1) WHY ONE IS NOT PUNISHED FOR COMMITING A "SAFEK AVEIRAH"
QUESTION: The Gemara says that both the Rabanan and Rebbi Eliezer are unsure about whether we are concerned for the "seed of the father" in the offspring. They disagree about whether even a partial Seh is considered a Seh. When the mother is a Tzviyah (doe) and the father is a Tayish (goat), the Rabanan prohibit slaughtering the offspring and its child on the same day, because perhaps we must be concerned for the seed of the father, and thus the animal is a half-goat and is considered a Seh (which is included in the prohibition of "Oso v'Es Beno"). Rebbi Eliezer permits slaughtering the half-goat and its child on the same day, because even if it is a half-goat, a half-goat is not considered a Seh.
RASHI (DH b'Tayish ha'Ba Al ha'Tzviyah) explains that the Rabanan were unsure about whether the father's seed makes a difference in its offspring. Therefore, they were in doubt about whether the child of a doe and a goat is considered a half-goat. Rashi adds that while one is prohibited, out of doubt, to slaughter this animal with its child on the same day, one who transgresses and slaughters them together is not punished with Malkus. Since the status of the parent is in doubt, the person cannot be warned with a proper Hasra'ah, but only with a Hasra'as Safek (a warning given to a person who is about to commit a sin when it is not certain that the potential punishment will apply to his sin), which is not a valid Hasra'ah.
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 is only a Hasra'as Safek. (See Rashi to Chulin 23b, DH Ela d'Rebbi Yehudah and Insights there, and to 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 for why he is not punished with Malkus: Beis Din is not sure that he actually sinned! Even if Hasra'as Safek would be a valid form of warning, Beis Din cannot administer Malkus because of the doubt about whether he actually committed the Aveirah.
Moreover, the Amora'im in Makos (15b) disagree about whether Hasra'as Safek is a valid Hasra'ah. According to Rebbi Yochanan , it is a valid Hasra'ah for Malkus. Does this mean that Rebbi Yochanan maintains that Malkus is given to a person who slaughters a half-goat and its child on the same day? (TESHUVOS RAMA MI'PANO #26, REBBI AKIVA EIGER to 23b, TIFERES YAKOV there, ROSH YOSEF here, RASHASH here.)
(a) Rashi is giving a reason for why the person is not punished with Malkus even if Beis Din later rules that the paternal contribution of an animal to its offspring is considered significant, and the animal indeed is a half-goat and has the status of a goat. The Rabanan nevertheless exempt a person from Malkus who, in the past, slaughtered a half-goat, because at the time of his sin, there was no proper Hasra'ah.
(b) Another answer may be suggested 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 Safek 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 administered in such cases, even though the person would be exempt from any 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 form of Hasra'as Safek is not subject to the dispute between Rebbi Yochanan and Reish Lakish in Makos. 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 that the Aveirah either was or was not transgressed. In contrast, in the case of a Safek Aveirah, since we do not expect it to become clear later that the Aveirah was or was not 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 cannot 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 who is eating dates and 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 have said that he cannot be punished because nobody knows that he sinned! Instead, the Gemara says that he is not punished because nobody can give him Hasra'ah, implying that one who does a Safek Aveirah does not receive Malkus because it is lacking Hasra'ah.
Moreover, we may suggest that even Rebbi Yochanan agrees that no Malkus will be administered in such a case. Rebbi Yochanan maintains that one receives Malkus for a Hasra'as Safek only when the act that the person is doing now has the potential to become a definite sin, such as by his execution of 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 slaughtering the two animals into a definite sin is not in the power of the sinner at all. It depends upon the decision of Beis Din to declare that such an animal indeed is a half-goat. 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.)
2) THE "SHOR HA'BAR"
OPINIONS: The Gemara cites the Mishnah in Kil'ayim (8:6) in which Rebbi Yosi and the Tana Kama disagree about whether a Shor ha'Bar (wild ox, bison) has the status of a domesticated animal (Behemah) or the status of a wild animal (Chayah). The Tana Kama maintains that it is a type of Behemah, since it is translated as "Torbala" (ox of the forest). Rebbi Yosi maintains that it is a type of Chayah, since it is mentioned together with other Chayos (in Devarim 14:5). The argument has two important practical ramifications: whether there is a Mitzvah of Kisuy ha'Dam, and whether the Chelev is prohibited.
What is the Halachah? Is the Shor ha'Bar considered a Behemah or a Chayah?
(a) The RAMBAM (Hilchos Ma'achalos Asuros 1:12) rules that the Shor ha'Bar is considered a Behemah and not a Chayah.
(b) The ROSH argues based on an inference from the Gemara here. The Gemara attempts to prove that Izi d'Bala (goats of the forest) are considered Behemos and may be offered as Korbanos from the fact that they are not listed in the Torah among the Kosher Chayos (Devarim 14:5). It must be that they are included in the category of ordinary goats, which are Behemos.
The Gemara asks that perhaps Izi d'Bala are mentioned in the list of Chayos by a different name. Perhaps they are the "Te'o" mentioned in the list.
The Gemara implies that the "Te'o" is a Chayah, since it is mentioned in the list of Chayos. The "Te'o," however, is the "Torbala," as the Targum Onkelus writes. The "Torbala" is the Shor ha'Bar, and yet the Gemara clearly implies that it is a Chayah!
