Nida 55a - Eating Skin and Nails

Some people have a terrible habit to bite their nails. A grown man recently admitted at my Shabbos table that he has a bad habit to bite his nails and that he swallows his nails after biting them. Similarly, some people bite the skin on their lips and swallow that as well. This raises an interesting question regarding the kashrus of human nails and skin.

There is a machlokes Rambam and Rashba (Ran in Kesubos) whether the prohibition to eat human flesh - בשר מהלכי שתים, is a Torah violation (issur aseh), or a Rabbinic violation. The Rama (Y.D. 79:1) rules in accordance with the Rambam that human flesh is prohibited from the Torah. In the parenthesis citing the soures for the Rama it mentions that Tosafos and the Rosh seem to understand that it is not a Torah prohibition. The Gr"a also provides some background for the two opinions. This is all in regard to the flesh of a live human being. The Shach (3) points out that the flesh of a dead body is an issur hana'ah which is certainly d'oraysa and derived from egla arufa. The Aruch Hashulchan rules in favor of the Rambam because since human flesh is tamei on a Torah level, it must also be prohibited to eat since we usually don't find tu'mah without their being a prohibition.

It isn't clear whether nails and skin have the same status as flesh. The Darchei Teshuva cites a sefer who quotes telling that he was approached by a childless woman who wanted to swallow the circumcised skin (orla) of a baby as a segula to have a child. He ruled that this would be prohibited according to the Rambam from the Torah. He assumed that skin would be included in the status of flesh. However, the Pri Megadim (sifsei da'as 3) quotes from the Rashba in a teshuva that the skin of a person is permitted since even by kodshim where the meat is certainly forbidden, it is permitted to use the skin. Furthermore, it should be similar to hair on which there is no prohibition, but then writes that perhaps there would be a Rabbinic prohibition.

The gemara in Nidah 55a clearly states that hair and nails aren't included in flesh in the realm of tu'mah. Only flesh of a dead body is a source of tu'mah, not teeth, hair or nails because they are either not created with the person (teeth), or they regenerate. Based on this it would seem clear that in the realm of eating human flesh, hair, teeth and nails would also not be included. Regarding skin the gemara has 2 approaches. In the first approach the gemara assumes that in the world of tu'mah, skin is not like flesh because it regenerates, but in the second approach the gemara assumes it is like flesh since it doesn't regenerate and therefore has tu'mah like flesh. It would seem that the question of whether skin is regarded as flesh is a point of dispute between the two approaches of the gemara. The Rambam (Tu'mas Meis 3:11) rules in accordance with the second approach, that human skin unless it is thoroughly worked like a hide, would be a source of tu'mah on a Torah level, therefore it is legitimate to assume that when chazal say that for humans skin is like flesh - עורן כבשרן, it would mean in all areas of halacha. Based on this, human skin is forbidden to eat m'doraysa.

On the first version of the gemara that doesn't consider human skin tamei on a torah level, yet the Rabbis rendered it tamei to prevent mistreatment of the skin of one's parents; Tosafos asks, why did they need to make it tamei m'drabonon since anyway there is a Torah prohibition to benefit from a dead body? Tosafos offers 2 answers: 1. The Rabbonon realized that people take tu'mah more seriously than issur, so although there is a Torah prohibition, they felt that by rendering it tamei it would be more of a deterrent. 2. The prohibition to benefit from a dead body applies only to flesh, not to skin. Tosafos supports this notion from the fact that the source to prohibit benefit from a dead body is egla arufa which is learned from kodshim and by kodshim itself there is no prohibition on the skin. It seems from Tosafos that regardless of whether the tu'mah on human skin is d'oraysa or d'rabonon (2 approaches of gemara), all would agree that the issur to benefit from a dead body would not include the skin.

Since we pasken like the second version of the gemara, we are faced with somewhat of a discrepancy in categorizing skin. In the world of tu'mah it is like flesh which is tamei, but in the context of benefiting from a dead body it is not considered like flesh and there is no prohibition. It is unclear whether the prohibition to eat human flesh includes skin. If we model after tu'mah it should, but if we model after the prohibition to benefit from a dead body it should not. It seems more logical to learn issur from issur rather than issur from tu'mah which seems to be the assumption of the Rashba cited by pri megadim who doesn't consider human skin prohibited by the Torah.

Nida 54 - This Chart May Help

Click HERE for PDF

Red = Days of bleeding
Bold = Days of Ziva
Yellow = 7 clean days
Strike through = Forbidden days
Underline = Days of Nida on which she doesn't bleed

Nidah 52b - Shiur for Hairs

The Mishna has three opinions for how long a hair must be to be considered a hair. The first opinion is that it must be long enough to bend the tip back to the root, the second opinion is that it must be long enough to catch a nail when it runs over it, and the third is that it must be able to be cut with a scissors. Rav Chisda says in the name of Mar Ukvah that we pasken like all of them to be machmir. Tosafos explains that she can't do chalitza until she has 2 hairs that meet all the requirements, and she couldn't do mi'un even if she has hairs that meet the minimum requirement (Tosafos says in the name of Rabbeinu Tam that since the hairs can be anywhere and don't need to be adjacent to one another, and they can even be follicles without actual hairs, we are machmir not to allow mi'un as soon as she is 12 years old even if we don't find any hairs).

The Rambam (Hil. Ishus 2:16) writes that when a boy or girl have 2 sa'aros, from the stage of being able to be cut with a scissors until the stage of being able to bend it back to its root, we are machmir to consider them adults, but not lenient.

Rav Chaim (Brisker) questions why the Rambam omits the middle shiur of כדי לקרוץ בצפורן. Although generally being machmir for the largest and smallest is sufficient, there would still be a point to mention the middle shiur. For example, in a case where she married herself off after stage 1, stage 2 and stage 3 to 3 different people, we shouldn't say that it is sufficient to receive a gett from 1 and 3, rather she would also need a gett from 2 because she may have transformed into a gedola at that stage? Furthermore, Rav Chaim asks that the Rambam in the context of Para Aduma in discussing the halacha of 2 black hairs invalidating the parah aduma, writes that you can trim the hair down to the shiur of "being cut by a scissors" and if what remains is red and not black, the para aduma is kasher. The kesef mishna asks why is the Rambam lenient for the small shiur of being cut by a scissors, we should be machmir for the larger shiur of bending the head back to the root so that the hairs would be considered black and passul the para aduma?

Rav Chaim writes that the halacha of כדברי כולן להחמיר is only for halachos in the hair themselves. For example, when there is a halacha that through these hair we would consider him/her to be a gadol, we are machmir in both directions for the shiur of what qualifies as a hair. Since the halacha demands "2 hairs" we are machmir that it does't qualify until it is large enough to bend back to its root. However, in the context of para aduma the halacha of the hairs being red isn't a halacha in the actual hairs. The halacha doesn't demand a hair that has red roots. Being that the halacha of red hairs doesn't require the hair to have a status of a hair in halacha, we can follow the minimum din that would allow us to consider the hair to be a hair - being able to be cut with a scissors.

However, Rav Chaim points out that his approach is only plausible if we are to say that the din of הלכה כדברי כולן להחמיר is not a halacha resulting from a safeik of not knowing who to pasken like. Rather, it is a halacha that is said בתורת ודאי. Meaning, all agree that hairs that meet the minimum requirement has status of a hair, just that the halacha demands that to consider her a gedola the hairs must meet the maximum requirement. If it were simply a halacha resulting from not knowing who to pasken like, it would be obvious that we couldn't be lenient until we were sure she was an adult. Rather, there are 3 legitimate shiurim said by hairs, the smallest allowing the hair to have status of hair, and the largest shiur invalidating the smaller shiur and establishing a larger shiur. Based on this approach, the halacha only considered the largest and smallest to be legitimate shiurim of hair for which we must be concerned. The middle shiur is not part of this halacha and therefore the rambam omits it from his halacha.

Nidah 46b - Obligation on a child to do mitzvos

In Brachos 48a the gemara says that one who eats a kezayis can make birchas hamazon for others. Rashi understands that since the one saying birchas hamazon is obligated m'drabonon, he can be motzi others who are obligated m'doraysa. However, Rashi asks that we find that a child who reached the age of chinuch cannot make birchas hamazon for an adult, to which rashi answers that a child who reaches an age of chinuch is not even obligated m'drabonon, rather it is a rabbinic obligation on the father to train him to do mitzvos. Tosafos asks on rashi -דוחק לומר בקטן שהגיע לחינוך קרי אינו מחוייב מדרבנן. They seem to argue whether a child who reaches an age of chinuch is considered to be obligated m'rabonon, or is it merely an obligation on the father not on the child himself.

However, from our gemara (as explained by rashi) this isn't plausible. The gemara says that if a מופלא סמוך לאיש is m'doraysa in that his vows are binding, he should receive lashes for eating what he is makdish. If it is not d'oraysa, not only should there not be malkus for the child, there shouldn't even be a prohibition. The rationale of the gemara is that unless there is a gezeiras hakasuv telling us that a מופלא סמוך לאיש is responsible for his actions, it isn't possible to hold him accountable for his actions at all. Rashi explains that if the concept of מופלא סמוך לאיש is d'rabonon, all they would institute is that other shouldn't eat what this child was makdish. They wouldn't impose an issur on the child himself - דקטן לאו בר קבולי עליה תקנתא דרבנן הוא. Rashi holds that had the Torah imposed a specific issur on a child, we would have to accept it. But, if the Torah wouldn't impose an issur on the child, it would be impossible for the Rabbonon to do so. According to this approach it is impossible to say that a child is "obligated" in anything. Others may be required to guide him, depending on chinuch and whether we say beis din metzuvin l'hafrisho, but he himself has no obligation to refrain from issurim.

Regarding the issue of קטן אוכל נבילות , we pasken אין בית דין מצווין להפרישו, that beis din isn't required to stop him. There is a Toasfos in Shabbos that says that when a child reaches an age of chinuch we would then say that beis din is obligated to stop him. The Rashash asks that our gemara is clearly against this. Our gemara is speaking about a child who is one year prior to being a gadol, yet applies the concept of אין בית דין מצווין להפרישו. The Rashba also raises this question. 

Nidah 45b - Binah Ye'seira

The gemara makes a famous statement that Hashem gave MORE bina (understanding) to a woman than a man. This implies that on some level a woman has a greater mental capacity than a man. However, in the context of the gemara, as pointed out by the Tosafos HaRosh, the gemara is simply saying that a woman matures and her mind develops prior to a man. It is for this reason that she is considered to be an adult at the age of 12 whereas a man must wait another year. According to this approach the gemara isn't making a comment about the amount of understanding being greater in a woman, just the time that they develop their level of understanding.

