1) A MINORITY OF KUSIM WHO WORSHIP IDOLS
QUESTION: The Gemara explains that the reason why the Beis Din of Raban Gamliel decreed that the Shechitah of a Kusi is prohibited is that the Kusim were found worshipping a statue of a dove atop Har Gerizim. Even though the majority of Kusim do not worship the dove at Har Gerizim, and we should follow the majority and assume that the Kusi who slaughtered this animal is not an idol-worshipper, the Beis Din of Raban Gamliel sided with the opinion of Rebbi Meir who is "Chayish l'Mi'uta," concerned for the minority. Rebbi Meir maintains that we do not follow the majority when there is a Safek (a doubt), but rather we must take into account the minority. Therefore, since a minority of Kusim worship Avodah Zarah, we cannot follow the majority and accept the Shechitah of a Kusi.
The Gemara in Yevamos (119b), however, states that when a Chazakah supports the majority, even Rebbi Meir agrees that we follow the majority and we are not concerned for the minority. Since both a Chazakah and a Rov oppose the Mi'ut, the Mi'ut is considered a "Mi'uta d'Mi'uta" (a minority of a minority). Rebbi Meir is not concerned for a "Mi'uta d'Mi'uta."
Why, then, does the Gemara say that the Shechitah of every Kusi is not acceptable, according to Rebbi Meir? A majority of Kusim do not worship Avodah Zarah, and thus there is a Rov. Moreover, the Kusim initially were proper, Torah-abiding Jews, and thus every individual Kusi should have a Chazakah that he is a proper Jew and does not worship Avodah Zarah, unless there is evidence to the contrary. Accordingly, the Chazakah and the Rov together should relegate the Mi'ut to a "Mi'uta d'Mi'uta," and the Shechitah of a Kusi should be acceptable, even according to Rebbi Meir.
Also, the case of the Gemara involves a minority that exists only in an isolated area -- near Har Gerizim. It is illogical to assume that all Kusim, in all places, are wicked because of a few fools who disgraced themselves at Har Gerizim by worshipping a statue of a dove (as the Gemara later (95a) says, "Because of this fool who acted improperly, are we to prohibit meat of all the slaughterhouses?").
(a) The PNEI YEHOSHUA explains that the dispute between Rebbi Meir and the Chachamim about whether we must be concerned for the Mi'ut does not apply here in the same way that it applies in other places. Rebbi Meir does not prohibit the wine of Kusim because of the Mi'ut that worships Avodah Zarah, since that Mi'ut indeed is a "Mi'uta d'Mi'uta." However, since he maintains, in general, that we are concerned for a Mi'ut, here he makes a Gezeirah that we must be concerned for a "Mi'uta d'Mi'uta." (The Pnei Yehoshua suggests that even the Chachamim might agree with this Gezeirah here. Although they normally do not make Gezeiros due to concerns about a minority, in this case they have an interest in dissociating from the Kusim, and thus they might agree with such a Gezeirah.)
This is implied by the Gemara itself, which states that Rebbi Meir, who prohibited the wine of Kusim, was following his own reasoning that "Chayish l'Mi'uta," and "he enacted a decree prohibiting the majority due to the minority." Similarly, the Gemara says that Raban Gamliel decreed that the Shechitah of Kusim is forbidden. Why did he need to make a Gezeirah if Rebbi Meir already forbids it because of "Chayish l'Mi'uta"? The answer is that Rebbi Meir does not forbid it because of "Chayish l'Mi'uta," since it is a "Mi'uta d'Mi'uta." Rather, he forbids it because of a secondary Gezeirah (see Tosfos 86b, DH Semoch).
