Chulin 66a - Shechting Grasshoppers

Rashi writes that the kosher chagavim (grasshoppers) don't need shechita because they are mentioned in the pasuk after fish which don't need shechita. The Rashba (chulin 27a) when the gemara talks about fish not requiring shechita explains that the default is that nothing requires shechita unless the Torah says it does. The only reason that the gemara 27a searches for a source that fish don't require shechita is because of the pasuk of הצאן ובקר ישחט להם אם את כל דגי הים יאסף להם, which implies that fish require some positive act of "asifa" in place of shechita. The gemara concludes that asifa- gathering is actually to the exclusion of shechita. In short, Rashi and the Rashba seem to argue whether we need a source that grasshoppers don't require shechita or whether without any source the default is that no shechita is required.

The language of the gemara באסיפה בעלמא סגי להו in the context of fish, is somewhat ambiguous. Do fish require a positive act of "asifa" which would demand that they be gathered from the sea by a person while they are still alive, or is it just a way of saying that they don't require any act and can be eaten even when found dead? The Kesef Mishna (Hil. Shechita 1:3) cites the opinion of Rav Sadya Gaon who says that fish require "asifa" and if they are found dead they are forbidden to be eaten (this would be similar to nechira prior to the requirement of shechita, which required the animal to be killed but would not permit a neveila). Rav Hai Gaon disagrees and says they can even be eaten when found dead. The Kesef Mishna understands that the Rambam holds like Rav Hai Gaon, not Rav Sadya Gaon, but in truth the language of the Rambam is very cryptic. The Rambam begins by implying that fish require a positive act of "asifa", but in the end says that even if they die in the water they can be eaten.

רמב"ם - דגים וחגבים אינן צריכין שחיטה אלא אסיפתן היא המתרת אותן, הרי הוא אומר הצאן ובקר ישחט להם ומצא להם אם את כל דגי הים יאסף להם ומצא להם, אסיפת דגים כשחיטת בקר וצאן, ובחגבים נאמר אוסף החסיל, באסיפה לבדה. לפיכך אם מתו מאליהן בתוך המים מותרין, ומותר לאכלן חיים

The Rambam doesn't say that fish and grasshoppers don't have a "matir", rather he says that the gathering of them is the matir in place of shechita. This would imply that they would need to be gathered from the sea while still alive, yet the Rambam concludes "therefore if they die by themselves in the water, they are permitted". Aside from the first statement seemingly contradicting the second, the Rambam connects them using the term "therefore"! Although the kesef mishna tries to explain that once shechita isn't necessary, there is no longer any method demanded to kill the fish, thereby permitting even fish that are found dead; if this were the Rambam's intention his language should have been that there is no matir necessary for fish and grasshoppers?

Chulin 61a - All Birds That are דורס Aren't Kosher

The Mishna has a rule that birds which are do'reis aren't kosher (What does it mean to be do'reis? Rashi explains that it lifts it's prey with it's nails, Tosafos argues that even a chicken does that [rashash says he never saw a chicken do that], and therefore explains that it begins to eat prior to the prey being fully killed.

Tosafos wonders where this rule comes from. There are two possibilities. Either Chazal were zoologists and spent time searching all birds which are do'reis and found that every bird that is do'reis is tamei. It is doubtful that they would have invested so much time into doing the research to determine that there is no kosher bird at all that is do'reis. Another possibility is that they weren't disclosing a fact, rather a halacha that they had from Moshe - הלכה למשה מסיני, that any bird which is do'reis isn't kosher. The problem with the approach of being a halacha l'moshe mi'sinai is that it makes the pasuk of פרס or עזניה superfluous since one of the two is do'reis and therefore not kosher due to the halacha l'moshe misinai. See Maharatz Chiyus who discusses the possibility of something being a halacha l'moshe mi'sinai and supported by a pasuk as an אסמכת בעלמא. Tosafos concludes that it is not a halacha but rather a tradition from Noach who did all the research when he was gathering the birds for the teiva.

The Maharatz Chiyus raises and interesting point. Although we don't generally learn things from before matan torah, natural facts can be learned from before matan torah. Therefore, if we had a tradition from Noach that all do'reis birds are tamei, we would be able to use that as a source making any passuk unnecessary. Just as Tosafos assumes that if we had a halacha l'moshe misinai testifying that all do'reis birds are tamei, it would make the pasuk of peres or azniya extra, so too when we have a tradition from Noach to that fact, it should make the pasuk of peres or azniya extra?

Chulin 59a - Checking Simanim before eating

The mishna teaches what the qualifications are for a kosher animal, bird, fish and chagav. The Rambam in sefer hamitzvos (149-152) counts each of them as a separate positive mitzvah. Although the Ramban in his comments on the mitzvos doesn't write anything, in the sherashim of sefer hamitzvos (shoresh 6) he articulates his opinion that none of these deserve to be counted as a מצות עשה. The rationale of the Ramban is quite logical. There is no obligation to eat these items at all, and therefore the mitzvah to check the simanim is essentially teaching what is allowed and not allowed to be eaten, without any command. The Ramban does consider the positive mitzvah to be an additional violation for one who would eat a non-kosher animal in which these simanim are absent, but does not consider it a mitzvas aseh to actually check the simanim. The Ramban and Behag (quoted by ramban) seem to differ whether the eating of a non-kosher animal should even be counted as a separate aseh, but they both agree that the checking for simanim isn't worthy of being counted as an aseh.

By looking more carefully at the language of the Rambam in sefer hamitzvos (149) we get a better appreciation as to how the Rambam considers these to be positive mitzvos. The Rambam writes

והענין במצוה זו מה שזכרתי לך, והוא שאנו מצווין לבדוק אלו הסימנים בכל בהמה וחיה ואז מותר לאכלן, והדין הזה הוא המצוה