The Torah Temima in Parshas Eikev (11:9) discusses why the Talmud considers women to be exempt from the mitzvah of Talmud Torah. He raises a contradiction between our gemara which considers women to be superior in the realm of Bina, and the Talmud's comment in Sota that women are da'atan kalos - light headed. The Torah Temima explains that Da'as refers to the מושכל ראשון, the initial assessment of a situation.  Bina refers to the ability to analyze, disect and understand deeply. The Torah Temima explains that women have a greater Bina but a weaker da'as, therefore their initial recognition of the material isn't as sharp. When they apply Bina to a less sharp picture, their analysis of the material ends up being distorted. However. men have a weaker bina and less ability to dissect the material, but a sharper מושכל ראשון, which enables them to have a more accurate picture although not as in depth of an understanding.

The entire approach of the Torah Temima is based on the assumption that שנתן הקב"ה בינה יתירה באשה יותר מבאיש, means that women have greater Bina. But, according to the Rosh the contradiction between Bina and Da'as isn't a question since the Bina is not greater, just comes to women at an earlier age.

Nidah 44b - Killing an Fetus

The gemara implies that a "ben yom echad" is considered a life so that if one would kill him, the killer would deserve capital punishment. Tosafos explains that this would not apply to a fetus. Prior to birth we wouldn't render a fetus a full fledged life. When Tosafos discusses the issue of killin a fetus - abortion, they use a language of "mutar" - permitted. The simple reading of Tosafos would indicate that not only would we exempt one who aborts a fetus from capital punishment but it would actually be permitted to abort a fetus. Tosafos asks that it is clear from the gemara in Erchin 7b that one is permitted to violate shabbos to save a fetus inside the mothers womb. How can we permit the violation of shabbos for a fetus that one is "allowed" to kill? Tosafos answers that although one must even violate shabbos to save a fetus due to the importance of pikuach nefesh (saving a life), nevertheless it is permitted to kill it. Tosafos cites a proof from one who is a go'ses - dying, where we find that one who murders him is "patur" - will not receive capital punishment, but it is still necessary to violate shabbos to save him.

If we are to take Tosafos at face value, that "mutar" actually means permitted, the logic of Tosafos is impossible to understand. How can it be permitted to kill the fetus, yet would warrant violating shabbos to save it for pikuach nefesh?! If we don't regard it as a life and permit the killing of it, we certainly can't justify the violation of shabbos to save a "life"! Furthermore, the proof that Tosafos cites from go'ses wouldn't prove this chiddush, it would only prove that you could violate shabbos for an individual that you wouldn't receive capital punishment for killing, but you couldn't prove that you could violate shabbos for one who it is "permitted" to kill. For this reason, Rav Moshe writes in a teshuva that the language of Tosafos is misleading. Tosafos never meant that it is actually "mutar" - permitted, to kill a fetus, rather Tosafos is just saying that one wouldn't receive capital punishment for doing so. Rav Moshe understands that it would be a Torah prohibition to abort a fetus and would even fall under the heading murder, but it would be the type of murder for which there is no capital punishment. According to this approach it is understandable how one can violate shabbos to save a fetus. Tosafos thought in their question that the right to violate shabbos should be dependent on their literally being capital punishment for aborting. Tosafos concludes that even if there is no capital puishment, since it is still considered a life by the torah so that one who aborts would be considered a murderer, it is permitted to violate the shabbos to save the fetus. This approach is supported by Tosafos in Chulin 33a that distinguishes between goyim and jews - a goy is killed for abortion just like actual murder, whereas a jew is not killed, which implies that it is still a prohibition. This approach is against the chavos yair cited by maharatz chiyus who says that prior to labor it is literally permitted. Rav Moshe considers the approach of the chavos yair to be a terrible error.

Nidah 43a - Shichvas Zerah Being Capable of Impregnating

The gemara has three versions regarding the type of shichvas zera that is able to make someone tamei. The first version is that only if his entire body feels the sensations, does it render him tamei. The second version is that any shichvas zerah that doesn't leave his body like an arrow, doesn't make him tamei. The third version is that shooting out like an arrow is only a necessary requirement to impregnate, but even if not, would render him tamei. The gemara explains that according to the first version, so long as the shichvas zera would begin to emanate with a hargasha, it would render him tamei even if it leaves his body without a hargasha. The gemara learns this from the fact that the shichvas zerah needs to be able to impregnate in order to be metamei. This implies that so long as the shichvas zerah begins with a hargasha, even though it leaves his body without a hargasha, it is capable of impregnating. Tosafos asks that this seems to contradict the gemara in Yevamos and Nedarim that say that if the shichvas zera doesn't leave his body forcefully, like an arrow, it isn't capable of impregnating. Tosafos offers 2 approaches: 1. The first version of our gemara holds that so long as it initially uproots itself with a hargasha it is capable of impregnating even though it leaves his body without a hargasha and is not "yoreh k'cheitz" - doesn't shoot like an arrow. In short, this gemara contradicts those gemaras. 2. The gemara in Nidah is only addressing the potency of the semen, but not the mechanical ability to impregnate. The fact that it uproots with a harghasha is the type of semen that is potent enough to impregnate, but the sperm will not reach it's destination so that it can actually impregante, unless it is yoreh k'cheitz - shoots out like an arrow. According to this second approach, the version in Nida that requires Yoreh K'cheitz would hold that otherwise the shichvas zerah doesn't have the chemical potency to impregnate.

According to the second answer of Tosafos, the third version of Shmuel that requires Yoreh K'cheitz to impregnate, would hold that it is a chemical determination of the semen, not merely a mechanical requirement of penetrating deeply into the woman's body. Based on this we can understand the gemara in Chagiga 15a. The gemara talks about the possibility of a man leaving behind sperm in a bath and a woman subsequently bathing and becoming pregnant. The gemara asks, how can this happen since the shichvas zera didn't penetrate her while being yoreh k'cheitz. The gemara answers that since it left the mans body while being yoreh k'cheitz, it can impregnate even though it didn't enter her body with the force of "an arrow". Clearly, the gemara understands this statement to be a determination of the type of semen that can impregnate, not a method of penetration into the woman.

Nida 39a - Establishing a Veset In Days of Nida and Ziva

The gemara says that one cannot establish a veset during the days of being a Nida, but according to R. Yochanan and Reish Lakish she can establish a veset during days of zivah. However, Tosafos (d.h. Rav Huna) explains that according to Rav Huna Bar Chiya in the name of Shmuel a woman cannot even establish a veset during days that she can potentially become a zavah. Therefore, a woman can never establish a veset that is shorter than 18 days since the 11 days after the 7 days of Nida are days that she can potentially become a zavah. But, Tosafos says that we pasken like Rav Yochanan against Shmuel, therefore the only time she can't establish a veset is during the days of actual Nidah, but can establish a veset during days of actual zivah (and certainly during days of potential ziva). The only exception to when she can establish a veset even during the actual days of Nida is at the very end of the perek - if 2 of the 3 times she saw blood it was not during days of nidah or zivah, but the third time it was during the days of nidah (and certainly if it was in the days of zivah), she would establish a veset since we consider the initial bleeding on the third time to be "extra blood". 

The Shulchan Aruch doesn't discuss the issue of establishing vestos during days of Nidah and Zivah. However, the Nekudas HaKesef (189 around si'if 19) writes that the poskim (rashba and tur) rule that a woman cannot establish a veset during days that she is fit to be a zavah, therefore a woman can never establish a veset for a haflaga that is 18 days or less. The Nekudas HaKesef explains that although the Shulchan Aruch omits this din because we are machmir not to differentiate between nidah and zivah, that is only to be machmir. The Nekudas HaKesef takes a very strong stance that if a woman would establish a veset for 17 days, she must be machmir for the veset, but cannot be lenient to avoid being concerned for the standard vestos that a woman who doesn't have an established veset would need to be concerned about. The Torah HaShlamim earlier in the siman (27) argues on the Nekudas HaKesef and writes that since vestos are d'rabonon we can be lenient to not be concerned at all for a veset that is shorter than 18 days. Since the entire minhag of not keeping track to differentiate between days of Nida and Ziva is because it is too confusing, even for vestos it is not necessary to keep track and one can always assume that a woman would establish a veset even during days of zivah, even if it results in leniency. The logic of the Toras HaShlamim is difficult. How can one adapt a minhag to treat every nida like a zava when it will result in a leniency for vestos because we will ignore the problem of establishing a veset during days of zivah? Perhaps we can combine the opinion of Tosafos that we pasken like Rav Yochanan against Shmuel and one can establish a veset during days that are fit to become a zava and it would be treated like a regular veset.

Nidah 38a - Chassidim HaRishonim

The Chassidim HaRishonim were careful to calculate their marital relations to ensure that the birth wouldn't be on shabbos. Clearly this was not a requirement, just a minhag tov. The Maharatz Chiyus points out that this would only make sense within the framework of the Ba'al HaMeor but not the Ramban. There is a machlokes between the ba'al ha'meor and the ramban whether one can do a bris on shabbos knowing that after the bris the pikuach nefesh of the child will cause them to do a chilul shabbos such as heating water to help heal the wound. The Ba'al HaMeor says that one cannot do a bris knowing in advance that it will create a situation of pikuach nefesh and cause shabbos to be pushed off. Simply put, shabbos is dechuya for pikuach nefesh, not hutra. Whereas the Ramban holds that since at the time one will need to heat the water and violate shabbos, it will be a pikuach nefesh situation, there is no need to try to avoid it. The Ramban seems to hold that pikuach nefesh is hutra, not dechuya, so there is no reason to try and avoid it. The Maharatz Chiyus points out that within the framework of the Ramban it would make no sense to take measures to try and avoid a shabbos birth, it only makes sense to even have such a chumra within the framework of the ba'al ha'meor.

The Maharsha (chidushei agados) explains that the chassidim harishonim described in our gemara were really trying to avoid the double chilul shabbos. If the baby is born on shabbos then the bris will be a week later on shabbos, causing chilul shabbos twice in a row. They were trying to avoid chilul shabbos two weeks in a row. The Maharsha clearly assumes that the status of Mila on shabbos is tantamount to pikuach nefesh pushing off shabbos. It is something which must be done, but better to avoid. However, the Gr"a (Biurei HaGra end of Hilchos Mila) writes that avoda in the beis hamikdash on shabbos is hutra, pikuach nefesh is dechuya, and struggles with where milah should fall. He concludes that it is similar to avoda and is hutra on shabbos, not just dechuya.

