1) "ASHERU CHAMOTZ"

OPINIONS: The Gemara records two opinions about what lesson is learned from the verse, "Limdu Heitev Dirshu Mishpat Asheru Chamotz" -- "Learn to do good, seek justice, vindicate the oppressed" (Yeshayah 1:17). Rava understands that the words "Asheru Chamotz" mean that the people should appoint a judge who treats judgment like vinegar; he processes it slowly and thoroughly. Rebbi Chanina derives that lesson from a different verse, and from the verse "Asheru Chamotz" he derives "the 'Chamotz' and not the 'Chometz.'"

What is the meaning of the lesson that Rebbi Chanina derives from this verse?

(a) RASHI (DH v'Idach) explains that Rebbi Chanina's lesson here refers to the law recorded by the Gemara in Bava Kama (46b). The Gemara there teaches that Beis Din must "deal first with the plaintiff." Rashi there explains that the Gemara refers to a case in which a lender claims in Beis Din that he lent money to a certain person and he was never repaid. The defendant states that he did not pay back the loan because the lender lost or ruined the security which he had deposited with the lender. Which part of the case -- the lender's claim for the repayment of the loan or the borrower's claim for the compensation for his security -- should Beis Din judge first? Rebbi Chanina derives from the verse "Asheru Chamotz" that the claim of the "oppressed" -- the one who claims that he is the victim of theft -- should be addressed first, and not the claim of the one who might be the thief. Therefore, Beis Din judges first whether the loan must be paid back, and afterwards Beis Din investigates the case of the lost security. (See TOSFOS to Bava Kama 46b, DH she'Ein, for more details of the case Rashi describes.)

(In Bava Kama, Rabah bar Avuha learns that Beis Din must "deal first with the plaintiff" from a different verse, and not from "Asheru Chamotz." Rebbi Chanina apparently argues with Rabah Bar Avuha with regard to the source of this law. The YAD RAMAH notes that the word "Chamotz" literally means "the one who squeezes" or "the one who grabs," and thus it implies the defendant who is accused of unlawfully seizing someone else's property. However, Rebbi Chanina reads the verse as though it says "Chamutz," which means "the one from whom something was grabbed.")

(b) The CHIDUSHEI HA'RAN questions Rashi's explanation of the law in Bava Kama. Why should Beis Din not analyze both elements of the case at the same time? If the borrower owes money but the lender indeed ruined his security, Beis Din should rule that no one pays any money. According to Rashi's explanation, Beis Din first makes the borrower pay the lender, and then, if the borrower's claim (about the ruined security) is true, Beis Din makes the lender may back the same money to the borrower. This does not seem to be an efficient way of implementing justice.

The Chidushei ha'Ran writes that this question motivates the BA'AL HA'ME'OR to give a different explanation for Rebbi Chanina's teaching. When Rebbi Chanina says that Beis Din must deal with the "Chamotz" and not the "Chometz," he does not mean that Beis Din judges the lender's claim independent of the defendant's claim, but rather Beis Din first investigates his side of the story. Only after Beis Din investigates his side of the story may Beis Din investigate the defendant's counter-claim. (Y. MONTROSE)

2) "RETZICHAH DOCHEH AVODAH"

QUESTION: Reish Lakish asked Rebbi Yochanan why the Mitzvah of burying a Mes Mitzvah does not override the prohibition against desecrating Shabbos. Logically, the burial of a Mes Mitzvah should override Shabbos: if the Avodah in the Beis ha'Mikdash overrides the laws of Shabbos, and the burial of a Mes Mitzvah overrides the Avodah, then the burial of a Mes Mitzvah also should override Shabbos!

Rebbi Yochanan answered that there is a precedent in the Torah which shows that it is possible for a certain Mitzvah to override the Avodah but not Shabbos. If a Kohen is a murderer, Beis Din stops him from performing the Avodah in the Beis ha'Mikdash. However, if Beis Din has sentenced someone to death, Beis Din may not carry out the sentence on Shabbos. Hence, convicting a murderer overrides the Avodah, but not Shabbos. Since such a precedent exists, no logical argument may be made to prove that the burial of a Mes Mitzvah should override Shabbos simply because it overrides the Avodah.

TOSFOS (DH she'Ne'emar) points out that the Gemara is teaching that even if the only Kohen available to do a certain Avodah is the Kohen who is a murderer, he is not permitted to do the Avodah. Tosfos is bothered, however, by Rebbi Yochanan's comparison of this case to the case of the burial of a Mes Mitzvah on Shabbos. In the case of a Mes Mitzvah, there are two Mitzvos to do, and the question is merely which Mitzvah takes precedence. In the case of a Kohen who is a murderer, the fact that he is murderer indisputably renders him unfit to serve as a Kohen. There is no clash between opposing concerns. This Kohen simply is no longer a Kohen who may perform the Avodah. The Gemara in Berachos (32b) derives from a verse that a Kohen who murdered someone may not perform Nesi'as Kapayim, and if he may not perform Nesi'as Kapayim, he certainly may not perform the Avodah. Why does Rebbi Yochanan call such a case, "Retzichah Docheh Avodah"?

ANSWERS:

(a) TOSFOS answers that the question is not a valid question in the first place. Although the murderer-Kohen is not permitted to perform the Avodah, if he does perform the Avodah it is still valid b'Di'eved. Tosfos in Yevamos (7a, DH she'Ne'emar) derives this from the verse quoted by the Gemara here, "me'Im Mizbechi Tikachenu la'Mus" -- "from near My Mizbe'ach you shall take him to die" (Shemos 21:14). The verse says "me'Im Mizbechi" and not "me'Al Mizbechi" ("from on My Mizbe'ach"), which teaches that if the murderer-Kohen is in the middle of offering a Korban, he is left to finish the Avodah, and only afterwards is he taken to be executed. The Gemara in Berachos which teaches that a murderer-Kohen may not perform Nesi'as Kapayim is teaching a stringency, and is not expressing that the Kohen has lost his status as a Kohen. The MAR'EH KOHEN here notes that RASHI (DH Retzichah) also mentions the Derashah of "'me'Im Mizbechi' and not 'me'Al Mizbechi'" in order to avoid the question of Tosfos.

(b) In an alternate answer, Tosfos explains that the Gemara in Berachos which says that a Kohen who killed a person may not perform Nesi'as Kapayim does not imply that he may not perform the Avodah. Since the Kohen killed a person with his hands, his hands no longer may be the vehicle to bring blessing to the Jewish people, in accordance with the principle of "Ein Kateigor Na'aseh Saneigor" -- a prosecutor cannot become a defense attorney.

Why does the same principle not prohibit the Kohen from performing Avodah with his hands? Apparently, Tosfos understands that although the Kohen performs the Avodah with his hands, it is not his hands which provide atonement for the people, but it is the Avodah of the Korban which provides atonement. His hands are merely a means to perform the Avodah. (See ARUCH LA'NER for a similar explanation.) (Y. MONTROSE)