QUESTION: The Mishnah discusses the Shechitah of an animal that is a "Mesukenes," an animal that is close to death due to sickness (as the ARUCH writes, "Choleh ha'Karov l'Misah"). The Gemara discusses the source for permitting a Mesukenes in the first place. It is clear that one is allowed to eat the meat of a Mesukenes when there is "Pirchus" after the Shechitah, but it is a proper practice to avoid such meat.

The Mishnah in Bechoros (41a) states that a "Zaken" (an old animal) and a "Choleh" (a sick animal) may not be offered as Korbanos, but they are permitted for ordinary use, even if there is no "Pirchus" after the Shechitah. Why is a Choleh different from a Mesukenes?

ANSWER: The CHASAM SOFER points out that the Gemara in Bechoros (41a) teaches that two separate verses are necessary to teach that a Zaken and a Choleh may not be offered as Korbanos. If the Torah would have excluded only a Choleh, then one would have thought that a Zaken may be offered because "it is the normal manner" for animals to age. If the Torah would have excluded only a Zaken, then one would have thought that a Choleh may be offered, because "it tends to recuperate." It is clear from the Gemara there that the Choleh mentioned in the Mishnah is an animal that has a curable illness. This is consistent with the principle that "Rov Cholim l'Chayim" -- most sick people (or animals) will survive.

A Mesukenes, in contrast, is an animal that is close to death. The majority of animals that are Mesukanos will die. Hence, a Mesukenes has neither of the two reasons, as expressed in Bechoros, to permit it; it will neither recuperate, nor is it the natural state of an animal.

Is there any reason to be stringent and avoid eating the meat of a sick animal, like one should avoid eating the meat of a Mesukenes?

1. The TEVU'OS SHOR (end of #17) proves that there is no need to be stringent. The Gemara here (37b) derives that a Mesukenes is permitted to be eaten from the fact that Yechezkel ha'Navi proclaimed, "I never ate Neveilah and Tereifah" (Yechezkel 4:14). Yechezkel clearly was referring to something that the Halachah permits and that other people eat, since, otherwise, Yechezkel would not have asserted his virtue by saying that he was stringent not to eat such things. The Gemara says that he must have been referring to a Mesukenes. His statement implies that a Mesukenes is permitted to be eaten, except that it is Midas Chasidus to be stringent.

If a Choleh is permitted to be eaten, but it is Midas Chasidus to be stringent, then what is the Gemara's proof from Yechezkel that a Mesukenes is permitted? Perhaps Yechezkel was referring to a Choleh! It must be that there is no Midas Chasidus to refrain from eating the meat of a Choleh.

2. The CHASAM SOFER argues with the proof of the Tevu'os Shor. He says that even if a Choleh should not be eaten because of Midas Chasidus, Yechezkel could not have been referring to a Choleh. Yechezkel refers to the meat that he did not eat as "Neveilah and Tereifah." Since a Choleh is an animal that will probably recover and live, it cannot be called a Neveilah or Tereifah. Only a Mesukenes -- an animal that will probably die -- can be called a Neveilah or Tereifah, since it is on the verge of becoming one. Therefore, there is no proof that a Choleh is permitted l'Chatchilah. (Mordechai Zvi Dicker)

OPINIONS: The Gemara derives that a Mesukenes is permitted to be eaten from the fact that Yechezkel ha'Navi proclaimed, "I never ate Neveilah and Tereifah" (Yechezkel 4:14). Yechezkel clearly was referring to something that the Halachah permits and that other people eat, since, otherwise, Yechezkel would not have asserted his virtue by saying that he was stringent not to eat such things. The Gemara says that he must have been referring to a Mesukenes. His statement implies that a Mesukenes is permitted to be eaten (when there is "Pirchus," as the Mishnah (37a) teaches), except that it is Midas Chasidus to be stringent.

What is the Halachah in practice?

