Ruling #1: And it is for the same reason, says Rabeinu Tam, that one permits an animal that has been 'torn' by a wolf, since it happens regularly that a shepherd rescues a lamb that wolves have 'torn' from the flock, and we permit it, even though live animals are Chashuv (and are therefore not generally subject to Bitul).

Ruling #2: Similarly, most birds 'tear' geese and chickens, yet they are permitted.

Explanation #1: As for our case, where the animal became mixed in a majority of animals that are Chayav, and which we permit even if they moved away, and do not apply the principle 'Kol de'Parish ... ', 'Peturin' does not mean that they are Mutar be'Hana'ah, but that that Beis-Din did not trouble the owner to kill them, based on the principle 'ke'Misas ha'Ba'alim Kach Misas ha'Shor'.

Explanation #2 (Part 1): And furthermore, so that one should not come to confuse them with Adam (and to kill them under the same circumstances), since by Adam, everyone agrees that they are all Patur ...

Proof: ... from the fact that Rebbi Yehudah requires them to be placed into a 'Kipah' (a narrow room), involving Tza'ar Ba'alei Chayim, as well as spoiling his Chatzer and his Kipah. Why not rather simply break their necks with a hatchet and bury them? It must therefore be that the Chachamim made a sign to differentiate between Adam and Beheimah, as we explained. And according to the Rabbanan too, they instituted a reminder by animals, to exempt them from Misah, and were not concerned about a Takalah (that one might come to eat them) ...

Explanation #2 (Part 2): In the Mishnah in Zevachim however, they are more concerned with Takalah, seeing as there are many S'feikos of Isur, seeing as they are Mukdashim - such as Shimon who rides on an ox that Reuven rode on earlier (Kidusin, 55a) (See Hagahos Maharshal), leaning one's hands on the head of a kid-goat or a lamb, placing Cheilev of Mukdashin on one's wound (see Maharsha [which is permitted by Shor ha'Niskal, since it is not the way that one normally benefits from it, as we learned in Pesachim, 24b]) ...

Explanation #2 (Part 3): Moreover, there is an Isur Me'ilah involved, which carries with it the Isur of Misah (bi'Yedei Shamayim). Consequently, they must all die.

Implied Question: In case one asks why, since the cases in our Sugya are Asur be'Hana'ah, Chazal did not institute by them a Din Misah, obligating the owner to put them to death ...

Answer: ... since when did Chazal institute a Din Misah by all Isurei Hana'ah? For example, we have the case of a wolf or a lion (which Resh Lakish establishes that they actually killed, and that are therefore Asur be'Hana'ah), yet Chazal did not institute Misah, only that 'Whoever kills them has earned himself a merit'.

Clarification: Rava asks why the Beraisa then states in connection with the Mishnah 'Even if Aba Chalafta is among them'? So Rava therefore establishes the case where two people ... and even if Aba Chalafta was one of them, where we would certainly not ascribe the act of murder to him. But with oxen, we do indeed ascribe the act to the oxen that are the most wild, and we would kill them, due to the Pasuk "u' i'arta ha'Ra mi'Kirbecha".

New Explanation: Furthermore Rabeinu Tam explains, a Shor ha'Niskal does not become forbidden as long as it is still alive.

Proof #1: Indeed, this is evident from the Gemara's question (in Kidushin) - 'From the fact that the Torah says that the ox must be stoned, don't I know that it is a Neveilah, and a Neveilah may not be eaten?'

Proof #2 (Part 1): The Gemara in the second Perek of Kidushin, 57b Darshens "Kol Tzipor Tehorah", 'to include the 'Meshulachas'; "ve'Zeh asher Lo Socheilu", 'to include the Shechutah'. And in answer to the question that, perhaps we ought to invert the D'rashos, the Gemara answers that we do not find live animals that are forbidden - that should not be permitted once they are Shechted - except for those that have been designated for their specific Mitzvah. Consequently, one cannot declare a prohibition on the Meshulachas to Shecht it after it has ben sent away, and to then forbid it to be eaten like other non-Kasher birds that are written in the Torah.

Proof #2 (Part 2): The Gemara then queries this from animals that are Rove'a and Nirva, which one is forbidden to Shecht in order to bring as a Korban. And it answers that this applies specifically to Hekdesh, but to a Hedyot it is permitted.

Proof #2 (Part 3): The Gemara then asks from Rove'a and Nirva with witnesses, on which there falls a prohibition in its lifetime, to Shecht it, and in the event that one did, it is forbidden to a Hedyot). Perhaps likewise the Meshulachas will be forbidden too?

