מַאי שְׁנָא מֵהָא דִּתְנַן מִן הַנָּקוּב עַל שֶׁאֵין נָקוּב תְּרוּמָתוֹ תְּרוּמָה וְלֹא תֵּאָכֵל עַד שֶׁיּוֹצִיא עָלֶיהָ תְּרוּמָה וּמַעֲשֵׂר מִמָּקוֹם אַחֵר in what way is this case different from that which we learned in a mishna (Demai 5:10): If one separates teruma from that which grew in a perforated pot for that which is from a non-perforated pot, his teruma is teruma, but it may not be eaten until he removes on behalf of that portion itself teruma and tithe from another place? In other words, the portion he separated as teruma is not entirely consecrated, as it too is considered untithed produce in the sense that teruma must be separated for it. In contrast, one who sets aside impure teruma does not have to separate teruma from that portion itself.
שָׁאנֵי הָכָא דְּמִדְּאוֹרָיְיתָא תְּרוּמָה מְעַלַּיְיתָא הִיא כִּדְרַבִּי אִלְעַאי דְּאָמַר רַבִּי אִלְעַאי מִנַּיִן לַתּוֹרֵם מִן הָרָעָה עַל הַיָּפָה שֶׁתְּרוּמָתוֹ תְּרוּמָה דִּכְתִיב וְלֹא תִשְׂאוּ עָלָיו חֵטְא בַּהֲרִימְכֶם אֶת חֶלְבּוֹ מִמֶּנּוּ The Gemara answers: Here, with regard to ritually impure teruma, it is different, as by Torah law it is in fact full-fledged teruma, but the Sages penalized him by making him separate teruma again. This is in accordance with the opinion of Rabbi Elai, as Rabbi Elai said: From where is it derived with regard to one who separates teruma from poor-quality produce for superior-quality produce that his teruma is teruma? As it is written with regard to teruma: “And you shall bear no sin by reason of it, seeing that you have set apart from it its best” (Numbers 18:32). This verse that if one separated teruma from inferior-quality produce he has committed a sin, which shows that his action is effective, as Rabbi Elai proceeds to explain.
וְאִם אֵין קָדוֹשׁ נְשִׂיאוּת חֵטְא לָמָּה מִיכָּן לַתּוֹרֵם מִן הָרָעָה עַל הַיָּפָה שֶׁתְּרוּמָתוֹ תְּרוּמָה Rabbi Elai elaborates: And if this inferior portion is not sanctified as teruma at all, why is there a bearing of sin? If the produce does not have the status of teruma he has not done anything, which means that his action cannot be considered a transgression. From here we learn with regard to one who separated from the bad for the good that his teruma is teruma after the fact. Similarly, the teruma of one who separates ritually impure food for pure food is valid teruma by Torah law.
אֲמַר לֵיהּ רַבָּה לְרַב חִסְדָּא לְדִידָךְ דְּאָמְרַתְּ לֹא עָשָׂה וְלֹא כְּלוּם כׇּל עִיקָּר דַּאֲפִילּוּ הָהוּא גְּרִיוָא הָדַר לְטִיבְלֵיהּ מַאי טַעְמָא גְּזֵירָה דִּלְמָא פָּשַׁע וְלָא מַפְרֵישׁ מִי אִיכָּא מִידֵּי דְּמִדְּאוֹרָיְיתָא הָוֵי תְּרוּמָה וּמִשּׁוּם דִּלְמָא פָּשַׁע אַפְּקוּהּ רַבָּנַן לְחוּלִּין וְכִי בֵּית דִּין מַתְנִין לַעֲקוֹר דָּבָר מִן הַתּוֹרָה After clarifying the opinions themselves, the Gemara analyzes the case in greater detail. Rabba said to Rav Ḥisda: According to your opinion, that you said he has done nothing at all, meaning that even that se’a he set aside returns to its former untithed state, what is the reason for this? It is a rabbinic decree, as perhaps he will be negligent and will not separate teruma a second time. However, is there anything that by Torah law is teruma, as stated by Rabbi Elai, and yet due to the concern: Perhaps he will be negligent, the Sages removed its status as sacred and gave to it the status of non-sacred food? And can the court stipulate and enact a decree to uproot something that applies by Torah law?
אֲמַר לֵיהּ וְאַתְּ לָא תִּסְבְּרַאּ וְהָתְנַן הַוָּלָד מַמְזֵר מִזֶּה וּמִזֶּה בִּשְׁלָמָא מִשֵּׁנִי מַמְזֵר אֶלָּא מֵרִאשׁוֹן אַמַּאי אִשְׁתּוֹ הִיא וְיִשְׂרָאֵל מְעַלְּיָא הוּא וְקָא שָׁרֵינַן לֵיהּ בְּמַמְזֶרֶת Rav Ḥisda said to Rabba: And you, do you not hold that the Sages have the power to do so? But didn’t we learn in the mishna that the child is a mamzer from this one and from that one? Granted, the child from the second man is a mamzer, as he was born to a married woman from a man who was not her husband. However, with regard to the child from the first husband, why is he a mamzer? After all, she is his wife, and by Torah law their son is a full-fledged Jew. And the Sages’ declaration that he is a mamzer cannot be seen as a mere stringency, as they thereby permit him to a mamzeret. This shows that a rabbinical decree can uproot a Torah prohibition.