The Rambam seems to understand that the nature of this mitzvah is not an obligation to check the simanim. Rather, the Rambam seems to hold that the very nature of the din which distinguished between kosher and non-kosher, is worthy of counting as an independent mitzvah. This doesn't mean that by checking for simanim one fulfills a mitzvah aseh, but rather the existence of dinim that are necessary to abide by in order to achieve a desired result, qualifies as a mitzvah. A similar logic would have to be applied to explain why the Rambam counts shechita (146) as a mitzvas aseh - although there is no obligation to eat meat, the dinim of shechita that one must abide by to render the animal kosher, qualifies as a mitzvas aseh. The mitzvah of writing a gett would be similar, not an obligation, rather a set of dinim that one must abide by if they want to achieve a particular result. However, the Megilas Esther and Kin'as Sofrim (two classic commentaries on sefer hamitzvos - shoresh 6) both seem to take the approach that the act of checking according to the Rambam is a fulfillment of a positive mitzvah. The Kinas Sofrim explains that if one were to eat an animal without determining that it is kosher and only after consumption realizing that it was indeed kosher, they would be in violation of this mitzvah aseh. The same should be true if one were to eat in a restaurant without verifying that it is kosher and only afterward finding out that it was indeed kosher - the laxity in failing to examine prior to eating is a violation of the mitzvas aseh. According to this approach, the failure to pre-examine the kashrus status prior to consumption is very different than other issurim. If one were lax about other prohibitions and not pay close attention to whether it is actually permitted, and then find out it was permitted, it would fall under the category of מכוין לאכול בשר חזיר ועלה בידו בשר טלה, which requires teshuva but is not a violation. However, according to the Rambam even the laxity in determining the kashrus status of an item would be a specific violation of a mitzvas aseh. The statement of chazal that one needs to do teshuva when they try to eat pork and end up eating kosher meat, is actually a strong question to undermine the kin'as sofrim's approach to the Rambam. Why would chazal just say that you need teshuva for the intent of the aveira, you should need teshuva for violating the aseh and not inspecting the food before consumption? It therefore seems to me that the Rambam considers even a din of inspecting to be counted as a mitzvah even though there is no obligation to do so.

As an aside, the language of the Rambam at the beginning of ma'achalos ha'asuros contradicts his language in sefer ha'mitzvos. In the mishne torah the rambam uses the term לידע, implying that the nature of the mitzvah is to learn and be knowledgeable to be able to discern between kosher and treif, whereas in sefer hamitzvos he uses the term לבדוק implying that the nature of the mitzvah is to actually examine?

Chulin 54b - Defining the word "רשאי'

The Node B'Yehuda has a famous teshuva where he explains why the halacha requiring one to greet their rebbi on the 3 regalim (pesach, shavuos and succos) isn't codified in Shulchan Aruch. The Nodeh B'Yehuda explains based on the gemara in kiddushin 33b that one is not allowed to stand up for their rebbi more than twice a day so that the honor being shown to a rebbi shouldn't exceed the honor being shown to Hashem through the acceptance of Him as king in the reading of Shema which is only twice a day. Similarly, when there was a beis hamikdash, there couldn't be a halacha requiring one to visit their rebbi more than 3 times a year (even though it is technically appropriate every shabbos and rosh chodesh - as the gemara cites לא חודש היום ולא שבת היום). Now that there is no beis hamikdash and there is no mitzvah to be oleh regel on yom tovim, the halacha of visiting a rebbi is completely inapplicable for the same reason so that the honor shown to a rebbi shouldn't exceed the honor shown to Hashem.

The Node B'yehuda certainly assumes that the definition of the term רשאי in the context of אין אדם רשאי לעמוד בפני רבו אלא שחרית וערבית שלא יהא כבודו מרובה משל שמים, has to mean - NOT PERMITTED, as it would be simply translated. However, Tosafos says that in hour gemara when it cites the phrase אין בעלי אומניות רשאין לעמוד מפני ת"ח בשעה שעסוקין במלאכתם, can even be speaking about when they are doing their own work so there is no issur to stand, but the term רשאי means obligated. Meaning, workers aren't obligated to lose money and stand for Talmidei chachamim while they are busy with their own work. Tosafos says that the term in the gemara kiddushin can be translated the same way, one is not obligated to stand for a rebbi more than twice a day, but would certainly be allowed to. But, in truth this may work even better for the Nodeh B'yehuda because there is no halacha that nowadays one is not allowed to visit their rebbi on regel, just that it can't be an obligation. It would work well since it is based on the source of one not being "obligated" to stand up for their rebbi more than twice a day - they are allowed just not obligated.

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On another note, the gemara concludes that we can't prove from our gemara that honor shown to those going to do a mitzvah should supersede the honor shown to talmidei chachamim, because it could be that the requirement to stand for those who bring bikurim is simply שלא תהא נמצא מכשילן לעתיד לבא - meaning that they must be shown extra honor in order to encourage them to invest the energy and time to come again. From here we see that there is an obligation on everyone not only to do mitzvos, and not only to abstain from preventing the doing of mitzvos, but to actively do things that encourage others to do mitzvos.

Chulin 48b - Treifos are halacha l'moshe m'sinai

A few weeks ago I was in Sha'arei Tzedek with R. Moishele Weissberg (who i am training by to become a mohel) and an older guy walked over dressed in shorts and sandals (not looking very well put together). He said that he had a question, but not about milah, rather about a chicken (Moishele spent over 25 years as a shochet). The question was that he has a chicken who is missing a leg at the knee and he wants to know if the chicken is kosher, because he wants to keep it alive and eat the eggs. Moishele didn't know the answer, so he called another shochet who said that it depends on the tzomet ha'gidin, whether or not they are in tact.

I didn't fully grasp the importance of the tzomet ha'gidin at that point. However, the gemara says that in treifos one cannot compare one thing to another based on the assumption that the rules should always be consistent and logical. The gemara says

אין אומרין בטריפות זו דומה לזו, שהרי חותכה מכאן ומתה חותכה מכאן וחיה

Rashi (unlike tosafos in baba basra 130b who says this is referring to a hole in the spleen) says that so long as no bones are broken, if the meat of the chicken is cut off the bones, if it is above the tzomes ha'gidin it is kasher, but on the tzomes ha'gidin it is a treifa. This proves that the laws of treifos aren't intuitive because it could be a treifa when less is missing, and kasher when more is missing.

Rashi at the beginning of the perek 42a also made this point by saying that there is no rationale when it comes to treifos because it is all a halacha l'moshe mi'sinai. It is for this reason that the chazon ish explains that the ability to keep a treifa alive would not change it's status as being a treifa since the list of 18 treifos are halacha l'moshe misinai.

Chulin 46b - 47a - Sircha/Hole in Lungs

The gemara discusses the common problem of sirchas (strands that attach lobes of the lung to one another or to the rib cage) being an indication of a treifa. The gemara distinguishes between כסדרן and שלא כסדרן. Simply speaking כסדרן refers to an attachment of the lobes of the lungs that are adjacent to one another, which the gemara says is kosher because היינו רביתייהו, whereas an attachment between lobes that aren't adjacent -שלא כסדרן, renders that animal a treifa.

For background purposes, the lung has 4 lobes on the right side and 3 on the left. The very large lobe on the right and the left is called an אומא, and the upper ones (3 on the right and 2 on the left) are called אונא. Rashi and Tosafos both quote a major machlokes whether a sircha between two adjacent lobes are considered acceptable only in the אוני or even when there is an attachment between the אונא and the אומא. Additionally, there is a lobe in the center of the lung that is referred to as the עינוניתא דוורדא for it's rose like appearance - any sircha between that and another lobe of the lung is considered to be a problem.

