Friday, August 10, 2007

kodshei bedek habayis vs. kodshei mizbeyach

I just want to expand a bit on a point raised in the comments to yesterday’s post regarding the distinction between kodshei mizbeyach and kodshei bedesk habayis. The former type of hekdesh is a function of an animal being designated for the mitzvah purpose of being a korban; the latter type of hekdesh is a result of hekdesh becoming the owner of an object. This distinction is clear from the Rambam’s ruling (Archin 6:8) that kodshei mizbeyach can be pledged to bedesk habayis, and the animal would have to be redeemed, the money donated, and then the animal offered as a korban to fulfill its original purpose; however, kodshei bedek habayis cannot be pledged for use as kodshei mizbeyach because “ain adam makdish davar she’aino shelo”. In the case of kodshei mizbeyach, the original owner retains rights to the animal, and therefore can pledge it elsewhere - hekdesh is just a designation of purpose. In the case of kodshei bedesk habayis, the ownership of the animal has changed.

Similarly, a thief would not be chayav the extra penalty for mechira if he was makdish an animal because hekdesh mizbeyach does not remove the original owner’s kinyan (Bava Kama 76).

R’ Chaim uses this idea to explain the Rambam (Meilah 2:5) that there is no issur me’ila on ashes of parah adumah, even though the parah is kodsehi bedek habayis, because the parah is also called “chatas”. The Kesef Mishne asks: what is the meaning of this “even though…” – kodshei bedek habayis are also subject to the issur mei’ila?

R’ Chaim answers that when the Rambam writes that the parah is called “chatas” he is not explaining why there IS an issur meilah - the issur meilah obviously also apply to bedek habayis. The Rambam is explaining why there is NO issur meila once the parah becomes ashes. Kodshei mizbeyach are endowed with the status of hekdesh by virtue of their being designated for the mitzvah of korban; once the mitzvah purpose has been fulfilled, the status of hekdesh is lifted. Kodshei bedek habayis are endowed with hekdesh status by virtue of being owned by hekdesh; fulfillment of a function with bedek habayis does not change its status. Even though a parah is kodshei bedek habayis, and therefore even though its function has been fulfilled by its being burnt it should remain hekdesh, the Torah calls the parah “chatas” and the rules of me’ila work like kodshei mizbeyach – once burnt, the the status of hekdesh is lifted.

Anon1 raised the issue of why kinyanei kesef are needed for pidyon of kodshei mizbeyach when fundamentally no ownership change has occurred (Anon1, correct me if I misunderstood your point). Let me answer that question with another question – the whole issur of me’ila is a form of theft from hekdesh (I know I have to defend that assertion – see R’ Chaim in Hil Meila, bl”n I’ll come back to it). How can you steal what hekdesh does not own?

I think the simple answer is that hekdesh does have kinyanim in kodshei mizbeyach, but that does not mean the ba’alim relinquish their ownership. I don’t know if it is a good analogy, but a shomer has kinyanim in an object even while the original owner is still the true ba’alim. Would a ganav be chayav for mechira if he gave a stolen ox to a shomer to watch?

3 comments:

  1. You understood me correctly and I hear what you are saying. Could be that hekdesh has a kinyan on kodshei mizbeach as do the baalim (just thinking if that works with me-ikara tora de-reuven gemara?). The shomer analogy is interesting as well.

    As for the yesod of R'Chaim that me'ilah is gezel hekdesh, that is a fair point as well. When I learned me'ilah I felt that at the end I did not have a good handle on the gezel hekdesh issue. There are other sources which imply that me'ilah is more of a chilul hekdesh than gezel, and at times I considered whether the chiluk fell along the lines of kodshei mizbeach vs. bedek ha-bayis. (Other times I thought perhaps the repayment of the keren ve-chomesh is for the gezel but the issur hanaah is for the chilul hekdesh -- as RM Soloveichik writes and in truth it is in the rishonim, there can be an issur hanaah without a din meilah). This discussion is perhaps in part of what underlies the gemara's statement in both meilah 15a and temurah (30b I think) that ikar meilah is bedek ha-bayis, as being kulu l'Hashem -- given the kinyan mamon is absolute.

    But yes I do agree that there appears to be some mamon aspect to the kodshei mizbeach side as well. For further confusion see Chulin 139a.

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  2. maybe i'll do some more postings on the different brisker pieces if i have time to go through them and then at least the pieces of the puzzle will all be on the table. one other note - rashi in a"z 52 on ba'u bah pritzim v'chililuha sounds like the kinyan hekdesh is an extension of the status of issur, not the other way around.

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  3. anon11:08 PM

    That is interesting. For example, by kidushin there is the well known chakirah does the kinyan create the issur or do they form independently (a rebbe in KBY -- I believe quoting someone else --having suggested that is what the discussion of the terutzim in tosfos on 2a and 2b about the leshonos of kidushim vs. niknes and whether kidushin is from lashon hekdesh or mezumenes). So I instinctively thought it went the other went from kinyan to issur. But that is interesting. Thanks and keep the discussion going!

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