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Chulin, 80

CHULIN 80 - dedicated by Rabbi Kornfeld's father in memory of his aunt, Malka Gitel bas Reb Yakov Mordechai (Malvina Marmorstein), who took him into her home and raised him like her own child after the Holocaust. Her Yahrzeit is 20 Nisan.


QUESTION: The Gemara says that both the Rabanan and Rebbi Eliezer are unsure whether or not we are concerned for the "seed of the father" in the offspring. They are arguing about whether even a partial Seh is considered a Seh. When the mother is a Tzviyah (doe) and the father is a Tayish (goat), the Rabanan prohibit slaughtering the offspring and its child on the same day, because perhaps we must be concerned for the seed of the father, and thus the animal is a half-goat and is considered a Seh (which is included in the prohibition of "Oso v'Es Beno"). Rebbi Eliezer permits slaughtering the half-goat and its child on the same day, because even if it is a half-goat, a half-goat is not considered a Seh.

RASHI (DH b'Tayish ha'Ba Al ha'Tzviyah) explains that the Rabanan were not sure whether the father's seed makes a difference in its offspring. Therefore, there is a doubt whether the child of a doe and a goat is considered be called a half-goat. Rashi adds that while it is prohibited, out of doubt, to slaughter this animal with its child on the same day, one who transgresses and slaughters them together is not punished with Malkus. Since the status of the parent is in doubt, the person cannot be warned with a proper Hasra'ah, but only with 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.

In fact, Rashi writes in numerous places that if a person commits a Safek Aveirah, he is exempt from Malkus because he lacks Hasra'ah, since his Hasra'ah was a Hasra'as Safek (see Rashi earlier in Chulin 23b, DH Ela d'Rebbi Yehudah and Insights there, and later on 86a, DH she'Eino Sofeg; see also Rashi in Yevamos 99b, DH Ein Sofgin, and 101a, DH Chayav; Sanhedrin 89b, DH Dilma, and see ARUCH LA'NER and Insights there).

The words of Rashi are difficult to understand. When a person performs an act that is a Safek Aveirah, there is a much more basic reason why he is not punished with Malkus -- we are not sure if he actually sinned! Even if Hasra'as Safek is a valid form of warning, we cannot administer Malkus because we are unsure whether or not the person actually committed the Aveirah!

In addition, we know that there is an argument among the Amora'im (in Makos 15b) whether or not Hasra'as Safek is a valid Hasra'ah. According to Rebbi Yochanan , it *is* considered a valid Hasra'ah for Malkus. Does this mean that Rebbi Yochanan maintains that we give Malkus to a person who slaughters a half-goat and its child on one day? (TESHUVOS RAMA MI'PANO #26, REBBI AKIVA EIGER to 23b, TIFERES YAKOV there, ROSH YOSEF here, RASHASH here.)


(a) Rashi is giving a reason for why the person is not punished with Malkus even if Beis Din later rules that we do consider the paternal contribution of an animal to its offspring to be significant, and the animal indeed is a half-goat and has the status of a goat. The Rabanan nevertheless exempt a person from Malkus who, in the past, slaughtered a half-goat, because at the time of his sin, there was no proper Hasra'ah.

(b) Alternatively, we may suggest as follows. Apparently, Rashi is ruling that since the person was aware that his act constituted a Safek Aveirah (because he was warned), which the Torah prohibits, he can be punished for transgressing the Safek Aveirah (even if we never clarify the Safek). This may be compared to a case in which we have a Safek whether or not an act is prohibited, and a Chazakah (or a Rov) tells us that the act is prohibited. We may administer punishments of Malkus and Misah in such cases, even though the person will be exempt from any punishment if it is discovered later that the act did not constitute a transgression. (See TOSFOS to Gitin 33a, DH v'Afka'inhu.) Why, then, is the person indeed exempt from Malkus? He is exempt because of the rule that Hasra'as Safek is not a valid Hasra'ah, as Rashi writes.

