1) WHEN DOES AN "EGLAH ARUFAH" BECOME FORBIDDEN FROM BENEFIT?
QUESTION: The Gemara discusses the argument between Rav Hamnuna and Rava (24b) with regard to when an Eglah Arufah becomes forbidden from benefit. According to Rav Hamnuna, it becomes forbidden from the time that it descends to Nachal Eisan, the place where it is supposed to be beheaded. According to Rava, it becomes forbidden from benefit only after it is beheaded.
The RAMBAM (Hilchos Rotze'ach 10:6) rules like Rav Hamnuna and writes that the Eglah Arufah becomes forbidden from benefit upon its descent to Nachal Eisan.
The RASHBA (Teshuvos 5:16) was asked that the Rambam apparently contradicts himself. The Rambam, in the same chapter (Hilchos Rotze'ach 10:8), rules that if the killer was found before the calf was beheaded, then the calf may return to graze with its herd, which means that one is permitted to benefit from the calf. If the Rambam rules that the Eglah Arufah becomes Asur b'Hana'ah upon its descent to Nachal Eisan (even before it is beheaded), then it should remain forbidden even if the killer is found! (The Rashba responds that he, too, was troubled by this contradiction, and after much effort he was unable to find a resolution.)
Is there any way to reconcile the words of the Rambam? (See also Insights to Zevachim 70:2.)
(a) The KESEF MISHNEH (Hilchos Rotze'ach 10:6) and BE'ER SHEVA (Sotah 47a) answer that the case in which the killer is found differs from the normal case of Eglah Arufah. The Eglah Arufah is designated as such precisely because no killer was identified. If the person who designated the calf would have known that the killer would be found, then he never would have been Makdish the animal. Consequently, when the killer is found, the Kedushah of the animal is no longer present, for it is deemed to be "Hekdesh b'Ta'us" (Hekdesh made in error), which is not valid. This is why one is permitted to benefit from the animal even though the Rambam rules that, normally, once the calf descends into Nachal Eisan it becomes forbidden.
The Kesef Mishneh and Be'er Sheva note that TOSFOS in Chulin (82a, DH v'ha'Tenan) discusses and rejects this approach. Nevertheless, they point out, the Rambam maintains that it is a valid approach. This answer also seems to be the intention of the ME'IRI in Kidushin (57a). (See also EVEN HA'AZEL, Hilchos Rotze'ach 10:6, who discusses this answer at length.)
(b) The KEHILOS YAKOV (Sotah #7) points out that the Yerushalmi in Sotah (9:6) also rules that the Eglah Arufah becomes Asur b'Hana'ah when it descends to Nachal Eisan, and that it is not forbidden if the killer is found, which is clearly like the Rambam's ruling. However, the Bavli maintains that the two Halachos are mutually exclusive, as the Gemara here (25a) explicitly says.
Why does the Rambam follow the Yerushalmi's view instead of the straightforward ruling of the Bavli?
The Kehilos Yakov quotes the PACHAD YITZCHAK (a detailed work that addresses how to approach the differences between the Bavli and Yerushalmi), who cites the MAHARIK who states that the Rambam follows the rulings of the Yerushalmi when the Yerushalmi gives a simple answer and the Bavli gives a more complex answer. The Kehilos Yakov suggests that the Rambam knew that the Halachah follows the opinion that the Eglah Arufah is forbidden once it descends into Nachal Eisan, and therefore he decided to align all rulings with this opinion, once he found that the Yerushalmi says that this is possible, even though the Bavli says that these Mishnayos are arguing. (See MIRKEVES HA'MISHNEH who suggests another answer.) (Y. MONTROSE)
2) A SOURCE FOR THE PROHIBITION OF A LIVE "EGLAH ARUFAH"
OPINIONS: The Gemara seeks to prove that an Eglah Arufah becomes prohibited upon its descent to Nachal Eisan, even before it is beheaded. The Gemara asserts that just as a "Machshir" (such as an Asham Metzora) that is performed within the Beis ha'Mikdash is equivalent to a "Mechaper" (such as a Chatas and Asham) performed within the Beis ha'Mikdash, a Machshir performed outside the Beis ha'Mikdash (such as the birds of a Metzora) is the same as a Mechaper performed outside the Beis ha'Mikdash (such as Sa'ir ha'Mishtale'ach and Eglah Arufah).
How does this prove that an Eglah Arufah is Asur b'Hana'ah even before Arifah, while it is still alive? The Gemara has no source yet that the birds of a Metzora are Asur b'Hana'ah while they are alive!
(a) RASHI (DH Af) explains that just as a Machshir is compared to a Mechaper, one Mechaper is compared to another. Accordingly, that an Eglah Arufah (a Mechaper) is forbidden while alive may be learned from Sa'ir ha'Mishtale'ach (a Mechaper). This is because once we see that the Halachah of a Machshir may be derived from a Mechaper, certainly the Halachah of one Mechaper may be derived from another.
(b) TOSFOS (DH Tenai) explains that the Gemara first derives from the law of Eglah Arufah (which is forbidden at least once it has been killed) that the bird that is sent away (Tzipor ha'Meshulachas) becomes Asur b'Hana'ah. Since that bird is never slaughtered, it obviously becomes Asur b'Hana'ah while alive. We then reverse the Limud and derive from the Tzipor ha'Meshulachas (which is forbidden while alive) that the Mechaper (the Eglah Arufah) also becomes forbidden while alive.
(c) TOSFOS (here and to Chulin 82a) gives another answer. The Gemara in Chulin (140a) quotes a verse to teach that the Tzipor ha'Shechutah (the bird-offering of a Metzora that is slaughtered) is forbidden after it is slaughtered. Since the Torah compares that bird to an Eglah Arufah in order to teach that it is Asur b'Hana'ah, obviously the comparison must be adding that the bird is Asur b'Hana'ah even while alive. We then reverse the Limud and derive that since the Tzipor ha'Shechutah is forbidden while alive, the Mechaper (the Eglah Arufah) also must be forbidden while alive.
3) THE BURIAL OF AN INVALID "CHATAS HA'OF HA'BA'AH AL HA'SAFEK"
QUESTION: The Mishnah teaches that if Melikah has already been done to a Chatas ha'Of that one designated as a Korban when she was in doubt about whether she was obligated to bring a Korban Chatas (such as in the case of a woman who has a doubt about whether her stillbirth was a fetus or not), and subsequently it became known that she was not obligated to bring this Korban, the bird must be buried.
Why is this Halachah not included in the previous Mishnah, which discusses such situations with other Korbanos? Why does the Mishnah wait until here to discuss this law, interrupting with a discussion about how often one may bring an Asham Taluy, and whether one must bring a Chatas or Asham after Yom Kippur has passed? (RASHASH)
ANSWER: The Gemara (26b) concludes that the requirement to bury this Chatas ha'Of is only mid'Rabanan. According to Torah law, it does not need to be buried, and it may even be eaten. In contrast, all of the laws mentioned in the earlier Mishnah are mid'Oraisa. Since the obligation to bury a Chatas ha'Of is only mid'Rabanan, perhaps the earlier Mishnah does not include this law in order to teach this distinction. (M. KORNFELD)