QUESTION: The Gemara quotes the Mishnah in Temurah (2a) that states that one who makes a statement of Temurah (he attempts to substitute a different animal for an animal that he has sanctified as a Korban) "receives forty" lashes for transgressing the Isur of Temurah.

Why does the Mishnah say that he receives only one set of forty lashes? One who attempts to exchange a sanctified animal transgresses two Lavim -- the Lav of "Lo Yamir" and the Lav of "Lo Yachlifenu" (Vayikra 27:10), and he therefore should be punished with two sets of lashes. (Rishonim)

(a) TOSFOS in Temurah (2a, DH v'Sofeg) answers that the Mishnah's intention is not to teach how many lashes the transgressor receives, but rather to teach that one who transgresses the Isur of Temurah receives lashes. In truth, the transgressor receives two sets of Malkus.

(b) Tosfos there, in his second answer, suggests that one who transgresses the Isur of Temurah indeed receives only forty lashes. The verse that teaches that there are two Isurim -- "Lo Yamir" and "Lo Yachlifenu" -- refers to two separate Isurim that apply in two separate situations. One Isur applies when a person performs Temurah with his own Korban, and the other Isur applies when he performs Temurah with someone else's Korban. In each case, since the person transgresses only one Lav, he receives only forty lashes.

(c) RASHI here writes that one receives Malkus because of the Isur of "Lo Yachlifenu." Rashi implies that the transgressor receives only one set of Malkus (see AFIKEI YAM 1:25). In Temurah, however, Rashi (2a, DH v'Sofeg) says that one receives Malkus for the Isur of "Lo Yamir." Rashi there does not mention the Isur of "Lo Yachlifenu," which he mentions here. Another difficulty is that it seems more appropriate for Rashi to mention the Isur of "Lo Yachlifenu" since these words are the beginning of the verse that teaches the Isur of Temurah. How can the words of Rashi in both places be reconciled?

1. Rashi in Temurah quotes the words "Lo Yamir" because the Mishnah there begins with the words "ha'Kol Mamirin," and Rashi wants to explain why the Isur is called "Temurah." Here, however, Rashi quotes the words "Lo Yachlifenu" because that is the first Isur in the verse. (Alternatively, Rashi here quotes "Lo Yachlifenu" because that Isur is more encompassing in that it applies both to one who makes Temurah with his own animal and to one who makes Temurah with someone else's animal. The Isur of "Lo Yamir," on the other hand, refers only to one who makes Temurah with his own animal, as the Gemara in Temurah (9a) states.) (M. KORNFELD)

2. The OTZAR CHAIM (Rav Chaim Broyde) suggests a brilliant answer to reconcile the words of Rashi. The Mishnah in Temurah there says, "All are liable for Temurah -- both men and women." The Gemara there says that women are included because of the extra word "Yamir" in the verse, "v'Im Hamer Yamir" (Vayikra 27:10). Accordingly, even if a man transgresses two Isurim when he makes a Temurah, a woman transgresses only one Isur, the Isur of "Lo Yamir." Since the primary Chidush of the Mishnah in Temurah is that women are also liable for Temurah, Rashi there quotes the Isur of "Lo Yamir," which applies to women.

QUESTION: The Gemara quotes a Beraisa which states that a person who muzzles someone else's animal while he works with it is punished with Malkus and also must pay to the animal's owner the amount that it eats in one day while threshing (four Kavin for a cow, three Kavin for a donkey). The Gemara questions the Beraisa from the principle that a person is not given two punishments (Malkus and an obligation to pay) for one act. Abaye answers that the Tana of the Beraisa is Rebbi Meir who maintains that when a person is liable to receive Malkus, he also can incur a monetary punishment.

The Rishonim ask that Rebbi Meir says this only with regard to a person who performs one act with which he transgresses two different Isurim, one of which obligates him to pay and one of which obligates him to receive Malkus. This position of Rebbi Meir is found in Makos (4a), where the Gemara discusses a case in which witnesses testify that one person owes another person 200 Zuz and then the witnesses are found to be Zomemin. Rebbi Meir rules that they receive Malkus because of the Isur of "Lo Sa'aneh" (Shemos 20:13) and they must pay the intended victim because of "va'Asisem Lo Ka'asher Zamam La'asos" (Devarim 19:19). In the case of the Beraisa, however, the person receives Malkus because he transgressed the Isur of "Lo Sachsom," and the same Isur of "Lo Sachsom" obligates him to pay. How, then, can the Gemara explain the Beraisa based on Rebbi Meir's position? (TOSFOS to Makos 4a, DH Lokin, and Kesuvos 32b, DH she'Lo, and other Rishonim)

(a) The RAMBAN and RITVA here, and the CHIDUSHEI HA'RE'AH in Kesuvos, answer that in the case of the muzzled animal the two punishments also result from two separate Isurim. The person who muzzles the animal receives Malkus because of the Isur of "Lo Sachsom" (Devarim 25:4), while the reason he must pay the owner of the animal is that he "stole" food from the owner by not letting his animal eat what it was entitled to eat. Thus, his obligation to pay results from the obligation of "v'Heishiv Es ha'Gezeilah Asher Gazal" (Vayikra 5:23).

The Ritva in Kesuvos (32b, DH she'Lo), however, rejects this answer. He contends that since there would be no Gezeilah in this case if not for the Isur of "Lo Sachsom," the two punishments cannot be considered to come from two different sources.

