QUESTION: The Beraisa proves that Rebbi Yehudah maintains that a Hasra'as Safek is a valid Hasra'ah from the fact that he rules that one who leaves over the meat of the Korban Pesach until the morning is not punished with Malkus, because the Isur is a Lav ha'Nitak l'Aseh -- there is a Mitzvas Aseh to burn the leftover meat. RASHI (DH Ba ha'Kasuv) explains that if not for the reason that it is a Lav ha'Nitak l'Aseh, one would have received Malkus even though the Hasra'ah that he receives is only a Hasra'as Safek, because at any moment after the Hasra'ah he might eat the meat and not transgress the Isur.

Why, though, can there not be a definite Hasra'ah in such a case? When the Hasra'ah is given at the very last moment of the night, the person has only that moment to eat the meat and avoid transgressing, and thus the Hasra'ah is a definite Hasra'ah, for if he does not eat the meat at that moment he certainly will transgress the Isur!

ANSWER: Rashi in Shevuos (21a DH Hasra'as Safek) explains that it is impossible for the witnesses to give Hasra'ah exactly Toch k'Dei Dibur before the end of the night (or day, in the case in Shevuos). That is, although one can tell when the day is over after it ends, before that moment he cannot know that it will end in exactly another Toch k'Dei Dibur. Therefore, the sinner can always claim that he still has time to eat the Nosar - until the day ends, when it is too late to give him Hasra'ah. (P. FELDMAN)

QUESTION: The Mishnah says that there are four times during the year at which the seller of an animal must inform the buyer that the animal's mother or child was also sold on that day. One of these days is the last day of the festival of Sukos. Why does the Mishnah not mention the first day of Sukos? There is no less of a Mitzvah to eat meat on that day of Yom Tov than on any other day of Yom Tov.

(a) TOSFOS (DH uch'Divrei) explains that at the beginning of Sukos, people are very busy preparing the Sukah and the Arba'as ha'Minim and they do not have time to involve themselves with the Shechitah of large animals on that day.

(b) TOSFOS in Avodah Zarah (5b, DH Erev) gives another answer. Tosfos there explains that each of the four days mentioned in the Mishnah is unique in that people celebrate on these days more than on other festival days. The last day of Sukos represents Hash-m's special love for the Jewish people (see Sukah 55b). The first day of Pesach is the day on which the Jewish people were freed from bondage in Mitzrayim and Hash-m took them to be His servants. Shavuos celebrates the giving of the Torah (see Pesachim 68b). On Rosh Hashanah, it was common to eat large meals as a sign for a good year (see Horayos 12a). In contrast, on the first day of Sukos there is no reason to have an especially large meal.

OPINIONS: In the Mishnah, Rebbi Yehudah states that a seller is obligated to inform the buyer of an animal that he has already sold the animal's mother or child only when there is no "Revach," in order to prevent the buyer from inadvertently transgressing the prohibition of "Oso v'Es Beno." When there is "Revach," the seller is not required to inform the buyer. What is "Revach"?

(a) RASHI (DH she'Ein and DH Aval) explains that when there was no lengthy time period between the sale of the mother and the sale of the child (i.e., they were sold on the same day), the seller is obligated to inform the buyer about the earlier sale of the mother or child, because we assume that each buyer purchases the animal for the sake of slaughtering it right away. If, however, there was a considerable period of time between the sale of the first animal and the sale of the second (i.e., the first animal was sold on a different day), then the seller is not required to inform the buyer that someone else bought the mother or child of this animal, for we are not concerned that they will slaughter the animals on the same day.

(b) RABEINU GERSHOM explains that "Revach" refers to how soon before Yom Tov the purchase was made. When the two animals were sold on the same day, but there are still a number of days before Yom Tov arrives, the seller is not required to inform the buyer that the mother or child of this animal was already sold. Since there is "Revach" -- considerable time left before Yom Tov -- we do not assume that the two buyers will slaughter the two animals on the same day. In contrast, when both animals are purchased on Erev Yom Tov, the seller is required to inform the buyer. Since there is no time left before Yom Tov (there is no "Revach"), it is reasonable to assume that both buyers intend to slaughter their animals on that day.