Nidah 34a - Kol Yisroel Chaveirim

The Gemara says that during Yom Tov the gezeirah on the clothing of am ha'aretz being tamei didn't apply (therefore the gezeira of kusim being bo'alei niddos was necessary). The reason it didn't apply is because in the pasuk by pilegesh b'givah it says ויאסוף כל איש ישראל אל העיר כאיש אחד חברים, and we darshen that during a time of gathering we regard everyone as a chaver, not an am ha'aretz. Since Yom Tov is a time of gathering, everyone is elevated to a status of chaver.

The Maharatz Chiyus points out that a similar drasha appears twice in yerushalmi, once in baba kama and once in chagiga. Both darshen the pasuk of כעיר שחוברה לה יחדיו, meaning that Yerushalayim is a city that brings unity. In Baba Kama the drasha is - עיר שמחברת ישראל זה לזה, a city that attaches Jews one to the other. But in Chagiga it says - שהכל נעשו חברים בשעת הרגל, everyone is considered a chaver on Yom Tov. In baba kama the focus is on achdus - unity, whereas in chagiga the focus is on yom tov. The Maharatz Chiyus has a beautiful explanation based on the Rambam in Moreh Nevuchim (43:3). The Rambam explains that the purpose of Yom Tov is to create achdus among the Jewish people - 

אבל ימים טובים המה כולם לשמחה ולקבוץ שיש בהם הנאה שבני אדם צריכים עליהם, ויש מהם תועלת בענין האהבה וכו' והתאהב בני אדם וחברתם קצתם לקצתם

One of the main causes of division between Jews is their not relying on each other for kashrus and therefore being unable to eat at each other's homes. This division was even greater in the times of the Talmud when there were classes created based on one's willingness to accept certain rules of tu'mah and ta'hara. The animosity that existed between Talmidei Chachamim and Amei Ha'aretz as apparent from R. Akiva's statement in Pesachim 48b [when i was an am ha'aretz i wanted to bite talmidei chachamim like a donkey that breaks bones in its bite], is exacerbated by their inability to dine together. Being that the purpose of Aliya L'regel specifically, and Yom Tov in general was to create unity between people, Chazal felt that it was necessary to break down the barriers of division and allow the talmidei chachamim to eat together with the amei ha'aretz. Therefore, the concept of Yerushalayim being a city that brings unity, and the fact that this occurs on the regel is understandable. To allow aliya l'regel to fulfill its function, chazal broke down the barriers that divide the classes.

The Meshech Chochma in Parshas Emor (23:21) elaborates on the same idea. He explains that some mitzvos are meant to create a connection between Jews and Hashem, others are there to establish a connection within the Jewish community. That is why we permit אוכל נפש type activity on Yom Tov, since the whole purpose of Yom Tov is to allow people to eat in each other's homes and join together. With this he conceptualizes the halachic concept of one who bakes much more bread than they need for Yom Tov on Yom Tov is not violating a Torah prohibition - הואיל וחזי לאורחים, since it is fit for guests. The entire concept of permitting cooking and baking on Y.T. is to enable guests to visit.

Nidah 32a - B'nos Kusim are Nida From Birth

The Mishna says that chazal made a gezeira to consider all kusim to be nidas from the moment they are born.  The gemara explains that the Mishna follows the opinion of Rav Meir who is concerned for the minority against the majority, which requires us to be concerned that they are all part of the mi'ut who menstruate at a very young age. Tosafos assumes that R. Meir's opinion of being concerned for the mi'ut is a d'oraysa concern, therefore questions why this is listed in the among the 18 ge'zeiros in maseches shabbos, which are all d'rabonon. In truth, it isn't so obvious that R. Meir's concern for mi'ut is d'oraysa, Tosafos in Chulin 12a writes that R. Meir's entire concern for the mi'ut to ignore the rov and consider it a safeik is only d'rabonon - דנראה דמדאורייתא לא חייש רבי מאיר למיעוטא אלא מדרבנן. But in truth, even if we assume it is only d'rabonon, it doesn't belong as one of the 18 d'rabonon ge'zeiros since it is a general rule of being concerned for the mi'ut whereas all the 18 gezeiros are specific.

Tosafos explains albeit, not so clearly, that there are 3 levels within R. Meir. In the gemara itself it clearly differentiates between a "mi'ut that is common" to which R. Meir is concerned, and an "uncommon mi'ut" to which even R. Meir pays no attention and follows the majority (in other places this is referred to as a מיעוטא דמיעוטא). However, Tosafos says that even within the "common mi'ut" that R. Meir is concerned about, doesn't apply to a girl at birth because at that age it is certainly a very uncommon mi'ut. However, since at some young age there would be a "common mi'ut" that R. Meir would be concerned for on a Torah level, we make a gezeira to include all girls of kusim to be considered a Nida from birth. Therefore, the concern for mi'ut is indeed d'oraysa according to R. Meir (or according to Tosafos in chulin a general d'rabonon), but to consider her a Nida from birth is only d'rabonon.

Tosafos explains that the gemara feels compelled based on the language of the Mishna to say that it is in accordance with R. Meir, not the Rabbonon. However, the actual din in the Mishna to treat kusi girls as Nidos from birth, even the Rabbonon would agree to based on entire separate line of reasoning. The Rabbonon hold that there was a gezeira made against kusim to prevent them from assimilating and mingling among regular Jews. Even if we consider them to be Jewish, the Rabbonon recognized that there had to be artificially imposed lines drawn to separate them from the regular Jewish community, because there was a fear that they would have an influence on the committed Jews. Non-Jews who were clearly not Jewish weren't a risk to the traditional Jews, but since Kusim were performing some mitzvos, there was a tendency to let your guard down and be more accepting of them. Chazal considered this to be a major threat and therefore imposed on the kusim a stricter status than they imposed on goyim.

Nidah 31a - Women Learning Torah in Utero

The gemara 30b cites a braisa that says that a child is taught כל התורה כולה while in utero and is made to forget it right before he leaves. It isn't clear whether this is only for a male child or even for a female (since she isn't obligated in talmud torah, it is possible that she wouldn't need to be taught it). The Taz writes in Hilchos Mila that the reason we have a sholom zachor after the birth of a boy is to mourn the lost torah. Being that the minhag is not to have a sholom bas (or at least there is no minhag to have a sholom bas), it would imply that the Taz understands that the teaching of kol hatorah kula in utero, is limited to boys and not girls.

However, Rashi 31a clearly understands that the Braisa which speaks about the learning of the entire torah in utero applies to girls as well. Rashi (d.h. derech) is speaking about a girl who is assumed by the gemara to be facing up down inside the uterus and must turn around before birth (because the gemara understands that girls are born facing up), supports this notion from the braisa which says ראשו בין ברכיו, implying that a babies including girls inside the uterus are facing down. Rashi seems to understand that the braisa is not limited to boys, but applies to girls also. Based on this, the minhag to have a sholom zachor and not a sholom bas indicates that the source for this seudah must be for some other reason other than mourning over the torah as the Taz suggests.

Nidah 29b - Mental Loss of Count of 7 Clean Days

There is a well known p'sak attributed to the m'eil tzedaka that a woman must maintain count of her 7 clean days. The Sidrei Tahara offers two approaches to explain the Me'il Tzedaka, 1. we are concerned that she started to bleed without realizing. 2. Although we are confident that she didn't start to bleed, she must mentally maintain her 7 clean days as a count. Therefore, forfeiting her count, even mentally, disqualifies the entire count. Most Achronim including the Chochmas Adam understand that the second approach is the opinion of the Meil Tzedaka. However, from Rashi on 29b it seems that the main concern is the first approach. The gemara cites a braisa that discusses a woman who shows up in town not having any awareness of the halachos and not knowing where she stands in terms of when she may have miscarried and how to become clean. The gemara explains that during the second and third week she must immerse during the day because there is a concern that she is a zava who requires 7 clean days which could be ending any day in week 2 or 3. However, in week 1 she doesn't need to immerse during the day since there is no concern that she is completing her 7 clean days - the reason that the gemara says on 30a is - בעינן ספורים לפנינו. The 7 clean days must be counted in our presence. Rashi (d.h. eimar) explains:

אבל שבוע ראשון לא טבלה ביום, ואע"ג דבכל יום איכא לספוקי שמא הרחיקה לידתא והשתא כלין ימי הספירה, משום דבעינן שבעת ימי הנקיים לפנינו ודאין, והני דקודם לכן ספק הוו נקיים ספק לא הוו

If it were true that they only count as 7 clean days when she is attempting to count them, it is obvious why it wouldn't qualify at ספורים לפנינו. Why would rashi have to say that we are concerned that she started to bleed? From the fact that Rashi makes the concern that she may have bled without realizing it, it implies like the first approach of the me'il tzedaka.

For a more elaborate discussion of the meil tzedaka - see below:

