QUESTION: The Gemara proves that Tevi'us Ayin is a stronger means of identification than providing Simanim from the fact that a murderer who is identified by two witnesses through Simanim is not put to death, while a murderer who is identified by witnesses who recognize him with Tevi'us Ayin is put to death.

TOSFOS (DH Pelanya) asks that there is a case in which a transgressor can be put to death based on the proof of Simanim alone. When a woman's husband disappeared, and witnesses testified that they saw him dead, basing their positive identification of him solely on Simanim, the woman may remarry. If she is then unfaithful to her second husband and commits adultery, she is punished with death. Her second marriage is assumed to be fully valid (and that is why she is Chayav Misah), even though her second marriage was valid only based on Simanim.

(a) TOSFOS answers that although the Rabanan permit a woman to remarry based on Simanim as described above, her marriage is considered a Safek-marriage, a marriage in doubt, for the rest of her life. Hence, if she later commits adultery, she will not be punished with death.

(b) The RAMBAM (Hilchos Sanhedrin 16:6) rules that in order to administer corporal punishment for transgressing a prohibition of the Torah, the testimony of two witnesses is necessary. Nevertheless, when a single witness testified that a piece of meat was Chelev, and then a person ate that piece of meat (in front of two witnesses), the person is punished with Malkus, since we have established that the piece of meat is Chelev. The SHEV SHEMAITSA (4:9) understands that the RAMBAM'S ruling also applies to transgressions that are punishable with the death penalty. (Not all Acharonim agree with this assertion.)

According to the Rambam, it may be suggested that the case of a woman who remarried based on Simanim is not comparable to the case of the Gemara. Once the Rabanan have established that the husband is dead based on Simanim, and they allow the woman to remarry, the husband's death now becomes an established fact. When she commits adultery and is put to death, it is not considered as though the identification based on Simanim is the cause of her punishment. (Z. Wainstein)

QUESTION: The Rabanan maintain that one who eats an entire Gid ha'Nasheh is punished with Malkus even when the Gid is less than the size of a k'Zayis, because it is a "Biryah."

A "Biryah" refers to an independent, living creature (such as an ant, as in Makos 16b) which is considered significant in itself and needs no minimum Shi'ur to make it significant. Why is a Gid ha'Nasheh, which certainly is not an independent, living creature, considered a "Biryah"?

(a) TOSFOS (DH Mai Taima) explains that when the Torah prohibits a specific object (such as the Gid ha'Nasheh, or a non-Kosher bird or other animal), one is Chayav for eating it regardless of its size. When, however, the Torah does not specify a particular object but gives only a Halachic description of an object (such as Neveilah, Tereifah, Chelev, etc.), one is Chayav only when he eats a k'Zayis. TOSFOS in Makos (17a, DH v'Rabanan) explains that any object that has a title that applies to it only when it is whole (such as the Gid ha'Nasheh, or a particular type of non-Kosher bird) is considered a Biryah. In contrast, forbidden objects such as Neveilah, Tereifah, or Chelev, have titles that apply even to pieces of that object.

(b) The RASHBA (98b) writes that three conditions are necessary in order for an object to be considered a Biryah.

First, the object must be prohibited from when it came into being. An object that became prohibited only after it was formed, such as a Shor ha'Niskal or Neveilah, does not fulfill this condition. (The authorities discuss whether every prohibited animal is indeed considered a Biryah, since every animal was forbidden at the moment it was born because of Ever Min ha'Chai.)

Second, the object must have come from a living creature.

Third, the object loses its title (which is commonly used to refer to it) when it is cut up and is no longer whole, even if that title is not related to the nature of its prohibition (such as a piece of Neveilah, which has the title of "cow" when it is whole; this is in contrast to the requirement of Tosfos that the object, when cut up, must lose the title that the Torah uses when it prohibits the object). This excludes Chelev, which is still called Chelev even when it is cut up. The SHULCHAN ARUCH (YD 100:1) rules like the Rashba.

The RAN agrees with the first two conditions listed by the Rashba, but disagrees with the third criterion. He maintains that even an object that loses its common title when it is cut up still may be considered a Biryah. The Ran says that the reason why a piece of Chelev is not considered a Biryah is that the Isur of Chelev does not refer to a single block of fat, but rather it refers to fats from various places in the animal.

