1) THE "LAV HA'NITAK L'ASEH" OF "MECHUSAR ZEMAN"
QUESTIONS: Rebbi Zeira says that the reason why one does not receive Malkus for slaughtering an animal as a Korban in an improper time (such as on the same day that its mother was slaughtered) is that the prohibition of Mechusar Zeman is a "Lav ha'Nitak l'Aseh" (a Lav for which the Torah prescribes a Mitzvas Aseh for the sinner to perform to correct the effects of the Lav). RASHI (DH Nitko) explains that the act of slaughtering the animal is prohibited by the verse of "Lo Yeratzeh" (Vayikra 22:23), which applies to offering any form of invalid Korban. There is no punishment of Malkus for transgressing this Isur because the Torah gives a Mitzvas Aseh to bring the Korban at a time that it is permitted to be brought, as it says, "... from the eighth day and onward it will be acceptable as a Korban" (Vayikra 22:27).
(a) How does this Mitzvas Aseh make the Isur become a Lav ha'Nitak l'Aseh? The only way to bring the animal as a Korban in the proper time is if it was not brought at the wrong time! If one transgressed the Isur of offering the Korban at the wrong time, then it is not possible to correct the transgression by bringing the Korban at the proper time. (TOSFOS 80b, DH Hanach)
(b) According to Rashi's explanation, what does the Gemara mean when it adds that one does not receive Malkus for offering a Korban that is Mechusar Zeman because that prohibition is a "Lav ha'Ba Michlal Aseh," a negative prohibition that is expressed as a Mitzvas Aseh (the Mitzvas Aseh to bring a Korban from the eighth day and onward implies a negative commandment not to bring it before that time)? There is an explicit Lav that prohibits bringing a Korban at an improper time: "Lo Yeratzeh"!
(a) TOSFOS (80b, DH Hanach) explains that when the Gemara says that the Torah gave an Aseh for the prohibition of Mechusar Zeman, it does not refer to the ordinary concept of "Lav ha'Nitak l'Aseh." Rather, the reason why there is no Malkus for transgressing the Isur of Mechusar Zeman is because the Torah lessened the severity of the Isur by making it a Mitzvas Aseh. This is what the Gemara means when it says, "Nitko l'Aseh"; it does not mean that it is a Lav ha'Nitak l'Aseh.
(In support of Rashi's explanation, however, Tosfos demonstrates that there are a number of places in the Gemara where a Lav is considered a Lav ha'Nitak l'Aseh even though its Mitzvas Aseh does not correct the effects of the transgression.)
(b) It appears that Rashi's text of the Gemara did not include the words, "Lav ha'Ba Michlal Aseh, Aseh." (M. KORNFELD)
2) "YOM L'HARTZA'AH"
QUESTION: Rebbi Aftoriki posed a contradiction. The verse (Vayikra 22:27) first says, "v'Hayah Shiv'as Yamim Tachas Imo" -- "[When an ox or sheep or goat is born,] it shall remain with its mother for seven days," implying that on the night before its eighth day it is fit to be a Korban. The verse then says, "umi'Yom ha'Shemini va'Hal'ah Yeratzeh" -- "and from the eighth day and onward it will be acceptable," implying that on the night before its eighth day it is not fit!
Rebbi Aftoriki answered that on the night before the eighth day, the animal is fit to be Hukdash (designated as a Korban), but it is not fit to be offered on the Mizbe'ach until the eighth day.
Why is the verse, "umi'Yom ha'Shemini va'Hal'ah," needed to teach that a Korban may not be brought on the night before the eighth day from its birth? A general principle states that a Korban may be brought only during the daytime, as derived from the verse, "b'Yom Tzavoso" (Vayikra 7:38; Zevachim 98a)! (TOSFOS DH Yom)
(a) In his first answer, TOSFOS says that the general principle derived from "b'Yom Tzavoso" teaches only that if the seven-day-old animal was wrongly placed on the Mizbe'ach, b'Di'eved it is not removed. The verse of "umi'Yom ha'Shemini" teaches that even if the animal was already placed on the Mizbe'ach, it still must be removed.
