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Beitzah 26

1) A "BECHOR" THAT FELL INTO A PIT ON YOM TOV

QUESTIONS: In the Mishnah, Rebbi Yehudah states that if a Bechor which had an unexamined Mum on Erev Yom Tov fell into a pit on Yom Tov, the owner may not lift it out of the pit without first having a Mumcheh examine the Mum. If the Mumcheh determines that the Mum is a Mum Kavu'a (permanent blemish), then the owner may lift it out and slaughter it on Yom Tov. If the Mum is not a Mum Kavu'a but a Mum Over (temporary blemish), then the animal must be left there until after Yom Tov.

The Gemara explains that if Rebbi Yehudah's sole intention was to teach that a Mumcheh may examine a Mum on Yom Tov, then he would not have needed to discuss a case of a Bechor that fell into a pit. Rather, Rebbi Yehudah is teaching something additional -- that when a Bechor fell into a pit, it is not permitted to lift it out because of "Tza'ar Ba'alei Chaim" (to prevent the animal from suffering), until it is determined that the Bechor has a Mum Kavu'a.

If so, asks the Gemara, then why does the Mishnah say, "Im Lo, Lo Yishchot" -- "If [it does] not [have a Mum Kavu'a], then he may not slaughter it." It should say instead, "Im Lo, Lo *Ya'aleh*" -- "If not, then he may not *lift it out*." The Gemara answers that the Mishnah is teaching that if one already lifted it out of the pit, and then, on Yom Tov, the Mum became a Mum Kavu'a, it is still prohibited for him to slaughter it. RASHI (DH ka'Mashma Lan) gives two reasons why he may not slaughter the animal. It is either because it is Muktzah (since it did not have a Mum Kavu'a before Yom Tov), or because he is penalized for transgressing the Isur against raising it out of the pit before the Mumcheh examined the Mum.

There are several problems Rashi's explanation.

(a) The first reason why the owner may not slaughter the Bechor, according to Rashi, is that it is Muktzah. We might have thought that it is *not* Muktzah, since it had a Mum Over before Yom Tov, and thus when it gets a Mum Kavu'a on Yom Tov he may slaughter it. Therefore, the Mishnah needs to teach us that it *is* Muktzah.

Why would we have thought that it is not Muktzah? Just because it had a Mum Over before Yom Tov does not mean that the owner had intention to use it. On the contrary, a Mum Over does not permit the owner to use it! It is obvious that it is Muktzah when it gets a Mum Kavu'a on Yom Tov!

(b) Even if there is some reason why we would have thought that it is not Muktzah, why did the Mishnah have to teach us that it is Muktzah in such an odd case, when the owner transgressed the words of the Chachamim and lifted the animal out of the pit? The same Chidush -- that the Bechor is Muktzah -- could have been taught concerning an animal that was still in the pit! Whether or not it is Muktzah has nothing to do with being lifted out of the pit without asking a Mumcheh!

(c) In Rashi's second explanation -- that the owner is penalized for lifting out the animal before showing it to a Mumcheh -- why does the Gemara have to say that it had a Mum Over before Yom Tov began? Even if it had a Mum *Kavu'a* before Yom Tov, he should be penalized for lifting it up before having a Mumcheh examine it! Why does the Mishnah say that "If [it does] not [have a Mum Kavu'a], he may not slaughter it?" Even if it had a Mum Kavu'a, he may not slaughter it, because he lifted it up before the Mucheh examined it!

ANSWERS:

(a) The simple explanation for why we might have thought that the Bechor is not Muktzah if it had a Mum Over before Yom Tov is because it is common for certain types of Mum Over to develop into a Mum Kavu'a. Therefore, the owner knew that his animal's Mum would become a Mum Kavu'a on Yom Tov, and thus he had his mind on it and intended to use it on Yom Tov. (This is similar to the case of an animal that is mortally ill ("Mesukenes") before Shabbos, which a person has in mind to feed to his dogs when it dies on Shabbos, since it is highly likely that it will die. Even Rebbi Yehudah agrees that such an animal is not Muktzah, according to some Rishonim -- see Insights there.) Therefore, the Mishnah teaches that it nevertheless is Muktzah. (This seems to be the intention of the RE'AH here.)

