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Chulin, 82

1) THE "TUM'AH" OF A "PARAH ADUMAH"

QUESTION: The Gemara (end of 81b) cites a Beraisa in which Rebbi Shimon says that a Parah Adumah can become Tamei with Tum'as Ochlin once it is slaughtered. It becomes Tamei with Tum'as Ochlin because it is considered a food, since, if a better Parah is found, the first one may be redeemed and eaten. RASHI (DH v'Amar) asks why Rebbi Shimon must say that a Parah Adumah can become Tamei because it is considered a food. Even if it is not considered a food, it can become Tamei (and be Metamei other things), because the Torah (Bamidbar 19:7-8) explicitly states that every Parah Adumah makes a person and Kelim become Tamei!

Rashi's question is difficult to understand. The Mishnah in Parah (8:3) states clearly that a Parah Adumah is only Metamei the Kohen who burns it or the Kohanim who are involved in the burning process. Those who merely *touch* it do not become Tamei! Therefore, Rebbi Shimon's reason is still necessary! What is Rashi's question? (TOSFOS 81b, DH Parah)

ANSWER: TOSFOS explains that Rashi's intention is not to say that the Torah teaches that a Parah Adumah is Metamei people who touch it. Rather, Rashi means that since the Parah Adumah makes people who *burn* it become Tamei, it should also make *foods* that touch it become Tamei even before it is burned (that is, it should be considered a Rishon l'Tum'ah, which can be Metamei foods, but not people, through contact), based on the rule that "anything which, in the future, will make people Tamei, makes food Tamei now" (Chulin 121a).

QUESTION: The Mishnah (82a) teaches that when one person purchases a mother animal from a seller, and another person purchases the animal's child from the seller, the one who bought the first animal has the right to slaughter it first, and the buyer of the second animal must wait for another day to slaughter his animal.

The Gemara quotes a Tosefta that states that if the second buyer preempted the first buyer and slaughtered his animal first, "he is Zariz (zealous) and he gains; he is Zariz because he did not transgress an Isur, and he gains because he gets to eat the flesh of his animal."

How can the second buyer be called "Zariz" if he wrongly slaughtered his animal first? The first buyer had the right to slaughter his animal first, and by preempting him, the second buyer has caused the first buyer a loss, since he now must wait until a different day in order to slaughter his animal (the second buyer is not liable, though, since the damage he caused was indirect).

ANSWER: The ROSH quotes a Tosefta that adds that the first buyer has precedence over the second buyer only when they bought the two animals from the same seller. When each buyer bought his animal from a different seller, neither one has any precedence over the other, and whoever slaughters his animal first gains, and the other one must wait until a different day. This is what the Tosefta quoted by the Gemara here means; it is referring to a case in which the two buyers bought their animals from different sellers.

The reason for this difference is explained by the TUR (YD 16). When the two buyers bought the animals from the same seller, it is assumed that the seller sold to the first buyer the right to slaughter his animal first (since the seller himself had that right). When the buyers bought the animals from two different sellers, neither seller had the right to sell the first buyer the right to slaughter his animal first. Whoever slaughters his animal first is called "Zariz" because he thereby avoids the possibility of transgressing the Isur of "Oso v'Es Beno."

The TAZ (YD 16:9) points out that when the buyers bought the animals from the same seller, if the second buyer slaughters his animal first (without the consent of the first buyer), then he indeed is considered a sinner. (Z. Wainstein)

OPINIONS: The Mishnah states that one who slaughters a mother animal and her two calves on the same day receives two sets of Malkus, because he performed two forbidden acts of Shechitah. One who slaughters the two children first and afterwards the mother, however, receives only one set of Malkus, because he performed only one forbidden action.

The Mishnah continues and says that one who slaughters an animal (the grandmother), and then slaughters its grandchild, and then slaughters its child (the mother) on the same day receives only one set of Malkus, according to the Chachamim. RASHI (DH Sofeg) explains that this is because he transgressed only one prohibition (that of "Oso v'Es Beno") with only one Hasra'ah, and through only one action.

Sumchus argues and maintains that he is punished with two sets of Malkus. The Gemara (82b) explains that Sumchus maintains that one who eats two k'Zeisim of Chelev in one moment of forgetfulness must bring two Korbanos. Rashi there (DH b'He'elem) explains that just as one must bring two Korbanos even though both k'Zeisim were eaten in the same moment of forgetfulness, so, too, one receives two sets of Malkus, according to Sumchus, even though there was only one Hasra'ah and only one Isur. Since the Isur was transgressed two times (the grandmother and the mother were slaughtered on the same day, and the mother and the child were slaughtered on the same day), the person receives two sets of Malkus, even though there was only one Hasra'ah and one act of Shechitah.