Nevertheless, all of the Rishonim agree that an object must be whole, and not in pieces, in order to be considered a Biryah. (Z. Wainstein)

QUESTION: The Mishnah teaches that when a Gid ha'Nasheh is cooked with meat, if the taste of the Gid is discernible in the meat, then the meat is prohibited. The Mishnah says that whether the taste of the Gid is in the meat is determined by viewing the meat as the Gid and the Gid as turnips. If the taste of the meat would be discernible in the turnips, then the Gid ha'Nasheh prohibits the meat in the mixture.

Why does the Mishnah compare the Gid ha'Nasheh to turnips? What do turnips have to do with the Gid ha'Nasheh?

(a) RASHI (DH k'Basar) explains that the Mishnah is teaching a Halachah l'Moshe mi'Sinai about how to measure the extent of the taste of the Gid in meat. This law is included in the category of the laws of Shi'urim that were taught through a Halachah l'Moshe mi'Sinai (Sukah 5b).

Rashi's explanation, however, is problematic. Rashi writes later (98a, DH u'Sheneihem, and 98b, DH l'Ta'am) that according to Torah law, every object of Isur is Batel b'Shishim (it becomes annulled in a mixture in which the permitted food is sixty times greater than the prohibited food), whether or not its taste is discernible in the mixture! This implies that the presence of the taste of the Isur prohibits the mixture only mid'Rabanan. Why, then, does Rashi say that such a law is a Halachah l'Moshe mi'Sinai?

Moreover, the Halachah does not follow the statement of the Mishnah. A Gid ha'Nasheh does not prohibit the meat that is cooked with it, because the Halachah is that "Ein b'Gidin b'Nosen Ta'am" -- the Gid is not considered like meat but rather like an inedible bone (Chulin 89b, 100b). If the law of the Mishnah is a Halachah l'Moshe mi'Sinai, then how is it possible that this law is not the Halachah?

The SHOSHANIM L'DAVID (quoted in the Likutim on Mishnayos) explains that the Halachah l'Moshe mi'Sinai was not said specifically with regard to the Isur of Gid ha'Nasheh. Rather, the Halachah l'Moshe mi'Sinai was said with regard to any Isur whose taste can prohibit a food with which it is mixed. The only foods whose taste can prohibit other foods according to the Torah are Kodshim (as Rashi on 98b mentions); the Halachah l'Moshe mi'Sinai was said with regard to them, and it teaches that their taste in a mixture can be measured by viewing the meat of Kodshim in the mixture as though it were meat giving taste to turnips. The Mishnah is applying that Halachah l'Moshe mi'Sinai to the Gid ha'Nasheh.

(b) The RAMBAM (Perush ha'Mishnayos) explains that a Gid ha'Nasheh does not prohibit the meat when only a slight taste of the Gid can be discerned. There must be a strong taste of Gid, like the taste of meat in turnips.

(c) TOSFOS (97b, DH Kol) explains the Mishnah in the opposite manner. A Gid ha'Nasheh does not lend much taste to the meat. Consequently, we may measure meat (which does not lend much taste to turnips) mixed with turnips in order to determine whether the taste of the Gid is in the meat. (Rashi later (99b, DH b'Roshei) also seems to take this approach when he says that the taste of meat is not easily discerned in turnips.)

(d) The ROGATCHOVER GA'ON gives a novel explanation for the Mishnah here by comparing it to the case mentioned in the Gemara later (112a). The Gemara teaches that the taste of fat ("Shuman") cannot be discerned in turnips (implying that the taste of meat ("Basar") is discernible). The Mishnah here is teaching that in order to determine the extent of the taste of the Gid ha'Nasheh in the meat with which it was cooked, we are to measure only the amount of taste given by the actual meat of the Gid, and not the taste of the Shuman of the Gid, which is prohibited only mid'Rabanan (see Chulin 92b).

What, though, is the reason for measuring only the taste of the Gid itself, and not the taste of its fat?

