י״ב באב ה׳תשע״ג (July 19, 2013)

Pesaḥim 29a-b: And Some Say

In an earlier discussion we presented the law of me’ila – of making inappropriate use of sacred property. What if, on Pesah, a person ate hametz that belonged to the Temple? Two opinions are brought in the baraita:

One who eats consecrated leavened bread during the festival of Passover is guilty of misuse of consecrated items. If one performed this action unintentionally, then he must offer a guilt-offering to atone for using a consecrated item for non-sacred purposes. And some say [yesh omrim]: He is not guilty of misuse of consecrated items.

The Yesh Omrim is identified by the Gemara as Rabbi Nehunya ben HaKana, who rules that someone whose transgression is deserving of karet (excision from the Jewish people) – which he considers equivalent to the death penalty – will not be held liable for “lesser crimes” that took place at the same time. On one level, this concept is based on a general principle of kim lei be-d’raba mi-nei – that the greater of the punishments will suffice for him – which teaches us that a person cannot be punished twice for the same incident, and that the more severe punishment is the one that is executed. Our case demands a Biblical source beyond this (which different sages learn from a variety of sources) from which we can learn that someone who commits a prohibited act that is deserving of a severe penalty will be free from any other punishments associated with that act, even if the more severe punishment is not meted out. Moreover, the payment of damages – as opposed to other types of punishments – that stems from that act would not ordinarily be erased were it not for ’ interpretation of these Biblical passages.

Tosafot point out that identifying the mysterious Yesh Omrim as Rabbi Nehunya ben HaKana appears to run counter to the Gemara in Horayot. The Gemara there teaches that following a disagreement in the bet midrash, Rabbi Natan and Rabbi Meir were expelled, and when they were allowed to reenter it was on the condition that their future teachings would be quoted without their names – Rabbi Meir’s statements would be quoted as Aheirim Omrim (others say) and Rabbi Natan’s would be cited as Yesh Omrim. Tosafot explains that the Sages knew that certain statements were not made by Rabbi Natan, which leads them to try and identify the true author of the statement.

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