Proof - Question: According to R. Yehudah, why does he enter them into Kipah, and cause pain to animals, and ruin his Chatzer and Kipah? He should break their necks with a chopping knife and bury them!

Answer: Rather, surely we are concerned lest the law be confused with that of people, and they made a Heker (sign);

Also according to Rabanan they made a Heker and exempt them, and we are not concerned for Takalah (lest one come to benefit from them).

Distinction: However, in our Mishnah here we are concerned for Takalah, for there are several Safek Isurim because they are Kodshim, e.g. if one rode on an ox and his friend came and rode (all of them transgress Me'ilah, if it is Kodshei Kodoshim - Kidushin 55a), or Semichah on the head of a kid or lamb, or putting Chelev of Kodshim on one's wound;

This is permitted regarding Shor ha'Niskal, because it is not the normal way to benefit from it.

Also, [regarding Kodshei Kodoshim] there is an Isur of Me'ilah. One who transgressed Me'ilah b'Mezid is Chayav Misah [bi'Ydei Shamayim according to Rebbi - Sanhedrin 83a]. Therefore, all of them die.

Question: There, since it is Isur Hana'ah, why didn't Rabanan enact death, and obligate killing them?

Answer: Must Beis Din kill all Isurei Hana'ah?! A wolf and lion, Reish Lakish establishes [that Beis Din kills them] only if they killed, and they are Asurim b'Hana'ah (Sanhedrin 15b). They did not enact death for them (when they did not kill), rather, they said that whoever kills them, he merited.

Rava (Sanhedrin 80a) asked that it was taught about this... even if Aba Chalifta (R. Yosi's father) was among them. (This shows that it discusses people!).

Rather, Rava said that if two were standing, and an arrow came from one of them [we do not know who shot it], and it killed someone, both are exempt, and even if Aba Chalifta was among them. We do not attribute that he killed! (Even so, the other person is exempt.)

Distinction: However, regarding oxen, those that we could attribute [the killing] to them are liable, due to "u'Vi'arta ha'Ra mi'Kirbecha."

Answer #3 (to Question (a), 70b - R. Tam): Shor ha'Niskal is not forbidden in its lifetime. (Therefore we are lenient about a mixture.)

He explained that the entire Sugya in Bava Kama (41a) "since it says that the ox will be stoned, don't I know that it is Neveilah, and one may not eat it?! (Why did the Torah need to write that one may not eat it)?" proves like this.

Implied question: It says in Kidushin (57a) "Kol Tzipor Tehorah Tochelu" includes the bird (used for Taharas Metzora) that is sent away. "V'Zeh Asher Lo Sechelo" includes the [other bird, which is] slaughtered;

The Gemara asks "I could say oppositely!" (the sent bird is forbidden, and the slaughtered bird is permitted), and answers that we do not find Ba'alei Chayim forbidden, i.e. that will not be permitted when they are slaughtered, except for these that are destined and set aside for their Mitzvah;

Therefore, we should not forbid the sent bird, to say that Isur takes effect on it after it is sent to forbid eating it, like the law of other Tamei birds written in the verse.

[The Gemara] asks "Muktzeh and Ne'evad are forbidden", i.e. while alive it is forbidden to slaughter them and offer them to Hash-m, and it answers "that is only to Hash-m, but for a person, they are permitted."

[The Gemara] asks "Rove'a and Nirva through witnesses are forbidden", i.e. while alive it is forbidden to slaughter them, and if he slaughtered them they are forbidden. "I can say that the same applies to the sent bird!" It answers "I meant that most Ba'alei Chayim [are not forbidden while alive]."

Consequence: If so, that Shor ha'Niskal is not forbidden as long as it is alive, if an ox without a final verdict became mixed with others that had a final verdict, they are all exempt, and one may shear them and work with them;

Inuy Din (delaying execution) does not apply here, since they are exempt from stoning. However, when they will be slaughtered or die, they are Asur b'Hana'ah.

Implied question: It says in Bava Kama (45a) that if an ox that had a final verdict was sold, the sale is not valid even for plowing (i.e. it is forbidden while alive)!

Answer #1: That is because one may not delay its execution, and it is a Mitzvah to stone it.

Answer #2: It is not sold because it has no owner, and the buyer cannot acquire it more than anyone else;

However, if there was no final verdict and he sold it, it is sold for Shechitah. Alternatively, it is for plowing. He can divert it to a swamp (where Beis Din will not find it to judge it);

If he slaughters it after a final verdict, one may not eat it. So it seems to R. Tam like we explained.

Question: In Erchin (7b) it connotes that Shor ha'Niskal is forbidden in its lifetime, regarding a woman who died, we may benefit from her hair;

(A Beraisa teaches that if a woman was executed, one may benefit from her hair. If an animal was executed, one may not benefit from its hair.) It explains there that her death forbids her, and [Shor ha'Niskal's] final verdict forbids it!

