1) TRANSGRESSING "ME'ILAH" BY GIVING THE OBJECT OF "HEKDESH" TO ONE'S FRIEND
OPINIONS: The Mishnah (end of 19b) states that a person who picks up a beam or stone of Hekdesh does not transgress the Isur of Me'ilah. If he then gives it to someone else, he transgresses the Isur of Me'ilah, and the other person does not transgress when he benefits from the object. The Gemara inquires what the difference is between the first person, who transgresses the Isur of Me'ilah by giving the object to the second person, and the second person, who is not liable for Me'ilah when he uses the object.
There are two ways to understand the Gemara's question.
(a) RASHI (DH Mai Shena) explains that the Gemara is asking why a person is not considered to have transgressed Me'ilah when he takes the object for himself, but when he gives it to his friend he is considered to have transgressed Me'ilah. The Gemara answers that the first person is the Gizbar, the treasurer of Hekdesh, and thus when he takes the object he has not done an act of Me'ilah, since his act of taking the object does not remove the object from the domain of Hekdesh. Giving it to his friend, however, constitutes Me'ilah, since the Gizbar is causing the object to leave the domain of Hekdesh.
(b) The RAMBAM (Hilchos Me'ilah 6:7) writes, "If a person picked up a beam or stone of Hekdesh and gave it to his friend, both are Mo'el. If the friend to whom he gave it was the Gizbar, then he has been Mo'el but not the friend to whom he gave it." The Rambam obviously understands the Gemara in a different way. He learns that the Mishnah is discussing a case of Mezid, intentional misappropriation of Hekdesh, in which case there is "Mo'el Achar Mo'el." The Gemara is asking that if he gives the object of Hekdesh to his friend, then why is only he Mo'el and not his friend? The Gemara answers that the friend to whom he gives the object is the Gizbar of Hekdesh, in which case his friend is not Mo'el. This implies that if he would give it to someone who is not the Gizbar, then both would be Mo'el.
2) BUILDING A STONE OF "HEDKESH" INTO ONE'S HOME
QUESTIONS: The Mishnah teaches that when one takes a stone that belongs to Hekdesh and builds it into his house, he does not transgress the Isur of Me'ilah until he dwells beneath the stone and derives a Perutah's worth of benefit from it.
The Gemara asks why is one liable for Me'ilah only when he derives a Perutah's worth of benefit from the stone; since he made a change in the stone, he should be liable immediately! Rav answers that the Mishnah is referring to a case in which he simply placed the stone in the window. RASHI (DH she'Henichah) explains that the person did not alter the stone at all; it remained complete and was not cut or chiseled (see Shitah Mekubetzes #4) or affixed to the house, but rather it merely was placed in the window. Since no change was made to the stone, there is no Me'ilah unless one derives a Perutah's worth of benefit from it.
Rashi (DH Keivan) explains that when the Gemara asks that making a change ("Shinuy") in the stone should constitute Me'ilah, the Gemara is referring to merely building the stone into the house.
TOSFOS (DH Lamah), however, explains that at this stage the Gemara understands that the Shinuy refers to the act of cutting, smoothing, and preparing the stone and inserting it into the building. Merely building the stone into the house, with no additional change to the stone, does not constitute a Shinuy.
The same dispute between Rashi and Tosfos appears in Bava Kama (20b). Rashi there (DH v'Hu) implies that fixing the stone in the building is considered a Shinuy. Tosfos there (DH v'Hu) maintains that merely fixing the stone in the building is not considered a Shinuy, because it is a "Shinuy ha'Chozer li'Veriyaso" -- a change in an item that is easily reversible, which the Gemara in Bava Kama (96b) says is not considered a Shinuy.
(a) According to Rashi's view that setting the stone in the building is considered a Shinuy even when no other changes are made to the stone, how are we to understand the Mishnah in Gitin (55a) regarding "Takanas ha'Shavim"? The Mishnah there teaches that if a thief stole a beam and built it into his house, the original owner may not demand the return of the beam, but rather he must accept a monetary payment in place of the beam. The Rabanan enacted a special decree to exempt the thief from returning the beam itself in order that he not be discouraged from repenting. (If he must dismantle his house in order to return the stolen beam, then he might not repent.) According to Rashi, who says that setting the stone in the building is a Shinuy, why was it necessary for the Rabanan to make a special decree of "Takanas ha'Shavim" to enable the thief to acquire the beam? Even without such an enactment the thief does not have to return the beam itself, because he acquired it through a Shinuy when he built it into his house!
