged, to what case is he referring when he states that one is flogged for a false oath even though no action is involved?
אֶלָּא אָמַר רַבִּי אֲבָהוּ: תְּהֵא בְּ״אָכַלְתִּי״ וְ״לֹא אָכַלְתִּי״.
Rather, Rabbi Abbahu says: Let the case be where one says: I take an oath that I ate a certain item, and in fact he did not eat it; or he said: I take an oath that I did not eat a certain item, and in fact he did eat it. In these cases, he transgresses the prohibition by speech alone, without an action.
וּמַאי שְׁנָא דְּקָא מְרַבֵּה ״אָכַלְתִּי״ וְ״לֹא אָכַלְתִּי״ מֵ״אוֹכַל״ וְלֹא אָכַל? אָמַר רָבָא: בְּפֵירוּשׁ רִיבְּתָה תּוֹרָה שֶׁקֶר דּוֹמֶה לְשָׁוְא, מָה שָׁוְא לְשֶׁעָבַר, אַף שֶׁקֶר לְשֶׁעָבַר.
The Gemara asks: And what is different about an oath concerning the past, that the verse includes one who takes an oath of: I ate, or: I did not eat, as liable to be flogged, more than one who takes an oath of: I will eat, and then did not eat? In both cases, there is no action performed. Rava says: The Torah explicitly includes a case of a false oath that is similar to a case of an oath taken in vain: Just as an oath taken in vain refers to the past, so too, the false oath for which one is flogged must pertain to the past.
אֵיתִיבֵיהּ רַבִּי יִרְמְיָה לְרַבִּי אֲבָהוּ: ״שְׁבוּעָה שֶׁלֹּא אוֹכַל כִּכָּר זוֹ״, ״שְׁבוּעָה שֶׁלֹּא אוֹכְלֶנָּה״, ״שְׁבוּעָה שֶׁלֹּא אוֹכְלֶנָּה״, וַאֲכָלָהּ — אֵינוֹ חַיָּיב אֶלָּא אַחַת. וְזוֹהִי שְׁבוּעַת בִּיטּוּי, שֶׁחַיָּיבִין עַל זְדוֹנָהּ מַכּוֹת, וְעַל שִׁגְגָתָהּ קׇרְבָּן עוֹלֶה וְיוֹרֵד. זוֹהִי לְמַעוֹטֵי מַאי? לָאו לְמַעוֹטֵי ״אָכַלְתִּי״ וְלֹא ״אָכַלְתִּי״, דְּלָא לָקֵי?
Rabbi Yirmeya raised an objection to Rabbi Abbahu from a mishna (Shevuot 27b): If one says: I take an oath that I will not eat this loaf; I take an oath that I will not eat it; I take an oath that I will not eat it, and he then ate it, he is liable for only one violation. And this is the oath of an utterance for which one is liable to receive lashes for its intentional violation, and to bring a sliding-scale offering for its unwitting violation. Rabbi Yirmeya asks: When the mishna uses the limiting term: This is the oath, what does it serve to exclude? Is it not to exclude a case where one said: I take an oath that I ate a certain item, when in fact he did not eat it, or: I take an oath that I did not eat a certain item, when he did eat it, to teach that he is not flogged in those cases? This would contradict the explanation of Rabbi Abbahu.
לֹא, זוֹ הִיא דְּעַל שִׁגְגָתָהּ מַיְיתֵי קׇרְבָּן, אֲבָל ״אָכַלְתִּי״ וְ״לֹא אָכַלְתִּי״ לָא מַיְיתֵי קׇרְבָּן. וּמַנִּי? רַבִּי יִשְׁמָעֵאל הִיא, דְּאָמַר: אֵינוֹ חַיָּיב אֶלָּא עַל הֶעָתִיד לָבֹא, אֲבָל מִילְקָא לָקֵי.
The Gemara answers: No, in both cases one is flogged for violating the prohibition intentionally. Rather, the phrase means: This is the oath for which one brings an offering for its unwitting violation, but in a case where one unwittingly said: I ate a certain item, when he in fact did not eat it, or: I did not eat a certain item, when he did eat it, he does not bring an offering. And whose opinion does this mishna represent? It is the opinion of Rabbi Yishmael, who said: One is liable to bring an offering only for an oath that refers to the future, but one is flogged even for an oath that pertains to the past.
אֵימָא סֵיפָא: זוֹהִי שְׁבוּעַת שָׁוְא שֶׁחַיָּיבִין עַל זְדוֹנָהּ מַכּוֹת, וְעַל שִׁגְגָתָהּ פָּטוּר. ״זוֹהִי״ לְמַעוֹטֵי מַאי? לָאו לְמַעוֹטֵי ״אָכַלְתִּי״ וְ״לֹא אָכַלְתִּי״, דְּלָא לָקֵי?
The Gemara counters: But say the latter clause of the mishna (Shevuot 29a): If one takes an oath that a stone is gold or some similar absurdity, this is the oath taken in vain, for which one is liable to receive lashes if he utters it intentionally and for which one is exempt from bringing an offering if he utters it unwittingly. What does the limiting term: This is the oath, used by the mishna serve to exclude? Does it not serve to exclude a case where one said: I ate a certain item, when he in fact did not eat it, or: I did not eat a certain item, when he did eat it, to teach that he is not flogged in those cases?
לֹא, זוֹהִי דְּעַל שִׁגְגָתָהּ פָּטוּר מִקׇּרְבָּן, אֲבָל ״אָכַלְתִּי״ וְ״לֹא אָכַלְתִּי״ — מַיְיתֵי קׇרְבָּן. וּמַנִּי? רַבִּי עֲקִיבָא הִיא, דְּאָמַר: מְבִיאִין קׇרְבָּן לְשֶׁעָבַר.
The Gemara answers: No, in both cases one is flogged for violating the prohibition intentionally. Rather, the phrase means: This is the oath for which one is exempt from bringing an offering if he utters it unwittingly, but in a case where one said: I ate a certain item, when he in fact did not eat it, or: I did not eat a certain item, when he did eat it, he brings an offering. And whose opinion does this represent? It is the opinion of Rabbi Akiva, who said: One brings an offering even for the violation of an oath that refers to the past.
וְהָא אָמְרַתְּ רֵישָׁא רַבִּי יִשְׁמָעֵאל! אֶלָּא, מִדְּסֵיפָא רַבִּי עֲקִיבָא — רֵישָׁא נָמֵי רַבִּי עֲקִיבָא, וְרֵישָׁא לָאו לְמַעוֹטֵי ״אָכַלְתִּי״ וְ״לֹא אָכַלְתִּי״, אֶלָּא לְמַעוֹטֵי ״אוֹכַל״ וְלֹא אָכַל.
