BACKGROUND TO THE DAILY DAF
in memory of Reb David ben Aharon Ha'Levi Rosenwald z"l
Rosh Kollel: Rabbi Mordecai Kornfeld
[81a - 42 lines; 81b - 35 lines]
We recommend using the textual changes suggested by the Bach and the marginal notes of the Vilna Shas. This section is devoted to any OTHER important corrections that Acharonim have pointed out in the Gemara, Rashi and Tosfos
 Rashi 81a DH Nitko l'Asei נתקו לעשה:
The reference to Temurah 7b is a mistake. Rashi is referring to what was stated on the previous Daf (Chulin 80b)
 Rashi 81a DH Hasra'as Safek התראת ספק:
"v'Kashya Li..." וקשיא לי ... until the end of Rashi. After Rashi explains at length that the Gemara has nothing to do with Hasra'as Safek, he returns to the subject of Hasra'as Safek a number of times (in DH v'Azda, DH Patur). It appears that Rashi changed his approach to the Sugya with time, and the words "v'Kashya Li..." in our Rashi represent his original approach to the Sugya, which he retracted. He also rewrote DH u'Pasul on Daf 80b for this reason, as we pointed out in the Girsa section, Daf 80:4.
 Tosfos 81a DH Yom l'Hartza'ah יום להרצאה:
The word "Havahpaslinan"הוהפסלינן should be read as two words, "Havah Paslinan"הוה פסלינן
1) [line 1] נתקו לעשה NITKO L'ASEI (LAV HA'NITAK L'ASEI)
(a) A Lo Sa'asei she'Nitak l'Asei describes a negative commandment (Lo Sa'asei or "Lav") that is followed by a positive commandment (Asei) instructing us what to do if the Lav was transgressed. Usually, the Asei is an action that is performed to correct the Lav. For example, the Torah states, "Lo Sigzol" - "You shall not steal" (Vayikra 19:13); if someone transgresses this prohibition, the Torah tells him to correct his misdeed, "ve'Heshiv Es ha'Gezeilah" - "He shall return the stolen object" (Vayikra 5:23).
(b) At times the Asei follows the Lav (e.g. Temurah - Vayikra 27:10 and Nosar - see Background to Chulin 82:17) and at times it is found in a different Parshah altogether (e.g. Gezel).
2) [line 1] "[שׁוֹר אוֹ כֶשֶׂב אוֹ עֵז כִּי יִוָּלֵד, וְהָיָה שִׁבְעַת יָמִים תַּחַת אִמּוֹ, וּ]מִיּוֹם הַשְּׁמִינִי וָהָלְאָה יֵרָצֶה [לְקָרְבַּן אִשֶּׁה ה'.]" "[SHOR O CHESEV O EZ KI YIVALED, V'HAYAH SHIV'AS YAMIM TACHAS IMO, U']MI'YOM HA'SHEMINI VA'HAL'AH YERATZEH [L'KORBAN ISHEH LA'SH-M.]" - "[When a bull or a sheep or a goat is born, it will be under [the care of] its mother for [at least] seven days. And] from the eighth day and onward it will be acceptable [as a fire-offering to HaSh-m.]" (Vayikra 22:27) - See next entry.
3) [line 3] לאו הבא מכלל עשה, עשה LAV HA'BA MI'CHLAL ASEI, ASEI
(a) A Mitzvas Asei, a positive commandment, is not as stringent as a Lo Sa'asei in certain respects. For instance, one only receives Malkus for transgressing a Lo Sa'asei, not an Asei.
(b) A Lav ha'Ba mi'Chelal Asei is a prohibition that is learned by inference from a Mitzvas Asei. Since the prohibition is not explicit in the Torah but rather is learned from inference from a Mitzvas Asei, it is only as stringent as a Mitzvas Asei.
(c) An example of a Lav ha'Ba mi'Chelal Asei is the prohibition for a Yavam to marry the Tzarah, co-wife, of his Yevamah. The word "Aleha" in the Asei of "Yevamah Yavo Aleha" ("he should marry her") teaches that only the Yevamah is permitted to the Yavam; the Tzarah is forbidden (RASHI to Yevamos 11a, RAMBAM Hilchos Yibum 1:12).
(d) Our Sugya illustrates the case of "Mechusar Zeman" where the verse (see previous entry) commands that a sacrifice is only acceptable from the eighth day and onward. The prohibition against offering a sacrifice that is younger than this is a Lav ha'Ba mi'Chelal Asei.
