OPINIONS: The Gemara says that a Halachah l'Moshe mi'Sinai teaches that just as a Velad Chatas or Temuras Chatas must be left to die, an Asham of the same type must be left to graze until it becomes blemished. The Gemara asks that if a Halachah l'Moshe mi'Sinai teaches this law, then why does the Tana need to derive this law from a verse (Devarim 12:26)? The Gemara answers that the verse is needed to teach that one who transgresses this prohibition (and offers a Temuras Asham as a Korban) transgresses a Mitzvas Aseh.
What does the Gemara mean? The very fact that there is a Halachah l'Moshe mi'Sinai that these animals may not be offered implies that there is a Torah prohibition against bringing such animals as Korbanos. If such a prohibition is not equivalent to an explicit Mitzvas Lo Sa'aseh, at least it should be equivalent to a Mitzvas Aseh! Why, then, does the verse need to teach that this prohibition has the severity of a Mitzvas Aseh, if this is obvious?
(a) The YAD BINYAMIN answers that a Halachah l'Moshe mi'Sinai is neither a negative commandment nor even a positive commandment. He quotes a similar Gemara in Nazir (25b) that says that without a verse, we would not know that one is "Chayav" at all for transgressing this Halachah l'Moshe mi'Sinai.
This unique status of a Halachah l'Moshe mi'Sinai -- being neither a Lo Sa'aseh nor a Mitzvas Aseh -- has other ramifications. The PRI MEGADIM (Pesichah, Shevu'os Nedarim) records the Halachah that one cannot make a Shevu'ah to fulfill a Torah commandment, because he is already bound by the Shevu'ah that he took at Har Sinai to observe the Torah, and a Shevu'ah cannot take effect on another Shevu'ah ("Mushba v'Omed me'Har Sinai"). However, this rule does not apply to laws that are mid'Rabanan. The Pri Megadim asserts that, similarly, this rule does not apply to a Halachah l'Moshe mi'Sinai. Why does this rule not apply to a Halachah l'Moshe mi'Sinai? If one is "Mushba v'Omed me'Har Sinai" for Halachos l'Moshe mi'Sinai, then why can a Shevu'ah take effect? The answer is that a Halachah l'Moshe mi'Sinai does not constitute a positive or negative commandment.
Another example of this unique status of a Halachah l'Moshe mi'Sinai involves the prohibition against performing Nisuch ha'Mayim (the water libations during Sukos) outside of the Beis ha'Mikdash. The Rishonim disagree about whether the prohibition against performing Nisuch ha'Mayim outside of the Beis ha'Mikdash is a Halachah l'Moshe mi'Sinai. According to the RAMBAM (Perush ha'Mishnayos, Zevachim 13:6), who learns that this prohibition is a Halachah l'Moshe mi'Sinai, one who transgresses this prohibition is not punished in the same way as a person who performs an act of Avodah outside the Beis ha'Mikdash; he is exempt from punishment.
Obviously, a Halachah l'Moshe mi'Sinai is a binding Torah law that everyone must fulfill. However, it does not have the status of a Lo Sa'aseh or Mitzvas Aseh.
(b) The TOSFOS YOM TOV (Zevachim 13:6) argues that a Halachah l'Moshe mi'Sinai attains the status of the explicit Torah law that it supplements, and one who transgresses it receives the same punishment that one receives for transgressing the Torah law. The Tosfos Yom Tov questions the Rambam's ruling and says that there is no reason why one who performs Nisuch ha'Mayim outside the Beis ha'Mikdash should not be punished just like every other person who brings a Korban outside the Beis ha'Mikdash. However, the Gemara here and in Nazir, and many Rishonim, seem to disagree. (Y. MONTROSE)


QUESTION: The Mishnah earlier (18a) quotes Rebbi Papeyas as testifying that he was part of a group that brought a cow as a Korban Shelamim on Pesach, and that brought the child of the cow as a Korban Shelamim on Sukos. The Gemara asks that this seems to contradict the ruling of Rava, who maintains that one must fulfill his Hekdesh obligations before one festival (Pesach, Sukos, or Shavuos) passes in order to avoid transgressing the Isur of Bal Te'acher. Rebbi Papeyas obviously did not do this, because he ate the mother on Pesach and the child during Sukos (and the child, which was Kadosh, was obviously born before Pesach).
