1) THE DOUBT OF "TECHILAS HA'TZIHUV"
QUESTION: The Gemara (end of 22b) suggests that the reason why a bird may not be brought as a Korban when its feathers are beginning to turn yellow ("Techilas ha'Tzihuv") is due to the doubt about whether the yellowing of feathers is a sign that the bird is young or old. The Gemara rejects this reason, saying that "the verse does not need to exclude a doubt."
The Gemara's intention is not clear. While it is true that the Torah is not in doubt about the status of a yellow-feathered bird, it still needs to teach us what to do when we are uncertain.
(a) RASHI (end of 22b, DH Itztrich, and 23a, DH li'Me'utei) explains that the Torah has already taught that one must be stringent in a case of uncertainty, and thus there is no need to repeat that requirement with regard to a yellow-feathered bird.
(b) TOSFOS (22b, DH Itztrich) questions Rashi's explanation. Perhaps the Torah means that "Techilas ha'Tzihuv" should be treated differently from all other uncertainties. Perhaps a doubtfully-valid bird offering is to be treated like something that is certainly not accepted, neither as Torim nor as Bnei Yonah, even in the case of a leniency. (For example, one might have thought that once the bird was already offered, out of doubt the owner is not required to bring another Korban. Therefore, the Torah teaches that such a bird is considered an invalid Korban and the owner must bring another Korban, and there is no concern that the second bird will be Chulin b'Azarah.)
Tosfos explains instead that the Gemara means that the Torah does not even relate to uncertainties involving definitions of Halachic realities. The Torah relates only to uncertainties that arise due to external circumstances, such as the doubt that arises when a prohibited item becomes mixed with a permitted item. Accordingly, the Torah does not address the doubt of "Techilas ha'Tzihuv" at all.
(c) Tosfos later (23a, DH Ki Itztrich) quotes RABEINU AHARON of Regensburg who suggests a novel approach. The Torah teaches that a bird with "Techilas ha'Tzihuv" is considered either an old bird (and is valid as a Tor) or a young bird (and is valid as a Ben Yonah). The Torah is not teaching what to do in a situation of Safek; it is clarifying the Safek! It is we who do not know what the Torah's intention is, though. Accordingly, if the Torah indeed discusses "Techilas ha'Tzihuv," then it is not an issue of a Safek.
2) A "PILGAS"
OPINIONS: Rebbi Zeira asks whether or not a person fulfills his Neder when he pledges to bring either an Ayil (ram) or a Keves (lamb) as a Korban Olah, and he brings a "Pilgas."
What is a Pilgas?
(a) RASHI (DH Pilgas) explains that there are three stages in the development of a ram. Until a ram is twelve months old, it is classified as a sheep ("Keves"), and not as a ram ("Ayil"). When the animal is two years old, it is called a ram. However, as is the case in many areas of Halachah, we do not actually wait a full two years to call the animal a ram. Once it reaches thirteen months and one day old, it is considered two years old and is called a ram. During its thirteenth month, it is neither a sheep nor a ram, but a "Pilgas." (According to the opinion of Bar Pada later in the Gemara, this second stage represents merely a doubt whether the animal is a Keves or an Ayil, and it does not refer to a specific stage of the animal's development).
(b) The RAMBAM (Hilchos Ma'aseh ha'Korbanos 1:14) writes that the words "Keves," "Kisbah," or "Kevasim" denote a one year old sheep. The words "Ayil" and "Eilim" denote animals that are two years old. When exactly is an animal called an "Ayil"? The Rambam writes that it is called an Ayil "when it reaches the thirty-first day into its second year. However, on the thirtieth day, it is still not eligible to be brought as a Keves or as an Ayil, and this is what is called a Pilgas." What does the Rambam mean when he says "the thirtieth day"?
1. The fact that the Rambam says, "On the thirtieth day... it is called a Pilgas," and he does not say, "In the thirteenth month... it is called a Pilgas," indicates that the Rambam maintains that the animal is called a Pilgas only when it is one year and thirty days old. (This approach is suggested in the Hagahos to the SHITAH MEKUBETZES HE'CHADASH to Menachos 91b, #43.)
