1) THE THINGS THAT A TALMID CHACHAM MUST LEARN
QUESTION: Rav Yehudah in the name of Rav says that a Talmid Chacham must learn three things: Kesav, Shechitah, and Milah. Rav Chananya bar Shelamya in the name of Rav adds that a Talmid Chacham also must be familiar with the tying of the knot of the Tefilin, Birkas Chasanim, and the tying of Tzitzis.
The Gemara asks why Rav Yehudah does not mention the three things that Rav Chananya mentions. The Gemara answers that "these are more common."
What is the Gemara's answer? Does it mean that the ones in Rav Yehudah's list are more common, or that the ones in Rav Chananya's list are more common? Moreover, why is degree of frequency a reason for Rav Yehudah to omit the things in Rav Chananya's list?
(a) RASHI explains that the things listed by Rav Chananya are more common (the tying of the knot of the Tefilin, Birkas Chasanim, and the tying of Tzitzis). Since they are so common, there is no need to tell a Talmid Chacham to learn them, because everyone learns them over the course of time.
(b) TOSFOS in Menachos (35b) takes the opposite approach. The things listed by Rav Yehudah are more common (Kesav, Shechitah, and Milah). Since they are more common, it is necessary for a Talmid Chacham to study them in order to be proficient in them.
(c) The ROSH (1:12) in the name of RABEINU TAM explains that the things in Rav Chananya's list (Tefilin, Birkas Chasanim, and Tzitzis) are more available. One who needs them can easily find professional services that offer them at a fee, and therefore it is not the Talmid Chacham's responsibility to learn them. This is also the intention of TOSFOS here.
(It is unlikely that these three opinions argue about the facts in reality. They probably all agree that the need for the things of both lists may arise equally. Rashi's intention is that the first three (Kesav, Shechitah, and Milah) require more than basic textbook knowledge. They require physical dexterity, which is impossible to acquire without actual practice. It is these three that must be actively "learned" (i.e. practiced). Tosfos seems to understand that the "Kesav" mentioned refers to the skill of "Safrus," writing Sifrei Torah, Tefilin, and Mezuzos (unlike Rashi). Accordingly, the three things in Rav Yehudah's list require the proficient knowledge of a large section of Halachah, while the three things in Rav Chananya's list require no such knowledge. Even unlearned Jews can learn the technical details of knotting Tefilin and Tzitzis, and can memorize the text of the Sheva Berachos blessings, while the first three things are limited to the domain of the scholarly. Due to the difficult and complex nature of the first three things (Safrus, Shechitah, and Milah), these things are in great demand from Talmidei Chachamim, and in that respect they are "more common." The ROSH learns that the second group (Tefilin, Birkas Chasanim, and Tzitzis) were more commonly available for the same reason.) (M. KORNFELD)
2) HALACHAH: A "SHOCHET" WHO PERFORMS AN INVALID "SHECHITAH"
QUESTION: The Gemara teaches that a Shochet must examine the animal after Shechitah to ensure that he cut the Simanim properly. When the Shochet failed to examine the Simanim after Shechitah, the Tana'im argue about whether the animal is considered a Tereifah or a Neveilah. According to both views, however, the Shechitah is invalid and the meat of the animal may not be eaten.
What is the Halachah in a case in which the Shochet forgot to examine the Simanim of an animal that he slaughtered for someone else, and then the Simanim became lost? Since the animal is rendered unfit to be eaten, is the Shochet obligated to reimburse the owner for the animal?
ANSWER: A similar case is discussed by the Poskim. The Halachah requires that the Shochet examine his knife before the Shechitah in order to make sure that it is not blemished in any way. If the Shochet slaughters an animal without examining his knife first, and then, after the Shechitah, he finds that the knife is blemished, the Shechitah is considered invalid and the animal unfit to eat. The LEVUSH (YD 18) and TAZ (ibid.) write that in such a case the Shochet is obligated to pay the owner of the animal for the damage caused by his negligence in rendering the animal unfit to eat, even if he was slaughtering the animal for free. (The Taz argues with the Levush in a case in which multiple animals were slaughtered, and the Shochet examined the knife before the first Shechitah but not before the Shechitah of each subsequent animal, and then, after the last Shechitah, he found the knife to be blemished. See the Taz and BE'ER HEITEV at length.) The Shochet's action is considered as though he was "Mazik b'Yadayim" (he directly damaged the animal with his hands).
Does the same Halachah apply in the case of the Gemara here?
