1) A "TEVUL YOM" WHO TOUCHES A PORRIDGE OF TERUMAH WITH SPICES OF CHULIN
SUMMARY: Abaye cites a Mishnah (Tevul Yom 2:3) in his attempt to prove that the principle of "Heter Mitztaref l'Isur" applies in all cases of Isur (according to Rebbi Eliezer; Tosfos 36b, DH Iy Hachi and DH Is Sefarim). The Mishnah teaches that when a person who is a Tevul Yom touches part of a Mikpeh (stiff porridge) of Terumah which is flavored with garlic and oil of Chulin, the entire dish becomes Tamei. When the Mikpeh is Chulin, and the garlic and oil are Terumah, only the place which the Tevul Yom touches becomes Tamei.
The Gemara asks why, in the case of the Seifa, does the Tevul Yom's touch make the place which he touches Tamei. Nothing should become Tamei.
Rebbi Yochanan explains that the place which he touches becomes Tamei "because a Zar (non-Kohen) receives Malkus for eating a k'Zayis" of the dish. Abaye assumes that Rebbi Yochanan means that a Zar is liable for eating a mixture of Terumah and Chulin which have a combined volume of a k'Zayis, because of "Heter Mitztaref l'Isur." Rav Dimi refutes this proof and says that Rebbi Yochanan means that a Zar is liable only for eating an entire k'Zayis of the Isur (the Terumah) with the Chulin when there is a k'Zayis of the Isur in the Chulin and he eats it within "Kedei Achilas Pras."
The Rishonim are bothered by a number of difficulties with the Gemara.
1. The Seifa says that the only place which becomes Tamei is the place which the Tevul Yom touches. Obviously, the garlic and oil are not unrecognizable in the Mikpeh, because if they are unrecognizable, why should the rest of the Mikpeh differ from the part he touches? If part of it becomes Tamei, the entire Mikpeh should become Tamei (as the Mishnah teaches in Tevul Yom 3:4 with regard to a mixture of Terumah with Chulin). On the other hand, the Gemara asks that even the part he touches should not become Tamei. If, however, the garlic and oil are still recognizable, why should they not become Tamei when a Tevul Yom touches them?
2. How (according to Abaye) does the rule of "Heter Mitztaref l'Isur" explain why the garlic and oil become Tamei? "Heter Mitztaref l'Isur" affects the Mikpeh (the Chulin) and makes the Chulin part of the Isur when it is eaten with the Terumah. However, the Mikpeh does not become Tamei; only the garlic and oil at the place he touches become Tamei (because if part of the actual Mikpeh would become Tamei, the entire Mikpeh would become Tamei). Why does the rule of "Heter Mitztaref l'Isur" make the garlic and oil more susceptible to becoming Tamei?
The same question applies to Rav Dimi's answer. Why does "k'Zayis bi'Chedei Achilas Pras" make the garlic and oil more susceptible to becoming Tamei?
The Rishonim give two basic approaches to these questions.
(a) RASHI (in Pesachim, and quoted by Tosfos here) explains that the reason why the Tevul Yom's touch should not make even the garlic and oil Tamei is that they should become Batel in the Mikpeh. Just as the Mikpeh is Chulin and cannot become Tamei, so, too, the garlic and oil should not become Tamei.
RABEINU TAM (cited by Tosfos) asks that if the garlic and oil of Terumah are still recognizable, how can they become Batel? Bitul works only when the object of the Isur is indistinct and unrecognizable! Rashi apparently understands that the garlic and oil are no longer distinguishable from the rest of the Mikpeh. If this is the case, however, why does the Mishnah state that only the place which the Tevul Yom touches becomes Tamei? The entire Mikpeh should become Tamei because it is all one, single dish.
The RASH in Tevul Yom (2:3) defends Rashi's opinion and proves that the Mishnah there indeed must refer to a case in which the garlic and oil are unrecognizable in the Mikpeh, as Rashi explains. The Rash quotes a Tosefta which asks the same question as Rabeinu Tam. The Tosefta answers that when the Terumah and Chulin are composed of the same material (Min b'Mino), when a person touches one part of the mixture the entire dish becomes Tamei. Here, however, the garlic and oil are not the same Min as the Mikpeh, and thus only the part which the Tevul Yom touches becomes Tamei. (The Tum'ah of Dimu'a, which is mid'Rabanan, was instituted because the mixture must be treated like (and called) Terumah due to the Terumah which it contains. When the Terumah and Chulin are two different Minim, the Rabanan did not apply their Gezeirah to make the entire dish Tamei.) The Rash answers the other questions of Rabeinu Tam as well (see Tosfos).
