Bechoros 38b - Is a Mum that can be cured considered a mum ka'vuah?

It is clear that when a bechor has a mum that will heal by itself, it qualifies as a temporary mum. Although it cannot be sacrificed as a korban until the mum heals, it would not constitute a mum to permit the shechting of the bechor as the gemara said on 37b. Tosafos discusses a mum that will not heal on it's own, but is curable through medical intervention. According to the first approach of Tosafos any mum that is curable, even if it will take medicines or surgeries, would qualify as a temporary mum thereby retain full kedusha of bechor. According to the second approach of Tosafos, a mum that requires some form of medical intervention to heal it, would qualify as a permanent mum and the bechor my be shechted and eaten without the medical intervention. 

This second approach of Tosafos opens up a very peculiar status. One can have a bechor with a mum that is curable but will not heal on it's own and is permitted to shecht it since it doesn't retain the kedusha of bechor. But if he decides to offer the medical treatment to cure the mum, the kedushas bechor will return. The Maharit Algazi questions whether this it is possible for the kedusha of a bechor to be restored through the healing of it's mum. It is very different than a temporary mum where the bechor retains it's full kedusha status even while it has a mum, just that it can't be brought as a korban. Here the kedusha status actually disappears when it gets the mum that will not heal on it's own, therefore you can shecht the animal and eat it, but if you fix the mum the original kedusha status will return. 

The Maharit Algazi cites a very interesting source for this phenomenon. The gemara says in Yoma 64a learns from a pasuk that after a temporary mum heals the animal can be brought as a korban. Why would we need a source for this, can't we simply learn from bechor that after the temporary mum passes the animal becomes fit for a korban? It must be that the pasuk comes to teach us that even when the mum is a mum that won't heal on it's own so that it qualified as a permanent mum and the animal lost it's kedusha status, after the mum is healed through medications the kedusha will return.

Bechoros 37a - Doing Avoda with Temporary Mum

The gemara says clearly that a temporary mum doesn't qualify as a mum at all to permit the shechting of a bechor outside the mikdash, or for redeeming pesulei hamukdashin.  However, it qualifies as a mum to prevent the animal from being brought as a korban until the mum heals. It isn't clear if a temporary mum would invalidate a kohein from doing the avoda even temporarily.

The Chachamim in the braisa say that a kohein cannot become a nirtzah since it will require the making of a mum and invalidate him from doing avoda. From this the gemara proves that the piercing is done in the cartilage part of the ear, rather than the fatty part, since in the fatty part it wouldn't make a mum. Rashi explains that a hole in the fatty part would heal and therefore not be considered a mum. Rashi implies that since the mum will heal, it isn't considered a mum at all to invalidate the kohein from doing the avoda, even temporarily. The Maharit Algazi points out that the third answer of Tosafos (d.h. ka'an) that a temporary mum would invalidate the kohein temporarily seems to be against Rashi.

Bechoros 31a - Paskening For Yourself

The Braisa says that one is not allowed to pasken on their own Bechor that it has a mum to allow himself to eat it. The gemara explains that we are speaking about a kohein who was given a bechor and qualifies as a יחיד מומחה who can normally pasken by himself, but we don't allow him to pasken on his own animal because we are afraid that he will be mo'reh heter for personal benefit.

Tosafos asks that based on this we should never permit anyone to pasken for themselves on any question of issur v'heter. Furthermore, the gemara in eiruvin says in that a talmid chacham can pasken for himself - how does this fit with our gemara?

The Rash in Negaim (cited by Gilyon HaShas) asks Tosafos question and says that it is dependent on whether it is אתחזק איסורא. When the item has a status of being forbidden and relies on the p'sak of the chacham to permit it, one cannot permit their own. But, when there is no default status of issur, one may pasken on their own. The Binas Adam (sha'ar issur v'heter 2) elaborates about this Rash and explains that when a question of issur v'heter would arise on the kashrus of an animal in the shechita process, that would qualify as a chezkas issur where one cannot pasken on their own. But, when it comes to checking the shechita knife on which there is no chezkas issur, one can check their own. It should follow from this that if the shechita knife would get a p'gam in it causing it to be invalid for shechita, the shochet shouldn't be able to check his own knife. However, the Lechem Chamudos (cited by binas adam) explains that anything which is one's control to fix, he is believed on even if it is אתחזק איסורא. Since the schochet can fix his knife by sharpening and removing the nicks, he is believed to say that it has been fixed.

The Binas Adam adds that we learn from our gemara that in a case which is אתחזק איסורא and not in one's own control to fix, even a talmid chacham isn't believed. This is clear from the case of Bechor where a יחיד מומחה isn't believed to pasken on his own.

Following this approach, the Chochmas Adam (109:6) paskens that although a husband may pasken on the bedika cloth of his wife (and she may pasken on her own), if a question develops about chatzitza while immersing in a mikva, the husband cannot pasken. The rationale for the distinction is that he can only pasken when it is not אתחזק איסורא. Once she is established as a Nida and the question is about her becoming tahora, it is אתחזק איסורא.

Bechoros 30b - Accepting Mitzvos Except for One

The Braisa says that a Goy who accepts Mitzvos with the exception of one mitzvah, is not accepted as a convert. R. Yossi Bar Rav Yehuda adds that even for a detail that is d'rabonon we don't accept him. It is unclear from the gemara whether אין מקבלים אותו means that l'chatchila the Beis Din pushes him off, or that even bidieved would prevent the conversion from being binding. In the Teshuvos Beis Yitzchok (cited by Achiezer 3:26:5) he questions whether this is only lichatchila or even bidieved. The gemara in Shabbos 31 about the story with Hillel and the ger who didn't want to accept the oral torah implies that it is only lichatchila. If acceptance of everything would be essential to the geirus working, Hillel couldn't have converted him today just because he was confident that later on he would truly accept. But if it is only a lichatchila, it would be possible for Hillel to convert him today and wouldn't reject him because he was confident that with time he would fully accept (Even within the approach of Rashi who says that he didn't reject the oral Torah just didn't trust it's divinity, it would still seem impossible for Hillel to accept him today unless it would be binding bidieved regardless).
R. Chaim Ozer (Achiezer) rejects the notion that this requirement is merely lichatchila. The Rambam writes that the acceptance of the mtizvos is integral to the conversion (similarly Tosafos in Yevamos writes that it must be done by day in the presence of a Beis Din), the gemara in Bechoros seems to simply be defining "accepting the mitzvos". Therefore, if one doesn't accept a Torah mitzvah the geirus isn't binding. But R. Chaim Ozer questions that perhaps the rejection of a Rabbinic mitzvah wouldn't invalidate the geirus on a Torah level. R. Moshe Feinstein (E.H. 2:4) concurs with R. Chaim Ozer that the accepting of all the mitzvos is essential and not doing so would undermine the conversion entirely. Just as for the Kohen and Chaver mentioned in the braisa, if they lack commitment to their requirements, their acceptance would be void even bidieved, the conversion of the goy would also be void bidieved.