הפ"ת (ס"ק ג') הביא בשם המעיל צדקה באשה שמצאה כתם בימי ליבונה ולערב הפסיקה בטהרה מחדש ואח"כ אמרו לה חברותיה שצריכה להמתין עוד ה' ימים קודם הפסקת טהרה, ורק אחר ב' ימים נודע לה שטעו חברותיה ושבאמת א"צ להמתין ה' ימים, ופסק דמאחר שהחזיקה עצמה בטמאה אין לה לספור אותן הימים שעברו ולא הביא טעם הדבר. כד נעיין בס"ט (ס"ק י"ח) תמצא שמביא דברי המ"צ באריכות יותר וכתב שיש ב' טעמים בדבר. א. דכל שלא כוונה לאותן ימים שיעלו לז' נקיים לא עלו לה. ב. כשלא נתנה דעתה שיהיו הימים נקיים מדם חיישינן דלמא ראתה ולאו אדעתא כיון דלא רמיא עלה לידע. הס"ט הסכים לסברא שניה של המ"צ, וגם האריך להאלים הסברא ראשונה דבעינן כוונה ודעת למנות ז' נקיים ואל"ה אין כאן ספירה ואין עולין לה. כבר הבאתי לעיל שהס"ט הביא ראיה מבדיקה ביום ח' שאינו מועיל וס"ל שהטעם משום כוונתה, שכוונה ליום א' עד יום ז' ולא ליום ב' עד יום ח'. ודחאו השמלה שאין הטעם משום כוונה כלל אלא הטעם משום שהרחיקה בדיקתה מההפסק טהרה כ"כ ששוב אין מצטרפין בהדי הדדי. אחר כל הפלפול של הס"ט מסיק דבאמת למ"ד דלא בעינן ספורים לפנינו [והיינו רב דסגי בבדיקה אחת כל ז' כדמוכח בש"ס נדה סט ע"א] לא בעינן ספירה כלל, אבל למ"ד דבעינן ספורים לפנינו [כדעת הסמ"ג וסמ"ק שפסקו כר"ח בגמ' דבעינן לכל הפחות א' וז'] ודאי בעינן דעתה וכוונתה לספירה. לכן העלה הס"ט וז"ל א"ו דמאן דמצריך תחילתן וסופן טעמיה משום דבעינן ספורים לפנינו וכיון שכן הא המחבר פסק דאין להקל בלא בדיקת ראשון ושביעי כהפוסקים דפסקו כרבי חנינא, מעתה ודאי הדין דין אמת כמו שפסק בספר שו"ת מ"צ כיון דבדעתה היה שלא לספור הימים ראשונים לנקיים שוב אינן עולין עכ"ל. וכן בחכ"א (כלל קי"ז סי"ב) הסכים לסברת המ"צ וכתב וז"ל ודוקא שעכ"פ לא הסיחה דעתה מלמנות אלא שלא בדקה, אבל אם פסקה בטהרה או בשאר ימים הנקיים הסיחה דעתה מלמנות לנקיים כגון שסברא שבעלה נוסע למקום אחר ולא תצטרך לטבול כעת, או שמצאה כתם בימי ספירתה ופסקה בטהרה ואמרו לה חברותיה וכו' בכל זה כיון שהסיחה דעתה מלמנות אינם עולין לה וצריכה פסיקת טהרה מחדש עכ"ל. הרי סובר החכ"א דלא רק כשסברה שהיא טמאה דאין הימים עולים לה, אלא אף כשרק הסיחה דעתה מפני שבעלה נוסע ולא תטבול בסוף הז' נקיים נמי אין הימים עולין לז' נקיים. אמנם בד"ת (ס"ק כ"ז) מביא הרבה אחרונים [מהרש"ם עונג יו"ט בית שלמה] שמקילים באשה שלא חשבה שהיא טמאה רק שהסיחה דעתה מפני שבעלה בדרך וכיוצ"ב ולא כוונה שיעלו לה הימים, שיש להקל. שוב עיינתי בשו"ת עונג יו"ט (יו"ד ס' פ"ג) והביא שם ב' ראיות נגד המ"צ. חדא מהגמ' נדה כ ע"ב גבי רב שטימא בלילה וביום חזר וטיהר ולא שאלה שמא היא עומדת תוך ז' נקיים וכשפסק בלילה שטמאה הסיחה דעתה מספירתה, א"ו דלא אזדא הימים ע"י היסח הדעת. עוד הביא ראיה ממשנה יג ע"ב בשוטה שפקחות מתקנות אותה, ואי בעינן דעתה על ספירתה כמש"כ המ"צ היכי מתקנות אותה. שוב דחה דאולי דעת חברתה עולה לה כאילו כוונה. מ"מ מוכח שלא כטעם השני של המ"צ דאי באמת חיישינן להרגשה כשלא רמיא עלה ולאו אדעתה, ניחוש בשוטה להרגשה א"ו לא חיישינן לזה. והעלה העונג יו"ט להקל אא"כ לא היתה דעתה על ספירתה ביום א' וביום ז', משא"כ כשהסיחה דעתה תוך הז' נקיים אינו סותר הז' נקיים [ונראה בכוונת העונג יו"ט שכיון שלדידן דקיי"ל כר"א ואליבא דרבי חנינא דבעינן בדיקת א' וז' ולא בימים שבינתיים ע"כ הדין ספורים לפנינו הוא רק באותן הימים]. עוד הביא הד"ת בשם בית יצחק שאם לא הסיחה דעתה יום שלם שפיר מהני לז' נקיים אף לדעת המ"צ, שכל הענין של היסח הדעת שייך רק כשהוא יום שלם ששוב אין ז' ימים רצופים. העולה מדברינו שכדאי לכתחלה להחמיר לסברת המ"צ ולא תסיח דעתה מספירתה בינתיים אא"כ ברה כחמה שהיא טמאה.

Nidah 26a - Shiur of Shofar is a Tefach

The gemara lists 5 items that have a minimum shiur of a tefach. At the end of the sugya, the gemara explains that all of these items are כתיבן ולא מפרשי שיעורייהו, meaning they are d'oraysa, but the Torah itself doesn't tell us their shiur. It isn't clear from the gemara whether the intention is that the torah doesn't have a shiur, and the entire shiur is only rabbinic, or whether the Rabbonon are needed to tell us what the shiur d'oraysa is. Rashi explains that the beam of a mavoy doesn't make it into the list because it is only rabbinic - דכל מצותו מדברי סופרים. From Rashi one can deduce that for the 5 that are listed, they are all Torah mitzvos, but their shiur may only be Rabbinic. However, the simpler understanding is that the Torah doesn't clearly teach the shiur, but the shiur is considered to be a d'oraysa shiur.

The shiur given for shofar is כדי שיאחזנו בידו ויראה לכאן ולכאן טפח. The difficulty is that if the shiur were to make the shofar visible when held by one's hand, it is not really a shiur of a tefach, rather a method of making it visible. And if the shiur were truly a tefach, why do we need a reason given for the shiur being a tefach? If the shiur was only m'drabonon then we can accept the shiur not really being a tefach, rather making sure the shofar was visible so it didn't look like one was blowing in their hand. The Rosh in Maseches Rosh HaShana (3:6) writes explicitly that the reason for the shiur being that it must extend out of one's hand is כדי שלא יאמרו לתוך ידו הוא תוקע. From the Rosh it would seem that the entire shiur of tefach was only d'rabonon. Minchas Chinuch (end of mitzvah 405) cites Pri Megadim who says explicitly that the shiur is only d'rabonon and that min ha'torah there is no shiur at all. The Minchas Chinch disagrees by citing Tosafos in Succah 7b who indicates that the shiurim of tefach are min ha'torah, not merely rabbinic. The Biur Halacha suggest that even according to the Rosh who implies that the shiur of tefach is only rabbinic, doesn't undermine the concept of shiur d'oraysa. It could be that on a torah level the shiur is that it be large enough to blow through, then the rabbonon institute the shiur of a tefach.

The Tosafei HaRosh on our gemara writes that really the shiur of holding it and being visible on both sides is equal to a tefach, but the braisa wants to teach the reason for this shiur - ונקטינן בהאי לישנא כדי לפרש הטעם. It seems from the Rosh as he writes in Rosh Hashana that the shiur of being visible is to prevent the appearance that he is blowing into his hand. It is not clear whether this would be subjective. Meaning, one who has very large hands and is blowing shofar should perhaps require a larger shofar.
Tosafos questions why we don't mention the shiur tefach that we find in chulin in the context of treifos. Tosafos writes that according to the conclusion of the gemara that we are only speaking about things which are Rabbinic, only shiurim of things that are in the Torah when the shiur isn't explicit in the Torah. The Maharatz Chiyus point out that this is implies that shiurim by treifos are only d'rabonon. This contradicts the general assumption that they are d'oraysa from a halacha l'moshe mi'sinai.

Nida 23a - Formation of Mountains

The gemara asks that if a woman would discharge something in the shape of a mountain, it should qualify a birth to make her tamei since the term יוצר is used in the context of mountains as it is by humans. The gemara says that it isn't considered a "mountain" if it is discharged from a woman's body, it is merely a stone or clump of dirt. However, the yerushalmi answers that the Torah doesn't use the term יצירה on the initial creation of mountains, therefore it cannot be learned from a person.

Scientists consider mountains to have formed through the earths plates colliding into one another, causing them to both rise or one to end up on top of the other. The Maharatz Chiyus cites "stories of nature" that the original creation of the earth didn't contain mountains or valleys, it was a smooth ball. However, over time given various weather conditions and the mabul (flood), mountains and valleys formed. He explains that it is for this reason that we are able to find bones of animals and remnants of plant life at altitudes above where they can survive. They were originally living at lower altitudes and later rose up with the formation of mountains. This is somewhat consistent with scientific theory. According to this Hashem didn't "create" mountains during sheishes yimei b'reishis, rather they formed later. This is what the yerushalmi may mean by it not saying יצירה by the original creation of the mountains, because there was no original creation of the mountains. They were formed afterward over time by the nature that Hashem carved into the world, indirectly, so it wouldn't be accurate to use the term יצירה or בריאה to refer to mountains during the time Hashem created the earth.
This approach seems to be refuted by the Mishna in the 9th perek of Brachos that says that on mountains we make a blessing of עושה מעשה בראשית. Clearly, chazal consider mountains to have been created during the 6 days of creation, and not formed later.

Nida 21b - Blood Exiting Through a Shfoferes (tube)

The gemara questions whether blood that would exit the uterus through a tube would render her tamei. The gemara concludes that the pasuk of בבשרה is to the exclusion of a tube. Meaning, blood exiting a tube wouldn't render her tamei. The gemara makes a distinction between blood in a tube and blood in a piece of flesh, in that blood in a piece of flesh is normal, whereas through a tube is not normal.

It isn't clear from the gemara whether the issue of the blood exiting through a tube is a problem of chatzitzah, meaning that בבשרה would demand that the blood be in contact with her flesh when it exits her body, or whether it the problem is that the blood is being drawn out using the tube rather than flowing out naturally. According to the second approach, the fact that the blood isn't in contact with her body is irrelevant, since it flows out naturally it would render her tamei.

Rashi clearly writes that the issue is that of a chatzitza because rashi says that the advantage to a the piece of flesh is that מין במינו לא חייץ, implying that by a tube the issue is that it is a chatzitza. However, the Shulchan Aruch HaGraz (188:8,9) cites two opinions. He understands that the opinion of the Shulchan Aruch who says that blood in a piece of flesh that is cracked and therefore in contact with her body on the way out, would still not render her tamei, clearly implies that the issue is not one of chatzitza but rather any blood being forced out by a tube or by a piece of flesh, wouldn't render her tamei. According to this approach, a woman could not avoid being a nida by simply lining her cervix with some synthetic material. However, he quotes from Tosafos and the Rambam that it is an issue of chatzitzah. Based on that approach a woman can avoid becoming a Nida by lining her cervix so that the blood exits the uterus without contact to her body. Even if the blood flows out in its natural course and is not forced out, it would still not make her tamei.

Nidah 20b - Paskening for your wife

The gemara says that Yalta, who is famously known as the wife of Rav Nachman, showed her blood to rabba bar bar chana for a p'sak. Tosafos HaRosh points out that perhaps Rav Nachman either didn't know or was out of town. However, from the end of the story it sounds as if she ALWAYS showed it to Rabba Bar Bar Chana. It would seem from here that a husband is not allowed to pasken on the ma'aros of his wife. Tosafos rejects this possibility based on the mishna in negaim 2:5 which discusses other things a husband can't pasken for a wife, but makes no mention of this. Therefore, Rav Nachman was either not an expert in paskening on blood or perhaps he was concerned that he would be too machmir, or that she would be מתגנה on him.

