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Chulin, 81

1) THE "LAV HA'NITAK L'ASEH" OF "MECHUSAR ZEMAN"

QUESTIONS: Rebbi Zeira says that the reason why one does not receive Malkus for slaughtering an animal as a Korban in an improper time (such as on the same day as its mother was slaughtered) is because the prohibition of Mechusar Zeman is a "Lav ha'Nitak l'Aseh." RASHI (DH Nitko) explains that the act of slaughtering the animal is prohibited by the verse "Lo Yeratzeh" (Vayikra 22:23), which applies to offering any form of invalid Korban. There is no punishment of Malkus for transgressing this Isur because the Torah gives a Mitzvas Aseh to bring the Korban at a time that it is permitted to be brought, as it says, "... from the eighth day and onward it will be acceptable as a Korban" (Vayikra 22:27).

(a) How does this Mitzvas Aseh make the Isur become a Lav ha'Nitak l'Aseh? The only way to bring the animal as a Korban in the proper time is if was *not* brought at the wrong time! If one transgressed the Isur of offering the Korban at the wrong time, then it is not possible to correct the transgression by bringing the Korban at the proper time! (TOSFOS 80b, DH Hanach)

(b) According to Rashi's explanation, what does the Gemara mean when it adds that one does not receive Malkus for offering a Korban that is Mechusar Zeman because that prohibition is a "Lav ha'Ba Michlal Aseh," a negative prohibition that is expressed as a Mitzvas Aseh (the Mitzvas Aseh to bring a Korban from the eighth day and onward implies a negative commandment not to bring it before that time)? There is an explicit Lav that prohibits bringing a Korban at an improper time -- "Lo Yeratzeh"!

ANSWERS:

(a) TOSFOS (80b, DH Hanach) explains that when the Gemara says that the Torah gave an Aseh for the prohibition of Mechusar Zeman, it is not referring to the normal concept of "Lav ha'Nitak l'Aseh." Rather, the reason why there is no Malkus for transgressing the Isur of Mechusar Zeman is because the Torah lessened the severity of the Isur by making it a Mitzvas Aseh. This is what the Gemara means when it says, "Nitko l'Aseh"; it does not mean that it is a Lav ha'Nitak l'Aseh.

(In support of Rashi's explanation, however, Tosfos demonstrates that there are a number of places in the Gemara where a Lav is considered to be a Lav ha'Nitak l'Aseh even though its Mitzvas Aseh does not correct the effects of the transgression.)

(b) It appears that Rashi did not have the words, "Lav ha'Ba Michlal Aseh, Aseh," in his text of the Gemara. (M. Kornfeld)

QUESTION: Rebbi Aftoriki posed a contradiction. The verse (Vayikra 22:27) first says, "v'Hayah Shivas Yamim Tachas Imo" -- "[When an ox or sheep or goat is born,] it shall remain with its mother for seven days," implying that implying that on the night before its eighth day it is fit to be a Korban. The verse then says, "umi'Yom ha'Shemini va'Hal'ah Yeratzeh" -- "and from the eighth day and onward it will be acceptable," implying that the night before its eighth day it is not fit!

Rebbi Aftoriki answered that the night before the eighth day, the animal is fit to be Hukdash (designated as a Korban), but it is not fit to be offered on the Mizbe'ach until the eighth day.

Why do we need the verse, "umi'Yom ha'Shemini va'Hal'ah," to teach that a Korban may not be brought on the night before the eighth day from the time of its birth? There is a general principle that a Korban may be brought only during the daytime, as derived from the verse, "b'Yom Tzavoso" (Vayikra 7:38; Zevachim 98a)! (TOSFOS DH Yom)

ANSWERS:

(a) In his first answer, TOSFOS says that if we only had the principle derived from "b'Yom Tzavoso," then we might have thought that if the seven-day-old Korban animal was wrongly placed on the Mizbe'ach, b'Di'eved we would not take it down. The verse of "umi'Yom ha'Shemini" teaches that even if the animal was already placed on the Mizbe'ach, we still must remove it.

