1) THE "TUM'AH" OF A "PARAH ADUMAH"
QUESTION: The Gemara (end of 81b) cites a Beraisa in which Rebbi Shimon says that a Parah Adumah can become Tamei with Tum'as Ochlin once it is slaughtered. It becomes Tamei with Tum'as Ochlin because it is considered a food, since, if a better Parah is found, the first one may be redeemed and eaten.
RASHI (DH v'Amar) asks why Rebbi Shimon must say that a Parah Adumah can become Tamei because it is considered a food. Even if it is not considered a food, it can become Tamei (and be Metamei other things), because the Torah (Bamidbar 19:7-8) explicitly states that every Parah Adumah makes a person and Kelim become Tamei!
Rashi's question is difficult to understand. The Mishnah in Parah (8:3) states clearly that a Parah Adumah is Metamei only the Kohen who burns it or the Kohanim who are involved in the burning process. Those who merely touch it do not become Tamei. Therefore, Rebbi Shimon's reason is still necessary. What is Rashi's question? (TOSFOS 81b, DH Parah)
ANSWER: TOSFOS explains that Rashi's intention is not to say that the Torah teaches that a Parah Adumah is Metamei people who touch it. Rather, Rashi means that since the Parah Adumah makes people who burn it become Tamei, it should also make foods that touch it become Tamei even before it is burned (that is, it should be considered a Rishon l'Tum'ah, which can be Metamei foods, but not people, through contact), based on the rule that "anything which, in the future, will make people Tamei, makes food Tamei now" (Chulin 121a).
2) WHO MAY SLAUGHTER HIS ANIMAL FIRST?
QUESTION: The Mishnah (82a) teaches that when one person purchases a mother animal from a seller, and another person purchases the animal's child from the seller, the one who bought the first animal has the right to slaughter it first, and the buyer of the second animal must wait for another day to slaughter his animal.
The Gemara quotes a Tosefta that states that if the second buyer preempted the first buyer and slaughtered his animal first, "he is Zariz (zealous) and he gains; he is Zariz because he did not transgress an Isur, and he gains because he gets to eat the flesh of his animal."
How can the second buyer be called "Zariz" if he wrongly slaughtered his animal first? The first buyer had the right to slaughter his animal first, and by preempting him, the second buyer has caused the first buyer a loss, since he now must wait until a later day in order to slaughter his animal (the second buyer is not liable to pay, since the damage he caused was indirect).
ANSWER: The ROSH quotes a Tosefta that adds that the first buyer has precedence over the second buyer only when they bought the two animals from the same seller. When each buyer bought his animal from a different seller, neither one has any precedence over the other, and whoever slaughters his animal first gains, and the other one must wait until a different day. This is what the Tosefta quoted by the Gemara here means; it is referring to a case in which the two buyers bought their animals from different sellers.
The reason for this difference is explained by the TUR (YD 16). When the two buyers bought the animals from the same seller, it is assumed that the seller sold to the first buyer the right to slaughter his animal first (since the seller himself had that right). When the buyers bought the animals from two different sellers, neither seller had the right to sell the first buyer the right to slaughter his animal first. Whoever slaughters his animal first is called "Zariz" because he thereby avoids the possibility of transgressing the Isur of "Oso v'Es Beno."
The TAZ (YD 16:9) points out that when the buyers bought the animals from the same seller, if the second buyer slaughters his animal first (without the consent of the first buyer), he indeed is considered a sinner. (Z. Wainstein)
3) SLAUGHTERING A GRANDMOTHER ANIMAL, A MOTHER ANIMAL, AND A CHILD ANIMAL ON THE SAME DAY
OPINIONS: The Mishnah states that one who slaughters a mother animal and her two calves on the same day receives two sets of Malkus, because he performed two forbidden acts of Shechitah. One who slaughters the two children first and afterwards the mother receives only one set of Malkus, because he performed only one forbidden action.