However, there is a very fundamental dispute between R. Chaim Ozer and Rav Moshe regarding the definition of חוץ מדבר אחד. They were faced with Jews coming to convert who were living with non-jewish women and would be Rabbinically prohibited to stay with them after the conversion. Therefore, the entire conversion was with the assumption that they would be violating the issur of staying together. Another example would be a Kohein who comes to convert his non-jewish wife, and clearly plans on staying with her after the marriage. This would be a conversion with the intent of violating a Torah prohibition.
Rav Chaim Ozer (3:26:4) writes that one who converts with the realization that their desires to violate a mitzvah is too strong and they will be in violation, would not qualify as a חוץ מדבר אחד and the conversion would be binding. The Braisa only intends to exclude one who stipulates that they are converting on the condition that such activity will not be prohibited to them. They are essentially picking and choosing which laws will be part of their Torah. But one who accepts all of them, just that he or she intends to violate some of them, would be a valid convert. R. Chaim Ozer realizes that following this approach one can potentially "accept" all 613, but not keep to any of them - would their conversion be valid!? He qualifies this by saying that if we are sure that he will definitely violate major prohibitions in the Torah such as Shabbos and Kashrus, it is and indication that he doesn't mean to truly accept mitzvos, and the lip service of declaring his acceptance is worthless. It is hard to understand where exactly R. Chaim Ozer would draw the line. Perhaps he would not consider violation of details an invalidation of the conversion, only the uprooting of an entire mitzvah. The underlying approach of R. Chaim Ozer seems to be that one need not commit to fulfill every detail, but they have to accept and recognize that this is a prohibition which they should be keeping. Based on this R. Chaim Ozer permits accepting a convert who is honest about where he stands and says that he will not be strong enough to keep one of the mitzvos in the Torah.

Rav Moshe takes a much clearer and harder line on this issue. Anyone who converts with the understanding that they will not be fulfilling one of the mitzvos in the Torah, even if they theoretically recognize it and accept it's divinity, cannot be a convert and the conversion isn't binding. Acceptance by definition is accepting to keep it. Although a ger may be ignorant and doesn't need much education to convert (the gemara in shabbos discusses a case of a ger who wasn't aware of the issur to worship idolatry), he must accept to follow the mitzvos of the Torah as he is taught them. Rav Moshe is troubled with the gemara in Shabbos where Hillel converted someone who wasn't willing to recognize the oral torah. This seemingly is no worse than חוץ מדבר אחד so how was the geirus binding? He explains Rashi to be saying that the convert wasn't rejecting the oral Torah, rather the convert didn't yet believe that the p'sakim of Hillel and Shamai were part of that divine torah. He hadn't yet come to terms with the sages of the generation being able to convey the divine message but wasn't rejecting any particular law. Even so, Hillel wouldn't have accepted him as a convert unless he was confident that in the future he would recognize that even that the discussions of the Rabbis were part of the oral torah. Rav Moshe understands from Rashi that had this qualified as a חוץ מדבר אחד, the geirus wouldn't be binding even bidieved, but since it was merely a lack of education which misled him to think that the torah discussed by hillel and shamai wasn't part of the oral torah, Hillel's confidence that education  would change his attitude was sufficient to convert him today.
The D'var Avrohom (3:28) wrote a letter to R. Chaim Ozer thanking him for sending him a copy of his sefer and offers some comments on this particular teshuva. He writes to R. Chaim Ozer that after reading his distinction of "accepting the mitzvos" and "keeping" the mitzvos, he laughed - ואני חוכך בזה. In this aspect he concurs with R. Moshe that if one "accepts" something with the intent of violating, it doesn't qualify as an acceptance. But regarding the first issue whether the חוץ מדבר אחד is enough to invalidate the geirus, he questions that it may only be a lichatchila requirement as suggested by the Beis Yitzchok. Strangely enough, Rav Moshe (Y.D. 3:106) in a later teshuva leans toward saying that the חוץ מדבר אחד is only a lichatchila for the beis din to reject him, but is not me'akev the geirus. He bases this on the point that was mentioned by R. Chaim Ozer that the rejection of a d'rabonon couldn't invalidate the geirus on a Torah level, therefore it would just be a lichatchila. Since the same language is used for the rejection of a Torah mitzvah - אין מקבלים אותו, this would also only be lichatchila.

There are some orthodox batei dinim that are lax in their insistence on kabalas ha'mitzvos. According to R. Chaim Ozer this would often not prevent the geirus from being binding, but according to Rav Moshe (in the earlier teshuva) any mitzvah that wasn't fully accepted at the time of the geirus would invalidate the entire process.
Unfortunately, I have seem many converts who reject certain halachos such as hair covering and other tznius related issues very soon after their conversion, and there is reason to believe that they had never intended to adhere to these rules. R. Moshe (y.d. 3:106:1 end of section) writes that when the religious people of that community are lax in certain halachos, it wouldn't be fair to consider these things a חוץ מדבר אחד to invalidate the geirus because the fact that all the "religious" women don't abide by it, causes the convert to think that it is just a chumrah being imposed by the beis din.Therefore, rather than regarding this as a חוץ מדבר אחד where she fails to accept something, it can be regarded as a lack of education which would not invalidate the geirus.

Bechoros 29a - Payment for Mitzvos

The Mishna says that one is not allowed to receive payment for judging, testifying, or doing the mitzvos associated with para aduma, and if one receives payment he is penalized that we invalidate what he did. The gemara explains that this is based on a general principal of מה אני בחנם אף אתם בחנם, which is learned from a pasuk that demands that we model ourselves after G-d and not take payment for the doing of mitzvos such as teaching Torah or paskening on questions. Although there is already a prohibition against a judge taking a bribe, Tosafos explains that this source is necessary to forbid him from taking payment that is not meant to influence the outcome of the judgement (but if it influences the outcome in either direction, it is regarded as a bribe).

