1) ARE THE MOTHER AND FETUS CONSIDERED SEPARATE ENTITIES?
QUESTION: The Beraisa quotes Rebbi Shimon ben Elazar who says in the name of Rebbi Yosi ha'Glili that even a live Ben Peku'ah becomes Tamei if it touches a Tamei object, but it needs Hechsher first in order to be able to become Tamei. RASHI (DH v'Tzarich) explains that the Shechitah of the mother is not able to be Machshir the Ben Peku'ah, because a Ben Peku'ah and its mother are considered two separate entities.
Rashi's words are problematic. How can Rashi say that the reason why the Shechitah of the mother cannot be Machshir the Ben Peku'ah is that they are two separate entities? The Gemara just before says that one cannot prove that a mother cow and its fetus are two separate entities from the fact that the fetus needs Hechsher! A different Beraisa (74b) says that only when the Ben Peku'ah is passed through a river does it become Huchshar (implying that it does not become Huchshar at the time of the Shechitah of its mother). The Gemara says that this does not prove that they are two separate entities, because perhaps that Beraisa refers to a case of a "dry Shechitah," in which no blood touched the mother or the fetus at the time of Shechitah. (RASHASH)
ANSWER: Rashi says here that the mother and fetus are considered two separate entities because it is Rebbi Yochanan who is quoting this Beraisa. Rebbi Yochanan is the one who maintains that a fetus and its mother are indeed two separate entities. Rebbi Yochanan maintains that since they are two separate entities, a Ben Peku'ah needs Hechsher. When the Gemara earlier says that even if they are not considered separate entities, the fetus still needs Hechsher because perhaps the Shechitah was a "dry Shechitah," it is discussing the opinion of Reish Lakish who argues with Rebbi Yochanan. (M. KORNFELD)
2) A DYING FISH
OPINIONS: The Gemara quotes the Mishnah in Uktzin (3:8) in which Beis Shamai, Beis Hillel, and Rebbi Akiva argue about when a fish is considered food and can become Tamei with Tum'as Ochlin. Beis Shamai says that a fish can become Tamei from the time that it is trapped. Beis Hillel says that it can become Tamei from when it dies. Rebbi Akiva says that it can become Tamei from the time that it is unable to survive.
The Gemara asks, "What is the difference between them," and it answers that they argue about a fish that is thrashing about.
When the Gemara asks, "What is the difference between them," it does not seem to be asking what the difference is between the opinions of Beis Shamai and Beis Hillel, because the difference between them is obvious. To which opinions does the Gemara refer when it is asks about "the difference between them"?
(a) RASHI (DH Mekarte'a) understands that the Gemara is asking what the difference is between the opinion of Beis Hillel, who says that a fish can become Tamei from the time that it dies, and the opinion of Rebbi Akiva, who says that a fish can become Tamei when it can no longer survive. The Gemara answers that the difference is a fish that is thrashing about. Beis Hillel considers such a fish to be alive (and it cannot become Tamei), while Rebbi Akiva considers it dead (and it can become Tamei). However, it is considered dead according to Rebbi Akiva only when it has dried out, because only then will it not survive.
(b) TOSFOS (DH Mai) rejects this explanation and says instead that the Gemara is asking what the difference is between the opinions of Beis Shamai and Rebbi Akiva, since both Beis Shamai and Rebbi Akiva consider a fish to be food even before it dies. The Gemara answers that they argue about a case in which the fish is thrashing about. Since the fish is so active, it certainly will live when thrown back into the water, and thus Rebbi Akiva does not consider it to be dead and it cannot become Tamei. (This is in contrast to Rashi's explanation. According to Rashi, it is Rebbi Akiva who maintains that the thrashing fish is considered dead.) Beis Shamai still considers it food since it has been trapped.
Rashi later (DH Noldu) is consistent with his explanation here. The Gemara asks whether a fish is considered dead (and can become Tamei with Tum'as Ochlin) when it is still alive but is a Tereifah. Rashi explains that the Gemara's question is only according to the opinion of Rebbi Akiva, because, according to Beis Shamai, a fish is considered dead even when it is fully alive (as long as it has been trapped), and according to Beis Hillel, the fish must be fully dead in order to be considered a food.
