Wednesday, July 27, 2011

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.

Monday, July 25, 2011

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.

Monday, July 18, 2011

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.

Saturday, July 16, 2011

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.
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.

Wednesday, July 06, 2011

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.

Tuesday, July 05, 2011

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.

Monday, July 04, 2011

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.