This Hasra'as Safek is not subject to the Machlokes between Rebbi Yochanan and Reish Lakish. When Rashi uses the term "Hasra'as Safek" in these places, he is not referring to the Machlokes Amora'im in Makos (15b) regarding whether or not Hasra'as Safek is a valid Hasra'ah. The Gemara in Makos is referring to a situation in which it will become clear later whether or not the Aveirah was transgressed. In contrast, in the case of a Safek Aveirah, since we do not expect it to become clear later whether the Aveirah was transgressed or not, everyone agrees that the Hasra'ah is lacking, since the transgressor was not warned that what he was doing was definitely an Aveirah. When a person hears such a Hasra'ah for an Aveirah which he knows cannot be proven, he does not take it as seriously as a normal Hasra'ah, and therefore it cannot obligate him to receive Malkus.

Rashi's source might be the Gemara in Sanhedrin (89b) which says that a person who is eating dates and who is warned not to eat them because they might be Asur (see ME'IRI and Insights to Makos 21b) cannot be given Malkus because "nobody can give him a [proper] Hasra'ah." The Gemara should have said that he cannot be punished because nobody knows that he sinned! Instead, the Gemara says that he is not punished because nobody can give him Hasra'ah, implying that one who does a Safek Aveirah does not receive Malkus because it is lacking Hasra'ah.

Moreover, we may suggest that Rebbi Yochanan agrees that no Malkus will be administered in such a case. Rebbi Yochanan maintains that one receives Malkus for a Hasra'as Safek only when the Safek is due to an act that the person is doing now has the potential to become a definite sin, such as by performing another act in the future. However, it must be in the hands of the sinner himself to make his original act into a sin, retroactively (see Makos 15b, Shevuos 21a.). In the case of our Gemara, making the act of slaughtering the two animals into a definite sin is not in the power of the sinner at all. It depends upon the decision of Beis Din to declare that such an animal indeed is a half-goat. In such a case, everyone agrees that Hasra'as Safek is *not* a Hasra'ah. (M. Kornfeld; see TOSFOS to Yevamos 80a, DH Na'aseh.)

OPINIONS: The Gemara cites a Mishnah in Kil'ayim (8:6) in which Rebbi Yosi and the Tana Kama argue whether a Shor ha'Bar (wild ox, bison) has the status of a domesticated animal (Behemah) or the status of a wild animal (Chayah). The Tana Kama maintains that it is a type of Behemah, since it is translated as "Torbala" (ox of the forest). Rebbi Yosi maintains that it is a type of Chayah, since it is mentioned together with other Chayos (in Devarim 14:5). The argument has two important practical ramifications: whether there is a Mitzvah of Kisuy ha'Dam, and whether the Chelev is prohibited.

What is the Halachah? Is the Shor ha'Bar considered a Behemah or a Chayah?

(a) The RAMBAM (Hilchos Ma'achalos Asuros 1:12) rules that the Shor ha'Bar is considered a Behemah and not a Chayah.

(b) The ROSH argues based on an inference in the Gemara here. The Gemara attempts to prove that Izi d'Bala (goats of the forest) are considered Behemos and may be offered as Korbanos from the fact that they are not listed in the Torah among the Kosher Chayos (Devarim 14:5). It must be that they are included in the category of ordinary goats, which are Behemos.

The Gemara asks that perhaps Izi d'Bala *are* mentioned in the list of Chayos by a different name. Perhaps they are the "Te'o" mentioned in the list.

The Gemara implies that the "Te'o" is a Chayah, since it is mentioned in the list of Chayos. The "Te'o," though, is the "Torbala," as the Targum Onkelos writes. The "Torbala" is the Shor ha'Bar, and yet the Gemara clearly implies that it is a Chayah!

In support of the Rambam, the RASHBA (DH Ha) quotes a Girsa of the Gemara that omits the words in which the Gemara asks that perhaps the Isi d'Bala are the Te'o. (Z. Wainstein)

QUESTION: The Gemara cites a Mishnah in Kil'ayim (8:6) in which Rebbi Yosi and the Tana Kama argue whether a Shor ha'Bar (wild ox, bison) has the status of a domesticated animal (Behemah) or the status of a wild animal (Chayah). Rebbi Yosi maintains that it is a type of Chayah, since it is mentioned together with other Chayos (in Devarim 14:5).

TOSFOS (DH mid'Chashiv) points out that this implies that had the Shor ha'Bar not been mentioned together with Chayos, everyone would have agreed that it is a Behemah, because it is called a "Shor." Tosfos asks that this seems to contradict the Gemara earlier, which implies that we do not follow the name of the animal when determining its status. The Gemara says that an "Ayil ha'Bar" is a Chayah (see Tosfos DH Zeh), even though its name is "Ayil," which is a Behemah.