Proof #2 (Part 4): And the Gemara answers that it meant the majority of live animals (though there may be exceptions).

Proof 2 (Part 5): Consequently, Shor ha'Niskal is not forbidden as long as it is alive, and an ox whose Din has not yet been concluded that became intermingled with oxen whose Din has been concluded, they are all Patur and may be shorn and worked with. Nor does 'Inuy ha'Din' (delaying carrying out the death-sentence) apply to them, seeing as they are not Chayav Sekilah. But once they have been Shechted or they die, they are Asur be'Hana'ah.

Implied Question: Then why does the Gemara in Perek Arba va'Chamishah (Bava Kama, 45a & 45b) invalidate the sale of a Shor ha'Niskal whose Din has been concluded, even as regards plowing?

Answer: That is in order not to transgress the Isur of Inuy ha'Din, and it is a Mitzvah to stone it; Furthermore, it cannot be sold, since it does not have an owner, and because the purchaser cannot acuire it any more than. anybody else.

Conclusion: If however, the Din of the ox has not been concluded, then if he sold it, it is sold, even for Shechitah, or only for plowing, since he is able to let it roam in the meadow (where Beis-Din will not get hold of it). Once however, he Shechts it (after the Din has been concluded), he may no longer eat it. So it seems according to Rabeinu Tam.

Question: In the first Perek of Arachin, 7b, in connection with fact that one is permitted to derive benefit from the hair of dead woman, it implies that a Shor ha'Niskal is forbidden whilst it is still alive. The Gemara there explains that, whereas in the case of the woman, it is her death which forbids deriving benefit from her (and hair is not subject to death), in the case of a Shor ha'Niskal it is the conclusion of the Din that forbids it?

Answer: One can explain however, that by 'conclusion of the Din' the Gemara means that already whilst it is still alive, the Isur takes effect forbidding it (to be eaten) even after Shechitah when 'he makes it like flesh'; whereas by the woman, it is her death that makes her Asur, and there is no Isur whatsoever during her lifetime.

Proof (Part 1): And there is a proof that it is not forbidden in its lifetime, from the Beraisa in Perek Merubeh (Bava Kama, 71a & 71b) and in Perek Eilu Na'aros (Kesuvos, 33b), where Rebbi Meir rules that, if someone steals a Shor ha'Niskal and Shechts it, he pays 'four or five'. Now according to Resh Lakish, who rules that any animal that is not subject to Shechitah, is not subject to being sold (regarding the Din of 'four or five'), so too, we ought to say that whatever cannot be sold, is not subject to Shechitah. So why is he Chayav?

Proof (Part 2): But if we permit a Shor ha'Niskal be'Hana'ah, there is no problem, seeing as one is permitted to sell it to ride on as far as the location where it is to be stoned, to benefit from it a little in some other way up to that time, or even more than that if Beis-Din is lax in stoning it.

Refutation #1: However, Rabeinu Tam's statement that a Shor ha'Niskal cannot be sold because it has no owner is not correct.

Refutation #2 (Part 1): Moreover, his ruling regarding a flock containing one lamb that is a Safek D'rusah, which he permits on account of 'Kol de'Parish, me'Ruba Parish' is not correct either, since one ought to forbid it due to a decree in case one takes from Kavu'a. Except for there where it separated by itself - such as where it is found in the possession of a Nochri. But there where it became mixed up and then separated, we will not say ' ... me'Ruba Parish'.

Refutation #2 (Part 2): And if a flock contains a Safek D'rusah, even if it is one in ten thousand, all the animals must die.

Proof (Part 1): If a ring of Avodah-Zarah became mixed up in ten thousand rings, they are all forbidden. And if one of them subsequently separates, Rav and Shmuel argue as to whether it renders the other rings Asur or not; but they both agree that the ring itself is forbidden.

Proof (Part 2): In fact, all Isurei Hana'ah that separated from a mixture are forbidden, and we don't say 'me'Ruba Parish'. The reason for this is because of a decree that one might come to take from Kavu'a, irrespective of whether it is Chulin or Kodshim.

Reservation: One can however, reconcile the ruling of Rabeinu Tam with this Halachah, in that animals are different, seeing as it is possible to mix them together and make them move.

Question (Part 1): Why does the Tana require the animals to die? Why does he not rather rule 'Yir'u ad she'Yista'avu' (Let them graze until they obtain a blemish and redeem them), seeing as there are many cases of Kodshim where we say that, without being concerned about Takalah - such as in the Seifa of the very same Mishnah (in Zevachim), where the Tana rules 'Rove'a and Nirva Yir'u'.