The RAMBAM (Hilchos Orlah 2:1) explains that when a prohibited food gives taste to a permitted food in a mixture, the mixture is prohibited regardless of how much permitted food there is in the mixture. If, however, two different Isurim are mixed with a permitted food, and the taste of one of the two is no longer discernible (for example, it is the same type of food as the permitted food ("Min b'Mino")), the other Isur becomes Batel as well.

In the case of a Gid ha'Nasheh that was cooked with meat, both the taste of the Gid and the taste of its Shuman enter the meat and should prohibit it. However, the taste of the Shuman is the same as the taste of the meat (Rashi, Pesachim 30a, DH Amar Rava; Rif, Chulin 97b), making it indiscernible in the meat. Accordingly, we might have thought that the Rambam's rule would permit the meat, since the taste of the Gid ha'Nasheh should become Batel, even though its taste is discernible in the meat. Therefore, the Mishnah teaches that we view the Gid as "meat in turnips." We ignore the Gid's Shuman (which is prohibited only mid'Rabanan), and prohibit the mixture until the taste of the Gid (which is Asur mid'Oraisa) can no longer be tasted in the meat.

QUESTION: The Mishnah teaches that when a Gid ha'Nasheh is cooked with the thigh, if the Gid is large enough to impart its taste to the thigh, then the entire dish is prohibited.

The words of the Mishnah imply that when the Gid is large enough to impart its taste to the thigh, the entire dish is prohibited even when there are other items in the pot together with the Gid and thigh. We do not take into account these other items and say that since the Gid is not large enough to impart its taste to the total amount of permitted food, the mixture is permitted. Rather, we ignore all of the other items in the pot as if they were not there. (See HAGAHOS ASHIRI.)

However, this seems to contradict the statement of Rebbi Chanina (97b). Rebbi Chanina says that in a case of prohibited food in a pot, when we assess whether there is sixty times more permitted food than prohibited food in the mixture we take into account all of the gravy, congealed fat, pieces of meat, and the pot itself to reach the figure of sixty in order to annul the Isur. Why does the Mishnah here not include the other permitted items, besides the thigh, that are in the pot, when it assesses the total amount of permitted food in the pot?

ANSWER: The SHACH (YD 100:8) cites a number of Rishonim who infer from the Mishnah the principle that an "Isur Davuk" -- a prohibited food that is attached to a permitted food -- is annulled only when the permitted food to which it is attached is at least sixty times greater. This principle teaches that when the Isur is situated in its natural place -- next to the Heter -- in which it was situated while the animal was alive, we do not include the rest of the food in the mixture when determining whether there is sixty times more permitted food than Isur.

The DARCHEI MOSHE (YD 92:1) cites the ISUR V'HETER who quotes the Mishnah later (108a) that states that when a drop of milk falls onto a piece of meat, and the drop is large enough to impart taste into the meat, the meat is forbidden. TOSFOS there (DH Tipas) writes that the Mishnah's law applies only when the piece of meat is outside of the gravy. When the piece of meat is inside of the gravy, then all of the contents of the pot may be included to reach the measure of sixty times more meat than milk to annul the drop of milk. However, this applies only to a drop of milk or some other Isur that fell onto the piece of meat. When, however, an unsalted heart or liver (which are forbidden because of their blood content), or a piece of Chelev, is connected naturally to the meat, the rest of the contents of the pot are not included in the measure of sixty in order to annul the Isur. We are concerned that since the Isur is "Davuk" to the Heter, at one time the two items may have been outside of the gravy, or the Isur remained alone with the Heter in the pot, in which case the Isur makes the Heter forbidden, because, at that time, there was not sixty times more permitted food than Isur. (See TIFERES YAKOV to Tosfos 96b, DH Im. The Tiferes Yakov points out that according to this explanation, even when the pot is stirred and covered, as mentioned in the Mishnah (108a), when the liver is "Davuk" the stirring of the mixture is not effective to be Mevatel the Isur.)

Therefore, in the case of the Mishnah here, since the Gid is naturally attached to the thigh, it is considered an Isur Davuk and the thigh is permitted only when it is sixty times larger than the Gid. It does not suffice for there to be sixty times more permitted foods in the rest of the mixture. (See also BI'UR HA'GRA YD 73.26.) (D. BLOOM)