Does Sumchus argue with the Chachamim only in the second case of the Mishnah, in which one slaughters three generations of animals on one day, or does he also argue in the first case of the Mishnah, in which one slaughters two children and then their mother on the same day?

(a) RASHI (82b, DH d'Af Al Gav) and TOSFOS (82a, DH Sumchus) write that Sumchus also argues in the first case of the Mishnah. A person who slaughtered the two children and afterwards the mother receives two sets of Malkus, because even though he did only one action of Shechitah, he transgressed two Isurim of "Oso v'Es Beno" with that action. Rashi cites the Tosefta that states explicitly that one who slaughters five children and afterwards their mother on the same day is punished with five sets of Malkus according to Sumchus.

(b) The RAN (28a of the pages of the Rif, DH Masnisin), however, states that Sumchus agrees with the Chachamim in the first case of the Mishnah. In that case, not only is there only one action, but there is also only one title ("Shem") of Isur being performed -- the two Isurim have the same title -- "Beno v'Oso," slaughtering a child and afterward slaughtering the mother on the same day. In contrast, in the second case there are two "Shemos" of Isur being performed -- slaughtering the grandmother and the mother is "Oso v'Es Beno," while slaughtering the child and its mother is "Beno v'Oso."

How, though, does the Ran refute Rashi's proof from the Tosefta that states explicitly that one receives multiple sets of Malkus even in the first case according to Sumchus?

The CHIDUSHEI CHASAM SOFER answers this question based on the words of the RAMBAN in MILCHAMOS HASHEM (27b of the pages of the Rif). The Ramban writes that the reason why the Torah prohibits slaughtering a mother and child on the same day is in order to prevent us from acting in a cruel manner. The Ramban states the same principle in his commentary on the Torah (Devarim 22:6), but he mentions there that there is a dispute among Tana'im whether we know the reason for this Mitzvah or whether it is a Gezeiras ha'Kasuv whose reason has not been revealed to us.

The Chasam Sofer asserts that if the reason for the Isur of "Oso v'Es Beno" is in order that we not be cruel, then it makes no difference whether the mother is slaughtered before the child, or whether the child is slaughtered first; the level of cruelty is the same. In addition, one who slaughters two children and then their mother is acting with even more cruelty.

The Ran maintains that the Mishnah and the Tosefta argue whether we know the reason for this Isur or whether it is a Gezeiras ha'Kasuv. The Tosefta maintains that the reason for the Mitzvah is to avoid being cruel. Therefore, one who slaughters five children and then their mother on the same day has done five acts of cruelty and, according to Sumchus, receives five punishments. The Mishnah, though, maintains that we do not know the reason for the Isur, and, therefore, even Sumchus agrees that when one slaughters two children and then their mother on one day, one receives only one set of Malkus.

The Ran maintains that the Halachah does not follow the view of the Tosefta, and therefore he explains that in our Mishnah, Sumchus argues only in the second case, where there are two different transgressions being committed. (D. Bloom)

82b

OPINIONS: The Gemara gives two explanations for the Beraisa that says, "One who sows Kil'ayim, Kil'ayim, receives Malkus." The first explanation is that the Beraisa is referring to a case in which a person plants two types of Kil'ayim at one time, with one Hasra'ah, and it is expressing the view of Sumchus, who maintains that one receives two sets of Malkus for each transgression. The second explanation is that the Beraisa is referring to a case in which a person plants two types of Kil'ayim at two different times, with two Hasra'os, and it is expressing the view of the Rabanan, who are teaching that there are multiple forms of Kil'ayim for which one can be Chayav (in contrast to the view of Rebbi Yoshiyah, who maintains that there is only one form of Kil'ayim).

How would Sumchus and the Rabanan rule in a case in which a person plants two type of Kil'ayim at two different times, but with only one Hasra'ah? How many sets of Malkus would he receive?

(a) TOSFOS (DH Ela) asserts that the number of sets of Malkus depends only on the number of Hasra'os that are given. If there is only one Hasra'ah, then the Rabanan maintain that only one set of Malkus is given, regardless of how many times the sin was repeated (as we see from the Mishnah that discusses a Nazir who drank multiple cups of wine).

(b) RASHI (DH b'Vas Achas) seems to be emphasizing that "b'Vas Achas" means that the two acts were done exactly at the same time, and for this reason Sumchus maintains that he receives a second set of Malkus even when there was only one Hasra'ah. This implies that if the two acts were done separately, then Sumchus would agree that one does *not* receive a second set of Malkus (unless there was a second Hasra'ah), since the first Hasra'ah does not apply to the second act. (M. Kornfeld)

QUESTION: The Gemara cites a Beraisa that states that if a person is a "Safek Ben Tish'ah l'Rishon, Safek Ben Shiv'ah l'Sheni" (i.e. he is not sure which of two men is his real father) and that person hits both possible fathers at once, he is Chayav. If he hits one after the other, then whether or not he is Chayav depends on whether or not "Hasra'as Safek" is considered a proper Hasra'ah.

