THOUGHTS ON THE DAILY DAF
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Rosh Kollel: Rav Mordecai Kornfeld
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Chulin, 80
CHULIN 80 - dedicated by Rabbi Kornfeld's father in memory of his aunt,
Malka Gitel bas Reb Yakov Mordechai (Malvina Marmorstein), who took him
into her home and raised him like her own child after the Holocaust. Her
Yahrzeit is 20 Nisan.
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1) WHY ONE IS NOT PUNISHED FOR COMMITING A "SAFEK AVEIRAH"
QUESTION: The Gemara says that both the Rabanan and Rebbi Eliezer are unsure
whether or not we are concerned for the "seed of the father" in the
offspring. They are arguing about whether even a partial Seh is considered a
Seh. When the mother is a Tzviyah (doe) and the father is a Tayish (goat),
the Rabanan prohibit slaughtering the offspring and its child on the same
day, because perhaps we must be concerned for the seed of the father, and
thus the animal is a half-goat and is considered a Seh (which is included in
the prohibition of "Oso v'Es Beno"). Rebbi Eliezer permits slaughtering the
half-goat and its child on the same day, because even if it is a half-goat,
a half-goat is not considered a Seh.
RASHI (DH b'Tayish ha'Ba Al ha'Tzviyah) explains that the Rabanan were not
sure whether the father's seed makes a difference in its offspring.
Therefore, there is a doubt whether the child of a doe and a goat is
considered be called a half-goat. Rashi adds that while it is prohibited,
out of doubt, to slaughter this animal with its child on the same day, one
who transgresses and slaughters them together is not punished with Malkus.
Since the status of the parent is in doubt, the person cannot be warned with
a proper Hasra'ah, but only with a Hasra'as Safek (a warning given to a
person who is about to commit a sin when it is not certain that the
potential punishment will be applicable to his sin), which is not a valid
Hasra'ah.
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 earlier in Chulin 23b, DH Ela
d'Rebbi Yehudah and Insights there, and later on 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 slaughters
a half-goat and its child on one day? (TESHUVOS RAMA MI'PANO #26, REBBI
AKIVA EIGER to 23b, TIFERES YAKOV there, ROSH YOSEF here, RASHASH here.)
ANSWERS:
(a) Rashi is giving a reason for why the person is not punished with Malkus
even if Beis Din later rules that we do consider the paternal contribution
of an animal to its offspring to be significant, and the animal indeed is a
half-goat and has the status of a goat. The Rabanan nevertheless exempt a
person from Malkus who, in the past, slaughtered a half-goat, because at the
time of his sin, there was no proper Hasra'ah.
(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 to 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 the Aveirah was
transgressed or not, 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
slaughtering the two animals into a definite sin is not in the power of the
sinner at all. It depends upon the decision of Beis Din to declare that such
an animal indeed is a half-goat. 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.)
2) THE "SHOR HA'BAR"
OPINIONS: The Gemara cites a Mishnah in Kil'ayim (8:6) in which Rebbi Yosi
and the Tana Kama argue whether a Shor ha'Bar (wild ox, bison) has the
status of a domesticated animal (Behemah) or the status of a wild animal
(Chayah). The Tana Kama maintains that it is a type of Behemah, since it is
translated as "Torbala" (ox of the forest). Rebbi Yosi maintains that it is
a type of Chayah, since it is mentioned together with other Chayos (in
Devarim 14:5). The argument has two important practical ramifications:
whether there is a Mitzvah of Kisuy ha'Dam, and whether the Chelev is
prohibited.
What is the Halachah? Is the Shor ha'Bar considered a Behemah or a Chayah?
(a) The RAMBAM (Hilchos Ma'achalos Asuros 1:12) rules that the Shor ha'Bar
is considered a Behemah and not a Chayah.
(b) The ROSH argues based on an inference in the Gemara here. The Gemara
attempts to prove that Izi d'Bala (goats of the forest) are considered
Behemos and may be offered as Korbanos from the fact that they are not
listed in the Torah among the Kosher Chayos (Devarim 14:5). It must be that
they are included in the category of ordinary goats, which are Behemos.
The Gemara asks that perhaps Izi d'Bala *are* mentioned in the list of
Chayos by a different name. Perhaps they are the "Te'o" mentioned in the
list.
The Gemara implies that the "Te'o" is a Chayah, since it is mentioned in the
list of Chayos. The "Te'o," though, is the "Torbala," as the Targum Onkelos
writes. The "Torbala" is the Shor ha'Bar, and yet the Gemara clearly implies
that it is a Chayah!
In support of the Rambam, the RASHBA (DH Ha) quotes a Girsa of the Gemara
that omits the words in which the Gemara asks that perhaps the Isi d'Bala
are the Te'o. (Z. Wainstein)
3) THE "AYIL HA'BAR"
QUESTION: The Gemara cites a Mishnah in Kil'ayim (8:6) in which Rebbi Yosi
and the Tana Kama argue whether a Shor ha'Bar (wild ox, bison) has the
status of a domesticated animal (Behemah) or the status of a wild animal
(Chayah). Rebbi Yosi maintains that it is a type of Chayah, since it is
mentioned together with other Chayos (in Devarim 14:5).