When the gemara cites the source for not accepting payment as being the requirement to model G-d and do it for free, Rashi gives the examples of authorizing a p'sak i.e. din, and teaching Torah. Rashi fails to mention the issue of testifying and preparing the para aduma waters. The Cheishek Shlomo suggests that accepting payment to testify according to Rashi is only prohibited m'drabonon, not from the Torah. If it were forbidden m'doraysa it would be tantamount to a witness taking money to testify falsely categorizing him as a רשע דחמס and being passul for all testimonly. The Mishna implies that we only invalidate this testimony, implying that his violation isn't d'oraysa. It also isn't clear from Rashi whether payment for other mitzvos is forbidden m'doraysa or only m'drabonon.

The Rashash cites the Bartneura who elaborates about those who officiate gittin and take payment. He is assuming that sidur ha'get qualifies as din and would invalidate the gett. However, the Rama (E.H. 154) says that it doesn't qualify as din, just as limud ha'torah. The Rashash points out that this would justify the gett being kasher, but wouldn't justify the practice to accept payment for officiating a gett since it would still be a violation of מה אני בחנם אף אתם בחנם as we find by talmud torah. Tosafos justifies those who take payment for studying Torah based on the דייני גזירות in Yerushalayim who relied on this for their livelihood and therefore became the community responsibility to support them so that they can maintain their important work. This logic may also apply to mesadrei gittin or those who do other mitzvos i.e. milah for their livelihood. Someone asked me how I can charge to do a bris - i answered that the mitzvah of bris milah is to cut. I don't charge for the mitzvah of doing a bris, I only  charge for stopping the bleeding.

Bechoros 25a - More about Davar She'eino Miskavein

The gemara suggest that R. Yossi Ben Meshulam agrees with Rav (who paskens like R. Yehuda) that דבר שאינו מתכוין is forbidden. How then does he permit the cutting of the black parts of the hairs of the פרה אדומה leaving behind only the red parts, although he isn't intending to be גוזז but to fix the parah a'duma, it should still be a violation? The gemara implies, and Rashi explains explicitly that since his intent when he is cutting the black parts of the hair is to fix the cow rather than take the hairs, it would be considered a דבר שאינו מתכוין. Tosafos points out that this seems to be a very strange application of דבר שאינו מתכוין. Normally a דבר שאינו מתכוין is where one doesn't even intend to do the ma'aseh issur, but where one intends to do the act of issur just that he is doing it for a different purpose than it is normally done for, it would be considered a מלאכה שאינה צריכה לגופה (which is a special p'tur in hilchos shabbos due to מלאכת מחשבת- it doesn't apply to other areas of halacha and even on shabbos is exempt from punishment but forbidden). In this case where the person is cutting the hairs of the parah a'duma intending to do the act of cutting, it would be similar to a standard מלאכה שא"צ לגופה, but shouldn't qualify as a דבר שאינו מתכוין? Tosafos asks this question in very few words -

 דאין זה כשאר לשון "אין מתכוין" בעלמא דכיון דבכוונה גוזז במספרים. Why does the gemara consider this to be a davar sh'eino miskavein? 

It seems to me that by certain מלאכות the purpose of the act is so integral to the melacha, that when the act is done for a different purpose it is tantamount to not intending to do the act at all. The prohibition of גוזז on kodshim is that it is forbidden to do things that enable one to take the products of the animal (whether it is the wool, the work in the field or the milk), while it is still alive. Although Tosafos (d.h. sa'ar) explains that the issur is a ma'aseh issur of cutting the wool, unlike the issur of the milk which is an issur on the product, the nature of the issur to cut the wool is because normally one would do this act to obtain the product. When one is גוזז but has no interest in the wool, it undermines the act of גוזז to the point where we consider him to not be intending for גוזז at all. Therefore, when he cuts the blackened parts of the hairs for the purpose of fixing the parah aduma, not for the purpose of using the hairs, it is considered as if he isn't intending to do the act of issur.

Bechoros 24b - Davar Sh'eino Miskavein

There is a machlokes between the Teruma HaDeshen and the Magen Avrohom whether we can be matir one to do a פסיק רישא דלא ניחא ליה - an inevitable action where he isn't interested in the issur outcome, when the issur is only d'rabonon. The Terumas HaDeshen permits a פסיק רישא דלא ניחא ליה באיסור דרבנן and the Magen Avrohom forbids it (O.C. 314:5). R. Akiva Eiger proves that the Magen Avrohom is correct from a gemara in Succah.

Normally we pasken like R. Shimon that a דבר שאינו מתכוין is permitted, not like R. Yehuda who forbids it. However, when it is inevitable - פסיק רישא, even R. Shimon admits that it is forbidden as the gemara says 25a. When the gemara speaks about a p'sik reisha it is usually in a context where the person is interested in the issur outcome. But when the person isn't interested in the outcome - פסיק רישא דלא ניחא ליה, Tosafos in Kesubos 6a cites the Aruch who permits it even by an issur d'oraysa. Tosafos disagrees and holds that it is forbidden at least by an issur d'oraysa. The Terumas HaDeshen and Magen Avrohom argue if we can be matir by an issusr d'rabonon.

Tosafos explains in our sugya that even though Rav paskens like R. Yehuda who forbids a דבר שאינו מתכוין, that is when the issur is d'oraysa. But if the issur is d'rabonon (either because it is mekalkel, or because תולש לאו היינו גוזז), it would be permitted. It seems that a דבר שאינו מתכוין  according to R. Yehuda is worse than a  פסיק רישא דלא ניחא ליה according to R. Shimon. The Aruch holds that פסיק רישא דלא ניחא ליה is permitted, so even though we hold like Tosafos that it is forbidden, we see that there is grounds to be matir. It would be logical to assume that if Tosafos holds that even R. Yehuda would permit a דבר שאינו מתכוין when it is only d'rabonon, according to R. Shimon who is always matir דבר שאינו מתכוין, but is machmir for a פסיק רישא דלא ניחא ליה, he would at least be meikel when the entire issur is only d'rabonon. This would seem to support the opinion of the Terumas HaDeshen, against the Magen Avrohom. However, the M.B. writes that l'ma'aseh, most achronim agree with the Magen Avrohom to forbid a פסיק רישא דלא ניחא ליה even when the nature of the issur is only d'rabonon.

