1) SENDING A THIGH WITH A NOCHRI
QUESTION: The Mishnah (93b) states that one may send the thigh of an animal to a Nochri even though the Gid ha'Nasheh has not been removed, because when the Gid is still attached it is easily recognizable. RASHI explains that there is no concern that the Nochri will sell the thigh to a Jew who will then eat the Gid ha'Nasheh, because even if he does sell the thigh to a Jew, the Jew will be able to see that there are no signs that the Gid was removed and he will know that he must remove it himself.
The Gemara (93b) says that in places where all of the Shochtim are Jewish (see Rashi DH bi'Mekom), an announcement is made whenever a Tereifah animal is found in the butcher shops. Rashi (94a, DH Ela) explains that in these places (where such an announcement is made) a Jew is permitted to buy meat from a Nochri on a day on which there is no announcement, because all of the Shochtim are Jewish and thus it may be assumed that there is no Tereifah meat in the market today.
The Gemara asks that in such a place, one should be forbidden to send a whole thigh to a Nochri, because of the concern that the Nochri will cut up the thigh and sell it to a Jew (who is permitted to buy it from a Nochri, since no announcement was made) who will not realize that the Gid ha'Nasheh is still inside, and he might eat it. The Gemara answers that there is no concern for such a thing, because it is evident to a Jew that a Nochri cut up the thigh, and, therefore, the Jew will not think that the Gid has been removed. Rashi (DH Chitucha d'Oved Kochavim) explains that when a Jew cuts open the thigh, he cuts it where the Gid ha'Nasheh is located.
Why is the second Jew permitted to buy the thigh from the Nochri? There is a rule that any meat that was not constantly watched from the time that the animal was slaughtered is prohibited, because it might have been exchanged by a Nochri for Tereifah meat ("Basar she'Nis'alem Min ha'Ayin," or "meat that has disappeared from the eye's view"). Why is the Gemara not concerned for this?
ANSWER: Rashi writes that his teacher ruled that when a Jew appoints a Nochri to be a messenger to take a thigh to his friend, the thigh does not become Asur due to the law of "Basar she'Nis'alem Min ha'Ayin" (Chulin 95a), even when there is no Chotam (seal) on the meat. As long as the meat was cut up in the way that Jews cut meat after they remove the Gid ha'Nasheh, it is permitted, because a Nochri has a distinct way of cutting up the meat that is clearly recognizable. (Other limbs of an animal, however, become forbidden because of "Basar she'Nis'alem Min ha'Ayin," unless there is a Chotam on the meat.)
The RAN (33a of the pages of the Rif) writes that we may derive from the principle that the Nochri has a distinct way of cutting up the thigh that anything that is unusual for a Nochri to do is considered a valid Siman (sign) that a Jew did it (such as when the veins of the foreleg and the veins near the chest were removed from the cut of meat; see ROSH, end of 7:17), and we are not concerned that the Nochri might have learned how to do it like a Jew. The Ran writes in the name of Rashi that one therefore may send a thigh with a Nochri to a Jew even when the Gid ha'Nasheh was already removed and there is no seal on the meat.
It appears from the Ran that this practice is permitted even l'Chatchilah. However, the words of Rashi here imply that it is permitted only b'Di'eved (i.e., if the meat had already been sent with a Nochri, one may eat it, but one may not send it with a Nochri l'Chatchilah). This distinction is discussed by the Poskim. The TUR (YD 65) maintains that the practice is permitted l'Chatchilah, according to the BACH's understanding (DH u'Mah she'Kasav Aval). The Bach explains that since Tosfos (DH Chitucha) states that there is only a distant possibility that the Nochri exchanged the Kosher thigh with a Tereifah thigh that was also given to him by a Jew, there is no reason to be concerned that such a thing happened, and one may send a thigh with a Nochri even l'Chatchilah.
The Ran states that despite this leniency, in a place where one is not permitted to buy meat from a Nochri it is forbidden to send a thigh with a Nochri to another Jew even b'Di'eved, even when it is cut in the way that Jews are accustomed to cut it. In a place where Jews may not buy meat from Nochrim, there is a concern that a Jew bought meat that he assumed was Kosher, and he removed all of the forbidden fats and veins. He then discovered that the meat came from a Tereifah animal, and he therefore sold it to a Nochri. Since the likelihood of such a situation is high, one must be concerned that this happened and thus he may not buy meat from a Nochri, even when it is cut in the way that Jews cut it. However, when a Jew was expecting to received a de-veined thigh from another Jew, there is no concern that a different Jew sold a Tereifah thigh to the Nochri and the Nochri exchanged the Kosher thigh with the Tereifah one, since this is highly unlikely. (D. BLOOM)
2) SENDING A "YERECH" TO A NOCHRI
QUESTION: The Beraisa (end of 94a) states that when a Jew sends a whole thigh (Yerech) of an animal to another Jew, he does not need to remove the Gid ha'Nasheh first. When he sends a piece of a thigh, he must remove the Gid. In contrast, when he sends to a Nochri either a whole thigh or a piece of a thigh, he does not need to remove the Gid.