(b) In his second answer, Tosfos explains that on a Bamah (a public or private Mizbe'ach used before the Beis ha'Mikdash was built), it was permitted to bring Korbanos at night. However, the Isur of Mechusar Zeman derived from "umi'Yom ha'Shemini" prohibits bringing an animal on the night before its eighth day even on a Bamah. (Z. Wainstein)

QUESTION: Rava says in the name of Rav Hamnuna that there is no punishment of Malkus for transgressing the Isur of "Oso v'Es Beno" with animals of Kodshim, because the Hasra'ah that is given is only 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. It is a Hasra'as Safek because perhaps the Zerikas ha'Dam will not be performed, in which case the Shechitah will have been ineffective, and, according to Rebbi Shimon, a "Shechitah she'Einah Re'uyah" is not a valid Shechitah.

RASHI (end of DH Hasra'as Safek) questions why the Gemara needs to give the reason of Hasra'as Safek in order to explain why there is no Malkus for the Isur of "Oso v'Es Beno" with animals of Kodshim. He explains that the prohibition of "Oso v'Es Beno," slaughtering a mother and child animal on the same day, cannot apply to Kodshim because of a logical reason, and not merely because of the problem of Hasra'as Safek. The Shechitah of a Korban on the same day as its mother would invalidate it as a Korban ("Lo Yeratzeh") since the prohibition of "Oso v'Es Beno" was transgressed during its Shechitah, but since the Shechitah did not permit the Korban to be offered, it is a "Shechitah she'Einah Re'uyah" which is not considered a valid Shechitah, and thus "Oso v'Es Beno" was *not* transgressed!

Rashi says, therefore, that the Girsa of the Gemara does not include the reason of Hasra'as Safek.

There are a number of difficulties with Rashi's explanation.

(a) Rashi earlier (80b, DH Kama, and 81a, DH l'Rebbi Shimon) writes that Rebbi Shimon maintains that one is punished for Shechitas Kodshim ba'Chutz, even though the Shechitah is "Einah Re'uyah" and does not permit the Korban to be offered. This is because Torah explicitly prescribes Malkus for such an act. Why does the same logic not apply to the Isur of "Oso v'Es Beno"? Here, too, the Torah explicitly applies its prohibition to Kodshim (Chulin 78a), even though the Shechitah will not make the animal fit for the Mizbe'ach! (TOSFOS 80b, DH Shechitah)

(b) If the Shechitah of a Korban that does not permit the Korban to be offered is a "Shechitah she'Einah Re'uyah," then not only should there be no Malkus for slaughtering a mother and its child on one day, but there should be no *Isur* either! The Gemara, however, proves only that Rebbi Shimon exempts Kodshim from Malkus, but he agrees that there still is a prohibition of "Oso v'Es Beno"!

(c) Rashi himself, in his following comments (DH v'Azda, and DH Patur), explains the Gemara based on the Girsa of our texts, which includes the reason of Hasra'as Safek! If Rashi maintains that this reason is incorrect and should be omitted from the text of the Gemara, then why does he mention it in his comments later?

ANSWERS:

(a) TOSFOS (80b, DH Shechitah) rejects Rashi's reasoning because of this question and asserts that the reason why Malkus is not given for transgressing "Oso v'Es Beno" with animals of Kodshim is because of the problem of Hasra'as Safek, as the Gemara says.

Even though the Torah explicitly applies the Pesul of "Oso v'Es Beno" to Kodshim, this does not necessarily prove that the Torah means that Malkus should be given to one who slaughters a mother and child animal of Kodshim on the same day. Rather, the verse may be teaching us simply that the Korban is disqualified if slaughtered on the same day as its mother, but not that the person who slaughters them has transgressed a prohibition. (In contrast, in the case of Shechitas Kodshim ba'Chutz, no verse is needed to teach us that a Korban slaughtered outside the Azarah is disqualified, since it obviously is disqualified because of the Pesul of "Yotzei.")

(b) Perhaps there is no prohibition to slaughter a mother and child animal of Kodshim on the same day, as mentioned above. The Torah is teaching only that the animals become disqualified as Korbanos when they are slaughtered on the same day.