The DARCHEI TESHUVAH (YD 25:2) writes that the two cases are different. In the case of a Shochet who failed to examine his knife before the Shechitah, his act of Shechitah is considered tantamount to cutting apart the animal with a knife; it is not a valid Shechitah at all. However, in the case of a Shochet who failed to examine the Simanim after the Shechitah, the Shechitah itself was performed properly; his act of Shechitah cannot be viewed as an act of "Mazik b'Yadayim." Although his failure to examine the Simanim after the Shechitah rendered the animal unfit and causes a loss to the owner of the animal, it is a passive act of damage, and the Shochet cannot be obligated by Beis Din to pay for such an act of damage (although the Shochet is obligated to pay b'Dinei Shamayim). The Darchei Teshuvah compares this case to the case of a witness who withholds testimony in a monetary dispute, causing the defendant to have to pay money that he would not have had to pay had the witness testified for him. In that case, the SHULCHAN ARUCH (CM 28:1) states that the witness cannot be obligated to pay by Beis Din (but he is obligated to pay b'Dinei Shamayim).
However, the Darchei Teshuvah retracts this approach and writes that the case of the Gemara is not comparable to the passive damage done by a witness who does not testify. In the case of the Gemara, when the Shochet performs the act of Shechitah, his act is done with the condition that he will also examine the Simanim afterwards to make sure that the animal was slaughtered properly. Since the Shochet did not fulfill this condition, it turns out that his act of Shechitah was not done with the permission of the owner. His Shechitah is considered, therefore, an act of direct damage, "Mazik b'Yadayim," and he is obligated to pay. The Darchei Teshuvah adds that he later found this ruling in the YESHU'OS YAKOV (YD 2:4). (Y. MONTROSE)
3) THE "CHEZKAS ISUR" OF AN ANIMAL
OPINIONS: The Gemara teaches that a Shochet must examine the animal after Shechitah to ensure that he cut the Simanim properly. When the Shochet failed to examine the Simanim after Shechitah, the Tana'im argue about whether the animal is considered a Tereifah or a Neveilah. According to both views, however, the Shechitah is invalid and the meat of the animal may not be eaten. Until it is known that a proper Shechitah was done, the animal has a "Chezkas Isur"; it is presumed to be forbidden since, when it was alive, it was forbidden to be eaten.
The Rishonim argue about what Isur gives the animal its Chezkas Isur.
(a) RASHI (DH Behemah) maintains that the Chezkas Isur is based on the Isur of Ever Min ha'Chai, eating part of a live animal. While the animal is alive, it is forbidden to be eaten because of the Isur of Ever Min ha'Chai.
TOSFOS (Beitzah 25a, DH b'Chezkas) questions Rashi's explanation. The Isur of Ever Min ha'Chai departs as soon as the animal dies. How, then, can that Isur be the basis of a Chezkas Isur that remains even when the animal is dead, after the Isur of Ever Min ha'Chai certainly no longer applies?
The RASHBA here comments that Tosfos' question on Rashi's explanation is not so strong. Perhaps the principle of "Machzikin me'Isur l'Isur" applies. When an animal was once prohibited for any reason, and there is possibility that it is still prohibited due to a different reason, the rules of Chazakah apply. The animal remains Asur until there is proof that it is Mutar.
(b) TOSFOS (ibid.) maintains that the Chezkas Isur of a live animal is based on the Isur against eating any animal that was not properly slaughtered. This Isur is an "Isur Aseh" that stems from the Mitzvas Aseh of "Tizbach v'Achalta" -- "You shall slaughter and eat" (Devarim 12:21), which prohibits one from eating meat that is not slaughtered properly. This Isur obviously does not depart from the animal just because it is dead. (The RITZBA, however, as quoted by Tosfos in Shevuos 24a, DH ha'Ochel, questions the existence of such an Isur Aseh.)
4) A DOUBT ABOUT WHO MOVED AN OBJECT
QUESTION: The Gemara discusses a vessel filled with water that was designated to be used for the Mei Chatas (the water used in the sprinkling of the ashes of the Parah Adumah). The vessel was left uncovered, and then it was found to be covered. The water inside the vessel is deemed Tamei and no longer may be used as Mei Chatas, because it is assumed that a Tamei person placed the cover on the vessel, rendering its contents Tamei.
TOSFOS (DH she'Ani Omer) asks that the Gemara in Nidah (4a) gives the opposite ruling. The Gemara there discusses a case of bread that was left on a shelf. Immediately below the shelf was clothing that was Tamei. The bread was later found on the floor, and it is clear from the way in which the bread was situated on the shelf that the bread would have had to touch the clothing if it fell from the shelf to the floor. Nevertheless, the Gemara there rules that the bread is Tahor, because it is assumed that a Tahor person came by and placed the bread on the floor. Why does the Gemara there assume that a Tahor person moved the bread, while the Gemara here assumes that a Tamei person covered the vessel?