(b) In his second answer, Tosfos explains that on a Bamah (a public or private altar, which was permitted before the Beis ha'Mikdash was built), Korbanos were permitted to be offered at night. The Isur of Mechusar Zeman, derived from "umi'Yom ha'Shemini," prohibits offering an animal on the night before its eighth day even on a Bamah. (Z. Wainstein)
3) THE REASON WHY "OSO V'ES BENO" DOES NOT APPLY TO "KODSHIM"
QUESTION: Rava says in the name of Rav Hamnuna that there is no punishment of Malkus for one who transgresses the Isur of "Oso v'Es Beno" with animals of Kodshim, because the Hasra'ah that is given is only 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. It is a Hasra'as Safek because perhaps the Zerikas ha'Dam will not be performed, in which case the Shechitah will have been ineffective, and, according to Rebbi Shimon, a "Shechitah she'Einah Re'uyah" is not a valid Shechitah.
RASHI (end of DH Hasra'as Safek) questions why the Gemara needs to give the reason of Hasra'as Safek in order to explain why there is no Malkus for the Isur of "Oso v'Es Beno" with animals of Kodshim. He explains that the prohibition of "Oso v'Es Beno," slaughtering a mother and child animal on the same day, cannot apply to Kodshim because of a logical reason, and not merely because of the problem of Hasra'as Safek. The Shechitah of a Korban on the same day as its mother invalidates it as a Korban ("Lo Yeratzeh") since the prohibition of "Oso v'Es Beno" is transgressed during its Shechitah, but since the Shechitah does not permit the Korban to be offered, it is a "Shechitah she'Einah Re'uyah" which is not considered a valid Shechitah, and thus "Oso v'Es Beno" has not been transgressed.
Rashi says, therefore, that the proper Girsa of the Gemara omits the reason of Hasra'as Safek.
There are a number of difficulties with Rashi's explanation.
(a) Rashi earlier (80b, DH Kama, and 81a, DH l'Rebbi Shimon) writes that Rebbi Shimon maintains that one is punished for Shechitas Kodshim ba'Chutz, even though the Shechitah is "Einah Re'uyah" and does not permit the Korban to be offered. This is because the Torah explicitly prescribes Malkus for such an act. Why does the same logic not apply to the Isur of "Oso v'Es Beno"? In this case, too, the Torah explicitly applies its prohibition to Kodshim (Chulin 78a), even though the Shechitah will not make the animal fit for the Mizbe'ach. (TOSFOS 80b, DH Shechitah)
(b) If the Shechitah of a Korban that does not permit the Korban to be offered is a "Shechitah she'Einah Re'uyah," then not only should there be no Malkus for one who slaughters a mother and its child on one day, but there should be no Isur either. The Gemara, however, proves only that Rebbi Shimon exempts one from Malkus, but he agrees that one still transgresses the prohibition of "Oso v'Es Beno."
(c) Rashi himself, in his following comments (DH v'Azda and DH Patur), explains the Gemara based on the Girsa of our text, which includes the reason of Hasra'as Safek. If Rashi maintains that this reason is incorrect and should be omitted from the text of the Gemara, then why does he mention it in his comments later?
(a) TOSFOS (80b, DH Shechitah) rejects Rashi's reasoning because of this question and asserts that the problem of Hasra'as Safek is the reason for why Malkus is not given for transgressing "Oso v'Es Beno" with animals of Kodshim, as the Gemara says.
Although the Torah explicitly applies the Pesul of "Oso v'Es Beno" to Kodshim, this does not necessarily prove that the Torah means that Malkus should be given to one who slaughters a mother and child animal of Kodshim on the same day. Rather, the verse may be teaching simply that the Korban is disqualified if slaughtered on the same day as its mother, but not that the person who slaughters them has transgressed a prohibition. (In contrast, in the case of Shechitas Kodshim ba'Chutz, no verse is needed to teach that a Korban slaughtered outside the Azarah is disqualified, since it obviously is disqualified because of the Pesul of "Yotzei.")
(b) Perhaps there is no prohibition against slaughtering a mother and child animal of Kodshim on the same day, as mentioned above. The Torah is teaching only that the animals become disqualified as Korbanos when they are slaughtered on the same day.
