1) HALACHAH: COOKING MEAT WITH "MEI CHALAV"
QUESTION: The Beraisa states that one who cooks meat with "Mei Chalav" (whey) is Patur; the Torah prohibits cooking only actual milk with meat. However, the Gemara earlier (111b) teaches that it is forbidden to eat meat with Kutach, and Kutach is made with "Nisyuvei d'Chalba" (Pesachim 42a), which is the same as Mei Chalav. Are these two rulings compatible?
(a) TOSFOS (DH ha'Mevashel) explains that although the Torah permits cooking Mei Chalav with meat, the Rabanan prohibited it. This also seems to be the view of RASHI, who translates "Mei Chalav" here the same way he translates it in Pesachim and elsewhere ("mesgue," or whey).
(b) The ROSH (8:51) suggests that Nisyuvei d'Chalba and Mei Chalav are not the same. Nisyuvei d'Chalba refers to whey; it is considered milk mid'Oraisa and may not be cooked or consumed with meat. Mei Chalav, in contrast, is the clear water that remains after the whey has been cooked and all solid particles removed. The Torah permits cooking and eating this with meat. (Nevertheless, the Rabanan prohibited it, as the BEIS YOSEF (YD 87) mentions.)
HALACHAH: The SHULCHAN ARUCH (YD 87:8) rules like the Rosh and writes that it is forbidden mid'Oraisa to cook Nisyuvei d'Chalba with meat. (See KAF HA'CHAYIM 87:71. The PRI CHADASH (81:14), however, rules that Nisyuvei d'Chalba is Asur only mid'Rabanan. The PRI TO'AR (87:16) says that it is a Safek d'Oraisa.)
2) COOKING MEAT IN THE MILK OF A COW OR THE MILK OF A SHEEP
QUESTION: The Beraisa derives from a Kal va'Chomer that the milk of a cow and the milk of a sheep are included in the prohibition against cooking meat with milk. The Beraisa concludes that the words "ba'Chalev Imo" in the verse are extra and are written to include the milk of a cow or sheep. (The Gemara explains that the Kal va'Chomer can be refuted, and thus the verse is needed.)
(a) Why does the Beraisa need a Kal va'Chomer to prove that cow milk and sheep milk may not be cooked with meat? The Gemara earlier (113b) proves that the word "Gedi" in the verse that prohibits cooking meat and milk includes other animals, such as a cow and sheep, as well. Accordingly, when the verse says, "Do not cook a Gedi in the milk of its mother," it refers to the milk of any Kosher animal.
(b) Why does the Beraisa say that the words "ba'Chalev Imo" teach that the milk of a cow is included in the prohibition? Those words have already been used to teach additional laws (see 113b) and they are not extra.
(a) There are two answers to this question.
1. RASHI (DH ba'Chalev Imo) explains that the Tana of the Beraisa disagrees with the proof mentioned in the previous Gemara. This Tana maintains that the word "Gedi" refers only to "goat," and therefore he needs another source to teach that the prohibition includes the milk of a cow and sheep as well.
2. TOSFOS (DH ba'Chalev) explains that the Gemara's proof that "Gedi" refers to other animals shows only that it is prohibited to cook cow meat in the milk of a cow. The Beraisa here is proving that it is forbidden to cook cow meat in the milk of a sheep or of a goat as well.
(b) TOSFOS (DH Talmud Lomar) explains that the inclusion of cow milk in the prohibition is derived only from the word "ba'Chalev," and not from "Imo." The other laws are derived from the word "Imo."
3) ALLOWING A SLAVE TO MARRY HIS MOTHER
OPINIONS: Mar brei d'Ravina points out that when a Shifchah Kena'anis had a son and daughter, and the daughter was freed, the son and daughter are forbidden to marry each other, but the son is permitted to marry his mother.
Is this the Halachah? Is an Eved Kena'ani permitted to marry his mother?
(a) RASHI (DH Eved) explains that the slave is not actually permitted to marry his mother. Rather, he is permitted to marry a woman who has the same status as his mother; that is, another Eved.
The TIFERES YAKOV explains the opinion of Rashi. Only when a person becomes an Eved after birth does his slavery disconnect him from all familial connections. If, however, the Eved's mother was a Shifchah and the child was born into slavery (as in the case of the Gemara here, "Pri Im ha'Em"), there is no change in status that can break the familial connection between the mother and the child.
(b) RAV YAKOV EMDEN disagrees and asserts that the Eved would actually be permitted to marry his mother (since, according to Halachah, there is no familial connection between an Eved and his parents). (Z. Wainstein)
4) AN "ABOMINABLE THING" THAT INVOLVED NO TRANSGRESSION
QUESTIONS: Rav Ashi teaches that the source for the prohibition against eating meat and milk that were cooked together is the verse, "Lo Sochal Kol To'evah" -- "Do not eat any abominable thing" (Devarim 14:3). Rav Ashi understands that the verse is saying that we may not eat anything that Hash-m has made abominable to us, which includes a mixture of milk and meat. RASHI (DH Harei) writes that this prohibition applies regardless of how the cooked mixture of meat and milk came about; even if a Nochri or minor cooked it, eating it is forbidden mid'Oraisa. Since Hash-m warned us not to cook meat with milk, eating it is also forbidden.
