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Yoma 67

YOMA 59-88 have been dedicated to the memory of the late Dr. Simcha Bekelnitzky (Simcha Gedalya ben Shraga Feibush) of Queens N.Y. by his wife and daughters. Well known in the community for his Chesed and Tzedakah, he will long be remembered.


QUESTIONS: The Gemara asks whether the limbs of the Se'ir ha'Mishtale'ach are Asur b'Hana'ah (prohibited from deriving benefit from them). Rav and Shmuel argue -- one says that they are Mutar b'Hana'ah, and the other says that they are Asur b'Hana'ah. Rava says that it is more logical to say that they are Mutar b'Hana'ah, because if they were Asur, the Torah would not have commanded that the Se'ir be sent away in such a way that it would cause someone to sin (a person might find the limbs and derive benefit from them, not realizing that they came from the Se'ir ha'Mishtale'ach, -Rashi).

We find this principle elsewhere. The Gemara in Kidushin (57b) asks whether or not it is forbidden to derive benefit from the live bird that the Metzora must dip into blood and send away as part of his purification process. The Gemara answers that the bird cannot be Asur b'Hana'ah, because the Torah would not command that it be sent away if doing so could cause someone to sin (someone might find it and eat it, not knowing that it is Asur b'Hana'ah). The fact that the Torah commands the Metzora to send it away proves that it is Mutar b'Hana'ah.

This proof that the limbs of the Se'ir ha'Mishtale'ach are Mutar b'Hana'ah is difficult to understand.

(a) The MISHNEH L'MELECH (Hilchos Me'ilah 7:6) asks, even if we say that the bird of a Metzora or the limbs of a Se'ir ha'Mishtale'ach are *Asurim b'Hana'ah*, one who finds them and derives benefit from them *has not sinned*. In such a situation the person is *permitted* to derive benefit from them, because of the principle that "Kol d'Parish, m'Ruba Parish" -- any item which has [been found] separated from other like items is considered to have come from the majority of those items! Since most birds and most goats in the world are certainly Mutar b'Hana'ah, the bird of the Metzora and the limbs of the Se'ir ha'Mishtale'ach are Mutar because when their origins are not known for certain they are considered as having come from the majority, which are permissible! Why, then, does the Gemara say that the fact that a person might find and use these items is a proof that they are Mutar b'Hana'ah? Even if they are Asur b'Hana'ah, the person who finds them is allowed to benefit from them!

(b) The GEVURAS ARI and SI'ACH YITZCHAK ask why would sending away the Se'ir -- if it is Asur b'Hana'ah -- be considered as a potential cause for someone to sin ("Takalah")? If the Se'ir ha'Mishtale'ach was Asur b'Hana'ah, they could be treated like any other Isur ha'Na'ah and buried after Yom Kipur, so that there would be no "Takalah!" The argument of Takalah is only appropriate when sending an item out into the wild, never to return (such as the Tzipor ha'Meshulachas), such that we will not be able to bury it and treat it like other Isurei Hana'ah which are buried. In the case of the Se'ir that was thrown down the cliff, though, it should be no trouble to bury the limbs!

(The Si'ach Yitzchak adds that it is because of this question that the Amora who holds that the Se'ir remains Asur b'Hana'ah does *not* compare the Se'ir ha'Mishtale'ach to the bird of the Metzora, which is Mutar b'Hana'ah because of the problem of "Takalah.")

(a) The MISHNEH L'MELECH answers the first question by saying that the "Takalah" is not that a person who finds the limbs will be transgressing a prohibition (because, as he explains, the limbs are permitted to be used because of the principle of "Kol d'Parish"). Rather, it is the person who sends away the Se'ir that will be performing an act of Takalah if the Se'ir is Asur b'Hana'ah. By sending it away, he is deliberately causing an Isur to become annulled, and it is forbidden to deliberately cause an Isur to become annulled ("Ein Mevatlin Isur l'Chatchilah"). The Torah would not have commanded that he send away the Se'ir and thereby be Mevatel an Isur, and thus it must be that the Se'ir is Mutar b'Hana'ah.

The SHA'AR HA'MELECH (Hilchos Ma'achlos Asuros 15:25) asks that almost all of the Rishonim rule that the prohibition against being Mevatel an Isur l'Chatchilah is only a rabbinical prohibition. The Torah does not prohibit being Mevatel an Isur l'Chatchilah (see SHULCHAN ARUCH, YD 99:5 and Shach YD 99:7). If so, it is incorrect to say that the "Takalah" is that the person sending away the Se'ir is transgressing the prohibition against being Mevatel Isur l'Chatchilah.

The MAHARATZ CHIYUS answers that it is a rabbinical prohibition to be Mevatel Isur l'Chatchilah only when the mixture of the Isur and Heter items is comprised of items which blend with each other, and each one becomes unrecognizable (such as a liquid of Isur which fell into a liquid of Heter). In such a case, the Torah permits being Mevatel the Isur while the Rabanan prohibit it. However, if solid items became mixed up in such a way that one does not know which one is the Isur, but each piece remains separate, then in such a case even mid'Oraisa it is prohibited to be Mevatel Isur l'Chatchilah (since the piece of Isur remains physically unchanged and independent of the other pieces -- we just lost track of its whereabouts).

(b) Regarding the second question (what sort of Takalah will occur if the limbs can be buried and kept away from public use), the GEVURAS ARI and SI'ACH YITZCHAK answer that perhaps the Se'ir will not die on the way down, and when it reaches the bottom it will run away. (Normally, when the Se'ir did not die from the fall there is a Mitzvah to go down and kill it, as the Gemara says earlier (66b), nevertheless it is possible that the animal will run away before the person reaches it.) This was in fact a common occurrence after the death of Shimon ha'Tzakid, according to the Yerushalmi (Yoma 6:3). However, Rashi (DH l'Takalah) does not seem to accept this answer, for he implies that the Gemara is concerned that someone will find and use the dismemebered *limbs* of the Se'ir, and not that someone will find a live Se'ir.

(2) It could be that since the Se'ir is crushed into many pieces as it falls down the steep incline, as the Mishnah here says, there are so many pieces that it is inevitable that a "Takalah" will occur, for it is not possible to find and bury every one of the little pieces. (M. Kornfeld)

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