(c) It appears that Rashi retracted his opinion in a later version of his commentary, in which he decided that Hasra'as Safek indeed is the reason why no punishment is given for "Oso v'Es Beno" with animals of Kodshim. Indeed, the TOSFOS HA'ROSH (80b, DH Shechitas) quotes a lengthy explanation that Rashi gives for the Gemara there (80b), an explanation to which Tosfos there also refers, and which is missing from our text of Rashi. It is apparent that an earlier version and a later version of Rashi's commentary were inserted together here into the text of Rashi. (See Insights to Bava Kama, end of 18:1, and Insights to Eruvin 81:2.) (M. KORNFELD)
QUESTION: The Mishnah lists various types of Shechitos that are ineffective ("Einah Re'uyah"), and which are subject to the Machlokes between Rebbi Shimon and the Chachamim. The Mishnah divides them into three groups: "ha'Shochet v'Nimtza Tereifah," "ha'Shochet l'Avodah Zarah," and "ha'Shochet Paras Chatas...."
Why does the Mishnah not list all of these forms of Shechitah in one list and introduce them with one word of "ha'Shochet"? Why does it need to separate them by writing the word "ha'Shochet" three times?
ANSWER: It is the style of the Mishnah to teach laws in a pattern of "Lo Zu Af Zu," mentioning the more obvious cases first and then the less obvious cases. The Mishnah here is following this pattern. It alludes to the different degrees of Chidush of each case by separating them with the word "ha'Shochet."
The Mishnah first teaches that the Chachamim consider the Shechitah of a Tereifah a valid Shechitah with regard to the Isur of "Oso v'Es Beno." This is most obvious, since the Shechitah actually is effective with regard to preventing the corpse from being Tamei as a Neveilah.
The Mishnah then adds that a Shechitah for Avodah Zarah is also a valid Shechitah with regard to "Oso v'Es Beno," according to the Chachamim, even though such Shechitah makes the animal Asur b'Hana'ah.
Finally, the Mishnah adds that even in cases in which the animal was already Asur b'Hana'ah before the Shechitah, and the Shechitah accomplishes absolutely nothing other than the death of the animal, the Shochet nevertheless transgresses the prohibition of "Oso v'Es Beno."
(This approach also answers the question of TOSFOS (82a, DH Eglah), who asks why the Gemara does not propose that the Eglah mentioned in the Mishnah was a type of Eglah that was permitted to be eaten until its Shechitah or Arifah.) (M. KORNFELD)
5) ONE WHO SLAUGHTERS AN ANIMAL FOR AVODAH ZARAH AND THEN SLAUGHTERS ITS OFFSPRING ON THE SAME DAY
QUESTION: The Mishnah teaches that, according to the Chachamim, slaughtering an animal for the sake of Avodah Zarah is considered a valid Shechitah with regard to the prohibition of "Oso v'Es Beno." Reish Lakish explains that the Shochet is punished with Malkus for transgressing "Oso v'Es Beno" only when he slaughtered the first animal for Avodah Zarah, and he slaughtered the second animal for his own personal use. If he slaughtered the second animal for Avodah Zarah, then he is not punished with Malkus, because he receives the more severe punishment of Misah for his act of serving Avodah Zarah, and Beis Din may not administer two corporal punishments ("Kam Lei bid'Rabah Minei").
RASHI (DH Ela) explains that when the Shochet slaughtered the first animal for Avodah Zarah, the Shochet is judged first for transgressing "Oso v'Es Beno" and is given Malkus, and only afterwards is he judged for Avodah Zarah and given Misah, even though the act of Shechitah for Avodah Zarah was done first. This implies that if he would be judged for Avodah Zarah first, then he could no longer be punished with Malkus for "Oso v'Es Beno." Why, though, should he not receive Malkus? The transgressions were done at two different times, and thus "Kam Lei bid'Rabah Minei" does not apply.
(a) After the Shochet is found guilty of slaughtering an animal for Avodah Zarah, he is considered a "Gavra Ketila" (see Makos 5a), a person who is already considered dead, and any testimony against him in any other case would not be accepted; it would be considered "Edus she'Iy Atah Yachol l'Hazimah," testimony of witnesses who cannot be made into Edim Zomemim (since the person they tried to have punished is already considered dead).
