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Chulin, 41

1) A JEW'S INTENTION WHEN HE SLAUGHTERS AN ANIMAL FOR IDOLATRY

QUESTIONS: Rav Nachman, Rav Amram, and Rav Yitzchak rule (40b) that a person cannot prohibit something that does not belong to him ("Ein Adam Oser Davar she'Eino Shelo"). They explain that when the Tana Kama in the Beraisa says that an idolater is able to prohibit the wine of a Jew, he means only that a Kusi can prohibit a Jew's wine. If a Jew says that he is being Menasech another Jew's wine for Avodah Zarah, the wine is permitted, because we assume that he does not have intention to actually serve Avodah Zarah, but rather he is merely trying to cause distress to the other Jew by making him think that his wine has become forbidden ("l'Tza'urei Ka Michavein").

The Gemara earlier (40a) says that Rav Huna rules that when a person does an action to another person's object (such as slaughtering his animal to Avodah Zarah), he is able to prohibit something that does not belong to him. Rav Nachman challenges Rav Huna's ruling from the Beraisa that states that one who inadvertently slaughters a Korban Chatas on Shabbos outside of the Beis ha'Mikdash for the sake of Avodah Zarah is obligated to bring three Korbenos Chatas (one for his inadvertent desecration of Shabbos, one for slaughtering a Korban outside of the Beis ha'Mikdash, and one for slaughtering an animal for Avodah Zarah). According to Rav Huna, he should not be Chayav for Shechutei Chutz, because at the moment that he cuts one Siman for the sake of Avodah Zarah, the animal becomes Asur, and when he completes the Shechitah he is not considered to be slaughtering a Korban outside of the Beis ha'Mikdash.

From the fact that Rav Nachman quotes that Beraisa in an attempt to refute Rav Huna, it is evident that Rav Nachman agrees with the Beraisa's ruling that the person is Chayav for Shechutei Chutz, and that the animal does not become Asur when it is slaughtered for Avodah Zarah.

Why, though, does it not become Asur? In that case, the owner of the animal is slaughtering his own animal! Rav Nachman says that when someone else slaughters the owner's animal for Avodah Zarah, the animal does not become prohibited, because we assume that the Jew who slaughtered it was merely trying to torment the owner. When the owner himself slaughters his animal for Avodah Zarah, who is he trying to torment! It must be that he really intends to serve Avodah Zarah! Why, then, does the Beraisa imply that the animal does not become Asur as Tikroves Avodah Zarah? In addition, what do these Amora'im mean altogether when they say that the Jew who was Menasech someone else's wine for Avodah Zarah intended only to cause the owner distress? Will a Jew who does not serve Avodah Zarah actually say the words, "I hereby am doing this for the sake of Avodah Zarah," if he does not mean it? Moreover, the Gemara later asks whether the animal will be permitted in a case when the Jew slaughtering the animal was warned with Hasra'ah not to slaughter it for Avodah Zarah. How can we say that the person did not intend to serve Avodah Zarah but intended only to torment another Jew when he said -- after being warned -- that he intends to slaughter the animal for Avodah Zarah? Will Beis Din absolve him of liability because of the assumption that a Jew does not serve Avodah Zarah? (LEV ARYEH)

ANSWER: The LEV ARYEH explains the Gemara as follows. When Rav Nachman says that a Jew cannot prohibit another Jew's wine because he merely intends to torment him, he does not mean that the Jew does *not* intend to serve Avodah Zarah. When the Jew says, "I hereby am doing this to serve Avodah Zarah," we assume that he means it, and he will be held liable for his act. However, the wine or the animal still does not become prohibited. This is because Rav Nachman holds that a person cannot prohibit something that does not belong to him.

How, then, does Rav Nachman explain the Tana Kama's opinion that a Nochri *can* prohibit wine that does not belong to him?

The Lev Aryeh explains Rav Nachman's opinion based on the words of RASHI earlier (40a, DH Revutzah). Rashi says that one who steals an animal and then slaughters it for Avodah Zarah effectively makes the animal "Zivchei Mesim," and it is Asur b'Hana'ah. The Kinyan Geneivah that he made is enough to enable him to prohibit the animal. Consequently, a Nochri who was Menasech the wine of a Jew can prohibit it, because he first stole it (thereby making a Kinyan Geneivah), making the animal his own animal to some degree, and not because he is able to prohibit something that does not belong to him. Why, then, does Rav Nachman say that when a Jew is Menasech the wine of another Jew, it does not become prohibited? Why do we not say that since the Jew made a Kinyan Geneivah, he is able to prohibit the wine?

