THOUGHTS ON THE DAILY DAF
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1) THE "LAV HA'NITAK L'ASEH" OF "MECHUSAR ZEMAN"
QUESTIONS: Rebbi Zeira says that the reason why one does not receive Malkus
for slaughtering an animal as a Korban in an improper time (such as on the
same day as its mother was slaughtered) is because the prohibition of
Mechusar Zeman is a "Lav ha'Nitak l'Aseh." RASHI (DH Nitko) explains that
the act of slaughtering the animal is prohibited by the verse "Lo Yeratzeh"
(Vayikra 22:23), which applies to offering any form of invalid Korban. There
is no punishment of Malkus for transgressing this Isur because the Torah
gives a Mitzvas Aseh to bring the Korban at a time that it is permitted to
be brought, as it says, "... from the eighth day and onward it will be
acceptable as a Korban" (Vayikra 22:27).
2) "YOM L'HARTZA'AH"
(a) How does this Mitzvas Aseh make the Isur become a Lav ha'Nitak l'Aseh?
The only way to bring the animal as a Korban in the proper time is if was
*not* brought at the wrong time! If one transgressed the Isur of offering
the Korban at the wrong time, then it is not possible to correct the
transgression by bringing the Korban at the proper time! (TOSFOS 80b, DH
(b) According to Rashi's explanation, what does the Gemara mean when it adds
that one does not receive Malkus for offering a Korban that is Mechusar
Zeman because that prohibition is a "Lav ha'Ba Michlal Aseh," a negative
prohibition that is expressed as a Mitzvas Aseh (the Mitzvas Aseh to bring a
Korban from the eighth day and onward implies a negative commandment not to
bring it before that time)? There is an explicit Lav that prohibits bringing
a Korban at an improper time -- "Lo Yeratzeh"!
(a) TOSFOS (80b, DH Hanach) explains that when the Gemara says that the
Torah gave an Aseh for the prohibition of Mechusar Zeman, it is not
referring to the normal concept of "Lav ha'Nitak l'Aseh." Rather, the reason
why there is no Malkus for transgressing the Isur of Mechusar Zeman is
because the Torah lessened the severity of the Isur by making it a Mitzvas
Aseh. This is what the Gemara means when it says, "Nitko l'Aseh"; it does
not mean that it is a Lav ha'Nitak l'Aseh.
(In support of Rashi's explanation, however, Tosfos demonstrates that there
are a number of places in the Gemara where a Lav is considered to be a Lav
ha'Nitak l'Aseh even though its Mitzvas Aseh does not correct the effects of
(b) It appears that Rashi did not have the words, "Lav ha'Ba Michlal Aseh,
Aseh," in his text of the Gemara. (M. Kornfeld)
QUESTION: Rebbi Aftoriki posed a contradiction. The verse (Vayikra 22:27)
first says, "v'Hayah Shivas Yamim Tachas Imo" -- "[When an ox or sheep or
goat is born,] it shall remain with its mother for seven days," implying
that implying that on the night before its eighth day it is fit to be a
Korban. The verse then says, "umi'Yom ha'Shemini va'Hal'ah Yeratzeh" -- "and
from the eighth day and onward it will be acceptable," implying that the
night before its eighth day it is not fit!
3) THE REASON WHY "OSO V'ES BENO" DOES NOT APPLY TO "KODSHIM"
Rebbi Aftoriki answered that the night before the eighth day, the animal is
fit to be Hukdash (designated as a Korban), but it is not fit to be offered
on the Mizbe'ach until the eighth day.
Why do we need the verse, "umi'Yom ha'Shemini va'Hal'ah," to teach that a
Korban may not be brought on the night before the eighth day from the time
of its birth? There is a general principle that a Korban may be brought only
during the daytime, as derived from the verse, "b'Yom Tzavoso" (Vayikra
7:38; Zevachim 98a)! (TOSFOS DH Yom)
(a) In his first answer, TOSFOS says that if we only had the principle
derived from "b'Yom Tzavoso," then we might have thought that if the
seven-day-old Korban animal was wrongly placed on the Mizbe'ach, b'Di'eved
we would not take it down. The verse of "umi'Yom ha'Shemini" teaches that
even if the animal was already placed on the Mizbe'ach, we still must remove
(b) In his second answer, Tosfos explains that on a Bamah (a public or
private Mizbe'ach used before the Beis ha'Mikdash was built), it was
permitted to bring Korbanos at night. However, the Isur of Mechusar Zeman
derived from "umi'Yom ha'Shemini" prohibits bringing an animal on the night
before its eighth day even on a Bamah. (Z. Wainstein)
QUESTION: Rava says in the name of Rav Hamnuna that there is no punishment
of Malkus for transgressing the Isur of "Oso v'Es Beno" with animals of
Kodshim, because the Hasra'ah that is given is only 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. It is a Hasra'as Safek because perhaps the Zerikas
ha'Dam will not be performed, in which case the Shechitah will have been
ineffective, and, according to Rebbi Shimon, a "Shechitah she'Einah Re'uyah"
is not a valid Shechitah.