Tosfos, in contrast, may learn that the Gemara is asking its question according to the opinion of Beis Hillel. Even Beis Hillel may agree that the fish does not need to be physically dead to be considered a food. Rather, Beis Hillel requires only that it be more dead than Rebbi Akiva requires it to be; that is, not only must it stop thrashing, but it must also have almost no vital signs. Therefore, perhaps a Tereifah, which certainly will die, is considered food even according to Beis Hillel. (M. KORNFELD)
3) THE "CHELEV" OF A FULL-TERM FETUS IN UTERO
QUESTION: In the Gemara's second version of the argument between Rebbi Yochanan and Reish Lakish, they argue about a case in which a person extracted Chelev from a living, nine-month-old (full term) fetal calf that was still in the womb. Rebbi Yochanan maintains that the Chelev is prohibited like the Chelev of an ordinary animal, since the fetus reached its full term. When the Mishnah (end of 74a) says that only the blood of a nine-month-old fetus is prohibited, implying that its Chelev is permitted, it refers to a dead fetus.
However, the Beraisa (74b) cites Rebbi Yehudah (whose opinion is the one expressed in the Mishnah), who says that the Chelev of a living, nine-month-old fetus is permitted! How, then, can Rebbi Yochanan say that it is forbidden?
ANSWER: RASHI (DH d'Hoshit) and TOSFOS (DH Rebbi Yochanan) explains that Rebbi Yehudah permits the Chelev of a living fetus only after the mother is slaughtered. When Shechitah is performed on the mother of the fetus, the Chelev of the fetus becomes permitted.
What difference does it make, however, whether the mother of the fetus is slaughtered? The Chelev remains Chelev and should be prohibited even when the mother is slaughtered!
Perhaps the intention of Tosfos is as follows. The fetus inside of the mother is considered "like meat in a basket" only when we view it as meat, but not when we view it as an animal. That is, when Shechitah has been done to the mother, the flesh of the mother (and fetus inside) is viewed as meat, since the act of Shechitah shows that we intend to eat it. Since the fetus inside is meat, the Chelev inside of that fetus is not forbidden, because only Chelev that surrounds certain parts of an animal is forbidden, but not Chelev that surrounds meat. In contrast, when the Chelev is removed from the fetus before the mother is slaughtered, we must view the Chelev as coming not from a piece of meat, but from an animal. Since the mother was not slaughtered, there is no indication that the animal is going to be eaten, and thus it cannot be viewed as meat, but rather as an animal. Since the fetus is viewed as an animal, the Chelev inside of it is Chelev surrounding certain parts of an animal and thus it is forbidden. (M. KORNFELD)
4) THE "SHECHITAH" OF A "TEREIFAH" DOES NOT PERMIT THE FETUS
QUESTION: Rebbi Ami says that when Shechitah is done to a Tereifah, and a nine-month-old fetus is found inside of it, the fetus requires its own Shechitah in order to permit its consumption.
Why does the Shechitah of the mother not permit the fetus? Even though the Shechitah does not permit the mother to be eaten, this is not because of any deficiency in the act of Shechitah (indeed, the Shechitah works for the mother in preventing it from becoming a Neveilah). Rather, it is because the mother has a blemish that renders it a Tereifah. Since the Shechitah was done properly, it should permit the fetus.
(a) The KEHILOS YAKOV (#20) cites CHIDUSHEI REBBI AKIVA EIGER who explains that the concept of "Arba'ah Simanim Achsher Bei Rachmana" (the fetus becomes permitted either by cutting its mother's two Simanim, or by cutting its own two Simanim) means that there are two ways to permit the fetus. According to the first way, the fetus is considered merely a part of its mother's body, and thus the Shechitah of its mother suffices. According to this logic, if the mother is a Tereifah, then the fetus is considered a Tereifah as well, since it is part of the mother's body.
According to the second way to permit the fetus, the fetus is considered an independent entity. Since it is an independent entity, it requires Shechitah itself. The Kehilos Yakov writes that this is the intention of RASHI (75b, DH Ta'un, and 75a, DH Oser) who writes that the fetus of a Tereifah animal does not become permitted by the Shechitah of its mother, "because it would then be considered like one of her limbs." That is, if we would rely on the Shechitah of its mother to permit the fetus, then we would be forced to say that it is part of the body of a Tereifah animal.
(b) The Kehilos Yakov writes another approach in the name of RAV CHAIM SOLOVEITCHIK. Rav Chaim explains that the Shechitah of a Tereifah is indeed an improper act of Shechitah. A number of conditions must be met in order for the Shechitah to be a proper act of Shechitah (for example, the knife must be fit for Shechitah, the Shochet must be a Jew, the act must be done in the proper way and not with Shehiyah, Derasah, etc.). One of those conditions is that the animal must fit to be eaten. Since a Tereifah is not fit to be eaten, the Shechitah is lacking one of its necessary conditions.