The Gemara protests: But didn’t you say earlier that the first clause represents the opinion of Rabbi Yishmael, that one does not bring an offering for a false oath pertaining to the past? Rather, from the fact that the latter clause represents the opinion of Rabbi Akiva, it follows that the first clause must represent the opinion of Rabbi Akiva as well. And one must therefore suggest an alternative explanation of the first clause. The phrase: This is the oath, employed there does not, as previously claimed, serve to exclude a case where one said: I ate a certain item, or: I did not eat a certain item. Rather, it serves to exclude a case where one said: I will eat a certain item, and he did not subsequently eat it.
וּמַאי שְׁנָא, מִשּׁוּם דְּקָאֵי בִּלְהַבָּא — מְמַעֵט לְהַבָּא, קָאֵי בִּלְהַבָּא — מְמַעֵט לְשֶׁעָבַר?
The Gemara asks: And what is different about an oath pertaining to the future, that the mishna should exclude it specifically? The Gemara responds: Since this clause of the mishna deals with an oath that pertains to the future, it stands to reason that it would exclude an oath pertaining to the future. If it deals with an oath that pertains to the future, why would it exclude an oath pertaining to the past? In summary, the entire mishna is in accordance with the opinion of Rabbi Akiva. The first clause excludes from the punishment of lashes the passive violation of an oath pertaining to the future, and the latter clause includes in the obligation to bring an offering a false oath pertaining to the past if he uttered it unwittingly. Neither clause contradicts the explanation of Rabbi Abbahu.
וּמֵימֵר. אֲמַר לֵיהּ רַבִּי יוֹחָנָן לְתַנָּא: לָא תִּתְנִי ״וּמֵימֵר״, מִשּׁוּם דִּבְדִיבּוּרוֹ עָשָׂה מַעֲשֶׂה.
§ In listing those who incur the punishment of lashes even though they did not perform an action in their transgression, Rabbi Yosei HaGelili was cited above as including: And one who effects substitution. The Gemara adds: Rabbi Yoḥanan said to the tanna who would recite the baraitot in his academy: Do not teach: And one who effects substitution, in this regard, because one who effects substitution performs an action of consecration by his speech.
הַמְקַלֵּל אֶת חֲבֵירוֹ בַּשֵּׁם. מְנָלַן? אָמַר רַבִּי אֶלְעָזָר, אָמַר רַבִּי אוֹשַׁעְיָא: אָמַר קְרָא ״אִם לֹא תִשְׁמֹר״, וּכְתִיב ״וְהִפְלָא ה׳ אֶת מַכּוֹתְךָ״. הַפְלָאָה זוֹ אֵינִי יוֹדֵעַ מַהוּ, כְּשֶׁהוּא אוֹמֵר ״וְהִפִּילוֹ הַשּׁוֹפֵט וְהִכָּהוּ לְפָנָיו״ — הֱוֵי אוֹמֵר: הַפְלָאָה זוֹ מַלְקוֹת.
§ Rabbi Yosei HaGelili also lists one who curses another using the name of God as liable to be flogged. The Gemara asks: From where do we derive this? Rabbi Elazar says that Rabbi Oshaya says: The verse states: “If you will not observe to perform all the words of this law that are written in this book, that you may fear this glorious and awesome name, the Lord your God” (Deuteronomy 28:58). This refers to one who curses using the name of God. And it is written immediately thereafter: “Then the Lord will make your plagues wondrous [vehifla]” (Deuteronomy 28:59). With regard to this term hafla’a, I do not know what its meaning is. When it says: “And the judge shall cause him to lie down [vehippilo] and to be beaten before him” (Deuteronomy 25:2), you must say that the term hafla’a is referring to lashes.
אֵימַר: אֲפִילּוּ שְׁבוּעַת אֱמֶת? בְּהֶדְיָא כְּתִיב: ״שְׁבוּעַת ה׳ תִּהְיֶה בֵּין שְׁנֵיהֶם״.
The Gemara asks: Why not say that even one who utters a true oath is flogged, as this too could be considered exhibiting insufficient fear of God’s name? The Gemara answers: It is written explicitly that a bailee may take an oath in court, as the verse states: “The oath of the Lord shall be between them both, to see whether he has not damaged his neighbor’s goods” (Exodus 22:10).
אֵימַר הָנֵי מִילֵּי לְפַיֵּיס אֶת חֲבֵירוֹ, אֲבָל מִילְקָא לִילְקֵי? לָא מָצֵית אָמְרַתְּ, דְּהָכְתִיב ״וּבִשְׁמוֹ תִּשָּׁבֵעַ״.
The Gemara counters: Why not say that this statement in the verse means only that a bailee is able to appease the other, i.e., the owner, and exempt himself from payment for the damaged goods, but he should nevertheless be flogged? The Gemara answers: You cannot say this, as it is written: “You shall fear the Lord your God, and Him you shall serve, and by His name you shall swear” (Deuteronomy 6:13). This verse clearly indicates that it is permitted to take a truthful oath using the name of God.
הָהוּא מִיבְּעֵי לֵיהּ לְכִדְרַב, דְּאָמַר רַב גִּידֵּל אָמַר רַב: מִנַּיִן שֶׁנִּשְׁבָּעִין לְקַיֵּים אֶת הַמִּצְוֹת? שֶׁנֶּאֱמַר: ״נִשְׁבַּעְתִּי וָאֲקַיֵּמָה לִשְׁמוֹר מִשְׁפְּטֵי צִדְקֶךָ״. הָכְתִיב קְרָא אַחֲרִינָא: ״וּבוֹ תִדְבָּק וּבִשְׁמוֹ תִּשָּׁבֵעַ״.
The Gemara asks: Isn’t that verse required as a source for the halakha of Rav? As Rav Giddel said that Rav said: From where is it derived that it is permitted for one to take an oath obligating himself to fulfill the mitzvot? It is derived from a verse, as it is stated: “I have sworn, and have confirmed it, to observe Your righteous ordinances” (Psalms 119:106). The Gemara counters that there is another source: Isn’t another verse written: “You shall fear the Lord your God; Him you shall serve; and to Him you shall cleave, and by His name you shall swear” (Deuteronomy 10:20). This second verse teaches that it is permitted for one to take a truthful oath.
אֶלָּא לְמַאי אֲתָא — לִמְקַלֵּל אֶת חֲבֵירוֹ בַּשֵּׁם. וְאֵימָא — לְמוֹצִיא שֵׁם שָׁמַיִם לְבַטָּלָה? מִי גָּרַע מְקַלֵּל אֶת חֲבֵירוֹ בַּשֵּׁם מִמּוֹצִיא שֵׁם שָׁמַיִם לְבַטָּלָה?
