Question (R. Yitzchak b'Rebbi Savrin): If a Korban Pesach was slaughtered l'Shem Ma'aser, it should become Ma'aser!


This would cause one who sells to be lashed for "Lo Yiga'el".


Answer: "Ha'Asiri Yihyeh Kodesh" - the only way an animal can become Ma'aser is if it is the tenth (to leave the pen).


Temurah 4b (Abaye): Wherever the Torah forbade something, if one transgressed, he accomplished something. If not, he would not be punished!


(Rava): His Aveirah does not accomplish anything. He is punished for acting contrary to Torah!


5a -Question (against Abaye): The Torah says that Cherem cannot be sold or redeemed. Even b'Di'eved, it does not take effect!


(Mishnah): Chermei Kohanim cannot be redeemed. They must be given to Kohanim.


Answer: "Kodesh Kodashim Hu" teaches that it remains Kodesh (until it is given to Kohanim).


5b - Question (against Abaye): The Torah forbids redeeming Bechor, and doing so does not help!


(Mishnah): Any Korban or Temurah that has a Mum may be redeemed, except for Bechor and Ma'aser.


Answer: We learn from "Hem" - they retain their Kedushah.


Question (against Abaye): The Torah forbids redeeming Ma'aser. Even b'Di'eved, it does not take effect!


(Mishnah): Any Korban or Temurah that has a Mum may be redeemed, except for Bechor and Ma'aser.


Answer: We learn Ma'aser from a Gezeirah Shavah "Ha'avarah-Ha'avarah" from Bechor.


6a - Question: What do Rava and Abaye argue about?


Answer #1 (Rav Ashi): They argue about Ribis Ketzutzah. Abaye exempts from returning it, and Rava obligates returning it.


Rejection: Abaye does not exempt!


Answer #2: They argue about whether or not Shinuy acquires.


Bechoros 32b: Had it said "Lo Yimacher," one might have thought that one may not sell Ma'aser Behemah, for that is treating it like Chulin, but it may be redeemed, for the money becomes Hekdesh. Therefore, it says "Lo Yiga'el," to teach that it may not be sold or redeemed.




Rambam (Hilchos Bechoros 6:5): One may not sell Ma'aser Behemah when it is Tamim (unblemished) - Lo Yiga'el. This includes an Isur to sell it. It may not be redeemed or sold at all. It seems that one who sold it did not accomplish anything, and the buyer did not acquire it, therefore, he is not lashed, just like one who sold Cherem that is given to Kohanim or an Eshes Yefas To'ar.


Ri Korkus: In Temurah we say that all agree that Pidyon does not take effect in Cherem, Bechor and Ma'aser. Since the Torah used an expression of Pidyon to teach that Ma'aser cannot be sold, likewise a sale does not take effect. Perhaps "Hem" also teaches that they stay in the Reshus of their owner.


Tosfos (6a DH v'Hashta): R. Baruch asked why we don't say that they argue about one who redeemed Cherem, Bechor and Ma'aser. Abaye holds that he is not lashed, for he did not accomplish anything, and Rava holds that he is lashed, for he transgressed. This requires investigation.


Ri Korkus: The Rambam (Hilchos Malveh 4:3) holds that one is not lashed for Ribis Ketzuzah, for it can be returned. Therefore, he holds that one is not lashed in all cases that Abaye agrees that one did not accomplish anything. This includes redeeming Cherem, Bechor and Ma'aser. One Perush of Rashi explains like this. The Sugya is slightly difficult according to this, but it answers R. Baruch's question. R. Baruch holds that since the Halachah follows Rava, one is lashed for these, and also for Ribis Ketzuzah. Tosfos could answer that the Gemara failed to find a case in which they argue about whether it takes effect, which is what they explicitly argued about. I see no source in the Sugya whether or not sale of an Eshes Yefas To'ar takes effect.


Rambam (Hilchos Gezeilah 1:9): If one coveted an item and pressured the owner until he took it and gave much money, he transgressed a Lav. He is not lashed because there is no action.


