QUESTION: The Mishnah discusses the case of an animal that has two "pockets" (scrotum) but there is a doubt about whether each one contains a testicle. Rebbi Akiva says that it is possible to test the contents of the pockets by performing a clinical examination of the animal. The animal is situated on its hindquarters, and the examiner presses down on the pockets and the Kesalim, or flanks (the Kesalim are where the upper legs, or thighs, connect to the rest of the body; see RASHI to Chulin 30b and RIF there). If the pocket contains a testicle, then it will "come out" from its concealed place in the pocket and become discernible from the outside.

The Gemara cites a Beraisa in which Rebbi Yosi says that it once occurred that they examined a cow in the manner prescribed in the Mishnah and no testicle was discerned. After the animal was slaughtered (under the assumption that it was a Ba'al Mum), a testicle was found clinging to the inner wall of the Kesalim. Rabbi Akiva permitted the animal (as Rashi explains in the Mishnah, since the testicle was out of place, it is considered a Mum and the Bechor is permitted to be eaten), while Rebbi Yochanan ben Nuri forbade it (because, as Rashi (DH Kodshim) explains, the Bechor does not possess a Mum and thus it is still Kadosh and may not be slaughtered outside the Beis ha'Mikdash). Rebbi Akiva said to Rebbi Yochanan ben Nuri, "Until when will you waste the money of Yisrael (by forbidding it)!" Rebbi Yochanan ben Nuri responded, "Until when will you feed Kodshim ba'Chutz (Kodshim that was slaughtered outside of the Beis ha'Mikdash) to the Jewish people!"

Why did Rebbi Yochanan ben Nuri argue specifically that Rebbi Akiva was feeding Kodshim ba'Chutz to the Jewish people? He could have argued that Rebbi Akiva was allowing the people to slaughter Kodshim outside of the Beis ha'Mikdash, thereby transgressing the Isur Kares of Shechutei Chutz (Vayikra 17:9). It would have been more logical for Rebbi Yochanan ben Nuri to mention the Isur of slaughtering Kodshim outside of the Beis ha'Mikdash, because the Torah (Devarim 12:13) mentions the Isur of slaughtering Kodshim ba'Chutz before it mentions the Isur of eating Kodshim ba'Chutz (Devarim 12:17).

(a) The SHAI LA'MORA suggests that we can understand Rebbi Yochanan ben Nuri's argument based on the ruling of the RA'AVAD (Hilchos Ma'aseh ha'Korbanos 18:17). The Ra'avad rules that if one slaughters Kodshim ba'Chutz at night and offers the Korban ba'Chutz at night, he is exempt from punishment for Shechutei Chutz (see Insights to Zevachim 111:2). According to this ruling, there are situations in which one is not Chayav for Shechutei Chutz. In contrast, one is always Chayav for eating Kodshim ba'Chutz, even if he eats it at night. Therefore, Rebbi Yochanan ben Nuri argued that Rebbi Akiva was causing the Jewish people to transgress the Isur of eating Kodshim ba'Chutz, since that Isur applies in all situations.

(b) However, the RAMBAM (ibid.) maintains that one is Chayav for slaughtering Kodshim outside of the Beis ha'Mikdash even at night. Why, then, did Rebbi Yochanan ben Nuri argue that Rebbi Akiva was causing the people to eat Kodshim ba'Chutz?

The Shai la'Mora suggests another approach. The Rishonim discuss the question of a sick person who must eat meat on Shabbos in order to save his life. There is meat of Neveilah available, but there is no Kosher meat. Is it preferable to slaughter an animal on Shabbos (thereby transgressing the Melachah of Shochet) in order for the sick person to eat Kosher meat, or must the sick person eat the Neveilah meat in order to avoid a desecration of Shabbos?