Rashi in his explanation of this sugya clearly chooses the former of the two approaches that i mentioned in the previous blog. Rashi writes that the problem with a sircha is that it is indicative of a hole which is then filled up by the forming of a sircha. Rashi continues that even though it successfully covers the hole so that no air can penetrate, we pasken קרום שעלה מחמת מכה בריאה אינו כרום שסופו ליסתר. The last two words of Rashi - שסופו ליסתר, clearly indicate that the problem is that the closure will not hold, implying that if it were to hold such as surgical stitching, it would remove the problem of treifa. Regarding the distinction between כסדרן ושלא כסדרן which the gemara attributes to כסדרן being רביתייהו, rashi explains that adjacent lobes protect one another so that the sircha can strengthen rather than weaken. The entire approach of Rashi clearly implies that any fix that will actually hold is sufficient to remove the concern of treifa, even though the fix only came later and wasn't present from the beginning. Tosafos asks on Rashi, why would כסדרן be kasher, it should be no better than a krum that develops on an injury which doesn't fix the problem. Tosafos suggests that it could be that a sircha which attaches itself to another place (such as an adjacent lobe) has a tendency to strengthen and closes the hole better than a "krum" that is not attached to any other place. This further compliments the approach that a hole that renders that animal a treifa can be fixed, so long as it is strong enough to be maintained. Based on this, the Rashi 43a that we discussed in the previous blog would hold that if it is a permanent fix, the animal is no longer a treifa even if it develops later. But, rashi explains that even when the hole isn't truly plugged up, and is just being blocked by another organ, since it was there from the very beginning, this also allows that animal to be considered kasher and not a treifa.

Tosafos quotes Rabbeinu Chananel who takes the exact opposite approach to explain why a sircha is a problem. Rather than the sircha being an indicative of a preexisting hole, it is an indication that a hole is about to form. Tosafos points out that both the approach of rashi and rabbeinu chananel fail to explain why a hole can be tested by blowing into the lung while in a bucket of water. According to Rabbeinu chananel it will not bubble because the hole has not yet formed, and according to rashi it will not bubble because the sircha is blocking it from bubbling but is prone to fall off and therefore doesn't truly fix the hole.

Chulin 43a - Bloat in Cattle

This is from wiki:

In cattle, bloating is most often caused by the animal eating young and lush pasture, usually if the pasture has a high proportion of legumes(medicks, clover or lucerne (alfalfa)).^[23] Legumes contain foaming agents which trap air bubbles in the ruminant's rumen and prevent them from belching to relieve the pressure. This causes a build up of pressure in the rumen which manifests as an obvious swelling on the left side. Signs of bloat in cattle are distended left abdomen, stopping of grazing, lethargy, appearing distressed, difficulty in urinating or defecating, rapid breathing and staggering. In mild and moderate cases an antibloating agent will be administered orally or through a stomach tube and the ruminant should be exercised. In severe cases a wide bore trochar and cannula can be inserted into the rumen on the left flank to release the gas and liquid. In emergency cases of frothy bloat, this may not be enough and a 10–20 cm incision may need to be made in the animal’s side and the froth manually removed. Veterinary care is then needed to clean and stitch the wound and administer an antibiotic to the animal.

To treat this problem, there is often an incision made in the keiva of the cow and then stitched up. Is found a very interesting discussion about this issue in the new picture book on chulin by rabbi lach (page 146). The question is whether a hole that renders the animal a treifa can be fixed so that the animal is no longer a treifa. If once a treifa, always a treifa, any animal that undergoes such a surgery, even after it heals is a treifa rendering all it's milk to be non-kosher. The issue is based on an apparent contradiction in Rashi when he explains the gemara which says a "krum" - membrane that grows over a wound in the esophagus doesn't fix the hole and the animal remains a treifa. Rashi at first writes that even if it is thick membrane, it will not last, therefore it is as if the hole remains and the animal is a treifa - אפילו עלתה בו סתימה עבה אינה מתקיימת. According to this rationale, the problem is that the hole cannot fix itself properly, but when the hole is stitched up and heals properly, the animal will no longer be considered a treifa. However, Rashi continues by creating a rule that any holes that render the animal a treifa cannot be fixed even if it heals afterward, unlike a hole in the lung that if closed by the wall of the inside of the animal is kasher, because that seal was there originally. The implication of the second statement of Rashi is that once it is a treifa, it remains a treifa and even if repaired properly remains a treifa. The Pri Megadim (Mishbetzos Zahav - 33:4) understands from rashi that if the closure of a hole isn't present at the time the hole forms, it cannot be fixed by a membrane or healing afterward. The Pri Megadim explains that the fact that the closure or membrane will allow the animal to live, doesn't in anyway change it from being a treifa. The concept of a treifa not living 12 months is to be used as a siman to determine whether a safeik treifa is a treifa. But, when it is known that the animal is a treifa, even if it lives for many years, it remains a treifa. The pri megadim doens't explain how he would read the beginning of Rashi. Perhaps he understands that the statement of rashi - אפילו עלתה בו סתימה עבה אינה מתקיימת, is referring to the beginning of the healing process. Meaning, even if it begins to scab originally, that seal will not remain forever, therefore we give the animal a status of treifa. Once we give the animal a status of treifa, even once the hole fully heals, it no longer loses it's status since that is considered a closure that occurs later. This approach would seemingly invalidate even a hole in the stomach (since rashi asks from the lung and liver, and doesn't answer that this is a special din of the esophagus, it implies that the principle applies to holes in any organ).

Rav Belsky wrote an article available here being matir all milk. He explains that even if the procedure would render the animal a treifa, it would be mutar, and the suggests that one of the procedures doesn't render the animal a treifa based on many different rationales for this: 1. There are 3 linings to the stomach and the piercing of the needle is not at the same point through each lining. 2. Even if this hole could kill the animal, it would have a din misukenes but not treifa and since the hole is made to heal the animal it doesn't even qualify as a misukenes. There is another procedure which stitches the stomach of the animal to it's side. In this type of stitching there is definitely a how made straight through the stomach. Rav Belsky understands that the correct reading of Rashi is the first approach, that any closure which isn't a permanent fix doesn't work, implying that if it is indeed מתקיימת, it works to remove the status of treifa. The reason why rashi had to come up with the alternate explanation - דטרפות לא מהניא להו סתימה דסלקא בהו לאחר זמן is because it isn't obvious that these closures are permanent, but since they are there from the very beginning and remain there, they are considered closures. He then suggests that even if we take the stricter approach, the type of stitching called toggle bolt, would qualify as the hole being fixed immediately and not as something that only occurs later. He therefore concludes that the process done to milk cows qualifies as a סתימה המתקיימת and as a סתימה מעיקרא. He also elaborates to argue with the concept that a treifa cannot be fixed, that it is a rule that is contradicted from the gemara 68b. The gemara on 68b actually uses the term כיון שנטרפה שוב אין לה היתר, but Rav Belsky explains that it doesn't mean to say that every treifa, once it is assur can never be fixed. The gemara on 54 explains that any problem that can be fixed with medicine isn't part of the list of 18 treifos - this clearly implies that treifos can be fixed. Therefore, the gemara on 68b also means to say that the definition of treifa is a problem that can't be fixed. If it is possible to fix the problem, it no longer qualifies as a treifa. Even though the ability to keep an animal that has one of the 18 treifos alive wouldn't remove the status of treifa, the ability to fix the actual problem so that the hole is no longer present, Rav Belsky holds would help to remove the status of treifa.

