OPINIONS: In the Mishnah, Rebbi Yosi b'Rebbi Yehudah says that making a Temurah b'Shogeg (unintentionally) is the same as making a Temurah b'Mezid (intentionally); both take effect. The Gemara says that Rebbi Yosi b'Rebbi Yehudah's source is the verse, "Yiheyeh Kodesh" (Vayikra 27:10), which teaches that a Temurah made b'Shogeg (unintentionally) is the same as one made b'Mezid (intentionally).

What is the Halachah in a case in which a person thought that it was permissible to make a Temurah? That is, he intentionally made a Temurah, but his sin was unintentional because he did not know that it was forbidden.

(a) TOSFOS (DH Gabei, and 2a, DH Ha) quotes RABEINU BARUCH who explains that for the sin of making a Temurah, one receives Malkus for Shogeg just like Mezid, even if he thought that it was permissible to make a Temurah.

(b) Tosfos quotes RABEINU SHIMSHON who explains that the law of "Shogeg k'Mezid" teaches that the second animal actually becomes Kadosh. In ordinary cases of objects sanctified for Hekdesh, the law is that a mistaken sanctification does not take effect. With regard to Temurah, however, it does take effect. In contrast, "Shogeg k'Mezid" does not mean that one who unintentionally makes a Temurah is punished with Malkus. Similarly, one who thought that it was permissible to make a Temurah does not receive Malkus, because no act of Shogeg is punishable with lashes.

According to Rabeinu Shimshon, the Gemara makes no mention of Malkus; the word that appears in his text is "Kadosh" rather than "Laki." (See Chart #4.)

(c) The RA'AVAD agrees that one does not receive Malkus for making a Temurah if he mistakenly thought that it was permissible. He explains that the Gemara is teaching that when a person thought that it was permissible to make a Temurah, he receives Malkus only if he then shears the animal (which is now Kadosh) or works with it.

(d) The SHITAH MEKUBETZES (#1) explains that the word "Laki" in the Gemara means that the Temurah takes effect, but not that he receives Malkus.

(e) The RAMBAM (Hilchos Temurah 1:2) rules that Malkus is given for a Temurah made b'Shogeg just as Malkus is given for Mezid. The Rambam explains that the case of Shogeg is when he meant to say that this animal is the Temurah of an Olah, and instead he said that this is the Temurah of a Shelamim. He knew that the act of Temurah is forbidden, and he intended to do that forbidden act, but he accidentally performed a different act of Temurah. In such a case, he is punished with Malkus. In contrast, when a person thought that it was permissible to make a Temurah, the Temurah takes effect but the person does not receive Malkus.

QUESTION: In the Mishnah, Rebbi Yosi b'Rebbi Yehudah says that making a Temurah b'Shogeg (unintentionally) is the same as making a Temurah b'Mezid (intentionally); both take effect The Gemara says that Rebbi Yosi b'Rebbi Yehudah's source is the verse, "Yiheyeh Kodesh" (Vayikra 27:10), which teaches that a Temurah made b'Shogeg (unintentionally) is the same as one made b'Mezid (intentionally).

The Rishonim (see previous Insight) have different opinions about the Halachah in a case in which a person thought that it was permissible to make a Temurah (that is, he intentionally made a Temurah, but his sin was unintentional because he did not know that it was forbidden). The Rambam rules that the Temurah takes effect, but the person does not receive Malkus.

Similarly, the Rambam (Hilchos Isurei Mizbe'ach 1:3) rules that when a person thought it was permissible to sanctify a blemished animal as a Korban, the animal becomes Kadosh, but the person does not receive Malkus for transgressing the Isur against sanctifying a blemished animal.

However, the Gemara quotes Chizkiyah who says that there is a difference between Kodshim and Temurah in exactly such a case. Why does the Rambam not differentiate between the two cases?

(a) The MAHARI KURKUS and the KESEF MISHNEH explain that the Rambam understands that the other Amora'im disagree with Chizkiyah, and the Rambam is ruling like those Amora'im. (See EVEN HA'AZEL for further explanation of this approach.)

(b) The LECHEM MISHNEH explains that since there are variations of the correct text of the Gemara, the Rambam is in doubt about which of the texts is the correct one. Is the Gemara saying that the animal is Kadosh, or that the person receives Malkus? Due to this doubt, the Rambam rules stringently, and the animal is Kadosh both in the case of Hekdesh of a blemished animal and in the case of an unintentional sin of Temurah, but no Malkus is given.

