Siman 497

We learned at the beginning of the third chapter: One may not catch fish from ponds on Yom Tov. That is to say: it is not only necessary to state this regarding catching from a river, but even when they are already gathered in a pond, which are pools of water (Rashi) where fish are collected (Aruch), and from there they cannot escape—nevertheless, it constitutes tzida, and is forbidden on Yom Tov. And as we explained above in siman 316, section 5, it is the opinion of the Tosafot that anywhere it is still called "lacking tzida"—one is liable from the Torah for catching from there, see there. And so too in this pond, they slip away here and there, and therefore one who catches from there is liable. And so it is explained in Rashi and Tosafot that the reason one may not catch is because of the prohibition of tzida according to the simple meaning of the language, see there.

And behold, there we explained that from the words of the Rambam there, it appears that trapping fish in a pond—there is no Torah prohibition of trapping in this on Shabbat, see there. And according to this, even on Yom Tov there is no rabbinic prohibition of trapping according to the approach of the Rambam, for from the Torah all labor for food preparation is permitted, as I wrote in siman 495. And the truth is so, for it is thus explained from the words of the Rambam in chapter two of Yom Tov, law 7, that this matter of "one may not trap" is not because of the prohibition of trapping, but rather because of muktzeh. This is the wording of the Rambam: Fish that are in large enclosures, and similarly a wild animal or a bird that are in large enclosures, any that lack trapping to the extent that they say "bring a net and we shall trap it"—behold, this is muktzeh, and one may not trap them on Yom Tov. And if he trapped—they shall not be eaten. And any that do not require a net—behold, this is prepared, and one may trap them on Yom Tov, and eat. Thus far his words; behold, it is explicitly explained that the reason one may not trap is because of muktzeh. And so wrote the Rambam in the Commentary on the Mishnah, that any that lacks trapping is muktzeh, see there. (And I wonder at the commentators who did not speak of this at all.)

And ostensibly, according to the words of the Rambam, since the reason is because of muktzeh, if so, if he brought them in from the eve of the Yom Tov and said, "I am taking this one and that one tomorrow"—it should be permitted, as with pigeons of a dovecote and pigeons of an attic, as will be explained. But it does not imply so. And the truth is this: regarding fish, since they still lack hunting in a large vivarium—it is impossible for him to prepare them, for who knows if these specific ones will come into his hand. This is not the case with pigeons, where it is within his power to take what he desires—his statement is effective. And conversely, whenever they do not lack hunting, such as when the vivarium is small—they are permitted even without a statement from the eve of the Yom Tov, "I am taking this one and that one tomorrow." And it is not similar to pigeons, which he removed from his mind. But fish, since he brought them in from the eve of the Yom Tov to a place where they do not lack hunting—this is their preparation, and they all stand prepared.

And know that the Rambam equated the law of fish to the law of beasts and birds, and in both cases, when they lack capture—they are forbidden, and when they do not lack capture—they are permitted. And even though the Mishnah shows that the first Tanna distinguishes between fish and beasts and birds, he maintains that the halakha is not like him, but rather like Rabbi Shimon ben Gamliel who says there: Not all enclosures are equal; that which lacks capture—is forbidden, and that which does not lack capture—is permitted. For the halakha was decided in the Gemara like Rabbi Shimon ben Gamliel, see there. But this is not the opinion of the poskim, for they maintain that Rabbi Shimon ben Gamliel only refers to beasts and birds, and regarding them there is a distinction between lacking capture and not lacking capture. But regarding fish it is completely forbidden, for reasons that will be explained. And this is what the Ra'avad challenged there, see there. And such is the opinion of the Tur, as will be explained with the help of Heaven.

This is the wording of the Tur: One may not hunt fish from ponds…, and all other beasts and birds, and anything that is lacking capture such that one must say "bring a net and we shall catch it" – it is forbidden to hunt them… Thus far his words. Behold, regarding fish, even when they are not lacking capture – it is forbidden. Some say the reason is because they are covered by water and slip here and there, therefore they are always lacking capture (see Taz). And some say the reason is that since they are covered from the eye – they are muktzeh (Taz subsection 1), for he certainly did not prepare them.

And there is a practical halachic difference between the reasons, specifically in large places where they place the fish in a large crate that is on the surface of the water, and the crate is open to the water through many small openings. For according to the first reason—they are forbidden, for behold the crate is large and they slip here and there (Bach). But according to the second reason regarding muktzeh, behold they prepared them while it was still day by placing them into the crate—and therefore it is permitted to take them on Yom Tov (Taz ibid., and so wrote the Yam Shel Shlomo at the beginning of the third chapter).

