1) ADDING A "CHOMESH" WHEN REDEEMING A KORBAN THAT WAS DESIGNATED FOR SOMEONE ELSE
QUESTION: Rami bar Chama asks the following question. The Halachah is that when a Makdish (one who sanctifies one of his possessions to Hekdesh) redeems his item from Hekdesh, he must add a Chomesh (a fifth) to the value of the item that he is redeeming. This requirement applies only to the original owner. Anyone else who chooses to redeem the item from Hekdesh does not pay the extra Chomesh. In a case in which one person sanctifies an animal as a Korban to be offered on behalf of someone else, and the animal becomes a Ba'al Mum (and thus must be redeemed), who must pay the Chomesh -- the original owner of the animal, or the person for whom the animal was designated as a Korban? This is Rami bar Chama's question. Must the original owner pay the Chomesh since he is the one who sanctified his property to Hekdesh, or must the Miskaper (the one who attains atonement from the Korban) pay the Chomesh since the Korban was designated to be offered on his behalf (and he is deemed to be the owner with regard to the requirement to pay the Chomesh)? Rava answers that it is the Makdish who must pay the Chomesh.
The RAMBAM (Hilchos Erchin 7:4) records this Halachah in a seemingly odd manner. He writes that "a Makdish who redeems the animal for himself is the one who adds a Chomesh, and the Miskaper does not [add a Chomesh when he redeems it]." Why does the Rambam say that the Makdish pays a Chomesh when he redeems the animal "for himself"? What difference does it make whether he redeems the animal for himself (that is, for his own personal use) or for someone else?
(a) The MELECHES CHOSHEV proposes the following explanation for the Rambam's words. The Rambam himself writes at the end of Hilchos Temurah (4:13) that the reason behind the requirement that the owner add a Chomesh is that "the Torah delved into the depths of a person's thoughts and the motivations of his Yetzer ha'Ra, [revealing] that the nature of a person tends towards the accumulation of possessions and saving his money. Even though he made a Neder and was Makdish [the item that he now wants to redeem], it is possible that he wishes to retract and he regrets it, and he will redeem it for less than its value. The Torah therefore says that if he redeems it for himself, then he must add a Chomesh." According to this reason for the requirement to pay a Chomesh, it is logical to say that when the owner redeems the item not to return it to his own possession but so that it will belong to someone else, this reason does not apply and, therefore, the owner should not be required to pay a Chomesh when he redeems the item.
However, the Meleches Choshev is not satisfied with this answer, because we may not suggest changes in the Halachos of the Torah based on what we think is the reason behind a certain Mitzvah.
(b) The Meleches Choshev concludes that it must be that the Rambam understands that the Torah requires the Makdish to pay a Chomesh only in a normal case, in which the Makdish redeems the item for himself, for his own use. When he redeems it for someone else's use, it is considered as though that person is the one redeeming the animal, and not the original owner. Therefore, no Chomesh needs to be added. (Y. MONTROSE)
2) PARTNERS WHO APPOINTED A "SHALI'ACH" TO SANCTIFY A KORBAN ON THEIR BEHALF
QUESTION: Rami bar Chama asks whether the Makdish or the Miskaper is able to make a Temurah with the Korban. Rava proves logically that the Miskaper (the person for whom the Korban atones, even though he does not own the Korban) is the one who can make a Temurah. He reasons that if the Makdish (the owner of the animal, who sanctified it to be offered as a Korban on behalf of the Miskaper) can make a Temurah, then it should be possible to make a Temurah with a public Korban (Korban Tzibur) or with a Korban of partners. When the Tzibur or partners appoint a third person to be their Shali'ach to sanctify his own animal on their behalf, the Shali'ach should be able to make a Temurah with their Korban since he is an individual, and an individual is able to make a Temurah. The Mishnah (13a), however, states clearly that Temurah cannot be made with a Korban of the Tzibur or of partners. It must be that only the Miskaper can make Temurah (and since the Miskaper is the Tzibur or the partners, who are not an individual, they cannot make a Temurah with their Korban in the case of a Shali'ach who designated his animal on their behalf).
There are several difficulties with Rava's proof:
1. If the partners appointed a Shali'ach to sanctify an animal for them, then they are the Makdishim, and not the Shali'ach! Why does Rava refer to the Shali'ach as the Makdish?