The DEVAR YAKOV suggests that this dispute among the Rishonim is based on their different ways of understanding the nature of the Socher's obligation. According to one way of understanding, the Socher's obligation to pay results from the fact that he is considered to have failed to fulfill his obligation to the owner. Since the Socher knows that the Torah forbids him from muzzling the animal that he rents, it is considered as though the owner rented the animal to the Socher on condition that the Socher feed it. Hence, his failure to feed it is a violation of that agreement. A second way of understanding is that the Socher's obligation to pay takes effect because once the Torah prohibits the muzzling of an animal, when the Socher muzzles it he is considered as though he has caused the owner a loss. (See CHAZON ISH, Likutim to Choshen Mishpat, #20; KEHILOS YAKOV to Bava Kama #13; and SHI'UREI REBBI SHMUEL ROZOVSKY, Makos #121.)

Perhaps the Ramban and the Ritva here follow the first approach, that the obligation to pay is a result of an unspoken stipulation between the owner and the Socher. Accordingly, the obligation to pay is not related at all to the Isur of "Lo Sachsom," but rather falls into the general category of Gezeilah, as it is merely a compensation for the Socher's failure to fulfill his commitment. The Ritva in Kesuvos, on the other hand, may take the second approach, that the obligation to pay is a direct result of the Isur of "Lo Sachsom," for by transgressing that Isur the Socher caused a loss to the owner of the animal. Hence, the obligation to pay is not because of Gezeilah but because of the Isur of "Lo Sachsom," the same Isur for which he receives Malkus.

(b) The RITVA in Kesuvos (32b) gives a different answer. He says that Rebbi Meir actually maintains, in general, that a person can incur two punishments for one transgression. It is only with regard to Edim Zomemin that Rebbi Meir requires that the two punishments come from two different sources. This is because the verse "va'Asisem Lo Ka'asher Zamam La'asos" (Devarim 19:19) implies that the only punishment that may be given to Edim Zomemin is the punishment which they attempted to inflict upon the victim (in this case, an obligation of monetary payment). They may not be punished with Malkus because the Torah specifically dictates that they should receive only the punishment they attempted to inflict upon their intended victim. Therefore, an additional Isur (i.e. "Lo Sa'aneh") is necessary to make them liable for Malkus. In contrast, in the case of a person who muzzles an animal there is no indication in the verse that he may not be given more than one punishment. Therefore, the single Isur of "Lo Sachsom" can cause him to be punished with both Malkus and an obligation to pay. (I. Alsheich)

OPINIONS: The Gemara asks whether a hired laborer may eat the grapes of one vine while he works with a different vine (such as when the grapes which he eats are of a higher quality than the grapes on the vine with which he is working). The Gemara attempts to determine the Halachah from several sources, but the Gemara refutes all of its attempted proofs and does not come to any conclusion. What is the Halachah?

(a) The RAMBAM (Hilchos Sechirus 12:10) rules that a laborer may not eat the grapes of a vine with which he is not working.

The LECHEM MISHNEH asks why the Rambam does not mention that if the laborer does eat from a different vine, he does not have to pay for what he eats. In all other places where the Gemara does not resolve such a question, the Rambam rules that if the person takes the item that is in doubt, the owner may not take it from him ("Im Tafas, Lo Mafkinan Minei").

(b) The ROSH (7:10) rules that out of doubt (mi'Safek) the laborer may not eat from another vine, and he adds that if the laborer does eat from another vine, the owner cannot make him pay for it because of the same Safek. This is also the ruling of the TUR and SHULCHAN ARUCH (CM 337:10).

The Acharonim ask that the Rosh's ruling here contradicts his usual position. In general, the Rosh rules that in any case where the Halachah itself is in doubt (as opposed to a case in which the Halachah is known but there is a doubt about what happened), if one unlawfully took that which, mi'Safek, he was not supposed to take ("Tefisah"), then he is obligated to give it back (or pay for it).

1. The SHACH (in TAKFO KOHEN, cited by the KUNTRUS HA'SEFEIKOS 4:8) presents a novel approach to answer this question. The Shach explains that the Rosh rules only with regard to a Kenas (penalty) that "Tefisah" does not work when the Halachah is in doubt. In contrast, in a case of monetary law (when there is a doubt as to whether a person is entitled to a certain amount of money), "Tefisah" does work. When there is a doubt in Halachah about a Kenas, "Tefisah" does not work because even if the Halachah was known Beis Din would not have the power to force the person to pay, since today there is no Beis Din that has Semichah and thus no one is empowered to collect a Kenas. In cases of ordinary monetary claims, however, Beis Din today does have the power to collect money, and thus if the person seizes the item or the money he is entitled to keep it. Here, too, the Halachah that is in doubt does not pertain to a Kenas but to the monetary right of the laborer to eat the grapes. Therefore, if the laborer eats the grapes his act is considered a "Tefisah" for which he is not required to pay.

2. The KUNTRUS HA'SEFEIKOS (4:13) and the NESIVOS HA'MISHPAT (#28, Klalei Tefisah 4) answer that the doubt about whether the laborer may eat grapes from a different vine is not a doubt about whether those fruits belong to him. The fruits certainly belong to the owner of the field. The doubt is whether the laborer has permission to eat them. (The Gemara (92b) concludes that "mi'Shel Shamayim Hu Ochel," the laborer merely has the right to eat the fruits but does not gain actual ownership over them.) Accordingly, when the laborer does eat grapes from a different vine, the Safek in Halachah is only a question of whether the laborer is obligated to pay. With regard to this Safek, the laborer is considered "Muchzak" since he is in possession of his own money, and Beis Din does not collect from someone who is "Muchzak" when the Halachah is in doubt. Thus, the Rosh's ruling here does not contradict his position elsewhere, because the case of a laborer who eats from a different vine is not a case of "Tefisah" at all, since the Safek applies not to the grapes themselves but rather to the money which the laborer would be required to pay. (I. Alsheich)