Alternatively, we might have thought that even though it was a Mum Over before Yom Tov, the owner does not know the difference between a Mum Over and a Mum Kavu'a, and thus he thought that it was a Mum Kavu'a before Yom Tov and he had intention to use it on Yom Tov. Consequently, when it indeed becomes a Mum Kavu'a on Yom Tov, one might thing that it is not Muktzah and he may use it. Therefore, the Mishnah teaches that it *is* Muktzah, because we do not follow the owner's intention, but rather we follow the reality of what type of Mum it actually had. (This is similar to the case mentioned on 27b, regarding fruit that one laid out to dry, which he thought was inedible at the time that Yom Tov entered, but in reality was ready to be eaten, in which case we follow the reality, and the fruit is not Muktzah.) (CHIDUSHEI HA'ME'IRI, DH Iy Hachi)

The TZELACH suggests a third answer. We might have thought that although the animal is Muktzah at the onset of Yom Tov, the Mum Kavu'a that the animal developed on Yom Tov removes that status of Muktzah. How does this work? We learned earlier (6a) that according to Shmuel, if a chick is born on Yom Tov it is not Muktzah, because "since it is now permitted to be eaten by being slaughtered, its Isur of Muktzah also becomes permitted." So, too, if a Bechor gets a Mum Kavu'a on Yom Tov, since it becomes permitted to slaughter the animal (and is no longer forbidden as a Bechor), it also becomes permitted from its status of Muktzah. Accordingly, this explanation of Rashi that the Mishnah is teaching that it nevertheless remains Muktzah, is in accordance with the opinion of Rav earlier (6a) who maintains that there is no such principle of the status of Muktzah being removed just because some other Isur was removed from the object. (However, according to this explanation it is not clear why the animal is permitted only if it had a Mum Over from before Yom Tov.)

(b) Regarding the second question, the RE'AH says that the Gemara only asks that the Mishnah should have said "Im Lo, *Lo Ya'aleh*" because it thought that this line in the Mishnah is just contrasting the first line and does not have its own Chidush (and as a contrast to the first line, it should use a parallel phraseology). Once the Gemara answers that there is another Chidush being taught by this line of the Mishnah (that is, that it is Muktzah, and we should not think that it is not Muktzah since it had a Mum Over before Yom Tov), it is no longer bothered by the lack of parallelism in the wording of the Mishnah, since this second Chidush is that it is Muktzah and therefore may not be slaughtered; it has nothing to do with the Halachah taught in the first part of the Mishnah. The Mishnah says "Im Lo, *Lo Yischot" in order to teach that aside from the prohibition of lifting up the animal before the Mumcheh declared it to have a Mum Kavu'a, there is a second prohibition -- that of Muktzah (when it had a Mum Over prior to Yom Tov). Therefore, when the Gemara says that "he already took the animal out of the pit," it just means that the animal cannot be slaughtered *regardless* of whether or not he has to remove the animal from the pit without asking a Mumcheh first.

In fact, the CHIDUSHEI ME'IRI goes so far as to say that the Gemara rescinds what it said before, and no longer holds that the Mishnah is discussing a case where the owner transgressed and lifted up the animal from the pit. Now that the phrase "Lo Yishchot" teaches a separate Chidush, there is no need to say that it is referring to a case where he improperly lifted it out (and even if the Mumcheh *went down into the pit* and found that the Mum Over of yesterday turned into a Mum Kavu'a today, it may not be slaughtered because of the problem of Muktzah).

(c) As far as why the Gemara had to say that the Bechor had a Mum Over before Yom Tov, when the penalty should apply just as well when it had a Mum Kavu'a before Yom Tov, perhaps the answer is as follows. According to Rashi, the reason why Rebbi Shimon prohibits a Mumcheh from examining a Mum on Yom Tov is because it is akin to passing a judgment (Din) on Yom Tov. In contrast, one may show an animal to a Chacham to determine whether it is a Treifah or not, because that is not passing judgment, but rather a "Giluy Milsa," merely clarifying what exists. It is not a Halachic ruling. Rebbi Yehudah, though, who permits examining the Mum of a Bechor on Yom Tov, holds that it, too, is only a Giluy Milsa to clarify whether the animal has a Mum Kavu'a or not, and the Mumcheh is not issuing a Halachic judgment per se, as the Gemara says on 27a.