The RAN in Yoma (4b of the pages of the Rif) writes that even though the prohibition of Neveilah is only a Lo Sa'aseh while the Isur of Melachah on Shabbos is an Isur punishable with Sekilah, nevertheless in a different respect Neveilah is more severe than Shabbos. If the sick person would eat the Neveilah, he would transgress many Lavim, because there is a Lav on every k'Zayis that he eats. If, however, he slaughters an animal on Shabbos, he transgresses only one Isur at the moment that he performs the Shechitah. Therefore, the Ran maintains that one should slaughter an animal and provide the sick person with Kosher meat rather than give him the meat of Neveilah.

The Shai la'Mora suggests that, similarly, the Isur of eating Kodshim ba'Chutz is more severe than the Isur of slaughtering Kodshim ba'Chutz, because when one eats Kodshim ba'Chutz he transgresses an Isur on every k'Zayis that he eats. When he slaughters ba'Chutz, he performs only one Isur at the moment that he slaughters the animal.

(c) The Shai la'Mora adds that a more likely answer may be inferred based on the Gemara in Zevachim (107b) in which Rebbi Yochanan states that one who offers Kodshim nowadays, when there is no Beis ha'Mikdash, is Chayav. TOSFOS in Zevachim (59a, DH Ad she'Lo) asserts that this refers only to offering the Ketores (incense), but not to slaughtering animals of Kodshim. The Isur of Shechutei Chutz does not apply when the Beis ha'Mikdash is not standing.

According to the view of Tosfos, it is clear why Rebbi Yochanan ben Nuri did not accuse Rebbi Akiva of causing the people to slaughter Kodshim ba'Chutz. Rebbi Akiva and Rebbi Yochanan ben Nuri lived after the Churban, when the Isur of Shechutei Chutz does not apply. Therefore, Rebbi Yochanan ben Nuri mentioned only the Isur of eating Kodshim ba'Chutz.

The Shai la'Mora adds that even according to the Rambam (Hilchos Ma'aseh ha'Korbanos 19:15), who rules that one who slaughters Kodshim nowadays and offers them outside the courtyard of the Beis ha'Mikdash is Chayav, he is Chayav only if he both slaughters and offers them, but he is not Chayav for Shechitah alone (see MISHNEH L'MELECH there). Since there is no Isur of Shechutei Chutz alone nowadays, Rebbi Yochanan ben Nuri challenged Rebbi Akiva only from the fact that he was causing people to eat Kodshim ba'Chutz.

(d) The Shai la'Mora suggests another answer. In the case of the Beraisa, the Bechor came from Chutz la'Aretz. Rebbi Akiva maintains (Temurah 21b) that one may not offer a Bechor from Chutz la'Aretz as a Korban. The Gemara in Zevachim (112a) derives from the verse (Vayikra 17:9) that one is Chayav for Shechutei Chutz only when he slaughters an animal that is fit to be offered in the Beis ha'Mikdash. If the animal is not fit to be offered in the Beis ha'Mikdash, then one does not transgress the Isur of Shechutei Chutz. Accordingly, there is no Isur of Shechutei Chutz even when one slaughters a Bechor from Chutz la'Aretz that has no Mum. Nevertheless, there still is an Isur to eat Kodshim ba'Chutz in such a case. Rebbi Yochanan ben Nuri challenged Rebbi Akiva by saying that he is feeding Kodshim ba'Chutz to the people, because even according to Rebbi Akiva's own view that there is no Isur of Shechutei Chutz (for a Bechor of Chutz la'Aretz, since it cannot be offered in the Beis ha'Mikdash), there still is an Isur of eating Kodshim ba'Chutz. (D. BLOOM)

OPINIONS: The Mishnah teaches that a Bechor is considered to be a Ba'al Mum when "one eye is large, and one eye is small." The Beraisa explains that a large eye is an eye the size of a calf's eye, and a small eye is an eye the size of a goose's eye.

Do the Mishnah and Beraisa mean that both eyes were blemished, with one too large and one too small, or do they mean that one eye was blemished, with one eye too large or one eye too small? (TOSFOS REBBI AKIVA EIGER)

(a) RASHI and TOSFOS clearly understand that the Bechor is a Ba'al Mum when only one eye is malformed, either too large or too small (see Rashi to 3b, DH O Achas; 35a, DH Ro'ei Kohanim; Tosfos to 44a, DH Machvei).