Chulin 39b - Shlichus for a Goy

The gemara tells of arabs who gave money to purchase a part of an animal that was to be shechted by a jew and questions whether there is concern that the arabs intent to have his share shechted for avoda zara would invalidate the entire animal. The gemara says that if the arab is strong in the sense that the Jew cannot break away from him, then the animal is assur, but if the Jew is able to break away from him it is mutar. Rashi explains that if the Jew is able to break away from the arab then - אינו נעשה שלוחו על כרחו, the Jew doesn't become an automatic agent of the goy to assur the animal, but if the Jew is is unable to break away, he serves as an agent for the goy to assur the animal. Rashi seems to understand that the concept raised by the gemara of זה מחשב וזה עובד works as shlichus meaning that the shochet serves as the shliach of the owner as if the owner himself were actually shechting for avoda zara. The Maharatz Chiyus raises a question that the concept of "shlichus" between a jew and a goy doesn't exist. The gemara in Baba Metzia 71b derives from a pasuk that there cannot be any shlichus between a Jew and a Goy in either direction. Based on this, how can we apply the concept of shlichus to make the animal assur?

Rashi in Baba Metzia concludes that we do consider their to be shlichus between a Jew and a Goy l'chumra. This helps to explain Rashi in Shabbos 153a. Rashi explains the gemara's question as to how a Jew could give his money to a goy to carry as shabbos is beginning, that it should be assur because the goy is serving as his shaliach. Rashi seems to understand that the concept of amira l'nachri is based on the goy serving as the shaliach of the Jew. The Shulchan Aruch HaRav articulates this point clearly:

הגר"ז בס' רמג ס"א וז"ל אסרו חכמים לומר לנכרי לעשות לנו מלאכה בשבת וכו' שכשהנכרי עושה בשבת הוא עושה בשליחות הישראל ואע"פ שאין אומרים שלוחו של אדם כמותו מה"ת אלא בישראל הנעשה שליח לישראל וכו' אבל הנכרי אינו בתורת שליחות מה"ת, מ"מ מדברי סופרים יש שליחות לנכרי לחומרא עכ"ל

Therefore, it is possible that in our context also, Rashi will hold that m'drabonon we are machmir to consider the Jew a shliach of the goy, whenever the Jew doesn't have the ability to break away from the goy. In truth, Tosafos also writes that the issur on the animal when the Jew can't get away from the goy would only be m'drabonon (but Tosafos seems to say that it is only d'rabonon because there is something lacking in the s'michas da'as). It seems that Rashi would hold that the entire issur on an animal shechted by a Jew when the Non-Jewish owner had intent for avoda zara would work through shelichus and would only be assur m'drabonon. Another possibility is that when money exchanges hands we could consider a goy to be a shliach of the Jew or a Jew to be a shliach of the goy. This is the sevara of the machaneh ephraim in the context of a goy building a ma'akeh for a Jew and allowing a Jew to make a bracha - יד פועל כיד בעל הבית דמי. Therefore, in our case where the Jew accepted money from the goy and cannot break away, even m'doraysa he may be his shaliach.

The Rashash explains the concept of an איניש אלמא who the Jew cannot break away from based on the Rambam in Hilchos Chometz U'matza (4:4) that when the Goy will be able to force the Jew to take responsibility for the chometz, the Jew is obligated to be destroy it before pesach as if he willfully accepted responsibility. Here too, since the goy can force the Jew to maintain the partnership in the animal and prevent the Jew from breaking away, the machshava of the goy qualifies to assur the animal.

Chulin 39a - Pigul: Machshava or Dibur?

The Rosh (Hilchos sefer Torah 3) quotes Rabbeinu Baruch as holding that pigul can only be violated if it is done with dibur, meaning that one articulates the pigul, but machshava alone doesn't create pigul. The Rambam (Pesulei Hamukdashin 18:1) disagrees and holds that pigul can be violated by the mere thought of chutz l'zmano. In our gemara we are trying to find a case where something would be a violation of pigul by kodshim but not a violation of a machshava of avoda zara by chulin. The gemara says that if machshava of avoda zara wouldn't invalidate the animal by chulin, then what would be a case where one does shechita for avoda zara. Tosafos says that if pigul can b e violated through machshava (Rambam), then we have a simple case where pigul is a problem by kodshim but machshava for avoda zara wouldn't be a problem by chulin - because machshava for avoda zara without dibur wouldn't invalidate the animal, but with dibur it would. Tosafos seems to be uncertain whether pigul requires machshava or dibur.

In Baba Metzia 43b Tosafos seems to assume like the Rosh that pigul needs dibur, whereas the gemara in gittin 53a seems to hold that one does require dibur by comparing pigul to hezek sh'eino nikar, yet distinguishes between hezek sh'eino nikar and pesulim of machshava.

The Rashash on 39b writes that if we require dibur for pigul, then we should also require dibur when one shechts chulin for avoda zara, otherwise the kal v'chomer of R. Yossi doesn't make sense because there would be a pircha that pigul is only violated with dibur. The Rashash points out that the gemara seems to understand that shechita for avoda zara wouldn't require dibur because we apply the concept of הוכיח סופו על תחילתו, meaning that machshava afterward reflects on the shechita. This would only make sense if it is a p'sul of machshava but doesn't make sense if it is a p'sul of dibur. Therefore, it should follow that pigul can be violated even with machshava.

To be explain the opinion of the Rosh, it seems that the concept of dibur by pigul isn't a din of dibur similar to kriash shema and kiddush, rather it is a din to have a machshava with a gemiras da'as that is only achieved through dibur. The function of the dibur is to be me'galeh that there was a clear machshava. Therefore, even according to the Rosh that dibur is necessary, the concept of הוכיח סופו על תחילתו would still make sense since the core p'sul is a p'sul of machshava, and the dibur is only a verification of that machshava. A similar sevara can be used to explain the function of dibur in sefiras ha'omer and when making a neder.

