Kiddushin 56bקידושין נ״ו ב
The William Davidson Talmudתלמוד מהדורת ויליאם דוידסון
Toggle Reader Menu Display Settings
56bנ״ו ב

כשברח וטעמא דברח הא לא ברח קנסינן למוכר ונקנסיה ללוקח לאו עכברא גנב אלא חורא גנב

The case here is where the seller fled with the money, and there is no way of voiding the sale and returning the money to the purchaser. The Gemara comments: And the reason is that he fled, but had he not fled, we would penalize the seller by requiring him to return the money. The Gemara asks: And let us penalize the buyer and require him to take an equivalent sum of money to Jerusalem. The Gemara answers: It is not the mouse that steals, but the hole that steals. In other words, a mouse cannot steal an item unless he has a hole in which to hide it. Here too, the money would not have been desacralized without the help of the seller.

ואי לא עכברא חורא מאי קעביד מסתברא כל היכא דאיכא איסורא התם קנסינן

The Gemara questions this logic: But if not for the mouse, what has the hole done? Since they both are integral to the prohibited act, each of them is deserving of a penalty. The Gemara answers: It stands to reason that anywhere that the forbidden item is, i.e., anywhere that the money is, and in this case it is with the seller, there we should penalize.

מתני׳ המקדש בערלה בכלאי הכרם בשור הנסקל ובעגלה ערופה בצפורי מצורע ובשער נזיר ופטר חמור ובשר בחלב וחולין שנשחטו בעזרה אינה מקודשת מכרן וקידש בדמיהן מקודשת

MISHNA: With regard to one who betroths a woman with orla, i.e., fruit grown during a tree’s first three years, or with diverse kinds in a vineyard, i.e., grain and grapes planted together, or with an ox that is sentenced to be stoned, or with a heifer whose neck is broken, or with the leper’s birds which are designated for his offering, or with a nazirite’s hair, or with a firstborn donkey, or with meat cooked in milk, or with non-sacred animals that were slaughtered in the Temple courtyard, if he betroths her with any of these items, the woman is not betrothed, since it is prohibited to derive benefit from any of these items. By contrast, if one sold them and betrothed a woman with the money received from their sale, she is betrothed, as in these cases one may derive benefit from the money he receives in exchange for the forbidden item.

גמ׳ בערלה מנלן דתניא (ויקרא יט, כג) ערלים לא יאכל אין לי אלא איסור אכילה הנאה מנין שלא יהנה ממנו ולא יצבע בו ולא ידליק בו את הנר ת"ל (ויקרא יט, כג) וערלתם (את) ערלתו לרבות את כולם

GEMARA: The Gemara explains the source of the halakha that it is prohibited to derive benefit from the items mentioned in the mishna. With orla: From where do we derive that one is prohibited from deriving benefit from orla? The Gemara answers: As it is taught in a baraita: “And shall have planted all manner of trees for food, then you shall count the fruit thereof as forbidden; three years shall it be as forbidden [arelim] to you; it shall not be eaten” (Leviticus 19:23). From this verse, I have derived only a prohibition against eating it. From where do I derive that one may not even derive benefit from it? From where do we derive that one may not derive benefit from it in another manner, and one may not paint with the dye that can be extracted from the fruit, and one may not light a lamp with its oil? The verse states: “Then you shall count the fruit thereof [orlato] as forbidden [araltem]” (Leviticus 19:23), to include all these types of benefit in the prohibition.

בכלאי הכרם מנלן אמר חזקיה אמר קרא (דברים כב, ט) פן תקדש פן תוקד אש

The mishna stated that one may not betroth a woman with diverse kinds in a vineyard. From where do we derive that one is prohibited from deriving benefit from diverse kinds in a vineyard? Ḥizkiyya said: The verse states: “You shall not sow your vineyard with diverse kinds; lest the growth of the seed that you have sown be forbidden [pen tikdash], together with the yield of the vineyard” (Deuteronomy 22:9). Ḥizkiyya expounds “lest the growth of the seed that you have sown be forbidden [pen tikdash]” as: Lest it be burned [pen tukad esh], indicating that the seed of diverse kinds must be destroyed by fire, so that no benefit is derived from it.