(b) REBBI AKIVA EIGER answers that the concern in this case is that the Kusi who performed the Shechitah is considered an idol-worshipper. If he is an idol-worshipper, then his Shechitah is invalid even if he performed a perfect Shechitah, because he has the status of a Nochri whose Shechitah is invalid. Although the possibility that this Kusi is an idol-worshipper is minute (because only a minority of Kusim worship idols), there is another Chazakah that joins this Mi'ut to counter the Rov (that most Kusim do not worship idols) and the first Chazakah (that this Kusi abides by the Torah). The opposing Chazakah, which joins the Mi'ut, is that the animal has a Chazakah that it is forbidden to be eaten, since, until the time of Shechitah, the living animal was forbidden to be eaten (see 9a and RASHI there, DH Behemah). TOSFOS in Beitzah (25a, DH b'Chezkas) maintains that the Chazakah that the animal was forbidden while alive is actually a Chazakah that it has not been slaughtered -- "Chezkas she'Einah Zevuchah." This Chazakah, therefore, supports the Mi'ut that states that the Shechitah is invalid (because the Kusi is an idol-worshipper). Accordingly, the concern that the animal was not slaughtered properly is not merely a "Mi'uta d'Mi'uta," but it is a Mi'ut for which Rebbi Meir maintains we must be concerned. (D. BLOOM)
2) HALACHAH: GIVING KUSIM THE STATUS OF NOCHRIM
OPINIONS: The Gemara says that the Chachamim decreed that the Kusim have the status of Nochrim.
Since the status of Kusim as Nochrim is only mid'Rabanan, does this mean that for matters that are mid'Oraisa, the Kusim should be treated like Jews in order not to be lenient? For example, if a Kusi is Mekadesh a Jewish woman, is he considered a Jew, l'Chumra, such that he is required to give her a Get? Similarly, may a Jew lend money to a Kusi with interest?
(a) The SHULCHAN ARUCH (EH 44:10) rules stringently and writes that the Kusim must be considered Jews with regard to matters that are mid'Oraisa.
(b) The RAMBAM (Perush ha'Mishnayos), however, rules that a Kusi is not considered a Jew even when giving him the status of a Nochri will result in a leniency (for example, a Kusi who betrothed a Jewish woman does not need to give her a Get to absolve the marriage). The SHACH (YD 159:5) also rules that a Kusi does not have the status of a Jew at all, and thus a Jew is permitted to lend money to a Kusi with interest.
What is the logic behind the Rambam's opinion? If a Kusi is a Jew mid'Oraisa, then why is he given the status of a Nochri? (TOSFOS YOM TOV to Nidah 4:7)
The CHASAM SOFER (Hagahos to OC 39) suggests a novel approach to answer the question of the Tosfos Yom Tov. He writes that "the Jewish people have the power to remove from their ranks an apostate, giving him the status of a complete Nochri, even with regard to matters of leniency." This would explain how the Gezeirah d'Rabanan is able to give all Kusim the status of Nochrim, even for matters that result in a leniency. (See also ME'IRI, end of first Perek of Yevamos (DH umi'Kan Hayu Ketzas Rabosai Chochechim Lomar), who quotes "a few of our teachers" who discuss the possibility that a Jewish apostate has the status of a Nochri.)
Perhaps another approach may be suggested. The Rambam understands the Gemara here based on his opinion (in Hilchos Isurei Bi'ah 13:14-18) that when a Nochri converts and there is a doubt about his sincerity, we wait to see how he acts in the future. If he demonstrates genuine sincerity, then we may assume that he fully accepted the Mitzvos upon himself and his conversion was valid. If his later actions demonstrate that he does not really fear Hash-m, then we assume that his intentions in converting were not sincere, and his conversion was not valid. Perhaps the Rambam maintains that when the Kusim were discovered worshipping a statue of a dove atop Har Gerizim, the Chachamim decided that they never sincerely accepted Torah and Mitzvos in the first place, and thus they are Nochrim even mid'Oraisa. (See TOSFOS 3b, DH Kasavar.) (M. KORNFELD)
3) THE TWO DECREES AGAINST THE KUSIM
QUESTIONS: The Gemara relates that when Raban Gamliel and his Beis Din decreed that the Shechitah of a Kusi is forbidden because some Kusim were found to be idolaters, their decree was not accepted. When, much later, Rebbi Ami and Rebbi Asi decreed that Kusim have the status of Nochrim, their decree was accepted.
