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Chulin, 23

1) THE DOUBT OF "TECHILAS HA'TZIHUV"

QUESTION: The Gemara (end of 22b) suggests that the reason why a bird cannot be brought as a Korban when its feathers are beginning to turn yellow ("Techilas ha'Tzihuv") is because of a doubt whether the yellowing of feathers is a sign that the bird is young or old. The Gemara rejects this reason, saying that "the verse does not need to exclude a doubt."

The Gemara's intention is not clear. While it is true that the Torah is not in doubt about the status of a yellow-feathered bird, it still needs to teach *us* what to do when *we* are uncertain!

ANSWERS

(a) RASHI (end of 22b, DH Itztrich, and 23a, DH li'Me'utei) explains that the Torah has already taught that we must be stringent in a case of uncertainty, and thus there is no need to repeat that requirement with regard to a yellow-feathered bird.

(b) TOSFOS (22b, DH Itztrich) questions Rashi's explanation. Perhaps the Torah is telling us to treat "Techilas ha'Tzihuv" differently from all other uncertainties. Perhaps the Torah is telling us to treat a doubtfully valid bird offering as something that is *certainly* not accepted, neither as Torim nor as Benei Yonah, even with regard to being lenient. (For example, we might have thought that once the bird was already offered, out of doubt we do not require the owner to bring another Korban. Therefore, the Torah teaches that we must consider such a bird to be an invalid Korban, and the owner must bring another Korban, and we are not concerned that the second bird will be Chulin b'Azarah.)

Tosfos explains instead that the Gemara is saying that Torah does not even relate to uncertainties involving definitions of Halachic realities. The Torah relates only to uncertainties that arise due to external circumstances, such as the doubt that arises when a prohibited item becomes mixed with a permitted item. Therefore, the Torah would not address the doubt of "Techilas ha'Tzihuv" at all.

(c) Tosfos (23a, DH Ki Itztrich) quotes RABEINU AHARON from Regensburg who suggests a novel approach. The Torah teaches that a bird with "Techilas ha'Tzihuv" is either considered an old bird (and is valid as a Tor) or a young bird (and is valid as a Ben Yonah). The Torah is not telling us what to do in a situation of Safek; it is *clarifying* the Safek! It is *we* who do not know what the Torah's intention is, though. Accordingly, if the Torah indeed discusses "Techilas ha'Tzihuv," then it is not an issue of a Safek.

OPINIONS: Rebbi Zeira asks whether or not a person fulfills his Neder when he pledges to bring either an Ayil (ram) or a Keves (lamb) as a Korban Olah, and he bring a "Pilgas." What is a Pilgas?

(a) RASHI (DH Pilgas) explains that there are three stages in the development of a ram. Until a ram is twelve months old, it is classified as a sheep ("Keves"), and *not* as a ram ("Ayil"). When the animal turns two years old, it is called a ram. However, like many things in Halachah, we do not actually wait a full two years to call the animal a ram. Once it reaches thirteen months and one day, it is considered two years old and is called a ram. During its thirteenth month, it is neither a sheep nor a ram, but a "Pilgas." (According to the opinion of Bar Pada later in the Gemara, this second stage represents merely a doubt whether the animal is an Ayil or a Keves, and it does not refer to a specific stage of the animal's development).

(b) The RAMBAM (Hilchos Ma'aseh ha'Korbanos 1:14) writes that the words "Keves," "Kisbah," or "Kevasim" denote a one year old sheep. The words "Ayil" or "Eilim" denote animals that are two years old. When exactly is an animal called an "Ayil"? The Rambam writes that it is called an Ayil "when it reaches the thirty-first day into its second year. However, on the thirtieth day, it is still not eligible to be brought as either an Ayil or as a Keves, and this is what is called a Pilgas." What does the Rambam mean when he says "the thirtieth day"?

1. The fact that the Rambam says, "On the thirtieth day... it is called a Pilgas," and he does not say, "In the thirteenth month... it is called a Pilgas," indicates that the Rambam maintains that the animal is called a Pilgas only when it is one year and thirty days old. (This is approach is suggested in the Hagahos to the SHITAH MEKUBETZES HA'CHADASH to Menachos 91b (#43).)