2. The RADVAZ and MAHARI KURKUS write that the Rambam agrees with Rashi, who says that during the entire thirteenth month the animal is called a Pilgas. The Radvaz says that this must be what the Rambam means, because the Mishnah in Parah (1:3) explicitly states, "A thirteen month old is not valid for [a Korban that requires] an Ayil or for a Keves." He adds that the name "Pilgas" comes from the word "Palga," or "half," indicating that this animal is in a middle stage. (See the MELECHES SHLOMO in Parah who says that the word "Pilgas" is a combination of the words "Plag" ("divide") and the letter "Samech," which has a numerical value of sixty. This alludes to the fact that this animal is in an interim stage for thirty days.)
According to this explanation, why does the Rambam write "the thirtieth day," when the animal is actually a Pilgas for the entire thirteenth month? The TIFERES YISRAEL in Parah explains that the Rambam is merely emphasizing that even though this animal is only one day short from being called an Ayil, it still does not qualify as an Ayil and may not be brought as a Korban.
The words of the Tiferes Yisrael seem problematic. It is obvious that there will be at least one day before this animal is called a ram. Why would one think that the last day when it is not called a ram should be any better than any other day when it is not called a ram? There are many things which alter a Halachic status, and there is no reason for the object's status to change on the day before that change is supposed to occur. (For example, a boy cannot complete a Minyan on the day before his Bar Mitzvah, just as he cannot complete a Minyan on any of the previous days before his Bar Mitzvah, when he was a child.)
(c) RABEINU GERSHOM here has a different approach. In defining a Pilgas, Rabeinu Gershom says that a Keves is one year old, and an Ayil is two years old. The Gemara here asks about one who brings "a one and a half year old" animal. It appears that Rabeinu Gershom learns that an animal is called a Pilgas during the entire second year of its life. This understanding certainly is at odds with the Mishnah in Parah (1:3). It is possible that Rabeinu Gershom's explanation is based on a different opinion which argues with the Mishnah in Parah. (See MINCHAS CHINUCH (299:2), who writes that there are opinions that differ with the Mishnah in Parah on this matter.) (Y. MONTROSE)
3) FULFILLING ONE'S OBLIGATION TO BRING AN "AYIL" OR "KEVES" BY BRINGING A "PILGAS"
QUESTION: The Gemara records an argument about the status of a Pilgas. Rebbi Yochanan maintains that a Pilgas is considered an independent entity, and it is not an Ayil and not a Keves. Bar Pada maintains that there is a doubt about whether a Pilgas is an Ayil or a Keves. The Gemara is unsure about whether Bar Pada agreed that there is a third possibility, that the Pilgas might be an independent entity.
The RAMBAM (Hilchos Ma'aseh ha'Korbanos 2:6) writes that if a person brings a Pilgas as his Korban, he must bring the Nesachim that are brought with an Ayil (two Esronim). The Rambam seems to rule like the opinion of Rebbi Yochanan, who derives from a verse (Bamidbar 15:11) that a Pilgas is included in the category of an Ayil. Although Bar Pada also says that one must bring the Nesachim of an Ayil, he requires that the person who brings the Nesachim stipulate that if the Pilgas is actually a Keves (which requires only one Isaron as its Nesachim), then one Isaron is being brought for the Korban and the other is a Nedavah. If the Pilgas is actually an Ayil, then both Esronim are the Nesachim for the Ayil. If Bar Pada agrees that there is a third possibility that a Pilgas is an independent entity, then he should require that the person make an additional stipulation and state that if the Pilgas is an independent entity, then all of the Nesachim are being brought as a Nedavah. Since the Rambam makes no mention of any conditions, it seems that he rules like Rebbi Yochanan.
However, if the Rambam here follows the view of Rebbi Yochanan, then he apparently contradicts his ruling elsewhere (Hilchos Ma'aseh ha'Korbanos 16:2), where he rules that when one pledges to bring either an Ayil or a Keves as a Korban Olah (the case of the Gemara here) and he brings a Pilgas, there is a doubt about whether he has fulfilled his Neder. The Gemara concludes that only according to Bar Pada is there a doubt about whether bringing a Pilgas fulfills the Neder, since Bar Pada might agree that there is a possibility that a Pilgas is an independent entity, and is neither an Ayil nor a Keves, in which case the person would not fulfill his Neder. According to Rebbi Yochanan, however, the person definitely did not fulfill his Neder, since he brought a Pilgas (an independent entity), and not an Ayil nor a Keves. The Rambam there clearly rules like Bar Pada!
