CHULIN 4 (28 Sivan) - Dedicated in memory of Hagaon Rav Yisroel Zev (ben Rav Avrohom Tzvi) Gustman, zt"l, Rosh Yeshiva of Yeshivas Netzach Yisrael-Ramailes (Vilna-Brooklyn-Yerushalayim), author of "Kuntresei Shi'urim" and renowned Dayan in pre-war and post-war Vilna, on his 20th Yahrzeit. Dedicated by Harav Avraham Feldman and Michael Starr of Yerushalayim, Dr. Yehoshua Daniel of Efrat, and Rabbi Eliezer Stern of New York, who merited to study under the Rosh Yeshiva zt"l in Yerushalayim.

QUESTION: Rava and Abaye disagree about the intention of the Beraisa (end of 3b). The Beraisa first states that the Shechitah of a Kusi is valid when a Jew supervises him. The Beraisa then states that if no Jew supervised the Kusi, then we cut a piece of meat and give it to the Kusi to eat. If he eats it, then we may rely on his Shechitah. Abaye infers from the first statement that the Shechitah is valid only when a Jew is present supervising the Kusi's Shechitah, which implies that when a Jew is not there but might enter at any moment ("Yotzei v'Nichnas"), the Shechitah is not valid.
Rava infers from the second statement that the Shechitah is invalid only when no Jew was expected to come in at all, which implies that if a Jew might enter at any moment ("Yotzei v'Nichnas"), the Shechitah is valid.
There is a general rule (Kidushin 5b; TOSFOS to Bava Metzia 34a, DH Ela) that instructs us how to understand a Beraisa or Mishnah in which the implication of the first half contradicts the implication of the second half, such as in the case of the Beraisa quoted here. In such a case, we are to understand the Beraisa as saying, "Na'aseh k'Omer" -- the implication of the first statement is the correct one, while the second part of the Beraisa is "Lav Davka."
Why does the Gemara here not apply that rule to prove that Abaye's interpretation of the Beraisa is the correct one? The implication of the first statement of the Beraisa is correct, and the Shechitah is not valid (unless the Kusi himself eats the meat) not only when there is no supervision of the Kusi at all, but even when a Jew is going and coming.
(a) Rava understands that there actually is no contradiction at all between the beginning and end of the Beraisa. The phrase, "a Jew is standing over the Kusi," may be interpreted to mean that the Jew is standing over the Kusi part of the time, and not necessarily all of the time.
This clearly is Rashi's understanding of Rava's explanation of the Beraisa. Rashi (DH k'Omed) writes explicitly, "The phrase 'a Jew is standing over the Kusi' in the Beraisa means that the Jew is going and coming [according to Rava]." (That is, Yotzei v'Nichnas is not just compared to the law mentioned in the first half of the Beraisa. It is the law mentioned there.)
This may explain the change in the Gemara's phraseology. When the Gemara explains the second statement of the Beraisa according to Abaye, the Gemara says that Yotzei v'Nichnas "is also called Bo u'Matza'o." That is, the case of "Bo u'Matza'o" in the Beraisa includes a case of Yotzei v'Nichnas (but the two actions are not actually the same). When explaining Rava, however, the Gemara says that Yotzei v'Nichnas "is similar to Omed Al Gabav." That is, the act of Yotzei v'Nichnas is physically similar to the act of standing over the Kusi, and the words "standing over him" include standing over him even part of the time.
(b) The RITVA, however, notes this difference in phraseology and reaches exactly the opposite conclusion. He infers from the Gemara that according to Abaye, "Bo u'Matza'o" actually means that the Jew was Yotzei v'Nichnas, going in and out, while, according to Rava, the words "Omed Al Gabav" in the beginning of the Beraisa do not literally mean Yotzei v'Nichnas. Rather, the Ritva explains that since going in and out is similar, logically, to standing over the Kusi, the laws of the two must be similar as well (see also RASHASH).
The Ritva, therefore, must answer the original question from the rule of "Na'aseh k'Omer" differently. He must learn that, according to Rava, the cases of Yotzei v'Nichnas and Omed Al Gabav have so much in common that the normal rule of "Na'aseh k'Omer" is not applied, and instead the Gemara follows the inference of the second statement of the Beraisa. (M. KORNFELD)
QUESTION: The Gemara here cites Rava's teaching (3a) that the Shechitah performed by a "Mumar l'Te'avon," a Jew who transgresses the Torah due to his lusts, is valid when a Jew examines the knife and gives it to him. Such a person will not sin when Kosher meat is readily available, and as long as a valid knife for Shechitah is available, he will perform the Shechitah properly in order to eat Kosher meat. If, however, no valid knife is available, then one may not eat from his Shechitah, because the Mumar l'Te'avon will not make the effort to look for a valid knife. (Abaye (3b) argues with Rava and maintains that the Mumar l'Te'avon is never careful to slaughter the animal properly, even when one gives him a valid knife.)
The Gemara cites a Beraisa to support the view of Rava. The Beraisa teaches that, after Pesach, one is permitted to buy Chametz from a sinful Jew who did not destroy his Chametz during Pesach. The sinful Jew knows that the Chametz is forbidden, and therefore he gives it to a Nochri in return for the Nochri's Chametz. This Halachah shows that even Jews who do not destroy their Chametz during Pesach (because of their concern for monetary loss) are careful not to transgress the additional prohibition against eating Chametz that was in the possession of a Jew during Pesach, when they have the opportunity to trade it with a Nochri.
