QUESTION: Rav Yehudah in the name of Rav says that Rebbi Meir and the Chachamim disagree about the liability of one who eats the Gid ha'Nasheh of a Neveilah. Rebbi Meir maintains that one is liable for both the Isur of eating the Gid ha'Nasheh and the Isur of eating Neveilah, even though the Isur of Gid ha'Nasheh was already present when the Isur of Neveilah took effect. The Chachamim maintain that he is liable only for the Isur of Gid ha'Nasheh.

The RAMBAM (Hilchos Ma'achalos Asuros 8:6) rules that one who eats the Gid ha'Nasheh of a Neveilah (or Tereifah or Korban Olah) is liable for both the Isur of Gid ha'Nasheh and the Isur of Neveilah (like Rebbi Meir), because the second Isur that takes effect is an "Isur Kolel"; it prohibits not only the Gid but the rest of the animal as well.

The Rambam's ruling implies that the Gid ha'Nasheh has a taste, because if it has no taste, then the Isur of Neveilah should not apply to it.

However, the Rambam elsewhere seems to contradict this. The Rambam (Hilchos Ma'achalos Asuros 15:17) rules that when a Gid ha'Nasheh is cooked with a permitted food, the mixture is permitted as long as the actual Gid is removed. The taste of the Gid does not prohibit the mixture, because the Gid has no taste. Similarly, the Rambam (ibid. 8:5) rules that one who eats the Gid ha'Nasheh of a non-Kosher animal does not transgress the Isur, because the prohibition of Gid ha'Nasheh applies to a Kosher animal. The reason why the person who eats the Gid ha'Nasheh is not liable for eating the meat of a non-Kosher animal is that the Gid ha'Nasheh has no taste and thus is not considered meat.

Since the Rambam rules that the Gid ha'Nasheh is not considered meat, why does he rule that one is liable for eating Neveilah when he eats the Gid ha'Nasheh of a Neveilah? What is the difference between the Gid ha'Nasheh of a non-Kosher animal (Behemah Teme'ah) and the Gid ha'Nasheh of a Neveilah?

ANSWER: The ROSH YOSEF explains that the Gid ha'Nasheh generally is not considered meat, according to the RAMBAM, because it has no taste. However, when the prohibition of eating the Gid ha'Nasheh does apply, it is evident that the Torah views the Gid ha'Nasheh as food. Since the Torah considers the Gid ha'Nasheh food, the prohibitions of Neveilah and Tereifah also apply to it.

In contrast, in the case of a non-Kosher animal, the Torah does not prohibit the Gid ha'Nasheh. Consequently, it is not considered food at all, and one who eats it is not liable for eating the meat of a non-Kosher animal.

QUESTION: The Gemara (101a) suggests that Rebbi Yosi ha'Glili maintains that an Isur cannot take effect on a pre-existing Isur ("Ein Isur Chal Al Isur") even when the second Isur is an "Isur Kolel" and includes more objects than the first Isur includes. If meat of Kodshim became Tamei, and then the Kohen became Tamei and ate the meat of Kodshim, he does not receive an additional punishment for eating Kodshim while his body is Tamei, even though that Isur is an Isur Kolel, since it includes both Tamei and Tahor food of Kodshim (see RASHI to 101a, DH Hachi Garsinan d'Chulei Alma).

The Gemara challenges the assertion that Rebbi Yosi ha'Glili does not agree with the principle of "Isur Kolel." A Beraisa states that when a person performs Melachah unintentionally (b'Shogeg) on Yom Kippur when it occurs on Shabbos, he is obligated to bring one Korban Chatas for transgressing the Isur of Melachah of Shabbos, and another Korban Chatas for transgressing the Isur of Melachah on Yom Kippur. (Rashi explains that Yom Kippur is considered an Isur Kolel with regard to Shabbos, because the Isur of Shabbos includes only Melachah, while the Isur of Yom Kippur includes eating as well. Since Yom Kippur causes a new Isur (eating) to take effect, the Isur of Melachah also takes effect, even though Melachah is already Asur because of the Isur of Shabbos.)

The Gemara's question is not clear. The Beraisa does not necessarily contradict the view of Rebbi Yosi ha'Glili. Perhaps one who performs Melachah on Yom Kippur that occurs on Shabbos is Chayav twice not because Yom Kippur is an Isur Kolel, but because the Isur of Shabbos and the Isur of Yom Kippur take effect simultaneously. The Gemara in Yevamos (33a) discusses the question of whether one is Chayav for both Isurim when the two Isurim took effect simultaneously. The RAMBAM (Hilchos Isurei Bi'ah 17:8) rules that one is Chayav for both Isurim when the two Isurim took effect at the same moment.

(a) RASHI (DH Shalach) answers that the Gemara indeed could have answered that Rebbi Yosi maintains that one is Chayav for both Isurim in a case when the two Isurim took effect simultaneously. However, Rebbi Yosi b'Rebbi Chanina, who gives a different answer in the Gemara, maintains that the opinion that disagrees with the principle of "Isur Kolel" also disagrees with the principle of "Isur Bas Achas" and maintains that one is not Chayav for both Isurim (but only for one Isur), even when they took effect at the same time.

