Taking back Teruma

Trumot (5:1) | Yisrael Bankier | 13 years ago

The fifth perek opens by discussing various mixtures involving teruma. The first is where a significant amount tameh teruma falls into chulin such that it is not batel. The Mishnah teaches that the mixture should be made to rot. The kohen cannot eat the mixture because it contains tameh teruma and we have no other option. 

The Mishna Rishona notes that one might think there is another option. A teruma declaration is effectively a form of neder. As with any neder, the owner could approach a Chacham, demonstrate sincere regret at having made the neder and then have it annulled. This process is referred to as she’eila. The teruma would no longer be teruma and revert back to tevel. The owner could then separate teruma (and maasrot) from another place for it. The final result would be that we simply have tameh chulin mixed in with chulin. Problem solved.

The Mishnah Rishona however explains that she’eila does not work for teruma. The reason is that when one present one’s case before the Chacham the regret must be at the point of the neder, or in this case the hafrasha. In this case however the owner clearly cannot say he regrets taking teruma – it was his obligation! The “regret” in this case only relates to this situation his is in now. The Taz (YD 323:2) explains that for she’eila the regret must be of the nature that the neder lead to unavoidable damage. That is not the case here for had the owner been more careful, there would have been no problem.

The Gemara(Nedarim 59a) discusses how she’eila might apply to teruma that mixed into* chullin*. The question there is whether the prohibited mixture qualifies as a davar sheyesh lo matarin (a prohibition that will become permitted). If it was then the issur would never be batel. The Gemara concludes that even though one could do she’eila, unlike with nedarim where there is a mitzvah in its annulment, there is none for teruma.

The Gemara’s conclusion can be understood that even though one can undo teruma, since it is not a mitzvah to do so, the prohibition is not considered a davar sheyesh lo matarin. Indeed the Rama rules that on can approach a Chacham request she’elia on teruma or challa. If that is the case our original question returns: why is the only solution to make the mixture rot when it appears that she’eila is another option?

The Shach answers the Mishnah was only interested in stating the halachic status of the mixture. The solution of employing she’eila was not however the focus. The Chovat Yair answers that while some solutions are presented in the perek, they involve the teruma remaining as teruma. She’eila however would make it as if that which fell in was never teruma

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