The answer is that the Jew wants so much to prohibit the other Jew's wine th at he will serve Avodah Zarah in order to do so. However, he has no intention to *steal* the wine and make it his own. He is not interested in bringing a sacrifice of his own to Avodah Zarah. This is what the Gemara means when it says that he intends to torment the owner of the wine. This Jew indeed has intention to serve Avodah Zarah (and he will be liable for doing so if he received Hasra'ah) in order to prohibit the owner's wine, but he does not have intention to steal the wine. The wine (or animal, in a case of Shechitah for Avodah Zarah) is permitted according to Rav Nachman, because "Ein Adam Oser Davar she'Eino Shelo."

(An exception to this is a Yisrael Mumar (or a Nochri). In the case of a Yisrael Mumar, we assume that his main intention is to serve Avodah Zarah (and not to torment the other Jew), and that he intends to make the wine or animal his own when he steals it so that he will be offering his own possessions to the Avodah Zarah. In such a case, the wine will become Asur (according to Rashi on 40a).)

According to this approach, we understand why Rav Nachman agrees with the Beraisa that implies that when one slaughters a Korban outside of the Azarah for the sake of Avodah Zarah, the animal does not become Asur as Tikroves Avodah Zarah (and the owner is Chayav for Shechutei Chutz), even though "l'Tza'urei Ka Michavein" does not apply (since he is slaughtering his own animal). In the case, the animal is a Korban, and the Korban belongs not to him but to Kodshim. Therefore, he cannot prohibit it as Avodah Zarah because of "Ein Adam Oser Davar she'Eino Shelo." Rav Nachman applies the reasoning of "l'Tza'urei Ka Michavein" only to explain why a second person does not have intention to acquire the animal of someone else when he slaughters it for Avodah Zarah. The main reason it does not become Asur is because "Ein Adam Oser Davar she'Eino Shelo."

This approach seems to be the intention of the RAMBAM (Hilchos Shechitah 2:21). The Rambam writes, "But if he has no joint ownership in it, it does not become prohibited, because a Jew cannot prohibit something that does not belong to him, for [we assume that] his intention is only to torment the other." The Acharonim ask why the Rambam needs to give two reasons for why the animal is not prohibited -- first, he says that it is because a Jew "cannot prohibit something that does not belong to him," and then he says it is because "his intention is only to torment the other"! Why are both reasons necessary?

According to the Lev Aryeh's explanation, the words of the Rambam are clear. The Rambam is saying that a person cannot prohibit another person's animal, because it does not belong to him. However, since there was a theft, the Jew should acquire the animal through a Kinyan Geneivah and he should be able to prohibit it since it becomes his own animal! The Rambam therefore adds that the Jew's only intention is to cause distress to the owner, and he does not have intention to be Koneh the animal for himself by stealing it. Therefore, he cannot prohibit it since it does not belong to him. (Mordechai Zvi Dicker)

41b

QUESTION: The Gemara quotes a Beraisa that states that one may not perform Shechitah into a pit in the ground at all. One who wants to keep his courtyard clean should dig a furrow near the pit and slaughter the animal above the furrow, letting the blood flow into the pit. The Beraisa says that slaughtering over a furrow that leads to a pit is permissible only in one's private property. Slaughtering in this manner in public property is forbidden because of the verse, "uv'Chukoseihem Lo Selechu" (Vayikra 18:3), and one who slaughters in this manner in public property is suspected of being an idolater.

What is the difference between slaughtering into a furrow that leads to a pit in one's own courtyard, in which case it is permitted, and doing the same act in public property, in which case it is prohibited?

ANSWER: The TORAS CHAIM explains that in one's own home, there is no prohibition of "uv'Chukoseihem Lo Selechu." The reason for this is based on the words of the MAHARIT who says that one transgresses this prohibition only when it is evident that the person is performing the act in order to emulate the ways of idolaters. If there is another plausible explanation for why he is doing this act, then he does not transgress the prohibition of "uv'Chukoseihem Lo Selechu."

Accordingly, in one's home, it is clear that one is slaughtering into the furrow in order to keep his property clean. In the marketplace, though, where it is not necessary to clean (see RASHI DH uv'Shuk), the only reason why one would be slaughtering into a furrow leading to a pit is because he is emulating the ways of the idolaters.