Chulin 37b - Eating From What a Chacham Was Matir

The gemara says that one of the chumros that Yechezkel kept was that he never ate from an animal that a chacham was matir. This is paskened in the Rama 116:7 that an animal that a chacham was matir based on sevara but the din is not explicit that it is permitted, a ba'al nefesh should be machmir not to eat it. The difficulty with the Rama is that the gemara is trying to find chumros that were kept by Yechezkel but weren't necessary to be kept by others. The gemara even proves from the fact that Yechezkel didn't eat an animal that was a misukenes, that it must be permitted for everyone else. It is possible that the Rama is encouraging anyone who wants to be a ba'al nefesh to keep the chumros of Yechezkel, but it still seems strange that a ba'al nefesh should have to keep the chumros of Yechezkel.

The Pischei Teshuva (10) quotes a chumra of not relying on bitul in 60 times as much, and asks that the Rama clearly says that such a chumra can only exist if a chacham is matir something with sevara, but wouldn't apply to an explicit din. The Pischei Teshuva explains that even bitul in 60x is not required that a ba'al nefesh be machmir but if he wants to it would be considered a mitzvah. He then quotes in the name of the Toras Ha'asham that one who wants to be machmir on something that we don't find the amora'im were machmir about is considered an apikores and his loss outweighs his gain.

According to the Rama it seems clear that even Yechezkel wasn't machmir about a din that is explicit. The Rama seems to understand that the case where Yechezkel was machmir is when a chacham had to be meikel based on sevara, and therefore suggests that every ba'al nefesh do the same. However, Rashi writes that Yechezkel didn't eat from any animal that was ever brought as a question to a chacham. This implies that even if the din was explicit, since the chacham had to be asked about it, he wouldn't eat from it. It seems to me that according to Rashi the only room for such a chumra is a form of ma'aras ayin. Since people saw that a shayla was asked on this animal, Yechezkel didn't want to give even the slightest impression that he was eating from something that wasn't 100% kosher. But it doesn't seem that there should be an inherent advantage to abstain from something that a chacham who is fit to pasken, was matir. The Torah gave the authority to the chachamim to pasken even using their shikul hada'as.

Chulin 33a - Chatzi shiur for a goy

The gemara raises the concept of מי איכא מידי דלישראל שרי ולעכו"ם אסור, meaning that goyim can't be frummer than jew - if it's assur for a goy, it has to be assur for a jew. Tosafos raises various questions and exceptions to this rule. Tosafos writes that anything which is a mitzvah for a Jew can be an issur for a goy, such as shabbos and studying Torah are assur for a goy. The rationale is that since the entire concept of it being assur to a goy stems from the fact that it is a mitzvah unique to Jews, it doesn't break the rule of מי איכא מידי וכו. At the end of Tosafos, they write:

אע"ג דעובד כוכבים אסור במשהו בשר וגידים ועצם, וישראל לא מיתסר אלא בכזית בשר, הא אמר ריו"ח דחצי שיעור אסור מה"ת

Tosafos seems to imply that there is no concept of a shiur when it comes to a goy, so whether they eat more than a kezayis or less than a kezayis, it is all the same issur (even though by Jews it is more chamur to eat a kezayis, but since there is an issur of chatzi shiur it doesn't violate the מי איכא מידי concept). This seems to support the idea that shiurim are a halacha l'moshe misinai that was said to Jews and not to goyim. However, the Pri Megadin understands from Tosafos that by goyim even the gidim and bones combine with the meat to create a shiur of a kezayis, but the requirement of a kezayis to violate applies to a goy as well. The language of Tosafos where he contrasts that a Jew is forbidden to eat a kezayis of meat, implies that by a goy the bones combine to create a kezayis. However, the Rambam (9:10) writes explicietly that shiurim were only given to Jews, but Goyim are in violation for even eating the smallest amount of eiver min ha'chai.

Chulin 30b - P'sul of Chalada

The gemara Chulin 20b says that the p'sul of חלדה is similar to a weasel that lives in the holes of houses which is often hidden. There seems to be a machlokes in the gemara there whether it is necessary for the beis ha'shechita to be opened so that the part of the knife that is cutting is visible, or whether it is sufficient for part of the knife to be visible as it is cutting (see rashi d.h. הא מיגליא). Nevertheless, there is a din that the knife cannot be hidden underneath something at the time of the shechita. The gemara asks a series of questions according to Rav who says that even if the knife is hidden underneath the skin of the animal it is a problem, what is the din if it is under a cloth, or under the tangled wool. Rashi explains that even if the skin of the animal creates a problem, that is because it is at least part of the animal, but a foreign object such as a cloth may not be a problem. According to Rashi it isn't clear what the question would be regarding the tangled wool - shouldn't that be exactly like the skin of the animal? the Ran explains that the tangled wool isn't part of the animal, therefore even if a cloth would be a problem, the tangled wool would be less connected to the animal and may not be a problem. However, the Rosh seems to understand that the tangled wool is part of the animal that is going to be sheared - the question is that if skin is a problem, maybe the tangled wool is not a problem, and if the tangled wool is also a problem, the cloth which is a completely foreign object may not be a problem. Either way, the sevara of the Rosh, Ran and Rashi is that the more foreign the object the less likely it is to be a problem of chalada. The Ran and Rosh also seem to agree that even according to the maskana of the gemara leaving with a תיקו that the cloth and wool are indeed a problem, it is only because they are attached or tied onto the animal. However, a cloth that is draped over the animal isn't a problem of chalada.

The Rambam (3:10) concludes from the gemara that even if one spreads a cloth over the knife and the animals neck it is considered chalada - הואיל ואין הסכין גלויה הרי זו ספק נבלה. The Rambam seems to hold that chalada is a din that during the act of shechita the knife must be visible so that anything blocking the knife, even if not attached to the animal could constitute a problem of chalada.

The Mishna L'melech references Rashi in Bechoros 24b. The mishna that says when one is shechting a b'chor they are allowed to detach hair to make a place for the knife and it isn't considered a violation of shearing a b'chor. Rashi explains that the reason it is necessary to make a space for the knife is to avoid chalada. Tosafos asks on Rashi that it can't be for a halachic reason, rather a practical one, because the gemara leaves with a תיקו whether tangled hair creates a problem of chalada - if Rashi is correct that the mishna requires cutting the hair to avoid chalada, the gemara should have proven from the mishna in bechoros that it is a problem. Perhaps Rashi would say that the proof from the mishna isn't muchrach since the peshat could be like tosafos that it was cleared for practical reasons. However, since we pasken that we have to be machmir about chalada by tangled hair due to the teiku that the gemara leaves with, rashi explains the mishna by bechor that one would actually be required to cut the hair to avoid chalada.