The Gemara resumes the discussion of one who curses another: Rather, the term vehifla in Deuteronomy 28:59 comes to teach what? It comes to teach that one who curses another using the name of God is flogged. The Gemara asks: But why not say that that verse refers to one who pronounces the name of Heaven in vain? The Gemara answers: Even if it does, is cursing another using the name of God any less of a sin than pronouncing the name of Heaven in vain? If one is flogged for the latter, certainly one is flogged for the former.
אֲנַן, הָכִי קָא קַשְׁיָא לַן: אֵימָא מוֹצִיא שֵׁם שָׁמַיִם לְבַטָּלָה — תִּיסְגֵּי לֵיהּ בְּמַלְקוֹת, אֲבָל מְקַלֵּל חֲבֵירוֹ בַּשֵּׁם, כֵּיוָן דְּקָעָבֵיד תַּרְתֵּי, דְּקָא מַפֵּיק שֵׁם שָׁמַיִם לְבַטָּלָה וְקָמְצַעַר לֵיהּ לְחַבְרֵיהּ — לָא תִּיסְגֵּי לֵיהּ בְּמַלְקוֹת!
The Gemara clarifies its question: This is what is difficult for us: One can say that for one who pronounces the name of Heaven in vain, it is sufficient for him to receive lashes to atone for his act, but in the case of one who curses another using the name of God, since he has performed two improper acts, first that he pronounces the name of Heaven in vain, and second that he inflicts pain on another, it should not be sufficient for him to receive lashes to atone for his act.
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Temurah 3
עַל שֶׁל חֲבֵירוֹ — טוֹבַת הֲנָאָה שֶׁלּוֹ!
for the purpose of exempting the produce of another, the benefit of discretion as to which priest or Levite will receive it is his. Apparently, the halakhot of substitution follow the one achieving atonement.
אֲמַר לֵיהּ: הָתָם הוּא דְּקָאָתֵי מִכֹּחַ יִשְׂרָאֵל, מִשּׁוּם הָכִי אָזְלִינַן בָּתַר מִתְכַּפֵּר, וְהָוֵה לֵיהּ תְּחִילָּתוֹ וְסוֹפוֹ בְּיַד יִשְׂרָאֵל. אֲבָל הָכָא, הָכִי קָא מִיבַּעְיָא לֵיהּ: מִי בָּעֵינַן מִתְּחִילָּה וְעַד סוֹף דְּתֵיקוּ בִּרְשׁוּת מַאן דְּעָבֵיד תְּמוּרָה? תֵּיקוּ.
Rami bar Ḥama could say to this: There, in Rabbi Yoḥanan’s statement, the offering comes on behalf of the Jew who consecrated it. Due to that reason, we follow the one atoning, and during both the initial consecration of the offering and its ultimate sacrifice the animal is in the possession of a Jew, who is able to effect substitution. But here, where a gentile consecrated the animal, this is how he raises the dilemma: Do we require that from the initial consecration of the offering until the ultimate act of sacrifice it must be in the possession of one who is able to effect substitution or not? The Gemara concludes: The dilemma shall stand [teiku] unresolved.
אָמַר מָר: מוּקְדְּשֵׁי גּוֹיִם לֹא נֶהֱנִין וְלֹא מוֹעֲלִין. לֹא נֶהֱנִין — מִדְּרַבָּנַן, וְלֹא מוֹעֲלִין — מִדְּאוֹרָיְיתָא.
§ The Master said in the baraita cited on the previous amud: With regard to animals consecrated by gentiles, one may not derive benefit ab initio, but if one benefited from them after the fact, he is not liable for misusing consecrated property. The Gemara explains: The halakha that one may not benefit from them ab initio is by rabbinic law. And that halakha that if one benefited from them after the fact he is not liable for misusing consecrated property is by Torah law.
מַאי טַעְמָא? דִּכְתִיב: ״נֶפֶשׁ כִּי תִּמְעֹל מַעַל וְחָטְאָה בִּשְׁגָגָה״, וְיָלְפִינַן ״חֵטְא״ ״חֵטְא״ מִתְּרוּמָה, וּבִתְרוּמָה כְּתִיב: ״בְּנֵי יִשְׂרָאֵל״, וְלֹא גּוֹיִם.
What is the reason that one is not liable for misuse? As it is written with regard to misuse of consecrated property: “If anyone commit a trespass, and sin through error, in the holy items of the Lord” (Leviticus 5:15). And we derive a verbal analogy from the use of the word “sin” in this verse and the word “sin” used in the context of teruma: “They shall therefore keep My charge, lest they bear sin for it” (Leviticus 22:9). And with regard to teruma it is written explicitly: “Even of all the hallowed items of the children of Israel” (Numbers 18:8), from which one can infer: But not of gentiles. The halakhot of misuse as well, therefore, do not apply to animals consecrated by gentiles.
וְאֵין חַיָּיבִין עֲלֵיהֶם, מִשּׁוּם פִּיגּוּל, נוֹתָר, וְטָמֵא, דִּכְתִיב בַּהּ בְּטוּמְאָה: ״דַּבֵּר אֶל אַהֲרֹן וְאֶל בָּנָיו וְיִנָּזְרוּ מִקׇּדְשֵׁי בְנֵי יִשְׂרָאֵל וְלֹא יְחַלְּלוּ אֶת שֵׁם וְגוֹ׳״.
The baraita continues: And if one consumes them, i.e., animals consecrated by gentiles, one is not liable for committing a transgression, with regard to the prohibitions of piggul, notar, or consuming offerings while ritually impure. The source for this is a verse, as it is written with regard to ritual impurity: “Speak to Aaron and to his sons, that they separate themselves from the holy items of the children of Israel, which they hallow unto Me, and that they profane not My holy name” (Leviticus 22:2). This verse explicitly mentions items consecrated by the children of Israel, to emphasize that the halakha of distancing oneself from consecrated items while in a state of ritual impurity does not include items consecrated by gentiles.
וְיָלֵיף נוֹתָר ״חִילּוּל״ ״חִילּוּל״ מִטּוּמְאָה, דִּכְתִיב גַּבֵּי טוּמְאָה: ״בְנֵי יִשְׂרָאֵל וְלֹא יְחַלְּלוּוְגוֹ׳״, וּכְתִיב גַּבֵּי נוֹתָר: ״וְאוֹכְלָיו עֲוֹנוֹ יִשָּׂא כִּי אֶת קֹדֶשׁ ה׳ חִלֵּל״.
And one derives the exemption from notar by drawing a verbal analogy between the word “profane” used in the context of notar and the word “profane” used in the context of ritual impurity. As it is written in the verse cited above with regard to ritual impurity: “That they separate themselves from the holy items of the children of Israel, which they hallow unto Me, and that they profane not My holy name.” And it is written with regard to notar: “But every one that eats it shall bear his iniquity, because he has profaned the holy item of the Lord” (Leviticus 19:8). Since the prohibition against consuming consecrated items while impure does not apply to the offerings of gentiles, neither does the prohibition of notar.