RASHI (end of DH Hasra'as Safek) questions why the Gemara needs to give the
reason of Hasra'as Safek in order to explain why there is no Malkus for the
Isur of "Oso v'Es Beno" with animals of Kodshim. He explains that the
prohibition of "Oso v'Es Beno," slaughtering a mother and child animal on
the same day, cannot apply to Kodshim because of a logical reason, and not
merely because of the problem of Hasra'as Safek. The Shechitah of a Korban
on the same day as its mother would invalidate it as a Korban ("Lo
Yeratzeh") since the prohibition of "Oso v'Es Beno" was transgressed during
its Shechitah, but since the Shechitah did not permit the Korban to be
offered, it is a "Shechitah she'Einah Re'uyah" which is not considered a
valid Shechitah, and thus "Oso v'Es Beno" was *not* transgressed!
Rashi says, therefore, that the Girsa of the Gemara does not include the
reason of Hasra'as Safek.
There are a number of difficulties with Rashi's explanation.
(a) Rashi earlier (80b, DH Kama, and 81a, DH l'Rebbi Shimon) writes that
Rebbi Shimon maintains that one is punished for Shechitas Kodshim ba'Chutz,
even though the Shechitah is "Einah Re'uyah" and does not permit the Korban
to be offered. This is because Torah explicitly prescribes Malkus for such
an act. Why does the same logic not apply to the Isur of "Oso v'Es Beno"?
Here, too, the Torah explicitly applies its prohibition to Kodshim (Chulin
78a), even though the Shechitah will not make the animal fit for the
Mizbe'ach! (TOSFOS 80b, DH Shechitah)
(b) If the Shechitah of a Korban that does not permit the Korban to be
offered is a "Shechitah she'Einah Re'uyah," then not only should there be no
Malkus for slaughtering a mother and its child on one day, but there should
be no *Isur* either! The Gemara, however, proves only that Rebbi Shimon
exempts Kodshim from Malkus, but he agrees that there still is a prohibition
of "Oso v'Es Beno"!
(c) Rashi himself, in his following comments (DH v'Azda, and DH Patur),
explains the Gemara based on the Girsa of our texts, which includes the
reason of Hasra'as Safek! If Rashi maintains that this reason is incorrect
and should be omitted from the text of the Gemara, then why does he mention
it in his comments later?
(a) TOSFOS (80b, DH Shechitah) rejects Rashi's reasoning because of this
question and asserts that the reason why Malkus is not given for
transgressing "Oso v'Es Beno" with animals of Kodshim is because of the
problem of Hasra'as Safek, as the Gemara says.
Even though the Torah explicitly applies the Pesul of "Oso v'Es Beno" to
Kodshim, this does not necessarily prove that the Torah means that Malkus
should be given to one who slaughters a mother and child animal of Kodshim
on the same day. Rather, the verse may be teaching us simply that the Korban
is disqualified if slaughtered on the same day as its mother, but not that
the person who slaughters them has transgressed a prohibition. (In contrast,
in the case of Shechitas Kodshim ba'Chutz, no verse is needed to teach us
that a Korban slaughtered outside the Azarah is disqualified, since it
obviously is disqualified because of the Pesul of "Yotzei.")
(b) Perhaps there is no prohibition to slaughter a mother and child animal
of Kodshim on the same day, as mentioned above. The Torah is teaching only
that the animals become disqualified as Korbanos when they are slaughtered
on the same day.