And behold, in the Gemara (25a) we say: One who dams a water channel on the eve of a Yom Tov, and the next day he rose early and found fish in it – they are permitted. Rashi explained: That he closed it so that fish would not enter it after dark, and it follows that the fish found in it when he rose early were in it from the eve of Yom Tov, and these he prepared while it was still day and designated through this act (Rashi). And according to the second reason it is well, for behold he prepared them and there is no muktzeh here. But according to the first reason, why are they permitted? Are they not hidden from the eye? And they answered: That it is a small water channel, and therefore even though they are hidden from the eye, nevertheless they do not slip away here and there. This is not the case with a vivarium, for even though it does not lack tzeidah – nevertheless it is still large, and they slip away here and there. Therefore they are called "lacking tzeidah," which is not the case with a water channel.

And this is the opinion of our teacher, the Rema. For in section 1, regarding "one may not catch fish from ponds," he wrote: even in a place where they do not lack catching, because the pond is very wide, and the fish escape here and there. Thus far his words. And in section 5, regarding the law "if one dammed a water channel at the entrance and the exit on the eve of Yom Tov – it is permitted to take fish from it on Yom Tov, for it is as if they are already caught," he wrote regarding this: since the water channel is narrow, and they cannot escape. Thus far his words. Behold, the primary matter depends on this: that if it is a wide place, it is called "lacking catching," and if it is not a wide place, it is not called "lacking catching." And one should not say that if so, how did he say previously two contradictory things: that they do not lack catching because the pond is wide, and if it is wide, behold it is lacking catching? For this is the explanation: that regarding the essential law of catching – it is not called lacking catching, since it is impossible for it to exit from here. Nevertheless, regarding Yom Tov, even though it does not lack catching, nevertheless it is still very wide and they escape here and there. And its law is like one that lacks catching, which is not the case in a water channel.

And according to this, it also depends on the boxes that are upon the water: if they are very wide, it is forbidden to take from them on Yom Tov. And if they are narrow, like a water channel whose width is about an amah, it is permitted to take from them on Yom Tov. And it seems that in large places they practice permissively to take from them on Yom Tov, even from very wide boxes. And they rely on the second reason in section 5, for according to this reason it is permitted to take them on Yom Tov even from a wide box, as I wrote in section 6. And also according to the opinion of our teacher, the Rema, there is a basis for permission, because there is one who says that if the water is clear and one sees the fish, it is permitted to take from them on Yom Tov (Magen Avraham, subsection 1). And even though in my humble opinion this is only according to the second reason and not the first reason, nevertheless, for the sake of the joy of Yom Tov, it can be said that even according to the first reason, since one sees them, they are not called "lacking capture." And in our boxes, the water is indeed clear and they are visible. (And it requires further study regarding the Tur, who omitted this matter of damming a water channel. See there.)

And regarding birds, the law is as follows: geese, chickens, and pigeons that are in the house or in the courtyard that are designated for eating (for those designated to raise eggs are indeed muktzeh), and since they are designated for eating—the prohibition of tzida does not apply to them; for they are domesticated, and are as if they are already caught. Also, the prohibition of hachana does not apply to them, for they are prepared and ready from before the day, and one may take whichever one he wants from them on Yom Tov and slaughter them. However, for a purpose other than slaughter—he should not take them, as I wrote in siman 316, see there. Nevertheless, they wrote that one who fears God should prepare them from the eve of Yom Tov, and say "this one and this one I shall take tomorrow," so that he does not come to excessive exertion on Yom Tov, by selecting and setting aside, and selecting and setting aside. But when he designates them from the eve of Yom Tov, he will not come to this (Turei Zahav and Magen Avraham subsection 8).

And know that there is one who wishes to say that specifically from a house or a courtyard is it permitted to take the chickens or the geese, but not from the street, due to the prohibition of hunting. But it is not so, for that which the poskim wrote using the language "from a house and a courtyard" – the intention is that they were raised in a house and a courtyard. However, even if they are in the street, since they are accustomed of their own accord to enter their coop in the evening – there is no concern of hunting regarding them, and it is permitted to take them from the street. However, if one purchased them recently, and they are not yet accustomed to enter their coop in the evening – it is certainly forbidden to take them from the street due to the concern of hunting (Magen Avraham subsection 7).