In support of the Rambam, the RASHBA (DH Ha) quotes a Girsa of the Gemara that omits the words in which the Gemara asks that perhaps the Izi d'Bala are the Te'o. (Z. Wainstein)
3) THE "AYIL HA'BAR"
QUESTION: The Gemara cites the Mishnah in Kil'ayim (8:6) in which Rebbi Yosi and the Tana Kama disagree about whether a Shor ha'Bar (wild ox, bison) has the status of a domesticated animal (Behemah) or the status of a wild animal (Chayah). Rebbi Yosi maintains that it is a type of Chayah, since it is mentioned together with other Chayos (in Devarim 14:5).
TOSFOS (DH mid'Chashiv) points out that this implies that had the Shor ha'Bar not been mentioned together with Chayos, everyone would have agreed that it is a Behemah, because it is called a "Shor." Tosfos asks that this seems to contradict the Gemara earlier, which implies that we do not take into account the name of the animal when determining its status. The Gemara says that an "Ayil ha'Bar" is a Chayah (see Tosfos DH Zeh), even though its name is "Ayil," which is a Behemah.
How does Tosfos know that the animal called "Ayil" is a Behemah? Only animals that are Behemos may be offered on the Mizbe'ach, and not Chayos. Accordingly, an Ayil must be a Behemah, since it is one of the Korbanos that is offered on the Mizbe'ach (see, for example, Shemos 29:1, Vayikra 5:15, 5:18, Bamidbar 28:11, 28:19, and Bereishis 22:13).
However, there is a different animal called an "Ayal" that is a Chayah. The verse says, "... just as the Tzvi and the Ayal are eaten" (Devarim 12:22), comparing the Ayal to the Tzvi. Just as a Tzvi certainly is a Chayah and may not be offered as a Korban, the Ayal is a Chayah and may not be offered as a Korban. Similarly, the verse later in Devarim (14:5) implies that an Ayal is a Chayah, because it includes Ayal in the list of Chayos and not in the list of Behemos (14:4). How does Tosfos know that the Gemara refers to a Behemah? Perhaps the Gemara refers to an "Ayal ha'Bar" and not to an "Ayil ha'Bar"!
ANSWER: REBBI AKIVA EIGER answers that it is obvious that there are two types of animals: an Ayil, which is a Behemah, and an Ayal, which is a Chayah. An Ayil is a ram (an adult, male sheep), and an Ayal is a deer. Tosfos must have had a tradition that the "Ayil ha'Bar" discussed in the Gemara is an "Ayil ha'Bar" and not an "Ayal ha'Bar." (See RAN in Nedarim (35a, DH Deika), who says that there are times when we know through a tradition how to read a certain word.)
(Rebbi Akiva Eiger adds that RASHI (DH Ayil ha'Bar) also seems to agree with this, because he explains that this animal is the "male Ayil that grows in the forest." An Ayil is specifically a male animal, as is expressed by the Aramaic translation, "Dichra"; see Targum Onkelus to Bereishis 22:13.)
Accordingly, Tosfos is asking that the "Ayil ha'Bar" is a Chayah even though it is called "Ayil," which is a Behemah. Therefore, a "Shor ha'Bar" is not necessarily a Behemah merely because it is called a "Shor." (See also Rebbi Akiva Eiger to SHULCHAN ARUCH OC 586, and TAZ #1.) (D. BLOOM)
4) "MECHUSAR ZEMAN" AS A "LAV SHEBI'CHELALOS"
QUESTION: The Gemara asks that when one transgresses the prohibition against slaughtering a mother animal with its offspring (of Kodshim) on one day, he should be punished also with Malkus for transgressing the prohibition against slaughtering a Korban at the improper time, "Mechusar Zeman."
TOSFOS (v'Lilki) asks that since the prohibition against slaughtering an animal when it is Mechusar Zeman includes a number of different cases that all fit into the category of Mechusar Zeman, that prohibition constitutes a "Lav shebi'Chelalos." A Lav shebi'Chelalos is a single Lav that prohibits many different acts. When the Torah includes a number of different actions in one prohibition, none of these actions are subject to a punishment of Malkus (Pesachim 24a).
Why, then, does the Gemara suggest that one should receive Malkus for slaughtering an animal that is Mechusar Zeman?
(a) The RAMBAN (DH v'Lilki) answers that there is a dispute (Temurah 7b, Pesachim 41b) about whether one receives Malkus for transgressing a Lav shebi'Chelalos. Although the Halachah follows the opinion that Malkus is not given for a Lav shebi'Chelalos, the Gemara here is asking its question according to the opinion that Malkus is given for a Lav shebi'Chelalos.
(b) The ME'IRI (DH ha'Shochet) implies that the prohibition against slaughtering an animal of Kodshim that is Mechusar Zeman cannot be a Lav shebi'Chelalos, because the Torah lists specific types of animals when it gives the prohibition against offering unfavorable Korbanos. The Torah here does not mention one item which includes all of the others. Rather, it mentions a number of items separately (which cannot refer to any other item), and thus when the Torah gives the single prohibition, it is considered as though it is written with regard to each item separately. This is not a Lav shebi'Chelalos. A Lav shebi'Chelalos is when the verse prohibits one item which includes all other items. (See Rashi to Makos 18a, and Insights there; see also Insights to Pesachim 41:2.)