Temurah

An objection was raised: If one violates [a maiden] and then divorces her [after marriage], if he is an Israelite he must take her back and is not punished with lashes. Now if you say that since one has transgressed the command of the Divine Law one is punished with lashes, then here he, too, should be punished with lashes! This refutes Raba?1 — Raba can answer you: The case is different there,2 for Scripture says: ‘All his days’3 [intimating that] all his days, [if he divorces her] he is required to take her back.4 And what does Abaye5 say to this? — If the Divine Law had not said: ‘All his days’ I might have thought that there exists a mere prohibition,6 but that if he wishes he can take her back, and if he wishes he need not.7 The text ‘All his days’ therefore teaches us [that this is not so].8 (Another version: They raised an objection: If one violates [a woman] and [marries her] and then divorces her, if he is an Israelite, he takes her back and is not punishable with lashes; but if he is a priest, he is punishable with lashes and he does not take her back. At all events it [the Baraitha] says: If he is an Israelite, he takes her back and he is punishable with lashes. This refutes Abaye? — The case is different there, since the Divine Law says: ‘All his days’, intimating that all his days [if he divorces her] he is required to re-marry her. And what does Raba [say to this]? — [Raba] can answer you: If the Divine Law had not said ‘All his days’, I might have thought that he would be punishable with lashes and that he must re-marry her, [for the law of one who violates a woman] is an unqualified negative command, since it is written: He may not put her away all his days. For this reason Scripture says: ‘All his days’, to make the law of one who violates [a woman] a negative command remediable by a positive command, for which there is no punishment of lashes.)9 But is there not the case of one who separates [terumah] from bad [grain] for good [grain], concerning which the Divine Law says: Of all the best thereof;10 [he must bring as terumah] ‘the best thereof’,11 but not from the inferior?12 And yet we have learnt: We may not separate terumah from the bad [grain] for the good, but if one did so,13 it is counted as terumah?14 Consequently we see [that a forbidden act] has a legal effect! Shall we say that this refutes Raba?15 — Raba can answer you: The case is different,16 for it will be as R. Elai. For R. Elai said: Whence do we deduce that if one separated [terumah] from bad [grain] for good [grain] it is counted as terumah? It says: And ye shall bear no sin by reason of it when ye have heaved from it the best of it.17 Now if the terumah18 is not holy, wherefore should he bear sin?19 Hence we infer that if one separates terumah from bad [grain] for good [grain] it is counted as terumah. And Abaye?20 — If the Divine Law had not said: ‘And ye shall bear no sin’ I might have thought what the Divine Law means is, ‘Perform a mizwah21 in the best [way]’,22 but if one did not do so, he is not called a sinner. [The text]23 therefore informs us [that this is not so].24 But is there not the case of one who separates from one species to serve as terumah for another species, concerning which the Divine Law says:25 All the best of the oil [and all the best of the wine],26 [intimating] that he must give the best [as terumah]27 for the one [species] and the best [as terumah]28 for the other? And we have learnt: One must not separate terumah from one species for another species, and if one did so, it is not counted as terumah.29 Consequently we see that a forbidden act has no legal effect. Shall we say that this refutes Abaye?30 — Abaye can answer you: The case is different there,31 since Scripture says: The first part of them,25 thus implying the first of this [species]32 and the first of that [species].33 And Elai said likewise: [The text says:] ‘The first part of them’ [intimating the first of this species and the first of that species].34 And Raba?35 — If the Divine Law had not stated ‘the first part of them’36 I might have thought that [only] in the case of wine and oil, with reference to which the text says: ‘The best’, ‘the best’,37 we may not set aside one species for the other; but in the case of wine and corn, or corn and corn,38 where ‘the best’39 is mentioned only once, we may separate one species for the other.40 The Divine Law therefore says: ‘The first part of them’, [to teach] that one must give ‘the best’ of one species and ‘the best’ of the other.41 Another version:42 But in the case of wine and corn in connection with which ‘the best’ is mentioned only once, [I might think that] one may separate from this [wine] for that [corn]. Scripture therefore says: The first part of them. But is there not the case of devoted things, with reference to which Scripture says: [Notwithstanding, no devoted thing that a man may devote unto the Lord of all that he hath whether of man or of beast or of the field of his possession] shall be sold or redeemed.43 And we have learnt: Things devoted to priests44 are not subject to redemption but must be given to the priest.45 Consequently we see that [a forbidden act]46 has no legal effect.47 Shall we say that this refutes Abaye? — He [Abaye] will answer you: The case is different there, for the Divine Law says:48 ‘Every devoted thing most holy unto the Lord it is’,49 intimating that it shall remain in its status.50 he is in duty bound to re-marry her. Now this would be in order according to Abaye who holds that the punishment of lashes is determined by the validity of the act; since the divorce is of no legal effect, he is not flagellated. But according to Raba, who holds that the punishment is inflicted because of transgressing a Scriptural command, irrespective of the effect of the act, here, too, he should be flagellated (v. Tosaf.). times in duty bound to take her back. The Torah is thus supplying a remedied action to the prohibition and consequently there are no lashes. to re-marry her and that therefore there is no punishment of lashes? Even without the text ‘All his days’, according to Abaye, there is no punishment of lashes, since he can take her back, his divorce having no permanent character. should he send her away. prohibition, although there would not be the punishment of lashes in this case, since the prohibition is merely derived by implication from the positive precept. which implies that the setting aside of inferior grain as terumah for good grain has legal effect? species. For this reason it is not counted as terumah; but elsewhere a forbidden act may have a legal effect. them’, to tell us this?