Bechoros 23a - Understanding Bitul B'rov

The gemara raises a concept of an item which is batul whether it is viewed as כמאן דאיתיה דמי. The gemara assumes that if we regard an item that is batul as if it doesn't exist then when a tamei item is batul it wouldn't even be me'tamei by carrying, but if we regard it as existing even while it is ba'tul it would be me'tamei through carrying but not through touching. The gemara leans toward the distinction between carrying and touching implying that we view the tu'mah to be in existence even while it is batul. The rationale for the distinction between carrying and touching is that when one touches something they cannot be touching every molecule at once. Therefore, we can only consider him to be touching an item of tu'mah if the majority is ta'mei, otherwise we would consider the entity to be not tamei. However, when it comes to ma'sah, since when something is carried, every molecule in it is carried, the existence of the tu'mah even as a minority would render the carrier tamei.

Tosafos (d.h. 23a) asks that eating an item should be more similar to tu'mas ma'sah than to tu'mas ma'ga. Why do we permit one to eat an issur that has been batul in rov? Since the minority is considered to still be in existence, it should be comparable to ma'sah where the entire item is being carried or eaten and therefore should be eating issur? Tosafos answers that when one eats something, every small amount that is swallowed is batul b'rov and is therefore similar to ma'ga where the touching of multiple times doesn't make it as if were touched at once. Therefore, just as by tu'mas ma'ga we would identify the entity based on the majority ingredient, the same would be for eating. Tosafos assumes that it would be impossible to eat the entire amount all at once. Perhaps it is because the בית הבליעה can only contain a beitza at one time which it 2 kezaysim. For there to be a full kezayis of issur in the בית הבליעה at once of something that has been batul b'rov, there would have to be more than 2 kezaysim in the beis ha'blia at one time, which is impossible. Furthermore, there should be an issur of eating even a chatzi shiur of issur, unlike tu'mah for which there is no contamination if it is less than the amount needed to be metamei.

The Rosh (Gid HaNashe end of 37) asks the very same question as Tosafos except that the Rosh preempts the answer of Tosafos in his question and says that one should have to be careful to eat in a way where every swallow could potentially contain only the heter food and not the issur food so that it would be more similar to ma'ga than ma'sah? The Rosh answers that we cannot compare tu'mah to issur. There are two types of tu'mah, therefore the chiddush of bitul b'rov may apply to one and not the other, such as to ma'gah and not ma'sah. However, regarding eating, if we would consider there to be any issur in what the person was consuming, the Torah wouldn't allow it's consumption. The fact that the Torah allows one to eat issur that has been ba'tul is a gezeiras hakasuv that in the world of issur, we view it כמאן דליתיה דמי, as if it weren't in existence. Therefore, a piece of issur that is batul in two pieces of heter can even be cooked together (on a torah level) and eaten all together as if the issur disappeared.

The approach of the Rosh seems to assume that the concept of tu'mah that has been batul being metamei by carrying to be d'oraysa, whereas Tosasfos concludes that it is likely only m'drabonon.

Bechoros 22a - Shiur for Opening of Uterus

The gemara quotes the Mishna in Ohalos (7,4) which says that the shiur for pesichas ha'kever is עד שיעגילו ראש כפיקה. The gemara explains that it is the size of a פיקה של צמר which is used for the שתי stitch. The context of the mishna is to know at which point the cervix is considered open enough so that the dead fetus inside can no longer be considered טומאה בלועה and will be me'tamei the vessels that are in the same room as her. It is unclear if this is also the shiur for פתיחת הקבר in the context of the statement in nidah - אין פתיחת הקבר בלא דם. The Nodeh B'Yehuda cited by the Pischei Teshuva (Y.D. 194,4) says that even forcing the cervix open from the outside would qualify as an opening of the cervix and we would have to be concerned that some blood was let out of the cervix. R. Moshe (Igros Moshe Y.D. 1, 83) says that although the binas adam and chasam sofer disagree with the nodeh b'yehuda, they only disagree when one would use a finger to open the cervix because they assume that a finger wouldn't reach through the cervix. However, even they would agree with the Nodeh B'yehuda that if a tool or instrument is used to enter the cervix, it could qualify as an opening of the cervix where we would say אין פתיחת הקבר בלא דם. R. Moshe (Igros Moshe Y.D. 1, 89) says that although the Nodeh B'yehuda says that only something with a very small diameter such as a pieces of straw wouldn't be considered an opening of the cervix, implying that if it were slightly larger it would be considered an opening of the cervix rendering her a nidah. R. Moshe disagrees because the only shiur that we find in chazal for the opening of the cervix is the shiur of כפיקה של צמר, which they also term as a פתיחת הקבר, therefore it is logical that this would be the shiur also in the context of אין פתיחת הקבר בלא דם. Although it is difficult to know exactly the size of the פיקה של צמר that is used for the שתי stitch, R. Moshe assumes that it must be smaller than the diameter of a small finger. Being that the Rambam paskens that it is possible to have an opening of the cervix without any bleeding, and it is possible that an externally forced opening wouldn't qualify as a פתיחת הקבר, R. Moshe is confident in being lenient with any instrument where the diameter is less than the size of an average persons pinky finger.

Bechoros 21b - What Can You Assume When Buying an Animal from a Jew?

The gemara has three opinions when one purchases an animal from a Jew and wasn't told whether or not it had already given birth to a Bechor. Rav says that the assumption is that the first born will be a bechor because if the it had already given birth the Jew would have mentioned it to praise his the item he is selling. Shmuel says that it is a safeik since the seller may have assumed that the buyer wanted it to shecht so it wasn't relevant whether or not it had already given birth. R. Yochanan says that the buyer can assume that it is not a bechor because there is an obligation on the seller to notify the buyer if the first born would be a bechor otherwise he would be in violation of lifeni iever (tosafos).

There is a machlokes Rashi, Tosafos and Rabbeinu Gershom within the opinion of Rav as to what the advantage would be in telling the buyer that it had already given birth. Rashi says that it would have more value since the animal born from here on wouldn't have to be given to the kohein. Rabbeinu Gershom says the advantage would be that it is an animal capable of providing offspring. Tosafos (quoting rashi) says that the advantage would be that the animal has proven it is capable of surviving child birth and therefore more valuable. The Maharit Algazi asks although when the seller doesn't say anything we don't have to be concerned that it actually gave birth to a viable child, but why are we not concerned that it miscarried (ti'nuf) which would also exempt the next born from being a bechor? He explains that according to the rationale of Rashi and Rabbeinu Gershom, the logic would apply to ti'nuf as well. According to rashi since ti'nuf exempts from having to give the next born to the kohein, the seller would notify about tinuf as well. According to Rabbeinu Gershom, perhaps even ti'nuf would be an advantage in showing that it is capable of conceiving (although wasn't able to produce a viable offspring). But, according to Tosafos where the advantage is that the animal is capable of surviving childbirth, this wouldn't apply to ti'nuf. According to Tosafos the seller would have no reason to tell the buyer about the ti'nuf so we should be concerned that it was me'taneif and the next born may not be a bechor? Perhaps this is why Tosafos offers an alternate approach.