Chulin 24b - נשיאת כפים

The gemara says that a kohein can only go up to du'chan when he is old enough to have a beard. Tosafos asks from the gemara in megila which implies that as soon has one is no longer a katan he can du'chan, and from a gemara in succah which implies that even a katan can duchan. Tosafos concludes that there are 3 distinctions. When he is only enough to have a beard he can duchan alone even b'kvius. When he has 2 sa'aros and is no longer a katan he can du'chan alone but not b'kvius. But as a katan he cannot duchan alone. These 3 categories are paskened in Shulchan Aruch 128:34.

It isn't clear whether a katan can du'chan with others even b'kvius. The Biur Halacha cites the O'las Tamid that so long as he is duchaning with other kohanim, a katan can even do so b'kvius, and deduces this from the language of the Shulchan Aruch. The Biur Halacha also writes that in the absence of another kohein, one can appoint a person who is a gadol but isn't old enough to have a beard, even as the established kohein. The rationale would be that technically once he is a gadol he is old enough to du'chan, just that we don't allow him to do it b'kvius due to kavod tzibur, so when there is no other kohein we assume that the tzibur is mochel.

It would seem that a katan is not able to du'chan even m'doraysa just like avoda where the gemara learns out from pesukim that a katan is pasul for avodah. If this is true it would make sense why even if the tzibur is mochel, it would not help to have a katan duchan alone. The only purpose of a katan duchaning would be chinuch as the Shulchan Aruch seems to say. However, Rashi in Megila 24a which is quoted in M.B. 122 writes that the reason a katan can't duchan alone is due to kavod hatzibur. This implies that m'doraysa even a katan can duchan. Therefore it is hard to understand why the olas tamid is only matir a gadol who doesn't have a beard to duchan in the absence of another kohein since we assume the tzibur is mochel, but wouldn't allow a katan to duchan. Since both one who is not ממלא זקנו and a kattan are only not allowed to duchan due to kavod tzibur, we should assume that the tzibbur is mochel when there is no one else?

Perhaps the peshat is that a kattan's ducaning is invalid m'doraysa just like he is pasul for avoda. However, for the purpose of being mechaneich him we should allow him to du'chan as we are mechaneich children for everything. Rashi just means to say that for the kavod tzibur we aren't mechaneich children to duchan. But ultimately, even if a katan would duchan, it would not count. Therefore, the mechila of the tzibbur only helps for a gadol who isn't ממלא זקנו but doesn't help for a katan.

Tosafos (here and more so in succah 42a) implies that ta'aniyos are considered k'vius. Therefore it should come out that one who is not ממלא זקנו cannot duchan alone on taniyos and on yom kippur. The Biur Halacha doesn't understand why the poskim don't mention this.

Chulin 22b - Excluding a safeik

Apologies for not blogging for almost 2 weeks. I am in Jerusalem training to be a mohel by Moishele Weissberg and have been very busy.

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The gemara says that there in the development of birds there is a stage where the feathers begin begin to get yellow but aren't yet golden which is excluded by the pasuk because it is too old to qualify as bnei yona, but too young to qualify as torim. The gemara asks whether we consider the birds at that stage to have a separate status and would therefore not qualify as being part of either group, or whether it is a safeik so it cannot be sacrificed as torim because it may be too young, and cannnot be sacrificed as b'nei yona because it may be too old. According to this second approach that it is actually one or the other, just that we have no way to determine, Tosafos points out that if the kohein would sacrifice both, it would certainly be effective to fulfill the persons neder (although the other would be a violation of chulin b'azara). The gemara responds that this second option is not possible because if it is a safeik, "would we need a pasuk to exclude a safeik!" The Turei Even in Chagiga points out that it would seem that this is a proof to the concept that safeik d'oraysa is l'kula on a Torah level, because if the Torah would demand being machmir for a safeik, it would make sense that we would need a pasuk to exclude the safeik. However, this proof can be easily pushed off based on the interpretation of what the gemara means to say that we don't need a pasuk to exclude a safeik. Tosafos explains that in our gemara, the explanation could simply be that it wouldn't make sense that the Torah would exclude it mi'safeik. Meaning, that it is entirely possible that we would need a pasuk to exclude a safeik case and say that it is definitely not included, but here the gemara is suggesting that even after it is excluded by the pasuk it remains a safeik. Therefore, the gemara responds that we never find that a pasuk would exclude something and have it remain a safeik even after being excluded.

Tosafos points out that this approach although it would work in our sugya, wouldn't work in various other places where the gemara uses the same phrase. Therefore, Tosafos suggests that there are different types of sfei'kos. When the safeik is based on the metzius of the object, such as a tumtum where we don't know if he is male or female, but each one is different, the pasuk could exclude a safeik. However, when the safeik is a safeik in din such as an androginus where they are all the same, just that we don't know what the din is on such a person, the pasuk wouldn't exlcude a safeik. The rationale for this distinction is that the pasuk may come and tell me what to do in a situation that I can't clarify the facts, but when there is a safeik in din, the Torah wouldn't ever deal with that as a safeik since the Torah doesn't have a safeik in din - קמי שמיא גליא אם הם קטנים או גדולים וכו הלכך לא אתא גרא למעוטי מטעם שהם ספק שאינו ספקא קמי שמיא

According to both of these approaches, there would be no proof at all to the concept of safeik d'oraysa because the gemara is not saying that we don't need a pasuk to exclude a safeik d'oraysa, Rather, the gemara is saying that although we may need a pasuk to exclude a safeik d'oraysa, that cannot be what the Torah is doing. However, Rashi seems to use the language of Tosafos - מי איכא ספקא קמי קודשא בריך הוא, but ends with a strange phrase - וכיון דלא פשיטא לן לא הא ולא הא, מהיכא תיסק אדעתין לאכשורינהו. This seems to indicate that since the Torah isn't dealing with the safeik and isn't including them into either category, we are forced to exclude them from both categories mi'safeik. This would seem to imply the opposite of the Turei Even's suggestion and that since the Torah doesn't include them, we are forced to exclude them mi'safeik, which would indicate ספק דאורייתא לחומרא.