OPINIONS: In the Mishnah, Rebbi Yosi b'Rebbi Yehudah says that making a Temurah b'Shogeg (unintentionally) is the same as making a Temurah b'Mezid (intentionally); both take effect. The Gemara says that Rebbi Yosi b'Rebbi Yehudah's source is the verse, "Yiheyeh Kodesh" (Vayikra 27:10), which teaches that a Temurah made b'Shogeg (unintentionally) is the same as one made b'Mezid (intentionally).

The Gemara records a number of different opinions about which cases are included in the category of "Shogeg k'Mezid." One of these opinions is that of Rav Sheshes. Rav Sheshes says that the case of "Shogeg k'Mezid" is a case in which one says, "I will enter this house, and I will be Makdish and Memir willingly." He then enters the house, but he is Makdish and Memir not by choice. Such an act of Temurah takes effect, but a similar act with Kodshim (such as when one is Makdish a blemished animal to be offered as a Korban) is not effective.

What exactly is the case of Rav Sheshes?

(a) RASHI (DH v'Nichnas) says that the person involved was "a man of thoughts" ("Ba'al Machshavos") and he did not know what he would say.

What does Rashi mean?

The OLAS SHLOMO explains that Rav Sheshes is discussing a case in which a person originally expressed intent to be Makdish, or to make a Temurah with, a certain animal. At the time that he expressed this intent he was sane. He then lost his sanity, and during his period of insanity he made the animal Hekdesh or Temurah. Rav Sheshes is saying that although an action performed while one is insane normally is not valid, an act of Temurah is different. Since Rebbi Yosi b'Rebbi Yehudah learns from the verse of "Yiheyeh Kodesh" that Shogeg is like Mezid with regard to Temurah, in this case the Temurah takes effect, unlike Hekdesh.

The Olas Shlomo adds that Rav Sheshes rules this way only because the person had expressed intent to be Makdish or Memir originally, while he was sane. Had he not expressed such intent, his act performed while insane would not have been considered an act of Temurah at all (that is, it would not have been even an act of Shogeg).

TOSFOS (DH Ekanes) asks that if the point of Rav Sheshes is to teach that intention while sane gives validity to an act of Temurah done while insane, then why does Rav Sheshes need to mention that the person says, "I will enter this house"? Entering a house is irrelevant to the case.

(b) TOSFOS therefore gives a different explanation. He writes that the case is where the person was fully sane at all times. Before he entered a certain house, the person said, "When I will enter this house, the Temurah should take effect with my knowledge." Later, when the person entered the house, he forgot about his statement to make the Temurah. In such a case, the Temurah takes effect without the person's knowledge.

The MELECHES CHOSHEV points out that there is another difference between the explanation of Rashi and that of Tosfos. Rashi's text of the Gemara apparently includes two versions of the statement of Rav Sheshes. According to one version, Rav Sheshes says that the one who makes a Temurah in this manner receives Malkus, but one who is Makdish a Ba'al Mum in this manner does not receive Malkus. According to another version (which does not appear in our text of the Gemara), Rav Sheshes says that the Temurah is valid (that is, the animal becomes Kadosh), but in a similar case where one is Makdish an animal (even an animal that is not a Ba'al Mum), the Hekdesh is not valid.

Tosfos apparently does not have this second version in his text. The Meleches Choshev suggests that if a person says, "When I enter the house, this animal will become Kadosh with my knowledge," the animal does become Kadosh. The verse of "Yiheyeh Kodesh" teaches only that with regard to Temurah, the Temurah not only takes effect but it also makes the person liable for Malkus. However, the Meleches Choshev later retracts this suggestion and says that according to Tosfos in Nedarim (23b, DH Rava Amar), when the person enters the house he would have to remember that he wants the animal to become Kadosh in order for it to actually become Kadosh. (Y. MONTROSE)

QUESTION: The Beraisa teaches that when a mother animal was Kadosh with Kedushas ha'Guf but became a Ba'al Mum, its offspring has the status of its mother. Shmuel explains that this means that the offspring should be brought as a Korban, since it has the same Kedushah as its mother (but does not have the Mum). Shmuel's ruling follows the opinion of Rebbi Eliezer in the Mishnah later (18b), who states that the male offspring of a female animal that was declared to be an Olah is brought as an Olah, even though its mother, a female animal, cannot be brought as an Olah. Bar Pada argues that the Beraisa means merely that the offspring has the same technical status of Kodshim, but it is not actually brought as a Korban itself. Rather, it is left to graze until it develops a Mum, and then it is sold and the money is used to buy a Korban Olah. Accordingly, the Beraisa may be expressing even the opinion of the Rabanan who disagree with Rebbi Eliezer and maintain that the male child of a "female Olah" must be left to graze and may not be offered as an Olah.