The Chochmas Adam 109:6 paskens that although a husband may pasken on the ma'aros of his wife, he can't pasken on mikvah questions as he explains in Binas Adam 3 that when there is a chezkas issur the husband isn't allowed to pasken. She doesn't have a chezkas issur that she will continue bleeding forever so he may pasken on the ma'areh that the bleeding stopped, even on a hefsek tahara. But she does have a chezkas tu'mah until she goes to the mikva, so he can't pasken on chatzitza issues.

Nidah 20b - "Nature" - טבע

It is well known that the term טבע doesn't appear in tanach. The truth is that it hardly appears in chazal. The Ramban in Hilchos Deios definitely uses the term to mean nature in describing the nature of fire. Our gemara is one of the few places that we find the term being used in chazal - טבעא דבבל גרמא לי דלא חזאי דמא. The ya'avetz points out that the term was well used in his time by scientists to refer to nature, and the source seems to be from here where it refers to the biological nature of the babylonians. Perhaps the root of the word is based on the gemara in Sanhedrin 37b where it says that Hashem is different than a normal craftsman. When human being who טובע כמה מטבעות בחותם אחד - makes many coins with the same stamp, they will all look the same. However, Hashem uses the same stamp to be מטבע all man kind and everyone looks different. The term טבע really means the stamp of Hashem which he used to stamp the world and set it in motion allowing it to take its natural course.

Nida 18a - Is Rov a Statistic?

Rav Yochanan presents 3 cases where we follow rov against a chazaka (tosafos d.h. achar, and on amud 2 d.h. l'mutei point out that we are only including and excluding cases where there is a chazaka fighting the rov). The gemara questions why doesn't he list the famous case of 10 stores, 9 selling kosher and one selling treif where we follow rov. The gemara says that we are only looking for cases of tu'mah, not issur. However, the fact that the gemara even suggests this as an option forces Tosafos to write that there is a chazaka of all meat starting off as issur prior to being shechted, fighting against the rov that it is kosher.

There is a very interesting machlokes between the Binas Adam (sha'ar ha'kavua #16) and the Chavos Da'as (y.d. 119) whether we follow the majority of stores that sell kosher meat, or the majority of kosher meat. The Binas Adam holds strongly that we follow the majority of meat, therefore if the one treif store sells more meat that the 9 kosher, the meat would be treif. His rationale is very simple, we don't know whether the meat fell from a seller or a buyer. The only factor that would incorporate all buyers and sellers would be the amount of meat available for sale. He proves this point from a Mishna in Shekalim (7) that says that when we find money and don't know whether it is from shekalim or from donations, we assume it fell from whatever it is closer to. The Bartenura asks, how can we follow "karov", since the rule is that Rov trumps Karov? He answers that we are speaking in a case where the amount of money in the shekalim is equal to the amount of money in the donation boxes, so there is no "rov" to speak about. This doesn't seem to make sense because there are 6 donation boxes, and only one shekel box, so even if the money is equal, we still have a rov? From here we see that rov depends on the amount of money, not from the amount of places it could have come from and since the amount of money in the shekalim box equals all 6 donation boxes, there is no rov. Similarly, we should follow the amount of meat being sold in the city, not the amount of stores that it could have come from.

The Binas Adam cites the Chavos Da'as in 119 who brings the exact same proof from shekalim which seems to support his own position, but the Chavos Da'as 110 takes for granted that we follow the amount of stores, NOT the amount of meat being sold. The Chavos Da'as (110) proves that we should follow the amount of stores, not the quantity of meat from the case where one finds an object in a city where most inhabitants are Jews. Why must he assume it fell from a Jew? Goyim are richer than Jews and have more items than Jews so if we follow the majority of the items it would be assumed to belong to a goy, yet we assume it belongs to a Jew! From here we see that we follow the amount of sources that it could have come from when designing the rov. The Binas Adam rejects this proof for two reasons: 1. Even though goyim own more objects than Jews, they all walk the streets carrying the same amount of items in their pockets, therefore the only rov to follow is the rov of people in the city. 2. The issue by hashavas aveida is WHO it fell from, so we focus on jews vs. goyim, but the issue by the meat and coins is what it's status is, so we should focus on the quantity of that item.

The Binas Adam proves his point from Tosafos in our sugya who says that the chazaka on the meat goes against the rov that it is kosher. If the rov is on the stores then the chazaka on the meat doesn't in anyway impact the fact that most stores sell kosher meat. However, since the rov is on the meat that it comes from the majority of kosher meat in the city, it makes sense for the chazaka of the meat to be fighting the rov.

The Binas Adam concludes that when he had the opportunity to visit the Chavos Da'as in Lisa (in the hakdama of the chochmas adam he also mentions visiting in the year 5570 and the chavos da'as advised that he organize the chochmas adam according to the order of shulchan aruch, which he did) he presented his argument to him and the chavos da'as was silent. He understood this to mean that the chavos da'as consented to him that we follow the quantity of meat in the city, not the number of stores from which to purchase meat.
The Pischei Teshuva (y.d. 110:2) cites the Beis Ephraim who says that if the question is on a chicken or piece of meat bought by an individual, the question is really which store he went into so we follow the majority of stores, not the amount of meat. However, if all the meat was sold in all the stores, then we follow the majority of the quantity that was put out on the market. He cites the Ran who writes explicitly that the fact that the shas makes no distinction between the amount of meat in the stores, it apparently makes no difference. This is also the way that the Nodeh B'yehuda leans, but is not תוקע עצמו on it to be lenient.

In short, the machlokes between the Chavos Da'as and Chochmas Adam seems to be whether we follow the source of where the item came from - רוב חנויות מוכרות בשר שחוטה, or the statistical chance of it being kosher - רוב בשר טריפה. The Binas Adam holds firmly that we follow the statistical chance of it being kosher and therefore disregard whether there are 9 kosher stores and 1 treif, or 9 treif and 1 kosher, since it is all dependent on the quantity of meat for sale in that city. The language of chazal - רוב חנויות, was assuming equal amounts of meat in all stores.

I once received a shaila that I consulted many gedolim on. One of the issues that were raised is whether rov is a realistic statistic or an invention of chazal in making assumptions. For example, when trying to determine the yichus of a child found in a city, if the city is inhabited by mostly gentile woman and a small minority of Jewish women, but almost all the gentile woman are post menopause whereas most Jewish women are of child bearing age, do we assume the child is a goy (blindly following the rov) or a Jew (statistically the mother is Jewish)? Rav Hershel Schachter (as reported by his son R. Shay) held strongly that rov is a statistical reality and therefore the child is Jewish, whereas Rav Asher Weiss held strongly that rov of the city is goyim so the child is a goy. To me it seems that if it were truly impossible for the gentile women to conceive, they wouldn't be part of the rov, but if it is possible albeit unlikely (for example the goyim were all in their 40's and the Jews all in their 20's), they should be part of the rov rendering the child a goy (Rav Hershel would maintain that we follow the statistical chance therefore if it were more likely that the child would be born from a Jewish woman, we would ignore the fact that most women in the city are goyim). 

At first glance it would seem that the Binas Adam supports the approach of Rav Hershel Schachter - we follow the statistic reality that this meat comes from the majority of the meat in the city and don't get caught up in the language of chazal רוב חנויות. However, in truth even the Binas Adam may hold that we include in the rov all possible sources and we would not use statistics to limit who we allow into the rov. For example, if the issue were the wife of a kohein being raped and we had to determine whether the rapist was from the rov k'sheirim, or mi'ut p'sulim, we would include every rav, rosh yeshiva, and magid shiur in the rov kesharim since they are all potential albeit unlikely rapists. Statistics may say she was raped by someone who is passul, but we would still follow all the potential people who could have raped her, even those who are unlikely to have done so (my understanding is that Rav Hershel would hold that we follow the statistical evidence even in this case). The Binas Adam doesn't necessarily hold that we follow statistics to limit the pool, but rather if we are judging on the meat we have to look at all the meat around. If we are judging on people such as Jews vs. goyim for hashavas aveida or rape, we would look at the entire pool of people.

Nidah 16b - Angel Appointed Over Birth

The gemara makes reference to an angel that is appointed over conception. Tosafos raises a question from the gemara in Ta'anis 2a that says that the key to birth remains in the hands of Hashem and isn't entrusted to an angel. Tosafos HaRosh answers that Hashem deals with conception Himself, but then hands it off to an angel to take over. However, Tosafos seems to make a distinction between conception and birth. An angel is appointed over conception but Hashem Himself deals with the birthing process. This implies that we consider birth to be a greater miracle than that of conception so that G-d must deal with it himself.

Nida 16a - More about vestos d'oraysa

The gemara questions again whether vestos are d'oraysa or d'rabonon. It is clear from the sugya that the difference between the two approaches is when a woman forgot to do a bedika during the time of her veset, but does a bedika after the time of her veset and comes out clean, whether she can assume a status of taharah. The opinion who holds vestos are d'oraysa require he to assume that she bled during her veset and because she failed to do a bedika she didn't notice the blood.

One of the major questions regarding this machlokes is raised by the maharatz chiyus 15a. In all other areas of halacha we apply a concept of chazaka. When something occurs 3 times, we assume it will happen again. What is the rationale to say that vestos are only d'rabonon - shouldn't it be d'oraysa due to the chazaka?

There are many different approaches to this. The Pischei Teshuva (184:3) cites the Nodeh B'yehuda and Chasam Sofer who say that the chazaka of being tehora contradicts the chazaka of orach b'zmano ba, therefore we don't have a d'oraysa chazaka telling us that she became a nidah since it is countered by the status quo of not being a Nidah. They continue to explain that this works only when looking back trying to determine whether she became a Nidah during the veset. However, when one looks forward to be concerned that a woman will become a Nidah, the status quo doesn't help to say she will always remain in the state of tahara since we know for certainty that she will NOT always remain in this state. They apply the concept of שמא מת לא חיישינן, שמא ימות חיישינן - we aren't concerned that a person died because they have a chazaka of being alive, yet we are concerned that they will die. Therefore, even if vestos are only d'rabonon, that means that after the time of the expected period, she is still assumed to be tahora, but during the time that she is expecting her period she is forbidden according to the Torah from having relations since there is a d'oraysa fear that she will become a Nidah during the veset time.