4a) [line 8] לקדושה L'KEDUSHAH - for consecration [of the animal as a sacrifice]
b) [line 8] להרצאה L'HARTZA'AH - for acceptance (i.e. when the animal may be sacrificed)
5) [line 11] אותו ואת בנו OSO V'ES BENO
(a) It is forbidden to slaughter a cow, female sheep or female goat and her offspring on the same day, as it states in Vayikra 22:28, "v'Shor O Seh, Oso v'Es Beno Lo Sishchatu b'Yom Echad."
(b) At certain times of year (as enumerated in the Mishnah Daf 83a), it is assumed that one who buys an animal buys it in order to slaughter it immediately and use its meat. Therefore, the seller must inform the buyer if he sold the animal's mother (or offspring) on that day, so that the buyer will not transgress the prohibition of slaughtering the offspring (or the mother) on the same day that the mother (or the offspring) was slaughtered.
6) [line 12] שחיטה שאינה ראויה SHECHITAH SHE'EINAH RE'UYAH
(a) A proper Shechitah (ritual slaughter) that does not permit the animal to be eaten is referred to as a Shechitah she'Einah Re'uyah. (A Shechitah that was not performed properly is not a Shechitah she'Einah Re'uyah. It is not a Shechitah at all.)
(b) There is a Machlokes Tana'im whether a Shechitah that does not permit the animal to be eaten has the title of "Shechitah" (for various Halachic purposes other than for eating, such as to obligate a Ganav - who slaughters an animal that is found to be a Tereifah - to pay Arba'ah v'Chamishah and such as for the prohibition of "Oso v'Es Beno" to apply).
7) [line 22] ואמרי לה כדי V'AMRI LAH KEDI - (a) and some say it was asked without a specific sage's name being mentioned (ibid.); (b) and some say it was [stated by a sage named] Kedi (MAHARSHAL to Bava Metzia 2a citing RASHI, possibly referring to Gitin 85b DH v'Lurchei #2, but see YOSEF DA'AS to Bava Metzia 2a)
8) [line 22] חסורי מיחסרא CHESUREI MECHASRA - it is certainly missing [some text] (see Insights to Bava Kama 39:1:a)
9) [line 25] שחוטי חוץ SHECHUTEI CHUTZ
The Torah obligates a person to bring to the Beis ha'Mikdash all Kodshim that are fit to be offered as sacrifices, as it states in Vayikra 17:1-7. Besides the Mitzvas Asei, there is a Lav prohibiting slaughtering them outside of the Azarah ("Shechutei Chutz") and burning them or parts of them outside of the Azarah ("Ha'ala'as Chutz"). In addition, the Tana'im learn (Sanhedrin 34b) that Zerikas ha'Dam (casting the blood) of a sacrifice outside of the Azarah is also prohibited. The punishment for transgressing these prohibitions is Kares (ibid. 17:9; SEFER HA'CHINUCH #186), and the animal remains Asur b'Hana'ah (i.e. it is prohibited to derive any benefit from it).
10) [line 36] התראת ספק HASRA'AS SAFEK - a warning that is in doubt
(a) If a person transgresses a Lav for which the punishment is the death penalty or lashes, he can only be put to death or lashed if he has been given a proper Hasra'ah (warning). The warning must be, "Abstain, because this action is prohibited and you will be punished with the death penalty or lashes for doing it," or something to that effect. If the warning is, "Abstain, because this action might be prohibited..." it is called Hasra'as Safek. If it turns out that a transgression was done, the Amora'im argue as to whether Malkus may be administered.
(b) For example, witnesses warn a person who was slaughtering a Korban Pesach, "Do not slaughter that Korban, since you may own Chametz." Even if he did possess Chametz at the time, he does not receive Malkus according to the opinion that Hasra'as Safek is not a Hasra'ah, since the witnesses did not warn him that he was about to transgress a prohibition; rather, they warned him that he might transgress a prohibition.
(c) Another example (Yevamos 101a, mentioned in passing on Chulin 82b) is if a woman re-married two months after her divorce and bore a child seven months later. The child knows that one of the two husbands is his father, but he does not know which one. If he is warned not to bruise one of the two Safek-fathers, that warning is a Hasra'as Safek. According to the opinion that Hasra'as Safek in not a good Hasra'ah, even if the son wounds both men one after the other he does not receive the death penalty. He receives the death penalty only if he hit them both at the same time, after being warned that if he hits both of them together he will be punished with the death penalty.
11) [line 8] פרת חטאת PARAS CHATAS (PARAH ADUMAH)
(a) The Parah Adumah, an exclusively red-haired cow, is burned on Har ha'Zeisim and its ashes are used for making a person Tahor if he is Tamei Mes (Bamidbar 19:1-22). Only a cow that has not had a yoke placed upon it and has had no other work done with it is fit to be used as a Parah Adumah (Bamidbar 19:2).
