1) AN "AZHARAH" FOR THE OBLIGATION TO BRING A KORBAN
QUESTION: The Mishnah states that one is not permitted to slaughter a Korban, or offer the limbs of a Korban, outside the Beis ha'Mikdash. The Gemara says that an explicit verse provides an Azharah (warning), and another verse states the Onesh (punishment) for one who offers the limbs of a Korban outside the Beis ha'Mikdash. However, the verse states only the Onesh, but not the Azharah, for one who slaughters a Korban outside the Beis ha'Mikdash. The Gemara attempts to find the Azharah.
Why is the Gemara concerned with finding an Azharah for one who slaughters a Korban outside the Beis ha'Mikdash? As the Gemara itself mentions, the Torah clearly states that a person is punished with Kares for such an act! Since the act clearly is forbidden by the Torah, why is an explicit Azharah necessary?
(a) RASHI (DH Ela) explains that the Gemara's question is why the transgressor brings a Korban Chatas for accidentally slaughtering a Korban outside the Beis ha'Mikdash. A Korban Chatas is brought only for an unintentional violation of a Lav that is punishable with Kares. Unintentional failure to perform a Mitzvas Aseh for which intentional neglect is punished with Kares (such as the Mitzvah to bring the Korban Pesach and the Mitzvah of Bris Milah) does not warrant a Korban Chatas. Only a Lo Sa'aseh which is punishable with Kares when transgressed intentionally is subject to the obligation of a Korban Chatas when transgressed unintentionally. The Gemara searches for an Azharah in order to justify the Mishnah's law that accidentally slaughtering a Korban outside the Beis ha'Mikdash is indeed a Lo Sa'aseh and warrants bringing a Korban Chatas. (According to some Acharonim, the RAMBAM (Hilchos Shegagos 1:2) also maintains that a Korban Chatas is brought only for a sin which has an explicit Azharah; see KEREN ORAH, in contrast to the AMUDEI OR 41:11.)
TOSFOS (DH Azharah) challenges Rashi's explanation. The Gemara in Makos (13b) seems to conclude that an Azharah is not a prerequisite for the obligation to bring a Korban. Rava states that in order for a person to be punished with Kares, an Azharah is not necessary. This is learned from the Mitzvos of Korban Pesach and Milah which have no Azharah and yet failure to perform them is punished with Kares. The Gemara asks that, on the contrary, perhaps they have no Azharah because failure to perform them does not obligate the transgressor to bring a Korban Chatas, and thus an Azharah is necessary whenever the Torah obligates one to bring a Korban Chatas. The Gemara answers that these two Mitzvos do not warrant a Chatas for an entirely different reason, and not because there is no Azharah written in the Torah for them. The reason why no Korban Chatas is brought for transgression of these two Mitzvos is that the Torah compares all obligations to bring a Korban Chatas to the accidental transgression of Avodah Zarah, which is committed only in an active manner, excluding the Mitzvos of Korban Pesach and Milah which are transgressed passively (by not doing them).
Tosfos asks that the Gemara there concludes that the lack of an Azharah is not the reason why one does not bring a Korban Chatas for transgressing the Mitzvos of Korban Pesach and Milah. Rather, the reason one does not bring a Korban Chatas for transgressing those Mitzvos is that they do not entail active transgressions. Why, then, does Rashi state that the reason why the Gemara here seeks an Azharah is to justify the obligation to bring a Korban Chatas when one accidentally slaughters a Korban outside the Beis ha'Mikdash?
(b) TOSFOS explains that the Gemara searches for an Azharah in order to explain the Mishnah in Makos (13a), which lists slaughtering a Korban outside the Beis ha'Mikdash among the transgressions for which one receives Malkus.
The SHITAH MEKUBETZES in Kerisus (2a) sides with Tosfos' view that the obligation to bring a Korban Chatas needs no Azharah. Rashi in Kerisus is careful to show how each of the transgressions listed in the Mishnah has an Azharah which justifies the bringing of a Korban. Based on the aforementioned Gemara in Makos, the Shitah Mekubetzes writes that he does not know why Rashi needs to show that all of those transgressions have Azharos. From his question on Rashi it is clear that the Shitah Mekubetzes agrees with Tosfos.
Tosfos rejects the explanation that many other commentaries (TESHUVOS YEHUDAH YA'ALEH #113, TESHUVOS IMREI ESH OC 35, and others) conclude is the basis for the opinion of Rashi. In Makos, Ravina expresses another opinion which could maintain that the obligation to bring a Korban Chatas does need an Azharah. The KEHILOS YAKOV in Makos (#12) points out that there actually are many more Gemaras that apparently maintain that the obligation of a Korban Chatas needs an Azharah. Rashi maintains that the Gemara here follows the opinion that a Korban needs an Azharah. (See also KEHILOS YAKOV to Kerisus #1.) (Y. MONTROSE)
2) THE "AZHARAH" AGAINST EATING FRUIT OF "SHEVI'IS"
QUESTION: The Gemara quotes Abaye's answer for the source of the Azharah against slaughtering a Korban outside the Beis ha'Mikdash. He learns the Azharah for this transgression through a Kal va'Chomer from the Azharah against slaughtering a Korban which was designated before the Isur of Bamos took effect. If there is an Azharah for slaughtering such an animal outside the Beis ha'Mikdash, even though the Torah mentions no punishment, then certainly slaughtering an animal designated to be a Korban after the Isur of Bamos took effect, for which the Torah mentions the punishment of Kares, is forbidden with an Azharah.
