1) THE NATURE OF THE REQUIREMENT THAT A "KORBAN ASHAM" GO OUT TO PASTURE
QUESTION: Rav Shmuel bar Rav Yitzchak states that Rebbi Shimon agrees that a goat that was designated to be a public Chatas that became lost, and was found only after the public Korbanos began to be brought from the funds of the new year, cannot be offered as a Korban Olah. Rather, it is sent out to pasture ("Nituk"), and when it receives a blemish it is sold. The money received in return is used for the purchase of a Korban Olah, which is offered for "Kayitz ha'Mizbe'ach."
If a public Chatas may be brought as an Olah after the public already received the atonement for which the Chatas was designated, it might also be deemed fit to be brought as an Olah before such atonement has been attained. (For example, perhaps a nicer animal will be found, and people will suggest that they use that animal as the Chatas and convert this goat to an Olah.) Rebbi Shimon therefore agrees that the animal itself cannot be brought as an Olah for Kayitz ha'Mizbe'ach.
The Gemara cite proofs for this reasoning from various sources. One source is the Mishnah in Temurah (20b). The Mishnah there states that if the owner of a Korban Asham died, or the Korban became lost and another animal was offered in its place, the original animal should be left to graze until it receives a blemish, and its value should be used for a Nedavah. Rebbi Eliezer says that it should be put to death. Rebbi Yehoshua says that its value should be used to bring a public Olah. (The Gemara in Temurah (20b) explains that the difference between the Tana Kama and Rebbi Yehoshua is that the owner of a privately-donated Korban performs Semichah and must buy the Nesachim. No Semichah is performed with a public Olah, and the Nesachim are purchased from the public funds.)
Ravina asks, why is the animal itself not brought as an Olah? He asserts that the reason why it is not brought itself must be based on the logic above, that people might change it to an Olah even before an Asham is brought.
TOSFOS (DH Asham) points out that this implies that there really would be no problem with bringing the Korban, according to Torah law, if another Asham had already been brought, even if the Asham had not been formally sent out to pasture.
Tosfos asks that this is problematic, because a Halachah l'Moshe mi'Sinai states otherwise (Temurah 18a, Nazir 25b, and other places). The Halachah is that in a situation in which the law dictates that an animal designated as a Chatas must be put to death, an animal designated as an Asham must be sent out to pasture until it receives a blemish. If this is a Torah law, then why does the Gemara here imply that it does not apply to this Asham?
(a) TOSFOS quotes RABEINU TAM who answers that the Halachah l'Moshe mi'Sinai states that if there is a situation in which an animal designated as a Chatas must be put to death, an Asham in the same situation would must be brought as an Olah. Whenever the Gemara quotes this Halachah, it adds the requirement of the Rabanan that the animal be sent to pasture until it receives a blemish.
Rabeinu Tam proves this from the Gemara in Pesachim (73a). Rav Huna there states that an Asham that was sent out to pasture and slaughtered without specific intent is valid as a Korban Olah. The Gemara infers that this means that even though it was not explicitly renamed an Olah, it is still fit to be brought as an Olah. The Gemara therefore asks, why does Rav Huna say that it was actively sent out to pasture? If it does not need to be renamed, it should also not need to be sent out to pasture! The Gemara answers that the Rabanan decreed that it be sent to pasture, lest people rename it even before the atonement for which it was dedicated is attained. Just as the Gemara here does not mention the law that when a Chatas is killed an Asham is sent to pasture, the Gemara in Pesachim similarly makes no mention of it. Rabeinu Tam concludes that this is because there is no such Torah law; the requirement is only mid'Rabanan.
(b) However, according to RASHI's understanding of Rav Huna's statement in Zevachim (5b) and Menachos (4a), sending the Asham out to pasture in these cases is a Torah law, a genuine Halachah l'Moshe mi'Sinai. According to Rashi's text in the Gemara there, the Gemara quotes Rav Huna's statement and then infers from it that Rav Huna specifically requires that the animal be sent to pasture. When the Gemara asks why this is so, it responds that it is because the verse says, "[Asham] Hu" -- "it [is an Asham]" -- implying that it is unfit to be offered unless its designation as an Asham is changed. Rashi's words imply that this is a Torah law.