There are two obvious questions: Why was the later decree of Rebbi Ami and Rebbi Asi accepted, and not the earlier decree of Raban Gamliel?
Moreover, the decree giving Kusim the status of idolaters seems to be based on the opinion of Rebbi Meir that "Chayish l'Mi'uta." However, the Halachah follows the opinion of the Chachamim who maintain that there is no concern for the Mi'ut. Why, then, does the Halachah follow the decree that gives all Kusim the status of Nochrim?
(a) RASHI answers the first question. He explains that the original decree was not accepted because, at that time, the Kusim had not yet become estranged from the mainstream populace. The Jews were friendly with the Kusim and were unwilling to separate themselves from them. Later, in the times of Rebbi and Rebbi Asi, contact between the Jews and the Kusim had decreased considerably, and the Jews were able and willing to dissociate from them entirely.
(b) The RAMBAN answers both questions. He explains that the original decree was not accepted because it was based on Rebbi Meir's opinion that "Chayish l'Mi'uta," which the Halachah does not follow. In the times of Rebbi Ami and Rebbi Asi, most of the Kusim had already become idolaters. The decree, at that time, was no longer based on "Chayish l'Mi'uta" but rather on "Rov," and therefore it was accepted.
The TORAS CHAIM adds that the Gemara itself alludes to this difference between the Kusim in the times of Raban Gamliel and the Kusim in the times of Rebbi Ami and Rebbi Asi. At the time of the first decree, the Chachamim referred to the need to separate from the Kusim by quoting the verse, "... Im Ba'al Nefesh Atah" (Mishlei 23:2), implying that it was merely a stringency because of "Chayish l'Mi'uta." When the Gemara describes the Gezeirah made by Rebbi Ami and Rebbi Asi, however, it refers to the Kusim by saying, "Leis Kan Shomrei Torah" -- none of the Kusim observe the Torah, implying that the need to separate from them is not merely a Chumra but is an absolute requirement due to the fact that most Kusim worship idols. (Z. Wainstein)
4) THE RELIABILITY OF A PERSON SUSPECTED OF SINNING
OPINIONS: The Gemara discusses the Halachic status of food that was given to an Am ha'Aretz to prepare. Is there a concern that perhaps the Am ha'Aretz exchanged the permitted food with Demai, or exchanged Tahor food with Tamei food?
The Rishonim write that the conclusion of the Gemara is that there is no need to be concerned that an ordinary Am ha'Aretz exchanges food given to him with his own food, unless he is one who is suspected of stealing. Accordingly, one may entrust tithed food with an Am ha'Aretz without concern that he will exchange it for his own food of Demai. Similarly, one may entrust Kosher cheese with a person who is suspected of eating forbidden cheese of Nochrim, and one may entrust Kosher bread with a person who is suspected of eating bread baked by a Nochri.
Does this Halachah extend to other cases of entrusting a permitted object with an Am ha'Aretz, who will process the object and return it to the owner?
(a) The RASHBA writes that one should be permitted to give hemp thread to a Jewish tailor to use to sew woolen garments, and there is no need to be concerned that he will replace it with linen thread (and transgress the Isur of Sha'atnez), even though the tailor is suspected of sewing garments of Sha'atnez. As long as he is not suspected of stealing, there is no concern that the Am ha'Aretz will replace the object that he received with a different object. This is the ruling of the RAN (1b of the pages of the Rif, DH Garsinan), who writes that as long as the Jewish tailor is not suspected of stealing, one may give him hemp thread with which to sew, because he is not suspected of stealing the hemp thread and replacing it with linen.