2. The RADVAZ and MAHARI KURKAS write that the Rambam agrees with Rashi, who says that during the entire thirteenth month, it is called a Pilgas. The Radvaz says that this must be what the Rambam means, because the Mishnah in Parah (1:3) explicitly states, "A thirteen-month-old is not valid for [a Korban that requires] an Ayil, nor for a Keves." He adds that the name "Pilgas" comes from the word "Palga," or "half," indicating that this animal is in a middle stage. (See the MELECHES SHLOMO in Parah who says that the word "Pilgas" is a combination of the words "Plag" -- "divide" and the letter "Samech," which has a numerical value of sixty. This alludes to the fact that this animal is in a middle stage for thirty days.)

According to this explanation, why does the Rambam write "the thirtieth day," when the animal is actually a Pilgas for the entire thirteenth month? The TIFERES YISRAEL in Parah explains that the Rambam is merely stressing that even though this animal is only one day short from being called an Ayil, it still does not qualify as an Ayil and may not be brought as a Korban.

However, the words of the Tiferes Yisrael seem problematic. It is obvious that there will be at least one day before this animal is called a ram. Why would we think that the last day when it is not called a ram should be any better than any other day when it is not called a ram? There are many things which alter Halachic status, and the day before the change in status is not considered to achieve the status that the object will attain tomorrow. (For example, a boy cannot complete a Minyan on the day before his Bar Mitzvah, just as he could not complete a Minyan on any of the previous days before his Bar Mitzvah, when he was a minor.)

(c) RABEINU GERSHOM here has a different approach. In defining a Pilgas, Rabeinu Gershom says that a Keves is one year old, and an Ayil is two years old. The Gemara here is asking about one who brings "a one and a half year old" animal. It appears that Rabeinu Gershom learns that an animal is called a Pilgas during the entire second year of its life. This is definitely not like the Mishnah in Parah (1:3). It is possible that Rabeinu Gershom's explanation is based on a different opinion, which argues with the Mishnah in Parah (see MINCHAS CHINUCH (299:2), who writes that there are other opinions besides the Mishnah in Parah on this matter). (Y. Montrose)

QUESTION: The Gemara records an argument regarding the status of a Pilgas. Rebbi Yochanan maintains that a Pilgas is considered to be an independent entity, and it is not an Ayil and not a Keves. Bar Pada maintains that we are in doubt whether a Pilgas is an Ayil or a Keves. The Gemara is unsure whether or not Bar Pada agreed that there is a third possibility, that the Pilgas might be an independent entity.

The RAMBAM (Hilchos Ma'aseh ha'Korbanos 2:6) writes that if a person brings a Pilgas as his Korban, he must bring the Nesachim that are brought with an Ayil (two Esronim). The Rambam seems to be following the opinion of Rebbi Yochanan in our Gemara, who derives from a verse (Bamidbar 15:11) that a Pilgas is included in the category of an Ayil. Although Bar Pada also says that one must bring the Nesachim of an Ayil, he requires that the person make a condition when he brings the Nesachim and say that if the Pilgas is actually a Keves (which requires only one Isaron as its Nesachim), than one Isaron is being brought for the Korban while the other is a Nedavah. If the Pilgas is actually an Ayil, then both Esronim are the Nesachim for the Ayil. If Bar Pada agreed that there is a third possibility that a Pilgas is an independent entity, then he should require that the person make an additional stipulation and state that if the Pilgas is an independent entity, then all of the Nesachim are being brought as a Nedavah. Since the Rambam makes no mention of any conditions, it seems that he is ruling like Rebbi Yochanan.

However, this seems to contradict the Rambam's ruling elsewhere (Hilchos Ma'aseh ha'Korbanos 16:2), where he rules that when one pledges to bring either an Ayil or a Keves as a Korban Olah (the case of our Gemara), and he brings a Pilgas, there is a doubt whether or not he has fulfilled his Neder. Our Gemara concludes that only according to Bar Pada is there a doubt whether bringing a Pilgas fulfills the Neder, since Bar Pada might agree that there is a possibility that a Pilgas is an independent entity, and is neither an Ayil nor a Keves, in which case the person would not have fulfilled his Neder. According to Rebbi Yochanan, however, the person *definitely* did not fulfill his Neder, since he brought a Pilgas (an independent entity), and not an Ayil nor a Keves. The Rambam is clearly ruling like Bar Pada!

How are we to reconcile the apparent contradiction in the rulings of the Rambam?