The Gemara quotes Rav Zevid who answers that the young animal could not be brought on Shavuos because it was sick at the time and not fit to be offered.
The Gemara concludes that the testimony of Rebbi Papeyas was stated as evidence against the position of Rebbi Eliezer, who maintains that the child of a Shelamim is not brought as a Shelamim.
The MAHARATZ CHAYOS in Rosh Hashanah (6a) points out that the cow in the case of Rebbi Papeyas must have been pregnant before it was made Hekdesh. If the cow became pregnant after it was made Hekdesh, then the Gemara would not ask that its child should have been brought earlier, but rather that the cow itself should have been brought earlier! The Gemara in Bechoros (8a) states that the period of pregnancy for a large animal is nine months. If the cow had become pregnant after it became Hekdesh (and Rebbi Papeyas' group offered it after it gave birth), then the Gemara would have asked that we see from Rebbi Papeyas' case that one may let a Korban live for more than nine months after it has become Hekdesh. Within those nine months, though, at lease one Yom Tov would have passed without the cow being offered! It is evident, therefore, that the cow was pregnant before it became Hekdesh.
Many Acharonim ask that this point poses a problem to the opinion of Rebbi Yochanan (10a, 25a), who rules that when a pregnant Chatas gives birth, the owner may use either the child or its mother for his Korban. The Gemara explains that Rebbi Yochanan maintains "Ubar Lav Yerech Imo" -- a fetus is not considered part of the mother, but is considered a separate animal. Rebbi Yochanan also maintains "Im Shiyero Meshuyar" (lit. "if he leaves it over, it is left over"), which means that one is able to leave out the fetus from one's pledge of Hekdesh, consecrating only the mother and not the fetus. When one declares a pregnant animal to be a Korban and does not mention (exclude) its fetus, the fetus has the status of a Korban on its own accord, and not because it is the child of a Korban. It seem that Rebbi Yochanan maintains that a fetus is called a "Velad Shelamim," the offspring of a Shelamim (and thus has the Kedushah of a Shelamim) only when the animal became pregnant after it became Hekdesh. However, according to the point expressed by the Maharatz Chayos, Rebbi Papeyas' case must be discussing an animal that became pregnant before it became Hekdesh (and its fetus obtained the same Kedushah of a Shelamim). This contradicts the view of Rebbi Yochanan, because according to Rebbi Yochanan the fetus should be considered a full-fledged Shelamim and not merely a "Velad Shelamim," and in such a case Rebbi Eliezer should agree that it is brought as a Korban!
How does Rebbi Yochanan understand the Mishnah here?
(a) The CHESHEK SHLOMO answers that the Gemara later (25b) explicitly states that Rava does not agree that Rebbi Yochanan maintains "Im Shiyero Meshuyar." Rava says that the reason why Rebbi Yochanan rules that one may use either the mother or the child for his Chatas is that he maintains "Adam Miskaper b'Shevach Hekdesh" -- a person may fulfill his obligation to bring a Korban with the "increase" of Hekdesh, such as with the offspring born to the animal.
According to Rava, it is possible that Rebbi Yochanan maintains "Im Shiyero Eino Meshuyar" -- the owner of the Korban cannot exclude the fetus from the status of its mother. According to Rava, Rebbi Papeyas is saying merely that he disagrees with Rebbi Eliezer that a Velad Shelamim is not offered. Unlike Rava, however, the Gemara concludes that Rebbi Yochanan maintains "Im Shiyero Meshuyar." Accordingly, Rebbi Papeyas' statement is actually proof against Rava's view (that an animal of Hekdesh must be offered as a Korban before the first Yom Tov passes). According to Rebbi Yochanan, Rebbi Papeyas' statement is that even though the fetus had its own Kedushas Shelamim, it was brought three Regalim later. This clearly is not in accordance with the view of Rava.