The Mishnah continues and says that one who slaughters an animal (the grandmother), and then slaughters its grandchild, and then slaughters its child (the mother) on the same day receives only one set of Malkus, according to the Chachamim. RASHI (DH Sofeg) explains that this is because he transgressed only one prohibition (that of "Oso v'Es Beno") with only one Hasra'ah, and through only one action.
Sumchus argues and maintains that he is punished with two sets of Malkus. The Gemara (82b) explains that Sumchus maintains that one who eats two k'Zeisim of Chelev in one moment of forgetfulness must bring two Korbanos. Rashi there (DH b'He'elem) explains that just as one must bring two Korbanos even though both k'Zeisim were eaten in the same moment of forgetfulness, one receives two sets of Malkus, according to Sumchus, even though there was only one Hasra'ah and only one Isur. Since the Isur was transgressed two times (the grandmother and the mother were slaughtered on the same day, and the mother and the child were slaughtered on the same day), the person receives two sets of Malkus, even though there was only one Hasra'ah and one act of Shechitah.
Does Sumchus argue with the Chachamim only in the second case of the Mishnah, in which one slaughters three generations of animals on one day, or does he also argue in the first case of the Mishnah, in which one slaughters two calves and then their mother on the same day?
(a) RASHI (82b, DH d'Af Al Gav) and TOSFOS (82a, DH Sumchus) write that Sumchus also argues in the first case of the Mishnah. A person who slaughtered the two calves and then the mother receives two sets of Malkus, because even though he did only one action of Shechitah, he transgressed two Isurim of "Oso v'Es Beno" with that action. Rashi cites the Tosefta that states explicitly that one who slaughters five calves and afterwards their mother on the same day is punished with five sets of Malkus, according to Sumchus.
(b) The RAN (28a of the pages of the Rif, DH Masnisin) states that Sumchus agrees with the Chachamim in the first case of the Mishnah. In that case, not only is there only one action, but there is also only one title ("Shem") of Isur being performed; the two Isurim have the same title: "Beno v'Oso" (slaughtering a child and afterwards slaughtering the mother on the same day). In contrast, in the second case there are two "Shemos" of Isur being performed: slaughtering the grandmother and the mother is "Oso v'Es Beno," while slaughtering the child and its mother is "Beno v'Oso."
How does the Ran refute Rashi's proof from the Tosefta that states explicitly that one receives multiple sets of Malkus even in the first case, according to Sumchus?
The CHIDUSHEI CHASAM SOFER answers this question based on the words of the RAMBAN in MILCHAMOS HASH-M (27b of the pages of the Rif). The Ramban writes that the reason why the Torah prohibits slaughtering a mother and child on the same day is in order to prevent a person from acting in a cruel manner. The Ramban gives the same explanation in his commentary on the Torah (Devarim 22:6), but there he mentions that the Tana'im disagree about whether we know the reason for this Mitzvah or whether it is a Gezeiras ha'Kasuv whose reason has not been revealed to us.
The Chasam Sofer asserts that if the reason for the Isur of "Oso v'Es Beno" is in order to prevent acting in a cruel manner, then it makes no difference whether the mother is slaughtered before the child, or whether the child is slaughtered first; the level of cruelty is the same. Moreover, one who slaughters two children and then their mother is acting with even more cruelty.
The Ran maintains that the Mishnah and the Tosefta disagree about whether we know the reason for this Isur or whether it is a Gezeiras ha'Kasuv. The Tosefta maintains that the reason for the Mitzvah is to prevent cruelty. Therefore, one who slaughters five children and then their mother on the same day has done five acts of cruelty and, according to Sumchus, receives five punishments. The Mishnah, in contrast, maintains that we do not know the reason for the Isur, and, therefore, even Sumchus agrees that when one slaughters two children and then their mother on one day, he receives only one set of Malkus.