Answer: Its final verdict causes that an Isur takes effect on it after death. It is forbidden even if he slaughtered it, and made it like meat [that one may eat]. [A woman's] death forbids her. There is no Isur on her in her lifetime.

Proof: A Beraisa in Bava Kama (71a) and Kesuvos (33b) proves that it is not forbidden in its lifetime. If one stole Shor ha'Niskal and slaughtered it, R. Meir says that he pays four (if it was a Seh) or five;

What is the reason? It cannot be sold, and Reish Lakish taught in Bava Kama (71a) that whenever there is [liability for] Shechitah, there is [liability for] a sale. Whenever there is not Shechitah, there is not a sale, and likewise, whenever there is no sale there is no Shechitah!

However, if it is permitted to benefit from it, this is fine. He can sell it to ride on it until the place where they stone it, or to benefit from it a little until that time, or if Beis Din were slothful about stoning it.

Question: R. Tam said that it has no sale because it has no owner. We cannot uphold this.

Opinion #1: R. Tam ruled that in a herd that has one Seh that is Safek Nidras, it is permitted, for each that separates, it separates from the majority.

Rebuttal: This cannot be. We must forbid. This is a decree, lest one take from Kavu'a, even if it separated by itself;

Only regarding something that was not forbidden in a mixture, e.g. nine stores sell slaughtered meat and one sells Neveilah (Pesachim 9b), there we permit if one separated (meat was found in the street), and we do not decree lest he take from Kavu'a, for the Isur is recognized and known where it is;

Therefore, we permit when it separated, or if it was found in the hand of a Nochri.

Distinction: However, if it was forbidden in a mixture, and it separated, we do not say that it separated from the majority, and if there is in the city a Safek Nidras, even one in 10,000, all of them must die.

Proof: If a ring of idolatry was mixed with 10,000, all of them are forbidden, and if one of them separated, Rav and Shmuel argue below (74a) about whether or not it forbids the others;

However, the very one that separated, they do not argue about it. All agree that it is forbidden.

And all Isurei Hana'ah that separated from their mixtures are forbidden, and we do not say that it separated from the majority;

This is due to a decree lest he take from what is Kavu'a. There is no distinction between Chulin and Kodshim.

Pesak: We can permit an animal that a wolf carries and the shepherd saves it and it became mixed with the herd because Drusah is only with the claw (of a foreleg - Chulin 53a), and perhaps it tore it with its teeth, so it is a Sefek-Sefeka (even if this animal was the one carried, perhaps it is not Tereifah. The same applies if it did not tear it at all. Tosfos teaches a bigger Chidush. Even if we saw that the carried animal was bleeding, and now in the mixture we find at least three (or we do not find any) animals that were bleeding, all are permitted.

Similarly, if a hawk carries a goose, perhaps it carries it in its beak or between its feet, and did not strike it with its hand (claw).

Defense (of R. Tam): This is unlike a ring of Avodah Zarah. Ba'alei Chayim are different, since it is possible to force them to go away, and they will wander (and separate from each other).

Question: Why does the Mishnah say that they die? We should say that they graze until they get a blemish, and he redeems them, and afterwards say that everything that separates, it separates from the majority!

Now they are proper for a person, for in many [cases of] Kodshim we say that they graze, and we are not concerned for tkl!

In the Seifa we say about Rove'a and Nirva [that the entire mixture] grazes until they get a blemish. He redeems them, and afterwards he slaughters and eats them, because everything that separates, it separates from the majority!

Answer: [Here] we do not make a solution through grazing, since even after grazing it is permitted only due to "everything that separates..."

Question (Ri, of R. Tam): R. Shimon says (Sanhedrin 79b) that if Niskalim (they were sentenced to be stoned) became mixed with Nisrafim, we stone them, for [he holds that] burning is more stringent. (Niskalim became mixed with Nisrafim connotes that there were more Nisrafim than Niskalim.)

We should follow the majority to be stringent in capital cases, like it says in Chulin (11b) that [we kill a murderer, and] we are not concerned lest there was a hole where [he stabbed him with] a sword! (If the victim was already Tereifah, we cannot kill one who kills him.)

Answer #1 (R. Tam): We do not follow the majority to be stringent, since in any case he is killed through another Misah.

Answer #2 (R. Tam): We do not follow the majority to obligate [everyone burning, including] one who is Vadai liable stoning.

Support: For this reason, it is not difficult what it says in Sanhedrin (79b) that if a human murderer who did not have a final verdict became mixed with others who had a final verdict, they are all exempt;

We will not do something that is Vadai false, due to the majority, for there is surely one who is not Chayav Misah at all, because he did not have a final verdict;

He is unlike one who Vadai killed, but we do not know whether [the victim] was Tereifah or healthy.