The YAD BINYAMIN is not satisfied with this answer for many reasons. Among his questions, he asks that we find no opinion that argues with Rava's ruling that a person may not leave a sanctified animal past one Regel. According to the Cheshek Shlomo, however, the Gemara here seems to conclude that Rava's ruling is not correct.
(b) The Yad Binyamin therefore answers as follows. Even though, according to Rebbi Yochanan, it seems that the child of the Shelamim should have the Halachic status of a Shelamim and not a Velad Shelamim, it is possible that Rebbi Eliezer would agree that it may not be offered. The Gemara earlier (18a) states that the reason why Rebbi Eliezer says that a Velad Shelamim is not offered is a Gezeirah which the Rabanan made out of concern that a person will not bring his Korbenos Shelamim when he is supposed to, and he will let them have children first and then he will raise flocks from them. It is possible that Rebbi Eliezer extends this Gezeirah beyond a "Velad Shelamim" and includes in the Gezeirah even a child that has the Halachic status of a Shelamim itself (as the reasoning of the Gezeirah applies in such a case as well). (See Yad Binyamin for an additional answer.) (Y. MONTROSE)
QUESTION: The Beraisa derives from the words, "Im Al Todah" (Vayikra 7:12), that the Lachmei Todah are brought only with an original Korban Todah, and they are not brought with offspring of a Torah, Temuras Todah, or Chalifas Todah.
The Beraisa already derived from the word, "Yakrivenu," that Lachmei Todah are not offered with a Chalifas Todah. Why does the Beraisa need another source to teach that the Lachmei Todah are not offered with a Chalifas Todah? (TOSFOS DH v'Chalifos)
ANSWER: The VILNA GA'ON (Hagahos #4) explains that when the Beraisa teaches that Lachmei Todah are not offered with a Chalifas Todah, it refers to a case in which the person lost his Todah and sanctified a replacement, and then he found the original Todah. In such a case, he may choose which of the two animals to offer as his Todah. The second part of the Beraisa teaches that he may offer the Chalifas Todah even when the original Todah was already offered.
The teaching of the first Beraisa seems obvious. Once we know (from the Derashah of the second part of the Beraisa) that a Chalifas Todah may be offered after the Todah was sacrificed, it is obvious that a Chalifas Todah may be offered when no Todah has yet been offered and both animals are in front of him!
The answer is that without the first part of the Beraisa, we would have thought that the Lachmei Todah are never brought with the Chalifas Todah, even when the owner chooses to offer the Chalifas Todah instead of the original Todah.
However, according to this approach, the second teaching of the Beraisa is obvious. Once the first part of the Beraisa teaches (from "Yakrivenu") that the Chalifas Todah is offered without Lachmei Todah, this implies that the Chalifas Todah may be offered as a Todah even after the original Todah was sacrificed (for, otherwise, the Lachmei Todah would be offered with the Chalifas Todah). Why, then, is another Derashah ("Im Al Todah") to teach that the Chalifas Torah may be offered after the original Todah was already offered?
The answer is that without the second Derashah ("Im Al Todah"), we would not have known at all that a Chalifas Todah may be offered (and there would be nothing on which to base the first Derashah, that Lachmei Todah are not offered with a Chalifas Todah). Once we learn that a Chalifas Todah may be offered, we then can exclude it from the law of Lachmei Todah. (That is, the first Derashah is dependent on the second Derashah. Even though the law derived from the second Derashah is implied by the first Derashah, that is only because the second Derashah preceded it in the order of exegesis.)