Question (Part 2): And then, after redeeming them, he should be permitted to eat them because of 'Kol de'Parish, me'Ruba Parish'?

Answer: We don't apply the Takanah of 'Yir'u ... ', since, even after it has grazed, it only becomes permitted due to 'Kol de'Parish'.

Explanation # 1 (Part 1): Here it doesn't matter if we have this text, which forbids a S'fek S'feika, since the author of this Beraisa is Rebbi Yehudah, and the Gemara concludes in Perek ha'Ta'aruvos, 74a & 74b that Rebbi Yehudah forbids S'fek S'feika, even by Isurim other than Avodah-Zarah.

Explanation #1 (Part 2): But in the Mishnah in 'Kol ha'Tzelamim' and in Maseches Orlah we cannot insert 'va'Achacheros ba'Acheros' in the text ...

Reason: ... since the Gemara in Perek ha'Ta'aruvos queries Shmuel who forbids S'fek S'feika, from a Beraisa which permits it, and the only support for Shmuel that the Gemara can find is from Rebbi Yehudah.

Explanation #2 (Part 1): Some commentaries explain that it is speaking where all the Acherim fell into Acherim, in which case it is all one Safeik ...

Explanation #2 (Part 2): In which case, we can also insert the text 'va'Achacheros ba'Acheros' in the Mishnahs in Avodah-Zarah and Orlah.

Question: In that case, on may ask, what difference does it make whether it mixed once or twice?

Answer: We need it to teach us that even though there are two majorities, it is forbidden ...

Precedent: ... like the case in the first Perek of Kesuvos, 15a, which requires the majority of the city and the majority of the group, on account of which the Gemara is lenient even in a small town, whereas the Gemara does not go after one majority alone, even in a city as large as Antuchyah.

Clarification: It seems that this is considered 'Zeh ve'Zeh Gorem' specifically according to the opinion that holds 'Chosheshin le'Zera ha'Av' (We take into account the seed of the father), since according to those who don't, there is only one Gorem.

Question: What is then the Kashya, seeing as this Beraisa goes according to Rebbi Yehudah, who holds 'Konsin le'Kipah', and as we have learned in Perek Oso ve'es B'no, 79a Rebbi Yehudah maintains 'Ein Chosheshin le'Zera ha'Av'?

Answer #1: However, the Gemara there is in a dilemma as to whether Rebbi Yehudah is sure that 'Ein Chosheshin ... ', or whether he has a Safek (See Maharsha).

Answer #2 (Part 1): One can also draw a distinction between the case there, where each one on its own is a Heter, which is where they argue, and the case here, where one of them is Isur and one, Heter, where they therefore agree that 'Chosheshin ... '.

Proof: In Perek Kol ha'Isurin (Temurah, 30b & 31a) there is an opinion that permits - according to Rebbi Eliezer - animals that were raped and then became pregnant, to go on the Mizbei'ach, whereas in Perek Oso ve'es B'no (Chulin, 79b), Rebbi Eliezer is unsure as to whether 'Chosheshin le'Zera ha'Av' or not.

Refutation: In Perek Beheimah ha'Makshah (ibid. 69a), however, the Gemara asks whether we take into account the father's seed or not.

Proof (of Ruling) #1: Since the Gemara does not ask 'That is in order according to the opinion that holds "Ubar Yerech Imo", but what will be the Din according to the opinion that holds "Ubar La'av Yerech Imo" '? (like it asks with regard to 'Zeh ve'Zeh Goreim'), it implies tht this the Halachah.

Refutation: One can however, refute this proof, on the grounds that the entire Sugya does not attempt to change the Beraisa from the simple explanation. It only sets out to explain it according to Rava, who declares the baby of the goring ox forbidden (because 'it and its baby (fetus) both did the goring'), which is due to 'Ubar Yerech Imo Hu', as is evident in the Gemara in Temurah, 30b..

Proof #2: It is possible however, to prove it from Rava's statement 'It and its baby gored; it and its baby raped!'

Proof #3: And similarly, 47b) , where Rava permits claiming from the baby of a cow that damaged, because 'It and its baby damaged!'

Question #1 (Part 1): In 'Eilu T'reifos' (Chulin, 58a & 58b) the Gemara cites the Machlokes between Rebbi Eliezer and Rebbi Yehoshua as to whether the baby of a T'reifah is eligible to go on the Mizbe'ach (Rebbi Yehoshua), or not (Rebbi Yehoshua).

