OPINIONS: The Mishnah teaches that when an animal's hind leg was cut
anywhere below the Arkuvah, the animal is Kosher. When the cut was above the
Arkuvah, the animal is a Tereifah.
There are two opinions in the Gemara with regard to which Arkuvah the
Mishnah is discussing. Rav Yehudah says that the Mishnah is discussing the
lower Arkuvah (knee joint), which is below the Tzomes ha'Gidin. Ula says
that the Mishnah is discussing the upper Arkuvah, which is above the Tzomes
ha'Gidin. According to Ula, even if the bone attached to the upper Arkuvah
is severed above the Tzomes ha'Gidin but (below the upper Arkuvah), the
animal is Kosher.
Which opinion does the Halachah follow?
(a) RASHI (DH v'Chi mi'Tasi) rules in accordance with Rav Yehudah. If the
bone is severed from the lower Arkuvah and upward, then the animal is a
Tereifah. Similarly, the removal of the Tzomes ha'Gidin renders the animal a
Tereifah.
The ROSH (4:7) quotes the SEFER HA'TERUMAH who accepts Rashi's opinion and
rules that the Arkuvah mentioned in the Mishnah is the lower Arkuvah, and
such was the custom in Ashkenaz and France.
(b) The ROSH quotes the RIVA who asserts that the Halachah follows the
second, more lenient opinion, as is evident from the conclusion of the
Gemara. The RIVA writes that RABEINU YITZCHAK BEN YEHUDAH permitted an
animal that had a leg that was severed above the Tzomes ha'Gidin but below
the upper Arkuvah. He suggests that the RIF also seems to rule this way,
since the Rif omits the first opinion and mentions only the second opinion.
This is also the view of the RAMBAN. However, the Ramban points out that
this opinion leads to a Halachic anomaly. When the Tzomes ha'Gidin of the
leg of an animal was removed or injured, rendering the animal a Tereifah, it
would be possible to make the animal Kosher again by cutting the leg off at
the bone above the Tzomes ha'Gidin, and below the upper Arkuvah! Indeed, the
Ramban suggests that this means could be used to "fix" an animal from which
the Tzomes ha'Gidin was removed. (The Ramban points out that this procedure
is effective only when it is done while the animal is still alive, before
the Shechitah.) (See the following Insight for a discussion of this
Halachah.)
The Rosh argues with the Ramban's reasoning and maintains that the status of
Tereifah is irreversible. Once an animal becomes a Tereifah, it can no
longer be permitted.
HALACHAH: The SHULCHAN ARUCH (YD 55:1) records both opinions. The REMA
writes that the practice in all of Ashkenaz and Tzarfas is to follow the
stringent opinion. (Z. Wainstein)
QUESTIONS: The Mishnah teaches that when an animal's hind leg was cut
anywhere below the Arkuvah, the animal is Kosher. When the cut was above the
Arkuvah, the animal is a Tereifah.
There are two opinions in the Gemara with regard to which Arkuvah the
Mishnah is discussing. Rav Yehudah says that the Mishnah is discussing the
lower Arkuvah (knee joint), which is below the Tzomes ha'Gidin. Ula says
that the Mishnah is discussing the upper Arkuvah, which is above the Tzomes
ha'Gidin. According to Ula, even if the bone attached to the upper Arkuvah
is severed above the Tzomes ha'Gidin but (below the upper Arkuvah), the
animal is Kosher.
The ROSH (4:7) infers from the words of the RIF, who omits the first opinion
and mentions only the second opinion, that the Rif rules like the second
opinion (see previous Insight). This is also the view of the RAMBAN. The
Ramban points out that this opinion leads to a Halachic anomaly. When the
Tzomes ha'Gidin of the leg of an animal was removed or injured, rendering
the animal a Tereifah, it would be possible to make the animal Kosher again
by cutting the leg off at the bone above the Tzomes ha'Gidin, and below the
upper Arkuvah! Indeed, the Ramban suggests that this means could be used to
"fix" an animal from which the Tzomes ha'Gidin was removed. (The Ramban
points out that this procedure is effective only when it is done while the
animal is still alive, before the Shechitah.)
The Rosh argues with the Ramban's reasoning and maintains that the status of
Tereifah is irreversible. Once an animal becomes a Tereifah, it can no
longer be permitted.
The Ramban's opinion is difficult for a number of reasons.
First, the Gemara earlier (54a) states that when an animal received a fatal
blow in its Gid ha'Nasheh, it is not a Tereifah, because the Chachamim had a
tradition that there is a medication that can be applied to heal the wound.
We see from the Gemara there that a wound that can be healed does *not*
render the animal a Tereifah! How, then, can the removal of the Tzomes
ha'Gidin render the animal a Tereifah if that status can be remedied by
cutting the bone above that area?
Second, there is another difficulty on the Ramban's opinion from the Gemara
in Bava Kama (41a). The Mishnah there teaches that a Shor Tam that kills a
person is put to death, and a Shor Mu'ad that kills a person is not only put
to death, but the owner must pay "Kofer" to the family of the victim. The
Gemara asks how can a Shor Tam that kills a person ever become a Mu'ad? If
the Shor is put to death the first time that it kills a person, then it will
never be able to kill a person three times!
According to the Ramban, there should be a simple answer to the Gemara's
question there. A Shor Tam that is a Tereifah is not put to death for
killing a person. The Gemara in Sanhedrin (78a) teaches a principle that in
a case in which a person is exempt from Misah for killing another person, an
animal is also exempt from Misah for killing. Since a person who is a
Tereifah is not put to death, so, too, an animal that is a Tereifah is not
put to death. Accordingly, when a Shor Tam was a Tereifah due to the removal
of its Tzomes ha'Gidin, it is not put to death. If, after killing two
people, its bone above the Tzomes ha'Gidin is cut, the animal becomes Kosher
and when it then kills a third person, it is a Shor Mu'ad that must be put
to death! Why, according to the Ramban, does the Gemara in Bava Kama not
suggest this answer? (TESHUVAS AMUDEI OR #48)
ANSWER: The ACHIEZER (1:12:5, DH uv'Emes) answers that it must be that the
Ramban maintains that there is a difference between a wound that can be
healed through medication and a wound that can be altered from the status of
a Tereifah through another act. REBBI SHLOMO HEIMANN zt'l explains that an
animal that cannot survive for twelve months in its present state is
considered a Tereifah. An animal that can survive for twelve months once its
leg is amputated is considered a different animal. In contrast, the animal
that lives for twelve months because of medication is considered the same
animal that was sick. When medication enables an animal to survive for
twelve months, this shows retroactively that the animal was not a Tereifah.
However, this logic applies only to cases of Tereifos in animals, but not to
Tereifos in humans. Tereifos in animals are derived from the Halachah
l'Moshe mi'Sinai, while Tereifos in humans (such as the law that a person
who murdered a Tereifah person, or a Tereifah person who murdered a healthy
person, is not punished with the death penalty) is not a Halachah l'Moshe
mi'Sinai but rather it is based on the logic that when a "Gavra Katila" (a
dead person) kills or is killed, the perpetrator is exempt from the death
penalty. Therefore, a human whose status as a Tereifah could be altered by
amputating the leg above the Tzomes ha'Gidin is not considered a "Gavra
Katila" and is not a Tereifah. If he murders another person, he would be
liable. Accordingly, when a bull with the same condition killed, the bull is
not considered a Tereifah with regard to being exempt from the death penalty
(even though such an animal is forbidden to be eaten before the amputation).
(D. Bloom)