The Ran maintains that the Halachah does not follow the view of the Tosefta, and therefore he explains that in the Mishnah, Sumchus argues only in the second case, in which two different transgressions are being committed. (D. BLOOM)
4) MULTIPLE SETS OF "MALKUS" WITH ONLY ONE "HASRA'AH"
OPINIONS: The Gemara gives two explanations for the Beraisa that says, "One who sows Kil'ayim, Kil'ayim, receives Malkus." The first explanation is that the Beraisa refers to a case in which a person plants two types of Kil'ayim at one time, with one Hasra'ah, and it is expressing the view of Sumchus, who maintains that one receives two sets of Malkus for each transgression. The second explanation is that the Beraisa is referring to a case in which a person plants two types of Kil'ayim at two different times, with two Hasra'os, and it is expressing the view of the Rabanan, who are teaching that there are multiple forms of Kil'ayim for which one can be Chayav (in contrast to the view of Rebbi Yoshiyah, who maintains that there is only one form of Kil'ayim).
How would Sumchus and the Rabanan rule in a case in which a person plants two types of Kil'ayim at two different times, but with only one Hasra'ah? How many sets of Malkus would he receive?
(a) TOSFOS (DH Ela) asserts that the number of sets of Malkus depends only on the number of Hasra'os that are given. If there is only one Hasra'ah, then the Rabanan maintain that only one set of Malkus is given, regardless of how many times the sin was repeated (as is evident from the Mishnah that discusses a Nazir who drank multiple cups of wine).
(b) RASHI (DH b'Vas Achas) seems to emphasize that "b'Vas Achas" means that the two acts were done exactly at the same time, and for this reason Sumchus maintains that he receives a second set of Malkus even when there was only one Hasra'ah. This implies that when the two acts were done separately, Sumchus agrees that one does not receive a second set of Malkus (unless there was a second Hasra'ah), since the first Hasra'ah does not apply to the second act. (M. KORNFELD)
5) HITTING TWO PEOPLE AT THE SAME TIME
QUESTION: The Gemara cites a Beraisa which states that when a person who is a "Safek Ben Tish'ah la'Rishon, Safek Ben Shiv'ah la'Sheni" (he is unsure which of two men is his real father) hits both possible fathers at once, he is liable for punishment. If he hits one after the other, his liability depends on the dispute among Tana'im about whether "Hasra'as Safek" is considered a proper Hasra'ah.
In what way does the person hit both possible fathers at the same moment? RASHI in Yevamos (101a, DH b'Vas Achas) explains that he takes a long stick, swings it, and hits both men at the same time.
RASHI here (DH b'Vas Achas) suggests a more basic explanation for how the son hits both possible fathers at the same time. He hits one of the men with one hand and, simultaneously, the other man with his other hand.
RASHI in Makos (16a, DH b'Vas Achas) offers an even simpler explanation. The son hits both possible fathers in the normal manner (with his dominant hand, one after the other), but he does so "Toch Kedei Dibur" -- within a very short amount of time, so that the Hasra'ah serves to make him liable for both beatings.
Why does Rashi give three different explanations for how a person can hit two men at the same time ("b'Vas Achas")? What advantage does each explanation have over the other? (See NEHOR SHRAGA to Yevamos 101a and Insights there.)
(a) Rashi apparently is bothered by a different problem with each explanation, and in the different Sugyos he chooses to explain "b'Vas Achas" in different ways in order to avoid the problems with the other two ways of explaining it. Since each explanation has its own advantage, in each Sugya Rashi chooses the explanation which he feels is the best explanation in the context of that Sugya. The advantages of each approach may be as follows:
1. The simplest explanation is that the child hits both men "Toch Kedei Dibur." Rashi's basis for this explanation is the law that the Hasra'ah does not need to be given immediately before the act of the transgression, but it may be given a few seconds before the transgression as long as it is within "Toch Kedei Dibur" of the transgression.