Why, then, in one's home is it prohibited to slaughter directly into a pit? The Toras Chaim explains that this is because of Mar'is ha'Ayin, since this is the way idolaters perform Shechitah. This explains why the Mishnah and Beraisa do not mention the verse of "uv'Chukoseihem Lo Selechu" when they state that it is forbidden to slaughter directly into a pit in one's home, and they mention the verse only with regard to slaughtering into a furrow in public property. Similarly, the Mishnah and Beraisa do not state that he is suspected of being an idolater when he slaughters directly into a pit in his home; since there is an obvious reason why he is doing it (i.e. to keep his home clean), the only reason it is prohibited is because of Mar'is ha'Ayin, and thus he is not suspected of being an idolater. (Mordechai Zvi Dicker)

OPINIONS: The Gemara quotes a Beraisa that states that one may not perform Shechitah into a pit in the ground at all. One who wants to keep his courtyard clean should dig a furrow near the pit and slaughter the animal above the furrow, letting the blood flow into the pit. The Beraisa says that slaughtering over a furrow that leads to a pit is permissible only in one's private property. Slaughtering in this manner in public property is forbidden because of the verse, "uv'Chukoseihem Lo Selechu" (Vayikra 18:3), and one who slaughters in this manner in public property must be investigated out of suspicion that he is an idolater.

What, though, is the status of the Shechitah? Is the Shechitah a valid Shechitah, even though the person is suspected of being an idolater? Is there a difference between slaughtering the animal directly over a pit, and slaughtering the animal near a pit (over a furrow through which the blood flows into the pit)?

(a) The RAMBAM (Hilchos Shechitah 2:6) writes that the Shechitah performed by one who slaughters an animal over a pit in public property is invalid until we investigate the Shochet's reliability. If he is found to be an upright, trustworthy Jew, then we may rely on the Shechitah that he performed over the pit. (That is, investigating him is in order to be *lenient* and permit the Shechitah that he performed.)

The RADVAZ infers from the wording of the Rambam that the Shechitah is invalid only when the Shechitah is performed directly over the pit, but not when it is performed over a furrow that leads to the pit. When the Rambam records the Beraisa, he changes some of its words. Instead of writing, "And if he did this" ("v'Im Asah Chen") as the Beraisa states, the Rambam writes, "And if he slaughtered into the pit." The Rambam is emphasizing that the Shechitah is invalid only when he slaughters directly into a pit, but not when he slaughters the animal near the pit. This also implies that we must investigate the Shochet only when he slaughters directly over the pit, but not when he slaughters near the pit.

(b) The RASHBA in TORAS HA'BAYIS says that since the Mishnah and Beraisa do not say "his Shechitah is invalid" in this case (as the previous Mishnah (end of 39b) and following Mishnah (41b) mention), this implies that the Shechitah is valid in both cases -- when he slaughters directly over a pit and when he slaughters near a pit. We may rely on the Shechitah (b'Di'eved) even without investigating the Shochet. We must investigate him in both cases in order to permit him to perform future Shechitos. Moreover, if he is found to be a Min upon investigation, then the Shechitah he performed over a pit is disqualified retroactively, as the YAM SHEL SHLOMO writes (Chulin 2:23, and as cited by the TAZ YD 12:2). (That is, according to the Rashba, investigating him is in order to be *stringent* and invalidate him from future Shechitos, as well as to disqualify the Shechitah that he already performed retroactively. See PRI MEGADIM in SIFSEI DA'AS, YD 12:3-4.)

(c) The RADVAZ rules that it depends on the manner in which the person slaughtered the animal. If he slaughtered the animal directly over a pit, then his Shechitah is invalid, because he is probably doing so in order to emulate the idolaters. If, however, he slaughters near a pit so that the blood falls into a furrow and then flows into the pit, his Shechitah is valid, but we just must investigate him. Since he did not slaughter the animal directly over the pit, his intentions are not clear. (Mordechai Zvi Dicker)

HALACHAH: The SHULCHAN ARUCH (YD 12:2) cites the opinions of the Rambam and Rashba. The REMA writes that since nowadays it is not the manner of Nochrim to slaughter animals over pits as a way of serving Avodah Zarah, one may rely on such a Shechitah (whether one may rely on such a Shechitah only b'Di'eved or even l'Chatchilah is the subject of dispute; see PRI MEGADIM in SIFSEI DA'AS, YD 12:5.)