Talmud - Bava Metzia 91a בבא מציעא צ״א א׳

It is taught at the beginning of tractate Temura that the Torah prohibits the substitution of a non-consecrated animal for a consecrated one. The mishna teaches (Temura 2a): That is not to say that it is permitted for a person to effect substitution; rather it means that if one substituted a non-sacred animal for a consecrated animal, the substitution takes effect. The non-sacred animal becomes consecrated, the consecrated animal remains sacred, and the one who substituted the non-sacred animal incurs the forty lashes. This indicates that one is held liable for mere speech, even without any accompanying action. Reish Lakish said to him: In accordance with whose opinion is this mishna? It is in accordance with the opinion of Rabbi Yehuda, who says that one is flogged for violating a prohibition that does not involve an action. By contrast, the dispute between Rabbi Yoḥanan and Reish Lakish is in accordance with the opinion of the Rabbis, who maintain that one is punished only for a transgression that includes a full-fledged action.

The Gemara asks: But can you establish and explain that mishna in accordance with the opinion of Rabbi Yehuda? After all, it teaches in the first clause: Everyone substitutes a non-sacred animal for a consecrated animal, both men and women. And we discussed this statement by asking the following question: This term: Everyone, serves to add what? What is the tanna including by this phrase? We answered that it serves to add an heir, who can substitute an animal for an animal he inherited that was designated as an offering. And this clause is not in accordance with the opinion of Rabbi Yehuda.

The Gemara elaborates: As, if it were in accordance with the opinion of Rabbi Yehuda, doesn’t he say that an heir cannot effect substitution, and an heir cannot place his hands on the head of an offering? The Gemara refutes this difficulty: This is not a conclusive proof, as it is possible to say that this tanna of the mishna in Temura holds in accordance with the opinion of Rabbi Yehuda with regard to one matter and disagrees with him with regard to one other matter.

§ The Sages taught: One who muzzles a cow and threshes with it is flogged, and in addition he must pay the owner of the cow four kav for a cow, the usual amount it consumes while threshing, and three kav for a donkey. The Gemara asks: But isn’t there a principle that an offender is not flogged and also punished by death, and likewise he is not flogged and rendered liable to pay? One who transgresses a prohibition is liable to receive only one punishment for a single offense. Abaye said: In accordance with whose opinion is this ruling? It is that of Rabbi Meir, who says in general that one can be flogged and be liable to pay.

Rava said that there is a difference between the transgression itself, which is between the offender and God, for which he is liable to be flogged, and the loss he caused the owner of the cow, for which he must pay restitution. The Torah prohibits one from bringing as an offering an animal given as the payment to a prostitute for services rendered (Deuteronomy 23:19); and this prohibition applies even if the man in question engaged in intercourse with his own mother, which is a capital offence. Although this man would certainly not be rendered liable to pay compensation by a court, as he is liable to receive court-imposed capital punishment, nevertheless, since he is technically liable to pay compensation, the money is subject to the prohibition as well. In this case too, despite the fact that the court cannot compel one to pay for the produce his cow ate, he does owe this sum. Furthermore, if the owner of the produce were to seize this sum from him, the court would not force him to return the money.

Rav Pappa stated a different answer: From the time of his pulling of the cow to rent it for threshing he was rendered obligated to provide its sustenance when it threshes, but as for flogging, he is not liable to be flogged until the actual time of muzzling. In other words, he was liable to pay the monetary payment before he incurred liability to receive lashes, which means that they are two separate liabilities.

In relation to the above discussion, Rav Pappa said: These matters, stated below, were raised as a dilemma to me by the members of the house of Rav Pappa bar Abba, and I resolved these matters for them by saying that there is a prohibition in both cases. One of my decisions was in accordance with the halakha, and the other one was not in accordance with the halakha.

They first raised this dilemma before me: What is the halakha with regard to the possibility of kneading dough with milk? And I resolved it for them by saying that there is a prohibition, in accordance with the halakha. As it is taught in a baraita: One may not knead dough with milk, lest one eat this bread with meat, and if he kneaded dough in this manner the entire loaf is forbidden, because he will become accustomed to sin. Similarly, one may not smear over an oven with the fat of an animal’s tail, and if he did smear the oven in this manner then the entire loaf baked in that oven is forbidden, lest he eat it with milk, until he heats the oven without bread for long enough to burn off the fat.

And the other question they asked of me was as follows: What is the halakha with regard to bringing in a male animal and a female animal of different species together into a single pen? Is there a concern that they might mate, which would violate the prohibition against crossbreeding animals? And I resolved it for them by saying that there is a prohibition, but this was not in accordance with the halakha.

As Shmuel says: With regard to adulterers, the witnesses must observe from when they appear as behaving in the manner of adulterers, and they do not need to directly observe the actual moment of the act of intercourse. But with regard to one who crossbreeds two animals of diverse kinds, he is liable only if witnesses attest that he inserted the male organ into the female like a brush into a tube. This clearly shows that crossbreeding is punishable only if performed manually, not if the animals were merely enclosed together.

Rav Aḥadvoi bar Ami raises an objection against this opinion, from a baraita: Had the Torah stated merely: “You shall not let your cattle copulate,” I would have said that it is prohibited to assist animals in their mating at all, and consequently a person may not hold the female animal when a male mounts it. Therefore, the verse states: “You shall not let your cattle copulate with a diverse kind” (Leviticus 19:19), which indicates that it is prohibited to mate only different species, but not animals of the same type.

Can one not derive from here by inference that with regard to diverse kinds, holding the animal is also not allowed? This indicates that not only is the act of crossbreeding itself prohibited, but any type of assistance is also prohibited, e.g., restraining the female animal. But if this is the case, placing two animals in the same pen should also be considered a violation. The Gemara refutes this argument: What is the meaning of the term: Holding? It means the insertion of the sexual organ, and why does the tanna call it holding? This is a euphemism.

Rav Yehuda says: If one desires to mate an animal of one species with an animal of its own species, it is permitted to insert the male organ into the female like a brush into a tube, and there is not even a concern due to licentiousness and immoral thoughts here. What is the reason for this lenient ruling? It is because he is occupied with his work, and therefore his mind will not entertain sinful thoughts. Rav Aḥadvoi bar Ami raises an objection against this:

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

BavaMetzia 91a examines the laws of substituting a non-sacred animal for a consecrated one, debating whether speech alone incurs liability and if heirs can perform substitution.