An alternate approach is indicated by the Chavos Da'as (cited in Pischei Teshuva 18). Although a woman has a chazaka that she will become a Nida during her veset, the lack of hargasha proves that she didn't become a Nidah. Therefore, although the chazaka may be d'oraysa the fact that she didn't have a hargasha creates a rei'usa in the chazaka. Based on this the Chavos Da'as holds that if a woman did something during her veset to mask her hargasha, such as doing a bedika and losing the cloth, or even urinating, then the lack of hargasha cannot prove that she is tahorah. She would need to be concerned that she actually had a hargasha without realizing it and is tamei. It would also seem based on this approach that the chavos da'as would agree with the nodeh b'yehuda and chasam sofer - she would have to be concerned during the time of her veset that she may get a hargasha and start bleeding. This is a d'oraysa concern even according to the opinion who holds that vestos are only d'rabonon.

Both these approaches seem to assume that the chazaka of the veset is itself a regular chazka, just that there is something counter acting the chazaka demoting the chazaka to be only a d'rabonon concern and not d'oraysa.

The Chazon Ish has a different approach. He understands that all agree that chazaka wouldn't apply here since there are so many variables that can impact a woman's menstrual cycle. Even the opinion who holds that vestos are d'oraysa doesn't attribute it to chazaka but rather to a special halacha l'moshe misinai, as rashi writes on both 9a and 15a. The opinion who holds vestos d'rabonon holds that there is no halacha l'moshe misinai. Following this approach, it is very understandable why rashi holds that according to the opinion that vestos are only d'rabonon, even without a bedika to confirm she is tahora, we can assume she is tahora. This is apparent in rashi in his comment at the start of the sugy, and against Tosafos who seems to say that she is only tahora after confirming it through a bedika at some point later on. Based on this approach, we aren't concerned about doing an activity that may have masked the hargasha because the entire concern of having a hargasha and seeing was created by the rabbonon, not by a real chazaka.

Nidah 15a - Vestos D'oraysa or D'rabonon

A few times in the gemara it raises the issue whether vestos are considered d'oraysa or d'rabonon. There are many aspects to this issue, most fundamentally to define the concept of vestos d'roaysa. In the next post I hope to discuss the more fundamental aspect. However, today I want to point out that within the opinion of vestos d'oraysa, there seems to be a machlokes between Rashi and Tosafos. Rashi (d.h. d'oraysa) writes something cryptic - vestos are d'oraysa from a halacha l'moshe mi'sinai, that we establish her to have safeik tu'mah. Rashi seems to understand that the halacha l'moshe mi'sinai itself is a halacha that only establishes a questionable status of tu'mah, but doesn't establish her as definitely tamei. Tosafos (d.h. afilu) raises a question within the opinion that vestos are d'rabonon, how can a woman be permitted m'dorasya at the time of her veset, the gemara in shavuos seems to learn out from a pasuk that she is forbidden. Tosafos answers that she is certainly forbidden at the time of her veset, but after she waits enough time to go to the mikvah after the veset passes, and the husband doesn't know if she went to the mikva, according to the opinion that vestos are d'rabonon she is permitted without him verifying her status. However, according to the opinion that vestos are d'oraysa, Tosafos writes that we assume she "definitely" saw, therefore a chance of immersion doesn't take away the "definite" status. Tosafos seems to argue on rashi and understands that the assumption she saw is a va'dai, not a safeik.

The gemara on 15b says that when a woman has a veset, her husband can calculate the days of her veset and assume she went to the mikvah when enough time has passed. The gemara refers to the reason that he can be so lenient is because it is only a safeik whether she saw. According to rashi this fits even with the opinion who says that vestos are d'oraysa but according to tosafos it only fits with the opinion that vestos are d'rabonon.

Nidah 13b - Geirim in Arvus

The gemara says קשין גרים לישראל כספחת. Rashi and Tosafos offer various explanations. Rashi suggests that since they aren't experts in doing mitzvos it will result either in punishment or negatively influencing others. Rashi then cites that some say it is because all jews are responsible for one another - כל ישראל ערבים זה בזה, therefore we suffer for their lack of performance. Rashi rejects this approach because he writes that Geirim were never included in arvus and proves this from a gemara in Sota 37b. Tosafos rejects the proof because it may simply be that we didn't know the number so it couldn't be delineated, but cites the mechilta that does suggest a number. 

Rashi in Rosh Hashana 29a explains that the source for one being motzi others in mitzvos that he has already performed is this concept of כל ישראל ערבים זה בזה. Therefore it should follow that geirim who aren't included in arvus cannot be shleluchei tzibur to be motzi others in mitzvos that they themselves are fulfilling. For example, a ger who already hears shofar or made kiddush can't blow or make kiddush for others. The Pri Megadim (eishel avrohom 53:19 at first says that a ger cannot be motzi others based on this rashi, but backs off based on the shulchan aruch that a ger can be a shliach tzibbur.

Perhaps there is a difference between the concept of responsibility for one another, and liability for failing to do for others. The concept of אע"פ שיצא מוציא - being motzi others, is based on the responsibility that all Jews have for one another, even geirim. Since they are part of klal yisroel, anytime another Jew is deficient in a mitzvah, it is as if they themselves are deficient. However, it is possible that Rashi holds that we wouldn't punish geirim for aveiros of others. Responsibility for aveiros committed by others comes from failing to rebuke and influence, which may not apply to geirim since their influence on משפחתות מיוחסות בישראל is limited.

Nida 12a - Hargasha Without Seeing Blood

The Shulchan Aruch (190:1) cites the Terumas HaDeshen that if a woman were to have a hargasha (a sensations that would indicate bleeding - see pischei teshuva for 3 types), she must assume that she bled even though she didn't notice any blood. The rationale is that the Hargasha itself is evidence that there was actual bleeding.

Rav Zeira asks whether a woman who is not involved in taharos should examine herself prior to relations before being with her husband. R. Abba asks whether she should examine herself after having relations to figure out whether they need to bring a korban. The gemara responds to both questions by saying that she shouldn't examine herself because if she would, he would be hesitant to have relations with her. Rashi (d.h. im kein) seems to interpret the gemara to be questioning whether chazal impose such an examination on her. According to this approach the response of the gemara is that by Chazal imposing a requirement to do a bedika, they are indicating that there is a concern that she will bleed, this will cause him to abstain from having relations with her. However, if she were to decide to do a bedika on her own, we wouldn't stop her. Tosafos on the other hand seems to indicate that by her doing a bedika, even as a chumra, would indicate that she must have had a hargasha and cause him to abstain from relations with her. Why would he abstain from relations? Let her do a bedika and if it's clean it would indicate that she is not a Nidah. It seems that Tosafos supports the opinion of the Terumas HaDeshen and if she were to have a hargasha, even if followed by a clean bedika, she would be considered tamei. Therefore we are afraid that he will abstain from relations even if the bedika is clean out of fear that she had a hargasha.

Meilah 16b - Shiur for Eating Sheratzim

Rav says that to receive malkus for eating sheratzim, one must eat a kezayis. Since the Torah uses the term "achila" it follows the rule of all issurim that malkus requires a kezayis. The gemara challenges this from a braisa that compares the issur achila to tu'mah which is b'kadasha (lentil), and concludes that when one eats a live sheretz the shiur is kezayis, but a dead one on which there is tu'mah for the size of a lentil, one would also receive malkus for consuming the size of a lentil. This distinction is paskened in the Rambam, but not explicitly paskened in shulchan aruch since even a chatzi shiur is forbidden, and the only application is for malkus.

In truth, this issue is paskened in shulchan aruch and even has a practical application. In Y.D. 104:1, the Shulchan Aruch discusses עכברא בשכרא, a rodent that falls into beer. The Shulchan Aruch writes that even if there is 60x to be mevatel the rodent, if there are pieces of it in the food that it fell into so that it can be felt upon chewing, although it is unable to be separated out, it makes the entire food forbidden. There is a big dispute between the Taz and Shach as to the rationale for this prohibition. The Taz understands this to be a rule with all non-kosher items that fall into a food from which they cannot be separated but are distinguishable when eating it, that they aren't batul. It wouldn't matter how small the pieces are, they wouldn't be batul (the Taz continues to qualify this  - we are only concerned if there is a possibility that one will be eating the issur standing alone without the mixture of the kosher food). However, the Shach understands that this is an issue specific to one of the 8 sheratzim that the Torah forbids. The nature of this halacha is that since the shiur for malkus is k'adasha, the size of a lentil, we are extra strict about allowing it to be eaten through bitul. Since there is malkus for the size of a lentil we treat it like a בריה and don't allow it to be batul. Therefore, according to the shach if the pieces were smaller than the size of a lentil, or by other issurim even if the pieces were larger than a lentil, it would be batul and permissible.

This issue may really be a machlokes between rashi and the Ran. Rashi explained that the stringency of the sheretz has something to do with the shiur of malkus being the size of a lentil, but the Ran asks what do we need that for, just say it is because of חצי שיעור אסור מן התורה. The Shach explained that by other issurim we wouldn't be machmir since they are nosein ta'am l'fgam and the actual issur is batul, it is only for a sheretz where the shiur is k'adasha that we are machmir. The Mateh Yehonassan suggests that chatzi shiur that falls into a mixture no longer retains it's status of issur, unless one could consume a kezayis within an achilas p'ras. Therefore, issurim for which one can eat a shiur is not going to be batul even if there is less that a kezayis in an achilas pras. That is why we are machmir for a sheretz because even if there is less than a kezayis in achilas pras, it would still retain its status of issur so long as one can eat a lentil size of it within an achilas p'ras (it would be like any other issur in which there was a kezayis in an achilas pras).

Krisus 10a - Opening of Uterus Will Always Cause Bleeding

I previously posted about this topic HERE and explained the position of Rav Moshe who assumes it is the size of a pinkie finger making the diameter to be about 7mm (and maybe even 1cm which is 10mm).

Rav Moshe says that aside from the Mishna in Ohalos which gives an unfamiliar shiur and assumes that it would be larger than the size of one's pinkie. However, in our gemara it discusses a woman who miscarries a 40 day old fetus as a dry birth which doesn't render her tamei. The gemara asks that the opening of the uterus should definitely cause some blood, to which the gemara concludes that it must be אפשר לפתיחת הקבר בלא דם. This would be the source of the Rambam to reject the entire notion of אי אפשר לפתיחת הקבר בלא דם, because the gemara would clearly be saying that it is possible. However, the gilyon hashas quotes an alternate girsa from the Rashba. The gemara thought that even the opening of the uterus caused by a 40 day old fetus should be considered an opening of the uterus for the purpose of assuming there will definitely be blood, to which the gemara responds that since the fetus at 40 days is so small, it won't cause bleeding. The girsa of the Rashba actually states clearly that the size of the fetus at 40 days is exactly the shiur for this assumption of אי אפשר לפתיחת הקבר בלא דם. According to ultrasound measurements that we are privy to nowadays and scientific estimations, a fetus that is between 5 and 6 weeks from conception will be between 2mm and 4mm in size. Therefore it should follow that any time a physician inserts an instrument with a diameter larger that 4mm into the uterus we would have to say אי אפשר לפתיחת הקבר בלא דם and render her tamei. This is a big chumra because it reduces the shiur of R. Moshe by half and seems much clearer that trying to estimate the shiur referenced in the mishna in ohalos.