Abaye understands that the Beraisa is teaching that one may send to a Nochri a whole or cut thigh in a place where the practice in the market is not to announce the presence of Neveilos, in which case a Jew will not purchase meat there thinking that it is Kosher. Rava understands that the Beraisa is teaching that one may send a thigh to a Nochri where it is the practice to make such announcements, and such an announcement indeed was made on that day. In such a case, there is no concern that a Jew will unknowingly buy a non-Kosher piece of meat.
However, the Gemara earlier (beginning of 94a) gives two reasons for why the Mishnah (93b) does not permit one to send a cut thigh to a Nochri without removing the Gid ha'Nasheh. The Gemara says that we are concerned that perhaps a Jew is watching the Nochri receive the thigh from a Jew, and he mistakenly will assume that the thigh is Kosher and he will buy it from the Nochri. Moreover, the Jew is fooling the Nochri into thinking that the piece of meat is Kosher, and one is not allowed to trick a Nochri. Why, then, does the Beraisa permit one to send a cut thigh to a Nochri when the Gid ha'Nasheh has not been removed?
(a) RASHI (DH Gezeirah) explains that the Beraisa disagrees with the Mishnah and is not concerned about Jewish buyers watching the transaction (or about fooling a Nochri), since the thigh is being sent as a private gift to the Nochri in his home, and not to the Nochri in the public marketplace.
(b) TOSFOS (DH Amar) suggests that Abaye and Rava understand the Mishnah differently from the way the Gemara earlier understands it. They learn that the Mishnah is discussing a market in which the custom is not to announce the presence of Neveilos. Since no Jew would buy meat there, there is no concern that a Jew will think that meat sent to a Nochri is Kosher.
With regard to the concern that the sender is fooling the Nochri into thinking that the meat is Kosher, such a concern applies only to a sale, where the Nochri pays money for meat that he thinks is Kosher, when he is actually receiving non-Kosher meat. The concern for fooling the Nochri does not apply when one sends him a present.
(c) Tosfos cites RABEINU TAM who explains that the concern that a Jew will purchase the meat from the Nochri, or that the Nochri will be fooled, applies only when the Jew who sends him the meat explicitly specifies that it is Kosher meat (when it really is not). This is the case in the Mishnah. The Beraisa, in contrast, is discussing a case in which the Jew does not say that the meat is Kosher. In such a case one is permitted to send the thigh to a Nochri.
3) HALACHAH: "GENEIVAS DA'AS"
QUESTION: The Gemara teaches that in a place where the practice in the market is to announce the presence of Neveilos and Tereifos, there is no concern that a Jew will purchase meat there thinking that it is Kosher. The Gemara asks what they announce in such a place when there is a Tereifah. Rav Yitzchak bar Yosef says that they announce, "There is meat for the Nochrim." The Gemara asks why they do not announce that there is Tereifah meat for the Nochrim, and it answers that if such an announcement would be made, then the Nochrim would not buy it because they know that no Jew would buy it (and it is a disgrace to them to eat meat that a Jew would not buy).
The Gemara asks that by saying merely that there is meat for the Nochrim, without saying that it is Tereifah, we are misleading them. The Gemara answers that it is they who mislead themselves (since they do not ask about the meat before they buy it).
The Gemara here seems to contradict the Gemara earlier (94a) that teaches that one is prohibited to open a barrel of wine as a sign of honor for a guest when that barrel has already been sold to a storekeeper, because one thereby misleads his guest into thinking that he is being honored (since the wine, once exposed, will spoil very quickly). However, if the guest thinks that his host is wasting an entire barrel to honor him, then he is merely misleading himself. The guest did not ask why the barrel was opened, but he merely assumed that it was opened in his honor. Why, then, should one be prohibited to open the barrel?
(a) RASHI (DH Inhu) explains that one is prohibited to open a barrel for a guest only when he explicitly tells the guest that the barrel is being opened solely in the guest's honor.
(b) TOSFOS (DH Inhu) explains that the two cases are not comparable. In the case of opening a barrel for a guest, there is no reason for the guest to assume that the barrel was sold to a storekeeper (and is going to be opened soon anyway). It is clear to the guest that when the host opens the barrel, he does so in honor of the guest, and it does not enter the guest's mind that he should ask about it. Therefore, when the host opens the barrel when the guest arrives without mentioning that it was sold to a storekeeper, he is misleading the guest.
In contrast, in the case of meat being sold to Nochrim in the marketplace, it is very reasonable to assume that the meat is not Kosher. Since it is so likely that the meat is not Kosher, there is no need to explicitly state so. If a Nochri buys the meat thinking that it is Kosher (since no announcement was made stating that it is not), it indeed is the Nochri's fault for making such an assumption.
The SHULCHAN ARUCH (CM 228:6) rules that one is not allowed to mislead another person into thinking that he did something for him when he did not, or that he plans to do something for him when he really has no such intention. For example, one should not plead with his friend to be his guest when he knows that his friend will not accept the invitation. If, however, the act is one that his friend should realize is not being done specifically for him, then one is not obligated to tell the friend and it does not constitute "Geneivas Da'as."
(The DAMESEK ELIEZER adds that one is permitted to falsely impress an enemy in order to make peace with him. See Bava Metzia 87a.) (Z. Wainstein)