TOSFOS (DH mid'Chashiv) points out that this implies that had the Shor
ha'Bar not been mentioned together with Chayos, everyone would have agreed
that it is a Behemah, because it is called a "Shor." Tosfos asks that this
seems to contradict the Gemara earlier, which implies that we do not follow
the name of the animal when determining its status. The Gemara says that an
"Ayil ha'Bar" is a Chayah (see Tosfos DH Zeh), even though its name is
"Ayil," which is a Behemah.
How, though, does Tosfos know that the animal called "Ayil" is a Behemah? We
know that only animals that are Behemos may be offered on the Mizbe'ach, and
not Chayos. Accordingly, an Ayil must be a Behemah, since it is one of the
Korbanos that is offered on the Mizbe'ach (see, for example, Shemos 29:1,
Vayikra 5:15, 5:18, Bamidbar 28:11, 28:19, and Bereishis 22:13).
However, there is a different animal called an "Ayal" that is a Chayah. The
verse says, "... just as the Tzvi and the Ayal are eaten" (Devarim 12:22),
comparing the Ayal to the Tzvi. A Tzvi certainly is a Chayah and may not be
offered as a Korban; so, too the Ayal is a Chayah and may not be offered as
a Korban. Similarly, the verse later in Devarim (14:5) implies that an Ayal
is a Chayah, because it includes Ayal in the list of Chayos, and not in the
list of Behemos (14:4). How, then, does Tosfos know that the Gemara is
referring to a Behemah? Perhaps the Gemara is referring to an "*Ayal*
ha'Bar" and not to an "*Ayil* ha'Bar"!
ANSWER: REBBI AKIVA EIGER answers that it is obvious that there are two
animals, an Ayil, which is a Behemah, and an Ayal, which is a Chayah. An
Ayil is a ram (an adult, male sheep), and an Ayal is a deer. Tosfos must
have had a tradition that the "Ayil ha'Bar" discussed in the Gemara is an
"*Ayil* ha'Bar" and not "Ayal ha'Bar." (See RAN in Nedarim (35a, DH Deika),
who says that there are times when we know through a tradition how to read a
certain word.)
(Rebbi Akiva Eiger adds that RASHI (DH Ayil ha'Bar) also seems to agree with
this, because he explains that this animal is the "male Ayil that grows in
the forest." An Ayil is specifically a male animal (as is expressed by the
Aramaic translation, "Dichra"; see Targum Onkelus to Bereishis 22:13).)
Accordingly, Tosfos is asking that the "Ayil ha'Bar" is a Chayah even though
it is called "Ayil," which is a Behemah. Therefore, a "Shor ha'Bar" is not
necessarily a Behemah merely because it is called a "Shor." (See also Rebbi
Akiva Eiger to SHULCHAN ARUCH OC 586, TAZ #1). (D. Bloom)
80b
4) "MECHUSAR ZEMAN" AS A "LAV SHEBI'CHELALOS"
QUESTION: The Gemara asks that whenever one transgresses the prohibition of
slaughtering a mother animal with its offspring (of Kodshim) on one day, he
should also be punished with Malkus for transgressing the prohibition of
slaughtering a Korban at the improper time, "Mechusar Zeman."
TOSFOS (v'Lilki) asks that since the prohibition of slaughtering an animal
when it is Mechusar Zeman includes a number of different cases that all fit
into the category of Mechusar Zeman, that prohibition is a "Lav
shebi'Chelalos." A Lav shebi'Chelalos is a single Lav that prohibits many
different acts. When the Torah includes a number of different actions in one
prohibition, none of these actions are subject to a punishment of Malkus
(Pesachim 24a).
How, then, can the Gemara suggest that one should receive Malkus for
slaughtering an animal that is Mechusar Zeman?
ANSWERS:
(a) The RAMBAN (DH v'Lilki) answers that we find a Machlokes (Temurah 7b,
Pesachim 41b) regarding whether or not one receives Malkus for transgressing
a Lav shebi'Chelalos. Even though we rule like the opinion that maintains
that Malkus is not given for a Lav shebi'Chelalos, nevertheless the Gemara
here is asking its question according to the opinion that maintains that
Malkus is given for a Lav shebi'Chelalos.
(b) The ME'IRI (DH ha'Shochet) implies that the prohibition of slaughtering
an animal of Kodshim that is Mechusar Zeman cannot be a Lav shebi'Chelalos,
because the Torah lists specific types of animals when it gives the
prohibition against offering unfavorable Korbanos. The Torah here does not
mention one item which includes all of the others. Rather, it mentions a
number of items separately (which cannot refer to any other item), and thus
when the Torah gives the prohibition it is as if it is written with regard
to each item separately. This is not a "Lav shebi'Chelalos." A "Lav
shebi'Chelalos" is when the verse prohibits one item which includes all of
the items (see Rashi to Makos 18a and Insights there; see also Insights to
Pesachim 41:2).
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