(c) It appears that Rashi retracted his opinion in a later version of his
commentary, and decided that Hasra'as Safek indeed is the reason why no
punishment is given for "Oso v'Es Beno" with animals of Kodshim. Indeed, we
find that the TOSFOS HA'ROSH (80b, DH Shechitas) quotes a lengthy
explanation that Rashi gives for the Gemara there (80b), an explanation to
which Tosfos there also refers, while in our text of Rashi the entire
explanation is missing. It is apparent that an earlier version and a later
version of Rashi's commentary were inserted together here into the text of
Rashi. (See Insights to Bava Kama, end of 18:1, and Insights to Eruvin
81:2.) (M. Kornfeld)
QUESTION: The Mishnah lists various types of Shechitos that are ineffective
("Einah Re'uyah"), and which are subject to the Machlokes between Rebbi
Shimon and the Chachamim. However, the Mishnah divides them into three
groups: "ha'Shochet v'Nimtza Tereifah," "ha'Shochet l'Avodah Zarah," and
"ha'Shochet Paras Chatas...."
5) ONE WHO SLAUGHTERS AN ANIMAL FOR "AVODAH ZARAH" AND THEN SLAUGHTERS ITS
OFFSPRING ON THE SAME DAY
Why does the Mishnah not list all of these forms of Shechitah in one list
and introduce them with one word of "ha'Shochet"? Why does it need to
separate them by writing the word "ha'Shochet" three times?
ANSWER: It is the style of the Mishnah to teach us laws in a pattern of "Lo
Zu Af Zu," mentioning the more obvious cases first and then the less obvious
cases. Here, too, the Mishnah is following this pattern, and it alludes to
the different degrees of Chidush of each case by separating them with the
The Mishnah first teaches that the Chachamim consider the Shechitah of a
Tereifah a valid Shechitah with regard to the Isur of "Oso v'Es Beno." This
is more obvious, since the Shechitah actually is effective with regard to
preventing the corpse from being Tamei as a Neveilah.
The Mishnah then adds that a Shechitah for Avodah Zarah is also a valid
Shechitah with regard to "Oso v'Es Beno," according to the Chachamim, even
though such Shechitah makes the animal Asur b'Hana'ah.
Finally, the Mishnah adds that even in cases in which the animal was
*already* Asur b'Hana'ah before the Shechitah, and the Shechitah
accomplishes absolutely nothing other than the death of the animal, the
Shochet nevertheless transgresses the prohibition of "Oso v'Es Beno."
(This approach also answers the question of TOSFOS (82a, DH Eglah), who asks
why the Gemara does not propose that the Eglah mentioned in the Mishnah was
a type of Eglah that was permitted to be eaten until its Shechitah or
Arifah.) (M. Kornfeld)
QUESTION: The Mishnah teaches that, according to the Chachamim, slaughtering
an animal for the sake of Avodah Zarah is considered a valid Shechitah with
regard to the prohibition of "Oso v'Es Beno." Reish Lakish explains that the
Shochet is punished with Malkus for transgressing "Oso v'Es Beno" only when
he slaughtered the first animal for Avodah Zarah, and he slaughtered the
second animal for his own personal use. If he slaughtered the second animal
for Avodah Zarah, then he is not punished with Malkus, because he receives
the more severe punishment of Misah for his act of serving Avodah Zarah, and
we do not administer two corporal punishments ("Kam Lei bid'Rabah Minei").
6) THE FIRST SHECHITAH OF AN APOSTATE FOR IDOLATRY
RASHI (DH Ela) explains that when the Shochet slaughtered the first animal
for Avodah Zarah, the Shochet is judged first for transgressing "Oso v'Es
Beno" and is given Malkus, and only afterwards is he judged for Avodah Zarah
and given Misah, even though the act of Shechitah for Avodah Zarah was done
first. This implies that if he would be judged for Avodah Zarah first, then
he could no longer be punished with Malkus for "Oso v'Es Beno." Why, though,
should he not receive Malkus? The transgressions were done at two different
times, and thus "Kam Lei bid'Rabah Minei" does not apply.