רב אשי אמר פן יהיה קדש אי מה קדש תופס את דמיו ויוצא לחולין אף כלאי הכרם תופס את דמיו ויוצא לחולין אלא מחוורתא כדחזקיה

Rav Ashi says that the phrase “pen tikdash” indicates that it is comparable to consecrated property, as if it said: Lest it become consecrated [kodesh], and one is therefore prohibited from deriving benefit from it, just as one may not derive benefit from consecrated property. The Gemara questions Rav Ashi’s interpretation: If diverse kinds in a vineyard is compared to consecrated property, then just as consecrated property transfers its sanctity to the money with which it is redeemed and becomes desacralized, so too, diverse kinds in a vineyard should transfer their sanctity to the money with which they are redeemed and become desacralized. Contrary to this logic, the mishna taught that if one sells diverse kinds in a vineyard, the proceeds can be used for betrothal, indicating that it is not forbidden to derive benefit from this money. Rather, it is clear that the correct derivation is as that of Ḥizkiyya.

שור הנסקל מנין דתניא ממשמע שנאמר (שמות כא, כח) סקול יסקל השור איני יודע שנבילה היא ונבילה אסורה באכילה מה ת"ל לא יאכל את בשרו מגיד לך שאם שחטו לאחר שנגמר דינו אסור באכילה

The Gemara continues its analysis of the mishna: From where is it derived that one is prohibited from deriving benefit from an ox that is sentenced to be stoned? The Gemara answers: As it is taught in a baraita: It is taught by inference from that which is stated with regard to an ox that killed a person: “And if an ox gore a man or a woman, that they die, the ox shall be stoned, and its flesh shall not be eaten; but the owner of the ox shall be clear” (Exodus 21:28). Don’t I know from this verse that the stoning makes it an unslaughtered animal carcass, and it is prohibited to eat an unslaughtered animal carcass? What is the meaning when the verse states: “Its flesh shall not be eaten”? The verse is telling you that even if one slaughtered the ox after its verdict had been reached but before it was stoned, it is still prohibited to eat it.

בהנאה מנין ת"ל (שמות כא, כח) ובעל השור נקי מאי משמע שמעון בן זומא אומר כאדם שאומר לחבירו יצא פלוני נקי מנכסיו ואין לו בהם הנאה של כלום

The baraita continues: From where is it derived that one is prohibited from deriving benefit from the ox as well? The verse states: “But the owner of the ox shall be clear.” The Gemara asks: From where may it be inferred that one may not derive benefit from this ox? Shimon ben Zoma says: This is like a person who says to another: So-and-so was left clear [naki] of his property, and he has no benefit from it at all. Similarly, “But the owner of the ox shall be clear” means that he may not derive any benefit from the ox.

ממאי דהאי לא יאכל את בשרו להיכא דשחיט לאחר שנגמר דינו הוא דאתא דילמא היכא דשחיט לאחר שנגמר דינו שרי והא לא יאכל היכא דסקליה מיסקל הוא דאתא וכדר' אבהו א"ר אלעזר

The Gemara asks: From where is it known that this phrase: “Its flesh shall not be eaten,” comes to teach a halakha with regard to a case where he slaughtered the ox after its verdict was reached, but before it was stoned? Perhaps it is permitted to eat the ox if he slaughtered it after its verdict had been reached. And this phrase: “Shall not be eaten,” comes to teach a halakha with regard to a case where they had already stoned it, but not to teach a prohibition against eating it, as that is already known due to the fact that it was stoned. Rather, it comes to prohibit deriving benefit from the ox, and that would be in accordance with the statement of Rabbi Abbahu who says the following, citing Rabbi Elazar.

דא"ר אבהו א"ר אלעזר כל מקום שנאמר לא יאכל לא תאכל ולא תאכלו אחד איסור אכילה ואחד איסור הנאה עד שיפרט לך הכתוב כדרך שפרט לך בנבילה

The Gemara continues the question: As Rabbi Abbahu says that Rabbi Elazar says that wherever it is stated: “It shall not be eaten”; or “you,” singular, “shall not eat”; or “you,” plural, “shall not eat”; both a prohibition against eating and a prohibition against deriving benefit are indicated. This is so unless the verse specifies for you that one may derive benefit, in the manner that it specified for you with regard to an animal carcass, from which the verse explicitly permits one to derive benefit, as it states: “You may sell it to a foreigner” (Deuteronomy 14:21). Here, too, with regard to the ox that is stoned, the phrase: “Its flesh shall not be eaten,” may serve to teach that one may not derive benefit from the stoned ox.

