AVODAH ZARAH 74 - dedicated l'Iluy Nishmas the grandmother of Mr. David Kornfeld, Chayah bas Aryeh Leib Shpira (nee Sole) z'l, in honor of the day of her Yahrzeit.

1) THE "ISUR" OF "PETER CHAMOR"

QUESTION: The Mishnah lists Isurim which are so severe that they prohibit a mixture even with a minute amount, b'Kol she'Hu. One of these Isurim is a Peter Chamor, a firstborn male donkey. RASHI explains that a Peter Chamor must be redeemed with a lamb which is then given to a Kohen. Until the Peter Chamor is redeemed, it is Asur b'Hana'ah (as Rebbi Yehudah says in Bechoros 9b). The Gemara explains that Mishnah lists objects that are both Asur b'Hana'ah and are a "Davar she'b'Minyan" (an item of significance due to the fact that it is sold by count). Due to the combination of these two properties, the Mishnah rules that they prohibit a mixture b'Kol she'Hu.

Why is Peter Chamor included in the Mishnah's list? There is a Mitzvah to redeem a Peter Chamor (Bechoros 13a) rather than to kill it and not redeem it. Once a Peter Chamor is redeemed it is no longer Asur b'Hana'ah. This fact, therefore, should put Peter Chamor into the category of "Davar she'Yesh Lo Matirin" (similar to an object prohibited because of a Neder; see Nedarim 59a), and it should prohibit a mixture b'Kol she'Hu even if it is not a Davar she'b'Minyan! (TOSFOS REBBI AKIVA EIGER in the name of the KEREISI U'PLEISI 110:3)

ANSWERS:

(a) The PISKEI HA'RID addresses this question. He answers that the Mishnah is discussing a situation in which the owner of the donkey is not present. Since the owner is not present, it is not possible to redeem the Peter Chamor, and therefore it is not considered a "Davar she'Yesh Lo Matirin" (see Tosfos, end of 73b, DH Tevel). The Piskei ha'Rid adds that another person cannot redeem a Peter Chamor that does not belong to him, just as he cannot redeem someone else's Ma'aser Sheni.

This assertion of the Piskei ha'Rid seems to contradict the Gemara in Bechoros (11a). The Gemara there states that when a person redeems his friend's Peter Chamor, the Pidyon takes effect. The Gemara discusses whether such a Pidyon allows the redeemer to keep the Peter Chamor (just as one who redeems an item of Hekdesh may keep what he redeems), or whether the donkey remains the possession of its owner. The Gemara concludes that the Peter Chamor belongs to its owner. The Gemara obviously refers to a person who is redeeming a Peter Chamor without the owner's permission, which is why it is possible that the Peter Chamor will belong to the redeemer and not to the owner, and yet the Gemara says that it is possible to redeem someone else's Peter Chamor! (See Tosfos there, DH ha'Podeh, and in Bava Kama 68b, DH Hu.)

Apparently, the Piskei ha'Rid understands that the Gemara's question revolves around this very point. May a person redeem someone else's Peter Chamor without permission, in which case the Peter Chamor will belong to the redeemer, or may a person not redeem someone else's Peter Chamor unless he has the owner's permission, in which case the Peter Chamor remains in the possession of the owner?

(b) Even if a person may redeem someone else's Peter Chamor without permission, there is reason to suggest that when the owner of the Peter Chamor is not present, it is not called a "Davar she'Yesh Lo Matirin." The reason for this is that the Gemara in Bechoros (loc. cit.) concludes that when the Peter Chamor is redeemed, it belongs to the original owner and not to the redeemer. Hence, one who redeems a Peter Chamor without the owner's permission will incur a loss of his property (his lamb) for which he will receive no compensation. An object is not considered a "Davar she'Yesh Lo Matirin" unless it can become permitted without anyone suffering a loss as a result.

Even if the Halachah would be that a Peter Chamor redeemed by someone else belongs to the redeemer, it might not be considered a "Davar she'Yesh Lo Matirin" if the person who wants to redeem happens to have no lamb. Since it is burdensome to have to go out and purchase a lamb (and a Peter Chamor may not be redeemed with anything other than a lamb), it is considered a "Davar she'Ein Lo Matirin."