How is this contradiction in the rulings of the Rambam to be reconciled?
(a) The MAHARI KURKUS (Hilchos Ma'aseh ha'Korbanos 2:6) writes that because the Rambam later rules that there is a doubt about whether this animal fulfills the Neder to bring an Ayil or a Keves, which is clearly like the opinion of Bar Pada, and the Rambam implies this earlier as well (1:14), the Rambam does not need to specify here that one is required to make a condition when he brings the two Esronim with a Pilgas.
(b) Alternatively, the Mahari Kurkus answers that there is a good reason for why the Rambam does not write that one must make a condition when he brings the Nesachim with the Pilgas. In the Gemara, Rebbi Zeira remains in doubt about whether Bar Pada agrees with the possibility that a Pilgas is an independent entity. Accordingly, there is a doubt about whether one must stipulate, according to Bar Pada, that if the Pilgas is an independent entity, then all of the Nesachim are being brought as a Nedavah. Since the Gemara is unsure about how the person is supposed to express the conditional statement, the Rambam is also unsure and thus he does not discuss the condition at all. (See a similar explanation in the MIRKEVES HA'MISHNEH, Hilchos Ma'aseh ha'Korbanos 16:2.)
(c) The ROSH YOSEF here (23b) answers that the Rambam actually rules like Rebbi Yochanan. However, the Rambam understands the opinion of Rebbi Yochanan differently from the way other Rishonim understand it. According to the other Rishonim, Rebbi Yochanan maintains that a Pilgas is definitely an independent entity. The Rambam understands that Rebbi Yochanan also is in doubt about whether a Pilgas is an independent entity or whether it is a Keves. Therefore, even according to Rebbi Yochanan, when a person brings a Pilgas to fulfill his Neder to bring an Ayil or a Keves, there remains a doubt about whether he fulfills his Neder.
When the Gemara says that there is no question according to Rebbi Yochanan, it means that there obviously is a doubt about whether the person fulfills his Neder, since Rebbi Yochanan accepts the possibility that the Pilgas is an independent entity. The Gemara is uncertain about whether Bar Pada also accepts this possibility. This is why the Rambam later (16:2) writes that there is a doubt about whether the Neder was fulfilled, even though he rules like Rebbi Yochanan; even Rebbi Yochanan is in doubt about whether the Pilgas is an independent entity or whether it is a Keves.
The LEV ARYEH gives a similar answer, but he says that the Rambam understands that Rebbi Yochanan is in doubt about whether the Pilgas is an independent entity or whether it is an Ayil. (Y. MONTROSE)
4) WHY ONE IS NOT PUNISHED WHEN HE COMMITS A "SAFEK AVEIRAH"
QUESTION: RASHI (end of DH Ela d'Rebbi Yehudah) explains that Rebbi Yehudah maintains that one who eats Si'ur (partially fermented dough) on Pesach is not punished with Malkus. Since, according to Rebbi Yehudah, Si'ur is only Safek Chametz (there is a doubt whether Si'ur is Chametz or not), when the person is warned by witnesses not to eat the Si'ur, their warning is only a "Hasra'as Safek" -- a warning given when it is not clear, at the time of the action, that the action will lead to a punishment in Beis Din. In order to give Malkus to a sinner, the sinner must be forewarned that his act is punishable by Malkus, but since eating Si'ur on Pesach is only a Safek Isur, the witnesses can warn the person only that "perhaps you are eating Chametz."
In fact, Rashi writes in numerous places that if a person commits a Safek Aveirah, he is exempt from Malkus because he lacks Hasra'ah, since his Hasra'ah was a Hasra'as Safek. (See Rashi to Chulin 80a, DH b'Tayish, and 86a, DH she'Eino Sofeg; see also Rashi to Yevamos 99b, DH Ein Sofgin, and 101a, DH Chayav; Sanhedrin 89b, DH Dilma, and see ARUCH LA'NER and Insights there.)
The words of Rashi are difficult to understand. When a person performs an act that is a Safek Aveirah, there is a much more basic reason why he is not punished with Malkus: perhaps he did not sin! Even if Hasra'as Safek is a valid form of warning, Malkus cannot be administered because of the doubt about whether the person actually committed the Aveirah.