אֲמַר לֵיהּ הָכִי אָמַר שְׁמוּאֵל אָסוּר בְּמַמְזֶרֶת וְכֵן כִּי אֲתָא רָבִין אָמַר רַבִּי יוֹחָנָן אָסוּר בְּמַמְזֶרֶת וְאַמַּאי קָרֵי לֵיהּ מַמְזֵר לְאוֹסְרוֹ בְּבַת יִשְׂרָאֵל Rabba said to Rav Ḥisda that Shmuel said as follows: It is forbidden for the child of the first husband to marry a mamzeret. And similarly, when Ravin came from Eretz Yisrael, he said that Rabbi Yoḥanan said that the child is forbidden to a mamzeret. And if so, why does the mishna call him a mamzer? This is to teach us that the Sages are stringent and render it prohibited for him to marry a regular Jewish woman. With regard to the issue at hand, as he may not marry a mamzeret, the Sages did not in fact uproot a mitzva that applies by Torah law.
שְׁלַח לֵיהּ רַב חִסְדָּא לְרַבָּה בְּיַד רַב אַחָא בַּר רַב הוּנָא וְאֵין בֵּית דִּין מַתְנִין לַעֲקוֹר דָּבָר מִן הַתּוֹרָה וְהָתַנְיָא מֵאֵימָתַי אָדָם יוֹרֵשׁ אֶת אִשְׁתּוֹ קְטַנָּה בֵּית שַׁמַּאי אוֹמְרִים מִשֶּׁתַּעֲמוֹד בְּקוֹמָתָהּ וּבֵית הִלֵּל אוֹמְרִים מִשֶּׁתִּכָּנֵס לַחוּפָּה רַבִּי אֱלִיעֶזֶר אוֹמֵר מִשֶּׁתִּבָּעֵל וְיוֹרְשָׁהּ וּמִיטַּמֵּא לָהּ וְאוֹכֶלֶת בְּגִינוֹ תְּרוּמָה Rav Ḥisda sent a proof to Rabba, in the hand of Rav Aḥa bar Rav Huna: And can the court not stipulate to uproot something prohibited by Torah law? But isn’t it taught in a baraita: From when does a man inherit from his minor wife, who was married off by her mother or brother, as enacted by the Sages, a marriage that is not valid by Torah law? Beit Shammai say: From when she stands at her fully developed height, i.e., when she grows up and reaches the age of maturity. And Beit Hillel say: From when she enters the wedding canopy. Rabbi Eliezer says: From when she has sexual relations. As soon as she is considered his wife, all the halakhot of a wife apply to her. And he inherits from her and becomes impure for her if she dies, even if he is a priest, and she eats teruma on his account if he is a priest.
בֵּית שַׁמַּאי אוֹמְרִים מִשֶּׁתַּעֲמוֹד בְּקוֹמָתָהּ אַף עַל גַּב דְּלֹא נִכְנְסָה לַחוּפָּה אֵימָא מִשֶּׁתַּעֲמוֹד בְּקוֹמָתָהּ וְתִכָּנֵס לַחוּפָּה וְהָכִי קָאָמְרוּ לֵיהּ בֵּית שַׁמַּאי לְבֵית הִלֵּל דְּקָאָמְרִיתוּ מִשֶּׁתִּכָּנֵס לַחוּפָּה אִי עָמְדָה בְּקוֹמָתָהּ מַהְנְיָא לַהּ חוּפָּה וְאִי לָא לָא מַהְנְיָא לַהּ חוּפָּה The Gemara first clarifies various details of this baraita. Beit Shammai say: From when she stands at her height. The Gemara expresses surprise at this statement: Is this the case even though she has not yet entered the wedding canopy? Betrothal alone, without the marriage canopy, is not enough to enable a man to inherit from an adult woman, let alone a minor. The Gemara answers: You must say that Beit Shammai meant from when she stands at her fully developed height and enters the wedding canopy. And Beit Shammai said to Beit Hillel as follows: That which you said, that he inherits her from when she enters the wedding canopy, is not enough. Rather, if she stands at her fully developed height, the wedding canopy is effective for bringing about her marriage, and if not, the wedding canopy is not effective for bringing about her marriage.
רַבִּי אֱלִיעֶזֶר אוֹמֵר מִשֶּׁתִּבָּעֵל וְהָאָמַר רַבִּי אֱלִיעֶזֶר אֵין מַעֲשֵׂה קְטַנָּה כְּלוּם אֵימָא מִשֶּׁתַּגְדִּיל וְתִבָּעֵל The Gemara continues its analysis of the baraita. Rabbi Eliezer says: From when she has sexual relations. The Gemara again expresses surprise: But didn’t Rabbi Eliezer say that the actions of a minor girl are nothing, which indicates that marriage and intercourse with her are not considered an act of acquisition. Rather, we must say that he meant from when she matures and has sexual relations.