And this is all regarding domestic birds. But other beasts and birds that grow in orchards or in enclosures, whether the enclosure is roofed or not roofed, if the place is so large that they are lacking capture—such that one must say "bring a net and we shall catch it"—it is forbidden to catch them. And whenever they are not lacking capture, it is permitted to catch them. And it seems to me that they require preparation. But those that are lacking capture, preparation does not avail them. Therefore, dovecote pigeons, and attic pigeons, and birds that made nests for themselves in the walls—it is forbidden to catch them, and preparation does not avail them. And even if they come to their cage in the evening, nevertheless their sustenance is not upon you, and they are not considered as prepared. Furthermore: it is their way to slip away and flee from people, and it is not easy to seize them (ibid. subsection 11).

And specifically the large ones that are able to fly, but the small ones that are not able to fly outside their place, but rather walk heavily around the nest and hop—it is permitted to trap them, for they are not subject to the prohibition of trapping. However, they require preparation, for his mind is not upon them from the eve of the festival. And how the preparation is performed will be explained before us in section 17. And similarly, a ram or a deer that nested in an orchard and gave birth there to small fawns, and they do not yet require trapping—they are permitted without preparation if the orchard is near the city within the city's outskirts, which is seventy cubits and a fraction, for presumably his mind is upon them. But far from the city—presumably his mind is not upon them. And the mother, even preparation does not avail for her, as I have written, for anything that is lacking trapping—preparation does not avail for it. (And that which I wrote in the previous section regarding a beast and a bird, that they require preparation because it appears that his mind is not upon them, and also here even within the outskirts if it is known that his mind is not upon them—they require preparation.)

Since it has been explained that anything which requires tzeidah is forbidden, therefore even a doubt regarding tzeidah is forbidden, such as traps for beasts, birds, and fish that were spread from the eve of Yom Tov, and the next day he finds them in them, for we are concerned lest they were trapped at night. And they are not permitted unless it is known that they were trapped from the eve of Yom Tov. And this is their preparation: by the fact that he spread the trap and they were trapped from the eve of Yom Tov. And so too if he found the traps disturbed, such that it is evident that they were disturbed by their entry, we attribute it to this, saying that they certainly entered from the eve of Yom Tov. And if it is difficult: for if so, why did he not see them from the eve of Yom Tov? For it can be said: such as where the trap is large and he saw at one end that they were disturbed, and they were at the other end (see Taz subsection 4).

And there is a question regarding this: Why is a doubt regarding tzida forbidden? Granted, according to those who hold that tzida is forbidden on Yom Tov by Torah law, as I wrote in siman 495, it is well understood, for a doubt regarding a Torah law is ruled stringently. However, according to those who hold there that it is a rabbinic prohibition, is not a doubt regarding a rabbinic law ruled leniently? For it can be said: because it is a matter that will become permitted, and it is forbidden even by rabbinic law. Furthermore, we find several doubts where the sages desired to be stringent. However, in the evening, he does not need to wait the amount of time it takes to perform the labor (Magen Avraham subsection 3). And all this is on the first day of Yom Tov. But on the second day of Yom Tov, a doubt regarding tzida is permitted, as it is a double doubt, since the second day of Yom Tov itself is a doubt. And some forbid it even on the second day of Yom Tov (ibid. subsection 4 in the name of the Yam Shel Shlomo), and so it implies below in siman 515.

The Rambam wrote in the second chapter, law 17: Fish, birds, and wild animals that are muktzeh—one may not water them on Yom Tov, and one may not place food before them, lest he come to take from them. And anything that is forbidden to eat or to use on Yom Tov because it is muktzeh—it is forbidden to move it. Thus far his words. This law is in the Mishnah of "One may not hunt," see there. And seemingly, even on Shabbat one may place food before beasts and wild animals whose sustenance is upon you, whether they are impure or pure. And behold, it is even permitted to toil for them to make it food so that they can eat, as I wrote above in siman 324, and as the Mishnah taught: One may cut up a carcass before dogs. And all the more so on Yom Tov. So why do we not place food before them? Rashi, of blessed memory, explained: Because it is possible for fish to live without this, see there. But the Rambam was not satisfied with this, for the Mishnah concludes: "But one may hunt a wild animal or a bird and place food before them," for it is explicitly explained that the permission for food is only because of the hunting. For this reason, the Rambam explained that the reason is only on Yom Tov, because we fear lest he come to take from them. But regarding an impure beast, this concern is not relevant, and it is permitted to place food before them. And it is possible that even for a pure beast that is muktzeh it is also permitted, for we only fear the concern of hunting. This is the opinion of our teacher, the Beit Yosef, in his great book in siman 498. And there are those who disagree on this (Magen Avraham, subsection 2). And there is one who says that fish, wild animals, and birds that are in enclosures are not called "readily available to man," and it is as if their sustenance is not upon you (Ran, see there). This is according to the opinion of Rashi that we cited. But all other species that are in a person's house and courtyard, whether impure or pure, are called "their sustenance is upon you," and one must feed them on Shabbat and Yom Tov. However, at the end of Beitzah it is explicitly implied that regarding watering them, one may water even those that are not in his house and courtyard, see there (see Magen Avraham, subsection 2).

