1) "NESACHIM" THAT ARE NOT SANCTIFIED IN A "KLI SHARES"
OPINIONS: The Gemara earlier cites a Beraisa in which the Tana Kama and Rebbi Eliezer disagree about when one is liable for pouring water libations outside the Beis ha'Mikdash during Sukos. The Tana Kama maintains that one who pours three Lugin of water outside the Beis ha'Mikdash during Sukos transgresses the prohibition of Ma'aleh ba'Chutz, offering Korbanos outside the Beis ha'Mikdash. Rebbi Eliezer maintains that one is liable only when he originally filled the container with water with specific intent that it be used for the libations of Sukos.
The Gemara records a number of explanations for this dispute. Among those explanations is that of Rav Papa, who says that the opinions of the Tana Kama and Rebbi Eliezer are based on their opinions in a different dispute: whether or not Nesachim were offered during the Jewish people's sojourn in the Midbar. How does that dispute explain the opinions of the Tana Kama and Rebbi Eliezer in the Beraisa?
(a) RASHI (DH b'Karvu) explains that although the Torah explicit commands to pour Nesachim when the Jewish people enter Eretz Yisrael (see Bamidbar 15), there is a dispute about exactly what that commandment requires. If the Jewish people offered Nesachim in the Midbar, then the Torah must be teaching that even when the people enter Eretz Yisrael and offer Korbanos on private Bamos (Bamos Ketanos), they must offer Nesachim with the Korbanos. The Torah is not referring to Korbanos brought on the public Bamah (Bamah Gedolah), since the Jewish people were already bringing Nesachim on this type of Bamah in the Midbar.
The Gemara (see 108b, 113a) says that when private Bamos were used, the people did not use any Klei Shares. According to the Tana Kama in the Beraisa here, this means that one would be liable for offering Nesachim outside the Beis ha'Mikdash even if the Nesachim were never sanctified in a Kli Shares. Since this was the manner of bringing a Korban on a Bamah, Nesachim that were not sanctified in a Kli Shares that were poured inside the Beis ha'Mikdash have the law of "Im Alu Lo Yerdu" -- they may not be offered on the Mizbe'ach, but if they are inadvertently placed atop the Mizbe'ach, they may not be removed. The criterion for transgressing the prohibition of Ma'aleh ba'Chutz is whether the same act, when done in the Beis ha'Mikdash, is entirely valid or at least has a status of "Im Alu Lo Yerdu." Accordingly, pouring Nesachim outside the Beis ha'Mikdash without a Kli Shares, which, when done inside the Beis ha'Mikdash, is "Im Alu Lo Yerdu," constitutes a violation of the prohibition of Ma'aleh ba'Chutz.
Rebbi Eliezer, on the other hand, maintains that Nesachim were not offered in the Midbar. The commandment of Nesachim in the Torah applies only to the Mishkan in Eretz Yisrael, and to the eventual, permanent Beis ha'Mikdash. Bamos Ketanos never had Nesachim offered on them. Accordingly, Nesachim always need a Kli Shares. One who pours Nesachim outside the Beis ha'Mikdash without first consecrating them in a Kli Shares does not transgress the prohibition of Ma'aleh ba'Chutz, since he has not done anything which is done in the Beis ha'Mikdash.
(b) TOSFOS (110b, DH Iy Mah) understands the logic of the Tana Kama differently. The fact that these Nesachim once were accepted without consecration in a Kli Shares does not make them valid when they are brought inside the Beis ha'Mikdash without a Kli Shares. The Halachah for such Nesachim is "Im Alu Yerdu" -- if they were placed on the Mizbe'ach, they must be removed. However, since such Nesachim (that were not sanctified in a Kli Shares) once had the status of a valid "offering" even without sanctification in a Kli Shares, such Nesachim are considered an offering at all times, and thus the person who offers non-sanctified Nesachim outside the Beis ha'Mikdash is liable. (See CHAZON ISH 19:4 for another explanation of Tosfos.)
The KEREN ORAH and others question how one can be liable for offering a Korban outside the Beis ha'Mikdash with Nesachim that are not properly sanctified. One transgresses the prohibition against offering a Korban outside only when the Korban has Kedushas ha'Guf, when the animal itself is sanctified as a Korban. Nesachim obtain this level of Kedushah only through being sanctified in a Kli Shares (see Menachos 100b). Until the Nesachim are sanctified in a Kli Shares, they may be redeemed if they become Tamei, like an item that is sanctified with only Kedushas Damim that may be redeemed from Hekdesh. How, then, can one be liable for Ma'aleh ba'Chutz for offering Nesachim which do not have the Kedushah of a Korban?