Moreover, the Amora'im (Makos 15b) disagree about whether Hasra'as Safek is a valid Hasra'ah. According to Rebbi Yochanan, it is considered a valid Hasra'ah for Malkus. Does this mean that Rebbi Yochanan maintains that Malkus is given to a person who eats Safek Chametz on Pesach? (REBBI AKIVA EIGER, ROSH YOSEF to Chulin 89a, and TIFERES YAKOV.)
(a) Rashi is giving a reason for why the person is not punished with Malkus even if Beis Din later rules that Si'ur actually is Chametz, and thus the person indeed committed an Aveirah. Rebbi Yehudah exempts him from Malkus because at the time that he did the act, there was only Hasra'as Safek.
(b) Alternatively, one may suggest an answer as follows. Apparently, Rashi is ruling that since the person was aware that his act constituted a Safek Aveirah (because he was warned) which the Torah prohibits, he can be punished for transgressing the Safek Aveirah (even if the Safek is never clarified). This may be compared to a case of a doubt about whether an act is prohibited, and a Chazakah (or a Rov) states that the act is prohibited. Punishments of Malkus and Misah may be given in such cases, even though the person would be exempt from punishment if it is discovered later that the act did not constitute a transgression. (See TOSFOS to Gitin 33a, DH v'Afka'inhu.) Why, then, is the person indeed exempt from Malkus? He is exempt because of the rule that Hasra'as Safek is not a valid Hasra'ah, as Rashi writes.
This Hasra'as Safek is not subject to the Machlokes between Rebbi Yochanan and Reish Lakish. When Rashi uses the term "Hasra'as Safek" in these places, he is not referring to the Machlokes Amora'im in Makos (15b) about whether Hasra'as Safek is a valid Hasra'ah. The Gemara in Makos refers to a situation in which it will become clear later whether the Aveirah was transgressed. In contrast, in the case of a Safek Aveirah, since it is not expected to become clear whether the Aveirah was transgressed, everyone agrees that the Hasra'ah is lacking, since the transgressor was not warned that what he was doing was definitely an Aveirah. When a person hears such a Hasra'ah for an Aveirah which he knows can never be proven, he does not take it as seriously as a normal Hasra'ah, and therefore it cannot obligate him to receive Malkus.
Rashi's source might be the Gemara in Sanhedrin (89b) which says that a person eating dates who is warned not to eat them because they might be Asur (see ME'IRI and Insights to Makos 21b) cannot be given Malkus because "nobody can give him a [proper] Hasra'ah." The Gemara should say instead that he cannot be punished because nobody knows that he sinned! The fact that the Gemara there says that he is not punished because nobody can give him Hasra'ah teaches that one who does a Safek Aveirah does not receive Malkus because his act lacks Hasra'ah.
Moreover, Rebbi Yochanan may agree that no Malkus is administered in such a case. Rebbi Yochanan maintains that one receives Malkus for a Hasra'as Safek only when the act which the person is doing now has the potential to become a definite sin, such as by performing another act in the future. However, it must be in the hands of the sinner himself to make his original act into a sin retroactively (see Makos 15b, Shevuos 21a.). In the case of the Gemara here, making the act of eating Si'ur into a sin is not in the power of the sinner at all. It depends upon the decision of Beis Din to declare that Si'ur is Chametz. In such a case, everyone agrees that Hasra'as Safek is not a Hasra'ah. (M. KORNFELD; see TOSFOS to Yevamos 80a, DH Na'aseh.)
5) THE ORDER OF THE MISHNAYOS OF CONTRASTS
QUESTION: The end of the Mishnah earlier (19b) states that the area of the neck that is valid for Shechitah is not valid for Melikah, and the area that is valid for Melikah is not valid for Shechitah. The Mishnayos continue with this theme of contrasts (until 25b). The Mishnah discusses the difference between turtledoves and pigeons (22a), the Parah Adumah and Eglah Arufah (23b), Kohanim and Leviyim (24a), earthenware vessels and other vessels (24b), wooden vessels and metal vessels (25a), and, finally, the difference between bitter almonds and sweet ones.
Is there any particular order in these Mishnayos? It is apparent that the Mishnayos are not following the order of the things as they are mentioned in the Torah, since cows and calves (end of Bamidbar, and Devarim) are listed before Kohanim and Leviyim (Vayikra, and beginning of Bamidbar). Is there any reason for the Mishnah's order?