(c) The ME'IRI explains that the Mishnah does not refer to a Peter Chamor that is alive and may still be redeemed. Rather, it refers to a Peter Chamor that was put to death (through "Arifah") without being redeemed. After "Arifah," the Peter Chamor is Asur b'Hana'ah even according to Rebbi Shimon (who maintains that it is permitted b'Hana'ah before "Arifah"; Bechoros 9b). Therefore, it is clearly not a "Davar she'Yesh Lo Matirin."

Why does Rashi not explain the Mishnah in this straightforward way? The KEREISI U'PLEISI suggests that a dead donkey cannot be considered a Davar she'b'Minyan, according to Rashi, since it is not the type of animal that one uses to honor his guests.

However, this is not clear, because if Nochrim prepare meat of donkeys to honor their guests, then it still should be considered an object of significance. It seems from the Kereisi that even if a Nochri is honored with it, it is not considered "Re'uyah l'Hiskabed" and is not an object of significance. (See PISCHEI TESHUVAH YD 101:4, and PRI MEGADIM in SIFSEI DA'AS on the SHACH YD 101:1.)

Another possibility is that Rashi does not accept the Me'iri's explanation because he maintains that a whole, dead animal is not considered a Davar she'b'Minyan. Only a limb or a presentable portion is considered a Davar she'b'Minyan, as the MORDECHAI writes in Beitzah (#646). Therefore, if the Mishnah would be referring to a dead Peter Chamor, then it should say "the limbs of a Peter Chamor" (as the Gemara says with regard to Neveilah, "Chatichos Neveilah").

2) DISCARDING PART OF A PERMITTED MIXTURE

QUESTIONS: RASHI (DH Tarti) writes that Mishnah's list is comprised of objects that are both Asur b'Hana'ah and are a "Davar she'b'Minyan." Due to the combination of these two factors, the Mishnah rules that they prohibit a mixture b'Kol she'Hu. An object that has only one of these two properties will be Batel b'Rov in the mixture. Therefore, a piece of Chametz on Pesach -- which is Asur b'Hana'ah but is not a Davar she'b'Minyan -- becomes Batel if it is mixed with pieces of non-Chametz food. One may throw one of the pieces of the mixture into the river and he may benefit from the rest (such as by giving it to his dog). Rashi continues and says that, similarly, a portion of Neveilah meat -- which is a Davar she'b'Minyan but is not Asur b'Hana'ah -- is Batel b'Rov. One therefore may throw one piece in the mixture to the dogs, and he may then eat the rest.

Rashi's words are difficult to understand.

(a) Why does Rashi write that one piece from the mixture must be discarded? (Rashi makes a similar point in Beitzah 3b, DH Ya'alu.) If the Isur is Batel b'Rov, then the entire mixture should be permitted! It is true that the Mishnah in Orlah (2:1) writes that when Terumah becomes mixed with Chulin in such a way that the Terumah is Batel, a non-Kohen must remove an amount equal to the amount of Terumah in the mixture before he eats the mixture. However, the Mishnah continues and says that if Orlah or Kil'ayim become Batel in a mixture, one does not need to remove an amount equivalent to what fell into the mixture in order to eat the mixture. The Yerushalmi there explains that an amount equal to the amount of Terumah in the mixture must be removed, because in addition to the Isur of eating Terumah, there is an element of monetary ownership involved with Terumah. Terumah belongs to the Kohanim, and therefore the non-Kohen must give the monetary value of the Terumah to a Kohen even though the Isur of the Terumah has become permitted through Bitul. This is because monetary ownership cannot become Batel (see Beitzah 38b). A mixture which contains Orlah, though, which becomes permitted through Bitul, does not need to have anything removed in order to be permitted to eat. (RITVA, ROSH 5:30, TOSFOS RID)

(b) Why does Rashi write, in the case of Chametz that becomes mixed with non-Chametz foods, that after one removes one piece he may feed the rest to his dog? If the Chametz is Batel, the person himself should be permitted to eat the rest, just as Rashi writes that the mixture containing Neveilah may be eaten because the Neveilah is Batel! (ROSH, TOSFOS RID)

ANSWERS:

(a) Rashi in Beitzah (3b) apparently derives this Halachah -- that one of the pieces of a mixture must be discarded -- from the very Mishnah from which the other Rishonim try to disprove him. The Mishnah says that Orlah and Kil'ayim "rise" ("Olim") when there is one part of Isur in 200 parts of Heter. Most Rishonim explain that the word "Olim" means that the mixture "rises up" and overcomes the Isur, effectively annulling it. Rashi, however, seems to understand the word "Olim" differently. He understands that "Olim" means that an amount corresponding to the Isur must be "raised" and removed from the mixture before the mixture may be eaten.