Tosfos in Shevuos says that according to Rabeinu Tam, Rashi's text of the Gemara in Zevachim and Menachos is inaccurate. Tosfos in Menachos (DH 4a, DH Asham) similarly quotes Rabeinu Shmuel as saying that this text is erroneous.
Tosfos adds that even if the text of Rashi is correct, it is possible that the Gemara means something entirely different. It may mean that "Hu" -- "it" is an Asham whose law is that it can be offered as an Olah and does not need to be renamed as an Olah in order for it to be valid. (See Tosfos here and in Menachos for a lengthy discussion of other Gemaras relevant to this topic.) (Y. MONTROSE)
2) IS ONE CONSIDERED A "RASHA" IF HE FAILS TO PERFORM A POSITIVE COMMANDMENT?
QUESTION: The Mishnah (2b) lists the transgressions for which the various types of Korbanos atone. In the end of its list, the Mishnah says that for all other transgressions, whether light or severe, the Sa'ir ha'Mishtale'ach atones. The Gemara here cites Rav Yehudah who says that "light" transgressions refer to transgressions of a Mitzvas Aseh or Lo Ta'aseh.
The Gemara questions the intent of the Mishnah. If the Mishnah refers to a person who transgressed a Mitzvas Aseh but did not repent, the Sa'ir ha'Mishtale'ach cannot provide atonement for him, because the verse states, "The sacrifice of the wicked is an abomination" (Mishlei 21:27).
The Gemara's application of the verse in Mishlei to a person who transgresses a Mitzvas Aseh implies that one who fails to fulfill a Mitzvas Aseh is considered a Rasha.
However, this seems to contradict the position of many Acharonim. The Torah states, "Do not place your hand with the wicked to be a thieving witness" (Shemos 23:1). This verse teaches that a Rasha may not serve as a valid witness. The NESIVOS HA'MISHPAT (CM 34:1) rules that this verse does not apply to one who failed to fulfill a Mitzvas Aseh. He cites a number of sources in the Gemara to prove that such a person does not become disqualified from giving testimony. Rather, one becomes disqualified only if he actively transgressed a Lo Ta'aseh, or if he casts aside the yoke of Heaven entirely.
Moreover, the TUMIM (CM 34:1) rules that one who transgressed a Lo Ta'aseh in a passive manner (for example, he failed to burn his Chametz before Pesach and therefore owned Chametz during Pesach) is not disqualified from giving testimony. How is the opinion of these Acharonim to be reconciled with the Gemara?
ANSWER: The MINCHAS CHINUCH (Mitzvah 6:12) suggests that there is a difference between the way the Chumash uses the word "Rasha" and the way the Book of Mishlei uses the word.
The RAMBAM (Hilchos Edus 10:2) writes that one who transgresses a sin for which he is punished with lashes or death is considered a Rasha and is disqualified as a witness. This implies that one who transgresses lighter sins is still fit to testify. The Rambam writes that the source for the disqualification of a person who transgresses a sin punishable with lashes is the verse, "If the Rasha deserves to be lashed..." (Devarim 25:2). The source for the disqualification of a person punished with death is the verse, "... who is a Rasha and is liable for death" (Bamidbar 35:31).
The Torah uses the word "Rasha" to describe a sinner who is liable for lashes or for death. It does not use the word "Rasha" to describe a person who transgresses a Mitzvas Aseh or a passive Lo Ta'aseh.
(This approach may shed light on the Gemara in Kidushin (33b). The Gemara there states, "Any Talmid Chacham who does not stand up for his teacher is called a Rasha." The Gemara cites support from a verse in Koheles. Although the perpetrator transgresses only a Mitzvas Aseh by not standing for his teacher, he is deemed a Rasha just as the verse in Mishlei calls such a person a Rasha. However, in the language of the Torah he is not classified as a Rasha. Therefore, one who neglects to stand up out of respect for a Torah scholar would not be disqualified from being a witness.) (D. BLOOM)