2. Rava implies that it is possible to appoint a Shali'ach to sanctify an animal as a Korban. This contradicts the assertion of the MAHARIT (1:127), who rules that one cannot appoint a Shali'ach to sanctify an animal, because the act of sanctifying an animal is considered "Mili" (words alone), and one cannot appoint a Shali'ach to speak words for him (Gitin 66b and elsewhere). One can appoint a Shali'ach only to perform an action on one's behalf. (REBBI AKIVA EIGER, Gitin 32a; MACHANEH EFRAIM, Sheluchim 7)
3. Why does Rava need to prove his point from a case in which the partners appointed a Shali'ach? Any person may sanctify an animal on another person's behalf, even without being formally appointed a Shali'ach.
ANSWER: The Acharonim (DEVAR AVRAHAM 1:14; ACHIEZER 2:45:2; Hagahos on the Machaneh Efraim) answer that the word "Shali'ach" here does not refer to an ordinary case of Shelichus. Rather, Rava is discussing a case in which a person designated his own animal as a Korban for a group of partners, with their consent. This answers all of our questions. (See OR SAME'ACH, Hilchos Gerushin 2:15, who suggests a different answer to the first question.)
3) THE "KEDUSHAS HA'GUF" OF A FETUS
QUESTIONS: The Gemara (10a) cites an argument between Rebbi Yochanan and Bar Pada about whether a fetus becomes Kadosh while in its mother's womb. Rebbi Yochanan says that a fetus becomes Kadosh in the womb, and Bar Pada says that it does not. Rebbi Yirmeyah questions Bar Pada's opinion from the Mishnah later (24b). The Mishnah states that one can prevent the Kedushas Bechorah from taking effect on a firstborn animal by declaring -- before it is born -- that the animal is designated as a Korban Olah. The Kedushah of an Olah (or a Shelamim if the animal turns out to be a female), takes effect right away, preempting the Kedushah of a Bechor, which takes effect only after the animal emerges from the womb. The Mishnah clearly says that the fetus can become Kadosh before it is born, unlike Bar Pada.
Rebbi Zeira answers that Bar Pada agrees that in the case of the Mishnah later, the animal must be sold and the money used to buy a Korban Olah in its place. This is because Bar Pada agrees that Kedushas Damim takes effect on a fetus; he argues only with regard to Kedushas ha'Guf.
TOSFOS (DH Ki Tanya) has difficulty with the next part of the Mishnah (24b). The Mishnah discusses a case in which a person says that if the calf born to his pregnant animal is a male, then it should be an Olah. The Mishnah says that if twin male calves are subsequently born, one calf must be offered as an Olah and the second must be sold to someone who is obligated to bring an Olah, and the money received for the sale may be used for any purpose, like any unconsecrated money. It is clear from the Mishnah that the calf that is sold for the purpose of an Olah must be offered on the Mizbe'ach as a Korban itself, and it does not have merely Kedushas Damim. If it would have only Kedushas Damim, then the one who buys it would not have to offer it as an Olah. One cannot suggest that the Mishnah means that the second calf should be sold for the purpose of buying another Olah, because in that case there would be no difference between the second calf and whatever animal is purchased as an Olah in its place.
(a) TOSFOS answers that because the first animal already achieved the status of Kedushas Damim, it also achieves the status of Kedushas ha'Guf.
What does Tosfos mean?
The SEFAS EMES explains that Tosfos understands that Bar Pada would agree that the first animal should be an Olah after it is born, and it should be offered as a Korban. If the animal has Kedushas Damim before it is born and its value therefore must be used for a Korban Olah, why should he not simply bring the animal itself as a Korban Olah and fulfill his Neder of Kedushas Damim in this manner?
(b) The SHITAH MEKUBETZES (Hashmatos #37) is not bothered by Tosfos' question at all. While it is true that both animals must be sold so that an Olah can be offered, the money from the sale of the first animal is Kodesh while the money from the sale of the second animal is Chulin.
This answer seems far more straightforward than that of Tosfos. Why does Tosfos not give this answer?
The OLAS SHLOMO explains that Tosfos is asking a different question. Tosfos is not asking that there is no difference between the animals if they are both sold. Rather, Tosfos is asking that the Mishnah (24b) mentions only that the second animal is sold for "Chayavei Olah." If both are sold, as the Shitah Mekubetzes says, then why does the Mishnah state that the first one is brought as an Olah, and the second is sold for Chayavei Olah? It must be that there is a difference between what is done with each of the Korbanos, and not only a difference between the status of the monies received for each animal's sale. (Y. MONTROSE)