(c) The RAMBAM (Hilchos Shechitah 12:15) explains that the seller must inform the buyer only when he sees that the buyer is hurried, and the end of the day is approaching. In such a case, the seller must assume that the buyer wants to slaughter the animal right away, since he is not taking his time to choose an animal at his leisure, but he is rushing. When there is a lot of time until the end of the day and the buyer does not seem rushed, then we do not assume that he plans to slaughter the animal on that day, and thus the seller does not need to inform the buyer that the animal's mother or child was sold on that day.

The SHILTEI GIBORIM disagrees. When we see a person rushing to buy at the end of the day, then we may assume that he is buying the animal for the next day, because there is not enough time left in the day to properly slaughter and skin the animal. Hence, it is more reasonable to assume that the animals will be slaughtered on the same day when they are purchased at the beginning of the day. (Z. Wainstein)

OPINIONS: The Mishnah states that one must perform Kisuy ha'Dam for the blood of a Koy because of the doubt that a Koy might be a Chayah.

When one performs Kisuy ha'Dam for a Safek Chayah such as a Koy, must he recite a blessing? Similarly, whenever one performs a Safek Mitzvah, must he recite a blessing for the Mitzvah?

(a) The ROSH (6:1) quotes RABEINU YONAH who rules that one must recite a blessing when he performs Kisuy ha'Dam with the blood of a Koy, even though the requirement to perform Kisuy ha'Dam is a Safek. He proves this from the Gemara in Shabbos (23a) that says that the reason why one does not recite a blessing when he separates Ma'aser from produce of Demai is that the requirement to separate Ma'aser from Demai is a Safek d'Rabanan. This implies that when one performs an act of a Mitzvah because of a Safek d'Oraisa, he must recite a blessing. Since Kisuy ha'Dam of a Koy is a Safek d'Oraisa, one must recite a blessing.

Similarly, the RA'AVAD (Hilchos Milah 3:6) rules that one recites a blessing when he performs a Bris Milah on an Androginus (a person with both male and female reproductive organs), whose gender status is in doubt.

(b) The ROSH argues with the proof of Rabeinu Yonah from the Gemara in Shabbos. The Gemara in Shabbos means that although one recites a blessing for a Mitzvah that is a Takanah d'Rabanan, one nevertheless does not recite a blessing for separating Ma'aser from Demai, because the Rabanan enacted the Takanah to separate Ma'aser only as a result of a Safek.

The Rosh maintains that since one can fulfill the Mitzvah without reciting the blessing, one should not recite a blessing when he performs a Safek Mitzvah.

The RAMBAM (Hilchos Milah 3:6) also rules that one does not recite a blessing for a Safek Mitzvah. This is the view of most Poskim. (Z. Wainstein)

OPINIONS: Rebbi Zeira teaches that when one performs the Mitzvah of Kisuy ha'Dam, he must place earth both beneath and on top of the blood of the slaughtered bird or Chayah. Does this mean that one must actively designate earth by picking it up and placing it on the ground to be used for Kisuy ha'Dam?

(a) RASHI earlier (31a, DH d'Mazmin; see Insights there) implies that the earth literally must be placed underneath the blood, or at least pronounced as earth of Kisuy. If earth just happens to be where the blood falls, then the Mitzvah has not been fulfilled. Rashi's source is the statement in the Gemara earlier (31a) that relates that Rebbi Yonah bar Tachlifa had to "prepare" the earth in the valley for Kisuy.

(b) TOSFOS here (DH Tzarich) and the ROSH (2:8, 6:10) find Rashi's assertion difficult to accept. They maintain that as long as there is earth underneath the blood, the Mitzvah has been fulfilled and there is no need to designate the earth specifically for that purpose.

The SHULCHAN ARUCH (YD 28:5) records both opinions. The SHACH points out that if one did not prepare the earth verbally before the Kisuy, there is no need to perform another Kisuy. (M. KORNFELD)

QUESTION: The Mishnah states that the Mitzvah of Kisuy ha'Dam does not apply to birds of Kodshim. The Gemara suggests that the reason is that it is necessary to place earth beneath the blood as well as on top of it, and this cannot be done on the Mizbe'ach. Adding earth permanently to the Mizbe'ach would constitute enlarging the Mizbe'ach, which is forbidden, and adding earth temporarily to the Mizbe'ach would constitute a separation between the blood and the Mizbe'ach.

