Meilah (Reb Chayim)

It is well known the chakirah if the prohibition of מעילה is a monetary prohibition, like an איסור גזל מהקדש or is it a category of איסור והיתר, a prohibition of obtaining benefit from hekdesh.  There seem to be contradictions from various passages in the Talmud.  For example, in Pesachim 26a, the Gemorah brings a proof from מעילה through gazing or smelling to a discussion of איסור הנאה.  There is no loss to hekdesh in these cases, yet there is מעילה and the Gemorah equates it to איסו"ה, so it would seem a איסו"ה.  However, the Gemorah in Babba Kamma 21b equates a case of hekdesh to understand if there is a monetary obligation to pay for הנאה without causing a loss to the owner.  It would seem from here to be a monetary issur.  There is much discussion in the Achronim how to answer this, ואכ"מ. 

However, there seems to be a contradiction in the teachings of our master and teacher, Reb Chayim Briskor.  In his book on the Rambam, he proves from the fact that the issur only applies to the amount of a prutah that it is a monetary issur. 

The Rambam rules that one who violates meilah intentionally has to pay it back and gets whipped.  The question is that one never receives two punishments, both lashes and having to pay?  Reb Chayim explains that כדי רשעתו is a law in ב"ד, that they can’t administer two punishments.  The payment for meilah isn’t the regular payment of a monetary obligation that ב"ד administers, it is a payment to atone for violating hekdesh, it is a כפרה and isn’t administered by ב"ד, hence they can give lashes to the violator.  The first teaching of Reb Chayim views it as a monetary issur, yet here he views the payment different from that of a run of the mill thief? 

It would seem that he differentiates between the issur and the payment.  The issur  is that of gezel hekdesh but the payment is a כפרה for violating hekdesh.  Hekdesh isn't considered an owner to demand payment (one who damages hekdesh is exempt,) it is only כפרה that causes one to pay.  

It is noteworthy that the Gemorah in Babba Metziah 55 has a derasha that one must payback even a violation of meilah that is less than a שוה פרוטא.  However, the Rambam (7:8) understands that isn’t the rule of meilah, there is no lashes, it is only a derasha to pay the loss.