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Tosafos writes that only a Jew would be believed about the advantage of having already survived a childbirth and therefore being more valuable but a goy wouldn't be believed about this. Tosafos proves from here that even if a goy is מסיח לפי תומו, talking without trying to make a halachic statement, he isn't believed since we assume he is lying to make the item seem more valuable. The Maharit Algazi asks that this implies that if the goy was truly מסיח לפי תומו and not trying to make his item seem more valuable he would be believed even for bechor. But, the gemara says in yevamos that a goy is never believed מסיח לפי תומו on an issur d'oraysa, he is only believed when he is מסיח לפי תומו on an issur d'rabonon, but this is an issur d'oraysa? From this the Maharit Algazi concludes that the Rov of most animals having already given birth after reaching the ages listed earlier in the perek, is a valid rov on a d'oraysa level, just m'drabonon not a good rov since it is dependent on an action (gemara 20a). Since m'doraysa we have a rov that the next born is not a bechor, and it is only d'rabonon that we can't rely on the rov, we can believe a goy if he is truly מסיח לפי תומו without any motive to glorify his item.

Bechoros 19b - Following the Majority

The gemara suggests that perhaps the halacha of following rov only applies to רובא דאיתא קמן, a rov that is in front of us such as the majority of the sanhedrin voting on an issue, or 9 kosher stores and one non-kosher. But a רובא דליתיה קמן may not command the same status and we wouldn't follow it. The gemara rejects this from the fact that we follow the majority in assuming that most children will not turn out to be a s'ris or ay'lonis, even though that is dependent on a statistic of רוב קטנים לאו סריסים ורוב קטנות לאו איילונית נינהו, which is a רובא דליתיה קמן. However, why do we consider the rov by ketanim to be a רובא דליתיה קמן - just as we consider the 9 stores to be a רובא דאיתיה קמן, we should consider the rov of ketanim to be רובא דאיתיה קמן since most ketanim that are alive in the world today aren't s'risim or ay'lonis? Rabbeinu Gershom seems to address this question and writes- דלא חזינא רובא דעלמא אי הוי סריסים אי איילונית אי לא ואפ"ה אזלי בתר רובא. Even though we have a statistic telling us something that exists right now, since the numbers aren't obvious and can't be counted in front of us, it would qualify as a רובא דליתיה קמן. Similarly, the fact that most cows aren't treifos is a רובא דליתיה קמן because the statistic will not create a רובא דאיתיה קמן since they cannot be counted in front of us.

On another note, the gemara says that we don't follow a rov that is dependent on an action such as the fact that most animals would be pregnant by a certain age, which is dependent on the action of mating with a male. The rationale for not following this rov, the Ramban (Halachos of Bechoros) writes that a mi'ut which happens by itself is stronger than a rov that is dependent on an action. Rashba in Chulin 9a says that this limitation is only d'rabonon. Meaning, m'doraysa we follow rov even if dependent on an action but the Rabbonon tell us not to. Therefore, the Chazon Ish writes that we can only be machmir to not follow a rov dependent on an action, but we cannot be lenient to do so. The Binas Adam (sha'ar rov v'chazaka) proves that the Rashba is correct that it is only d'rabonon based on Tosafos ד"ה אי בעית אימא who says that R. Meir who is concerned for the mi'ut is only d'rabonon. Since the first answer of Rava that the concern of the mishna that the animal born now is a bechor is only m'drabonon, the answer of Ravina about not relying on rov which is dependent on an action is also only d'rabonon. However, this proof isn't very solid because when there is a chazaka that supports the mi'ut even R. Meir would agree that we are concerned for the mi'ut even m'doraysa and here there is a chazaka that supports the mi'ut (as tosafos explains in d.h. me'chvarta). The issue of whether R. Meir is concerned for a mi'ut only m'drabonon or even m'doraysa (when there is no chazaka), is a dispute between tosafos and mordechai (mentioned in this blog on the first perek of chulin).

Bechoros 9b - Spending Money for Safeik Mitzva

The Mishna says that if one has a safeik whether they have a peter chamor, they must redeem it with a sheep but don't need to give it to the kohein  since the rule for giving is המוציא מחבירו עליו הראיה - the burden of proof is on the collector. The gemara says that this follows the opinion of R. Yehuda who says that a peter chamor is forbidden to derive benefit from, therefore one must redeem it even though it won't be given, but according to R. Shimon who says that it is permitted, there isn't even a mitzvah to redeem it. 

Tosafos raises an interesting question - A peter chamor without redemption requires it's neck to be broken. Since the mitzvah to break it's neck (arifa) is like any mitzvah where we are strict when there is a doubt, even if it weren't assur b'hanah, there should be a requirement to break it's neck. Tosafos answer cryptically and says that just as one doesn't need to give it to the kohein, there is also no requirement to do the arifa out of safeik. It isn't clear what Tosafos means to say - the concept of המוציא מחבירו עליו הראיה exempts the giving to the kohein but doesn't exempt the breaking of it's neck? 

The Maharit Algazi suggests that since we have a concept of המוציא מחבירו עליו הראיה and apply it even to mitzvos that one is obligated to do by the torah such as all safeik of gifts to the kohein, we can similarly apply this concept to any mitzvah where it is questionable if one needs to fulfill it and the fulfilling of it would entail a loss of money. Since the arifa of the peter chamor would be a loss of money, one isn't required to incur the loss for a safeik mitzvah.

This approach is very difficult to accept. It should follow that if one is in doubt whether they are obligated in matzah on pesach or whether they have already fulfilled their mitzvah, they shouldn't be required to incur any expense to fulfill the mitzvah. Had this been true, it should have been mentioned in earlier poskim. Rather, we generally assume that this rule is limited to mitzvos that require giving, but doesn't apply to expenses that need to be incurred to fulfill mitzvos between man and G-d. Therefore, this concept shouldn't apply to the mitzvah of arifa (breaking the donkeys neck).

