Shalom Shimshon,

This is an excellent question, and it is discussed by the commentaries on the Rambam.

The Magid Mishneh points out that the Rambam clearly considers an Ever ha'Meduldal to be prohibited mid'Oraisa. The Rambam specifically writes that "one does not receive Malkus for it," wording that is appropriate only for a Torah prohibition. The Magid Mishneh explains that Rebbi Yochanan's expression in the Gemara, "Ein Bo Ela Mitzvas Perishah," means that one is obligated by the Torah to refrain from eating it, but there is no Malkus. He compares it to Chatzi Shi'ur, which is prohibited by the Torah through a Ribuy, yet does not carry Malkus.

The Pri Chadash offers a different explanation. He writes that the prohibition is derived from the verse, "u'Basar ba'Sadeh Tereifah Lo Socheilu." Since this verse includes several different prohibitions (such as Ever ha'Yotzei and Ever ha'Meduldal), it is considered a Lav sheba'Klalos, and one does not receive Malkus for violating such a Lav.

As an additional point, the Pri Chadash cites the Tosefta (Avodah Zarah 4), which states that an Ever ha'Meduldal is prohibited even to a Ben Noach, as evidence that the prohibition is indeed mid'Oraisa. The Or Same'ach, however, notes that this is not conclusive proof, since it is possible that for a Yisrael the prohibition is one of Tereifah, while for a Ben Noach, who has no concept of Shechitah, the very same limb is prohibited as Ever Min ha'Chai.

Kol Tuv,

Aharon Steiner

I actually went through many of the places where the Rambam writes "Eino Lokeh," and I think your observation is a very good one. To be honest, I do not have a fully satisfying answer. Your question is stronger than any explanation I have found.

Usually, when the Rambam writes that there is no Malkus, he identifies the reason by relating it to one of the established rules of Malkus, such as a Lav she'Ein Bo Ma'aseh, a Lav ha'Nitak l'Aseh, and the like, just as you pointed out.

According to the Pri Chadash, one would indeed expect the Rambam to do the same here, since he explains that the prohibition falls under the rule of a Lav sheba'Klalos, for which there is no Malkus.

Perhaps the Magid Mishneh's approach makes the Rambam's silence a little easier to understand. The Magid Mishneh explains that this is a unique Halachah based on Rebbi Yochanan's statement, "Ein Bo Ela Mitzvas Perishah." According to this understanding, the absence of Malkus is not because this prohibition falls under one of the standard categories governing Malkus, but because this particular prohibition was never given with Malkus in the first place. Even so, one could still ask why the Rambam did not spell this out more explicitly.

In any event, I think your observation is an excellent one.

Kol Tuv,

Aharon Steiner