ANSWERS:

(a) The MAHARI KURKAS (Hilchos Ma'aseh ha'Korbanos 2:6) says that because the Rambam later rules that there is a doubt whether or not this animal fulfills the Neder to bring an Ayil or a Keves, which is clearly like the opinion of Bar Pada, and the Rambam implies this earlier as well (1:14), the Rambam does not need to specify here that one is required to make a condition when bringing the two Esronim with a Pilgas.

(b) Alternatively, the Mahari Kurkas answers that there is a good reason why the Rambam does not write that one must make a condition when bringing the Nesachim with the Pilgas. Rebbi Zeira, in our Gemara, remains in doubt whether or not Bar Pada agrees with the possibility that a Pilgas is an independent entity. Accordingly, we are unsure whether or not one must stipulate, according to Bar Pada, that if the Pilgas is an independent entity, then all of the Nesachim are being brought as a Nedavah. Since the Gemara is unsure how the person is supposed to express the conditional statement, the Rambam is also unsure and thus he does not discuss the condition at all. (See a similar explanation in the MIRKEVES HA'MISHNEH, Hilchos Ma'aseh ha'Korbanos 16:2.)

(c) The ROSH YOSEF here (23b) answers that the Rambam actually rules like Rebbi Yochanan. However, the Rambam understands the opinion of Rebbi Yochanan differently than the way we explained it earlier. We explained that Rebbi Yochanan holds that a Pilgas is definitely an independent entity. The Rambam understands that Rebbi Yochanan is also in doubt whether a Pilgas is an independent entity, or whether it is a Keves! Therefore, even according to Rebbi Yochanan, when a person brings a Pilgas to fulfill his Neder to bring an Ayil or a Keves, there remains a doubt whether or not he fulfilled his Neder.

When the Gemara says that there is no question according to Rebbi Yochanan, it means that there obviously is a doubt whether or not the person fulfills his Neder, since Rebbi Yochanan accepts the possibility that the Pilgas is an independent entity. The Gemara is uncertain whether or not Bar Pada also accepts this possibility. This is why the Rambam later (16:2) says that there is a doubt whether or not the Neder was fulfilled, even though he rules like Rebbi Yochanan; even Rebbi Yochanan is in doubt whether the Pilgas is an independent entity, or whether it is a Keves.

The LEV ARYEH gives a similar answer, but he says that the Rambam understands that Rebbi Yochanan is in doubt whether or not the Pilgas is an independent entity or whether it is an *Ayil.* (Y. Montrose)

23b

QUESTION: RASHI (end of DH Ela d'Rebbi Yehudah) explains that Rebbi Yehudah maintains that one who eats Si'ur (partially fermented dough) on Pesach is not punished with Malkus. Since, according to Rebbi Yehudah, Si'ur is only Safek Chametz (there is a doubt whether Si'ur is Chametz or not), when the person is warned by witnesses not to eat the Si'ur, their warning is only a "Hasra'as Safek" -- a warning given when it is not clear, at the time of the action, that the action will lead to a punishment in Beis Din. In order to give Malkus to a sinner, the sinner must be forewarned that his act is punishable by Malkus, but since eating Si'ur on Pesach is only a Safek Isur, the witnesses can only warn the person that "perhaps you are eating Chametz."

In fact, Rashi writes in numerous places that if a person commits a Safek Aveirah, he is exempt from Malkus because he lacks Hasra'ah, since his Hasra'ah was a Hasra'as Safek (see Rashi later in Chulin 80a, DH b'Tayish, and 86a, DH she'Eino Sofeg; see also Rashi in Yevamos 99b, DH Ein Sofgin, and 101a, DH Chayav; Sanhedrin 89b, DH Dilma, and see ARUCH LA'NER and Insights there).

The words of Rashi are difficult to understand. When a person performs an act that is a Safek Aveirah, there is a much more basic reason why he is not punished with Malkus -- we are not sure if he actually sinned! Even if Hasra'as Safek is a valid form of warning, we cannot administer Malkus because we are unsure whether or not the person actually committed the Aveirah!

In addition, we know that there is an argument among the Amora'im (in Makos 15b) whether or not Hasra'as Safek is a valid Hasra'ah. According to Rebbi Yochanan , it *is* considered a valid Hasra'ah for Malkus. Does this mean that Rebbi Yochanan maintains that we give Malkus to a person who eats Safek Chametz on Pesach? (REBBI AKIVA EIGER, ROSH YOSEF to Chulin 89a, and TIFERES YAKOV.)