The Gemara asks that although one cannot place earth underneath the blood on the Mizbe'ach, this should not prevent the Mitzvah of Kisuy ha'Dam from being performed. Kisuy ha'Dam is valid even when one places earth only on top of the blood when it is not possible to place it underneath the blood. The Gemara proves that such a Kisuy ha'Dam is valid from the Beraisa in which Rebbi Yonasan ben Yosef rules that when one slaughters a Chayah and afterwards a Behemah, he is exempt from performing Kisuy ha'Dam with the blood of the Chayah. RASHI (DH Patur) explains that one is exempt because the blood of the Behemah is already covering the blood of the Chayah, and thus there is nothing to cover. Rebbi Yonasan ben Yosef continues and says that if one first slaughters a Behemah and then a Chayah, then he must perform Kisuy ha'Dam. This proves that although one cannot place earth underneath the blood of the Chayah (because it is already on top of the blood of the Behemah), one still is obligated to do Kisuy ha'Dam.

Does the Halachah follow the opinion of Rebbi Yonasan ben Yosef? If one is unable to place earth beneath the blood, is he still obligated to perform Kisuy ha'Dam?

(a) Many Rishonim, including the RIF, RAMBAM, ROSH, and RASHBA, do not record the ruling of Rebbi Yonasan ben Yosef at all. This implies that they maintain that the Halachah does not follow his opinion. Why do these Rishonim rule this way?

1. The HAGAHOS MAIMONIYOS (Hilchos Shechitah 14:6) suggests that the Rambam does not rule like Rebbi Yonasan ben Yosef because the Mishnah later (87a) disagrees with him. The Mishnah there states that when the blood of a bird or Chayah became mixed with the blood of a Behemah, one still must cover the blood of the bird or Chayah. This is not like the ruling of Rebbi Yonasan ben Yosef because, according to the Mishnah, even when the blood is mixed up, one still is required to do Kisuy ha'Dam, even if the blood of the Behemah is above the blood of the Chayah. Since there is a dispute between the Mishnah and the Beraisa, the Halachah follows the Mishnah.

2. The SHACH (YD 28:20) cites TOSFOS (DH Shochet) who questions the ruling of Rebbi Yonasan ben Yosef. Why should one be exempt from Kisuy ha'Dam when he slaughters the Behemah after the Chayah? He should be required to scrape away the blood of the Behemah and then cover the blood of the Chayah with earth! Tosfos asks further that in a case in which one first slaughtered a Behemah and then slaughtered a Chayah, why is it not possible to place earth underneath the blood? One should scrape away the blood of both animals and then place earth underneath!

The Shach explains the reasoning of the Rishonim who omit the ruling of Rebbi Yonasan ben Yosef. Those Rishonim answer the questions of Tosfos by explaining that Rebbi Yonasan argues with the Mishnah (87b) cited here that states that the blood on the Shechitah knife must also be covered. The Gemara explains that this must mean that one is required to scrape off the blood from the knife. Rebbi Yonasan, however, maintains that one does not need to scrape off the blood; it suffices to place earth on the blood while it is still on the knife.

Since the Halachah is in accordance with the Mishnah that states that one must scrape off the blood from the knife and cover it, it follows that the Halachah does not follow the view of Rebbi Yonasan who maintains that one is not required to scrape off the blood. Similarly, one is not required to scrape away the blood of the Behemah in order to cover the blood of the Chayah underneath, and one is not required to scrape away the blood of both animals in order to place earth underneath.

(b) The TUR and SHULCHAN ARUCH (YD 28:14) rule in accordance with Rebbi Yonasan ben Yosef.

Moreover, the Shach concludes that it is possible that the Rishonim who omit Rebbi Yonasan's ruling omit it not because they disagree with it, but rather, on the contrary, they maintain that his ruling is obvious and it is not necessary to codify it. According to this view, everyone agrees that the Halachah is that one is not required to perform Kisuy ha'Dam when the blood of the Behemah is on top of the blood of the Chayah, and one is required to do Kisuy ha'Dam even when he is unable to place earth underneath the blood but can cover only the blood on top with earth. (D. BLOOM)