Rashi here in Chulin and in Yevamos rejects that explanation because he understands that the Hasra'ah works "Toch Kedei Dibur" only when a single act is done within a few seconds of the Hasra'ah. To make the person liable for a second act, a second Hasra'ah is necessary, even though that second act is also done "Toch Kedei Dibur" of the first Hasra'ah. For this reason, Rashi here and in Chulin does not explain that "b'Vas Achas" means that both beatings occurred within "Toch Kedei Dibur."
(A source for this understanding may be the Gemara in Makos 20b, where the Gemara writes that if a person pulls out his hair in mourning (Kore'ach Korchah) five times, one after the other, with only a single Hasra'ah before all five acts, he is liable for only one set of Malkus. The Gemara implies that even if all of the acts were done "Toch Kedei Dibur," only one set of Malkus is administered. See Tosfos there, and Insights to Nazir 38:2.)
2. The reason why Rashi in Yevamos explains that "b'Vas Achas" means that the son uses one stick to hit both men at the same time, and he does not explain that the son uses both of his hands to hit both men at the same time, is as follows. The use of both hands would be considered two different actions. Even if those two actions would occur simultaneously, the Hasra'ah would apply only to one of them. For two actions, two Hasra'os are necessary.
Alternatively, Rashi maintains "Iy Efshar l'Tzamtzem" -- it is not possible for two events to occur at exactly the same time. When the son hits the two men with his two hands, one action necessarily precedes the other, and thus he is not liable for hitting them "b'Vas Achas." When he hits them both with a single swing of a stick, however, he performs one action, and thus the Hasra'ah is able to make him liable for two different results of a single action.
3. Rashi here in Chulin explains that the son hits the two men with his two hands. Why does Rashi there not explain that he hits them both with one stick? Rashi there chooses to give the simpler case, in which he hits them with two different hands rather than with one stick.
Rashi here apparently maintains that there is no way to explain the case according to the opinion that maintains "Iy Efshar l'Tzamtzem." If one cannot do two acts at exactly the same moment, even hitting two people with a single stick will not cause the Hasra'ah to apply to both hits, since one of the two people inevitably was hit before the other. The fact that the two hits came from a single swing is not sufficient reason for the Hasra'ah to apply to both hits, according to Rashi in Chulin; the fact that they were brought about by the same swing does not make them into a single action. Two hits are always called two actions. Since the only way to understand the Beraisa which discusses hitting both men at the same time is to say that the hits occur simultaneously, the Beraisa must maintain "Efshar l'Tzamtzem."
(The underlying difference in opinion expressed by Rashi in Chulin and by Rashi in Yevamos might involve whether Hasra'ah is defined as a warning that the person not do a particular action (Rashi in Yevamos), or as a warning that the person not do a particular transgression (Rashi in Chulin). According to the former definition, a single Hasra'ah can apply to two transgressions that stem from a single action, while according to the latter definition it cannot.) (See also Insights to Chulin 82:5.)
(b) RAV YAAKOV D. HOMNICK offers a different approach to understanding the words of Rashi.
The Gemara here in Chulin (82b) discusses a case in which a person eats a k'Zayis of each Gid ha'Nasheh (right and left) of an animal. Rebbi Yehudah, who maintains that only one of the two Gidim is forbidden, maintains that he is punished with one set of Malkus and not two. The Gemara asks that if the transgressor was warned with a separate Hasra'ah before he ate each Gid ha'Nasheh, Rebbi Yehudah should exempt him from punishment entirely, because Rebbi Yehudah maintains that Hasra'as Safek is not a valid Hasra'ah (and when each Hasra'ah was given, there was a doubt about whether the Gid ha'Nasheh that the person was about to eat was the forbidden one). The Gemara concludes that only one Hasra'ah was given, immediately before the person ate both Gidim. Since one of the two Gidim was definitely forbidden, the Hasra'ah is considered a Hasra'as Vadai.