Question #1 (Part 2): And the Gemara implies there that the opinion that holds that a T'reifah cannot give birth, argue over 'Ubar Yerech Imo', where it became pregnant first and a T'reifah only afterwards. And Rebbi Yehoshua holds 'Ubar La'av Yerech Imo'. Now we do indeed rule that 'T'reifah Einah Yoledes' (like Rebbi Yehoshua) as the Gemara there specifically states (in defining a Safek T'reifah) 'The Halachah is: a male that does not survive twelve months, and a female that does not give birth'.

Question #1 (Part 3): And besides, we generally rule like Rebbi Yehoshua, since Rebbi Eliezer is a Shamuti (either from the school of Beis Shamai, or in Cherem).

Question #2: Moreover, we find that, in the first Perek of Beitzah (6a & 6b) that Rav Kahana and Rav Asi said to Rav 'What is the difference between this case (a chick that is laid on Yom-Tov which is forbidden) and a calf that is born from a T'reifah on Yom-Tov, which is permitted?'

Answer: In all areas of Halachah we hold 'Ubar Yerech Imo', with the sole exception of T'reifos which depends whether it has life, and an Ubar has its own life. Consequently, we do not say there 'Ubar Yerech Imo' (that it became a T'reifah together with its mother).

Proof: Rava himself holds in Perek Beheimah ha'Makshah (Chulin, 75a) that if someone Shechts a T'reifah and finds inside it a ninth month live baby, that the baby is permitted.

Implied Question: Even though the Gemara in Temurah (30b & 31a) implies that, even in other regards 'Ubar La'av Yerech Imo' according to Rebbi Yehoshua - when Rav Huna bar Chin'na Amar Rav Nachman establishes the Machlokes where the animal first became pregnant and was then raped, where Rebbi Eliezer holds 'Ubar Yerech Imo', and the Rabbanan (Rebbi Yehoshua) hold ' ... La'av Yerech Imo'.

Answer: ... the Halachah is not like that, but rather like Rava Amar Rav Nachman, who establishes the Machlokes by where the animal was first raped and then became pregnant; because if it became pregnant first and was then raped, they would unanimously agree that the baby is forbidden, because of 'Ubar Yerech Imo' (even according to Rebbi Yehoshua). In fact, Rava holds 'Ubar Yerech Imo', both here and there (in Temurah) ...

Conclusion: ... and that Lashon of Rava Amar Rav Nachman is the accepted one, seeing as the Gemara cites it in Perek Kol ha'Tzelamim (Avodah Zarah, 46b) in the Sugya of 'Mishtachaveh le'Kamah'.

Attempted Proof #1: From the statement of Rebbi Yochanan in the second Perek of Gitin (43b & 44a), regarding a Shifchah Cana'anis, that if she was pregnant, she is Zocheh on his (the fetus's) behalf, since 'Ubar Yerech Imo', and it is as if the owner was Makneh to her one of her own limbs'.

Refutation: There is no proof from there that it is Halachah, because that is according to Rebbi, whose opinion might not be Halachah.

Proof of Refutation: Indeed, Rebbi Yochanan himself, who issued the above ruling, holds in Temurah, in Perek Keitzad Ma'arimin, 25a that 'Ubar La'av Yerech Imo', when he said that if someone separated a pregnant Chatas, which subsequently gave birth, he has the option of attaining atonement either through the mother or through the baby. And he gives the reason for that as being that, based on the fact that had he precluded the Ubar from the Kedushah, it would have remained Chulin ('Im Shayro Meshuyar'), we can learn that 'Ubar La'av Yerech Imo', in which case it is akin to designating two Chata'os with Achrayus.

Proof #2: From the fact however, that Rebbi Yochanan is disproved there with a double Tiyuvta, we have a proof that the Halachah is not like that (that 'Ubar La'av Yerech Imo'), even though the Gemara then suggests that 'Shayro Meshuyar' is a Machlokes Tana'im, nevertheless, the fact is that he is disproved ...

Proof of Proof (Part 1): ... and thatt is the way of Shas, that when an opinion is not the accepted one, the Gemara will say 'Tiyuvta', despite the fact that it is possible to establish that Tana'im argue over it, like we find in Perek ha'Nizakin (Gitin, 53b & 54a) where the Gemara remains with a Tituvta on the opinion that holds 'Hezek she'Eino Nikar La'av Sh'meih Hezek', after which the Gemara suggests that it is a Machlkoes Tana'im ...