How, though, does Rashi understand the following statement of the Mishnah there, that it is not necessary to remove anything from a mixture with Orlah?

The MORDECHAI in Beitzah (#647) writes that when the Mishnah teaches that nothing needs to be removed from the mixture, it refers to a situation in which the pieces that are mixed together do not stand by themselves, but rather they are mixed in such a way that it is impossible to eat or derive benefit from one of the pieces without benefiting from another one as well. In such a case, since every bite certainly includes some permitted objects as well as the prohibited object, and the prohibited object will constantly remain mixed with the Heter, it is not necessary to remove one part before using the mixture (since doing so will be of no benefit). When, however, the parts of the mixture are mixed in such a way that it is possible for the person to use each object in the mixture individually and to eat the prohibited piece by itself, Rashi requires that one piece be discarded so that there should exist the possibility that the person is not eating the Isur when he eats each part of the mixture.

Another possible explanation is that Rashi follows the view of Tosfos in Chulin (100a, DH Biryah), who says that even when a prohibited food becomes Batel b'Rov, one person is prohibited to eat the entire mixture (see Insights there). For this reason, Rashi requires that a person discard one part of the mixture if he wants to eat, or benefit from, the entire mixture. When the Mishnah says that it is not necessary to remove a part from the mixture, it refers to a case in which the mixture is going to be consumed by a number of different people. In such a case it is not necessary to discard any part of the mixture.

This might be the intention of the REMA (YD 109:1), who cites the stringency of Rashi immediately after he expresses agreement with the view of the Shulchan Aruch, who cites the stringency of Tosfos (that one person should not eat all of the pieces of the mixture).

(b) Why does Rashi not permit the mixture of Chametz to be eaten?

1. The TZELACH (Pesachim 9a) suggests the following answer. The Gemara mentions that if the Mishnah's intention is to teach that a Kol she'Hu of Isurei Hana'ah is not Batel in a mixture, then it should mention Chametz as well, which is also Asur b'Kol she'Hu. This question of the Gemara, however, is problematic. Chametz should not be included in the list of the Mishnah, because there is a different reason for why a Kol she'Hu of Chametz is Asur in a mixture, besides the fact that it is an Isur Hana'ah. That reason is that Chametz is a "Davar she'Yesh Lo Matirin" -- a person can wait until after Pesach in order to eat it! (See KEREISI 110:3, AVODAS AVODAH here.)

The Tzelach suggests that indeed with regard to the Isur Achilah of Chametz, Chametz is a "Davar she'Yesh Lo Matirin" and is not Batel in a mixture. That is why Rashi writes that even though the Gemara concludes that Chametz should be Batel b'Rov since it is not a Davar she'b'Minyan, nevertheless it remains forbidden to be eaten. Why, then, should Chametz be Batel with regard to the Isur Hana'ah? A Kol she'Hu of Chametz should be forbidden in a mixture because it is a "Davar she'Yesh Lo Matirin"!

The Tzelach answers that there are two types of Hana'ah. One type of Hana'ah is one that depletes the object, such as when one smears a liquid on his skin, or feeds an object to his animal. The other type of Hana'ah is one that does not consume the object. An example of this type of Hana'ah is using an object as a weight to balance a scale, or using an object as a piece of apparel to protect oneself from the elements.