וְיָלֵיף פִּיגּוּל ״עָוֹן״ ״עָוֹן״ מִנּוֹתָר, דִּכְתִיב גַּבֵּי פִּיגּוּל: ״וְהַנֶּפֶשׁ הָאוֹכֶלֶת מִמֶּנּוּ עֲוֹנָהּ תִּשָּׂא״, וּכְתִיב גַּבֵּי נוֹתָר: ״וְאוֹכְלָיו עֲוֹנוֹ יִשָּׂא כִּי אֶת קֹדֶשׁ ה׳ חִלֵּל״, וְכוּלְּהוּ בְּנֵי יִשְׂרָאֵל וְלֹא גּוֹיִם.
And the tanna of the baraita derives the gentiles’ exemption from piggul by verbal analogy between the word “iniquity” used in the context of piggul and the word “iniquity” used in the context of notar, as it is written with regard to piggul: “And the soul that eats of it shall bear his iniquity” (Leviticus 7:18), and it is written with regard to notar: “But everyone that eats it shall bear his iniquity, because he has profaned the holy item of the Lord” (Leviticus 19:8). And based on these two verbal analogies, one concludes that with regard to all of them, i.e., piggul, notar, and ritually impure offerings, the prohibition against consumption applies only to offerings of the children of Israel, but not to those of gentiles.
וְאֵין עוֹשִׂין תְּמוּרָה, דִּכְתִיב: ״לֹא יַחֲלִיפֶנּוּ וְלֹא יָמִיר״, וּכְתִיב בְּרֵישׁ עִנְיָן: ״דַּבֵּר אֶל בְּנֵי יִשְׂרָאֵל לֵאמֹר אִישׁ כִּי יַפְלִיא נֶדֶר בְּעֶרְכְּךָ״.
The baraita continues: And a gentile cannot render a non-sacred animal a substitute for one he has consecrated. The Gemara cites the source for this halakha: As it is written with regard to substitutions: “He shall not exchange it, nor substitute it” (Leviticus 27:10), and it is written at the beginning of the matter: “Speak to the children of Israel, and say to them: When a man shall clearly utter a vow of persons to the Lord, according to your valuation” (Leviticus 27:2). Since the passage specifically addresses the children of Israel, the halakhot of substitution apply only to them, not to gentiles.
לִישָּׁנָא אַחֲרִינָא: וְאֵין עוֹשִׂין תְּמוּרָה, מַאי טַעְמָא? דְּאִיתַּקַּשָׁא תְּמוּרַת בְּהֵמָה לְמַעְשַׂר בְּהֵמָה, וּמַעְשַׂר בְּהֵמָה לְמַעֲשֵׂר דָּגָן. וְגַבֵּי מַעְשַׂר דָּגָן כְּתִיב: ״(כֹּל) [כִּי אֶת] מַעְשַׂר בְּנֵי יִשְׂרָאֵל אֲשֶׁר יָרִימוּ לַה׳… בְּנֵי יִשְׂרָאֵל״ — וְלֹא גּוֹיִם.
The Gemara presents another version of the source for this halakha: The baraita states: And a gentile cannot render a non-sacred animal a substitute for one he has consecrated. What is the reason? The reason is that the substitution of consecrated animals is juxtaposed with the animal tithe (see Leviticus 27:32), and the animal tithe is juxtaposed with the grain tithe. And with regard to the grain tithe it is written: “For the tithe of the children of Israel, which they set apart as a gift to the Lord, I have given to the Levites for an inheritance” (Numbers 18:24), indicating that the halakhot of the grain tithe apply only to the children of Israel, but not to gentiles. From the juxtapositions, one derives that the same holds for substitution.
וְאֵין מֵבִיא (עֲלֵיהֶן) נְסָכִים, אֲבָל קׇרְבָּנוֹ טָעוּן נְסָכִים, דִּבְרֵי רַבִּי שִׁמְעוֹן. מְנָא הָנֵי מִילֵּי? דְּתָנוּ רַבָּנַן: ״אֶזְרָח״ — אֶזְרָח מֵבִיא נְסָכִים וְאֵין הַגּוֹי מֵבִיא נְסָכִים. יָכוֹל לֹא תְּהֵא עוֹלָתוֹ טְעוּנָה נְסָכִים? תַּלְמוּד לוֹמַר ״כָּכָה״.
The baraita continues: And one does not bring libations for a gentile as an independent offering, but his offering requires libations. This is the statement of Rabbi Shimon. The Gemara explains: From where are these matters derived? They are derived from a verse, as the Sages taught in a baraita: The verse states with regard to libations: “All that are homeborn shall do these after this manner, in presenting an offering made by fire, of a sweet savor to the Lord” (Numbers 15:13). One who is homeborn, i.e., a Jew, brings libations, but a gentile does not bring libations. One might have thought that a gentile’s burnt offering should not require libations; therefore, the verse states: “So shall it be done for each bull, or for each ram, or for each of the lambs, or of the goats” (Numbers 15:10–11). This teaches that every burnt offering, even that of a gentile, requires libations.
אָמַר רַבִּי יוֹסֵי: רוֹאֶה אֲנִי בְּכוּלָּן לְהַחְמִיר. מַאי טַעְמָא? ״לַה׳״ כְּתִיב בֵּיהּ.
The baraita continues: Rabbi Yosei said: I see the logic of the opinion that in all of these cases it is correct to be stringent about the offerings of gentiles. The Gemara explains: What is the reason? With regard to the offering of a gentile, it is written: “Whosoever he be of the house of Israel, or of the strangers in Israel, that brings his offering, whether it be any of their vows, or any of their gift offerings, which are brought to the Lord for a burnt offering” (Leviticus 22:18). The verse equates the offerings of gentiles, “the strangers in Israel,” with those of Jews, and indicates that the consecrated status of the former is identical to that of the latter.
בַּמֶּה דְּבָרִים אֲמוּרִים — בְּקׇדְשֵׁי מִזְבֵּחַ, אֲבָל בְּקׇדְשֵׁי בֶּדֶק הַבַּיִת — מוֹעֲלִין בָּהֶן. מַאי טַעְמָא? דְּכִי גָּמְרִינַן מְעִילָה ״חֵטְא״ ״חֵטְא״ מִתְּרוּמָה, דֻּומְיָא דִּתְרוּמָה (דקדוש) [דִּקְדוֹשָׁה] קְדוּשַּׁת הַגּוּף, אֲבָל בקדשי בֶּדֶק הַבַּיִת דִּקְדוּשַּׁת דָּמִים — לָא.