(b) When a death sentence is passed, the verdict includes the punishment of Malkus as well (see Makos 13b, "Makos bi'Mekom Misah Omedes"). Therefore, no separate set of Malkus is administered for other sins that he committed.
(c) The verdict of a person found to be Chayav Misah must be administered without delay (see TOSFOS 2a, DH Kol) in order not to cause him undue torment. Therefore, Beis Din cannot judge him for other sins before carrying out the verdict of Misah. (Z. Wainstein)
6) THE FIRST SHECHITAH OF AN APOSTATE FOR IDOLATRY
QUESTION: Rebbi Yochanan says that it is possible for a person to receive Malkus for transgressing the Isur of "Oso v'Es Beno" even when he slaughters the first animal for his own needs and the second animal for Avodah Zarah. One would receive Malkus when he received Hasra'ah, before he slaughtered the second animal, for "Oso v'Es Beno," but he did not receive Hasra'ah for Avodah Zarah. In such a case, he is not Chayav Misah for the sin of Avodah Zarah, since he did not receive Hasra'ah for that sin, and thus "Kam Lei bid'Rabah Minei" does not apply to exempt him from Malkus.
How, though, is it possible that he is Chayav for "Oso v'Es Beno" when he slaughters the second animal? When he slaughters it for Avodah Zarah, he becomes a Mumar (apostate) for Avodah Zarah, and the Shechitah of a Mumar is not valid! His Shechitah is considered merely an act of Nechirah (killing an animal without Shechitah). Since he did not perform a valid Shechitah on the second animal, he did not transgress the Isur of slaughtering, with Shechitah, a mother animal and its offspring on one day!
earlier (14a, DH ha'Shochet) asks a similar question on the Mishnah there. The Mishnah states that Shechitah performed on Shabbos is a valid Shechitah, even though the Shochet desecrated Shabbos by performing the Melachah of Shechitah. The Gemara (15a) says that the Shechitah is valid even if the Shochet desecrated Shabbos intentionally (b'Mezid) by slaughtering the animal. How, though, can such a Shechitah be valid? The Shochet, who slaughtered the animal intentionally on Shabbos, is a "Mumar l'Chalel Shabbos," and the Shechitah of such a Mumar is invalid (see Insights to Chulin 14:1
Tosfos there answers that a person does not become a Mumar by slaughtering one time on Shabbos. Only one who slaughters two times on Shabbos is considered a Mumar.
The CHIDUSHEI HA'RAN (14a) writes that the Gemara here supports the assertion of Tosfos. When the Shochet slaughters one animal for Avodah Zarah, he is not yet considered a Mumar for Avodah Zarah. Only when he slaughters a second animal for Avodah Zarah is he considered a Mumar. Therefore, since this was the first animal that he slaughtered for Avodah Zarah, his Shechitah is valid and he is Chayav for "Oso v'Es Beno."
(b) However, the Ran writes that this proof for the answer of Tosfos is refutable. Perhaps the first Shechitah for Avodah Zarah is considered a Shechitah of a Mumar, and it makes the animal forbidden to be eaten. Nevertheless, it is a valid Shechitah with regard to preventing the animal from becoming a Neveilah. This is because the Mumar is not actually a Nochri; if he marries a Jewish woman the Kidushin takes effect. Since his Shechitah is a Shechitah performed by a Jew, it is effective in preventing the animal from becoming a Neveilah. Since the Shechitah is effective to be Metaher the animal from Tum'as Neveilah, it is still considered a valid Shechitah with regard to "Oso v'Es Beno" even though the Shochet becomes a Mumar through this first Shechitah for Avodah Zarah.
(c) REBBI AKIVA EIGER (in Chidushim) answers that according to those who maintain that a person becomes a Mumar at the first transgression, the Gemara must be referring to a case in which the Shochet explicitly declared that he was serving Avodah Zarah only with the end of the act of Shechitah. Consequently, the Shochet became a Mumar only at the end of the Shechitah. By that time, the first part of the Shechitah already made the animal Kosher, and thus the Shochet is Chayav for "Oso v'Es Beno." (See also KETZOS HA'CHOSHEN CM 52:1, DH ub'Ikar.) (D. BLOOM)