(a) TOSFOS answers in the name of RABEINU TAM that in the case of the Gemara here, the reason why the water is declared to be Tamei is that the Chachamim decreed that when a vessel is involved, it should be considered Tamei. In the case of the Gemara in Nidah, only food is involved, and when only food is involved it is considered Tahor. What is the reason for this difference?
1. TOSFOS in Nidah (4a, DH she'Ani Omer) explains this answer. Since vessels can be purified with immersion in a Mikvah, the Chachamim were stringent in cases involving vessels, since there is a way to make them Tahor. Food, in contrast, cannot be immersed in a Mikvah, and thus the Chachamim were not stringent with regard to food.
The RAMBAN in Nidah asks that there are also certain types of vessels that cannot become Tahor by being immersed in a Mikvah, such as earthenware vessels. Such vessels should not become Tamei when there is a doubt about who placed the cover on them. However, no mention is made of any exclusion of earthenware vessels from the decree of the Chachamim.
The RAN answers the Ramban's question on Rabeinu Tam's understanding of the difference between vessels and food. Although earthenware vessels indeed would be ruined irreversibly if the Chachamim decreed them to be Tamei, the Chachamim did not want to make an exception, and therefore they included all vessels in their decree.
2. The Ramban gives a different explanation for the difference between vessels and food. He explains that a person is not particular where he leaves a vessel, but he is particular where he leaves food. A person will leave food only in a place where it will not become dirty or ruined. Since vessels are usually handled in any manner, the Chachamim decreed that, in a situation of doubt, any vessel is Tamei, even if it is a vessel which is carefully handled and kept only in the house. In contrast, food is usually handled carefully, and only by people who are Tahor. Therefore, in a situation of doubt, it is assumed that food was handled by a Tahor person. (The Ramban adds that the decree of Tum'ah was not applied to fruit that falls in the middle of the street, because no one eats such fruit anyway.)
(b) Alternatively, Tosfos explains that each case is judged based on the assumption that the item indeed was moved by a person (as things do not move by themselves), and based on the other circumstances of the specific case. In the case in Nidah, if the person who moved the bread was Tamei, then why would he have moved the bread to the floor, and not place the bread on the Tamei clothing? What difference does it make to him if he places the bread on a surface that is Tamei? The fact that the bread is on the floor indicates that it was moved by a person who was Tahor.
The RITVA adds that in the case of the Gemara here, in which the water originally was uncovered and then was found to be covered, it is assumed that a person covered it. A person who is Tamei also would want to cover the water, because he knows that it is dangerous for water to be left uncovered. He will cover it despite the fact that he knows that people want to use it for Mei Chatas. (It seems that the Ritva maintains that the Tamei person can reasonably assume that someone eventually might use the water for drinking.)
The Ramban here rejects this answer. In the case in Nidah, it is possible that a Tamei ignoramus, who thought that he was Tahor, handled the food. Such a person would have deposited the food in a place where he thought it would not become Tamei, when, in fact, the food is Tamei. (Y. MONTROSE)
5) THE PROHIBITION OF "MAYIM MEGULIN" AT NIGHT
QUESTION: RASHI (DH Safek Mayim Megulin) writes that the reason why water left uncovered during the night is prohibited is the possibility that a snake drank from it, leaving some of its venom in the water.
Why does Rashi mention specifically that the water was left uncovered "during the night"? The Gemara (10a) and the Mishnah (Terumos 8:4) make no mention of "night." The Gemara implies that water left exposed at any time may not be consumed. (PRI CHADASH YD 116)
(a) The PRI CHADASH suggests that Rashi's intention is to say that the water was left exposed and unsupervised. He mentions the night only as an example of water that is left unsupervised, since it is not possible to properly watch the water at night (due to the darkness).
(b) Perhaps Rashi maintains that when a person (who is awake) is nearby, or even when he is "Yotzei v'Nichnas" (going in and coming out), the water left uncovered is not prohibited because of "Giluy," as the Yerushalmi (Terumos 8:4) says (in contrast to the opinion of the Pri Chadash). Consequently, the Isur of Mayim Megulin is uncommon, and normally applies only at night. (SHA'AREI DIM'AH, Hilchos Giluy 6:3)
6) ABAYE'S OPINION ABOUT THE RULE OF "SAFEK D'ORAISA L'CHUMRA"
Abaye proves that the Halachah is more lenient with regard to a Safek Isur than with regard to a Safek Sakanah (physical danger) from the principle of "Safek Tum'ah b'Reshus ha'Rabim Tahor." This principle teaches that in a case of doubt about Tum'ah in a public domain, the object is deemed not Tamei (see Insights to Sotah 28:2
). In contrast, in a case of a doubt about a physical danger, the object may not be consumed regardless of where it is. This shows that a Safek Sakanah is treated more stringently than a Safek Tum'ah. Similarly, it is treated more stringently than a Safek Isur.