The baraita continues: In what case is this statement said? It is said with regard to animals consecrated for the altar, but with regard to animals consecrated for Temple maintenance, one who benefits from them is liable for misusing consecrated property. The Gemara explains: What is the reason? The reason is that when we learn that items consecrated by gentiles are not subject to liability for misuse by the verbal analogy between the word sin and another instance of the word sin from the context of teruma, this applies only to consecrated property that is similar to teruma, which is consecrated with inherent sanctity. But with regard to an item that has the sanctity of the Temple maintenance, whose sanctity inheres in its value, as it will ultimately be sold and the proceeds used for Temple maintenance, the analogy does not apply.
אָמַר רַב יְהוּדָה, אָמַר רַב: כׇּל ״לֹא תַעֲשֶׂה״ בַּתּוֹרָה, עָשָׂה (בָּהּ) מַעֲשֶׂה — חַיָּיב, לֹא עָשָׂה (בָּהּ) מַעֲשֶׂה — פָּטוּר.
§ The mishna teaches that one who effects substitution receives lashes. Rav Yehuda says that Rav says: With regard to any prohibition in the Torah, if one performed an action to transgress it, he is liable to receive lashes. But if he did not perform an action to transgress it, he is exempt from receiving lashes.
וּכְלָלָא הוּא דְּלָאו שֶׁאֵין בּוֹ מַעֲשֶׂה פָּטוּר? וַהֲרֵי מֵימֵר, דְּלָאו שֶׁאֵין בּוֹ מַעֲשֶׂה הוּא, וְלָקֵי, דִּתְנַן: ״לֹא שֶׁהוּא רַשַּׁאי לְהָמִיר, אֶלָּא שֶׁאִם הֵמִיר מוּמָר, וְסוֹפֵג אֶת הָאַרְבָּעִים״.
The Gemara asks: But is it an established principle that one who transgresses a prohibition that does not involve an action is exempt? But there is the prohibition of substitution, which is a prohibition that does not involve an action, and one is flogged for transgressing it, as we learned in the mishna: That is not to say that it is permitted for a person to effect substitution; rather, it means that if one substituted a non-sacred animal for a consecrated animal, the substitution takes effect, and the one who substituted the non-sacred animal incurs the forty lashes.
אָמַר לְךָ רַב: הָא מַנִּי? רַבִּי יְהוּדָה הִיא, דְּאָמַר: לָאו שֶׁאֵין בּוֹ מַעֲשֶׂה — לוֹקִין עָלָיו.
The Gemara answers: Rav could have said to you: In accordance with whose opinion is this mishna written? It is in accordance with that opinion of Rabbi Yehuda, who said: With regard to a prohibition that does not involve an action, one is flogged for transgressing it. The Rabbis, however, disagree.
וּמִי מָצֵית מוֹקְמַתְּ לְמַתְנִיתִין כְּרַבִּי יְהוּדָה? וְהָא אוֹקֵימְתַּאּ לְרֵישָׁא דְּלָא כְּרַבִּי יְהוּדָה, דְּקָתָנֵי ״הַכֹּל מְמִירִין״, ״הַכֹּל״ לְאֵיתוֹיֵי מַאי? לְאֵיתוֹיֵי יוֹרֵשׁ, וּדְלָא כְּרַבִּי יְהוּדָה!
The Gemara counters: But can you establish the mishna as being in accordance with the opinion of Rabbi Yehuda? But we established the first clause of the mishna as not being in accordance with the opinion of Rabbi Yehuda, as it teaches: Everyone substitutes a non-sacred animal for a consecrated animal, and the Gemara added (2a): What does the expansive term everyone serve to include? It serves to include an inheritor, and accordingly, this mishna is not in accordance with the opinion of Rabbi Yehuda, who holds that an inheritor cannot effect substitution.
הַאי תַּנָּא סָבַר לַהּ כְּוָותֵיהּ בַּחֲדָא — דְּלָאו שֶׁאֵין בּוֹ מַעֲשֶׂה לוֹקִין עָלָיו, וּפְלִיג עֲלֵיהּ בַּחֲדָא — דְּאִילּוּ רַבִּי יְהוּדָה סָבַר: יוֹרֵשׁ אֵינוֹ סוֹמֵךְ, יוֹרֵשׁ אֵינוֹ מֵמִיר, וְתַנָּא דִידַן סָבַר: יוֹרֵשׁ סוֹמֵךְ, יוֹרֵשׁ מֵמִיר.
The Gemara answers: The tanna of this mishna holds in accordance with the opinion of Rabbi Yehuda with regard to one matter, that one is flogged for transgressing a prohibition that does not involve an action, and disagrees with him with regard to one other matter, as Rabbi Yehuda holds that an inheritor does not place his hands on the head of the offering when he sacrifices it, and an inheritor is not able to substitute a non-sacred animal for a consecrated one that he inherited; and the tanna of our mishna holds that an inheritor places his hands on the head of the offering when he sacrifices it, and an inheritor is able to substitute a non-sacred animal for a consecrated one that he inherited.
אָמַר רַב אִידִי בַּר אָבִין, אָמַר רַב עַמְרָם, אָמַר רַבִּי יִצְחָק, אָמַר רַבִּי יוֹחָנָן מִשּׁוּם רַבִּי יוֹסֵי הַגְּלִילִי: כׇּל לֹא תַעֲשֶׂה שֶׁבַּתּוֹרָה, עָשָׂה בּוֹ מַעֲשֶׂה — לוֹקֶה, לֹא עָשָׂה בּוֹ מַעֲשֶׂה — פָּטוּר, חוּץ מִנִּשְׁבָּע, וּמֵימֵר, וּמְקַלֵּל חֲבֵירוֹ בַּשֵּׁם, אַף עַל פִּי שֶׁלֹּא עָשָׂה מַעֲשֶׂה — חַיָּיב. מִשּׁוּם רַבִּי יוֹסֵי בְּרַבִּי חֲנִינָא אָמְרוּ: אַף הַמַּקְדִּים תְּרוּמָה לְבִיכּוּרִים.
Rav Idi bar Avin says that Rav Amram says that Rabbi Yitzḥak says that Rabbi Yoḥanan says in the name of Rabbi Yosei HaGelili: With regard to every prohibition in the Torah, if one performed an action to transgress it, he is flogged. But if he did not perform an action to transgress it, he is exempt from lashes, except for one who takes an oath, and one who effects substitution, and one who curses another using the name of God. For these three transgressions, even though he did not perform an action, he is liable to receive lashes. They said in the name of Rabbi Yosei, son of Rabbi Ḥanina: Also one who separates teruma prior to designating the first fruits is flogged, even though teruma can be separated by intention alone, without an action.