(b) A place is prepared for its slaughter on Har ha'Zeisim, opposite the gate to the Azarah (the courtyard of the Beis ha'Mikdash). After it is slaughtered, its blood is sprinkled in the direction of the Beis ha'Mikdash seven times. Performing another action while slaughtering the Parah Adumah, such as cutting a gourd, invalidates the Parah (Chulin 32a, SIFREI Chukas 19:3).
(c) Sereifas ha'Parah (burning the cow) is also performed on Har ha'Zeisim. A cedar branch, some Ezov branches and a piece of crimson wool, are thrown into the carcass of the cow while it is burning (Bamidbar 19:6).
(d) If a person (or utensil) became Tamei through touching Tum'as Mes or being in the same room as a corpse or something that is Metamei b'Ohel, he must wait seven days to become Tahor. On the third and seventh days he must have spring water mixed with the ashes of the Parah Adumah (Mei Chatas) sprinkled on him. A person who is Tahor dips three Ezov branches that have been bound together into the mixture, and sprinkles them on the person who is Tamei. On the seventh day, he immerses in a Mikvah after the mixture is sprinkled on him in order to complete his Taharah (Bamidbar 19:17-19).
12) [line 9] שור הנסקל SHOR HA'NISKAL
(a) The term Shor ha'Niskal refers to any animal or bird that is stoned to death by Beis Din. Such an animal is Asur b'Hana'ah after the death sentence is issued. One of the instances of Shor ha'Niskal is an animal that killed a person, as described in Shemos 21:28-31.
(b) In the event that an animal killed a person, only if two witnesses saw the act is the animal stoned by Beis Din and Asur b'Hana'ah. If only one witness saw it, or if there were no witnesses but the owner told Beis Din of the incident, the animal is not stoned and is Mutar b'Hana'ah. If it is a type of animal that is normally fit to be brought as a Korban, it is Mutar b'Hana'ah but is unfit to be brought as a Korban.
13) [line 9] עגלה ערופה EGLAH ARUFAH
(a) If a Jew is found murdered in a field (in Eretz Yisrael) and it is not known who the murderer is, the Torah requires that an Eglah Arufah be brought in order to atone for the blood that was spilled (Devarim 21:1). The procedure is as follows:
(b) Five elders (according to the opinion of Rebbi Yehudah, which is the Halachah) of the Beis Din of the Lishkas ha'Gazis (the Jewish Supreme Court) measure the distance between the dead body and the cities around it to determine which city is closest to it.
(c) The elders of the city that is closest to the corpse must bring a female calf that has never been worked (see Background to Bava Metzia 30:12:b) to a Nachal Eisan (a swiftly flowing stream - RAMBAM Hilchos Rotze'ach 9:2; a valley with tough soil - RASHI). They strike it on the back of its neck (Arifah) with a cleaver, severing its spinal column, gullet and windpipe. This calf is the "Eglah Arufah" and becomes Asur b'Hana'ah.
(d) The elders of the closest city then wash their hands there and say, "Our hands have not spilled this blood, and our eyes did not see [the murder]" (Devarim 21:7). This includes a proclamation that the dead man was not sent away from the city without the proper food for his journey or the proper accompaniment. The Kohanim that are present say, "Atone for Your people Yisrael whom You have redeemed, HaSh-m, and do not place [the guilt for] innocent blood in the midst of Your people, Yisrael" (ibid. 21:8). After this procedure, HaSh-m will grant atonement for the innocent blood that was spilled (RAMBAM Hilchos Rotze'ach 9:3).
(e) The calf that is used as the Eglah Arufah must be fully healthy and cannot be a Tereifah, as the Gemara (Daf 23b) derives from the verse (Devarim 21:6; see TOSFOS to Chulin 23b DH ha'Arufah).
14) [line 11] הנוחר HA'NOCHER (NECHIRAH)
Nechirah refers to killing an animal not by Shechitah, by rather by sticking a knife into its nostrils ("Necherei") and cutting its throat, all the way down to its chest (RASHI to Chulin 17a, DH veha'Nocher, and to Bava Kama 78b DH ha'Nocher). (Although Rashi later (Daf 85b, DH Nochro) explains that Nechirah involves "strangling" the animal, it is clear from Rashi's words to the Mishnah (Daf 15b, DH she'Hem) that "strangling" refers to any form of asphyxiation, including the tearing of the animal's trachea. See also ARUCH Erech Nachar, and RASHBA in Teshuvos (3:363).)