(b) Even Tosfos, who maintains that setting the stone in the building is not considered a Shinuy, agrees that this it is not considered a Shinuy only in a case in which it is a "Shinuy ha'Chozer li'Veriyaso." Tosfos in Bava Kama (65b, DH Hen) writes that according to Rabah a "Shinuy ha'Chozer li'Veriyaso" acquires an object for a thief. How, then, does Rabah understand the Mishnah in Gitin? If a "Shinuy ha'Chozer" is considered a Shinuy to acquire the object for the thief, then why is a special enactment of Takanas ha'Shavim necessary?
ANSWER: The KETZOS HA'CHOSHEN (360:3) answers based on the words of the TUR cited by the REMA (CM 360:6), who says that a change to a stolen object is considered a Shinuy only when the name of the object is altered as a result of the change. A beam retains its title of a beam even after it has been built into the house (as the Gemara in Bava Kama (67a) says in the name of Rav Yosef, based on the verse in Yechezkel 41:26). A stone, however, differs from a beam. When one steals a stone and sets it into a building, the stone no longer retains its identity as a stone; it becomes an indistinguishable part of the building. Accordingly, the thief acquires it even without the enactment of Takanas ha'Shavim.
(According to this answer, the Mishnah here -- which seems to equate setting a stone of Hekdesh with a beam of Hekdesh -- must be referring to a beam that is not recognizable and that does not retain its identity after being set in the house, unlike the beam mentioned in the Mishnah in Gitin.) (D. BLOOM)
3) BENEFIT THAT IS "SEEN BY THE EYE"
OPINIONS: The Gemara attempts to prove that worshipping a house as Avodah Zarah prohibits the house even though it is attached to the ground (Mechubar l'Karka), and ground itself cannot become forbidden as Avodah Zarah. The Gemara concludes that the Torah prohibits benefit from Hekdesh "that is seen by the eye." What does this mean?
(a) TOSFOS (DH Leima) explains that the Gemara means that something that was originally detached from the ground and then was attached ("Talush uleva'Sof Chibru") is considered part of the ground (and does not have Me'ilah). Nevertheless, benefiting from the beam of a house (which was taken from Hekdesh) constitutes Me'ilah since the beam is clearly visible from the outside of the house.
This is difficult to understand. If a beam of a house is considered Mechubar (attached to the ground), then what is the basis to say that just because it is visible, the Isur of Me'ilah applies to it? It must be that this Me'ilah is only Me'ilah d'Rabanan, as the PERUSH KADMON indeed concludes. (Perhaps Rashi agrees with this as well.) However, according to this explanation, the words of the Gemara, "Asrah Torah," require further elucidation, if the Me'ilah to which the Gemara refers is only mid'Rabanan.
(b) TOSFOS (DH Hadar) explains that if the beams were movable when they became Hekdesh (they were "visible to the eye" and not part of a building), then the Isur of Me'ilah remains applicable to them even if they became Mechubar later.
(c) RABEINU GERSHOM explains the discussion of the Gemara in an entirely different manner. The Gemara seeks to prove that a beam in a house cannot be considered Mechubar, because if it could be considered Mechubar, then one should be Chayav for Me'ilah from the moment that the beam is cemented into the house (that is, from the time that the beam's status is changed from "Talush" to "Mechubar").
The Gemara responds that even if a beam that is part of a building is considered Mechubar, cementing the beam would not constitute Me'ilah because Me'ilah is committed only when there is a noticeable and tangible benefit from the object ("visible to the eye"). Until one has dwelt beneath the beam, no discernible benefit has been derived from it.