הני מילי היכא דנפקא לן איסור אכילה מלא יאכל הכא איסור אכילה מסקול יסקל נפקא דאי ס"ד לאיסור הנאה הוא דכתיב נכתוב קרא לא יהנה

The Gemara answers: This statement of Rabbi Abbahu applies only to a case where we derive the prohibition against eating from the words: “It may not be eaten,” which is interpreted to include any manner of consumption. But here, the prohibition against eating is derived from: “It shall be stoned,” from which it is understood that since the ox becomes an unslaughtered animal carcass, it may not be eaten. As if it enters your mind that the phrase: “Its flesh may not be eaten,” is written to prohibit one from deriving benefit, let the verse state: “One may not derive benefit.” Why does it refer to eating if that prohibition has already been derived?

אי נמי לא יאכל את בשרו למה לי אע"ג דשחטיה כעין בשר אסור

Alternatively, even if one would say that the phrase: “It shall not be eaten,” can be used to indicate that it is prohibited to derive benefit from the ox, why do I need the additional words “its flesh”? These words must teach that although he slaughtered the ox like one does with kosher meat, after it was condemned to be stoned, it remains forbidden and cannot be eaten.

מתקיף לה מר זוטרא ואימא ה"מ היכא דבדק צור ושחט בה דמיחזי כסקילה אבל שחטיה בסכין לא מידי סכין באורייתא כתיב ועוד תניא בכל שוחטין בין בצור בין בזכוכית בין בקרומית של קנה

Mar Zutra objects to this: But say that this prohibition against eating the ox applies only where he examined a sharp stone to ensure that it had no nicks, and slaughtered with it in a halakhically acceptable manner. That action could be considered like stoning, since in any event the ox was killed by a stone. The Torah teaches that even if it was killed in this manner, one is prohibited from eating it. But if he slaughtered it with a knife, he should not be prohibited from eating it. The Gemara expresses surprise at this reasoning: Was a knife written in the Torah? If one slaughters the animal in a halakhically acceptable manner, this is called slaughtering, not stoning. And moreover, it is taught in a baraita (Tosefta, Ḥullin 1:2): One may slaughter with anything that cuts cleanly, whether with a stone, whether with glass, whether with the stalk of a reed. Consequently, there is no difference in the halakha with regard to using a knife or a sharp stone.

והשתא דנפקא לן איסור אכילה ואיסור הנאה תרוייהו מלא יאכל האי בעל השור נקי למאי אתא להנאת עורו סלקא דעתך אמינא לא יאכל את בשרו כתיב בשרו אסור ועורו מותר

The Gemara asks: And now that we have derived both the prohibition against eating and the prohibition against benefiting from an ox sentenced to be stoned from: “It shall not be eaten,” what halakha does that other phrase: “But the owner of the ox shall be clear,” come to teach? The Gemara answers: It comes to teach the prohibition against deriving benefit from its hide after it has been killed. Were it not for this phrase, it might enter your mind to say that since it is written: “Its flesh shall not be eaten,” only its flesh is forbidden, but its hide is permitted. Therefore, the words “and the owner of the ox is clean” teach that its hide is forbidden as well.

ולהנך תנאי דמפקי ליה האי בעל השור נקי לחצי כופר ולדמי ולדות הנאת עורו מנא להו

The Gemara asks: And according to those tanna’im who expound this phrase: “The owner of the ox shall be clear,” to teach that the owner of an innocuous ox, i.e., one that is not known to cause damage with the intent to injure, is exempt from the payment of half of the indemnity incurred if that ox killed a person, or that he is exempt from payment of damages for miscarried offspring if his ox gores a pregnant woman and causes her to miscarry; from where do they derive this prohibition against benefiting from the ox’s hide?

מאת בשרו את הטפל לבשרו ואידך

The Gemara answers: They derive it from the wording: “Its flesh may not be eaten [velo ye’akhel et besaro].” The verse could have been formulated: Velo ye’akhel besaro, which already means: And its flesh shall not be eaten. The addition of the word “et” teaches that the prohibition applies also to that which is secondary to the flesh, i.e., the hide. The Gemara asks: And the other tanna, who derives the prohibition against benefiting from the hide from the verse: “But the owner of the ox shall be clear,” what does he learn from the additional word “et”?