The Gemara's objective here is to prove that when a person is warned with a single Hasra'ah before he performs two acts, one of which is certainly forbidden, he is liable for punishment even though the warning did not specify which of the acts was forbidden. Why, though, is such a Hasra'ah valid, if the witnesses who give the warning do not know which act is the forbidden one? It must be that whether or not a Hasra'ah is a Hasra'as Safek depends not on what the witnesses know, but rather on what the wrongdoer knows. That is, Hasra'as Safek exists only when the wrongdoer can claim -- after he received the Hasra'ah and committed the act -- that he did not know for certain that his act was forbidden. When, however, he cannot make such a claim (because at least one of his two acts clearly constitutes a transgression), the Hasra'ah is not a Hasra'as Safek, even though the witnesses do not know exactly which act is the forbidden one.
Since this is the Chidush of the Gemara here, the case (of a son who hits two men, one of whom is his father) which the Gemara cites to prove that such a Hasra'ah is not considered a Hasra'as Safek must involve a single Hasra'ah given before the person performs two acts, one of which is definitely a transgression. Accordingly, Rashi explains that the case of the son who hits the two men refers specifically to when he performs two acts of hitting.
This is also the view of the Gemara in Makos, in which Rebbi Yochanan and Reish Lakish disagree about whether Hasra'as Safek is a valid Hasra'ah. The Gemara cites support for the view of Reish Lakish (who maintains that Hasra'as Safek is not a valid Hasra'ah) from the Beraisa in which Rebbi Yehudah says that one who hits his two doubtful fathers is punished only when he hits them "b'Vas Achas," in which case the Hasra'ah is a Hasra'as Vadai and is valid.
The Gemara there says that Reish Lakish is consistent with his view that Hasra'as Safek is not a valid Hasra'ah when he rules "Kiyemo v'Lo v'Kiyemo." This means that the punishment of Malkus administered for the transgression of 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) is contingent upon whether the sinner subsequently fulfills ("Kiyemo") the Mitzvas Aseh associated with the Lav or does not fulfill it ("Lo Kiyemo"). That is, at the moment the person committed the transgression he became liable for Malkus, but he is given the opportunity to perform a Mitzvas Aseh in place of receiving Malkus. Accordingly, the Hasra'ah he received before the transgression was a Hasra'as Vadai (because he definitely sinned and definitely became liable for Malkus). The Gemara there apparently maintains, like the Gemara in Chulin, that even though the witnesses who give the Hasra'ah are in doubt about whether or not he will subsequently fulfill the Aseh and exempt himself from Malkus, the Hasra'ah is measured according to what the sinner knows. Since the sinner knew that he was doing an act that would make him liable for Malkus if he would opt not to fulfill the Aseh, it is considered a Hasra'as Vadai.
Accordingly, Rashi there explains that the son hit the two men with two acts, because the Gemara there maintains that Hasra'as Safek is defined as a lack of knowledge on the part of the sinner, and not a lack of knowledge on the part of the witnesses. Hence, when a person performs two acts of hitting with one Hasra'ah, the Hasra'ah is considered a Hasra'as Vadai and he is liable, since one of his acts definitely constituted a transgression, even though the witnesses did not know which one.
In contrast, the Gemara in Yevamos quotes a Beraisa which maintains that Rebbi Yehudah exempts the son who hits the two men "b'Vas Achas." The Gemara asks what his reason is for exempting the son in this case (Rashi explains that the Gemara understands that the Hasra'ah in this case is considered a Hasra'as Vadai, and thus the son should be liable). What is the Gemara's question? Perhaps the case is one in which the son did two separate acts of hitting, and since there is not a separate Hasra'ah for each act, the Hasra'ah is considered a Hasra'as Safek. It must be that the Gemara understands that the son did a single act of hitting (with a long stick), and thus the Hasra'ah was given for a single act which certainly constituted a transgression, since one of the men is his father (and hence the Gemara's question, why is he exempt).