Bava Kamma - Daf 71
- ד' וה' when the shechitah is done by a שליח
The Mishnah on the previous Daf taught that one is liable for ד' וה' for shechting on Yom Kippur. The Gemara asks, although there is no death penalty for shechting on Yom Kippur, but there is מלקות, and the halachah is אין לוקה ומשלם – one does not receive malkus and pay money for the same action!? It answers that the Mishnah follows Rebbe Meir, who holds לוקה ומשלם. Still, he agrees that one who shechts on Shabbos does not pay ד' וה', because one cannot receive the death penalty and pay money for one action. In a Baraisa, Rebbe Meir does obligate ד' וה' for shechting on Shabbos, and the Gemara answers that the Baraisa’s case is בטובח ע"י אחר – where he shechts it through another person. The שליח receives the death penalty, and the thief pays ד' וה'. The Gemara asks that the thief should not pay ד' וה', because אין שליח לדבר עבירה. Rava answers that ד' וה' is an exception, because the Torah compares selling the animal with shechting it. Just as selling involves another person (the buyer), shechting can also be done through a שליח. Other derashos are quoted.
- מעשה שבת
The Gemara asks that if the above Baraisa is discussing shechitah done through a שליח, why do the Rabbonon exempt him from paying ד' וה'? It answers that this opinion is Rebbe Shimon, who holds שחיטה שאינה ראויה לא שמה שחיטה – a shechitah which is unfit (i.e., does not permit the animal) is not termed “shechitah,” and would not obligate ד' וה'. Although a Mishnah teaches that if one shechts on Shabbos, the animal is permitted to eat, the Rabbonon of this Baraisa follow Rebbe Yochanan HaSandler, who said about an intentional shechitah on Shabbos: לא יאכל עולמית לא לו ולא לאחרים – it may never be eaten, neither by him nor by others. This is because Shabbos is called "קדש", comparing it to hekdesh: מה קדש אסור באכילה – just as hekdesh is forbidden in consumption, אף מעשה שבת אסורין באכילה – so too, the products of a Shabbos violation are forbidden in consumption. Still, it is permitted in benefit, because the passuk concludes "לכם" – for you, implying שלכם יהא – it shall be for you. Rav Acha and Ravina dispute if this prohibition is דאורייתא, as above, or only דרבנן, because "קדש היא" means only Shabbos is קדש, ואין מעשיו קדש – but its products are not consecrated. According to this opinion, the Rabbonon in the Baraisa agree that the thief pays ד' וה' for a shechitah on Shabbos.
- חמשה חצאי בקר
Rava asked Rav Nachman: גנב שור של שני שותפין וטבחו – If one stole an ox of two partners and shechted it, והודה לאחד מהן – and admitted his liability to one of them, exempting himself from paying the קנס of ד' וה' to that partner, does he pay ד' וה' of the other partner’s share (if witnesses later testify to his guilt)? Do we say: חמשה בקר אמר רחמנא – the Torah said he must pay “five cattle,” and this implies: ולא חמשה חצאי בקר – but not five half-cattle, or do we say that five half-cattle are included in the Torah’s penalty? He responded that one does not pay five half-cattle. This is challenged from our Mishnah, which taught that if someone stole from his father and shechted it, and then his father died, he pays ד' וה'. Since he shares in his father’s inheritance, and is exempt from paying for his own share, he should also be exempt from paying ד' וה' for his brothers’ shares!? Rav Nachman answered that the Mishnah’s case is where the son was found guilty in court during the father’s lifetime. The next morning, Rav Nachman retracted and said one does pay five half-cattle to a partner.