(d) The RAMBAM (Hilchos Me'ilah 6:8) writes, "If a person picked up a beam or rock of Hekdesh, it is not considered Me'ilah since he has not yet benefited from it. If he built it into his house, it is considered Me'ilah. If he put it into his window without attaching it, it is not considered Me'ilah until he dwells under it and benefits a Perutah's worth, since we require noticeable benefit."
The Rambam seems to understand the Gemara as follows. The Gemara seeks to prove that "Talush uleva'Sof Chibro" cannot be considered Mechubar, because if it is considered Mechubar, then a person should be liable for Me'ilah immediately when he cements a beam into his house, as Rabeinu Gershom explains. The Gemara responds that we are not dealing with a case where the beam was cemented, because such a case certainly constitutes Me'ilah. Rather, the beam was merely placed in the window. Therefore, only noticeable usage -- such as dwelling under it -- constitutes Me'ilah.
4) APPOINTING A "SHALI'ACH" TO COMMIT AN "AVEIRAH"
QUESTION: The Mishnah states that when a Ba'al ha'Bayis gives money of Hekdesh to a Shali'ach and sends him to buy something, when the Shali'ach fulfills his Shelichus the Ba'al ha'Bayis is liable for Me'ilah. Even though there is a rule that "Ein Shali'ach l'Devar Aveirah" -- a Shali'ach cannot be appointed to commit an Aveirah (such that when the Shali'ach does the Aveirah, it is attributed to the sender and not to the Shali'ach), the Aveirah of Me'ilah is an exception. The Gemara earlier (18b) derives through a Gezeirah Shavah ("Chet-Chet") from Terumah that the Aveirah of Me'ilah can be committed through a Shali'ach.
Why is a special Gezeirah Shavah to teach that a person is liable for the act of Me'ilah that his Shali'ach commits? Even without the Gezeirah Shavah it is logical that Me'ilah should be an exception to the rule of "Ein Shali'ach l'Devar Aveirah." The principle of "Ein Shali'ach l'Devar Aveirah" is based on the logic of "Divrei ha'Rav v'Divrei ha'Talmid, Divrei Mi Shom'im" (Bava Kama 56a). When the Shali'ach does an Aveirah for the Meshale'ach, the Shali'ach is considered to be acting on his own free will and volition, since he knows that he must not listen to the sender who tells him to do the Aveirah, but to Hash-m who has told him not to do the Aveirah. Therefore, if he does the Aveirah, the Aveirah is attributed to him and not to the one who appointed him.
In order for one to be liable for Me'ilah, the act must be done b'Shogeg, inadvertently, and thus when the Shali'ach commits Me'ilah, it must be that he is unaware of the transgression. How, then, can the logic of "Divrei ha'Rav..." apply? When the Shali'ach does an act b'Shogeg, he is unaware that he is doing something wrong. How can he be expected not to listen to the sender? According to the Gemara's logic of "Divrei ha'Rav...," there should be a difference between cases of Shelichus to transgress b'Shogeg and Shelichus to transgress b'Mezid. Only when a Shali'ach performs an Aveirah intentionally should that Aveirah be attributed to him and not to the sender, but when a Shali'ach performs an Aveirah unintentionally the Aveirah should be attributed to the one who sent him! Why, then, does the Gemara need a Gezeirah Shavah to teach that a Shali'ach is liable for Me'ilah which, by definition, is transgressed b'Shogeg?
(The SEFER ME'IRAS EINAYIM (CM 182) gives a novel explanation for this reasoning. He says that "Divrei ha'Rav... Divrei Mi Shom'im" refers to the intent of the Meshale'ach when he appoints a Shali'ach to do an act of Aveirah. When appointing a Shali'ach, one may assume that the Shali'ach will fulfill his mission as agreed. However, when appointing someone to do an Aveirah, the Meshale'ach has doubts about whether the Shali'ach will follow his directives. We therefore assume that the Meshale'ach does not take the appointment of the Shali'ach seriously and thus is considered to have nullified the appointment of the Shali'ach. Consequently, when the Shali'ach performs the act he is considered acting on his own behalf and not for the Meshale'ach.)