(b) The TUR (YD 309) and the RAMBAM (Perush ha'Mishnayos) explain that the Mum described in the Mishnah is when one eye is as large as a calf's eye and the second eye is as small as a goose's eye.

(c) The SEFAS EMES suggests that perhaps there actually is no difference between the two possible readings. A calf is one of the types of animals that can be Kadosh as a Bechor. Why, then, should a firstborn calf that has an eye the size of a calf's eye be a Ba'al Mum? That is the normal size of its eye! It must be that the Beraisa is saying that when only one of the calf's eyes is the size of a calf's eye -- while the other is the size of a goose's eye -- the calf is a Ba'al Mum.

Accordingly, it is a Mum when the defect exists in only one eye, but the Beraisa, which is discussing a calf, is referring to the two eyes of the calf when it says that one is the size of a calf's eye (the normal size) and the other is the size of a goose's eye (and is abnormal). The Tur does not mean that there must be a mutation in the size of both eyes at once. (When Rashi mentions that even one eye the size of a calf's is considered a Mum, he obviously is referring to a sheep or goat.)

OPINIONS: The Mishnah teaches that a Bechor is considered to be a Ba'al Mum when "one ear is large, and one ear is small." The Mishnah adds, "By appearance, but not by measurement." What is the Mishnah's intention when it adds these words?

(a) RASHI (DH b'Mar'eh) explains that the Mishnah means that an oversized ear is a Mum only when it is immediately apparent to the observer. If the ear is found to be larger than normal only when it is measured, it is not considered a Mum. (According to this interpretation, the requirement that the abnormal size be visible to the observer applies to both the Mum of ears and the Mum of eyes.)

(b) The RAMBAM (Hilchos Bi'as ha'Mikdash 8:3, 8:6) understands that the Mishnah means that the Mum of a large ear and a small ear is that one of the two ears has a strange appearance (for example, it is folded up or spread out), and not necessarily that one ear is larger or smaller than the other. (Eyes, on the other hand, must be similar in size as well as similar in appearance in order not to be a Mum.)

(c) RABEINU GERSHOM gives a novel interpretation of the Mishnah. Although the Beraisa describes exactly what type of eye is considered to be too large or too small, it does not mention what is considered to be a large ear or small ear. This implies that with regard to ears, even a small difference in size is considered a Mum (perhaps because ears are larger and more conspicuous than eyes). This is the intention of the Mishnah as well. The Mishnah is teaching that even a small difference in size in the ears is considered a Mum.

According to Rabeinu Gershom's explanation, it seems that when the Gemara paraphrases the words of the Mishnah between two colons, "Ozno Achas Gedolah v'Chulei," these words are actually the end of the Beraisa that teaches that when one eye is like a calf's and one eye is like a goose's eye, it is a Mum. The Beraisa continues and says, "With regard to ears, no sizes were given." (According to Rashi's interpretation, however, the words in the Gemara, "Ozno Achas Gedolah v'Chulei," seem to have no place here and should be omitted.)

OPINIONS: In the Mishnah, the Tana Kama rules that an animal is a Ba'al Mum when its tail does not reach the Arkuv (the middle joint of the hind legs). The Chachamim comment that "most calves grow this way." Are the Chachamim agreeing or disagreeing with the Tana Kama's statement?

(a) RASHI (DH Kol) explains that the Chachamim agree with the Tana Kama. They merely are explaining why the tail does not need to be much longer than the Arkuv. Although most calf-tails appear to reach further than the Arkuv, that is not the way they begin; they begin short and stretch out later in life. Most calf-tails, however, do begin at least as long as the Arkuv, and thus a tail of a shorter length is considered a blemish.

(b) The RAMBAM (Perush ha'Mishnayos) explains that the Chachamim disagree with the Tana Kama. They rule that a tail that does not reach the Arkuv is not a Mum in a calf, because most calves start off with tails shorter than the Arkuv which later grow longer.