In what way does the child hit both possible fathers at the same moment? RASHI in Yevamos (101a, DH b'Vas Achas) explains that he takes a long stick, swings it, and hits both men at the same time.

RASHI here (DH b'Vas Achas) suggests a more basic explanation of how the son hits both possible fathers at the same time. He simultaneously hits one of the men with one hand, and the other man with his other hand.

RASHI in Makos (16a, DH b'Vas Achas) offers an even simpler explanation. The son hits both possible fathers in the normal manner (with his dominant hand, one after the other), but he does so "Toch Kedei Dibur" -- within a very short amount of time, so that the Hasra'ah applies to both acts of hitting.

Why does Rashi give a different explanation in each place for how a person is able to hit two men at the same time ("b'Vas Achas")? What advantage does each explanation have over the other? (See NEHOR SHRAGA to Yevamos 101a and Insights there.)

ANSWER: Apparently, Rashi had a different problem with each explanation, and in the different Sugyos he chose to explain "b'Vas Achas" in different ways in order to avoid the problems with the other two ways of explaining it. Since each explanation had its own advantage, each time Rashi chose the explanation that he felt was the best explanation at that time. The advantages of each approach may be as follows:

(a) The simplest explanation is that the son hit both men "Toch Kedei Dibur." Rashi's basis for explaining that the two acts were done "Toch Kedei Dibur" is because we find that the Hasra'ah does not have to come immediately before the act of the Aveirah, but it may come a few seconds before the Aveirah, as long as it is within "Toch Kedei Dibur" of the Aveirah.

Rashi here in Chulin and in Yevamos rejects that explanation, because he understands that the Hasra'ah only works "Toch Kedei Dibur" when a single act was done within a few seconds of the Hasra'ah. To be Chayav for a second act, a second Hasra'ah is necessary, even though that second act was also done "Toch Kedei Dibur" of the first Hasra'ah. That is why Rashi here and in Yevamos does not explain that "b'Vas Achas" means that both beatings occurred within "Toch Kedei Dibur."

(A source for this understanding may be found in Makos 20b, where the Gemara writes that if a person pulls out his hair in mourning (Kore'ach Korchah) five times one after the other with only a single Hasra'ah before them, he receives only one set of Malkus. The Gemara implies that even if all of his acts were done "Toch Kedei Dibur," only one set of Malkus is administered. See Tosfos there, and Insights to Nazir 38:2.)

(b) The reason Rashi in Yevamos says that "b'Vas Achas" means that the son uses one stick to hit both men at the same time, and he does not say that the son uses both of his hands to hit both men at the same time, is because using both of his hands would be considered to be two different actions. Even if those two actions happened simultaneously, the Hasra'ah would only apply only to one action. To make him Chayav for two actions, two Hasra'os are necessary.

Alternatively, Rashi holds "Iy Efshar l'Tzamtzem" -- it is not possible for two events to occur at exactly the same time. When the son hit the two men with his two hands, one action had to precede the other, and thus he would not be Chayav for hitting them "b'Vas Achas." When he hits them both with a single swing of a stick, though, it is one action, and for that the Hasra'ah is able to make him Chayav for the two different results of the single action.

(c) Rashi here in Chulin says that the son hit the two men with his two hands. Why does Rashi not say that he hit them both with one stick? Rashi here chooses to give the simpler case of hitting two men with two different hands, rather than hitting two men with one stick.

Rashi here apparently maintains that there is no way to explain the case according to those who say "Iy Efshar l'Tzamtzem." If one cannot be Metzamtzem, then even hitting two people with a single stick will not cause the Hasra'ah to apply to both hits, since one of the two people inevitably was hit before the other. The fact that the two hits came from a single swing is not sufficient reason for the Hasra'ah to apply to both hits, according to Rashi. The fact that they were brought about by the same *swing* does not make them into a single action; two hits are always called two actions. Since the only way to explain the Beraisa that discusses hitting both men at the same time is if the hits occur at the same moment, this Beraisa must hold that it is Efshar l'Tzamtzem.

(The mechanics behind the difference in opinion expressed in Rashi in Chulin and in Yevamos might involve whether Hasra'ah means warning a person not to do a particular *action* (Rashi in Yevamos), or not to do a particular *Aveirah* (Rashi in Chulin). According to the former, a single Hasra'ah can apply to two Aveiros that stem from a single action, while according to the latter it cannot.)