נִשְׁבָּע מְנָלַן? אָמַר רַבִּי יוֹחָנָן מִשּׁוּם רַבִּי מֵאִיר: אָמַר קְרָא ״כִּי לֹא יְנַקֶּה ה׳ אֵת אֲשֶׁר יִשָּׂא אֶת שְׁמוֹ לַשָּׁוְא״, בֵּית דִּין שֶׁל מַעְלָה
The Gemara discusses the sources for these exceptions. From where do we derive that one who takes an oath using the name of God is flogged? Rabbi Yoḥanan says in the name of Rabbi Meir that the verse states: “For the Lord will not hold him guiltless that takes His name in vain” (Exodus 20:7). One can infer: The higher, i.e., heavenly, court
אֵין מְנַקִּין אוֹתוֹ, אֲבָל בֵּית דִּין שֶׁל מַטָּה מַלְקִין אוֹתוֹ וּמְנַקִּין אוֹתוֹ.
does not hold him guiltless, as repentance alone will not atone for the sin, but the lower, i.e., earthly, court flogs him, thereby allowing him to atone, and absolves him of guilt.
אֲמַר לֵיהּ רַב פָּפָּא לְאַבָּיֵי: וְאֵימָא לָא תִּיהְוֵי לֵיהּ נְקִיּוּת כְּלָל! אֲמַר לֵיהּ: אִם כֵּן, לִכְתּוֹב קְרָא ״לֹא יִנָּקֶה״ וְלִישְׁתּוֹק, ״ה׳״ לְמָה לִי? בֵּית דִּין שֶׁל מַעְלָה הוּא דְּאֵין מְנַקִּין אוֹתוֹ, אֲבָל בֵּית דִּין שֶׁל מַטָּה מַלְקִין וּמְנַקִּין אוֹתוֹ.
Rav Pappa said to Abaye: But why not say that the verse means he cannot be absolved of guilt at all? Abaye said to him: If so, let the verse write only: “Will not hold him guiltless,” and be silent. Why do I need the verse to specify: “For the Lord will not hold him guiltless”? This serves to teach that it is the higher court that will not hold him guiltless, but the lower court flogs him and absolves him of guilt.
אַשְׁכְּחַן שְׁבוּעַת שָׁוְא, שְׁבוּעַת שֶׁקֶר מְנָלַן? רַבִּי יוֹחָנָן דִּידֵיהּ אָמַר: ״לַשָּׁוְא״ ״לַשָּׁוְא״ שְׁנֵי פְּעָמִים, אִם אֵינוֹ עִנְיָן לִשְׁבוּעַת שָׁוְא — תְּנֵיהוּ עִנְיָן לִשְׁבוּעַת שֶׁקֶר, דְּלוֹקֶה.
§ The Gemara continues: We found a source for the halakha that one who takes an oath in vain using the name of God is flogged. From where do we derive that the same holds for a false oath? The Gemara answers: Rabbi Yoḥanan himself says the derivation: The verse states with regard to an oath taken in vain: “You shall not take the name of the Lord your God in vain; for the Lord will not hold him guiltless that takes His name in vain” (Exodus 20:7). It says: “In vain…in vain,” twice in this verse. If the second instance of the term is not necessary for the matter of an oath taken in vain, which is derived from the first instance, apply it to the matter of a false oath, to teach that one who takes such an oath is flogged.
מַתְקֵיף לַהּ רַבִּי אֲבָהוּ: שְׁבוּעַת שֶׁקֶר הֵיכִי דָּמֵי? אִי נֵימָא דַּאֲמַר ״שֶׁלֹּא אוֹכַל״ וַאֲכַל — הָתָם (הוּא) מַעֲשֵׂה עֲבַד, וְאֶלָּא דְּאָמַר ״שֶׁאוֹכַל״ וְלָא אֲכַל — הָהוּא מִי לָקֵי? וְהָאִיתְּמַר: ״שְׁבוּעָה שֶׁאוֹכַל כִּכָּר זֶה הַיּוֹם״ וְעָבַר הַיּוֹם וְלֹא אָכַל — רַבִּי יוֹחָנָן וְרַבִּי שִׁמְעוֹן בֶּן לָקִישׁ אָמְרִי: אֵינוֹ לוֹקֶה.
Rabbi Abbahu objects to this explanation of Rabbi Yoḥanan: What are the circumstances of the false oath under discussion? If we say that the one taking the oath said: I take an oath that I will not eat a certain item, and he then ate that item; there he performed an action to violate his oath by eating the item, and the prohibition would then involve an action. And if it was rather a case where he said: I take an oath that I will eat a certain item, and he did not eat that item; is that individual flogged? But wasn’t it stated: If one says: I take an oath that I will eat this loaf today, and the day passed and he had not eaten it, Rabbi Yoḥanan and Rabbi Shimon ben Lakish both say: He is not flogged.
רַבִּי יוֹחָנָן אוֹמֵר: אֵינוֹ לוֹקֶה, דְּלָאו שֶׁאֵין בּוֹ מַעֲשֶׂה הוּא, וְכׇל לָאו שֶׁאֵין בּוֹ מַעֲשֶׂה אֵין לוֹקִין עָלָיו. וְרֵישׁ לָקִישׁ אָמַר: אֵינוֹ לוֹקֶה, מִשּׁוּם דְּהָוֵה לֵיהּ הַתְרָאַת סָפֵק, וְכׇל הַתְרָאַת סָפֵק אֵין לוֹקִין עָלָיו!
Rabbi Yoḥanan says that he is not flogged, as it is a prohibition that does not involve an action, and one is not flogged for any prohibition that does not involve an action. And Reish Lakish says that he is not flogged, as there was only an uncertain forewarning for the transgressor. One must be warned immediately before the transgression to be held liable, but here there was no single moment of transgression, and one is not flogged for any transgression that follows an uncertain forewarning. If Rabbi Yoḥanan holds he is not flogged, to what case is he referring when he states that one is flogged for a false oath even though no action is involved?
אֶלָּא אָמַר רַבִּי אֲבָהוּ: תְּהֵא בְּ״אָכַלְתִּי״ וְ״לֹא אָכַלְתִּי״.
Rather, Rabbi Abbahu says: Let the case be where one says: I take an oath that I ate a certain item, and in fact he did not eat it; or he said: I take an oath that I did not eat a certain item, and in fact he did eat it. In these cases, he transgresses the prohibition by speech alone, without an action.
וּמַאי שְׁנָא דְּקָא מְרַבֵּה ״אָכַלְתִּי״ וְ״לֹא אָכַלְתִּי״ מֵ״אוֹכַל״ וְלֹא אָכַל? אָמַר רָבָא: בְּפֵירוּשׁ רִיבְּתָה תּוֹרָה שֶׁקֶר דּוֹמֶה לְשָׁוְא, מָה שָׁוְא לְשֶׁעָבַר, אַף שֶׁקֶר לְשֶׁעָבַר.
The Gemara asks: And what is different about an oath concerning the past, that the verse includes one who takes an oath of: I ate, or: I did not eat, as liable to be flogged, more than one who takes an oath of: I will eat, and then did not eat? In both cases, there is no action performed. Rava says: The Torah explicitly includes a case of a false oath that is similar to a case of an oath taken in vain: Just as an oath taken in vain refers to the past, so too, the false oath for which one is flogged must pertain to the past.