Temurah 31a - Animal that is raised on non-kosher food

The Mishna says that an animal that nurses from a treifa mother is forbidden to be used as a korban. The gemara qualifies that it cannot mean that animal that gained a few pounds by eating non-kosher food becomes assur. The gemara explains that we are speaking about an animal that nurses daily from a treifa animal an amount that is sufficient to sustain it entirely, therefore even if the animal eats other things, it is forbidden to be brought as a korban.

The Mishna implies that an animal sustained primarily from issur food is forbidden as a korban, but permitted to be shechted and eaten. However, Tosafos writes - ולפום ריהטא אפילו להדיוט, meaning that it seems it would be forbidden even for a regular person to eat. The Rama in Shulchan Aruch (Y.D. 60:1) follows Tosafos and writes an animal that ate non-kosher is permitted, but אם לא נתפטמה כל ימיה רק בדברים אסורים אסורה - if it only ate issur it's entire life, it becomes forbidden. The Pischei Teshuva cites the Levushei Sered who suggests that this is a fixable problem. If one were to feed the animal kosher foods for a few days, it would lose it's status as an animal that was raised it's entire life on non-kosher foods.

The difficulty with both Tosafos and the Rama is that the mishna implies that this is a problems specifically for korbanos. If this were an issue with even chulin animals forbidding them to be eaten, why would this halacha be said in the context of korbanos? The Gr"a deals with this question and suggests that the Mishna and Gemara are speaking about an animal that primarily is sustained by forbidden food (such as milk from a treifa) but throughout the course of the day will also eat other things. In that circumstance it is forbidden for a korban since the non-kosher milk is sufficient to sustain the animal without any other food, but is not forbidden to be eaten. The Rama is speaking about an animal that ONLY ate non-kosher foods and then becomes forbidden even for a regular person so shecht ant eat it. According to the Gr"a it would seem that that one can certainly do as the Levushei Sered suggests, to feed the animal kosher food for a couple of days and then shecht it to eat.

Temurah 30b - Having relations with one's wife while pregnant

Rava says that if one were to commit bestiality with an pregnant animal, the fetus will also assume a status of "nirva" and be forbidden to be brought as a korban because היא וולדה נרבעו. The gemara explains that this issue is dependent on the notion that the child is a "limb" of the mother - עובר ירך אמו הוא, therefore anything done to the mother is as if it were done to it's child. Based on the same rationale, if a pregnant animal kills, the fetus is also considered a "no'geiach" and killed. Since the fetus is part of the mother it is as if it participated in the actions of the mother. 

R. Akiva Eiger (Kesavim 172) asks a very strange question. Based on the rationale of the gemara that היא וולדה נרבעו, it should be forbidden for one to have relations with their pregnant wife since it is tantamount to having relations with their own child? R. Akiva Eiger offers a technical answer. Since chazal don't consider it to be an act of relations when a girl is less than 3, it wouldn't be a torah violation. Although it would normally be a Rabbinic violation to have relations even with a girl less than 3, the violation is based on wasting seed which obviously doesn't apply when he is having relations with his pregnant wife. In short, R. Akiva Eiger considers having relations with one's wife while pregnant to be having relations with the fetus itself.

The Yachin Bo'az says that R. Akiva Eiger's entire approach doesn't make sense. If we truly consider every act done to the mother as if it were done to the child, there should be a violation to shecht the mother since it is as if he were shechting the mother and child on the same day. The Tiferes Yisroel (Boaz) explains that the answer lies in the gemara's assumption that עובר ירך אמו. Since the fetus is considered part of the mother it is not considered to be having relations with the fetus, just with the mother. The concept of היא וולדה נרבעו doesn't mean that it is as if he committed the aveira with both the mother and the child, but rather since the child was part of the mother at the time of the aveira, it assumes whatever status the mother has. The concept of עובר ירך אמו הוא doesn't make it as if he were having relations with the fetus, rather it makes that the relations he had with the mother causing it to assume a status of a נרבע would also apply to the fetus. In a situation where there is no status placed on the mother, there is no effect at all on the child. According to this approach the phrase היא וולדה נרבעו isn't to be taken literally, it is merely an expression meant to convey that the status of the mother will apply to the child as well.

Temurah 16a - Halachos Forgotten in Aveilus of Moshe

The gemara says that 3000 halachos were forgotten when Moshe died. The people asked Yehoshua to retrieve the lost halachos from Hashem to which he responded לא בשמים הי. Generations later they asked Shmuel to retrieve it, to which he responded אלה המצות - שאין נביא רשאי לחדש דבר מעתה. Both responses seem to be similar, the only Navi who is able to transmit Torah from Hashem is Moshe. Once it was transmitted by Moshe, it was not simply shared with the Jewish people, but literally given to the Jewish people so that all decisions had to take place following a halachic system. The only way to retrieve lost halachos is to do as Asniel Ben Kenaz did, to use principles available and analysis (piplul) to retrieve the lost information. Even when machlokes develops, the only way to decide who is correct is using the system of אחרי רבים להטות as the gemara says was done after Moshe died - אם רבו מטמאין טמאו, אם רבו טהורין טיהרו (although rashi explains that the machlokes about semicha was the first machlokes ever to exist, that means it was the first machlokes where they couldn't reach an agreement by voting, but surely there was machlokes much earlier - the gemara in Sanhedrin (2nd perek) suggests that Shaul and Dovid had a halachic debate about המקדש במלוה).

It is unclear from the gemara why when Yehoshua was asked to retrieve the halachos his response was לא בשמים היא, whereas Shmuel responds אלה המצות - שאין נביא רשאי לחדש דבר מעתה, since they are essentially the same point. The Maharsha asks this question as suggests that for Yehoshua it may not have been a violation of אלה המצות since he had heard these halachos from Moshe himself, just that he forgot them. He needed to be reminded of them, but didn't need to learn them from scratch. Therefore, it wouldn't be a violation of introducing something new, nevertheless couldn't be done due to the limitation of לא בשמים היא.

The gemara in Megilla 3a says that the "tzofim", meaning the nevi'im, introduced the מנצפ"ך, meaning all the letters that have a different font when they appear at the end of a word. The gemara asks how could the nevi'im have introduced something so fundamental, it is a violation of אלה המצות - שאין נביא רשאי לחדש דבר מעתה. The gemara answers - שכחום וחזרו ויסדום. Originally, they were given by Moshe, but they were lost and the nevi'im were used to retrieve the lost halachos. This clearly implies that even when Nevi'im restore lost halachos that they have never heard before, it isn't a violation to אלה המצות. Why does our gemara consider the restoring of forgotten halachos to be a violation of אלה המצות?

It seems that the answer lies within the words of Rabbeinu Chananel in Megillah who writes:

ואקשינן ואלה המצות שאין נביא רשאי לחדש דבר מעתה, ופרקינן לעולם מתוקנים היו, וכן היה מסורת בידם מהנביאים להיות הפתוחים באמצע תיבה והסתומים בסוף תיבה, ושכחום וחזרו הצופים ויסדום

Rabbeinu Channanel seems to explain that they had a mesorah from the nevi'im about these letters and exactly where they should be placed, the function of the nevi'im who restored them was only to remind people of the mesorah. It seems from here that once it has entered the chain of mesorah, it can be restored by nevi'im, but when taught by Moshe and immediately forgotten, since it never entered the realm of מסרן ליהושע ויהושע לזקנים וזקנים מסרוה וכו, it can't be restored by nevi'im.

Temurah 14b - Reciting written Torah by heart

The gemara says that oral torah cannot be written, and written torah cannot be recited by heart. It compares one who writes halachos to one who burns a sefer torah. Rashi explains that if a fire would break out on shabbos it would be forbidden to violate shabbos to save the sefer of halachos, therefore the initial writing of it causes it to be burned. Rashi offers a second interpretation that it is destructive to the oral Torah to commit it to writing. The second explanation is difficult, why is it equivalent to burning of a Torah? It seems that the problem with writing oral torah is that it make what should be infinite into something limited and finite. Therefore, by writing halachos one is inherently considering it to be no longer disputable and no longer open for debate. He is "burning" the torah that could have been discussed and introduced on this topic by committing the torah to writing. The exception to this rule the gemara says is when one writes a chiddush that presumably would otherwise be forgotten. The writing of a chiddush is necessary for the preservation of torah and therefore wouldn't be a violation of writing what shouldn't be written.

Similarly, one is not allowed to read the written torah by heart. Tosafos asks from various written sections of the Torah that were accustomed to being recited by heart in the context of davening. Tosafos answers that it is only problematic when one recites a written section by heart with the intent of being motzi someone in their obligation i.e. reading krias shema for someone who is going to be yotzei through sho'meia k'oneh. Tosafos also limits the violation to chumash as opposed to nevi'im and kesuvim.

The Shulchan Aruch (O.C. 49) says that sections which people are familiar with such as shema and birchas kohanim one is allowed to do by heart, but doesn't quote Tosafos who permits anything which is not being done to be motzi others. The rationale of the Shulchan Aruch seems to assume that the problem is that we afraid of one making an error and misquoting from torah she'bichsav, therefore things which are well known are permitted. This is also the implication of the biur halacha citing Tosafos Yeshanim to permit reciting hallel by heart. However, the limitation of Tosafos to when one is being motzi others seems to be that when done casually and not to be motzi someone's obligation, it isn't significant enough to qualify as a prohibition.

The Mishna Berura uses Tosafos as cited by the Gr"a and Radvaz to permit one to read the parsha along with the ba'al koreih even though they don't have a chumash open in front of them. The M.B. also quotes from the chavos ya'ir to permit one to recite tehillim by heart combining the heter of the chavos ya'ir that it qualifies as tefilla and the heter of tosafos that one isn't being motzi others. It is interesting that they don't quote the other distinction of tosafos who limits the prohibition to chumash.