The SEFAS EMES suggests that verbally designating the water as Nesachim gives the water Kedushah and gives the water the status of an offering. His reasoning seems to be that since verbal designation is the most that one was able to do when Nesachim were brought on a Bamah Ketanah, it suffices to give the water the status of a Korban.
The Keren Orah rejects this explanation. Although it is true that when no Kli was needed, verbal designation sufficed (according to the Tana Kama, who says that Nesachim were brought on a Bamah), since that was the only way to designate the water as Nesachim. However, now that Kedushas ha'Guf is necessary, there is no reason to say that a verbal designation elevates the Nesachim to the status of a Korban without sanctification in a Kli Shares.
The logic of the Sefas Emes may be justified based on the explanation of Tosfos. When the Torah says that a mere verbal designation sufficed for Nesachim offered on a Bamah Ketanah, the Torah means that this action bestows on the water the title of "offering." Although such water is not fit as an offering when there is a Beis ha'Mikdash, it still should be called an "offering" with regard to the prohibition against offering it outside the Beis ha'Mikdash. This explanation is proposed by the CHAZON YECHEZKEL (Chidushim 12:4).
(c) This difficulty prompts the Sefas Emes to suggest a third possibility. Perhaps the Beraisa refers to a case in which the Nesachim were sanctified in a Kli Shares. The only question concerns a case in which one takes the Nesachim outside the Beis ha'Mikdash and then pours them without using the Kli Shares. The Tana Kama says that because a Bamah Ketanah required no Kli Shares, one who pours Nesachim from an ordinary Kli outside the Beis ha'Mikdash is liable. Rebbi Eliezer maintains that since a Kli Shares was always necessary for Nesachim, one who pours Nesachim from an ordinary Kli is like one who pours Nesachim on the ground without a Mizbe'ach, an act which does not constitute a violation of the prohibition against offering Kodshim outside the Beis ha'Mikdash.
However, the Sefas Emes admits that the wording of Rebbi Eliezer, who says that one is liable only when "the [container of] Nesachim is filled up with intent to be used for Sukos," is not consistent with this explanation. (Y. MONTROSE)
2) OFFERING A KORBAN OUTSIDE THE BEIS HA'MIKDASH THAT WAS SLAUGHTERED AT NIGHT
OPINIONS: The Gemara records a dispute between the Tana Kama and Rebbi Shimon with regard to a Korban slaughtered at night. The Tana Kama maintains that one who slaughters an animal in the Beis ha'Mikdash at night and then offers it outside the Beis ha'Mikdash does not transgress the prohibition of Ma'aleh ba'Chutz. In contrast, one who slaughters an animal outside the Beis ha'Mikdash at night and then offers it there is liable.
The Tana Kama does not explain when the Korban must be offered. Is one liable for offering the Korban outside the Beis ha'Mikdash (when one slaughtered it at night outside the Beis ha'Mikdash) only when he offers it during the day, or even when he offers it during the night?
(a) The RAMBAM (Hilchos Ma'aseh ha'Korbanos 18:17) maintains that the Gemara is discussing a Korban that is offered at night as well. The reason why the offering in the first case (when it was slaughtered at night inside the Beis ha'Mikdash) does not qualify as Ma'aleh ba'Chutz is that the Shechitah inside the Beis ha'Mikdash at night disqualified the Eimurin. One does not transgress the prohibition of Ma'aleh ba'Chutz when he offers limbs that are Pasul. In contrast, when the animal was slaughtered outside the Beis ha'Mikdash at night, the Korban is not disqualified, since the verse that teaches that a Korban must be slaughtered during the day refers specifically to a Korban slaughtered inside the Beis ha'Mikdash. Only a Korban that is slaughtered inside the Beis ha'Mikdash is subject to this Pesul. (See RADVAZ there.)
(b) The RA'AVAD argues with the Rambam and says that the Gemara refers to a Korban that is slaughtered outside the Beis ha'Mikdash at night, but is offered outside the Beis ha'Mikdash during the day.
He explains that even though an animal that is slaughtered outside the Beis ha'Mikdash is Pasul, the Torah nevertheless says that one is liable for offering such a Korban outside the Beis ha'Mikdash. When the Torah makes a person liable for offering something Pasul outside the Beis ha'Mikdash, it makes no difference whether it is Pasul for one reason (it was slaughtered outside the Beis ha'Mikdash) or for two reasons (it was slaughtered outside, and at night).
The words of the Ra'avad require further clarification.
1. The KEHILOS YAKOV (#43) questions the reasoning of the Ra'avad for his assertion that only offering the limbs during the day constitutes Ma'aleh ba'Chutz. If slaughtering a Korban at night is forbidden and yet the animal is still subject to the prohibition of Ma'aleh ba'Chutz, then offering the limbs at night also should constitute a transgression of Ma'aleh ba'Chutz, even though it would not be a valid Korban if offered in the Beis ha'Mikdash in such a manner.