However, this proof seems to refute the second part of Rava's ruling, that when no valid knife is available, one may not eat from the Shechitah of a Mumar l'Te'avon, because he will not make the effort to look for a valid knife. The Beraisa implies that a sinful Jew will make some effort to avoid sinning!
(a) The RAMBAN cites a variant Girsa of the Beraisa which says, "One is permitted to derive benefit from Chametz of sinners immediately after Pesach." According to this text, one is permitted only to derive benefit from the Chametz (such as by feeding it to one's animals), but not to eat it (this is in contrast to RASHI's explanation on 4b, DH Mutar). The assumption that a Jewish sinner will avoid transgression an Isur when a permissible way is available is strong enough only to permit deriving benefit from the Chametz, but not to permit eating it. This is because some effort is involved in obtaining the Heter (such as finding a Nochri who will agree to trade his Chametz). Since some effort is involved, we may rely on the assumption that the sinful Jew avoids an Isur when a Heter is available only with regard to permitting benefit from the Chametz, but not with regard to permitting consumption. This implies that when there is no effort involved whatsoever (such as giving an examined knife to a Mumar l'Te'avon), this logic is strong enough even to allow the meat to be eaten.
(b) The Ramban, however, rejects the variant Girsa for a number of reasons. The Gemara infers from the words of the Beraisa, "... because they exchange [their Chametz]," that they certainly exchange their Chametz. According to the other Girsa, it is only an assumption that they exchange their Chametz, and thus one should not rely upon it.
Moreover, according to that Girsa, there is no proof for Rava's opinion. If the Halachah is that one may not eat the Chametz of a sinful Jew when exchanging it involved a small effort, even though the Safek involves only an Isur d'Rabanan (i.e., Chametz that was in the possession of a Jew during Pesach, according to Rebbi Shimon), then it is logical that one should be stringent for a Safek involving an Isur d'Oraisa (i.e., eating meat from an invalid Shechitah) even when there is no effort involved in obtaining Heter!
The Ramban, therefore, explains that the original question is not a difficulty at all. The sinful Jew who performs Shechitah does so because he wants to eat meat right away. If he does not find a valid knife for Shechitah now, he is not prepared to wait. In contrast, with regard to Chametz after Pesach, the sinful Jew does not necessarily want to eat all of his Chametz immediately after Pesach. He is prepared to wait a while until he finds a Nochri with whom to exchange his Chametz. (The Ramban disagrees with Rashi, who maintains that one is permitted to buy Chametz from the sinful Jew immediately after Pesach.) (D. BLOOM)


QUESTION: The Gemara cites a Beraisa that states, "Everyone may perform Shechitah, even a Kusi, even an Arel (an uncircumcised Jew), and even a Mumar." The Gemara suggests that the "Arel" mentioned in the Beraisa refers to a Mumar l'Arelus, a Mumar who rejects the Mitzvah of Milah.
RASHI explains that the Jew "rebels against" ("Meva'et") the Mitzvah of Milah, meaning that he has contempt for the Mitzvah. Rashi's explanation implies that the Beraisa refers to a Mumar l'Hach'is, a Mumar who intentionally sins in order to anger Hash-m. Why, though, does Rashi insist that the Beraisa is discussing a Mumar l'Hach'is for Milah, and not a Mumar l'Te'avon? In fact, the KESEH MISHNEH (Hilchos Shechitah 4:14), when explaining the view of the RAMBAM, understands that when the Gemara says that the Beraisa is discussing a Mumar l'Arelus, it means that he rejects the Mitzvah because he wants to avoid the pain of Milah, and not due to contempt.
(a) Perhaps wanting to avoid the pain of Milah is such a strong incentive not to perform Milah that one who refrains from Milah for that reason is not even considered a Mumar at all. He is not comparable to a person who sins out of a desire to have pleasure.
(b) RAV YAKOV KAMINETSKY zt'l in EMES L'YAKOV explains that in order to be considered a Mumar, one must constantly perform acts of transgression of the Aveirah. One who refrains from fulfilling the Mitzvah of Milah does not perform an act of transgression repeatedly. (Even according to the Rambam, who maintains that he transgresses the Mitzvah of Milah every day that he fails to circumcise himself, he nevertheless does not perform multiple acts of transgression.) Therefore, he is not considered a Mumar whose Shechitah is invalid unless he rebels ("Meva'et") against the Mitzvah, which means that he was warned several times to fulfill the Mitzvah, and he refused to fulfill it (either l'Te'avon or l'Hach'is). (See also CHIDUSHEI CHASAM SOFER, Mahadura Basra.)
(c) Rashi might mean that, indeed, the Beraisa is discussing a Mumar l'Hach'is. However, Rashi does not mean to limit the case of the Beraisa to a Mumar l'Hach'is. Rather, Rashi means that even a Mumar l'Hach'is is not considered a Mumar l'Chol ha'Torah and his Shechitah is acceptable. Rashi follows the opinion (in Horayos 11a) that maintains that a Mumar l'Hach'is is not considered a heretic.