ANSWERS:

(a) Rashi is giving a reason for why the person is not punished with Malkus even if Beis Din later rules that Si'ur actually *is* Chametz, and it turns out that the person indeed committed an Aveirah. Rebbi Yehudah exempts him from Malkus because at the time that he did the act, there was only Hasra'as Safek.

(b) Alternatively, we may suggest as follows. Apparently, Rashi is ruling that since the person was aware that his act constituted a Safek Aveirah (because he was warned), which the Torah prohibits, he can be punished for transgressing the Safek Aveirah (even if we never clarify the Safek). This may be compared to a case in which we have a Safek whether or not an act is prohibited, and a Chazakah (or a Rov) tells us that the act is prohibited. We may administer punishments of Malkus and Misah in such cases, even though the person will be exempt from any punishment if it is discovered later that the act did not constitute a transgression. (See TOSFOS in Gitin 33a, DH v'Afka'inhu.) Why, then, is the person indeed exempt from Malkus? He is exempt because of the rule that Hasra'as Safek is not a valid Hasra'ah, as Rashi writes.

This Hasra'as Safek is not subject to the Machlokes between Rebbi Yochanan and Reish Lakish. When Rashi uses the term "Hasra'as Safek" in these places, he is not referring to the Machlokes Amora'im in Makos (15b) regarding whether or not Hasra'as Safek is a valid Hasra'ah. The Gemara in Makos is referring to a situation in which it will become clear later whether or not the Aveirah was transgressed. In contrast, in the case of a Safek Aveirah, since we do not expect it to become clear later whether or not the Aveirah was transgressed, everyone agrees that the Hasra'ah is lacking, since the transgressor was not warned that what he was doing was definitely an Aveirah. When a person hears such a Hasra'ah for an Aveirah which he knows cannot be proven, he does not take it as seriously as a normal Hasra'ah, and therefore it cannot obligate him to receive Malkus.

Rashi's source might be the Gemara in Sanhedrin (89b) which says that a person who is eating dates and who is warned not to eat them because they might be Asur (see ME'IRI and Insights to Makos 21b) cannot be given Malkus because "nobody can give him a [proper] Hasra'ah." The Gemara should have said that he cannot be punished because nobody knows that he sinned! Instead, the Gemara says that he is not punished because nobody can give him Hasra'ah, implying that one who does a Safek Aveirah does not receive Malkus because it is lacking Hasra'ah.

Moreover, we may suggest that Rebbi Yochanan agrees that no Malkus will be administered in such a case. Rebbi Yochanan maintains that one receives Malkus for a Hasra'as Safek only when the Safek is due to an act that the person is doing now has the potential to become a definite sin, such as by performing another act in the future. However, it must be in the hands of the sinner himself to make his original act into a sin, retroactively (see Makos 15b, Shevuos 21a.). In the case of our Gemara, making the act of eating Si'ur into a sin is not in the power of the sinner at all. It depends upon the decision of Beis Din to declare that Si'ur is Chametz. In such a case, everyone agrees that Hasra'as Safek is *not* a Hasra'ah. (M. Kornfeld; see TOSFOS to Yevamos 80a, DH Na'aseh.)

QUESTION: The end of the Mishnah earlier (19b) states that the area that is valid for Shechitah is not valid for Melikah, and the area on the bird that is valid for Melikah is not valid for Shechitah. The Mishnayos continue with this theme of contrasts (until 25b). The Mishnah discusses the difference between turtledoves and pigeons (22a), the Parah Adumah and Eglah Arufah (23b), Kohanim and Levi'im (24a), earthenware vessels and other vessels (24b), wooden vessels and metal vessels (25a), and, finally, the difference between bitter almonds and sweet ones.

Is there any particular order in these Mishnayos? It is apparent that the Mishnayos are not following the order of the things as they are mentioned in the Torah, since cows and calves (end of Bamidbar, and Devarim) are listed before Kohanim and Levi'im (Vayikra, and beginning of Bamidbar). Is there any reason for the Mishnah's order?