(a) How does the verse imply that a cooked mixture of meat and milk is forbidden to eat regardless of whether a transgression was committed when it was cooked? How can the food itself be an "abominable thing" ("To'evah") when no Aveirah was done to prepare it? A Nochri is permitted to cook meat and milk together and to eat it! Moreover, what "abominable thing" is there when milk falls on its own into a pot of meat? (D. BLOOM)
(b) Even if a thing can be called "abominable" even when no transgression was committed in its formation, the Gemara's question later does not seem to make sense. The Gemara asks that according to Rav Ashi, something created on Shabbos as a result of a forbidden Melachah should be considered a "To'evah." It should be obvious that if a Nochri made something on Shabbos, this is not a "To'evah," because not only is a Nochri permitted to do Melachah on Shabbos, he is forbidden to rest on Shabbos, as the Gemara in Sanhedrin (58b) derives from the verse, "Day and night they shall not rest" (Bereishis 8:22)!
It seems logical that only something that comes about through an Aveirah is considered a "To'evah." Why, then, does Rashi says that when a Nochri or a minor cooked meat and milk together, it is considered a "To'evah"? (In one sense, however, Rashi's position seems to be logical, because everyone agrees that meat and milk that happened to be cooked together without human intervention, such as when milk falls into a pot of meat (108a), or when a Nochri cooked it for himself, is prohibited for a Jew to eat. It is not logical to say that Rav Ashi disagrees in this regard.)
(a) The TIFERES YAKOV answers that Rav Ashi agrees with the view of Tana d'Vei Rebbi Yishmael (115b) who derives the prohibition of eating meat with milk from the repetition of the verse, "Do not cook a kid with the milk of its mother" (Shemos 23:19, 34:26, Devarim 14:21). One of the three times that this verse is written teaches the Isur to eat meat cooked with milk. However, since the Torah phrases the prohibition in terms of "cooking," one might have thought that the Isur of eating the mixture applies only if one already transgressed the Isur of cooking. Rav Ashi teaches that the Isur of eating the mixture when one transgressed by cooking it is derived from the verse, "Do not eat any abominable thing." The verse, "Do not cook a kid with the milk of its mother," teaches that even when no transgression was committed when the mixture was cooked, the food is forbidden to be eaten.
(b) The CHIDUSHEI CHASAM SOFER answers that there is an essential difference between the prohibition of meat and milk and the prohibition of work performed on Shabbos. In the case of a mixture of meat and milk, the "To'evah" -- or the result that the Torah forbids -- is the food that was cooked, regardless of how, or by whom, it was cooked. In contrast, in the case of Shabbos, the "To'evah" is the fact that a Jew did not rest on Shabbos but performed Melachah. Accordingly, the result of a Melachah done by a Nochri on Shabbos is permitted mid'Oraisa. Moreover, the result of a Melachah that a Jew started before Shabbos that continued by itself during Shabbos is permitted l'Chatchilah, because the Jew is resting on Shabbos.
When the Gemara asks that according to Rav Ashi, something made on Shabbos ("Ma'aseh Shabbos") should be forbidden, the Gemara understands that even something that results from a "To'evah" should be forbidden. That is, on Shabbos the "To'evah" is the fact that a Jew did not rest, and the result of that is the object that was formed through the Melachah that he did. When the Gemara answers (beginning of 115a) that only "Shabbos is holy, but what is produced on Shabbos is not holy," it teaches that even though the "To'evah" is forbidden, what accrues from the "To'evah" is permitted. Accordingly, in the same way that the thing that was made on Shabbos is permitted b'Di'eved (mid'Oraisa), a field plowed by an ox and donkey together is also permitted.
Therefore, even though Rashi says that meat and milk cooked by a Nochri or minor is a "To'evah," nevertheless the Gemara, when it asked its question, did not intend to say that work done on Shabbos by a Nochri is forbidden, because his act of not resting on Shabbos involves no "To'evah." (D. BLOOM)
5) GIVING A GIFT TO AN IDOLATER
QUESTION: The Beraisa quotes the view of Rebbi Yehudah who maintains that one may not give a Neveilah to a Nochri as a gift; one may only sell it to him. However, the Mishnah earlier (93b) clearly states that one may send a thigh of an animal as a gift to an idolater. Why, then, does Rebbi Yehudah prohibit it?
ANSWER: TOSFOS (DH Rebbi Yehudah) explains, based on a Tosefta, that one is permitted to send a gift to an idolater who is one's neighbor and will show gratitude in return.
A similar concept is expressed by the Rishonim in Gitin (38b). The Gemara there teaches that one is prohibited to free his Eved Kena'ani. The Gemara questions this law from an incident in which the Rabanan permitted an Eved Kena'ani to be freed. Rebbi Eliezer freed his Eved in order to obtain a tenth Jewish man for a Minyan. The Gemara answers that in order to perform a Mitzvah (prayer with a Minyan), freeing an Eved is permitted. The RAMBAN and other Rishonim explain that the prohibition of freeing an Eved Kena'ani is similar to the prohibition of giving a gift to a Nochri, as derived by the Gemara (Avodah Zarah 20a) from the verse, "Lo Sechanem" -- "Do not show them favor" (Devarim 7:2). Freeing an Eved is considered to be giving the Eved his freedom as a gift.
Since the prohibition against freeing an Eved is based on the prohibition of giving a gift to a Nochri, the prohibition depends on one's intention for freeing the Eved. If the master's intention is to do a favor for his Eved, then freeing him is considered like giving him a gift. If, however, the master wants to free his Eved for his (the master's) own purposes, such as to help himself or others fulfill a Mitzvah (and not as a gesture of goodwill towards the Eved), then the beneficiary is considered to be the master and not the Eved, and one is permitted to free him. (See also Insights to Gitin 38:5.) (Z. Wainstein)