Answer #3: [The mixture of Niskalim with Nisrafim] is Kavu'a, and every Safek Kavu'a is like an even Safek, and mid'Oraisa he is exempt, for we are lenient about Safek Nefashos.

Suggestion: We should force them to go away, and say that everything that separates...!

Rejection #1: You may not draw (separate) them to be stringent on him (the one who is liable only stoning).

Rejection #2: There is a decree [not to do so] lest he take from what is Kavu'a.

Implied question: The Gemara asked initially, when he taught Nisrafim [that became mixed] with Niskalim, even without [saying that burning is more stringent], I know that we stone them because the majority are Niskalim! (If it is Kavu'a, we cannot rely on the majority!)

Answer: It means that at least it is no worse because the majority are Niskalim. (There is no reason to assume that we should burn them.)

Explanation #1 (Rashi): It is exempt from stoning because one who admits to a fine is exempt.

Remark: Rashi explained like this in Makos (6a), that a person is not killed through his own [admission] because [Misah] is a fine.

Rebuttal #1: It seems that even if they say (admit) that they had a final verdict in Ploni's Beis Din, they are not killed through their mouth (admission), even though in such a case one obligates himself a fine, like is proven in Makos (3a).

Rebuttal #2: And regarding "Ploni had Bi'ah with my ox", in Sanhedrin (10a) it explains that we do not say that a person is [considered] a relative to his property. We kill his ox, and we do not divide his words. Rather, Ploni and the ox are killed;

If [Misah] is a fine, even if it is true that he had Bi'ah with his ox, why do we kill the ox based on [the owner's] words? One who admits to a fine is exempt, like if he said "I stole [a Seh or ox] and slaughtered it, he is exempt from [paying] double, four or five [times its value]!

Explanation #2: It seems to me that the reason we do not kill an ox based on its owner even if no other witness is with him, is like it says in Temurah (29a) "one may eat [the ox] both of these cases";

Note: Merumei Sadeh explains that we do not kill it even if another witness is with him, like Tosfos said in Bava Kama (41b DH Al), because a person is a relative to his property, and he is Pasul for testimony. Tosfos cites Temurah merely to show that testimony is required. It is forbidden to offer, even though it had Chezkas Heter, because we know Vadai [through his admission] that it was Nirva. Even so, one may eat it, for testimony is needed to forbid to people.

What is the source? If you think that it is forbidden to people, why do we need a verse to exclude Rove'a and Nirva from being offered to Hash-m?

Implied question: There, regarding Rove'a and Nirva it does not mention "based on the owner"! (It was discussing Muktzeh and Ne'evad.)

Even so, in every case that it is disqualified to Hash-m and permitted to a person, [it asks] "what is the source of this?" This is from R. Baruch.

Explanation #1 (Rashi): It is disqualified to be offered through one witness or the owner, but not to a person. Through two witnesses it is forbidden even to a person.

Support #1: It connotes like this in Kerisus (24a). R. Yochanan said that if the witnesses [who condemned] a Shor ha'Niskal were Huzmu, whoever seizes it acquired it. (The owner despaired from it, so it became Hefker.) Rava said that presumably, R. Yochanan discusses when they said that his ox was Nirva (through someone else, but if they said that the owner was Rove'a it, he knows that they are lying and does not despair);

If it is not forbidden to benefit from it, why does he despair? (Even if one may not eat it,) one may benefit from the hide, and feed the meat to dogs!

Support #2: Also in Kidushin (57b) it connotes like this. It says that a Rove'a and Nirva through witnesses, which is forbidden while alive to a person...

Question: What is the source? The verse discusses a gorer, and we do not learn [a gorer, and Rove'a and Nirva] from each other, like we say in Bava Kama (40b) for a gorer has a stringency not found in Rove'a, and Rove'a has a stringency not found in Noge'ach!

Answer: Perhaps there is some Drashah [to forbid a Rove'a].

Explanation: The Gemara asks what is the case of a Tereifah? If he knows which it is, he should remove it!

R. Yirmeyah explains that a Vlad (the child of a) Tereifah became mixed with [others]. The Mishnah is R. Eliezer [who disqualifies such an animal for a Korban];

R. Yanai explains that an animal scratched by a thorn became mixed with an animal that a wolf was Dores;

Reish Lakish explains that an animal that fell [from the roof] became mixed.

Question (R. Efrayim): Since [the Tereifah] is not known, how will grazing help? One cannot eat it, due to Safek Tereifah. We cannot say that it helps to permit it to Nochrim or dogs, for we do not redeem Kodshim in order to feed them to dogs [or Nochrim]!