How is the zimun of the small pigeons that we mentioned in section 13 performed? When one says on the eve of the Yom Tov, "I am taking this one and this one tomorrow." And he does not need to move them, for through speech alone they become mukhan. However, if he says, "From here I am taking tomorrow" – it is not sufficient. And this is not due to the reason of bereirah, that we do not say the matter has been clarified that he intended for these, for regarding Rabbinic matters there is bereirah. Rather, the reason is that since they are small and he does not yet know them, we are concerned lest he take these and they will not be pleasing in his eyes, and he will return them and take others, thereby moving something that is not fit for him. But when he says, "This one and this one I am taking tomorrow," he has presumably examined them and found them to be good.

And even if the entire dovecote is designated, if he only needs a minority of them—it is not effective due to the concern we mentioned. However, if it is possible that he will need the entire dovecote tomorrow—designation is effective in such a case, even though he will not take them all in the end, for he is compelled to designate them all due to the doubt, as perhaps he will need them all. And as for why we are not concerned regarding the designation of fish in "one who dams a water channel" in section 7, where we did not require him to say "this one and that one I shall take tomorrow," it is because with fish there is no concern that perhaps he will take some of them, and they will not be pleasing in his eyes and he will cast them back into the water and take others—for it is not the way of people to cast fish into the water after they have removed them. Therefore, even if they are not pleasing in his eyes—he will take others in addition to those he took, which is not the case with dovecote pigeons (Taz, small subsection 7). And also with domestic and wild animals, if they required designation—he could designate them all, and we are not concerned for this concern, that perhaps he will take and return them and take others. For they are recognizable to him, and he knows what he takes, like geese and chickens with which he is already familiar, which is not the case with small pigeons (see there in the Taz).

If one designated two, and the next day found three mixed together, and he cannot recognize the two he designated—they are forbidden, whichever way you look at it: for if we say that the two went away and these are others—it is obvious that they are forbidden. And even if we say that these two that he prepared are present—nevertheless, the third one that he did not prepare is mixed among them, and we do not say that it is nullified by the majority, for living creatures are significant and are not nullified. Furthermore: it would be a thing that has a means of becoming permitted (Tosafot 10b, beginning with "There is"). However, according to this, if one of them was eaten, or fell into the sea—they are all permitted, for we hang the status on the possibility that the forbidden one was eaten or lost, as I wrote in Yoreh Deah siman 110. But if we fear that these are others, even in such a case they are forbidden. (See Magen Avraham subsection 14, who wrote that according to the conclusion of the Gemara there, young birds are different: since they are prone to hop, we do not fear that they are all others, see there. And in my humble opinion, it seems that this is only regarding three where he found two, and not for two where he found three, where there is certainly a prohibition here. If so, just as the third is from elsewhere, so too are the two, see there. Examine carefully and you will find it simple.)

But if he designated three and found two—they are permitted. And we do not say that all of them went away and these are others, for there is no certain prohibition here. It is more likely to hang the matter on the possibility that one went away and the two remained in their place, for such is the way of fledglings to hop away from one another. Even if they were all tied together—nevertheless we say that through the hopping the knot was loosened, and one went away and the two remained in their place. And there is one who prohibits in the case of those tied together (siman 67, subsection 9). However, it is obvious that if the two were found tied together they are permitted (ibid.). And so too if he designated three and found three, and he left them tied together, and found them not tied together—we are not concerned for it, and we say that they loosened the knot (ibid.). And there is one who prohibits even in such a case (Bach), but it is an excessive stringency, for it is certainly permitted in such a case.