The Rashash explains that Tosafos doesn't mean to fully equate the mitzvah of breaking the neck with the giving to the kohein, since the concept of המוציא מחבירו עליו הראיה wouldn't apply to the mitzvah of arifa. Rather, Tosafos holds that the arifa is the consequence when one doesn't fulfill the mitzvah to give the sheep to the kohein as redemption of the newborn donkey which is incumbent upon him. When there is no requirement to give a sheep to the kohein, the mitzvah of arifa would also not apply.

Bechoros 6b - Heter to Drink Kosher Milk

The gemara says that the fact that milk of a kosher animal is permitted to drink is a chiddush because one could have argued that it would be included in either the prohibition against blood (דם נעכר ונעשה חלב), or the prohibition against אבר מן החי since it is part of a live animal. The gemara cites three possible pesukim as the source of the fact that milk is kosher (either the pasuk when Dovid brought milk to the troops, or the pasuk that praises the land of Israel for it's milk which indicates that it is permitted to drink, or a pasuk in Yeshaya).

The Shita Mikubetzes asks, why not use the pasuk by Avrohom when he fed the angels butter and milk. Being that Avrohom kept the entire Torah, the fact that he was willing to give milk to the angels indicates that it is permitted to drink? The R"I answers that Avrohom thought that they were bnei noach. Even if milk were forbidden to Jews, it wouldn't be one of the 7 Noachide laws and permissible for them to drink it. The Shita then cites a Yerushalmi (which is not in the Yerushalmi but in the pesikta and quoted by the da'as zekeinim on parshas vayera) that indicates they ate meat and milk (unlike the gemara in baba meztia which implies that didn't actually eat, and also says that it was served one by one i.e. milk before meat) . When it came time to give the Torah and the mal'achim were complaining they wanted to keep it, Hashem said that every child knows that meat and milk can't be eaten together, yet they ate meat and milk when they visited Avrohom. It isn't clear how this midrash connects to the discussion of the Shita Mikubetzes. Perhaps the Shita is trying to prove that Avrohom thought they were bnei noach from the fact that he fed them meat and milk, so there wouldn't be any proof from there about milk being permitted to drink.

The Maharit Algazi asks that according to the rationale that milk would be assur as אבר מן החי, it would surely apply to non-jews as well. The answer of the Shita that Avrohom assumed they were bnei noach doesn't work if the issur on milk would be an offshoot of אבר מן החי? The Chasam Sofer (y.d. 70) answers that the gemara never really suggested that milk would actually be אבר מן החי or בשר מן החי because it is neither an ei'ver or ba'ssar. Rather the gemara was suggesting that it should be LIKE אבר מן החי in the sense that it would be assur (not not for goyim), based on concept of הטמאים - לאסור צירן ורוטבן וקיפה שלהן. Meaning, since אבר מן החי is assur and the animal is assur when it is alive, so anything that comes from it when it is alive should be included in the prohibition of הטמאים. This prohibition would certainly apply to Jews only, therefore Avrohom would have had no problem giving milk to b'nei noach.

Bechoros 5b - Categorizing Animals Based on Features or Genetics

The Mishna discusses a case where a mother cow gives birth to a child that looks like a donkey. The gemara learns from the pasuk of פטר חמור that the child would not have Kedushas Bechor. It is clear from the gemara that we completely exempt it from any kedusha of bechor, but it isn't clear from the gemara which type of kedusha it would have if not for the pasuk excluding it. Meaning, do we regard it as a cow since genetically it is a cow, just that it looks like a donkey, or do we regard it as a donkey since it looks like a donkey?

It would seem that the answer lies in the end of the Mishna which cites a rule that היוצא מן הטמא טמא והיוצא מן הטהור טהור. The mishna seems to indicate that the genetic makeup of an animal determines the species to which it belongs, therefore an animal born from a kosher animal (even if it looks like a donkey) is kosher. Similarly, an animal born from a non-kosher animal (even if it looks like a cow) is not a kosher animal. If genetics determines the category, we would have to say that a cow that gives birth to a donkey would have been treated like a בהמה טהורה and been brought as a korban on the mizbei'ach, if not for the pasuk excluding it.

However, the implication of the mishna which uses a pasuk of פטר חמור to exclude this case, implies that we really need the pasuk to exclude it from the requirement of פטר חמור, not from kedushas mizbei'ach (although the gemara confirms that it would certainly be excluded from kedushas mizbei'ach as well). The Steipler (4) proves from Tosafos that this is true. Tosafos suggests that for a cow that gives birth to a donkey the pasuk of the mishna (פטר חמור) would be necessary to exclude if from the mitzvah of redemption like a donkey, and the pasuk in the gemara would be necessary to exclude the reverse (a donkey giving birth to a cow) from kedushas mizbei'ach. Although Tosafos concludes that either pasuk would exclude it completely, their logical default for not having a pasuk would be that the animal should be treated as it looks, not as the species of it's mother. Meaning, a cow that gives birth to a donkey would have been treated like a donkey to require redemption despite that it's genetic makeup is that of a cow. The Steipler proves from here that the species of any animal is determined by it's appearance, not by it's genetics. Nevertheless, there is a separate rule that if it looks like a kosher animal but is born from a donkey, it cannot be eaten - היוצא מן הטמא טמא, not because it's a donkey, but because it is a non-kosher cow. Similarly, if it looks like a donkey it is a donkey, yet if born from a cow it can be eaten because היוצא מן הטהור טהור. This approach of categorizing a donkey born from a cow as a "kosher donkey" is significant because for purposes other than eating i.e. eiver min ha'chai it would have status of what it looks like, not what it is genetically.

The gemara 6a seems to strongly support the approach of the steipler that the species is determined by it's appearance rather than it's genetics. According to the rule that having similarities to it's mother can make it have kedusha of bechor, the gemara questions whether a donkey that has similarities to it's mother which is a cow, would have kedusha. The gemara's suggestion of why it is too different from the mother and wouldn't have kedusha is - הא טמאה והא טהורה, הא קדושת הגוף והא קדושת דמים. The gemara describes it as a non-kosher animal and as the value having kedusha rather than inherent kedusha. Clearly, the gemara is understanding that since it looks like a donkey, if it were to have kedusha (because it has similarities to the mother), it would have קדושת דמים like any donkey, not קדושת הגוף like it's mother.