ANSWER: The TIFERES YAKOV (on the Mishnah here) explains that the first three Mishnayos all have in common a specific theme: the contrasts they discuss are all absolute. The two different subjects in each pair are never similar. The area where one may perform Shechitah is never valid for Melikah, with no exceptions. A Tor that is the same age as a Ben Yonah may never be offered as a Korban. A Parah Adumah must be slaughtered with Shechitah, while an Eglah Arufah must be killed with Arifah, and if done differently, the Parah Adumah or Eglah Arufah is not valid at all. These Mishnayos teach that the differences between the contrasting objects are absolute.
The next Mishnah teaches a difference that is not absolute. The difference between Kohanim and Leviyim is not absolute. Reaching the age of fifty, an event that does not remove a Kohen from serving in the Beis ha'Mikdash, does remove a Levi from serving. Acquiring a blemish (Mum), an event that does not disqualify a Levi, does disqualify a Kohen. This, however, is not an absolute contrast, since there are many Kohanim and Leviyim who perform the service together, as they are not blemished and are under the age of fifty. These Mishnayos, including the Mishnayos regarding the status of different vessels, discuss only possible circumstances which would affect one thing negatively while it would not affect the other. In this second list, it makes sense that Kohanim are mentioned first, since they are mentioned in the Torah earlier than the other things in this set of Mishnayos, and are more similar to the first set of Mishnayos as the words "Kasher" and "Pasul" apply to them (as opposed to the next Mishnayos which discuss "Tamei" and "Tahor," or in the case of the almonds, "Chayav" and "Patur").
Using the Tiferes Yakov's comments as a guideline, we may suggest a more specific logic for the order of these Mishnayos. It is clear that the first Mishnah (which discusses Shechitah and Melikah) is directly related to the topic discussed immediately preceding it (19b), and therefore the contrast between Shechitah and Melikah is listed first. Moreover, Shechitah is mentioned at the very beginning of Vayikra, before the other objects listed in this set of Mishnayos. The Mishnah then contrasts a Tor with a Ben Yonah, which are mentioned next in the Torah with regard to what animals may be brought as Korbanos. Only much later (Bamidbar and Devarim) does the Torah mention Parah Adumah and Eglah Arufah.
In the second set of Mishnayos, it is clear why Kohanim and Leviyim are listed first (as the Tiferes Yakov explains). Why, though, is the difference between earthenware vessels and all other types of vessels mentioned before the difference between metal vessels and wooden vessels? They are all discussed in the same verses, with earthenware mentioned last (Vayikra 11:32-33)! It is possible that the Mishnah prefers to discuss first a law that is relevant to all vessels before discussing a more limited contrast of two specific vessels (metal and wood). The case of almonds is not even mentioned in the Torah, and the expression of the Halachah is different ("Chayav" and "Patur"), and therefore it is mentioned last. (Y. MONTROSE)
6) A REVERSIBLE "KAL VA'CHOMER"
QUESTION: The Mishnah teaches that what is valid for a Parah Adumah is invalid for an Eglah Arufah, and vice versa. A Parah Adumah must be slaughtered with Shechitah, while an Eglah Arufah must be killed with Arifah. The Gemara suggests that a Kal va'Chomer from Eglah Arufah should teach that a Parah Adumah may be killed with Arifah, and it rejects this Kal va'Chomer based on a verse. The Gemara then suggests a Kal va'Chomer to allow Shechitah for an Eglah Arufah, but it cites another verse that refutes the Kal va'Chomer.
Since the Kal va'Chomer can be made in both directions (from Eglah to Parah for Arifah, and from Parah to Eglah for Shechitah), both Kal va'Chomer's should be invalid once we know that one is invalid. Why does the Gemara suggest both of them?
(a) TOSFOS (DH v'Tehei) first suggests that each Kal va'Chomer is actually a "Meh Matzinu." (That is, the words "Kal va'Chomer" in the Gemara are Lav Davka. The Gemara is suggesting that we derive through a "Binyan Av" a Halachah to all other cases from the Halachah that is written in one case.)
(b) TOSFOS then proves that the Gemara cannot be suggesting a "Meh Matzinu." Tosfos explains that there must be some logical reason to make the Kal va'Chomer in one direction more than the other. After the Gemara disproves the Kal va'Chomer in the more logical direction, the Kal va'Chomer becomes "unilateral" again. The Gemara then continues and asks a logical, unilateral Kal va'Chomer in the other direction. (Z. Wainstein)