Also in its lifetime one cannot benefit from it, for one may not shear or work with blemished Kodshim!

Answer - part 1: According to the opinion that a Drusah became mixed, it can be checked after Shechitah, if the meat became red opposite the intestines or opposite the Simanim. Even a Vadai Drusah can be checked (sometimes it is Kosher, if neither of them became red).

Answer - part 2: And according to the opinion that a fallen animal became mixed, a fallen animal can be checked (Chulin 51b - he must check the intestines, and some say also the ribs and vertebrae).

Question: However, according to the opinion that a Vlad Tereifah became mixed, this is difficult!

Answer #1: Perhaps he holds that we may redeem Kodshim in order to feed them to dogs, like one version in Bechoros (15b).

Answer #2: This that we say (Pesachim 29a) that we do not redeem Kodshim in order to feed them to dogs, this is when they are proper only for dogs, e.g. Kodshim that died or became Tereifah;

However, these [mixtures] are forbidden due to Chulin Tereifos that became mixed with them, but the Kodshim themselves, if we would recognize them, would be proper for [a Yisrael]. One may [redeem them and] feed them to Nochrim or dogs.

Support: This answers another question that R. Efrayim asked in Bechoros (32b). R. Akiva permits a [blemished] Bechor even to a Nochri;

Question: Below (103b), R. Akiva says "from their words, we learn that if one flayed a Bechor and it was found to be Tereifah, Kohanim may benefit from the hide";

Inference: Only hide (they may benefit from), but not the meat, for one may not feed it to dogs or Nochrim! (Gilyonos Kehilas Yakov - there we discuss after it was offered and found to be Tereifah! However, on 104a R. Akiva discusses also a Ba'al Mum that was not offered. R. Efrayim asks from this case.)

Answer: According to what I explained, this is fine. Something not proper for Yisrael (e.g. a Bechor was found to be Tereifah), one may not feed it to a dog, but something proper for Yisrael, once (the Kodshim in the mixture) were redeemed, one may give it to a dog.

Source: This is because we expound (Pesachim 29a) "v'Achalta", and not for your dogs, i.e. something destined only for your dogs (for it is forbidden to Yisrael);

However, when it is permitted to [a Yisrael], it is totally permitted, for it is equated to a deer or wild goat (Chayos, which cannot be Kodshim).

Question: In Bava Kama (53b), if an ox of blemished Kodshim fell into a pit, we exempt [the owner of the pit], for it says "veha'Mes Yihyeh Lo" - this is when [the owner of the pit] will own the Mes;

He owns the Mes, for we expound below (103b) that Kohanim may benefit from the hide;

Due to the hide alone, we need [the verse to teach that a pit is liable for] "Shor", and not a person, for I would have obligated for a person (who fell in a pit). This is considered that [the owner of the pit] owns the Mes, for mid'Oraisa one may benefit from [human] skin;

[Human skin] is forbidden only due to a decree lest people make mats from their parents' skin (Chulin 122a)!

Answer: The Sugya in Bava Kama (53b) is like the conclusion in Chulin (104a). We rule like Rabanan, that the meat is buried and the skin is burned.

Explanation #1 (Rashi): He takes coins like the value of the best [animal] among them, and says "whenever the Korban is, it is redeemed on these coins."

Inference: The Korban is mixed with 10,000 of Rove'a and Nirva. The wording connotes like this.

Rejection (and Explanation #2): One cannot say so, for it teaches similar to the Reisha, which taught that [the Shor] ha'Niskal became mixed with a majority of Zevachim. It is proven like this in the Gemara. (Mar'eh Kohen - the Gemara asked why both clauses were needed. Also, it discusses the opinions of what kind of Tereifah became mixed in the singular.)

[We must say that] "the value of the best among them" is the value of every nice one [in the mixture]. He abandons the worst one, and does not redeem (corresponding to its value, for one animal was not Kodesh).

Explanation #1 (Rashi): When he offers it, he says "it is for its owner."

Question: It says above (2b) that Beis Din stipulated not to say Lishmah, lest one come to [err and] say Lo Lishmah!

Explanation #2: Rather, [he offers] l'Mi she'Hu (for whoever owns it), i.e. Stam. Also Stam is considered Lishmah.

Citation: In Temurah (28a) it answers differently (one might have thought Pesulim are not Batel only regarding Kodshim, for they are repulsive, but they are Batel in Chulin), and it does not ask there "teach this, and this would not be needed!", like it asks here.

Observation: We could have brought from several Mishnayos, e.g. he baked bread [with wood from an Asheirah, it is forbidden, and if it became mixed with others, all are forbidden - Avodah Zarah 49b] and in Orlah (3:5,6) regarding Orlah and Kil'ai ha'Kerem.