(a) After the Shochet is found guilty of slaughtering an animal for Avodah
Zarah, he is considered a "Gavra Ketila" (see Makos 5a), a person who is
already considered dead, and any testimony against him in any other case
would not be accepted, because it would be considered Edus she'Iy Atah
Yachol l'Hazimah, testimony of witnesses who cannot be made into Edim
Zomemim (since the person they tried to have punished is already considered
(b) When a death sentence is passed, that verdict includes the punishment of
Malkus as well (see Makos 13b, "Makos bi'Mekom Misah Omedes"). Therefore, we
no longer administer a separate set of Malkus for other sins that he
(c) The verdict of a person found to be Chayav Misah must be administered
without delay (see TOSFOS 2a, DH Kol) in order not to cause him undue
torment. Therefore, we cannot judge him for other sins before carrying out
the verdict of Misah. (Z. Wainstein)
QUESTION: Rebbi Yochanan says that it is possible for a person to receive
Malkus for transgressing the Isur of "Oso v'Es Beno" even when he slaughters
the first animal for his own needs and the second animal for Avodah Zarah.
One would receive Malkus when he received Hasra'ah, before slaughtering the
second animal, for "Oso v'Es Beno," but he did not receive Hasra'ah for
Avodah Zarah. In such a case, he is not Chayav Misah for the sin of Avodah
Zarah, since he did not receive Hasra'ah for that sin, and thus "Kam Lei
bid'Rabah Minei" does not apply to exempt him from Malkus.
How, though, is it possible that he is Chayav for "Oso v'Es Beno" when he
slaughters the second animal? When he slaughters it for Avodah Zarah, he
becomes a Mumar (apostate) for Avodah Zarah, and the Shechitah of Mumar is
not valid! His Shechitah is considered merely an act of Nechirah (killing an
animal without Shechitah). Since he did not perform a valid Shechitah on the
second animal, he did not transgress the Isur of slaughtering, with
Shechitah, a mother animal and its offspring on one day!
(a) TOSFOS earlier (14a, DH ha'Shochet) asks a similar question on the
Mishnah there. The Mishnah states that Shechitah performed on Shabbos is a
valid Shechitah, even though the Shochet desecrated Shabbos by performing
the Melachah of Shechitah. The Gemara (15a) says that the Shechitah is valid
even if the Shochet desecrated Shabbos intentionally (b'Mezid) by
slaughtering the animal. How, though, can such a Shechitah be valid? The
Shochet, who slaughtered the animal intentionally on Shabbos, is a "Mumar
l'Chalel Shabbos," and the Shechitah of such a Mumar is invalid (see
Insights to Chulin 14:1)!
Tosfos there answers that a person does not become a Mumar by slaughtering
one time on Shabbos. Only when he slaughters two times on Shabbos is he
considered a Mumar.
The CHIDUSHEI HA'RAN (14a) writes that the Gemara here supports the
assertion of Tosfos. When the Shochet slaughters one animal for Avodah
Zarah, he is not yet considered a Mumar for Avodah Zarah. Only when he
slaughters a second animal for Avodah Zarah is he considered a Mumar.
Therefore, since this was the first animal that he slaughtered for Avodah
Zarah, his Shechitah is valid and he is Chayav for "Oso v'Es Beno."
(b) However, the Ran writes that it is possible to refute this proof for the
answer of Tosfos. Perhaps the first Shechitah for Avodah Zarah *is*
considered a Shechitah of a Mumar, and it makes the animal forbidden to be
eaten. Nevertheless, it is a valid Shechitah with regard to preventing the
animal from becoming a Neveilah. This is because the Mumar is not actually a
Nochri; if he marries a Jewish woman the Kidushin takes effect. Since his
Shechitah is a Shechitah performed by a Jew, it is effective in preventing
the animal from becoming a Neveilah. Therefore, even though the Shochet
becomes a Mumar through his first Shechitah for Avodah Zarah, nevertheless
it is still considered a valid Shechitah with regard to "Oso v'Es Beno,"
because the Shechitah is effective to be Metaher the animal from Tum'as
(c) REBBI AKIVA EIGER (in Chidushim) answers that according to those who
maintain that a person becomes a Mumar at the first transgression, the
Gemara must be referring to a case in which the Shochet explicitly declared
that he was serving Avodah Zarah only with the end of the act of Shechitah.
Consequently, the Shochet became a Mumar only at the end of the Shechitah.
By that time, though, the first part of the Shechitah has already made the
animal Kosher, and thus the Shochet is Chayav for "Oso v'Es Beno." (See also
KETZOS HA'CHOSHEN CM 52:1, DH ub'Ikar.) (D. Bloom)