אֵיתִיבֵיהּ רַבִּי יִרְמְיָה לְרַבִּי אֲבָהוּ: ״שְׁבוּעָה שֶׁלֹּא אוֹכַל כִּכָּר זוֹ״, ״שְׁבוּעָה שֶׁלֹּא אוֹכְלֶנָּה״, ״שְׁבוּעָה שֶׁלֹּא אוֹכְלֶנָּה״, וַאֲכָלָהּ — אֵינוֹ חַיָּיב אֶלָּא אַחַת. וְזוֹהִי שְׁבוּעַת בִּיטּוּי, שֶׁחַיָּיבִין עַל זְדוֹנָהּ מַכּוֹת, וְעַל שִׁגְגָתָהּ קׇרְבָּן עוֹלֶה וְיוֹרֵד. זוֹהִי לְמַעוֹטֵי מַאי? לָאו לְמַעוֹטֵי ״אָכַלְתִּי״ וְלֹא ״אָכַלְתִּי״, דְּלָא לָקֵי?
Rabbi Yirmeya raised an objection to Rabbi Abbahu from a mishna (Shevuot 27b): If one says: I take an oath that I will not eat this loaf; I take an oath that I will not eat it; I take an oath that I will not eat it, and he then ate it, he is liable for only one violation. And this is the oath of an utterance for which one is liable to receive lashes for its intentional violation, and to bring a sliding-scale offering for its unwitting violation. Rabbi Yirmeya asks: When the mishna uses the limiting term: This is the oath, what does it serve to exclude? Is it not to exclude a case where one said: I take an oath that I ate a certain item, when in fact he did not eat it, or: I take an oath that I did not eat a certain item, when he did eat it, to teach that he is not flogged in those cases? This would contradict the explanation of Rabbi Abbahu.
לֹא, זוֹ הִיא דְּעַל שִׁגְגָתָהּ מַיְיתֵי קׇרְבָּן, אֲבָל ״אָכַלְתִּי״ וְ״לֹא אָכַלְתִּי״ לָא מַיְיתֵי קׇרְבָּן. וּמַנִּי? רַבִּי יִשְׁמָעֵאל הִיא, דְּאָמַר: אֵינוֹ חַיָּיב אֶלָּא עַל הֶעָתִיד לָבֹא, אֲבָל מִילְקָא לָקֵי.
The Gemara answers: No, in both cases one is flogged for violating the prohibition intentionally. Rather, the phrase means: This is the oath for which one brings an offering for its unwitting violation, but in a case where one unwittingly said: I ate a certain item, when he in fact did not eat it, or: I did not eat a certain item, when he did eat it, he does not bring an offering. And whose opinion does this mishna represent? It is the opinion of Rabbi Yishmael, who said: One is liable to bring an offering only for an oath that refers to the future, but one is flogged even for an oath that pertains to the past.
אֵימָא סֵיפָא: זוֹהִי שְׁבוּעַת שָׁוְא שֶׁחַיָּיבִין עַל זְדוֹנָהּ מַכּוֹת, וְעַל שִׁגְגָתָהּ פָּטוּר. ״זוֹהִי״ לְמַעוֹטֵי מַאי? לָאו לְמַעוֹטֵי ״אָכַלְתִּי״ וְ״לֹא אָכַלְתִּי״, דְּלָא לָקֵי?
The Gemara counters: But say the latter clause of the mishna (Shevuot 29a): If one takes an oath that a stone is gold or some similar absurdity, this is the oath taken in vain, for which one is liable to receive lashes if he utters it intentionally and for which one is exempt from bringing an offering if he utters it unwittingly. What does the limiting term: This is the oath, used by the mishna serve to exclude? Does it not serve to exclude a case where one said: I ate a certain item, when he in fact did not eat it, or: I did not eat a certain item, when he did eat it, to teach that he is not flogged in those cases?
לֹא, זוֹהִי דְּעַל שִׁגְגָתָהּ פָּטוּר מִקׇּרְבָּן, אֲבָל ״אָכַלְתִּי״ וְ״לֹא אָכַלְתִּי״ — מַיְיתֵי קׇרְבָּן. וּמַנִּי? רַבִּי עֲקִיבָא הִיא, דְּאָמַר: מְבִיאִין קׇרְבָּן לְשֶׁעָבַר.
The Gemara answers: No, in both cases one is flogged for violating the prohibition intentionally. Rather, the phrase means: This is the oath for which one is exempt from bringing an offering if he utters it unwittingly, but in a case where one said: I ate a certain item, when he in fact did not eat it, or: I did not eat a certain item, when he did eat it, he brings an offering. And whose opinion does this represent? It is the opinion of Rabbi Akiva, who said: One brings an offering even for the violation of an oath that refers to the past.
וְהָא אָמְרַתְּ רֵישָׁא רַבִּי יִשְׁמָעֵאל! אֶלָּא, מִדְּסֵיפָא רַבִּי עֲקִיבָא — רֵישָׁא נָמֵי רַבִּי עֲקִיבָא, וְרֵישָׁא לָאו לְמַעוֹטֵי ״אָכַלְתִּי״ וְ״לֹא אָכַלְתִּי״, אֶלָּא לְמַעוֹטֵי ״אוֹכַל״ וְלֹא אָכַל.
The Gemara protests: But didn’t you say earlier that the first clause represents the opinion of Rabbi Yishmael, that one does not bring an offering for a false oath pertaining to the past? Rather, from the fact that the latter clause represents the opinion of Rabbi Akiva, it follows that the first clause must represent the opinion of Rabbi Akiva as well. And one must therefore suggest an alternative explanation of the first clause. The phrase: This is the oath, employed there does not, as previously claimed, serve to exclude a case where one said: I ate a certain item, or: I did not eat a certain item. Rather, it serves to exclude a case where one said: I will eat a certain item, and he did not subsequently eat it.
וּמַאי שְׁנָא, מִשּׁוּם דְּקָאֵי בִּלְהַבָּא — מְמַעֵט לְהַבָּא, קָאֵי בִּלְהַבָּא — מְמַעֵט לְשֶׁעָבַר?
The Gemara asks: And what is different about an oath pertaining to the future, that the mishna should exclude it specifically? The Gemara responds: Since this clause of the mishna deals with an oath that pertains to the future, it stands to reason that it would exclude an oath pertaining to the future. If it deals with an oath that pertains to the future, why would it exclude an oath pertaining to the past? In summary, the entire mishna is in accordance with the opinion of Rabbi Akiva. The first clause excludes from the punishment of lashes the passive violation of an oath pertaining to the future, and the latter clause includes in the obligation to bring an offering a false oath pertaining to the past if he uttered it unwittingly. Neither clause contradicts the explanation of Rabbi Abbahu.