The RAMBAM (Hilchos Temurah 4:9) seems to rule like Rebbi Eliezer (and Shmuel) when he writes, "The child of a Ba'alas Mum is like that of an ordinary Korban in all regards, and it should be offered as appropriate."

The LECHEM MISHNEH asks that the Rambam's statement here contradicts what he writes just four paragraphs earlier (in Hilchos Temurah 4:5). In the case of the aforementioned dispute between Rebbi Eliezer and the Rabanan, the Rambam rules like the Rabanan and writes that the male child of a female Olah is left to graze until it develops a Mum!

How can the Rambam rule in accordance with these two contradictory rulings? (The KESEF MISHNEH (4:9) gives an entirely different source for the first ruling, but the Lechem Mishneh rejects it, saying that it cannot be the accurate source for the Rambam's ruling. See the MELECHES CHOSHEV who defends the Kesef Mishneh's words.)

(a) The CHAZON ISH (Bechoros 18:7) answers that when the Gemara here quotes Shmuel as saying that the offspring is brought as a Korban according to Rebbi Eliezer, he does not mean to say that this case is subject to the argument between the Rabanan and Rebbi Eliezer. Rather, even the Rabanan agree that the offspring of a Ba'al Mum is offered as a Korban. The difference between the Rabanan and Rebbi Eliezer is that Rebbi Eliezer maintains that in all cases, the child of a Korban may be offered (even the male child of a "female Olah"). The Rabanan maintain that only in this case (the child of a Ba'al Mum) may the child be offered, because of the verse that teaches that the offspring of a Ba'al Mum may be offered. Even without the verse, the Rabanan agree that the offspring has Kedushah and it must be left to graze, because it is logical that an animal that originally was a valid Korban produces an animal with the same Kedushah.

Why, then, does Shmuel say that this Halachah is like Rebbi Eliezer? He means to say merely that this Halachah is similar to a different Halachah stated explicitly by Rebbi Eliezer, that the offspring of a Korban is brought as a Korban (that is, a male child of a "female Olah" is brought as an Olah).

The Rambam, therefore, is ruling like the Rabanan who agree with Rebbi Eliezer with regard to Shmuel's Halachah. The Rabanan disagree with Rebbi Eliezer only with regard to the offspring of a "female Olah." Since the mother was never a valid Olah, its male offspring cannot be brought as a Korban Olah (in contrast to the offspring of a valid female Korban that became a Ba'al Mum).

(b) The KEHILOS YAKOV (#8) discusses the words of the Rambam at length. He explains that the Rambam rules like the Rabanan, who agree with both Halachos. Why does Shmuel say that the animal is a Korban specifically according to Rebbi Eliezer? The Kehilos Yakov explains that Shmuel indeed maintains that the Rabanan do not agree with this Halachah. This is because Shmuel understands that the Rabanan maintain that any animal that no longer can be brought as a Korban is considered "entirely removed" from being able to be brought as a Korban. This is the rule of "Ba'alei Chayim Nidachim" -- "animals are pushed aside [from being used as a Korban]." Since the mother cannot be brought as a Korban whether she is a Ba'al Mum or a "female Olah," nothing that comes from her can be used as a Korban.

The Rambam does not rule like Shmuel's understanding of the Rabanan, but rather like Rav's understanding. Rav maintains that the rule of "Ba'alei Chayim Nidachim" does not apply in a case in which the mother was a perfectly fit Korban and then received a Mum. He learns that the rule applies only in cases in which there is an external cause that disqualifies the animal from being brought as a Korban (for example, the owner became insane; see Sanhedrin 47a), or where the animal could not receive the Kedushah in the first place (such as the case of a "female Olah"). Accordingly, the Rambam rules like the Rabanan according to Rav. (Y. MONTROSE)