(a) TOSFOS in Kidushin (42b, DH Amai Mo'el) answers by giving a novel explanation for the case of the Mishnah here. He says that in the case of the Mishnah, the money of Hekdesh was spent by the Shali'ach knowingly. The Shali'ach committed Me'ilah intentionally. However, the Ba'al ha'Bayis did not know that the money belonged to Hekdesh. From his perspective, the act was done b'Shogeg. Since the owner's appointment of the Shali'ach to do an Aveirah of Me'ilah was b'Shogeg, it fulfills the criterion that an act of Me'ilah be done b'Shogeg in order for the perpetrator to be liable. However, since the Shali'ach did the act b'Mezid, the logic of "Divrei ha'Rav v'Divrei Talmid..." applies, and thus the Shali'ach should be liable if not for the Gezeirah Shavah that makes the Ba'al ha'Bayis liable in the case of Me'ilah.
(b) The RITVA in Kidushin proves from here that the rule of "Ein Shali'ach l'Devar Aveirah" applies even when the logic of "Divrei ha'Rav v'Divrei Talmid..." does not apply. The only reason why the Gemara mentions the logic of "Divrei ha'Rav..." in reference to the rule of "Ein Shali'ach l'Devar Aveirah" is that this logic applies to most cases of appointing a Shali'ach to do an Aveirah. However, even when it does not apply, the law is that a Shali'ach cannot be appointed to do an act of Aveirah. (See Ritva for other examples throughout the Gemara for such situations.) (See also Insights to Kidushin 42:3.)
5) WHAT IS INCLUDED IN "BASAR"?
QUESTION: The Gemara cites the Beraisa in which Rebbi Akiva and Raban Shimon ben Gamliel disagree about whether a Neder prohibiting meat (Basar) also prohibits chicken, liver, and other secondary forms of meat. Raban Shimon ben Gamliel says that these objects are not included in the Neder, since liver and chicken are not called "Basar." Rebbi Akiva says that they are included in the person's Neder, because when a person asks a Shali'ach to buy Basar for him and the Shali'ach finds none, the Shali'ach will return to the sender and ask him if he should buy chicken in place of Basar.
The Rishonim rule in accordance with the view of Rebbi Akiva, who says that chicken and liver are included in a Neder prohibiting Basar. The Gemara concludes that according to this opinion, fish also are included in a Neder prohibiting Basar unless circumstances indicate that the person did not intend to prohibit fish (for example, in a situation where he would not have eaten fish anyway, such as on a day of bloodletting). The meat of Chagavim (grasshoppers) is not included in a Neder prohibiting Basar.
The ruling of the RAMBAM (Hilchos Nedarim 9:6) is difficult to understand. The Rambam like Rebbi Akiva and writes that Chagavim are not included in a Neder prohibiting Basar, and that fish are included in the Neder in a place where a Shali'ach would return to the sender to ask if he should buy fish instead of Basar. He writes that chicken and liver are always included in the Neder.
How can the Rambam rule that chicken is always included in a Neder prohibiting Basar? The Gemara clearly equates fish with chicken and says that a Shali'ach asks about both of them! Why, then, does the Rambam differentiate between the two? He should rule that chicken, too, depends on whether the Shali'ach would normally return to the sender if he should by chicken instead of Basar!
ANSWER: A number of Acharonim suggest answers to this question, but the most straightforward answer seems to be that of the KESEF MISHNEH (based on the words of the RADBAZ). The Kesef Mishneh points out that that the Gemara seems to be unnecessarily wordy when it compares chicken to fish. The Gemara asks why the Tana includes chicken in a Neder prohibiting Basar, and it answers because a Shali'ach sent to buy Basar asks if he should buy chicken when he cannot find any Basar. The Gemara then asks that if chicken is included in "Basar" for that reason, then fish also should be included in "Basar" because "it is also the manner for a person to say, 'I did not find the meat of animals, shall I bring fish?'" Why does the Gemara not say simply that "it is normal for a Shali'ach, if he does not find meat, to ask about fish." Why does the Gemara repeat at length the words that the Shali'ach says? (See SHALMEI NEDARIM to Nedarim 54b in the name of TESHUVOS MAHARIK.)
