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Menachos, 73

1) THE NATURE OF "MELIKAH"

OPINIONS: The Gemara says that we might have thought that a Kohen may not eat the meat of a Chatas ha'Of, since the bird is killed with Melikah and not with Shechitah, and there is no other situation in which an animal killed with Melikah may be eaten. We learn that the Chatas ha'Of is not considered like any other bird or animal that is killed without Shechitah (which is Asur because of Neveilah) from the verse, "l'Chol Chatasam" (Bamidbar 18:9), which teaches that the Kohanim may eat the meat of all forms of Chatas, including a Chatas ha'Of.

There are two ways to understand the allowance to eat a Chatas ha'Of that was killed with Melikah. One way to understand it is that the Torah permits Neveilah in this situation; the Kohanim are permitted to eat a bird that was killed with Melikah, even though it is considered to be a piece of Neveilah. The second way to understand it is that the Torah is teaching that although Melikah outside the Beis ha'Mikdash makes a bird a Neveilah, Melikah in the Beis ha'Mikdash makes the bird entirely Kosher.

(a) The ASVUN D'ORAISA (#1) presents many proofs that a bird killed with Melikah, even in the Beis ha'Mikdash, has the status of a Neveilah, and the Torah teaches that the Kohanim are permitted to eat such Neveilah. Among his proofs is the Gemara in Yevamos (32b) that discusses the Machlokes between Rebbi Chiya and Bar Kapara regarding whether or not a Zar who eats a bird that was killed in the Beis ha'Mikdash with Melikah transgresses the Isur of Neveilah. Rebbi Chiya maintains that the Zar does transgress the Isur of Neveilah, because Neveilah is forbidden to everyone, and when the Torah permits it inside the Beis ha'Mikdash, it permits it only for Kohanim. This implies that the prohibition of Neveilah remains after Melikah is done. Bar Kapara does not argue with this point. He argues that the Zar does not transgress the Isur of Neveilah, since the meat of the Chatas ha'Of is already prohibited to him because it is Kodesh Kodashim, and the principle of "Ein Isur Chal Al Isur" teaches that once an object is prohibited with one Isur, it cannot become prohibited again with another Isur.

Another proof is from the Gemara in Menachos earlier (45a). The Gemara there quotes the verse, "And all Neveilah and all Tereifah from the birds and from the animals, the Kohanim should not eat" (Yechezkel 44:31). Why does the verse specifically refer to Kohanim, when the Isur of Neveilah applies to everyone? Ravina explains that we might have thought that because the Kohanim are permitted to eat birds that were killed with Melikah, they are also permitted to eat other forms of Neveilah. Therefore, Yechezkel needed to warn the Kohanim that other forms of Neveilah are not permitted. This implies that the bird, after Melikah becomes Neveilah, but it is a permitted form of Neveilah, because if the Melikah turns the bird into an entirely Kosher piece of meat, then there is no situation in which the Kohanim are permitted to eat Neveilah, and we would not have thought that they should be permitted to eat other forms of Neveilah!

This is also the view of the MINCHAS CHINUCH (185:10).

The Asvun d'Oraisa himself admits that the proofs he presents are not irrefutable. Regarding the first proof, one can argue that the bird is considered Neveilah only to Zarim, but not to Kohanim. This is because the Kohanim were given the special Avodah of Melikah which permits the bird and takes it out of the category of Neveilah.

The Gemara in Menachos (45a) is inconclusive, as we see that the Gemara there states that Rebbi Yochanan did not know the explanation of the verse in Yechezkel, implying that he did not agree with the Gemara's interpretation of the verse, and that he might also argue with everything stated by Ravina. However, the Asvun d'Oraisa concludes that the Gemara's conclusion implies that the prohibition of Neveilah still stands.