Chulin 11b - Relying on Rov for Treifa

The gemara goes through a lengthy discussion to prove that we rely on rov (majority), ultimately trying to prove this from shechita itself where we aren't concerned that there was a hole in the esophagus on the exact spot that the shechting took place. The gemara rejects this proof (and the other proofs) by suggesting that wherever possible we don't rely on rov, but when there is no choice we do rely on it. It then proves this from Rebbi Meir who would be concerned even for a minority, so how was he able to eat any meat - clearly when impossible he relied on rov and wasn't concerned for the minority, we too rely on rov when there is no alternative. According to the simple conclusion of the gemara it should be necessary to examine every animal for all 18 possible treifos, since wherever possible we cannot rely on rov. However, Rashi twists the gemara at the very end to have an opposite conclusion. Since following the sources suggested in the gemara for relying on rov we would not be able to rely on rov when it is possible to check, rashi says that it must be that the source for relying on rov is a הלכה למשה מסיני (or from the simple reading of the pasuk - אחרי רבים להטות without exception), and would apply under all circumstances. Therefore, even when it is possible to check, one would not need to check. Although the simple reading of the gemara doesn't yield this conclusion, it seems that the practice of eating meat without checking for all treifos led rashi to interpret the gemara differently and say that one would never need to check for treifos (except for the lungs where they are very common).

Tosafos holds that Rebbi Meir's opinion of being concerned for the minority is only a stringency of the Rabbonon. On a Torah level even R. Meir would follow majority, just that m'drabonon he is concerned for the minority (there is a Mordechai who argues on this Tosafos). According to this approach, Tosafos explains that we are proving from R. Meir that since following the minority is only d'rabonon, they were only go'zer when possible, therefore the Rabbonon who hold that we don't follow majority when possible to check, would also agree that since it is only a chumra m'drabonon, when checking isn't possible we rely on the Rov. According to this approach, on a Torah level one can rely on the Rov even when possible to check, and the requirement to check would only be rabbinic. Therefore, the gemara cannot conclude as Rashi suggests that we have a halacha l'moshe misinai allowing us to rely on rov even when possible to check, because the entire obligation to check when possible is rabbinic. Therefore, according to Tosafos the conclusion of the gemara should be that m'drabonon one is responsible to check after all 18 treifos and not rely on the majority.

Chulin 10b - Eid Echad Ne'eman B'issurin

Rashi says that the source for eid echad being trusted for issurim is the pasuk that speaks of an individual shechting a korban, and all the kohanim eating from the shechita. Since we don't find that the pasuk requires there to be witnesses watching the shechita, we see that the shochet himself who is the eid echad is believed. Tosafos in Gittin 2b writes that the source of an eid echad being believed is the pasuk of וספרה לה by a woman who is a zava - she checks herself and her husband trusts her.

Rashi in Yevamos 88a writes that if an individual says that he knows that a piece of meat is שומן and not חלב he is trusted - דאי לאו הכי, אין לך אדם אוכל משל חברו, ואיןלך אדם סומך על בני ביתו. If we didn't allow the concept of eid echad, no person would be able to eat in their own home. This Rashi is usually quoted to be arguing on Tosafos and holding that the source of eid echad is merely a sevara, since otherwise it would be impossible to function normally. However, in light of Rashi in chulin who also cites a pasuk in the context of shechita, it seems that rashi in Yevamos isn't claiming to cite a source, rather proving that it must be true that we rely on an eid echad.

There is a very interesting Hagahos Ashri (Rosh 14) who writes that an eid echad isn't believed when there is a chezkas issur, but this is only if he is the class of people who are אנשים ריקים ופוחזים. Meaning, the same level of witnesses who the Torah believes if they are two, which includes even empty people who aren't at all learned, are not believed as individuals when there is a chezkas issur. But one who is kasher is believed even against a chazaka. According to the hagahos ashri, in a situation of chezkas issur, there are two classes of Jews, the lower of which isn't trusted unless they testify as a group of 2 witnesses.

Chulin 9a - Talmid Chacham Must be an expert in practical matters

R. Yehuda says in the name of Rav that a T.C. is obligated to learn 3 things, writing, shechita and milah. Rashi explains that writing simply means that he must be able to sign his name for an eidus. Shechita means that he must know how to maneuver his hand to shecht properly and not just know the halachos (and the same for tying the knot of the tefillin). The Maharsha explains that a person has an obligation to learn and know the entire Torah, so Rashi is trying to emphasize the practical aspect of it - knowing the halachos of shechita isn't sufficient, rather one must be able to be מאמן ידו and do the shechita.

R. Chanina Bar Shalmei adds the knot of the tefillin, birchas chasanim and tzitzis. The gemara asks why the first opinion doesn't list those three and says - הני שכיחן. Rashi explains that since tefillin, birchas chasanim and tzitzis are common, everyone will automatically become an expert in them by osmosis without having to invest effort into learning how to do them. Rabbeinu Gershom offers a slightly different approach - since they are so common it is easy to find others who can do them. According to Rabbeinu Gershom, we have a justification nowadays for why we aren't obligated to become an expert in any of the 6 items. Since it is common to find people who are able to do these things (even the first 3), it is no longer necessary to make such an effort to be able to do them.

Tosafos seems to understand the gemara's comment of הני שכיחן like Rabbeinu Gershom. Tosafos equates this with what the gemara says that tefillin in the house of bar chavu are משכח שכיחי. Tosafos understands from here that since there are experts around who can do it, it is not essential that everyone else learn how to do it. The implication is that not everyone will know how to tie the knot of tefillin, but when needed one will be able to find someone to do it. From this Tosafos proves that the knot of the tefillin doesn't need to be retied every day as suggested by Rabbeinu Eliyahu, rather the requirement of וקשרתם just means that we must tighten it on our heads as Rabbeinu Tam explains. From the understanding of Rabbeinu Tam that the definition of וקשרתם is to tighten the strap around the head, it is imperative that it be tight and not loose since that is the definition of the mitzvah.

To respond to the proof of Tosafos, Rabbeinu Eliyahu may interpret the gemara of הני שכיחן like Rashi, which would mean that everyone will automatically become an expert since it is necessary to do every single day. According to Rabbeinu Eliyahu one wouldn't need to learn to be an expert in something that is routine and he would be doing every single day from the time he is 13.

Chulin 5a - Mumar to be Mechalel Shabbos and Non-religious Nowadays

The gemara says that we don't accept a korban from a mumar for avoda zara or a mumar who violates shabbos publicly, but we do accept from a mumar who violates another aveira. From this the poskim derive that one who violates shabbos publicly has a reduced status in halacha, and for many things is considered like a goy. His shechita is passul, he can't be counted as a minyan, one cannot cook for him on yom tov.... Rashi explains:

דהעובד עבודת כוכבים כופר בהקב"ה, והמחלל שבת כופר במעשיו ומעיד שקר שלא שבת הקב"ה במעשה בראשית

Rashi understands that the violation of shabbos is more fundamental than mila, kashrus and other issurim in the Torah because it is a denial of G-d creating the world. However, Rashi doesn't explain why this is only true when one publicly violates the shabbos, but is not true when one privately violates the shabbos.