The Kesef Mishneh answers that it is evident from the apparent repetitiveness that there are two different inquiries that a Shali'ach might ask his sender when he questions what the sender wants him to buy. In the case of chicken (or liver), as soon as the Shali'ach is appointed to buy meat for the sender the Shali'ach asks, "Do you want animal meat or chicken meat (or liver)?" With regard to fish, however, the Shali'ach does not ask, "Do you want fish meat," for he assumes that the sender does not want fish meat. Only in the event that there is no meat in the market does he return and ask the sender if fish will suffice.
Raban Shimon ben Gamliel maintains that in both cases of the different inquiries of the Shali'ach, the word "Basar" does not include the secondary type of meat (chicken or fish). Rebbi Akiva, on the other hand, maintains that even in the latter inquiry, where the secondary food is bought only when there is no other Basar in the market, the secondary food is also included in "Basar."
(The Kesef Mishneh does not explain why Raban Shimon ben Gamliel disagrees with Rebbi Akiva in the case of the first category of inquiry. If the Shali'ach who is asked to buy meat normally asks, "Do you want animal meat or chicken meat (or liver)," because both are called meat, then why does Raban Shimon ben Gamliel say that the word "Basar" means only animal meat? The answer might be that animal meat is more desirable and important to people, and thus they mean animal meat when they say "Basar." Raban Shimon ben Gamliel maintains that the word "Basar" includes only the more desirable type of Basar and not the less desirable type of Basar such as chicken or liver. See KEREN ORAH.)
This is why the Rambam rules that whether fish is included in "Basar" or not depends on the place -- on whether a Shali'ach in that place normally asks if fish will suffice when he is sent to buy meat, as the Gemara says. However, the Rambam says that chicken and liver are included in the word "Basar" in all places (according to Rebbi Akiva), because they are considered types of meat (even though animal meat is generally more desirable).
Strong support for this approach may be found in the wording of the Gemara in Nedarim which discusses the argument between Rebbi Akiva and Raban Shimon ben Gamliel. The Gemara there (54a) says that the Rabanan, who argue with Rebbi Akiva, maintain that an item about which a Shali'ach "must ask" ("d'Tzarich") is not included in the object of the Neder, while Rebbi Akiva maintains that anything that a Shali'ach "asks" about is the same as the object in the Neder. When the Gemara there later (54b) compares fish with chicken, it says that according to Rebbi Akiva fish are included in the Neder because it is "normal" for a Shali'ach" ("d'Avid Shelicha") to ask about it (or, in the words of the Gemara here, "d'Ragil Einish" and "d'Avid Einish"). Why does the Gemara use three different phrases?
According to the Kesef Mishneh's understanding of the Rambam, it is clear why the Gemara uses three different phrases. The first type of food -- a food commonly referred to as "Basar" (such as chicken or liver) that may have been included in the intention of the sender's command -- about which a Shali'ach needs to ask immediately is called something that a Shali'ach must ask about, since the term "Basar" includes both meat and chicken, and thus the Shali'ach must ask what the sender wants. The Rabanan say that even those items are not included in the Neder prohibiting Basar. Rebbi Akiva, on the other hand, maintains that even when the Shali'ach does not have to ask, but it is merely normal for him to ask, such as when he does not find any Basar and comes back and asks if the sender wants fish instead, that item is included in the Neder. Since Rebbi Akiva maintains that both (chicken and fish) are included, the Gemara does not say that the Shali'ach "must" ask ("d'Tzarich") or that it is "normal" for him to ask ("d'Avid"), but merely that the Shali'ach "asks."
When the Gemara there (54b) attempts to show that fish should be included in a Neder of "Basar" just like chicken is included (according to Rebbi Akiva), it refers only to the second type of inquiry, where the Shali'ach asks if he should buy fish if he cannot find any Basar. Therefore, the Gemara uses the appropriate term and says it is "normal" ("d'Avid") for a Shali'ach to ask! (The Gemara uses the term "d'Avid" with regard to chicken only because it must use that term with regard to fish.) (See also Insights to Nedarim 54:2.)