(b) Others maintain that Melikah is like Shechitah and it removes the status of Neveilah from the bird. This is the opinion of the KOVETZ HE'OROS (38:2). Although the KEHILOS YAKOV (in Chulin #10-11) follows the approach of the Asvun d'Oraisa, he agrees that Melikah in the Beis ha'Mikdash makes the bird entirely permitted according to the opinion in Chulin (27b) that "Ein Shechitah l'Of Min ha'Torah" (there is no necessity to slaughter a bird properly in order to eat it, according to Torah law), and a bird becomes a Neveilah only if it dies on its own or as a result of being hit without cutting or uprooting its Simanim at all (see RASHI in Chulin 27b, DH Ein Shechitah; see also ACHI'EZER #7). (Y. Montrose)

73b

QUESTION: The Gemara teaches that a Nochri may offer a Korban that he pledged to bring as a Neder or a Nedavah. Does this mean that he becomes obligated to bring the Korban that he pledged to bring, or that he merely needs to have the Korban brought on his behalf?

TOSFOS in Avodah Zarah (5b, DH Minayin l'Mechusar Ever #2) says that if a Nochri pledges a Korban that is lacking a limb, and the Nochrim themselves do not permit such an animal to be offered on their altars (and, obviously, it may not be brought in the Beis ha'Mikdash), we tell the Nochri to bring a different, valid animal.

REBBI AKIVA EIGER in GILYON HA'SHAS is perplexed by the words of Tosfos. Why is a Nochri obligated to fulfill his Neder? We do not find that a Nochri is commanded to keep any of the laws of Nedarim. What obligates the Nochri, according to Tosfos, to fulfill his Neder and bring a valid animal?

ANSWERS:

(a) The AVNEI MILU'IM (1:2) answers that it is true that there is no prohibition or commandment that obligates a Nochri to fulfill his word and bring the Korban. However, there is a principle of "Amiraso l'Gavo'ah k'Mesiraso l'Hedyot" -- the act of proclaiming something as Hekdesh accomplishes the same thing as physically handing something over to a private citizen, and it is fully binding. It is this principle that obligates the Nochri to bring another Korban.

(b) The MITZPEH EISAN (5b) answers that we learn from Yakov Avinu that a Ben Noach must fulfill his Nedarim. The Midrash states that Yakov Avinu was punished for being late in fulfilling his Neder to bring Korbanos. This is part of the reason why he had to endure the suffering of Dina with Shechem and his near-war with Esav. We cannot say that this punishment came about due to failure to observe a law in the Torah, which he followed in general even though it was not yet given, because he would not have deserved such profound tribulations for something that he was not absolutely obligated to observe. It must be that the fulfillment of a Neder is an obligation even for Nochrim. This approach is also proposed by the MISHNEH L'MELECH (Hilchos Melachim 10:7). The Mishneh l'Melech adds the examples of Avraham and Yitzchak, who made Avimelech make an oath with them. This shows that Nochrim are also obligated to fulfill their word.

However, according to this opinion, what is the reason a Nochri is obligated to keep his oath? After all, it is not one of the seven Mitzvos of Benei Noach. The MESHECH CHOCHMAH (Shemos 20:7) explains that although we do not find that Nochrim are commanded to keep their oaths, it is an obvious, logical law, a "Mitzvah Sichlis." Even though the violation of an oath does not warrant a punishment (since the Torah mentions no punishment), nevertheless, since, it is a Mitzvah Sichlis a Nochri is punished by Shamayim for violating his oath. This reasoning is also alluded to by the Mishneh l'Melech.

(c) The SEFAS EMES says that, indeed, there is no source to say that Nochrim are obligated to keep their oaths. Accordingly, Rebbi Akiva Eiger's question on Tosfos remains.

(d) The EIZEHU MEKOMAN quotes the TORAS ZERA'IM on Pe'ah (page 22) who says that the verse quoted in the Gemara here teaches a special Halachah that Nochrim must observe their Nedarim that they make with regard to Hekdesh, even though they otherwise have no obligation to fulfill their other oaths. (Y. Montrose)