(a) The RAMBAN (DH she'Lo) quotes the GE'ONIM who rule that one is permitted to slaughter, and to eat the meat of, a Mesukenes that belongs to a Jew, but not a Mesukenes that belongs to a Nochri. The Ramban explains that the Ge'onim's reasoning is that since refraining from eating a Mesukenes is only a Midas Chasidus, one should avoid acting with a Midas Chasidus when doing so will cause a Jew to suffer a loss (no one will buy his animal). Since a Nochri will suffer no loss if one does not buy his Mesukenes animal and it dies (since Nochrim may eat Neveilah), one must abide by Midas Chasidus and avoid the meat of the Nochri's Mesukenes animal.

(b) The ME'IRI quotes other opinions that maintain that one should not eat meat of a Mesukenes at all, out of concern that it is a Tereifah. The Me'iri himself argues and maintains that this is an unnecessary stringency.

QUESTION: Yechezkel ha'Navi proclaimed, "I never ate Neveilah and Tereifah; Pigul meat never entered my mouth" (Yechezkel 4:14). Yechezkel clearly was referring to something that the Halachah permits and that other people eat, since, otherwise, Yechezkel would not have asserted his virtue by saying that he was stringent not to eat such things. The Gemara explains that when he says that he never ate Pigul, he must have been referring to meat of an animal that was brought to a Chacham to rule whether or not it was permitted. Even if the Chacham permitted it, Yechezkel refrained from such meat out of Midas Chasidus.

Why, though, did Yechezkel refer to such meat specifically as "Pigul"?

ANSWER: The MAHARSHA explains that meat of Pigul and meat that was subject to the ruling of a Chacham have one important element in common: they both become unfit by nothing more than a thought. The prohibition of Pigul occurs when a Kohen has an improper thought while performing the Avodah of a Korban. Yechezkel was stringent not to eat meat of an animal that was brought to a Chacham for a ruling, because at the moment that the doubt about the animal arose, there was a thought that the animal was forbidden.

The CHASAM SOFER adds that when the Chacham considered in his mind the possibility that the animal was prohibited, his thought actually made an impression on the meat. That invalidating thought remains on the meat even after the Chacham declares it Kosher. It is a Midas Chasidus to avoid even this type of Pigul.

Based on this understanding, the Chasam Sofer explains the Midrash (Devarim Rabah 5:6) that states that the six prohibitions mentioned in the beginning of Parshas Shoftim were written on the six steps of the throne of Shlomo ha'Melech. Most of these prohibitions deal with matters relevant to judges. The prohibition of "Do not plant an Asheirah tree... near the Mizbe'ach" (Devarim 16:21) also refers to judges, as the Gemara (Sanhedrin 7b) derives from that verse that one who appoints an unworthy judge is considered to have planted an Asheirah tree next to the Mizbe'ach (see Insights to Sanhedrin 7:4).

Why, though, was the prohibition of "Do not slaughter to Hash-m... any bad thing" (Devarim 17:1) written on Shlomo's throne? In what way is that prohibition related to a judge?

The Chasam Sofer explains that "Kol Davar Ra" refers to any bad word or thought, as RASHI explains there, based on the Sifri. In its simple sense, this is an admonition against sacrificing an animal with a thought of Pigul when offering it. This, however, still seems to have nothing to do with Shlomo ha'Melech's role as chief judge of the people.

However, as the Gemara here teaches, a "bad thought" also may refer to an animal that was brought a Chacham for a ruling. By first thinking that the object was prohibited, the Chacham had a "bad thought" about the object, making an impression upon it such that people who conduct themselves with Midas Chasidus should refrain from eating it. As the judge of the Jewish people, Shlomo ha'Melech certainly ruled on matters of Isur v'Heter. He therefore was warned that after contemplating an Isur on an animal, he should not offer it as a Korban. Accordingly, it is appropriate that this prohibition was written on the throne of Shlomo ha'Melech. (Mordechai Zvi Dicker)