Is there ever a situation where the animal is NOT hoisted out of the pit? Is so, where does "Tsaar Baalai Chayyim" apply? I am aware of R'Yehoshua's ruling re "Oso v'es b'no" on 37a. That was a subterfuge in order to avoid leaving both animals in the pit.
michael plaskow, netanya, Israel
Indeed the Mishnah at the end of 25b gives a situation where the animal is not hoisted out of the pit. According to R. Yehudah, if there is no blemish ("Mum") one does not lift it out, whilst according to R. Shimon, even if there is a Mum, one only pulls it out if the Mum was recognizable before Yom Tov.
The Gemara on 26a says that one might have thought that because of "Tza'ar Ba'alei Chayim" one could have done a trick ("Ha'arama") and pulled the Bechor out of the pit. RASHI DH LA'ARIM writes that the Ha'arama is to say that one will surely find a Mum when it is hoisted out. YISSA BERACHAH writes that then even if one did not a Mum nevertheless it was justified to take it from the pit because this did at least save the animal from pain.
This is all the "Salka Da'atach " ("what one might have thought") of the Gemara. However, the conclusion is that one may not remove the animal from the pit because Tsaar Ba'alei Chayim does not justify this.
It seems to me that the reason Tza'ar Ba'alei Chayim does not justify pulling it out of the pit is because there are alternative ways of preventing pain to the animal. The Gemara in Shabbos 128b states that if an animal fell into a water canal, if possible, one should place food next to it to sustain it. If this is not possible because the water is too deep, one may place soft cushions under the animal to relieve its discomfort. Even though this renders the cushions unusable ("Mevatel Kli me'Hechano") which is usually forbidden to do on Shabbos, nevertheless Tza'ar Ba'alei Chayim, which is a d'Oraisa prohibition (see Rambam in his Commentary to the Mishnah, Beitzah 25b), waives aside Mevatel Kli me'Hechano. If it is not possible to place cushions underneath, Mishnah Berurah 305:70 cites a dispute amongst the authorities whether one may pull the animal out by hand. Some are lenient and maintain that since Tza'ar Ba'alei Chayim is d'Oraisa this removes the d'Rabanan prohibition that an animal is Muktzah.
Therefore Tza'ar Ba'alei Chayim does justify waiving aside Mevatel Kli me'Hechano if the animal cannot be fed where it is. And if the cushions also cannot be used, some hold this justifies even removing the animal from the pit by hand.
I found another interesting interpretation which applies the principle of Tza'ar Ba'alei Chayim This is in Rambam's Commentary on the Mishnah here. Rambam writes that the reason R. Yehudah in the Mishnah (25b) permits the Bechor to be lifted out of the pit if it possesses a blemish is because of Tza'ar Ba'alei Chayim - the pretext of slaughtering the Bechor is a way of permitting us to get it out of the pit to release it from it's pain there.
(Incidentally this explanation of Rambam's appears to be a proof for what TESHUVAS NODA BE'YEHUDAH YD 2:10 DH VE'OMNAM writes, that to kill an animal does not constitute Tza'ar Ba'alei Chayim. He proves this from Chulin 7b which states that removing the hooves of an animal is forbidden because of Tza'ar Ba'alei Chayim whilst killing it is only forbidden because of Bal Tashchis - see INSIGHTS there 7b (2) .)
Even though the "Mum" was a temporary Mum before Yom Tov and only became a permanent Mum on Yom Tov, nevertheless according to R. Yehudah one may take it out of the pit because
(1) R. Yehudah maintains that one may examine blemishes on Yom Tov and
(2) even though the animal is Muktzah, because it only possessed a temporary Mum before Yom Tov, nevertheless the prohibition of Muktzah is waived aside because of Tza'ar Ba'alei Chayim.
However, if the Bechor is already out of the pit, one may not slaughter it. This is because Tza'ar Ba'alei Chayim no longer applies since it is not now suffering in the pit. Therefore the prohibition of Muktzah can no longer be waived aside even if the Mum is now permanent.
(It seems that Rambam does not agree with what RASHI 26a DH IM writes that the Bechor may only be slaughtered if the expert determines that the Mum was permanent before Yom Tov because otherwise the animal is Muktzah. Rather, according to Rambam, even if the Mum was only temporary before Yom Tov and the Bechor was indeed Muktzah, nevertheless the prohibition of Tza'ar Ba'alei Chayim waives aside Muktzah. See MEROMEI SADEH by the NETZIV of VOLOZHIN 26a DH VE'ROYUI who calls this a beautiful explanation.)