Talmud - Temurah 5a תמורה ה׳ א׳

The Gemara raises an objection from a baraita: With regard to a rapist who married and then divorced his victim, if he is an Israelite, who is permitted to marry a divorcée, he remarries her and he is not flogged. And if you say, like Rava, that since one violates the statement of the Merciful One, he is flogged, this one should be flogged as well for divorcing his victim. But according to the opinion of Abaye, it stands to reason that he should not be flogged, since his remarriage nullifies the effects of the divorce. This should be a conclusive refutation of the opinion of Rava.

The Gemara answers that Rava could say to you: It is different there, as the verse states: “He may not send her away all his days” (Deuteronomy 22:29). This teaches that for all his days, he remains under the obligation to arise and remarry her. Once he remarries her, it turns out that he did not divorce her for all of his days and therefore did not violate the prohibition. This is why he is not flogged.

The Gemara asks: And according to the opinion of Abaye, what is derived from the phrase “all his days”? The Gemara answers: If the Merciful One did not state “all his days,” I would say that he has violated a prohibition by divorcing her, and that if he desires he may choose to remarry her, and if he so desires he may choose not to remarry her. The phrase “all his days” teaches us that he is obligated to remarry her.

The Gemara records another version of the discussion, in which it raises an objection from the baraita: With regard to a rapist who married and then divorced his victim, if he is an Israelite, he remarries her and he is not flogged. But if he is a priest, he is flogged and he does not remarry her. The baraita teaches that if he is an Israelite he remarries her and he is not flogged, indicating that he must take her back because his divorce was not effective. This is apparently a conclusive refutation of the opinion of Abaye, who holds that transgressions are legally effective.

The Gemara answers that it is different there, as the Merciful One states: “He may not send her away all his days” (Deuteronomy 22:29), which teaches that for all his days, he remains under the obligation to arise and remarry her. Therefore, it is only in this specific case that the divorce is not effective.

The Gemara comments: And as for Rava, he could say to you that if the Merciful One had not stated “all his days,” I would say that the Israelite should be flogged and should still remarry her, for it is solely a prohibition that he has violated, as it is written: He may not send her away. Therefore, the verse writes “all his days,” to render the case of a rapist a prohibition whose violation can be rectified by fulfilling a positive mitzva, for which one is not flogged.

The Gemara objects: But there is the case of one who separates teruma from poor-quality produce for superior-quality produce, i.e., he separated teruma from the inferior produce in order to fulfill the obligation of separating teruma from other produce that is high-quality. This is prohibited, as the Merciful One states: “Out of all that is given you, you shall set apart all of that which is due to the Lord, of all the best thereof” (Numbers 18:29).

And the Sages interpret this verse as follows: “Of all the best thereof,” yes, but one should not separate poor-quality produce. And yet we learned in a mishna (Terumot 2:4): One may not separate teruma from poor-quality produce for superior-quality produce, and if one did separate teruma in that manner, his teruma is valid teruma. Apparently, his action is effective, which is apparently a conclusive refutation of the opinion of Rava.

The Gemara explains that Rava could say to you: It is different there, in accordance with the statement of Rabbi Ile’a. As Rabbi Ile’a 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 valid teruma? As it is stated with regard to teruma: “And you shall bear no sin by reason of it, seeing that you have set apart from it the best thereof” (Numbers 18:32). The verse defines separation from inferior produce as a transgression but teaches that it is nevertheless effective, because if it is not consecrated as teruma, why would one bear a sin for accomplishing nothing? From here it is derived with regard to one who separates teruma from poor-quality produce for superior-quality produce that his teruma is valid teruma.

The Gemara asks: And according to the opinion of Abaye, that all transgressions are legally effective, what does the phrase “And you shall bear no sin by reason of it” teach? The Gemara answers: If the Merciful One had not stated: “And you shall bear no sin by reason of it,” I would say that this is what the Merciful One said: Perform the mitzva in the optimal manner by separating teruma from superior-quality produce, but if one did not perform the mitzva in that manner, he is not called a sinner. The verse teaches us that one who fails to perform this mitzva in the optimal manner sins.

The Gemara objects: But isn’t there the case of one who separates teruma from one type of produce to exempt another type of produce, as the Merciful One states: “All the best of the oil, and all the best of the wine, and of the grain, the first part of them which they give to the Lord” (Numbers 18:12)? This teaches that one is obligated to give the best of one type of produce and the best of another type of produce, each individually. And we learned in a mishna (Terumot 2:4): One may not separate teruma from one type of produce for another type, and if one did separate teruma in that manner, his teruma is not valid teruma. Apparently, the transgression is not effective. This is apparently a conclusive refutation of the opinion of Abaye.

The Gemara answers that Abaye could say to you: It is different there, as the verse repeats this prohibition and states: “The first part of them,” indicating that one must give a first part for this type of produce and a first part for that type of produce. If the verse had not taught so explicitly in this case, one would have assumed that the transgression is effective. And Rabbi Ile’a likewise says that the phrase in the verse “the first part of them” is the exception that proves the rule.

The Gemara asks: And according to the opinion of Rava, that transgressions are not effective, what does the term “the first part of them” teach? The Gemara answers: If the Merciful One had not stated: “The first part of them,” I would say that the prohibition applies only to wine and olive oil, with regard to which it is written: “Best…best,” teaching that one may not separate teruma from this type for that type.

But as for wine and grain, or one type of grain and another type of grain, with regard to which the term “best” is written only once, when one separates teruma from this grain or wine for that grain or wine, he is not held liable for transgressing Torah law, and he is not flogged. Therefore, the Merciful One writes: “The first part of them,” to teach that one must give the best of this and the best of that.

The Gemara records another version of the last point: But as for wine and grain, with regard to which the term “best” is written only once, one may separate teruma from this for that ab initio. Therefore, the Merciful One writes: “The first part of them,” to teach that even in the case of wine and grain, one may not separate teruma from one for the other.

The Gemara objects: But there is the case of dedications of property to the priests, with regard to which the Merciful One states: “No devoted item, that a man may devote unto the Lord of all that he has, whether of man or animal, or of the field of his possession, shall be sold or redeemed; every devoted item is most holy unto the Lord” (Leviticus 27:28). And we learned in a mishna (Arakhin 28b): Items dedicated to priests are not redeemed; rather, one gives them to the priest. Apparently, if one transgresses the prohibition and redeems a dedicated item, his action is not effective. This seems to be a conclusive refutation of the opinion of Abaye.

The Gemara explains that Abaye could say to you: It is different there, as the Merciful One states: “Is most holy,” to teach that it shall be as it is. Once it is dedicated, its status cannot be changed by means of redemption. But in other matters the transgression is effective.

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

Temura 5a examines the Talmudic debate between Rava and Abaye over whether a rapist who divorces his victim is flogged, and whether such a divorce is legally valid.