If one designated black and white birds in nests separated by a partition, and the next day found black ones in the place of white ones and white ones in the place of black ones, and they do not recognize them—they are all forbidden, for we say that they all left, and these are others. And we do not say that these themselves switched their places, for why should we attribute it to these, let us attribute it to the pigeons of the majority of the world. And even though these are nearby and we should attribute it to them—nevertheless, regarding a majority and proximity, we follow the majority even in a case of evident proximity. But if the nests are not separated—it is obvious that we attribute it to them themselves, for such is their way, which is not the case with separated ones. And so too even with separated ones, if they were all found in one place—we attribute it to these having gone out to those, and not that they all left and these are others, because we do not see a flaw in all of them, which is not the case when they switched their places. And the flaw in all of them we attribute to the world (Kessef Mishneh from the sugya of the Shas, see there).

If he designated them inside the nest, and found them the next day in front of the nest—they are forbidden, because we say those went away, and these are others. And we do not attribute them to those that were inside the nest even though they are close, and we attribute them to the majority of the world, for in a case of majority and proximity—one follows the majority, as I have written. And it appears to me that here too, this is specifically when all of them left the nest, but if some of them remained in the nest—these are also permitted, for just as those are from yesterday, so too are these. Likewise, if he designated them inside the nest and found them at the entrance of the nest—they are permitted, for it is recognizable that these are they. And so it appears to me if he designated them in front of the nest and found them inside the nest—that they are permitted, for it is their way to enter into the nest. And even though it is also their way to leave, nevertheless, it is also their way to leave outside the nest entirely, and we say that they truly left, and these are others.

And know that regarding what we have said, that if one designated them inside the nest and found them in front of the nest they are forbidden, there is a distinction between large ones that are able to fly and small ones that only hop: for large ones, even if there is no nest around them within fifty amot—they are forbidden, because we say that they flew away. But regarding small ones—our sages, of blessed memory, established that anything that hops does not hop more than fifty amot. And when they see a nest within fifty amot—they hop. And if not—they do not hop. Therefore, if there is a nest within fifty amot—they are forbidden, and if not—it is certain that they are from the nest. And even if there is a nest within fifty amot, if the nest stands at a corner from this nest in a manner that the pigeons cannot see it—they are also permitted, for as long as they do not see the nest before them—they will not hop, and they are certainly from those that were inside the nest. (See Taz, subsection 11, that with those that fly it is forbidden regardless, because of tzida.)

A non-Jew who brought a gift to an Israelite on Yom Tov, small pigeons from dovecotes that he has in the city—since they do not require hunting, and he also did not bring them from outside the techum—it is permitted to eat them on Yom Tov. And even though he did not designate them from the eve of Yom Tov, they said in the Yerushalmi that those of a non-Jew do not require hachana, for they are all as if prepared for him, since he has no prohibition of muktzeh. But large ones are prohibited, since a prohibition of hunting was performed with them. And likewise if they came from outside the techum, as will be explained in siman 515, and it is only permitted if they are small and from within the techum.

One who slaughters an animal on Yom Tov—it is better for him not to skin the hide after the bedika, but rather before the bedika, for if he leaves it until after the bedika, perhaps it will be found to be treifa and it will be forbidden to skin it. For before the bedika, it is permitted, because it is impossible to reach the meat before skinning the hide, and this too is included in the category of "food for a person." But when it is found to be treifa, it is forbidden. And when it remains with the hide until the next day, he will lose much in its sale to a non-Jew. And why did they not permit here "their end because of their beginning," as they permitted placing the hide before those who trample it, as I wrote in siman 499? For that is regarding a rabbinic prohibition. But skinning, which is a prohibition from the Torah, they did not permit (Magen Avraham, subsection 18). And similarly, when it is found to be treifa, it is forbidden to move it, for it is muktzeh. But it is permitted to sell it today to a non-Jew, in the manner that they permitted a sale to an Israelite: that he should not weigh it, and he should not mention a sum of money, as I wrote in siman 517. If he does not trust him, he should take from him a mashkon. And this matter they permitted to him because of loss, so that he should not suffer loss until the next day. And there is one who forbids selling, but it is not the primary view. And similarly, it is permitted to sell the hindquarters to a non-Jew in a place where there is no menaker, and there is concern that it will spoil. And all this is regarding that which was slaughtered on Yom Tov. But regarding that which was slaughtered on the eve of Yom Tov—in any case it is forbidden, for he should have sold it on the eve of Yom Tov, unless he did not have time to sell it while it was still day, or if he is compelled to give meat today to a minister or an official. And he shall sell it to him without weight and without a full sum of money (see Magen Avraham, subsection 19).