When Rebbi Yochanan states that the place which the Tevul Yom touches becomes Tamei because a Zar receives Malkus when he eats a k'Zayis of the mixture, he means that since it is still possible to receive Malkus for eating this mixture, it has the status of Terumah and it is not appropriate that it should remain entirely Tahor when part is touched by a Tevul Yom (Rashi to Pesachim 44a).
(b) RABEINU TAM explains that the garlic and oil become Tamei when touched, while the rest of the Mikpeh does not become Tamei, because they are still recognizable and are not mixed with the rest of the Mikpeh. When the Mishnah says in the first case (in which the Mikpeh is Terumah) that when a Tevul Yom touches the garlic and oil of Chulin the entire Mikpeh becomes Tamei, it is because the garlic and oil act as a "Yad" that passes along the Tum'ah to the Terumah underneath (i.e. the Mikpeh).
This is difficult to understand. The Halachah of Yados (Chulin 118a) normally applies to a solid object (which is not Mekabel Tum'ah) which is used to move or lift another object (which is Mekabel Tum'ah) to which it is attached (such as a stem of a fruit, or a bone with meat on it). In the case of the Mishnah in Tevul Yom, however, the garlic and oil certainly cannot be used to move the Mikpeh. Why, then, should they be considered a Yad?
Apparently, Rabeinu Tam does not mean that the garlic and oil are literally Yados. Rather, he means that the garlic and oil are secondary to the Mikpeh and therefore are considered part of the Mikpeh with regard to their ability to cause the Mikpeh to become Tamei (mid'Rabanan) if they are touched. This indeed is the explanation given by Tosfos (in Pesachim) and the Rash (in Tevul Yom) in the name of Rabeinu Tam.
In the case of the Seifa (in which the Mikpeh is Chulin and the garlic and oil are Terumah), the reason why the Gemara asks that the garlic and oil should not become Tamei at all is that they are not the size of a k'Beitzah. Food smaller than the size of a k'Beitzah cannot be Mekabel Tum'ah, mid'Oraisa. (Rabeinu Tam explains that the Tum'ah of the place which the Tevul Yom touches becomes Tamei mid'Oraisa, either because the words of the Mishnah imply as such (Tosfos here), or because the Rabanan did not enact a Gezeirah in this case to make the garlic and oil Tamei, since they are Batel to the Mikpeh and the Mikpeh is Chulin.)
The Gemara answers that the reason why the place he touches becomes Tamei is that a Zar receives Malkus for eating a k'Zayis of the Mikpeh, through the principle of "Heter Mitztaref l'Isur." (Although the garlic and oil rest on top of the Mikpeh and are not mixed with it, the rule of "Heter Mitztaref l'Isur" still applies; see Insights to 37:1.) How does this answer explain why the garlic and oil can become Tamei? Since a person receives Malkus for eating the Mikpeh as well and not just for eating the spices, it is evident that the Mikpeh joins with the spices to make a Shi'ur of a k'Beitzah so that the mixture is Mekabel Tum'ah as well. Since one transgresses the Isur of eating Terumah by eating the Heter (and he is punished with Malkus), the Heter is also able to join with the Isur to make a Shi'ur of a k'Beitzah so that the dish becomes Pasul as Terumah when touched by a person who is Tamei.
The second answer of the Gemara is that even if the Heter is not Mitztaref to the Isur, the Heter still can cause a person to be liable for eating Terumah through the Halachah of "k'Zayis bi'Chedei Achilas Pras." Tosfos points out that if one is liable only when he eats a k'Zayis of actual Isur and the Heter does not contribute to that Shi'ur, why should the Heter contribute to the Shi'ur to make the mixture fit to be Mekabel Tum'ah? Tosfos (36b, DH Amar Lei) answers that the Heter indeed does contribute to the Chiyuv for Malkus for one who eats Terumah: a person is liable for Malkus for eating garlic and oil of Terumah only when he eats them together with the Mikpeh on which they rest. One who eats garlic or oil of Terumah by itself is not liable for Malkus because such an act is not considered a normal act of eating ("k'Derech Achilah"), and one does not receive Malkus for such an act. In this sense, the Mikpeh of Heter is the cause for the Chiyuv Malkus for eating the k'Zayis of garlic and oil.
According to the way Tosfos (in Pesachim) and the Rash (in Tevul Yom) explain the words of Rabeinu Tam (see above), the Gemara's answer is easier to understand. The Gemara asked that since there is not a Shi'ur of a k'Beitzah of the garlic and oil, the Tum'ah is only mid'Rabanan, and since it is only mid'Rabanan the garlic and oil should be Batel (mid'Rabanan) to the Mikpeh and not be Mekabel Tum'ah. The Gemara answers that the garlic and oil do not become Batel since they are still "Chashuv" (significant) enough to cause a person to receive Malkus for eating them. This is very similar to the approach of Rashi in that the Gemara's question is one of Bitul (are the garlic and oil Batel or not).