(b) TOSFOS (101a, DH v'Isur) disagrees with Rashi. Tosfos answers that Shabbos and Yom Kippur are not considered to be two Isurim that take effect at the same time. Rather, the Isur of Shabbos is considered to take effect before the Isur of Yom Kippur. This is because the day on which Shabbos falls was established at the end of the six days of Creation, while the day on which Yom Kippur falls was determined by Beis Din (at the time that they establish the new month based on testimony of witnesses who saw the new moon).

(c) The RITVA answers that even according to the conclusion of the Gemara in Yevamos (that even those who disagree with "Isur Kolel" agree with "Isur Bas Achas"), Shabbos and Yom Kippur are not considered to be "Isur Bas Achas," because Yom Kippur itself is described by the Torah as "Shabbos" (Vayikra 23:32). Accordingly, Shabbos and Yom Kippur are considered to have the same essence of Kedushah and are considered the same Isur.

(It is important to note, however, that Shabbos bears a more severe punishment for its desecration than Yom Kippur. Intentional desecration of Shabbos is punishable with Misas Beis Din, while intentional desecration of Yom Kippur is punishable with Kares. The greater importance of Shabbos is also reflected in the Halachah (Megilah 21a) that on Shabbos, seven people are called to the Torah, while on Yom Kippur, only six people are called to the Torah.)

The approach of the Ritva answers another question. The Beraisa here quotes Rebbi Akiva who says that one who performed Melachah on Yom Kippur that occurred on Shabbos is Chayav for only one Isur. However, Rebbi Akiva himself (116a) maintains that "Isur Chal Al Isur" (when one eats a mixture of milk cooked with the meat of Neveilah, he is Chayav for two Isurim: meat and milk, and Neveilah). Why, then, does Rebbi Akiva say that one is Chayav for only one Isur when he performs Melachah on Yom Kippur that occurs on Shabbos?

According to the Ritva's approach, there is no contradiction. Rebbi Akiva maintains that one is Chayav for only one Isur when he performs Melachah on Yom Kippur that occurs on Shabbos, because Shabbos and Yom Kippur are so similar that they are considered the same Isur. (See also TOSFOS DH Rebbi Akiva, and RAMBAN here.) (D. BLOOM)

OPINIONS: In the Mishnah (100b), Rebbi Yehudah and the Chachamim disagree about whether the Isur of Gid ha'Nasheh was given to Bnei Noach at the time of Yakov Avinu, or whether it was given only to Jews at the time the Torah was given at Sinai. The Beraisa explains that the Chachamim prove their view from the verse, "Therefore, Bnei Yisrael may not eat the Gid ha'Nasheh" (Bereishis 32:33). At that time, the sons of Yakov were called "Bnei Yakov" and not "Bnei Yisrael." It must be that the Torah there is referring to the Jewish people after Matan Torah, which shows that the Isur of Gid ha'Nasheh was given only at that time.

Rava asks that we indeed find that Yakov's sons were called "Bnei Yisrael" even before Matan Torah. When the verse describes the family's descent to Mitzrayim, it says, "And Yakov arose from Be'er Sheva, and Bnei Yisrael carried Yakov their father..." (Bereishis 46:5). The Gemara answers that by that time, Yakov's name had already been changed to Yisrael, and thus it was appropriate to call his sons "Bnei Yisrael."

Rav Acha asks Rav Ashi that perhaps the Gid ha'Nasheh was prohibited "from that time" onwards. To which point does Rav Acha refer?

(a) RASHI (DH meha'Hi Sha'ata) and TOSFOS (DH l'Achar Ma'aseh) explain that Rav Acha refers to the point at which the sons of Yakov were called "Bnei Yisrael" -- that is, at the time that they carried him to Mitzrayim.

Rav Acha cannot be referring to the time at which Yakov's name was changed to Yisrael, because the Gemara answers his question by saying, "The Torah was not given piecemeal! That moment was not the moment of the incident (at which Yakov's Gid ha'Nasheh was wounded), nor was it the time the Torah was given." This implies that Rav Acha was referring to a time after the incident, and before Matan Torah. (The reason why we know that the Isur did not take effect at the time of the incident is that, as the Gemara explained earlier, the sons of Yakov were not yet called "Bnei Yisrael.")

(b) The TOSFOS HA'ROSH questions the explanation of Rashi and Tosfos. How can Rav Acha ask that the Gid ha'Nasheh should have become prohibited at the time that the "Bnei Yisrael," the sons of Yakov, carried their father to Mitzrayim? They had no way of knowing that the Torah would refer to them as "Bnei Yisrael," thereby forbidding them from eating the Gid ha'Nasheh!

The Tosfos ha'Rosh explains instead that Rav Acha refers to the point at which Hash-m told Yakov that his name was being changed to Yisrael (Bereishis 35:10). At that point, the Isur should have taken effect.

The Gemara answers, "That moment (the moment at which Yakov's name was changed) was not the moment of the incident," because Yakov's Gid ha'Nasheh was wounded before his name was formally changed (see Rashi DH l'Achar Ma'aseh).