1. If Tzaar Baalei Chaim is D'oraisa, wouldn't we already know that if you see an animal that's crouching under its burden, you need to alleviate its suffering? Is it only the DETAILS of the mitzvah of Prika that the Torah is coming to add, like you only have to do it "Imo", together with the owner, and that if he refuses to help, you're entitled to be compensated....Or, at what point you need to get involved, i.e. when you see it at a distance of "Echad M'shiv'a U'Mechtzeh B'mil" (Beraisa 33a), etc.
2. What does the Gemara on 32b mean when it says, ' We learn from both (Rabanan and R'Shimon) that Tzaar Baalei Chaim is D'oraisa? We already know from a Bifayrish Mishnah on 32a that R'Yosi holds Tzaar Baalei Chaim is NOT D'oraisa. Really what the Gemara should be saying is 'We learn from both (Rabanan and R'Shimon) that THEY HOLD Tzaar Baalei Chaim is D'oraisa'. Unless it means that if we see they both hold it's D'oraisa, then L'Halacha, Tzaar Baalei Chaim must be D'oraisa, K'neged R'Yosi.
3. At the bottom of 32b, the Gemara is Doche a Ra'ya from a Beraisa that indicates Tzaar Baalei Chaim is not D'oraisa by saying 'Ha Mani? R'Yosi HaGlili', who we know holds Tzaar Baalei Chaim is not D'oraisa. How is that an acceptable answer to the proposed proof? What is the point of ever bringing any stam sources that indicate Tzaar Baalei Chaim is not D'oraisa if they could always be Nidche by attributing them to the individual opinion of R'Yosi?
Daniel Steinberg, Columbus, OH USA
1) Rashi (Shabbos 128b, DH Tza'ar) writes that it is in fact from the Mitzvah of unloading that we learn that Tza'ar Ba'alei Chayim is d'Oraisa (see Chidushei Chasam Sofer here).
2) Yes, I think the key word is "Shneihem." If it would have been Rabanan without Rebbi Shimon, then it would have been Rabanan against Rebbi Shimon and Rebbi Yosi, which would be Rabim against Rabim, but now it is Rabanan and Rebbi Shimon against Rebbi Yosi, so there is a clear majority for Tza'ar Ba'alei Chayim d'Oraisa.
3) See the Chidushim ascribed to the Ritva that in this case there is a good reason to say that the Beraisa follows Rebbi Yosi ha'Glili -- because Rebbi Yosi does not require the verse of "v'Chadalta" to teach "Zaken v'Eino Lefi Kevodo."
Kol Tuv,
Dovid Bloom
Thank you, R'Dovid!
If I understand you correctly, according to the Rabanan, the Mitzvah of Prika is where we learn that the Torah wants us to alleviate a suffering animal's pain.
(I think there's a Ra'aya to this Mehalech from the Gemara at the top of 31b. The Gemara says, "If I just had the mitzvah of Hashava, I would say the reason you need to get involved is because the owner's not there, but by Prika and Ti'ina, where the circumstances are that the owner IS there with his animal, you might think you'd be Patur from having to help - and that if he wanted someone's help, he'd have to go and hire it (Rashi)."
But what about the Tzaar Baalei Chaim aspect of Prika; wouldn't that alone dictate that you'd have to help, regardless if the owner is there or not? It must be that if the Torah did not write the mitzvah of Prika, we would not have known a source for having to help on account of Tzaar Baalei Chaim.)
According to R'Yosi HaGlili, however, the Mitzvah of Prika is NOT teaching us that the Torah wants us to alleviate a suffering animal's pain. Rather, it's teaching us to protect the property of another, so as to save him from a (potential) financial loss.
If I understood correctly the Ritva Yeshanim that you quoted, he learns the following way:
The Rabanan say - you can't learn the Ptur of Zakein from the Mitzvah of Hashava because maybe it's only by Hashava, where there's no Tzaar Baalei Chaim, would there be a Ptur for Zakein. But by Prika, where there IS Tzaar Baalei Chaim, unless you have the word 'V'Chidalta', you would have not applied the Ptur of Zakein.