ANSWER:

(a) The TIFERES YAKOV (on the Mishnah here) explains that the first three Mishnayos all have in common a specific theme, in that the contrasts they discuss are all absolute. The two different subjects in each pair are never similar. The area where one may perform Shechitah is invalid for Melikah, with no exceptions. A Tor that is the same age as a Ben Yonah may never be offered as a Korban. A Parah Adumah must be slaughtered with Shechitah, while an Eglah Arufah must be killed with Arifah, and if done differently, the Parah Adumah or Eglah Arufah is not valid at all. These Mishnayos are teaching that the difference between the contrasting objects are absolute.

The next Mishnah teaches a difference that is not absolute. The difference between Kohanim and Levi'im is not absolute. Reaching the age of fifty, an event that does not remove a Kohen from serving in the Beis ha'Mikdash, does remove a Levi from serving. Acquiring a blemish (Mum), an event that does not disqualify a Levi, does disqualify a Kohen. This, however, is not an absolute conflict, since there are many Kohanim and Levi'im who perform the service together, as they do not have blemished and are under they age of fifty. These Mishnayos, including the Mishnayos regarding the status of different vessels, are discussing only possible circumstances which would affect one thing negatively while it would not affect the other. In this second list, it makes sense that Kohanim are mentioned first, since they are mentioned in the Torah earlier than the other things in this set of Mishnayos, and are more similar to the first set of Mishnayos as the words "Kasher" and "Pasul" apply to them (as opposed to the next Mishnayos which discuss "Tamei" and "Tahor," or in the case of the almonds, "Chayav" and "Patur").

Using the Tiferes Yakov's comments as a guideline, we can explain more specifically the order of these Mishnayos. It is clear that the first Mishnah regarding Shechitah and Melikah is directly related to the topic discussed immediately preceding it (19b), and therefore the contrast between Shechitah and Melikah is listed first. In addition, Shechitah is mentioned at the very beginning of Vayikra, before the other objects listed in this set of Mishnayos. The Mishnah then contrasts a Tor with a Ben Yonah, which are mentioned next in the Torah with regard to what animals may be brought as Korbanos. Only much later (Bamidbar and Devarim) does the Torah mention Parah Adumah and Eglah Arufah.

In the second set of Mishnayos, while we understand why Kohanim and Levi'im are listed first (as the Tiferes Yakov explains), why is the difference between earthenware vessels and all other types of vessels mentioned before the difference between metal vessels and wood vessels? They are all discussed in the same verses, with earthenware mentioned last (Vayikra 11:32-33)! It is possible that the Mishnah prefers to discuss first a law that is relevant to all vessels before discussing a more limited contrast of two specific vessels (metal and wood). The case of almonds is not even mentioned in the Torah, and the expression of the Halachah is different ("Chayav" and "Patur"), and therefore it is mentioned last. (Y. Montrose)

QUESTION: The Mishnah teaches that what is valid for a Parah Adumah is invalid for an Eglah Arufah, and vice versa. A Parah Adumah must be slaughtered with Shechitah, while an Eglah Arufah must be killed with Arifah. The Gemara suggests that we allow a Parah Adumah to be killed with Arifah through a Kal v'Chomer from Eglah Arufah, and it rejects this Kal v'Chomer based on a verse. The Gemara then suggests a Kal v'Chomer to allow Shechitah for an Eglah Arufah, but it cites another verse that refutes the Kal v'Chomer.

Since the Kal v'Chomer can be made in both directions (from Eglah to Parah for Arifah, and from Parah to Eglah for Shechitah), both ways should be invalid once we know that one way is invalid! Why does the Gemara suggest both of them?

ANSWERS:

(a) TOSFOS (DH v'Tehei first suggests that each Kal v'Chomer is actually a "Mah Matzinu." (That is, the Gemara is suggesting that we learn that a Halachah applies to all other cases from the Halachah that applies in one case through a "Binyan Av." The words "Kal v'Chomer" in the Gemara are Lav Davka.)

(b) TOSFOS later proves that the Gemara cannot be suggesting a "Mah Matzinu." Tosfos explains that there must be some logical reason to make the Kal v'Chomer in one direction more than the other. After the Gemara disproves the Kal v'Chomer in the more logical direction, the Kal v'Chomer becomes "unilateral" again. The Gemara then continues and asks a logical, unilateral Kal v'Chomer in the other direction. (Z. Wainstein)