15) [line 11] המעקר HA'ME'AKER - one who "rips out" the Simanim from the neck and then cuts them. Similarly, one may not cause the Simanim to tear during Shechitah, such as by cutting them with a dull blade.
16) [line 15] קם ליה בדרבה מיניה KAM LEI BID'RABAH MINEI - literally, "he remains with the worse of the two," or, "a more severe punishment exempts one from the less severe one"
(a) When one performs a single act from which he incurs two punishments, or a punishment and a monetary liability, the more severe punishment exempts the sinner from the less severe one. For example, one who stabs another to death will not have to pay for the shirt that he tore while stabbing.
(b) This rule is only true if the two punishments, or the punishment and the monetary liability are caused by a "single action." If one follows the other, even by one second, the sinner is punished with both punishments. The Gemara (Kesuvos 31a) questions what defines the difference between "a single action" and different actions. According to one opinion, the entire series of actions which define the more severe sin are considered a single action with regard to Kam Lei bid'Rabah Minei.
(c) There are a number of situations in which this rule does not apply:
1. Rebbi Meir rules that it only applies to a death penalty. One who is punishable with Malkus, though, is required to pay as well as to receive Malkus. (Kesuvos 33b)
2. If one sins b'Shogeg, Kam Lei bid'Rabah Minei does not necessarily apply (that is, since no actual punishment is executed, the potential punishment does not exempt the sinner from monetary liability), as follows: If the sin is one which warrants the death penalty, Rav Dimi holds that Rebbi Yochanan and Reish Lakish disagree whether Kam Lei bid'Rabah Minei applies, while Ravin says that they both agree that it applies. If the sin is one which warrants Malkus, Rebbi Yochanan and Reish Lakish disagree whether Kam Lei bid'Rabah Minei applies. (Kesuvos 34b-35a)
3. In certain cases, if the monetary liability is paid to a person other than the victim, the sinner may be liable to pay even though he is also punished with the death penalty or Malkus.
4. When the more severe punishment is Kares, there is an argument among the Tana'im as to whether Kam Lei bid'Rabah Minei applies. Rebbi Nechunyah ben Hakanah rules that it applies while the Chachamim argue.
*17*) [line 23] חייבי מיתות שוגגין וחייבי מלקות שוגגין CHAYAVEI MISOS SHOGEGIN V'CHAYAVEI MALKUS SHOGEGIN - that is, people who committed capital crimes or transgressed prohibitions that are liable to Malkus (lashes) and did not receive a proper warning
18) [line 24] ודבר אחר V'DAVAR ACHER - "and another thing," i.e. and along with the capital crime (or the prohibition that is punished with Malkus) the person performed an action that creates another liability (see above, entry #16)
19a) [line 29] בהא B'HA - "with this," i.e. with regard to the case of Oso v'Es Beno, when the second animal was slaughtered for Avodah Zarah purposes
b) [line 31] בהא B'HA - "with this," i.e. with regard to the case of Chayavei Misos (and Malkus) Shogegin v'Davar Acher
20) [last line] טומאת אוכלין TUM'AS OCHLIN
(a) See Background to Chulin 33:28.
(b) All foods become Tamei if they touch a source of Tum'ah, but only after they first become wet. From then on, even after they dry, they can still become Tamei. Seven liquids can enable foods to become Tamei: water, dew, oil, wine, milk, blood, and bee's honey. The minimum amount of food that can become Tamei is a k'Beitzah. The modern equivalent of a Beitzah is 0.05, 0.0576 or 0.1 liter, depending upon the differing Halachic opinions.
(c) In order for something edible to receive Tum'as Ochlin, it has to be considered food. A person's intention to eat the item and treat it as a food gives it the status of a food and it can receive Tum'as Ochlin. Once food becomes Tamei, it cannot become Tahor by immersing it in a Mikvah. Rebbi Shimon rules that the flesh of a Parah Adumah, that became Tamei through contact with a Sheretz, can cause a food to become Tamei by touching it. Even though the flesh of the Parah Adumah is forbidden in benefit and thus should not be considered "food," nevertheless since it has a time at which it is permitted (as the Gemara explains; see next entry), it is considered "food" with regard to Tum'as Ochlin.
21) [last line] היתה לה שעת הכושר HAYESAH LAH SHE'AS HA'KOSHER - it had a certain time when it was fit [to be eaten, such as if, after it was slaughtered, Beis Din found a nicer Parah Adumah to use for the Mitzvah, and decided to redeem the first one that was slaughtered. Even if they subsequently did not redeem it, it did have a She'as ha'Kosher.]