R. Moshe (Igros Moshe o.c. 1:33) explains the distinction and with this explains why many people nowadays wouldn't have this status. When one violates shabbos privately we consider this to be לתאבון, but when one violates shabbos publictly he is doing a very open act of rejecting Hashem as the creator who rested on shabbos. Since we aren't able to know what he is thinking, we have to look at his actions to make that determination. A public violation of shabbos indicates a rejection of the creator. Therefore, this distinction only applies when one recognizes the seriousness of shabbos and what it represents, yet makes a conscious decision to violate it publicly. But, when one has no appreciation of shabbos at all, their violation isn't a denial of Hashem and therefore it is tantamount to a private violation that we attribute to his yetzer horah getting the better of him. The Sridei Eish (R. Yechiel Yacov Weinberg) refers to this teshuva of R. Moshe and writes that he agrees with the logic.

Based on this approach many shabbos violators nowadays would have the status of a regular מומר לתאבון even if they violate shabbos publicly. However, the leniency wouldn't extend to those who grew up religious with an appreciation for shabbos and later chose to reject it.

Most non-religious Jews would have the status of מומר לתאבון, as opposed to מומר להכעיס or מומר לחלל שבת בפרהסיאץ. But, they don't have all the advantages of a mumar l'tai'avon. When the gemara speaks of a מומר לתאבון, it speaks about someone who makes decisions before he does aveiros. When he has nothing to gain and no benefit in violating, he will always decide to keep the mitzvos i.e. purchase kosher food. It is only when it is too expensive, too hard to obtain, or doesn't taste as good that he will decide to eat non-kosher. It is for this reason that when we can ascertain that he has nothing to gain by doing something wrong, he will do it right. But, for the most part, nowadays people who aren't religious, don't make any decisions at all. Meaning, they categorize themselves as "I don't keep kosher" or "I am reformed so I drive on Shabbos". Since they don't make any decisions or make any attempt to do what is right, they wouldn't be trusted to do something properly, even when there would be no gain to do it improperly. Even Rava who says that we don't say כיון דדש בה כהתירה דמי ליה - these people are כהתירא דמי ליה, where we no longer have the assumption of לא שביק התירא ואכיל איסורא.

Chulin 4a - Yotzei V'nichnas

In Avoda Zara 12a, I mentioned Tosafos who says that the concept behind yotzei v'nichnas being effective is not that a spot check is good enough. Rather, the concept of יוצא ונכנס is that he creates fear on the goy who is constantly concerned that the mashgiach will show up unannounced and catch him red handed - נתפס עליו כגנב. Therefore, it is only effective in a situation where the goy has what to lose if he gets caught, and when there is a real concern that the mashgiach can and will show up an any moment.

The Cheshek Shlomo points out that the gemara in chulin 4a seems to echo this idea. The gemara says that according to Rava that yotzei v'nichnas is effective, why would the braisa speak about ישראל עומד על גביו, rather than speaking about the bigger chiddush of yotzei v'nichnas. The gemara explains - אמר לך יוצא ונכנס נמי כעובד על גביו דמי, meaning that it is the same. However, this doesn't seem to answer the gemara's question - it would still be a bigger chiddush to say that יוצא ונכנס works? The Cheshek Shlomo explains that the braisa is actually saying a big chiddush according to Rava. It is true that yotzei v'nichnas works, but one may think that it works as a spot check to allow us to assume that if now he didn't mess up now, he wouldn't have messed up at other times. By the braisa equating yotzei v'nichnas to ישראל עומד על גביו it is esentially teaching us that יוצא ונכנס works through the same method of someone being there constantly, since it creates a fear of someone walking in at any moment.

With this we can understand why Abaye disagreed with Rava and held that יוצא ונכנס doesn't work for shechita, even though it works everywhere else. The gemara seems to make a very superficial distinction between the case of the wine where the goy is in the store but not supposed to be touching it, and the case of shechita where he is actually touching it. Rashi 3b offers a deeper understanding to that distinction. Rashi explains that the reason shechita is different is that the animal is in his hand and כהרף עין שוהה או דורס - he can instantaneously with the twist of the wrist mess up the entire shechita. Since he can do so within a split second there is no longer the fear of getting caught which undermines the entire concept of יוצא ונכנס.

Chulin 3b - Mumar L'hachis

Rava says that a mumar l'tei'avon which is someone who will only eat issur when there is no other kosher option is allowed to do shechita, just not allowed to check the knife (since he isn't believed to do things that require very much effort). The clear implication of Rava's statement is that a mumar l'hach'is, meaning one who ignores the kosher option and opts for the non-kosher food, his shechita is invalid even bidi'eved. However, it isn't clear why we invalidate his shechita. Rashi (d.h. chutz) writes - אבל להכעיס אפילו נמצאת סכינו יפה לא, דמועד לנבל בכוונה בידים. Rashi understands that we are concerned that he will intentionally mess up in the shechita and we therefore treat his shechita as a neveila. According to Rashi he is not inherently invalid, we are just concerned for intentionally botching the shechita. It should follow that if someone was watching the mumar l'hach'is carefully and determines that he didn't violate any of the 5 halachos of shechita, it would be valid. However, Tosafos d.h. kasavar, writes that the same source that we use to exclude a goy from shechita, וזבחת, from which we learn you need to be a בר זביחה, we exclude a mumar l'hach'is. Tosafos understands that to qualify as a bar zevicha you need to be someone who believes in the importance of shechita, therefore a goy and a mumar l'hachis who completely disregard the process of shechita are passul. According to Tosafos this is an inherent p'sul and therefore a mashgiach standing over him wouldn't help, just like it wouldn't help for a goy. The Shach (2:16) understands that this is a d'oraysa exclusion, and the product is a neveila d'oraysa. The Rambam has a similar approach to Tosafos that we equate a mumar l'hach'is to a goy, but is somewhat different. According to the Rambam we learn from the pasuk of ואכלת מזבחו to exclude a goy, and include a mumar l'hachis who has status of a goy. According to the Rambam the pasuk which declares the shechita to be treif is in the context of a goy, but we equate a mumar l'hachis based on the rule that a mumar has status of a goy. Whereas according to Tosafos, the pasuk doesn't speak about a goy, rather about one who is not a בר זביחה which incorporates both a goy and mumar equally. The difference between then is whether the equating of a mumar to a goy in this context relies on a general principal that a mumar is like a goy (rambam) or just happens to be that they are both excluded for the same reason which is not believing in the rules of shechita. - see page 15 of the pdf sefer on shechita that i linked to yesterday.