Rava refutes this proof by pointing out that this rule regarding a Safek Tum'ah in Reshus ha'Rabim applies only to a Safek involving Tum'ah, but not to a Safek involving any other Isur, and certainly not to a Safek involving a Sakanah.
How does Abaye learn this rule? Does he maintain that the Halachah is lenient with regard to every other Safek Isur? Does he not accept the rule of "Safek d'Oraisa l'Chumra"?
(a) The SHEV SHEMAITSA (1:4) explains that Abaye and Rava indeed argue about the rule of "Safek d'Oraisa l'Chumra." Abaye maintains that this rule is only mid'Rabanan. The Torah permits one to eat an object that is not known to be forbidden, but about which there is a doubt. The Chachamim decreed that in the case of a doubt about an Isur d'Oraisa, the item is prohibited. Therefore, the rule of "Safek Tum'ah b'Reshus ha'Rabim Tahor" is not limited to Tum'ah. The leniency applies to any case of a Safek, which, mid'Oraisa, is l'Kula. The only difference between a Safek Tum'ah and a Safek concerning any other Isur is that the Chachamim decided not to apply their Gezeirah to a Safek Tum'ah in Reshus ha'Rabim.
Rava, however, maintains that the rule of "Safek d'Oraisa l'Chumra" is mid'Oraisa. The Torah itself prohibits eating an item that is in doubt. Consequently, a special source is needed in order to be lenient with regard to a Safek Tum'ah in Reshus ha'Rabim.
The Shev Shemaitsa concludes that this Gemara is the source for the opinion of the RAMBAM
(Hilchos Avos ha'Tum'ah 16:1), who maintains that the rule of "Safek d'Oraisa l'Chumra" is mid'Rabanan. (See Insights to Chulin 11:3
, Kidushin 73:1, Bava Metzia 7:1.)
(b) The RASHBA offers a different explanation. Abaye maintains that when there is a doubt about whether an object is Asur, the Halachah usually is l'Chumra and the object is Asur. However, when there is a Chazakah that the object was permitted until now, the Halachah permits the object.
In the case of the Gemara here, there is a Chazakah that if a proper Shechitah was performed, the animal is assumed to be fit and is not a Tereifah. Similarly, Taharos left in Reshus ha'Rabim have a Chazakah that they are still Tahor and it is assumed that nothing happened to them to make them Tamei. (See AVI EZRI, end of Hilchos Shechitah, and Insights to Sotah, ibid.) (Z. Wainstein)
7) USING WATER FROM WHICH AN ANIMAL DRANK FOR "MEI CHATAS"
OPINIONS: The Gemara quotes a Beraisa that teaches that if an animal drank from water that was designated for the Mei Chatas (the water used in the sprinkling of the ashes of the Parah Adumah), the water becomes invalid and may not be used.
Why may water from which an animal drank not be used for the Mei Chatas?
(a) RASHI (DH Im Yecholah) explains that water from which an animal drank is considered water that was "used" for another purpose. The Torah requires that the water used for the Mei Chatas be water that was not used for any other purpose. Water that was used for another purpose may not be used with the ashes of the Parah Adumah. (See RASHI to Gitin 53a, DH Mei Chatas, for the source for this Halachah.)
TOSFOS (DH Im Yecholah) questions this explanation. The animal does not "use" the water when it merely enters its mouth and is not swallowed.
(b) Rashi and Tosfos both suggest another explanation. The water used for Mei Chatas must be brought directly from the lake or natural water source. It may not be poured into another vessel before the ashes of Parah Adumah are sprinkled upon it. When the water enters the mouth of the animal and then returns to the original vessel, it is not considered to come directly from the natural water source.
However, the RASH SIRILIYO (Yerushalmi Terumos 8:4) points out that the Tosefta says clearly that one may fill water in two different vessels and pour them both into a third vessel before he sprinkles the ashes of Parah Adumah upon the water. This seems to contradict the explanation of Rashi and Tosfos.
(c) The Rash Siriliyo suggests that when an animal drank some of the water and then spit it back, the water may not be used, because water may be used for the Mei Chatas only if it was drawn from its source or from the vessel (that drew it from its source) with a valid Kli, and not with an animal's mouth.
(d) TOSFOS explains that the water may not be used because it is not pure water; it contains saliva from the mouth of the animal that drank from it. A small amount of saliva can invalidate the entire vessel of water from being used for the Mei Chatas.