Therefore, according to Rebbi Yehudah, even if the owner does not have a Mumcheh examine the animal and he lifts it out of the pit, if the Mumcheh later examines it and says that it had a Mum Kavu'a from before Yom Tov, since his words are only a Giluy Milsa as to what always existed, for all practical purposes we can assume *retroactively* that it had a Mum Kavu'a before Yom Tov. As a result, retroactively the owner did nothing wrong by lifting out the animal, because his animal had a Mum Kavu'a. Therefore the owner deserves no penalty. However, if the Mumcheh says that it had a Mum Over before Yom Tov and only on Yom Tov did it become a Mum Kavu'a, then it turns out that the owner did do something wrong by lifting up the animal from the pit, and that is why he is penalized and may not slaughter it, even though it now has a Mum Kavu'a.

Rashi, in his first explanation (that the reason he may not slaughter the animal is because it is Muktzah, and not because of a penalty), perhaps did not like the second reason of a penalty because of this question (question (c)), and felt that the answer we have suggested was unlikely (-- because even if the Mumcheh says that the animal always had a Mum Kavu'a and thus the owner retroactively did nothing wrong by taking the animal out of the pit, the owner should still be penalized since he didn't know that at the time, and he acted improperly). For this reason Rashi preferred to explain that it was Muktzah, even though Rashi knew that the reason of Muktzah would present another serious problem, i.e. how to explain the opinion of Rebbi Yehudah ha'Nasi (cited next in the Gemara), who uses the same words as Rebbi Yehudah in our Mishnah ("Lo Yishchot"), but yet who holds that there is *no Isur of Muktzah*. Rashi (DH v'Im Lav) goes to great lengths to answer that Beraisa even according to the explanation that Rebbi Yehudah's reason for prohibiting the Shechitah of the animal in our Mishnah is because of Muktzah.

26b

QUESTION: The Gemara says that if a person lays out figs and dates to dry on his roof and they are not completely dried when Yom Tov enters, they are considered unfit to eat and are Muktzah. Even if the person says that he has intention to eat them on Yom Tov, such intention does not help, because they are intrinsically unfit to eat at this time. RASHI says that the reason one cannot prepare the fruit if it is not yet edible is because "*those who hold of Muktzah* ["Man d'Is Lei Muktzah"] require Hachanah the day before [Yom Tov]." (Rashi is consistent with his opinion earlier (2b), where he explains that "Hachanah" is an Isur of *Muktzah* and not a separate Isur; his source for this understanding is the She'iltos,#47, that he cites later on the Daf, DH Mutar.)

Why does Rashi say that according to "those who hold of Muktzah" (meaning Rebbi Yehudah), it is necessary to have Hachanah from before Yom Tov? Our Gemara is discussing figs and dates which were put on the roof to dry, and even Rebbi Shimon agrees that figs and dates are Muktzah (as the Gemara says at the end of Beitzah and in Shabbos 45b, and as the She'iltos that Rashi is quoting from makes clear)! ANSWER:

(a) It could be that Rashi does not mean to say, "*those who hold of* the Isur of Muktzah," but rather "the *cases* in which the Isur of Muktzah applies," each Tana according to his own view. (M. Kornfeld)

(b) The Gemara, at this point, is looking for a situation where the figs or dates are Muktzah, yet if their owner specifies that he intends to eat from them they are no longer Muktzah. Rashi may hold that if it is possible to permit the dates by specifying that one intends to eat from them on Shabbos, Rebbi Shimon would not consider them to be Muktzah by default. Anything that *can* be eaten is not Muktzah according to Rebbi Shimon, since a person always considers the possibility that it might be eaten.

This is consistent with what the SHA'AR HA'MELECH, Hil. Yom Tov 2:9, proves from Rashi (4a DH Hi v'Ima, 34a DH Omed Adam), that when figs and dates that are "somewhat edible," ("Ichzi v'Lo Ichzi") -- the case in which one may specify before Shabbos that he will eat from them on Shabbos, according to our Gemara's conclusion -- Rebbi Shimon does not require Hachanah. Only Rebbi Yehudah requires that one specify that he plans on eating from them on Shabbos.