פירושים במשנה ובברייתא

The author cites at least three examples, two in the Mishna and one in the Baraita, wherein Midreshei Halakha offer a more adequate explanation of the text than the one put forth in the Babylonian Talmud. (1) The intent of the first Mishna in Bava Qamma is not to find scriptural sources for those damages not explicitly stated in the Bible — as understood in the Bavli there. Rather, the purpose of the Mishna is to show that all damages mentioned in the Torah are exacted from "the best of his field," which is mentioned in Exodus 22:4 only in connection with damages done by the tooth (eating) or foot (treading). To prove this, the author quotes the Mekhilta (Horowitz's edition, p. 297), which, if left unemended, prefaces our Mishna as follows: "How do we know all the other damages written in the Torah?" Clearly the concern of the Mishna is with those damages which are stated in the Torah. (2) The second example is the Mishna in Ketubbot 3, 4 which says: If a woman (a minor not betrothed) was abused, the abuser pays his fine immediately; while in the case of an enticement the payment is due only when "he tells her to leave." The Bavli assumed that by enticing a minor she does not become his wife as yet, even though the father approves her marriage. It, therefore, modifies the phrase: "when he tells her to leave" to "when he (the enticer) refuses to marry her." That such a tradition existed there can be no doubt. A Baraita is quoted in the Bavli which indeed employs the modified phrase. However the author argues that the Mishna had a different tradition. Accordingly the enticer can not leave the woman without giving her a bill of divorcement. This is clearly stated in the Mekhilta Derashbi (Epstein-Melamed's edition, p. 209), and seems to be the view of Philo, De legibus III, 65—70, and Josephus (Antiquities, 4, 8, 23). None the less the "he" (who tells her to leave) is not the enticer — as understood in the Bavli — but the father who annuls the marriage of his daughter. Again the Mekhilta Derashbi furnishes us with the background of the Mishna. (3) Thirdly, the statement in the Baraita Zevaḥim 117a "Here and there the individual was allowed to sacrifice only burnt and peace offerings" refers to the public altar set up in the wilderness and in Gilgal. In both places ("here and there") the individual offered only burnt and peace offerings. Furthermore the Rabbis (who disagree with Rabbi Me'ir) and limit sacrifices made on a private altar to burnt and peace offerings do not take a stand concerning public altars. Only if thus understood can their limitation include also the period prior to the building of the Tabernacle — a period in which public altars were non-existent. Indeed, it is in this context (of the pre-Tabernacle period) that the Baraita is quoted in the Sifra (Section Aḥare 4, 5, 6). Consequently, there is no need to introduce a new element — like libation — as the Bavli does there in order to find a difference between the statement quoted above and the Rabbis who disagree with Rabbi Me'ir. The former is talking about public altars while the latter define the permissibility of the private altar.