R'Yosi looks at the Mitzvah of Prika as being only a Chisaron Kis issue, therefore the Ptur of Zakein CAN be learned from the same Ptur by Hashava, and the word 'V'Chadalta' would be free for him to teach that you don't have to help by a Nochri.
My question is: If R'Yosi looks at the Mitzvah of Prika as being only a Chisaron Kis issue, why would the Torah need to say 'V'Chidalta' just to inform you that you do not have to help by a Nochri? Where is there such a precedent for the Torah instructing us to be Chas on the Mamon of Goyim, that 'V'Chidalta' would be coming to exempt you from?
Perhaps, R'Yosi's starting point is that since the Torah doesn't use the "Achicha" by Prika, as it does by the Mitzvos of Ti'ina and Hashava, it's Mashma that you WOULD need to do Prika by Yisrael and Nochri alike. Therefore, the Torah writes 'V'Chidalta' to inform us that Prika is NOT a Tzaar Baalei Chaim issue and is indeed, only a Chisaron Kis issue, and that's why you don't have to help by a Nochri (It's a bit Mashma from the Loshon of the Ritva Yeshanim that this is how R'Yosi learns).
But what compels R'Yosi to learn the Mitzvah this way, vs the way the Rabanan learn (that the Mitzvah of Prika is a Tzaar Baalei Chaim issue, and 'V'Chidalta" is coming to exempt a Zakein), which seems much more straightforward?
Additionally, the Gemara at the bottom of 30b is difficult for R'Yosi's Mehalech, i.e. that Prika is merely a Chisaron Kis issue. It states that the only reason we don't just learn the Mitzvah of Hashava from Prika/Ti'ina is because there's no Tzaar Baalei Chaim issue by Hashava - according to R'Yosi, there's no Tzaar Baalei Chaim issue by Prika, either!
The only answer I could think of is based on what the Ritva Yeshanim says in his second answer. Since the connotation of the word 'V'Chidalta' is so final and does not even allow for a Chiyuv B'Schar, under a given circumstance, namely by a Nachri, it must direct R'Yosi to understand the Mitzvah of Prika as being a Chisaron Kis issue vs. a Tzaar Baalei Chaim issue.
However, since the word 'V'Chidalta' could equally be used to imply a categorical Ptur for a Zakein, I'm left unclear as to why R'Yosi chose to learn his way vs the Mehalech of the Rabanan in Prika.
B'chavod Gadol.
Warm regards,
-Daniel Steinberg
1) That is a very interesting proof from the beginning of 31b. However, what I do not understand is that the Gemara puts Perikah and Te'inah together when it says "Hani Tarti," and Te'inah does not involve Tza'ar Ba'alei Chayim?
2) I understood that the Ritva Yeshanim says that it is from the word "v'Chadalta" that Rebbi Yosi ha'Glili learns that Tza'ar Ba'alei Chayim is not d'Oraisa. We learn from "v'Chadalta" that if the animal belongs to a Nochri then the Zaken does not have to do Perikah. If Tza'ar Ba'alei Chayim would have been d'Oraisa, the Zaken would have to unload the animal.
(I think there may be a typo in what you wrote, "the Gemara at the bottom of 30b.")
Yasher Ko'ach Gadol,
Dovid Bloom
In regards to your first question, I wanted to say, "Ein, Hachi Nami", there is no Tzaar of the animal by T'ina, and the Gemara is referring to the Tzaar aspect of Prika, which, after we have learned the previous Tzrichusa at the bottom of 31a (why the Torah needs to write both the Mitzvos of Prika AND Ti'ina) is a package unit that must always be grouped and considered together with Ti'ina.
It's a little Mashma from the Lashon of the Gemara: "Hani Tarti", i.e. they're a package unit that must be considered together now, after the initial Tzrichusa.