(b) However, the Rashba questions the application of this logic to the case of a tailor, since it is easier to sew with linen than with hemp. Consequently, perhaps one should be stringent in this case, since the tailor treats the prohibition of Sha'atnez lightly, and thus he might sew with linen in order to make his work easier. (The Rashba in Teshuvos (1:761) discusses the Halachah in the case of giving hemp thread to a Nochri tailor. He rules there that even if hemp thread is less expensive than linen, one must suspect that the Nochri tailor might use linen, because it will take him an hour to sew with linen what would take him an hour and a half to sew with hemp.)
(c) The REMA (YD 302:2) rules that one may give hemp thread to a tailor for a different reason. It is possible to test whether the threads he actually used are hemp or linen by touching a piece of thread to fire. Linen extinguishes the fire quickly, while hemp burns well. The SHACH (YD 302:4) adds that since it is possible to determine what type of thread he used, a professional tailor will not risk ruining his reputation by using a different type of thread. According to this reasoning, one may give his garment even to a Nochri tailor to mend. (D. BLOOM)
5) HALACHAH: TERUMAH AND MA'ASER IN CHUTZ LA'ARETZ
OPINIONS: The Gemara discusses the obligation to separate Terumos and Ma'aseros from produce of Beis She'an. If Beis She'an is not considered part of Eretz Yisrael, then produce that grows there is exempt from Terumos and Ma'aseros.
TOSFOS (DH v'Hitir) points out that there are a number of sources in the Gemara that imply that Terumos and Ma'aseros must be separated from produce of Chutz la'Aretz, mid'Rabanan. When is produce of Chutz la'Aretz obligated in Terumos and Ma'aseros, and when is it exempt?
(a) RABEINU TAM says that produce of Chutz la'Aretz is exempt only when it is Demai (when there is a doubt about whether or not Terumos and Ma'aseros have already been separated from the produce). Produce from which Terumos and Ma'aseros definitely were not separated is obligated. In the incident recorded in the Gemara, Rebbi permitted only produce of Demai in Beis She'an to be eaten without separating Terumos and Ma'aseros.
(b) TOSFOS says that Terumos and Ma'aseros must be separated in Chutz la'Aretz only from wheat, grapes, and olives, the three species from which Terumos and Ma'aseros must be separated mid'Oraisa. All other fruits and vegetables in Chutz la'Aretz are exempt. This might be the intention of RASHI (DH Es Beis She'an) as well.
(c) RABEINU DAVID of MELUN (cited by Tosfos to Avodah Zarah 59a) asserts that Terumos and Ma'aseros must be separated from all produce of Chutz la'Aretz. The only difference between produce of Chutz la'Aretz and produce of Eretz Yisrael is that there are certain leniencies for produce of Chutz la'Aretz (for example, one may eat some of the fruit before Terumos and Ma'aseros are separated). This is what Rebbi permitted in Beis She'an. (See also YOSEF DA'AS here.)
HALACHAH: The widespread practice today is not to separate Terumos and Ma'aseros from produce in Chutz la'Aretz. According to all of the opinions cited above, why does one not separate Terumos and Ma'aseros from any produce of Jewish-owned fields in Chutz la'Aretz?
TOSFOS here gives a number of reasons for why the practice is not to separate Terumos and Ma'aseros from produce in Chutz la'Aretz.
1. The only areas in Chutz la'Aretz in which one would have to separate Terumos and Ma'aseros are those areas that are adjacent to Eretz Yisrael. (See also RAMBAM, Hilchos Terumos 1:1.)
2. Since the Jewish residents must pay property tax to the government, the land is not considered to be owned by Jews, since the ruling power may confiscate it if the tax is not paid.
3. The Amora'im annulled the Takanah d'Rabanan to separate Terumos and Ma'aseros from produce of Chutz la'Aretz (as implied by the Yerushalmi, Demai 4:4).
4. The practice today is based on the conclusion of the Yerushalmi, which argues with the Bavli and maintains that there is no obligation at all to separate Terumos and Ma'aseros from produce of Chutz la'Aretz.
(It is interesting to note that the SEFER MA'ASEH RAV relates that the VILNA GA'ON planted a small field in Vilna and separated Terumos and Ma'aseros from his produce that grew there.)