Bechoros 3b - Avoiding Kedushas Bechor

The gemara discusses exactly how much of an animal must be given over to a goy in order to avoid kedushas bechor. The predominant opinion seems to be like R. Huna that the ear is enough, since we find that Rami Bar Rachel did that as well. Tosafos entertains the possibility that we would pasken that one would have to give over to the goy a portion in the animal that if missing would render the animal a neveila or treifa (rav chisda and rava), but considers it to be a chumra. Regarding the fact that one is removing kedusha from animal entirely by selling a portion to a goy, Tosafos suggests that it would only be an issue if one were to sell a portion of the fetus which itself would have otherwise had kedusha, but would not be an issue when selling a portion of the mother. Even though this may not be ideal, Tosafos considers it the proper thing to do nowadays since there is no better alternative and if this isn't done someone will surely violate a more severe prohibition with the animal.

The Turei Even (Rosh HaShana 13) suggests that being mafkir the animal would NOT be sufficient to remove the kedusha of bechor from the fact that Rami Bar Rachel who was looking for the simplest option, didn't use the method of hefker. The Chasam Sofer (Y.D. 316) dismisses the proof since it could be that a proper hefker in the presence of others could have been more complicated and difficult than simply selling the ear to a goy. The Maharit Algazi suggests a complicated approach. Hefker wouldn't work to remove the obligation of bechor on an animal that already has kedushas bechor. However, if one were to be mafkir the fetus prior to it's birth, since at the time when it would be fit to receive kedushas bechor it doesn't have an owner, it wouldn't get kedushas bechor. He then backs off based on a gemara in Chulin and says that even if born as hefker, as soon as a Jew would take possession of it, it would assume kedushas bechor.

Chulin 141b - Punishing for Shiluach Hakein

The gemara says that R. Yehuda gave malkus to someone who clipped the wings of a bird and then sent it away on its feet to fulfill the mitzvah of shiluach hakein because he holds that it must be sent away by flying, not by hopping. The Mishneh L'melech (hil. avadim 18) asks how he was able to punish for this mitzvah. We have a rule - כל מצות עשה שמתן שכרה בצדה אין ב"ד של מטה מוזהרין עליו, meaning that Beis Din doesn't punish for any mitzvah that has a reward tagged onto it. How was R. Yehuda able to punish for shiulach hakein which has the reward of long life attached to it? 

The Maharatz Chiyus suggests based on Rashi (?) that the reason that beis din doesn't punish when there is a reward attached is because by writing the reward the torah is hinting that the this is the reward for doing it and not receiving this reward is the punishment for not doing it, to the exclusion of any other punishment. The Maharatz Chiyus explains that this rule works by other mitzvos, but by shiluach hakein the mishna 142a says that the reward needs to be written to teach that there is tremendous reward even for small mitzvos such as this for which there is very little expense. From here we derive that for all mitzvos there is great reward, making it unnecessary to dictate the specific reward if not for the purpose of exempting you from any other punishment. Therefore, shiulach hakein is an exception to the rule since it serves as the source for teaching that there is great reward for even seemingly simple mitzvos, and is not meant to exclude any other punishment.

It seems to me that Rashi himself is coming to answer the question as to how R. Yehuda was able to punish for a mitzvah that the torah writes the מתן שכרה בצדה. Rashi says that the purpose of his "punishment" wasn't punitive, rather it was רידוי בתוכחה שלא ירגיל בזה, ואין לה קצבה אלא עד שיקבל עליו. Meaning, the purpose was not to punish, rather to change the person and motivate him to fulfill the mitzvah. Although Beis Din may not "punish" or "penalize" for mitzvos on which a reward is tagged on, they may still have the ability to encourage and motivate one to fulfill the mitzvah even through force.

Chulin 139b - Searching after mitzvos

The gemara says that one may have thought that they would be required to search after the mitzvah of shi'luach ha'kein and put in effort to find a birds nest on mountains and hilltops, to which the gemara responds that it only applies when you chance upon it. There is a great debate among the achronim regarding the mitzvah of shiluach ha'kein, whether it is an absolute obligation to send away the mother bird even if one has no particular interest in the baby birds, or is it a mitzvah more similar to divorce where if one wants to do something i.e. take the babies, or divorce their wife, the torah prescribes a format that must be followed. The Chacham Tzvi (83) and Chasam Sofer (100) suggest from this gemara that thought to demand searching after the mitzvah on mountain tops, that it is an absolute obligation. Although the gemara concludes that one isn't obligated to go to the extreme of trying to locate a birds nest, the underlying assumption that it is an absolute imperative even if one has no interest in the babies is never rejected.

On a bit of a different note using the same source, the Mekor Chaim (Nesivos on Hil. Pesach Siman 432) which I cited in my sefer Nasiach B'chukecha (195) proves from our gemara that one is required to invest effort into searching after mitzvos from the fact that the gemara required a specific pasuk to exempt the assumption of searching after the mitzvah on hilltops. Therefore, other mitzvos that don't have a pasuk exempting this level of effort, would demand that extreme amount of effort. However, in my edits on my sefer I pointed out that from Rashi we would be able to prove the exact opposite. Rashi writes - 

שנאמר שלח תשלח ב' פעמים, שומע אני לחזור אחר המצוה הזאת עד שתבא לידו. Rashi explains that the default position for having to put tremendous effort into searching after this mitzvah is not a gobal requirement or assumption that would be by all mitzvos. Rashi says that since we have the double language of שלח תשלח I would have understood that this mitzvah would require one to search after it in order to fulfill it, to which the gemara responds that כי יקרא implies the opposite. Therefore, other mitzvos which have no pasuk specifically implying that it demands an extreme level of effort, one would not have to put in tremendous effort to attain the mitzvah.

Chulin 135a - Reishis Ha'Geiz and Matnos Kehuna Nowadays

According to the Mishnayos both the mitzvah of ראשית הגז  and the mitzvah of מתנות כהונה apply without a Beis HaMikdash and even outside of Eretz Yisroel. However, Rav Nachman 136b made a statement that the minhag is to follow רב אלעאי by ראשית הגז and that it should only apply in E.Y. Rashi comments - והוא הדין במתנות, meaning that there is no rationale to differentiate between ראשית הגז  and the matanos of זרוע לחיים וקיבה. Since the minhag has become to follow רב אלעאי by ראשית הגז, we also follow him for matanos kehuna that they don't apply outside of E.Y. The Shulchan Aruch both in the halachos of Matanos Kehuna (y.d. 61:21) writes that they apply even outside of E.Y. and then cites a יש מי שאומר שאינן נוהגות בחוצה לארץ. The Shulchan Aruch in the context of matanos kehuna writes וכן נהגו on the lenient opinion even though the main opinion seems to obligate matanos even outside of E.Y. Interestingly, the Shulchan Aruch in the context of reishis ha'geiz doesn't even quotes the stricter opinion - he writes that it only applies in E.Y. to which the Rama adds that some says it applies even on a Torah level in chutz la'aretz but we aren't noheig to be machmir. The Shulchan Aruch is more confident about exempting from reishis ha'geiz in chutz la'aretz since that is explicit in Rav Nachman's statement. Although there is no rationale to differentiate between reishis ha'geiz and matanos, the gr"a (61:20) explains that the leniency is based on a minhag which may have only been to be lenient about reishis ha'geiz and not about matanos kehuna. The Beis Hillel (333) struggles with trying to understand why we are even lenient in E.Y. nowadays. Although the Pischei Teshuva (61:8) cites the chasam sofer who would routinely shecht an animal before yom tov and fulfill the mitzvah of matanos kehuna and reishis ha'geiz, the minhag is not to be makpid about fulfilling these mitzvos. The Beis Ephraim (on shulchan aruch 61) quotes the kerisi u'pleisi who wonders why we don't find people going out of their way to fulfill this mitzvah. He quotes the Pri Chadash who argues on the Beis Hillel's (who wrote that he was told that even in E.Y. people don't fulfill the mitzvah of matanos kehuna), and says that they didn't realize what they saw because it is מעשים בכל יום that matnos kehuna are given in E.Y. from the animals that are being shechted. The Beis Ephraim also quotes that the kreisi writes that his son in law insisted on giving matanos kehuna at the pidyon ha'ben of his son. Since he was being machzik the kohein as a kohein for the purpose of discharging his pidyon ha'ben obligation, he certainly can rely on his yichus to give him matnos kehuna.

Chulin 122b - How far do you have to go?

The gemara says that for tefilah and netilas yadayim one must travel 4 mil forward, and just under one mil backward. Rashi explains that we are talking about someone who is on the road travelling and he wants to stop for the day, but knows that he will have a shul 4 mil ahead to daven (Tosafos assumes that this means a minyan, not a physical structure), he must continue to go to the shul. Similarly, if one was hungry and wanted to eat bread but didn't have water to wash his hands, he would be required to wait until he travels 4 mil before he eats.

The Biur Halacha (163) assumes that the shiur of 4 mil is really a time requirement. Since it would take 72 minutes for the average person to travel 4 mil, the gemara is demanding that one wait 72 minutes. A possible scenario would be if one is on an airplane and wants to eat bread but can't leave his seat at the moment, since it is very likely that within 72 minutes he will be able to wash, he is obligated to wait. It isn't clear to me why the Biur Halacha assumes that this would be dependent on time. Rashi uses language of "tircha" implying that one must push themselves to continue to travel, implying that the amount of 4 mil was for a circumstance where he was on foot and walking 4 mil is a significant tircha. Perhaps if he were travelling with minimal tircha he would need to wait longer than 72 minutes.

The M.B. also comments that if one isn't certain that by waiting or continuing to travel they will find the shul or water, they aren't required to wait at all. This is certainly the implication of Rashi who writes in definitive terms that there is water and a shul in front of him.
Another point that the Biur Halacha makes in the name of the Chayei Adam is that if one isn't very hungry he should wait even more than 4 mil. However, Rashi gives an example of one who wants to stop while it is still day and the halacha demands that since it is still day time and easy to travel, he must continue. It would seem that a similar case by eating would be when one wants to eat now but can relatively easily delay. Perhaps if one is very hungry so that delaying is very difficult (on the level of travelling at night), they wouldn't even have to wait 4 mil.

Chulin 121a - Concept of Achshavei

There is a halacha that is recorded twice in Y.D., once at the end of hilchos sheratzim and once in siman 155 in the Rama - מותר לשרוף שרץ או שאר דבר איסור ולאכלו לרפואה אפילו חולה שאין בו סכנה. The obvious implication is that for the sake for refuah it is permissible to eat a prohibited item that has become inedible, but when it is not being done for refuah purposes, it is forbidden. The Yad Avrohom explains based on the Rosh (2nd Perek of Pesachim) that when one burns chometz before pesach rendering it unfit for consumption, it would still be forbidden to eat on Pesach since by eating it he is giving it importance - מדאכליה אחשביה. Based on this it would be forbidden under normal circumstances to eat a bug or other forbidden item that has been burned, but if it is merely being eaten for medicinal purposes it is permitted since the concept of אחשביה only applies when one is consuming it as a food item. This is to the exclusion of the Sha'agas Aryeh (75) who considers the concept of אחשביה to apply even when one is eating something for medicinal purposes. Either way, the concept of אחשביה is a Rabbinic concept. On a Torah level it would seem impossible for one's intent or purpose to determine an item forbidden or permitted.

However, according to R. Yehuda in the mishna, when one gathers the small pieces of meat that are attached to the inner side of the hide together to make a kezayis, it would have status of a kezyais neveila. Rav Huna explains that this is only when he himself gathers them together, indicating through his actions that he is considering it to be important - דאחשביה וגלי דעתיה דלא בטליה מעיקרא: רש"י. Rashi writes that the concept of אחשביה can be used here, not only in the realm of טומאת נבילה, but even in the realm of איסור נבילה. Meaning, his intent to consider the scraps to be meat restores their status even in the world of issur. Tosafos asks on Rashi, where do we ever find that intent could be the determining factor as to whether a food item is permitted or prohibited!? This would seem to be a machlokes between Rashi and Tosafos whether the concept of אחשביה can even work on a d'oraysa level in the realm of issur v'heter.

The gemara on 120a said that חלב -animal fat that had been liquefied should not be included in the prohibition of eating חלב since it would be drinking and not eating, and we need a special source in the Torah to include it. However, the gemara says that blood which the torah forbids as an issur to eat in it's natural state (as a liquid) would also be forbidden if it were congealed - כיון דאקפיה אחשובה אחשביה - since he gave it status through the act of congealing it. This gemara seems to support Rashi, because we are using the concept of אחשביה to maintain the issur of consuming blood even when it is in solid form. But, upon further analysis, we can ask a more basic question. Why does the gemara require this rationale and not simply state that if liquid blood qualifies as eating, then certainly solid blood would qualify? It seems to me that the gemara is bothered by another issue. Since blood is naturally in a liquid state, consuming it in it's solid state could be considered שלא כדרך אכילה - not the normal way of eating. The gemara is saying that since he congeals it for the purpose of eating it as a solid, it is still considered a normal way of eating. We aren't using this rationale to transform the status of the blood from issur to heter, only to say that it still qualifies as a normal way of eating.