Ra'avad: This is astounding. There is no greater action than taking it! Rather, he is not lashed because he is like a robber who must return what he stole. We discuss when the owner did not say 'I consent.'


Magid Mishneh: The Rambam holds that even if he did not say 'I consent', the 'buyer' acquires. Even though Rava holds that if one transgressed, he did not accomplish anything, here is like one who stole wool and made a Keli. He acquires through Shinuy and owes the initial value. He is not lashed for taking it, for the owner consented. He transgressed for pressuring him, and this has no action. The Ra'avad holds that he acquires only if the seller consented. This is primary.


Lechem Mishneh (8): In Temurah, Rava says that one is lashed for transgressing, even though his Aveirah did not accomplish anything! If so, one should be lashed even though the sale is invalid! In Temurah, we asked against Abaye why one is lashed for selling Cherem or Ma'aser, even though it does not take effect. We should have asked according to Rava why one is not lashed, like we asked about a rapist who divorced! To answer R. Baruch's question, I say that even though normally the Halachah follows Rava against Abaye, here the Rambam rules like Abaye, because the Gemara concluded that they argue about Shinuy Koneh. One version of Rashi says that this discusses one who stole wood and made Kelim. We hold like Abaye, that he acquires them and pays only the value of the wood. However, the Magid Mishneh holds that the Rambam rules like Rava, and Rava holds that Shinuy Koneh. This is like Rashi's other Perush, that Abaye and Rava argue only about how to expound the verses. I do not know how the Magid Mishneh can explain the Rambam here.


Ohr Some'ach (DH v'Yir'eh): The Tosefta (Kidushin 4:6) says that if one was Mekadesh with meat of Ma'aser, she is not Mekudeshes. Before Shechitah, this is Torah law. After Shechitah, Chachamim uprooted the Kidushin. This shows that the buyer does not acquire. Bechoros 32b says that one might have thought that one may not sell it, for that is treating it like Chulin, but it may be redeemed, for the money becomes Hekdesh. Therefore, it says "Lo Yiga'el," to teach that it may not be sold or redeemed. Just like redemption does not take effect b'Di'eved, also a sale, The Tosefta (Bechoros 3:6) says that one cannot sell Ma'aser Behemah because it is not one's property; the correct text of the Yerushalmi says the same. All agree that one is not lashed for trying to sell it.


Chasdei David (on Tosefta Kidushin 4:6): The Tosefta discusses an animal bought with money of Ma'aser Sheni.


Mishneh l'Melech: In Sefer ha'Mitzvos (Lav 263), the Rambam says that one is lashed for selling an Eshes Yefas To'ar, unlike he wrote here.


Rambam (Hilchos Melachim 8:6): If one did not desire his Eshes Yefas To'ar and sold her, he transgressed a Lav and she is not sold. He returns the money.


Radvaz: He is lashed, for this is a Lav with an action.


Hagahah in Frankel Rambam: Most texts of Sefer ha'Mitzvos do not mention lashes. The Rambam lists all Aveiros with lashes in Perek 19 of Sanhedrin, and does not list selling an Eshes Yefas To'ar.


Avnei Nezer (YD 308:2-4): Even R. Yosi ha'Glili agrees that Bechor and Ma'aser are Mamon Gavoha (Hash-m's property). The Gizbar is not authorized to sell them. Even if he accepted money, this is like selling something that one does not own. Transgressing Hash-m's command is only when he did a proper Kinyan, and the Torah forbids it. This is why the Rambam did not discuss the law of redeeming, only the law of selling. One is not lashed for trying to redeem it, for this is mere speech. If it worked, it would be considered an action and he would be lashed, like one is lashed for Temurah. One may not sell an Eshes Yefas To'ar or force her to work, so it is as if she is not his, so one cannot do a Kinyan to sell her. One is lashed for trying to sell his field permanently (because he owns it).

Other Halachos relevant to this Daf: