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Chulin, 70

1) CUTTING UP A "BECHOR" AS IT EXITS THE WOMB

QUESTIONS: Rav Huna and Rabah argue regarding when the Kedushah of a firstborn calf takes effect. Rabah maintains that a firstborn calf becomes Kadosh as a Bechor only from the time that the majority of the calf exits the womb. Rav Huna maintains that a firstborn calf becomes Kadosh retroactively; once a majority of the calf is born, retroactively the entire calf becomes Kadosh.

The Gemara cites the Mishnah (69b) as proof for the view of Rabah. The Mishnah states that if an animal is experiencing a difficult first birth, then one may cut the fetus into pieces as each part exits the womb and throw them to the dogs. The pieces do not have the Kedushah of a Bechor. The Mishnah presumably is referring even to a case in which all of the pieces of the fetus are still in front of us, and nevertheless it says that the fetus does not have Kedushah. This supports Rabah's view that the fetus becomes Kadosh only from the time that a majority exits.

(a) How does the Mishnah support Rabah's view? Rabah agrees that the calf becomes Kadosh from the time that a majority exits the womb. Once a majority of the pieces have exited, the remaining parts of the fetus should be Kadosh! Why does the Mishnah say that all of the parts may be thrown to the dogs?

(b) There is a more basic question that the Gemara should have asked on the view of Rav Huna. According to Rav Huna, one should not be permitted to cut the firstborn calf in the first place, since he is thereby maiming an animal of Kodshim! Why does the Gemara not ask this question?

ANSWERS:

(a) TOSFOS (DH Mai) and RASHI (DH Mechatech) answer that the Mishnah indeed permits only the first half of the calf to be thrown to the dogs. Once a majority has exited the womb, the rest that exits indeed is Kadosh and must be buried.

(b) Tosfos answers that the Gemara does not ask this question on Rav Huna, because perhaps the Mishnah is discussing a Bechor that is not fit to be offered on the Mizbe'ach (such as a stillborn), and thus it does not have the Kedushah of Kodshim, and it is permitted to maim such a Bechor. (Alternatively, the Mishnah may be referring to cutting up the animal before it exits the womb, which renders it a stillborn and unfit to be offered.)

QUESTION: Rava asks what the Halachah would be in a case in which a firstborn calf was wrapped in "Siv" (tendril, or bast of a palm tree) during the birth in order to aid in its delivery. Does a calf born in this manner have the status of a Bechor? As RASHI (DH Mahu) explains, Rava is asking whether or not we consider the Siv as a "Chatzitzah" that intervenes between the calf and the walls of the womb so that this calf is not considered the "Peter Rechem," the birth that "opens the womb" (see Shemos 13:2), and thus does not have the Kedushah of a Bechor.

What is the difference between this case and the case in Pesachim (115b) of a person who wraps Matzah and Maror in Siv on Seder night and swallows it? The Gemara there rules that the person does not fulfill the Mitzvah of eating Matzah, nor the Mitzvah of eating Maror, since the Siv acts as a Chatzitzah between the food and the person's mouth. Why, in that case, is it obvious that the Siv is a Chatzitzah, while Rava here is in doubt whether a Siv acts as a Chatzitzah between the newborn calf and the walls of the womb? (See MAHARATZ CHAYOS.)

ANSWERS:

(a) The AVNEI NEZER (cited by RAV MOSHE FEINSTEIN in IGROS MOSHE YD 3:125) states that Rava's doubt was whether or not a Chatzitzah poses any problem for the Kedushah of a Bechor. That is, certainly the Siv is a Chatzitzah. However, perhaps a separation between the calf and the mother does not prevent the calf from becoming Kadosh as a Bechor.

In contrast, swallowing Matzah and Maror wrapped in Siv is problematic not because the Siv is a Chatzitzah between the food and the mouth, but because this is not the normal manner of eating (as the SHULCHAN ARUCH (OC 475:3) writes). It is not considered as though the person *ate* Matzah and Maror. As the RASHBAM in Pesachim (115b, DH Karchan) writes, it is equivalent to throwing a stone into a bottle. In contrast, facilitating a birth through the intervention of Siv is not considered a significant change in the birth process to prevent the calf from becoming Kadosh as a Bechor.

Rav Moshe Feinstein questions the Avnei Nezer's explanation. It is clear from the Gemara in Bechoros (9b) that in a case in which male twins were born, the only reason the second calf is not considered a Chatzitzah between the first calf and the womb is because both calves are of the same "Min," and the rule is that "Min b'Mino Eino Chotzetz" -- the law of a Chatzitzah does not apply to two items of the same type. Rav Moshe states that it is clear from the Gemara there that an object of a different substance ("Min b'Eino Mino") *would* be a Chatzitzah when the firstborn calf is born.

(b) Rav Moshe Feinstein zt'l (in Igros Moshe ibid.) writes that it was clear to Rava that in general a Chatzitzah between the newborn calf and the womb disqualifies the calf from having the Kedushah of a Bechor. However, Rava here was asking that since the wrapping of the calf in the Siv was for its own benefit, because it was a cold day and the Siv warmed it and prevented it from becoming through the birth, perhaps the wrapping does not constitute a Chatzitzah, since it was for the purpose of the calf itself.

Rav Moshe Feinstein states that according to this explanation, we can understand the continuation of the Gemara better. The next question of Rava is what the Halachah would be in a case in which the calf was wrapped in a garment. Does this constitute a Chatzitzah between the calf and the womb? Rava's intention is that even if we say that a Siv is a Chatzitzah because it does not warm the calf well and therefore it does not provide a significant benefit to the calf such that it would not be considered a Chatzitzah, nevertheless perhaps a piece of clothing that does warm the calf sufficiently *is* considered to be entirely for the benefit of the calf and is *not* a Chatzitzah. (D. Bloom)

QUESTION: Rava asks what the Halachah would be in a case in which a weasel crawled into the womb of a cow, swallowed its fetus, exited the womb, re-entered the womb and vomited the fetus there, and then the fetus exited the womb on its own. This case seems to be extremely farfetched. How could such a thing occur?

ANSWER: TOSFOS in Kesuvos (4b, DH Ad) writes that the Chachamim of the Gemara occasionally discuss theoretical situations that could never occur in reality. Their purpose in such discussions is to teach or establish a concept or logical point that *is* relevant in practice or that helps us to understand the Halachah better. Tosfos proves this from the Gemara here, which discusses a case that obviously is only theoretical.

70b

QUESTION: The Gemara searches for the source for the Halachah that a dead fetus inside the womb of an animal is not Metamei the person who reaches in and touches it.

There seems to be a simple source for this Halachah. The Gemara later (71a) discusses the Halachah of "Tum'ah Belu'ah" ("swallowed Tum'ah"), which refers to an object that is Tamei inside of a living creature. While the object is still inside, the object is not Metamei anything that touches or carries it. Why does the Gemara not say that this is the source for the Halachah that a dead fetus is not Metamei the person who touches it?

ANSWERS:

(a) RASHI (DH Kal v'Chomer) and TOSFOS (DH Mai) explain that the Gemara wants to find a source for this Halachah even according to Rebbi Akiva. Rebbi Akiva (72a) maintains that a human fetus *does* cause Tum'ah even though it is Belu'ah.

(b) Tosfos suggests another answer. The Gemara knows that there is a verse (as the Gemara later quotes to explain the view of Rebbi Yosi ha'Glili in the Mishnah) from which we can learn that a dead fetus in an animal *is* Tamei. This verse would have been the source (according to the Tana Kama in the Mishnah) that a dead fetus inside of an animal is Tamei if not for the Kal v'Chomer that teaches that it is illogical to explain the verse in such a manner.

(c) The BA'AL HA'ME'OR explains that the Mishnah considers even a limb that protrudes from the womb to be Tahor. Such a limb is obviously not Tum'ah Belu'ah, since it has emerged from the womb. Therefore, the Gemara needs to find a different source that it is Tahor. (According to Tosfos later (72a, DH Gezeirah), this answer does not suffice. Tosfos says that it is precisely in such a case -- when a limb protrudes from the womb -- that Rebbi Yishmael considers the fetus to be Tahor and Rebbi Akiva considers it Tamei. Thus, our Sugya must be following the opinion of Rebbi Akiva when it searches for a source that such a limb is Tamei, and we must revert to the first answer (a) above.)

QUESTION: Rebbi Yonasan asked Ben Azai if he knew the source for the Halachah that a Chayah *Tehorah* is Metamei when it dies. One verse states clearly that a Behemah and a Chayah *Temei'ah* are Metamei ("... b'Nivlas Chayah Temei'ah O b'Nivlas Behemah Temei'ah..." in Vayikra 5:2), and another verse states that a *Behemah Tehorah* is Metamei ("... ha'Behemah Asher Hi Lachem l'Ochlah" in Vayikra 11:39). However, there is no explicit verse in the Torah teaching a *Chayah Tehorah* is Metamei.

Ben Azai suggested a source for the Tum'ah of a Chayah Tehorah, but Rebbi Yonasan refuted it. Ben Azai then asked Rebbi Yonasan to reveal to him what source Rebbi Yonasan's Rebbi, Rebbi Yishmael, found to teach that a Chayah Tehorah is Metamei. Rebbi Yonasan replied that the correct source for the Halachah that a Chayah Tehorah is Metamei is the verse that discusses the Tum'ah of a *Behemah* (Vayikra 11:39, as mentioned above). The verse there begins with the words, "v'Chi Yamus Min ha'Behemah," which, Rebbi Yonasan explains, refer to a Behemah *Temei'ah* and teach that a Behemah Temei'ah is Metamei. The verse continues, "Asher Hi Lachem l'Ochlah." Rebbi Yonasan explains that these words refer to a Behemah *Tehorah* and teach that a Behemah Tehorah is Metamei. The source that a *Chayah* Tehorah is Metamei is based on the principle that "Chayah bi'Chlal Behemah" -- the word "Behemah" in the Torah includes Chayah as well. If the Torah tells us that a *Behemah* Tehorah is Metamei, then a *Chayah* Tehorah is also Metamei.

Rebbi Yonasan's answer is difficult to understand. It seem that his source for the Tum'ah of a Chayah Tehorah is simply the principle that a Chayah is included in the word "Behemah." Since the verse (11:39) teaches that a Behemah Tehorah is Metamei, then the same applies to a Chayah Tehorah. Why, then, did Rebbi Yonasan introduce a new source from the verse to teach that a Behemah *Temei'ah* is Metamei ("'v'Chi Yamus Min ha'Behemah' -- this refers to a Behemah Temei'ah")? The Halachah that a Behemah Temei'ah is Metamei is derived from an earlier verse ("O b'Nivlas Behemah Temei'ah" in Vayikra 5:2), as Ben Azai and Rebbi Yonasan originally understood (see RASHI DH Hachi Garsinan, and DH Tanya). (RAMBAN, CHIDUSHEI HA'RAN, MAHARSHA)

ANSWERS:

(a) The MAHARSHA answers that there is a printing error in the part of the Beraisa that quotes Rebbi Yonasan's source for the Tum'ah of a Behemah. It should not include the words, "this refers to a Behemah Temei'ah," since it is not necessary to bring a new source for the Tum'ah of a Behemah Temei'ah, as we mentioned.

To support his emendation of the text of the Beraisa, the Maharsha cites the YALKUT SHIMONI (#536) which quotes this Beraisa but leaves out the words, "this refers to a Behemah Temei'ah" (this is the text in some Girsa'os of the Yalkut).

(b) The RAMBAN and RAN suggest a way of understanding the text without changing it (see also MEROMEI SADEH). They explain that the principle that a Chayah is included in the word "Behemah" alone does not suffice to teach that a Chayah Tehorah is Metamei. This is because the Torah seems to make an exception to the rule that a Chayah is included in the word "Behemah" with regard to being Metamei, because it mentions a Chayah Temei'ah explicitly (in Vayikra 5:2) even though it also mentions a Behemah Temei'ah. The Torah says that one becomes Tamei when he touches "b'Nivlas *Chayah Temei'ah* O b'Nivlas *Behemah Temei'ah*." If Chayah is included in Behemah, then the Torah would have said only, "O b'Nivlas Behemah Temei'ah," without mentioning Chayah Temei'ah explicitly. Since the Torah specifies Chayah Temei'ah, we may infer that Chayah cannot be learned from Behemah with regard to Tum'ah.

For this reason, when the Torah mentions that only a *Behemah* Tehorah is Metamei (in Vayikra 11:39) and does not mention explicitly that a *Chayah* Tehorah is Metamei, we should infer that a Chayah Tehorah is *not* Metamei.

This is why Rebbi Yonasan pointed out that the verse (11:39) is also teaching that a Behemah *Temei'ah* is Metamei, even though the earlier verse already teaches that a Behemah Temei'ah is Metamei. The apparently extra verse was written to compare the laws of a Behemah Tehorah to the laws of a Behemah Temei'ah (both of which are written in that verse) with regard to being Metamei. We find that the laws of a Behemah *Temei'ah* apply to a Chayah Temei'ah as well (in Vayikra 5:2) and both are Metamei. Thus, we may infer that Chayah is also included in the word "Behemah" when the verse (11:39) discusses a Behemah *Tehorah*. Hence, the laws of Behemah Tehorah and Chayah Tehorah are the same with regard to being Metamei; Chayah is included in the word "Behemah" in the verse that discusses the Tum'ah of a Behemah Tehorah.

If Chayah is included in "Behemah" with regard to Tum'ah, then why does the Torah specify both Behemah Temei'ah and Chayah Temei'ah in the verse in Vayikra? The answer is that this verse was written in order to teach us a law about the Korban Oleh v'Yored, as Rebbi says earlier (71a; see Rashi there, DH Ekra Ani Chayah).