My answer works a little better in the Mehalech of Rashi, that the initial Tzrichusa of the Gemara was: "Why can't I learn the Etzem Mitzvos of Prika/Ti'ina from each other?" vs. the Mehalech of Tosfos and other Rishonim (Ritva Chadashim, etc.) who learn the question of the Gemara as, "Why can't I learn the 'Ain Ba'alav Imo' aspect of Prika/Ti'ina from each other?".
This may be why they work to identify the Tzaar aspect of the animal by T'ina (I believe the Ritva explains there is some Tzaar for the animal by T'ina), but Rashi doesn't bother addressing the obvious question - where is the Tzaar by Ti'ina?
In regards to your second comment - It seems you may have 'crossed wires' with the Halachos of Nochri and Zakein.
The Ritva Yeshanim states that because R'Yosi holds Tzaar Baalei Chaim is not D'oraisa, he doesn't need the word 'V'Chidalta' to teach the Ptur of Zakein for a Yisrael's animal; that is learned out from the same Ptur by the Mitzvah of Hashava ('V'Hisalamata'), being there's no Adifus of Tzaar Baalei Chaim by Prika over Hashava.
Therefore, the Ritva Yeshanim concludes, that according to R'Yosi:
"V'Chidalta" must be coming to teach that you need not help unload the animal of a Nochri - and it is teaching you that Tzaar Baalei Chaim is NOT D'oraisa".
My question was - that is circular reasoning!
What is compelling R'Yosi to learn 'V'Chidalta' this way? It must start from his initial perspective that Prika is ONLY a Chisaron Kis issue and NOT a Tzaar Baalei Chaim issue, and that perspective is what frees up the word "V'Chidalta" for him to teach us the Ptur for Prika by a Nochri's animal.
But "V'Chidalta" can't simultaneously teach the Ptur of Nochri AND act as the source that Tzaar Baalei Chaim is not D'oraisa - the Limmud for the Ptur of Nochri (as opposed to "V'Chidalta" teaching the Ptur of Zakein) depends solely on the initial perspective of Tzaar Baalei Chaim not being D'oraisa!
B'chavod Gadol.
Warm regards,
-Daniel Steinberg
1) Yes, Tosfos (31a, DH l'Rebbi Shimon) writes that if there are not many people available to do the Te'inah, then the load weighs down on the animal. This suggets that Te'inah also involves Tza'ar Ba'alei Chayim, so Tosfos could be similar to the Ritva that you cited, Reb Daniel. The Maharam Shif, on 31a (two lines from the bottom, "Tza'ara Didah") writes that this is the Peshat in the Gemara there: that in comparison with Aveidah, Te'inah is also considered to involve Tza'ar Ba'alei Chayim. So this can be an answer to my question: the Gemara says "Hani Tarti" because in comparison with Aveidah both Perikah and Te'inah involve Tza'ar Ba'alei Chayim.
(It is also well worth looking at Teshuvas Pri Yitzchak, by Rav Yitzchak Blazer zt"l, vol. 1, #54, near the end of DH u'Mah.)
2) I made a mistake, as you pointed out, by mentioning Zaken in connection with the Ritva ha'Yeshanim. What I should have done is cite the end of that passage in Ritva Yeshanim where he writes that the verse "v'Chadalta" is needed for where the animal belongs to a Nochri and its load belongs to a Yisrael. The Ritva Yeshanim writes, "ul'Lamdecha d'Tza'ar Ba'alei Chayim Lav d'Oraisa, and therefore the Gemara sets it up like Rebbi Yosi ha'Glili." I understand that Ritva Yeshanim is saying that the source for the opinion that Tza'ar Ba'alei Chayim Lav d'Oraisa is the verse "v'Chadalta." The Torah tells us that there is a scenario where one may refrain from unloading -- when the animal belongs to a Nochri.
Reb Daniel, many thanks again for the wonderful way you go into these Sugyos in depth!
Kol Tuv,
Dovid Bloom