The Tzelach proposes that the rules of "Davar she'Yesh Lo Matirin" do not apply to the second category of Hana'ah. The reason for this is that the logic that prevents a "Davar she'Yesh Lo Matirin" from becoming Batel is that a person should wait until the object becomes permitted instead of eating it now when it is prohibited (see Rashi to Beitzah 4a). This applies to eating an object, since the object can be eaten only once, and therefore the person should wait until the time when the object becomes permitted in order to eat it. In contrast, with regard to benefiting from an object without using it up (such as by wearing it), a person can use and re-use the object numerous times. If the person waits until the object becomes permitted, then he will lose out on all the times that he could have used the object before that time. The rule of "Davar she'Yesh Lo Matirin" applies only if the person does not suffer a loss while waiting for the object to become permitted. However, in the case of an Isur Hana'ah (of the second category of Hana'ah), the person does suffer a loss by waiting. Therefore, if the object is mixed with other objects, it will become Batel b'Rov, and the person is not required to wait until the time that the prohibited object becomes permitted.

Even though this logic applies only to the second type of Hana'ah, the Tzelach proposes that since the principle that a "Davar she'Yesh Lo Matirin" is not Batel cannot apply to the second type of Hana'ah, the Rabanan did not apply it to Isurei Hana'ah altogether, and even the first type of Hana'ah is permitted when the prohibited object is Batel b'Rov.

This is why Rashi writes that Chametz on Pesach, which is not a Davar she'b'Minyan, will be forbidden to be eaten, but will be Mutar b'Hana'ah. Regarding the Isur Achilah, it is forbidden because it is a Davar she'Yesh Lo Matirin. It will be Mutar b'Hana'ah because the principle that a "Davar she'Yesh Lo Matirin" is not Batel does not prohibit an object b'Hana'ah.

2. Perhaps another approach may be proposed. The words of Rashi are quoted slightly differently by the RITVA and RAN. They omit the words, "The rest of the Chametz may be fed to his dog." This omission implies that the rest of the Chametz indeed may be eaten. Perhaps there were two different versions of Rashi's explanation, and they became mixed together in our text of Rashi, causing this apparent contradiction. As mentioned above, Rashi learns from the Mishnah in Orlah that a person must discard one object from the mixture before he eats or benefits from it. Why is this necessary? According to the explanation given earlier, this is done in order to avoid eating the object that was Asur. Hence, the requirement that a part of the mixture be discarded should apply equally to Isurei Achilah and Isurei Hana'ah.

However, another possibility is that the Mishnah requires that one piece be discarded in order that one not derive benefit from the prohibited object. (Before the object is discarded, it would be comparable to a "Davar she'Yesh Lo Matirin," since, by discarding it, it is possible to benefit from the mixture without deriving any monetary benefit from the prohibited object.)

If this is the way Rashi understands the Mishnah in Orlah (when it says that Orlah and Kil'ayim are "Olim" one part in 200), then it is necessary to discard an amount equivalent to the Isur only when the mixture contains an Isur Hana'ah. Moreover, one will be permitted to derive only monetary benefit from the mixture (since by doing so one will not be deriving monetary benefit from the Isur), but one will be prohibited to derive physical benefit from the mixture (such as by eating it or smearing it), since one will thereby be deriving benefit from the Isur. (Even though the use of the mixture is now limited, it still is better to limit the use of the mixture than to permit unlimited use of the mixture and allow the person to derive physical benefit from the Isur, since there is a way to permit the object for use without deriving benefit from the Isur. This is comparable to the Gemara in Beitzah (39a) which teaches that if an objected with a limited Techum Shabbos becomes mixed with other objects, the mixture may not be taken outside of the Techum of that object. See also RAN in Nedarim 52a.)

According to this explanation, if an object in a mixture is forbidden only to be eaten, but it is not Asur b'Hana'ah, then there should be no requirement to discard one object from the mixture, since by doing so one will not be accomplishing the removal of the Isur to any degree.

This may have been Rashi's intention in his first version. That version of Rashi's explanation did not include the words, "and one [piece of Neveilah] he should throw to the dogs," in the description of the mixture with Neveilah. In his second version, though, Rashi accepted the original explanation (mentioned in (a) above) for why it is necessary to discard one object from the mixture. One must discard one object so that he not end up eating the object of Isur. According to this explanation, the object must be discarded both in a case of an Isur Achilah and in a case of an Isur Hana'ah. However, once the object is discarded, the mixture will be permitted to be eaten even if the prohibited object in the mixture was an Isur Hana'ah. According to this version of Rashi, the words of Rashi must be read the way his comment is quoted by the Ritva and Ran, where the words "and the rest [of the mixture with Chametz] he may feed to his dogs" are omitted. (M. KORNFELD)

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