(c) It appears that Rashi retracted his opinion in a later version of his commentary, and decided that Hasra'as Safek indeed is the reason why no punishment is given for "Oso v'Es Beno" with animals of Kodshim. Indeed, we find that the TOSFOS HA'ROSH (80b, DH Shechitas) quotes a lengthy explanation that Rashi gives for the Gemara there (80b), an explanation to which Tosfos there also refers, while in our text of Rashi the entire explanation is missing. It is apparent that an earlier version and a later version of Rashi's commentary were inserted together here into the text of Rashi. (See Insights to Bava Kama, end of 18:1, and Insights to Eruvin 81:2.) (M. Kornfeld)

81b

QUESTION: The Mishnah lists various types of Shechitos that are ineffective ("Einah Re'uyah"), and which are subject to the Machlokes between Rebbi Shimon and the Chachamim. However, the Mishnah divides them into three groups: "ha'Shochet v'Nimtza Tereifah," "ha'Shochet l'Avodah Zarah," and "ha'Shochet Paras Chatas...."

Why does the Mishnah not list all of these forms of Shechitah in one list and introduce them with one word of "ha'Shochet"? Why does it need to separate them by writing the word "ha'Shochet" three times?

ANSWER: It is the style of the Mishnah to teach us laws in a pattern of "Lo Zu Af Zu," mentioning the more obvious cases first and then the less obvious cases. Here, too, the Mishnah is following this pattern, and it alludes to the different degrees of Chidush of each case by separating them with the word "ha'Shochet."

The Mishnah first teaches that the Chachamim consider the Shechitah of a Tereifah a valid Shechitah with regard to the Isur of "Oso v'Es Beno." This is more obvious, since the Shechitah actually is effective with regard to preventing the corpse from being Tamei as a Neveilah.

The Mishnah then adds that a Shechitah for Avodah Zarah is also a valid Shechitah with regard to "Oso v'Es Beno," according to the Chachamim, even though such Shechitah makes the animal Asur b'Hana'ah.

Finally, the Mishnah adds that even in cases in which the animal was *already* Asur b'Hana'ah before the Shechitah, and the Shechitah accomplishes absolutely nothing other than the death of the animal, the Shochet nevertheless transgresses the prohibition of "Oso v'Es Beno."

(This approach also answers the question of TOSFOS (82a, DH Eglah), who asks why the Gemara does not propose that the Eglah mentioned in the Mishnah was a type of Eglah that was permitted to be eaten until its Shechitah or Arifah.) (M. Kornfeld)

QUESTION: The Mishnah teaches that, according to the Chachamim, slaughtering an animal for the sake of Avodah Zarah is considered a valid Shechitah with regard to the prohibition of "Oso v'Es Beno." Reish Lakish explains that the Shochet is punished with Malkus for transgressing "Oso v'Es Beno" only when he slaughtered the first animal for Avodah Zarah, and he slaughtered the second animal for his own personal use. If he slaughtered the second animal for Avodah Zarah, then he is not punished with Malkus, because he receives the more severe punishment of Misah for his act of serving Avodah Zarah, and we do not administer two corporal punishments ("Kam Lei bid'Rabah Minei").

RASHI (DH Ela) explains that when the Shochet slaughtered the first animal for Avodah Zarah, the Shochet is judged first for transgressing "Oso v'Es Beno" and is given Malkus, and only afterwards is he judged for Avodah Zarah and given Misah, even though the act of Shechitah for Avodah Zarah was done first. This implies that if he would be judged for Avodah Zarah first, then he could no longer be punished with Malkus for "Oso v'Es Beno." Why, though, should he not receive Malkus? The transgressions were done at two different times, and thus "Kam Lei bid'Rabah Minei" does not apply.

ANSWERS:

(a) After the Shochet is found guilty of slaughtering an animal for Avodah Zarah, he is considered a "Gavra Ketila" (see Makos 5a), a person who is already considered dead, and any testimony against him in any other case would not be accepted, because it would be considered Edus she'Iy Atah Yachol l'Hazimah, testimony of witnesses who cannot be made into Edim Zomemim (since the person they tried to have punished is already considered dead).