Ravina challenges Abaye's answer and says that Azharos may not be derived through logical means (such as through a Kal va'Chomer). If Azharos could be derived through logic, then no Azharah would be needed for the prohibition of Chelev, for which no punishment is stated, because its Azharah could be learned from Neveilah, for which a punishment is stated.
Rava refutes this challenge to Abaye's answer and explains that the reason why an Azharah for Chelev cannot be derived from Neveilah is that the Isur of Neveilah is more severe than the Isur of Chelev. Rava explains that the Azharah for Chelev cannot be derived from other Isurim for the same reason: all of those Isurim are more severe than Chelev for one reason or another.
Among the Isurim from which the Azharah for Chelev might have been derived is the Isur of Shevi'is. Rava says that the Azharah for Chelev cannot be derived from Shevi'is because Shevi'is is such a severe Isur that even the money used to buy fruit of Shevi'is becomes Kadosh with Kedushas Shevi'is. The RASHASH explains that the Gemara must be referring to the prohibition against eating fruit of Shevi'is in a way that violates the laws of Shevi'is. The Gemara is not referring to the prohibition against working the land during Shevi'is, because that prohibition is no different from many other prohibitions, and thus Rava would not have mentioned that prohibition in particular. The reason why Rava mentions the Isur of Shevi'is is that it constitutes a prohibition against eating a forbidden food item, which is similar to Chelev and all of the other Isurim that are mentioned. Moreover, Rava discusses the transfer of the Kedushah from fruit of Shevi'is onto the money that is given for it; he clearly is not discussing the Isur of working the land.
The Rashash, however, is left with a difficulty. There is no explicit Azharah in the Torah for the Isur against eating fruit of Shevi'is! What is the source for the Azharah against eating these fruit?
(a) The TESHUVOS MAHARSHAM (7:200, see there at length) was asked this question by the ADERES. He responded that in Chulin (114b), Rav Ashi teaches that the verse, "Lo Sochal Kol To'evah" -- "Do not eat any abominable thing" (Devarim 14:3), prohibits eating a mixture of milk and meat. Rav Ashi understands that the verse is saying that one may not eat anything that Hash-m has made abominable to us, which includes a mixture of milk and meat. Accordingly, this verse is not only an Azharah against eating a mixture of milk and meat, but it is also a general Azharah against eating anything that Hash-m considers abominable. Moreover, RASHI in Sotah (29b, DH ha'Tzad ha'Shaveh) calls Chametz which a person saw in his possession during Pesach (and transgressed the Isur of Bal Yera'eh) an object "with which an Aveirah was done," implying that even a passive transgression, such as failure to dispose of one's Chametz before Pesach, renders the object of sin a "To'evah."
Accordingly, the Maharsham suggests that fruit of Shevi'is that was not destroyed after the time of Bi'ur is also included in the category of "To'evah," which, according to Rav Ashi, is prohibited by the Azharah of "Lo Sochal Kol To'evah." This is the Azharah for the Isur of Shevi'is which the Gemara here discusses.
The KEHILOS YAKOV (46:16) writes that saying that the Gemara refers to the Azharah of "Lo Sochal Kol To'evah" is a very forced answer. Moreover, if the Gemara's intention is to suggest that this Isur is the Azharah from which the Azharah of Chelev is derived, then why does it mention the specific Isur of Shevi'is? The Azharah of "Lo Sochal Kol To'evah" includes many other Isurim! The Gemara should mention explicitly the Isur of "Lo Sochal Kol To'evah."
(b) The Kehilos Yakov answers that the source of the Azharah against eating fruit of Shevi'is is the verse, "And if you will say, 'What will we eat in the seventh year? Behold, we cannot plant or gather our produce (v'Lo Ne'esof)'" (Vayikra 25:20). The Toras Kohanim explains that the verse is addressing the concern that we cannot plant during the seventh year, and the produce that we do harvest must be destroyed before the time of Bi'ur. Accordingly, "v'Lo Ne'esof" is an Azharah against eating (and possibly keeping in one's possession) fruit of Shevi'is. Although the Torah does not express this as a commandment, but rather relates it as a narrative about what the people might say, it still may be considered an Azharah. The Torah expresses the prohibition against eating Ma'aseros in a state of Aninus in a similar way, in the verses that one recites as Viduy Ma'aseros (see Devarim 26:14). The Kehilos Yakov adds that it was later brought to his attention that this explanation is suggested by the OLAS SHLOMO. (Y. MONTROSE)