How, though, does Tosfos know that the animal called "Ayil" is a Behemah? We know that only animals that are Behemos may be offered on the Mizbe'ach, and not Chayos. Accordingly, an Ayil must be a Behemah, since it is one of the Korbanos that is offered on the Mizbe'ach (see, for example, Shemos 29:1, Vayikra 5:15, 5:18, Bamidbar 28:11, 28:19, and Bereishis 22:13).

However, there is a different animal called an "Ayal" that is a Chayah. The verse says, "... just as the Tzvi and the Ayal are eaten" (Devarim 12:22), comparing the Ayal to the Tzvi. A Tzvi certainly is a Chayah and may not be offered as a Korban; so, too the Ayal is a Chayah and may not be offered as a Korban. Similarly, the verse later in Devarim (14:5) implies that an Ayal is a Chayah, because it includes Ayal in the list of Chayos, and not in the list of Behemos (14:4). How, then, does Tosfos know that the Gemara is referring to a Behemah? Perhaps the Gemara is referring to an "*Ayal* ha'Bar" and not to an "*Ayil* ha'Bar"!

ANSWER: REBBI AKIVA EIGER answers that it is obvious that there are two animals, an Ayil, which is a Behemah, and an Ayal, which is a Chayah. An Ayil is a ram (an adult, male sheep), and an Ayal is a deer. Tosfos must have had a tradition that the "Ayil ha'Bar" discussed in the Gemara is an "*Ayil* ha'Bar" and not "Ayal ha'Bar." (See RAN in Nedarim (35a, DH Deika), who says that there are times when we know through a tradition how to read a certain word.)

(Rebbi Akiva Eiger adds that RASHI (DH Ayil ha'Bar) also seems to agree with this, because he explains that this animal is the "male Ayil that grows in the forest." An Ayil is specifically a male animal (as is expressed by the Aramaic translation, "Dichra"; see Targum Onkelus to Bereishis 22:13).)

Accordingly, Tosfos is asking that the "Ayil ha'Bar" is a Chayah even though it is called "Ayil," which is a Behemah. Therefore, a "Shor ha'Bar" is not necessarily a Behemah merely because it is called a "Shor." (See also Rebbi Akiva Eiger to SHULCHAN ARUCH OC 586, TAZ #1). (D. Bloom)


QUESTION: The Gemara asks that whenever one transgresses the prohibition of slaughtering a mother animal with its offspring (of Kodshim) on one day, he should also be punished with Malkus for transgressing the prohibition of slaughtering a Korban at the improper time, "Mechusar Zeman."

TOSFOS (v'Lilki) asks that since the prohibition of slaughtering an animal when it is Mechusar Zeman includes a number of different cases that all fit into the category of Mechusar Zeman, that prohibition is a "Lav shebi'Chelalos." A Lav shebi'Chelalos is a single Lav that prohibits many different acts. When the Torah includes a number of different actions in one prohibition, none of these actions are subject to a punishment of Malkus (Pesachim 24a).

How, then, can the Gemara suggest that one should receive Malkus for slaughtering an animal that is Mechusar Zeman?


(a) The RAMBAN (DH v'Lilki) answers that we find a Machlokes (Temurah 7b, Pesachim 41b) regarding whether or not one receives Malkus for transgressing a Lav shebi'Chelalos. Even though we rule like the opinion that maintains that Malkus is not given for a Lav shebi'Chelalos, nevertheless the Gemara here is asking its question according to the opinion that maintains that Malkus is given for a Lav shebi'Chelalos.

(b) The ME'IRI (DH ha'Shochet) implies that the prohibition of slaughtering an animal of Kodshim that is Mechusar Zeman cannot be a Lav shebi'Chelalos, because the Torah lists specific types of animals when it gives the prohibition against offering unfavorable Korbanos. The Torah here does not mention one item which includes all of the others. Rather, it mentions a number of items separately (which cannot refer to any other item), and thus when the Torah gives the prohibition it is as if it is written with regard to each item separately. This is not a "Lav shebi'Chelalos." A "Lav shebi'Chelalos" is when the verse prohibits one item which includes all of the items (see Rashi to Makos 18a and Insights there; see also Insights to Pesachim 41:2).

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