Proof of Proof (Part 2): ... and in Perek ha'Shole'ach (ibid. 41b), Tana'im specifically argue over Hezek sh'Eino Nikar, according to Ula,

Implied Question: Even though in Perek ha'Areil (Yevamos, 78a) the Gemara cites Rebbi Yochanan in Temurah, and uses it to query the ruling of Rava that if a pregnant Nochri woman converts, the fetus inside her does not need to Tovel' (because 'Ubar Yerech Imo') ...

Answer: ... that is not because Rebbi Yochanan's opinion is the Halachah, but because we want to establish Rava's ruling of 'Nochris' unanimously; Moreover, Rava himself holds here,in Temurah, 30b and in Bava Kama, 47a) 'Ubar Yerech Imo' (as we have already explained).

Explanation #2 (Part 1): Rabeinu Tam however,explains that everywhere we rule that 'Ubar La'av Yerech Imo', as is implied in Chulin; and in Yevamos, 78a, whereas in 'Keitzad Ma'rimin, Temurah, 25a, he does not read the double Tiyuvta, just 'Tiyuvta de'R. Yochanan', before answering that 'Shayro Meshuyar' is a Machlokes Tana'aim.

Explanation #2 (Part 2): And when here and in Temurah, 30a, Rava declares the baby of a an animal that gores or that has been raped is forbidden, it is not because he disagrees with Rebbi Yochanan, but because ,seeing as until now, the baby's life depended on the mother, it is as if the Din has been concluded on both of them must be put to death, and not because it is considered Yerech Imo.

Explanation #2 (Part 3): And when the Mishnah in the first Perek of Arachin, 7a, rules that if a pregnant woman is being taken out to be killed, we do not postpone her execution until she has given birth, and the Gemara asks 'P'shita, Gufah Hu'?, it is for the same reason.

Question: However, the Gemara in Perek Parah (Bava Kama, 47a & 47b) presents a Kashya on what we have just said. Why is it that, if a cow that gored is not available, the Nizak can claim a quarter of the damages from the fetus. If, as we just explained, we hold that 'Ubar La'av Yerech Imo', even if it shared in the damage, on what grounds must it pay for the damage performed by the mother, as well as for its own? Will we also say, by the same token, that if one of two oxen Tamin that gored is lost, the other one has to pay for its lost 'friend' as well as for itself? Of course not?

Dispute: There is a Machlokes in Perek Eilu Na'aros (Kesuvos, 33a & 33b) as to whether someone who has been warned for Misah is automatically warned for Malkos.

Question (Part 1): Why does the Gemara not resolve the She'eilah from the Beraisa cited in Perek Ben Sorer u'Moreh (above, on 71b), with regard to 'Asah Kein be'Yisrael, ve'Nisgayer, Chayav', in a case where a Nochri had relations with an Eishes Ish Yisrael and then converted, because if he did the same thing now, wold he notbe Chayav Misah.

Question (Part 2): And it must be speaking where he was warned, because otherwise, if he did the same thing now, he would not be Chayav. So we see that a warning for the sword (which is more stringent) is automatically considered a warning for Chenek (which is more lenient)?

Answer: In fact we would declare him Chayav, even though he has not converted, even if he was not warned whist he was still a Nochri, since he was already Chayav, and he would not become Patur as a result of his not having been warned; because, seeing as if he would now be warned he would be Chayav Misah, this sin is considered one which carries with it a Chiyuv Misah.

Question: Even if we were to say that he is not automatically warned for the more lenient sin, why is he not be Chayav anyway, based on the Gemara in Perek Nigmar ha'Din (above, Daf 45b) which rles that if Beis-Din are not able to kill the sinner with the death that is written in connection with him, then they must kill him in any way that they can?

Comment: Tosfos explains it there (in DH 'Mishum').

Question: The Rivam asked R. Tam why Rebbi Shimon rules 'Yadunu bi'Sekilah, she'ha'Sereifah Chamurah' ... ? Why does he not rather go after the majority to be strict by Dinei Nefashos, as the Gemara rules in the first Perek of Chulin, 11a?

Answer #1 (Part 1): To which R. Tam replied that we do not go after the majority to implicate someone who is definitely belongs to the more lenient category.

Answer #1 (Part 2): And for the same reason we cannot query what we learned above on Daf 79b, that a murderer whose Din has not been concluded became mixed-up with others whose Din was concluded, they are all Patur - because, on account of a Rov, we will not implicate somebody who may not hve killed at all.

Answer #1 (Part 2): And it is not comparable to somebody who definitely killed, only we don 't know whether he is a T'reifah or not.