וּמֵימֵר. אֲמַר לֵיהּ רַבִּי יוֹחָנָן לְתַנָּא: לָא תִּתְנִי ״וּמֵימֵר״, מִשּׁוּם דִּבְדִיבּוּרוֹ עָשָׂה מַעֲשֶׂה.
§ In listing those who incur the punishment of lashes even though they did not perform an action in their transgression, Rabbi Yosei HaGelili was cited above as including: And one who effects substitution. The Gemara adds: Rabbi Yoḥanan said to the tanna who would recite the baraitot in his academy: Do not teach: And one who effects substitution, in this regard, because one who effects substitution performs an action of consecration by his speech.
הַמְקַלֵּל אֶת חֲבֵירוֹ בַּשֵּׁם. מְנָלַן? אָמַר רַבִּי אֶלְעָזָר, אָמַר רַבִּי אוֹשַׁעְיָא: אָמַר קְרָא ״אִם לֹא תִשְׁמֹר״, וּכְתִיב ״וְהִפְלָא ה׳ אֶת מַכּוֹתְךָ״. הַפְלָאָה זוֹ אֵינִי יוֹדֵעַ מַהוּ, כְּשֶׁהוּא אוֹמֵר ״וְהִפִּילוֹ הַשּׁוֹפֵט וְהִכָּהוּ לְפָנָיו״ — הֱוֵי אוֹמֵר: הַפְלָאָה זוֹ מַלְקוֹת.
§ Rabbi Yosei HaGelili also lists one who curses another using the name of God as liable to be flogged. The Gemara asks: From where do we derive this? Rabbi Elazar says that Rabbi Oshaya says: The verse states: “If you will not observe to perform all the words of this law that are written in this book, that you may fear this glorious and awesome name, the Lord your God” (Deuteronomy 28:58). This refers to one who curses using the name of God. And it is written immediately thereafter: “Then the Lord will make your plagues wondrous [vehifla]” (Deuteronomy 28:59). With regard to this term hafla’a, I do not know what its meaning is. When it says: “And the judge shall cause him to lie down [vehippilo] and to be beaten before him” (Deuteronomy 25:2), you must say that the term hafla’a is referring to lashes.
אֵימַר: אֲפִילּוּ שְׁבוּעַת אֱמֶת? בְּהֶדְיָא כְּתִיב: ״שְׁבוּעַת ה׳ תִּהְיֶה בֵּין שְׁנֵיהֶם״.
The Gemara asks: Why not say that even one who utters a true oath is flogged, as this too could be considered exhibiting insufficient fear of God’s name? The Gemara answers: It is written explicitly that a bailee may take an oath in court, as the verse states: “The oath of the Lord shall be between them both, to see whether he has not damaged his neighbor’s goods” (Exodus 22:10).
אֵימַר הָנֵי מִילֵּי לְפַיֵּיס אֶת חֲבֵירוֹ, אֲבָל מִילְקָא לִילְקֵי? לָא מָצֵית אָמְרַתְּ, דְּהָכְתִיב ״וּבִשְׁמוֹ תִּשָּׁבֵעַ״.
The Gemara counters: Why not say that this statement in the verse means only that a bailee is able to appease the other, i.e., the owner, and exempt himself from payment for the damaged goods, but he should nevertheless be flogged? The Gemara answers: You cannot say this, as it is written: “You shall fear the Lord your God, and Him you shall serve, and by His name you shall swear” (Deuteronomy 6:13). This verse clearly indicates that it is permitted to take a truthful oath using the name of God.
הָהוּא מִיבְּעֵי לֵיהּ לְכִדְרַב, דְּאָמַר רַב גִּידֵּל אָמַר רַב: מִנַּיִן שֶׁנִּשְׁבָּעִין לְקַיֵּים אֶת הַמִּצְוֹת? שֶׁנֶּאֱמַר: ״נִשְׁבַּעְתִּי וָאֲקַיֵּמָה לִשְׁמוֹר מִשְׁפְּטֵי צִדְקֶךָ״. הָכְתִיב קְרָא אַחֲרִינָא: ״וּבוֹ תִדְבָּק וּבִשְׁמוֹ תִּשָּׁבֵעַ״.
The Gemara asks: Isn’t that verse required as a source for the halakha of Rav? As Rav Giddel said that Rav said: From where is it derived that it is permitted for one to take an oath obligating himself to fulfill the mitzvot? It is derived from a verse, as it is stated: “I have sworn, and have confirmed it, to observe Your righteous ordinances” (Psalms 119:106). The Gemara counters that there is another source: Isn’t another verse written: “You shall fear the Lord your God; Him you shall serve; and to Him you shall cleave, and by His name you shall swear” (Deuteronomy 10:20). This second verse teaches that it is permitted for one to take a truthful oath.
אֶלָּא לְמַאי אֲתָא — לִמְקַלֵּל אֶת חֲבֵירוֹ בַּשֵּׁם. וְאֵימָא — לְמוֹצִיא שֵׁם שָׁמַיִם לְבַטָּלָה? מִי גָּרַע מְקַלֵּל אֶת חֲבֵירוֹ בַּשֵּׁם מִמּוֹצִיא שֵׁם שָׁמַיִם לְבַטָּלָה?
The Gemara resumes the discussion of one who curses another: Rather, the term vehifla in Deuteronomy 28:59 comes to teach what? It comes to teach that one who curses another using the name of God is flogged. The Gemara asks: But why not say that that verse refers to one who pronounces the name of Heaven in vain? The Gemara answers: Even if it does, is cursing another using the name of God any less of a sin than pronouncing the name of Heaven in vain? If one is flogged for the latter, certainly one is flogged for the former.
אֲנַן, הָכִי קָא קַשְׁיָא לַן: אֵימָא מוֹצִיא שֵׁם שָׁמַיִם לְבַטָּלָה — תִּיסְגֵּי לֵיהּ בְּמַלְקוֹת, אֲבָל מְקַלֵּל חֲבֵירוֹ בַּשֵּׁם, כֵּיוָן דְּקָעָבֵיד תַּרְתֵּי, דְּקָא מַפֵּיק שֵׁם שָׁמַיִם לְבַטָּלָה וְקָמְצַעַר לֵיהּ לְחַבְרֵיהּ — לָא תִּיסְגֵּי לֵיהּ בְּמַלְקוֹת!
The Gemara clarifies its question: This is what is difficult for us: One can say that for one who pronounces the name of Heaven in vain, it is sufficient for him to receive lashes to atone for his act, but in the case of one who curses another using the name of God, since he has performed two improper acts, first that he pronounces the name of Heaven in vain, and second that he inflicts pain on another, it should not be sufficient for him to receive lashes to atone for his act.
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