Rav Chaim cites the RAMBAM (Hilchos She'ar Avos ha'Tum'os 2:10) who states that an animal slaughtered by a Nochri is a Neveilah and is Metamei b'Masa. The Rambam writes that it seems to him that this Tum'ah is only mid'Rabanan. "Even though it is forbidden to eat it mid'Oraisa, not everything that is forbidden to eat is Tamei, as we find that a Tereifah is forbidden to eat but nevertheless is Tahor." Why does the Rambam compare the Shechitah performed by a Nochri to the Shechitah of a Tereifah. The Shechitah performed by a Nochri renders the animal a Neveilah, because the act of Shechitah itself is lacking (it was not performed by a Jew), while the Shechitah of a Tereifah is a valid Shechitah, and the problem is not in the Shechitah but in the animal!
It must be that the Rambam understands that there is a problem in the actual act of Shechitah of a Tereifah. Even though the Shechitah serves to prevent the animal from becoming a Neveilah (and being Metamei), the Shechitah is not effective in permitting the animal to be eaten. With regard to eating the animal, the Shechitah is invalid (but, nevertheless, the animal is not Tamei). Similarly, the Shechitah performed by a Nochri does not permit the animal to be eaten, but the animal is also not Metamei (mid'Oraisa).
The BRISKER RAV, the son of Rav Chaim, cites another proof for this view from the words of the Rambam elsewhere. The Rambam (Hilchos Ma'achalos Asuros 4:17) states that one who ate half of a k'Zayis of one Isur and half of a k'Zayis of a different Isur is not punished with Malkus, because he did not eat a full k'Zayis of one Isur. The only exception to this rule is one who ate half of a k'Zayis of Neveilah and half of a k'Zayis of Tereifah. The Rambam rules that he receives Malkus because "a Tereifah is the beginning of the process that leads to Neveilah." We learn from here that the Isur of Tereifah is similar to that of Neveilah inasmuch as both are Isurim that render the Shechitah invalid. (D. BLOOM)
5) "KALUT BEN KELUTAH" THAT IS A "BEN PEKU'AH"
OPINIONS: The Gemara explains that Rebbi Shimon Shezuri and the Chachamim in the Mishnah (end of 74a) disagree about the law in a case in which a Ben Peku'ah stood up after exiting the womb of its slaughtered mother. Rebbi Shimon Shezuri maintains that the Shechitah of its mother still suffices to permit it to be eaten, while the Chachamim decree that it may not be eaten without Shechitah, lest people mistakenly think that ordinary animals also may be eaten without Shechitah.
Abaye, according to the first version of his statement, says that even the Chachamim agree that a Ben Peku'ah born with a defect of closed hooves does not need Shechitah to be permitted, even if it stood up after exiting the womb. This is because people remember bizarre things; they will remember that the animal with the closed hooves is a Ben Peku'ah, and they will not mistakenly think that a normal animal is permitted without Shechitah.
Abaye, according to the second version of his statement, says that even the Chachamim agree that a Ben Peku'ah with closed hooves that was found inside a Ben Peku'ah with closed hooves does not need Shechitah, even if it stood up on the ground. This is because people remember doubly bizarre things.
In the case of the second version of Abaye's statement, what are the two bizarre things that people remember?
(a) The BACH (YD 13) and TAZ (YD 13:6) understand the second version of Abaye's statement to mean as follows. A Ben Peku'ah (that stood up) without Shechitah is permitted only when both it and its mother were Bnei Peku'ah, and both were born with closed hooves. The two signs that remind people that this animal does not need Shechitah is that it is a "Kalut" with closed hooves, and that both it and its mother are Bnei Peku'ah.
However, it is obvious that the basic point of the Sugya is that people do not remember that an animal is a Ben Peku'ah (and does not need Shechitah) unless there is some obvious characteristic of the animal that stands out and serves as a reminder. It is clear that the fact that the animal is a Ben Peku'ah is not the sign that serves to remind people that the animal does not need Shechitah. Rather, the sign must be an easily discernible, external sign, such as closed hooves. Why, then, will the fact that it and its mother are Bnei Peku'ah make a difference? How can that serve as a second Siman? Since there is only one obvious Siman (the animal is a Kalut), how does that suffice to permit the animal without Shechitah?
(b) The SHACH (YD 13:7, and in NEKUDOS HA'KESEF) disagrees with the Taz's interpretation of the Gemara. He infers from the words of RASHI (DH Hachi Garsinan Ika d'Amrei) that the Gemara means that only the child is a Ben Peku'ah, and not the mother. Rashi writes, "that closed-hoof animal (the mother) has been torn open (Peku'ah), and this [second] closed-hoof animal was found inside of it." Rashi is saying that only the child is a Ben Peku'ah, and not the mother. According to Rashi, the Gemara teaches that the only condition needed to permit the Shechitah is that both the mother and child must have closed hooves.