If the seller leaves town, then the purchaser redeems the coins. But if the seller is still around, then he is penalized because he has to return the money and the sale is nullified.
Why not penalize the purchaser by making him take an equivalent amount of money and bring it up to Jerusalem? Why penalize the seller? After all, what did he do wrong?
The first answer is that a mouse cannot steal an item unless he has a hole to put it in. The seller is at fault, for had he not accepted the money, the purchaser would not have been able to use it.
But, the Talmud continues, come on—the mouse is the one who stole it? How can you let him off the hook (I’m definitely picturing Jerry as I’m learning this)?
The final answer is that the seller is penalized because he is the one that has the money. Note that the penalty is only the nullification of the sale. He is not really out of any money.
This mishnah lists things from which it is prohibited to derive benefit. Therefore, a man who tries to betroth a woman with one of these items has not betrothed her. In my explanation I will explain what each of these items is.
“Orlah”: Fruit from a tree during its first three years (Leviticus 19:27).
“Kilayim of the vineyard”: Wheat which has been planted in a vineyard (Deuteronomy 22:19).
“An ox which is to be stoned”: An ox that has killed a person must be stoned to death (Exodus 21:28).
“The heifer whose neck is to be broken”: This refers to the ceremony performed when a body is found and its murderer is unknown (Deuteronomy 21:4).
“A leper’s bird-offerings”: At the end of his leprosy (tzaraat) the leper brings two birds as sacrifices (Leviticus 14:4).
“A nazirite’s hair”: The nazirite cuts his hair at the end of his naziriteship and burns it (Numbers 6:18).
“The first-born of a donkey”: The first-born of a donkey must be redeemed by donating a sheep. Until that point it is prohibited to derive benefit from it (Exodus 13:13).
“Meat [boiled] in milk”: Exodus 23:19 and parallels.
“Non-sacred meat slaughtered in the Temple court”: It is forbidden to slaughter non-sacrificial meat in the Temple court.
Section two: It is forbidden to derive benefit from all of the above items. They also may not be sold. However, if he does sell them, the money does not retain the prohibited status of the original item. Therefore, the money is effective for betrothal. Note that the mishnah does not state that it is permitted to use the money for betrothal. The act may be prohibited but nevertheless effective.
The Talmud now begins to explain how we know that it is prohibited to derive benefit from the various items listed in the mishnah.
The Torah explicitly prohibits one from eating orlah. But there are some extraneous words at the beginning of the verse. These are read as adding on that even deriving benefit is prohibited.
The verse uses the strange phrase “pen tikdash” to describe the status of diverse seeds sown in a vineyard. Hizkiyah employs a pun on these words to read them as if they say “lest it be burned” which indicates that if such seeds do grow into plants, the plants must be burned.
R. Ashi reads the word as related to “kadesh” which means sanctified. The plants are prohibited for people to use like sanctified things.
The problem with R. Ashi’s interpretation is that when one sells sanctified things the money becomes holy and the original item loses its holiness. Essentially, one can redeem them in this way. But kilayim, mixed seeds that grow in a vineyard cannot be redeemed.
The Talmud therefore rejects R. Ashi’s derivation.
Today’s section deals with the ox condemned to be stoned for having killed a person. The mishnah taught that one cannot use such an ox to betroth a woman. [I really would love to imagine someone trying to actually do this].
The verse states that the flesh of the stoned ox may not be eaten. But this is obvious—an animal stoned to death has not been properly slaughtered and therefore it clearly cannot be eaten. So what do we learn from the words “its flesh shall not be eaten”? That even if it was slaughtered properly after its trial was over, the flesh may not be eaten.
The earlier verse only stated that the flesh may not be eaten. How do we know that one may not derive benefit from the flesh by selling it to non-Jews or feeding it to dogs, actions generally permitted when it comes to nevelah?
The Talmud reads this from the word “naki” which I have translated here as “clear.” The simple meaning of this word is that the owner of the ox is not guilty. But this, to the rabbis, is obvious. How could we possibly consider the owner to be guilty of murder when it was his ox that did the deed? Therefore, the rabbis read the word as “clear” from his property. He does not even retain the value of the ox carcass.
The Talmud suggests that we need not interpret the verses in this way. We could say that the verses prohibit deriving benefit from the ox only when it is stoned and that the extra “it shall not be eaten” comes to teach that it is prohibited even to derive benefit from the ox’s flesh. The verse that says that it is stoned would not be enough to know that it is prohibited to derive benefit from it. The ox’s flesh would then be permitted if it was ritually slaughtered after its trial was concluded.
The Talmud explains that if the words “it shall not be eaten” were the only clue we had that it should be prohibited to eat something, we would indeed say that they teach that it is prohibited to derive benefit. But in this case we know we can’t eat the stoned ox because it is nevelah (improperly slaughtered meat). Furthermore, this case is different from others because the verse says “its flesh shall not be eaten.” The extra word “flesh” intimates that its flesh is prohibited even if the animal was properly slaughtered and not stoned.
The Talmud continues to discuss the prohibition of using the carcass of the stoned ox.
Mar Zutra suggests that maybe the Torah prohibits eating the ox only if it is stoned or slaughtered with a sharp stone. This would be almost like the animal was stoned, which is the reference point of the verse. But if the ox is slaughtered with a knife, maybe it should be permitted to eat its flesh.
Mar Zutra is rejected. The Torah does not mandate that slaughtering be done with a knife. It can be done with any sharp instrument. Therefore when the baraita says that the flesh is prohibited even if it was slaughtered in a kosher manner would hold true even if slaughtered with a stone.
We should note that in reality, the Torah says nothing about how slaughtering of non-sacrificial animals is supposed to be done. This is an interesting topic, but this is not the place to go into it.
The phrase “and the owner shall be clean” comes to teach that even parts of the ox that are not its “flesh,” i.e. its hide, are prohibited to derive benefit from.
Some tannaim use the verse “and the owner of the ox shall be clear” to teach that the owner of the ox does not pay even half damages. And if the ox kills a pregnant woman, the owner does not pay for the miscarriages. Since they use this verse for another purpose, how do they derive the law that the hide is prohibited?
They use the extra word “et.” This word comes to include the hide.
The Talmud now segues into a famous source about doing a midrash on the word “et.” A sage we never hear about elsewhere is said to have interpreted all of the times this word “et” appears, until he came to one whose interpretation would seem to be heretical. From that point forward, he stopped making derashot on the word et. R. Akiva, who seems to be his student, or at least his successor, succeeds in coming up with a derashah even for this verse.
We should note that we never find the word “et” being interpreted in actual tannaitic sources. Tannaim, the sages who operated in the tannaitic period, did not interpret grammatical features of verses such as full spelling and individual letters. It is only in later tradition that rabbis begin to ascribe to the tannaim such interpretive methods. This is a topic I will return to in a forthcoming third volume of Reconstructing the Talmud. So stay tuned.