Temurah 8a - Not to sell a bechor or ma'aser in the market

The Mishna in Bechoros 31a says that one is not allowed to sell the meat of a bechor or ma'aser b'heima on the regular meat market because the extra money gotten from selling on the market will only benefit the owners but in no way benefit hekdesh (to the exclusion of pesulei hamukdashin where the original redemption price will be determined by how much the meat can be sold for so hekdesh will benefit). By making the heter to sell in the market dependent on whether hekdesh benefits indicates that the issur is only d'rabonon. However, Tosafos in Bechoros proves from or sugya that it must be d'oraysa because the gemara says that since it has these halachos restricting their sale, it is not included in the word בהמתה by an עיר הנדחת because we only include things that can be eaten בתורת בהמתה. If these restrictions would only be d'rabonon, it wouldn't make sense to exclude it from עיר הנדחת based on a pasuk. Tosafos isn't sure what the pasuk would be to forbid this and suggests that there must be some pasuk that forbids degrading hekdesh unless there is a gain for hekdesh. Perhaps the source of this can be the gemara 7a that says that being makdish a ba'al mum is a violation of לא תקריבו even though it only assumes status of kedushas bedek habayis because it is degrading to hekdesh to be makdish a ba'al mum since within the same species there are animals that are fit for a korban - בזיא מילתא וכו' כיון דאיכא במינו. Since the nature of this issur is the degrading of hekesh, perhaps it can be expanded to include the degrading of bechor and ma'aser meat by being sold on the open market.

The Minchas Chinuch (361) cites Tosafos in Zevachim who says that according to some the prohibition is only d'rabonon as the simple reading of the Mishna would imply. If the nature of the prohibition is only d'rabonon, how are we to explain our gemara that exempts it from the שלל עיר הנדחת based on these prohibitions? The gemara darshens from בהמתה to exclude anything that isn't eaten as a regular animal. Although the restrictions against selling and weighing are only Rabbinic, the fact of the matter is that it isn't able to be eaten the way a regular animal is and is therefore excluded from ir ha'nidachas. The Torah may not recognize the Rabbinic issur but nevertheless excludes anything which is practically and actually not treated as a regular animal.

Temurah 4b - When the Torah says not to do it, does it work anyway?

The gemara launches into a major discussion about the concept of כל מילתא דאמר רחמנא לא תעביד, אי עביד לא מהני. Meaning, when the Torah says not to do something, is there a built in mechanism that makes it ineffective even if it is done (rava), or is it effective. The gemara explains that according to Abbaye it must be effective because otherwise there was nothing violated for which to receive malkus, but according to Rava the malkus is for performing the action that the Torah said not to, but it will not be effective.

R. Akiva Eiger (Comments to Y.D. 10:1) explains that the application of this concept is only in cases where by the Torah saying it doesn't work, the Torah is accomplishing something. Meaning, there is a preventative clause built in to any aveira that if the issur can be reduced by it not going into effect, the Torah doesn't enable the issur to go into effect. For example, if one were to shecht on shabbos, the concept of אי עביד לא מהני would not apply to invalidate the shechita because even if the shechita were invalidated, it would in no way reduce the violation of shabbos. We can only apply this concept to a places where by invalidating the effect, it would lessen the violation such as divorcing a woman who one raped. The Torah doesn't want her to be divorced so by invalidating the divorce, the violation is lessened (but the gemara learns from a pasuk that the this is an exception to the rule and the divorce is binding).

Therefore, R. Akiva Eiger asks that if one would shecht an animal with a knife that is forbidden to benefit from because it is avoda zarah, it would make sense to apply אי עביד לא מהני to invalidate the shechita. The benefit from the knive is dependent on the shechita being valid, therefore invalidating the shechita would prevent the violation of benefiting from the knife. R. Akiva Eiger points out based on the Turei Even in Rosh Hashana that even Abbaye who holds אי עביד מהני would only say that in a situation where even if we undermine the effect of the issur, it doesn't negate the fact that he violated the din of the torah. In other words, since even after we undermine the effect of the issur, he nonetheless violated the מימרא דרחמנא (for which rava says he gets malkus), there is no point in negating the effect of his actions since it doesn't truly rectify the violation. However, in a case where undermining the effect will completely undermine the violation, even Abbaye would agree that we apply the concept of אי עביד לא מהני. Therefore, when one shechts with a knife that they are forbidden to derive benefit from, by invalidating the shechita and rendering the animal a ne'veila, we are completely circumventing the violation becasue the violation is not to do an action, it is to benefit. By rendering the animal a neveila it comes out that he never even violated the מימרא דרחמנא so even Abbaye should agree that the animal is considered a ne'veila. R. Akiva Eiger leaves with at צריך עיון.

Erchin 30a - Who can redeem at a prorated rate?

The mishna has various restrictions regarding the rules of redeeming. For example, one cannot sell another property or borrow to obtain capital with which to redeem. Also, one is not allowed to redeem just a piece of the property, they need to wait until they have enough to redeem the entire amount. There is also a system of calculating the redemption price by dividing the sale price by the number of years (with a few more details to compensate for fluctuations in the price of the property, and if it is resold at a different price), from hereon in referred to as prorating. The Rashash questions whether these details of redemption apply specifically to the owner of the property or even to his relatives when they redeem in his place. The Rashash quotes from Toras Kohanim that all the rules apply to the relatives also, except for the concept of prorating which only applies to the actual owner. The Rashash says that the pesukim clearly imply "to one who has a sharp eye" that only for an owner do we prorate to force the buyer to sell him his field back, but when a relative redeems we don't impose this on the original buyer, rather we make the relative redeem at full price.

The Torah talks about prorating both in the context of an inherited field (Parshas Behar 25:25-27) and when one is sold to a ger toshav (48-50). In both places the torah first speaks about relatives redeeming for him but then says that if he comes across money so that he can redeem it by himself or redeem himself, the price is prorated. From this the Rashash understands that it is only prorated when he redeems, not when his relatives redeems.

However, the Meshech Chochma seems to take for granted that even when relatives redeem it is prorated. He asks why does the Torah speak first about relatives redeeming and then about redeeming himself. If relatives can redeem him, surely he can redeem himself when he gets the money together. The Meshech Chochma suggests based on chazal who understand from the pesukim that the prorating must be done meticulously so that the buyer is not being cheated in any way. Therefore, it first says that when relatives redeem we have to be careful to make sure the buyer isn't cheated. Even if the seller himself redeems, he is required to be meticulous about the calculation and not cheat the buyer. The Meshech Chochma seems to understand that both the redemption of the seller and the relatives are included in the system of prorating (unlike the rashash) but it is more of a chiddush to say that even the seller himself must be meticulous about the calculation.

Erchin 16a - Loshon Ho'rah in the Presence of Three

I already blogged about this previously and presented the different approaches - SEE HERE.

Reading the gemara simply, it seems to imply like the approach of the Rambam that once loshon hora was violated in the presence of 3 people, it can be assumed that it is already public info (even though the way it becomes public info is through an issur being violated) and can be said over by the 3 who heard it.

Being that the heter is based on the assumption that the word will get out, the Chofetz Chaim (perek 2) has many stipulations as to when it will be permitted:

1. It can be told over casually but not with the intention of spreading the news further. The Yad Ketana holds that even when said casually, it can only be said if that was the topic of conversation, but one cannot move the conversation in that direction in order to share the loshon hora.

2. It cannot be repeated back to the one it was said about. Although the Rashbam permits even this and doesn't consider it to be a violation of rechilus, the chofetz chaim isn't willing to pasken like that.

3. Only one who was part of the group of 3 can say it over, but not the person who heard it from him until it has become well known information.

4. If any of the group of 3 are exceptional yarei shamayim who wouldn't repeat it over, it cannot be repeated over by anyone in the group. He learns this from the gemara in sanhedrin 29a that considers the judges revealing their votes to be loshon hora even though the 3 judges know about it. He suggests that if any of the 3 wouldn't repeat it over because they are the subjects friends or family, it also cannot be repeated.

5. It can only be repeated to places where the news would have spread such as within the city. Mostly likely this condition no longer applies since information spreads very quickly to the 4 corners of the world.

6. If the original person who told it over warned the 3 listeners not to say it, one cannot assume that it will spread and cannot repeat it.

7. One cannot embellish the story in any way. It has to be said exactly as it was heard.

8. The heter is only for the one saying it over, but the listener still cannot believe it as factual. Therefore if the one telling it over knows the nature of the listener and that he would accept it as fact, he cannot tell it to him.

Erchin 10b - Hallel on Yetzias Mitzrayim

The gemara offers 3 explanations for why we don't say Hallel on Purim. 1. We don't say Hallel for a miracle that occurs outside of E.Y. after the Jews have already entered E.Y. 2. The reading of the Megilla is in place of the Hallel. 3. It wasn't a complete redemption since we remain slaves to Achashveirosh. The entire question as to why we don't say Hallel on Purim is predicated on the gemara's answer that we do say Hallel on Chanuka due to the miracle, even though it isn't called a Mo'ed and there is no prohibition of work. Therefore, all the distinctions as to why we don't say Hallel on Purim, do not apply to Chanuka. It is a miracle that occurred in E.Y., there is no reading to be in place of Hallel, and it was considered a "complete" redemption (although short lived - approx. 200 years). Rashi in Ta'anis 28b seems to understand that the reciting of Hallel on Chanuka would be considered d'oraysa, since the concept of saying of Hallel on a miracle is a Torah requirement.

The gemara challenges the first distinction between Chanuka and Purim from the fact that we say Hallel on the miracle of yetzias mitzrayim (and is forced to respond that prior to entering E.Y. we say hallel on chutz la'aretz miracles). It isn't clear from the gemara which Hallel it is referring to that is said for yetzias mitzrayim. The Turei Even in Megillah explains that it can't be referring to Hallel said on the first day of Pesach because that is a Hallel for the Yom Tov, not for the miracle. Therefore, he suggests that it is referring to the Hallel on the night of Pesach. The Mahartz Chiyus (here) understands the Turei Even to be speaking about the Hallel in shul on the night of Pesach because the Hallel in the Hagada is interrupted by the meal and wouldn't qualify as Hallel. The Maharatz Chiyus asks that to be referring to the Hallel said in shul on Pesach night is also difficult because the minhag ashkenazim based on the Rama is not to say it. It seems to me that the Turei Even is referring to the Hallel said within the Hagada. Although it is not said as a complete entity and wouldn't qualify as a "Hallel", it would nonetheless qualify as a "shira" and would prove that we do say shira even on a chutz la'aretz miracle.

The Rambam (Hil. Chanuka 3:6) paskens like the middle answer of the gemara - קריאתה זו היא הלילא. The Hallel of Chanuka is achieved by the reading of the megillah. This raises a big discussion in the poskim (sha'arei teshuva) in Hilchos Purim, if one doesn't have a megillah to read on Purim, should they recite the full Hallel (and perhaps even with a bracha). However, it seems that when the gemara says that megilla is in place of Hallel it doesn't just mean that it fulfills the obligation of Hallel, rather that reading the megilla is the expression that chazal instituted as the hallel for purim. Therefore, even if one were not to have access to a megilla they couldn't recite hallel with a bracha (and couldn't say a full hallel) since there was no takana to say hallel on purim.