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Pesachim 23

PESACHIM 23 - has been sponsored by a donation from Mr. Morris Smith of Yerushalayim


QUESTION: The Gemara cites a Mishnah that states that one may not make profit through the commerce of animals and creatures which are Teme'os, even if one sells them only to non-Jews. Only if one happened to have come across a Behemah Teme'ah by chance may he sell it, but he may not make a business out of it. Does this mean that a Jew may not sell horses, donkeys, dogs or cats?

ANSWER: TOSFOS cites a Yerushalmi which says that it is not prohibited to sell such animals, because they are not used for eating. The prohibition applies only to making a business out of selling animals which are eaten, but not to selling animals that are used for other purposes.

This Halachah has practical ramifications for Jews in the commodities industry, as well as for owners of shares in companies which profit from selling non-Kosher animals. RAV MOSHE STERNBUCH (Teshuvos v'Hanhagos 2:392) responds to a Ba'al Teshuvah's question concerning whether he must leave his company that trades in Neveilos, in which he is a primary share-owner. Rav Sternbuch says that it is forbidden to deal in non-Kosher animals, but he cites a Machlokes with regard to a partnership with a non-Jew. The IMREI ESH and MAHARAM SHIK forbid trading in non-Kosher animals even in partnership with a non-Jew, while the DEVAR MOSHE (cited by the BIRKEI YOSEF 117:7) permits trading in non-Kosher animals in partnership with a non-Jew -- on condition that the Jew is not in the shop or market at all.

HALACHAH: Rav Sternbuch concludes that it is best to follow the opinion of those that forbid trading in partnership. He says, however, that if one is already involved in a partnership he may rely on the lenient opinion, especially since the company is called by the name of the gentile partner and not by the name of the Jew. It is permitted, though, only on condition that the Jew is not present at all in the store or involved in the consumer level of buying and selling, but is involved only in the upper administrative and executive levels. He concludes that a Jew should make an effort to leave the business of trading non-Kosher animals in any case.


QUESTION: The Gemara concludes that Chizkiyah learns from the unusual wording of "Lo Ye'achel" that Chametz and Shor ha'Niskal are Asur b'Hana'ah, and that the verse permitting Treifos b'Hana'ah teaches that Chulin she'Nishchatu ba'Azarah is Asur b'Hana'ah. Rebbi Avahu, on the other hand, does not learn anything from the wording "Lo Ye'achel," but instead learns that Chametz and Shor ha'Niskal are Asur b'Hana'ah from the verse which specifically permits Neveilos (or Treifos, according to Rebbi Yehudah) b'Hana'ah. That is, the verse regarding Neveilos is necessary to teach that only they are Mutar b'Hana'ah, but everything else which is Asur b'Achilah is also Asur b'Hana'ah. Rebbi Avahu does not need a verse, according to Rebbi Yehudah, to teach that Chulin she'Nishchatu ba'Azarah is Asur b'Hana'ah because he holds that Chulin she'Nishchatu ba'Azarah is not prohibited to be eaten by the Torah.

RASHI DH Chulin ba'Azarah explains that Rebbi Avahu -- who says that the words "Do not eat" include an Isur Hana'ah as well -- only said this statement according to Rebbi Meir but not according to Rebbi Yehudah.

How can Rashi say that? The Gemara (21b) said at length that Rebbi Avahu made his statement even according to Rebbi Yehudah! Furthermore, Rashi himself, in his previous comment, says that Rebbi Avahu made his statement even according the view of Rebbi Yehudah (and that he argues with Chizkiyah over that point, as mentioned above)! Why does Rashi suddenly say that Rebbi Avahu only said his statement according to Rebbi Meir?

ANSWER: It appears that this gloss (Dibur ha'Maschil) of Rashi is printed out of place, and it should instead appear a few lines later as the conclusion of Rashi's explanation in DH Chulin she'Nishchatu ba'Azarah (which is part of the *following* Sugya -- and the title line of Rashi's comment here should be omitted). Rashi's intention is to answer a question.

In the Gemara, Rebbi Yehoshua ben Levi cites a new source for the Isur Hana'ah of Chametz. Why does he cite a new source, when Chizkiyah and Rebbi Avahu already gave two valid sources? Rebbi Yehoshua ben Levi does not seem to be arguing with them, because he does not say, "I have a new source," but merely asks, "*What* is the source," as if to say that he has not heard of any other source. Furthermore, when the Gemara later (24a) refutes the source that he suggests, other Amora'im suggest other verses for the source of the Isur Hana'ah. The Gemara seems to be trying to fill a gap, to answer a question that heretofore has gone unanswered.

Rashi therefore explains that these Amora'im hold that Rebbi Avahu's statement was said only according to Rebbi Meir, and they argue with the previous Sugya which understood Rebbi Avahu to be explaining Rebbi Yehudah as well. These Amora'im, headed by Rebbi Yehoshua ben Levi, assert that according to Rebbi Avahu, Rebbi Yehudah does not agree that the verse regarding Tereifah is the source that every Isur Achilah also includes an Isur Hana'ah. Therefore, we are left with a question -- what *is* the source for the Isur Hana'ah of Chametz according to Rebbi Yehudah, in Rebbi Avahu's opinion? To answer this question, Rebbi Yehoshua ben Levi and the other Amora'im suggest alternative sources for the Isur Hana'ah of Chametz. (M. Kornfeld; see MENACHEM MESHIV NEFESH for a possible alternative approach.)

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