Tosfos (36a, DH Mishum) seems to follow this latter approach, even though the previous Tosfos follows the first approach to the words of Rabeinu Tam. (The previous Tosfos is apparently a Hagahah, and the second Tosfos is the original Tosfos who quotes Rashi throughout the Sugya. It seems that Tosfos does not understand Rashi as the Rash does (that the spices are mixed with the Mikpeh), but rather he understands that Rashi also maintains that the spices are on top of the Mikpeh (like Rabeinu Tam), and that the Gemara's question is that the spices should become Batel to the Mikpeh, mid'Rabanan, since their Tum'ah is only mid'Rabanan.)

36b----------------------------------------36b

2) THE MECHANISM OF "SHE'ANI OMER"
QUESTION: Abaye attempts to prove from a Beraisa that the Isur of "k'Zayis bi'Chedei Achilas Pras" is not mid'Oraisa. The Beraisa discusses a mixture of Terumah and Chulin items. Two containers of crushed spices ("Shtei Maduchos"), one full of Terumah spices and the other full of Chulin spices, fall into two pots, one with Terumah and one with Chulin. The Beraisa permits the two pots based on the mechanism of "she'Ani Omer": "I say that the Terumah fell into the Terumah, and the Chulin fell into the Chulin." Similarly, when two baskets of fruit ("Shtei Kupos"), one full of Terumah fruit and the other full of Chulin fruit, fall into two similar containers of fruit, the container of Chulin is permitted because of "she'Ani Omer."
The principle of "she'Ani Omer" works only to permit a doubtful Isur of an Isur d'Rabanan. Accordingly, the Beraisa must be discussing a case in which the mixture -- had the Terumah definitely fallen into the Chulin -- would have been prohibited only mid'Rabanan. Now that there is a doubt into which pot the Terumah fell, the Safek Isur d'Rabanan is permitted because of "she'Ani Omer." If "k'Zayis bi'Chedei Achilas Pras" would be mid'Oraisa, however, the mixture of the Terumah and Chulin would be Asur mid'Oraisa and "she'Ani Omer" would not apply to permit the Safek Isur.
The Gemara replies to Abaye's proof and says that perhaps "k'Zayis bi'Chedei Achilas Pras" is mid'Oraisa, but in the case of the "Shtei Maduchos" the Isur of Terumah of spices is only mid'Rabanan. The Beraisa's second case, "Shtei Kupos," refers to Terumah nowadays, bi'Zeman ha'Zeh, which is prohibited only mid'Rabanan.
Why does the Gemara not answer simply that the reason why the mixture would be prohibited only mid'Rabanan is that there is a Rov of Chulin, a majority of Chulin in the mixture? The Torah teaches that whenever there is a Rov of Heter, the Isur in the mixture is Batel b'Rov. Even the Isur of Terumah is Batel b'Rov, as the Isur of "Dimu'a" of Terumah (when there is a Rov of Heter) is only mid'Rabanan. Abaye himself uses this logic to explain why the mixture would be prohibited only mid'Rabanan even though the principle of "Heter Mitztaref l'Isur" is mid'Oraisa. Heter is not "Mitztaref l'Isur" when there is a Rov of Heter. Accordingly, the same answer should suffice for Rav Dimi who maintains that "k'Zayis bi'Chedei Achilas Pras" is Asur mid'Oraisa. Whenever there is a Rov of Heter, mid'Oraisa the Isur is Batel, as the Gemara says in Zevachim (78a), even when the mixture contains a "k'Zayis bi'Chedei Achilas Pras."
It is clear why the Gemara does not use this answer to refute the proof from the case of "Shtei Maduchos." In that case, the spices presumably add a taste to the food in the pot. The Gemara in Zevachim says that an Isur is not Batel b'Rov when the two foods in the mixture have different tastes ("Min b'she'Eino Mino") and the taste of the Isur is discernable in the Heter ("Nosen Ta'am"). Therefore, mid'Oraisa the spices are not Batel in the Rov of Chulin, and the Isur of "k'Zayis bi'Chedei Achilas Pras" applies.