The Kehilos Yakov explains that there is a fundamental difference between slaughtering at night, and offering the limbs at night. The Gemara earlier (107a) quotes Rebbi Akiva who rules that slaughtering a bird-offering (as opposed to performing Melikah) outside the Beis ha'Mikdash is considered a violation of the prohibition of Shechutei Chutz. The fact that one is forbidden to slaughter a bird-offering outside the Beis ha'Mikdash even though a bird is never slaughtered inside the Beis ha'Mikdash shows that the prohibition against slaughtering outside the Beis ha'Mikdash is not due to the fact that it is an Avodah that is normally done in the Beis ha'Mikdash. The Torah does not forbid slaughtering outside because it is an "Avodah," but rather the Torah forbids the very act itself of slaughtering outside the Beis ha'Mikdash.
In contrast, the offering of limbs outside the Beis ha'Mikdash is forbidden because the Torah forbids performing an Avodah of offering outside the Beis ha'Mikdash in the same manner in which the Avodah is done inside the Beis ha'Mikdash. This is apparent from the Gemara later (115b). The Gemara there excludes any item which is not brought on the Mizbe'ach, such as the meat of a Korban which is supposed to be eaten, from the prohibition against offering limbs outside the Beis ha'Mikdash. The verse describes the meat offered outside the Beis ha'Mikdash as an "Olah" (Vayikra 17:8), meaning that it must be something which is fit to be brought on the Mizbe'ach. Apparently, when the Torah prohibits offering Korbanos outside the Beis ha'Mikdash, it prohibits treating a Korban like an "Olah" -- and performing an Avodah with the Korban -- outside the Beis ha'Mikdash. This is why the Ra'avad says that doing Avodos other than slaughtering outside, such as offering limbs, is a transgression only when done during the day, which is the time when the Avodah is performed in the Beis ha'Mikdash. (See also MINCHAS AVRAHAM, p. 118, in the name of the BRISKER RAV, and Insights to Zevachim 107a.)
2. Although this approach answers the basic question of how slaughtering outside the Beis ha'Mikdash differs from doing other Avodos outside the Beis ha'Mikdash, the Kehilos Yakov still has difficulty with the view of the Ra'avad. Since the normal manner of offering the limbs inside the Beis ha'Mikdash is to burn them at night when there was not enough time to burn them during the day, offering limbs outside the Beis ha'Mikdash at night should constitute a transgression of Ma'aleh ba'Chutz!
The OR SAME'ACH, who also asks this question, suggests the possibility that when the Ra'avad says, "He'eleh ba'Lailah," he means that the person did the Zerikah at night, and not that the person offered the Eimurin of the Korban at night. Since Zerikah may not be performed at night in the Beis ha'Mikdash, the person does not transgress the Isur of Ma'aleh ba'Chutz when he performs Zerikah at night outside the Beis ha'Mikdash.
However, the Or Same'ach rejects this interpretation of the Ra'avad's words. The Ra'avad writes that if the animal was slaughtered in the Beis ha'Mikdash at night, one is not obligated for "offering" such an animal outside the Beis ha'Mikdash since the Korban already was disqualified as a result of having been slaughtered at night. When the Ra'avad says that one is not obligated for "offering the Korban," he cannot be referring to the Zerikas ha'Dam at night outside the Mikdash, because if it would be the Zerikah that is being done, then the Korban would be disqualified for a different reason, and not merely because it was slaughtered at night. It would be disqualified because its blood became Pasul as a result of "Linah" after the sun set (and this Pesul would apply even if the Zerikah was performed during the daytime of the following day).
However, the Kehilos Yakov suggests that interpreting the Ra'avad's words as referring to Zerikah at night indeed would explain the Ra'avad's view. Although blood becomes Pasul through Linah when it is sprinkled at night in the Beis ha'Mikdash, this alone would not remove the prohibition of Ma'aleh ba'Chutz from the blood. The criterion for determining whether a certain act constitutes a transgression of the prohibition of Ma'aleh ba'Chutz is whether the act is valid when done at some time on the Mizbe'ach in the Beis ha'Mikdash. The fact that blood is no longer valid for Zerikah at night does not remove it from the prohibition of Ma'aleh ba'Chutz, since Zerikah is performed in the Beis ha'Mikdash with similar blood during the day.
This is unlike the Pesul of Zerikah at night, because Zerikah at night is an act that is never done in the Beis ha'Mikdash, and therefore it is not included in the prohibition of Ma'aleh ba'Chutz. If this is the Ra'avad's intention, it is understandable why he writes that even if the Korban was slaughtered in the Beis ha'Mikdash at night, the offering (that is, the Zerikah) outside the Beis ha'Mikdash must be done during the day in order for one to be liable. (Y. MONTROSE)