קָתָנֵי מִיהַת יוֹרְשָׁהּ וְהָא הָכָא דְּמִדְּאוֹרָיְיתָא אֲבוּהָ יָרֵית לַהּ וּמִדְּרַבָּנַן יָרֵית לַהּ בַּעַל הֶפְקֵר בֵּית דִּין הֶפְקֵר The Gemara returns to the issue at hand, whether the court can stipulate to uproot something prohibited by Torah law. In any event the baraita is teaching that he inherits from her. But here is a case where by Torah law her father, i.e., his relatives, as he is dead, inherits from her, as a minor orphan cannot marry by Torah law, and yet by rabbinic law the husband inherits from her. This shows that the Sages can uproot a Torah mitzva. The Gemara answers: This is no proof, as in monetary matters property declared ownerless by the court is ownerless, and therefore the court can allocate her inheritance as they see fit.
דְּאָמַר רַבִּי יִצְחָק מִנַּיִן שֶׁהֶפְקֵר בֵּית דִּין הֶפְקֵר שֶׁנֶּאֱמַר כֹּל אֲשֶׁר לֹא יָבֹא לִשְׁלֹשֶׁת הַיָּמִים בַּעֲצַת הַשָּׂרִים וְהַזְּקֵנִים יׇחֳרַם כׇּל רְכוּשׁוֹ וְהוּא יִבָּדֵל מִקְּהַל הַגּוֹלָה As Rabbi Yitzḥak said: From where is it derived that property declared ownerless by the court is ownerless? As it is stated: “And whoever does not come within three days, according to the council of the princes and the Elders, all his property should be forfeited, and himself separated from the congregation of the captivity” (Ezra 10:8). This verse indicates that the court can confiscate anyone’s possessions.
רַבִּי אֶלְעָזָר אָמַר מֵהָכָא אֵלֶּה הַנְּחָלוֹת אֲשֶׁר נִחֲלוּ אֶלְעָזָר הַכֹּהֵן וִיהוֹשֻׁעַ בִּן נוּן וְרָאשֵׁי הָאָבוֹת לְמַטּוֹת בְּנֵי יִשְׂרָאֵל וְכִי מָה עִנְיַן רָאשִׁים אֵצֶל אָבוֹת אֶלָּא לוֹמַר לָךְ מָה אָבוֹת מַנְחִילִין בְּנֵיהֶם כׇּל מַה שֶּׁיִּרְצוּ אַף רָאשִׁים מַנְחִילִין אֶת הָעָם כׇּל מַה שֶּׁיִּרְצוּ Rabbi Elazar says that the proof that the court can declare property ownerless is from here: “These are the inheritances that Elazar the priest, and Joshua, son of Nun, and the heads of the fathers’ houses of the tribes of the children of Israel distributed for inheritance” (Joshua 19:51). What do heads have to do with fathers? The expression “the heads of the fathers’ houses of the tribes” is unusual and vague. Rather, this comes to tell you: Just as fathers bequeath to their sons anything they want to, so too, the heads, i.e., the leaders and judges of the people, bequeath to the people anything they want to. This shows that the leaders can take property from one individual and give it to another.
וּמִיטַּמֵּא לָהּ וְהָא הָכָא דְּמִדְּאוֹרָיְיתָא אָבִיהָ מִיטַּמֵּא לָהּ וּמִדְּרַבָּנַן מִיטַּמֵּא לָהּ בַּעַל מִשּׁוּם דְּהָוְיָא לַהּ מֵת מִצְוָה It was stated that the husband of a minor becomes impure for her, even if he is a priest. The Gemara asks: But here is a case where by Torah law her father, not the man she married, is obligated to become impure for her, as the latter is not his wife by Torah law, and yet by rabbinic law her husband defiles himself for her. The Gemara answers: This is because she is considered like a corpse with no one to bury it [met mitzva], for which even a priest must become impure. Once she is married, her relatives from her father’s family no longer care for her welfare, which means her husband is the only one who is entrusted with her burial.
וּמִי הָוְיָ[א] מֵת מִצְוָה וְהָתַנְיָא אֵי זֶהוּ מֵת מִצְוָה כֹּל שֶׁאֵין לוֹ קוֹבְרִין קוֹרֵא וַאֲחֵרִים עוֹנִין אוֹתוֹ אֵין זֶה מֵת מִצְוָה הָכָא נָמֵי כֵּיוָן דְּלָא יָרְתִי לַהּ קָרְיָא וְלָא עָנוּ לַהּ The Gemara asks: And is she in fact a met mitzva? But isn’t it taught in a baraita: Which corpse is a met mitzva? Any corpse that does not have anyone to bury it. If it was in a place where if one calls and others would answer him, this is not a met mitzva. In contrast, this girl does have relatives who can bury her, if necessary. The Gemara answers: Here too, since the members of her father’s family do not inherit from her, she would call and they would not answer her, as they have no desire to go to any trouble for her. Since her husband inherits from her, it is his duty to tend to her burial, and he must therefore become impure for her, as she has the status of a met mitzva.