However, in the case of the "Shtei Kupos" which fell into two containers, the Gemara assumes that the containers hold the same type of food as the baskets which fell into them. This is clear from the fact that Abaye says that "Heter Mitztaref l'Isur" does not apply and the minority of Terumah in the mixture is Batel mid'Oraisa. Accordingly, the same logic should remove the Isur of "k'Zayis bi'Chedei Achilas Pras." (TOSFOS DH Ela l'Didach)
ANSWERS:
(a) TOSFOS answers that although the principle of Bitul b'Rov removes the Isur d'Oraisa from the mixture of Terumah and Chulin, the Rabanan are more stringent in this case than in the case of an ordinary Isur d'Rabanan. They do not apply "she'Ani Omer" due to a Gezeirah lest one permit the Terumah in a case when there is not Bitul b'Rov.
If this is true, however, the question applies to Abaye as well. Even if there is a Rov of Chulin, "she'Ani Omer" should not apply because of a Gezeirah for a case where there is no Bitul b'Rov.
Tosfos answers that the Rabanan apply their Gezeirah only so that this case not be confused with a case in which the Isur is still noticeable in the mixture, in which case the Isur is not Batel. When the Isur is noticeable in the mixture and the rule of "k'Zayis bi'Chedei Achilas Pras" is mid'Oraisa, the whole mixture becomes Asur mid'Oraisa even though it is "Min b'Mino" (i.e. since it is not an actual mixture). If, however, "k'Zayis bi'Chedei Achilas Pras" is not Asur mid'Oraisa, then even when the Isur is noticeable there is no Isur d'Oraisa for one who eats it.
If "k'Zayis bi'Chedei Achilas Pras" is not mid'Oraisa but "Heter Mitztaref l'Isur" is mid'Oraisa (as Abaye maintains), why is one not liable for transgressing an Isur d'Oraisa (when the Isur is recognizable) due to "Heter Mitztaref l'Isur"? One answer is that it is only Rebbi Eliezer who maintains that Heter is Mitztaref l'Isur, and this Beraisa follows the view of the Rabanan who do not maintain that Heter is Mitztaref l'Isur. However, according to the Girsa cited by Tosfos (DH Is Sefarim), the Gemara assumes that Rebbi Eliezer is the Tana of the two cases of "Shtei Maduchos" and "Shtei Kupos" as well! If Rebbi Eliezer is the Tana of the Beraisa, why should the mixture not be forbidden because of "Heter Mitztaref l'Isur" when the Isur is recognizable?
Tosfos explains that "Heter Mitztaref l'Isur" never applies when the Isur is "Min b'Mino" and is less than the Heter, even when the Isur is recognizable. Accordingly, there is a difference between "Heter Mitztaref l'Isur" and "k'Zayis bi'Chedei Achilas Pras." With regard to "k'Zayis bi'Chedei Achilas Pras," whether the Isur and the Heter are of the same Min or are of different Minim makes no difference. If the person eats a k'Zayis of Isur, the k'Zayis of Isur is present regardless of whether he tastes it. In contrast, "Heter Mitztaref l'Isur" takes effect only when the taste of the Isur is palpable in the mixture. If the Isur does not add to or change the taste of the Heter, the Heter remains unaffected by the Isur (and it does not become like the Isur, such that the person who eats it should be liable). Therefore, as long as the mixture is "Min b'Mino" (and the taste of the Isur cannot be discerned), the Heter is not Mitztaref to the Isur.
(b) The RASH (Tevul Yom 2:3) suggests that the "Shtei Kupos" which fell into the two containers indeed are "Min b'she'Eino Mino." However, there is so little of the Isur (the Terumah) that its taste is unrecognizable in the mixture. The Gemara assumed that although "Heter Mitztaref l'Isur" does not apply to such a mixture (as explained above according to Tosfos) -- either because the Beraisa follows the view of the Rabanan or because "Heter Mitztaref l'Isur" applies only when the Isur's taste is noticeable, the Isur of "k'Zayis bi'Chedei Achilas Pras" still applies to the mixture since it is not "Min b'Mino."
(c) The RASH suggests a second answer. When the Gemara in Zevachim says that mid'Oraisa "Min b'Mino" is Batel b'Rov, it refers to the case of an Isur which becomes totally absorbed in the Heter and is no longer "b'Ein," "recognizable." However, if the Isur is minced into very small pieces and is inseparably mixed with the Heter, even if there is a Rov of Heter the mixture remains forbidden according to the opinion that "k'Zayis bi'Chedei Achilas Pras" is mid'Oraisa, since the Isur is still noticeable. As Tosfos maintains (as explained above in the first answer), "Heter Mitztaref l'Isur" does not apply to the mixture even when the mixture is noticeable, either because the Beraisa follows the view of the Rabanan or because "Heter Mitztaref l'Isur" applies only when the taste of the Isur is noticeable in the mixture.

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