(b) When a death sentence is passed, that verdict includes the punishment of Malkus as well (see Makos 13b, "Makos bi'Mekom Misah Omedes"). Therefore, we no longer administer a separate set of Malkus for other sins that he committed.

(c) The verdict of a person found to be Chayav Misah must be administered without delay (see TOSFOS 2a, DH Kol) in order not to cause him undue torment. Therefore, we cannot judge him for other sins before carrying out the verdict of Misah. (Z. Wainstein)

QUESTION: Rebbi Yochanan says that it is possible for a person to receive Malkus for transgressing the Isur of "Oso v'Es Beno" even when he slaughters the first animal for his own needs and the second animal for Avodah Zarah. One would receive Malkus when he received Hasra'ah, before slaughtering the second animal, for "Oso v'Es Beno," but he did not receive Hasra'ah for Avodah Zarah. In such a case, he is not Chayav Misah for the sin of Avodah Zarah, since he did not receive Hasra'ah for that sin, and thus "Kam Lei bid'Rabah Minei" does not apply to exempt him from Malkus.

How, though, is it possible that he is Chayav for "Oso v'Es Beno" when he slaughters the second animal? When he slaughters it for Avodah Zarah, he becomes a Mumar (apostate) for Avodah Zarah, and the Shechitah of Mumar is not valid! His Shechitah is considered merely an act of Nechirah (killing an animal without Shechitah). Since he did not perform a valid Shechitah on the second animal, he did not transgress the Isur of slaughtering, with Shechitah, a mother animal and its offspring on one day!

ANSWERS:

(a) TOSFOS earlier (14a, DH ha'Shochet) asks a similar question on the Mishnah there. The Mishnah states that Shechitah performed on Shabbos is a valid Shechitah, even though the Shochet desecrated Shabbos by performing the Melachah of Shechitah. The Gemara (15a) says that the Shechitah is valid even if the Shochet desecrated Shabbos intentionally (b'Mezid) by slaughtering the animal. How, though, can such a Shechitah be valid? The Shochet, who slaughtered the animal intentionally on Shabbos, is a "Mumar l'Chalel Shabbos," and the Shechitah of such a Mumar is invalid (see Insights to Chulin 14:1)!

Tosfos there answers that a person does not become a Mumar by slaughtering one time on Shabbos. Only when he slaughters two times on Shabbos is he considered a Mumar.

The CHIDUSHEI HA'RAN (14a) writes that the Gemara here supports the assertion of Tosfos. When the Shochet slaughters one animal for Avodah Zarah, he is not yet considered a Mumar for Avodah Zarah. Only when he slaughters a second animal for Avodah Zarah is he considered a Mumar. Therefore, since this was the first animal that he slaughtered for Avodah Zarah, his Shechitah is valid and he is Chayav for "Oso v'Es Beno."

(b) However, the Ran writes that it is possible to refute this proof for the answer of Tosfos. Perhaps the first Shechitah for Avodah Zarah *is* considered a Shechitah of a Mumar, and it makes the animal forbidden to be eaten. Nevertheless, it is a valid Shechitah with regard to preventing the animal from becoming a Neveilah. This is because the Mumar is not actually a Nochri; if he marries a Jewish woman the Kidushin takes effect. Since his Shechitah is a Shechitah performed by a Jew, it is effective in preventing the animal from becoming a Neveilah. Therefore, even though the Shochet becomes a Mumar through his first Shechitah for Avodah Zarah, nevertheless it is still considered a valid Shechitah with regard to "Oso v'Es Beno," because the Shechitah is effective to be Metaher the animal from Tum'as Neveilah.

(c) REBBI AKIVA EIGER (in Chidushim) answers that according to those who maintain that a person becomes a Mumar at the first transgression, the Gemara must be referring to a case in which the Shochet explicitly declared that he was serving Avodah Zarah only with the end of the act of Shechitah. Consequently, the Shochet became a Mumar only at the end of the Shechitah. By that time, though, the first part of the Shechitah has already made the animal Kosher, and thus the Shochet is Chayav for "Oso v'Es Beno." (See also KETZOS HA'CHOSHEN CM 52:1, DH ub'Ikar.) (D. Bloom)