Siman 117

The sages taught in the Mishnah of Shevi'it [chapter 7]: One may not engage in trade with the fruits of Shevi'it, nor with firstborn animals, nor with terumot, nor with nevelot, nor with terefot, nor with shekatzim, nor with remasim, etc. Hunters of beasts, birds, and fish who happened upon impure species are permitted to sell them, etc. and in Pesachim [23a], in the dispute of Hezekiah and R. Abbahu, where both agree that wherever it is written "shall not be eaten" with a tzeirei, it implies both a prohibition of eating and a prohibition of benefit, the Gemara asks: But behold, there are crawling things, regarding which the Merciful One said, "it is an abomination, it shall not be eaten," and yet we learned: Hunters of beasts, birds, and fish, etc. are permitted to sell them. And it answers: Those are different, for the verse prohibited them "to you" — they shall be yours. And it asks: If so, even initially as well? And it answers: It is different here, for the verse said "they shall be" — they shall remain in their state. Thus far its words.

The explanation of the matter is that regarding the creeping things and seeing, concerning all the impure ones, it is written "it" or "they," such as "it is a detestable thing to you" or "they are a detestable thing to you," and similarly "it is impure to you" or "they are impure to you." But the expression "they shall be" is not written anywhere except in this place. Furthermore, here this phrase "and they shall be a detestable thing to you" is entirely redundant, for previously it is written "they are a detestable thing to you," and immediately after it is written "and they shall be a detestable thing to you." Rather, it certainly comes for an interpretation, and this is its meaning: that which I said, "they are a detestable thing to you," and it is not forbidden for benefit because it is written "to you"—that it shall be yours—nevertheless, "they shall be" in their state, that you shall not have dealings with them, and that is not to trade in them. And regarding that which happened to come to hand, that it is permitted to sell them, the poskim wrote that even though this is from the Torah, nevertheless the Torah handed them over to the sages to define as they shall say. And this is like the labor of Chol HaMoed, about which they said in Chagigah [18a] that the verse handed them over to the sages [Tosafot Yom Tov there, and Taz subsection 1, and Pri Chadash]. And in my humble opinion, it does not seem so, for there the sages of blessed memory explained it so, but from where do we have the right to say so? Furthermore, if we learn it from there, behold, regarding Chol HaMoed most poskim hold that it is only rabbinic, while here they agreed that it is from the Torah, as the plain meaning of the sugya implies. Furthermore, here there is no need for this at all, for in the Torah itself it is explicit that if they happened to come to hand it is permitted, for regarding a nevelah it is written: "You shall not eat any nevelah; you may give it to the stranger who is within your gates that he may eat it, or sell it to a gentile, etc." Behold, the Torah permitted sale, and an ordinary nevelah is one that happened to come to hand, either that it became nevelah through its shechitah, or was killed, or died. And one should not ask from where we learn about creeping things from nevelah, for it is certainly so that all impure things have one law. For if not so, behold this verse "and they shall be a detestable thing to you" is written regarding impure fish, and from where do we learn regarding impure beasts and birds? Rather, it is certain that they all have one law, and the Torah wrote it at the beginning of the parsha, for until here "detestable thing" was not yet written, and it refers to all the impure ones.

The prohibition is only regarding things meant for eating, but horses and camels, which are only for labor, are not included in this prohibition and it is permitted to trade in them. This is explicitly stated in the Yerushalmi there. There is one who asked that if the prohibition is from the Torah, is it written specifically regarding eating [Pnei Yehoshua there]? This is not a question at all, for it is certainly so; since it is written "it shall not be eaten," which also includes the prohibition of benefit, and afterwards the Torah permitted it from the verse "for you," it is certain that it must at least be something that people eat, for the verse does not leave its plain meaning. Furthermore, in this verse of "and they shall be an abomination for you," it concludes "of their flesh you shall not eat," which shows that the primary verse deals with things meant for eating, for regarding this it said "they shall be," meaning they shall remain in their status, and not regarding something whose primary purpose is for labor.

However, there is reason to be uncertain regarding a thing fit for consumption that people eat, where only this specific sale is for labor and not for consumption, whether this is included in the prohibition or not. From the words of our teachers, the authors of the Tosafot, one may learn toward a permissive ruling, for they asked there in Pesachim on that which we say in Bava Kamma [82b] that it is forbidden for an Israelite to raise pigs, as the sages decreed against this; and let it be derived that it is forbidden by Torah law. And they answered that this which is forbidden by Torah law is specifically to profit and sell to him for consumption, but to profit from their fat or their hide is not, or if he raises them not for sale, etc. Thus far their words. Behold, it is explicit that even with something fit for consumption, if he sells them not for the purpose of consumption, it is permitted. And so wrote the Rosh at the end of the chapter Merubeh, and this is his wording: An Israelite may not raise pigs in any place, even in order to grease hides with them, for to sell it to a gentile is forbidden even by Torah law, as we learned in the seventh chapter of Shevi'it, etc. And in the chapter Kol Sha'ah he derived from the verse where it is written "they shall be unclean," that in their state of being they shall remain. Thus far his words. And so wrote the Tosafot in Merubeh [82b], and this is their wording: And Rabbeinu Tam answered that this is specifically with something that stands for consumption, but if he raises them to grease hides with their fat, etc., it is permitted; and all chelev is permitted to be sold in a case where it does not stand for consumption. Thus far their words.

But the Rashba, of blessed memory, wrote in a responsum [Part 3, Siman 223], and this is his wording: Furthermore, I saw in what you wrote a matter that does not seem correct to me, even though you said you found it so in the Tosafot, which is that if one does not trade in these items for the purpose of eating but rather to prepare skins with them or the like, it is permitted, etc. And this seems to me like an error, for anything that is among the things that man raises for food, etc., it is forbidden to trade in them as a decree lest he come to eat from them, etc. And I wonder if the Tosafot permitted in this manner that you said, but perhaps in a case where it was spoiled for eating, etc. Thus far his words. Behold, it is explicit that he forbids even in such a case. However, from his words it appears that he holds that the entire essence of the prohibition of trading in forbidden items is only rabbinic, so that he should not come to eat. And so he wrote explicitly in that same responsum earlier, and this is his wording: And the second question that you asked, whether a pig is permitted for benefit, etc., it is not forbidden for benefit by Torah law, and even to trade in it, except by their words. Thus far his words. And since this is so, he rightly said that there is no difference whether one sells them for eating or not for eating, since they forbade them so that he should not come to eat; what does it matter to me if the sale is for eating or not? But the Tosafot and the Rosh, who hold that the prohibition is from the Torah, rightly said that in such a case the Torah forbade and in such a case it did not forbid [see the Beit Yosef and Shach, subsection 1, who cited this responsum; and according to what I wrote, the matter depends on whether the prohibition is from the Torah or rabbinic, and according to this, if it is from the Torah, it is more lenient in this particular detail, and delve into this].

And know that also from the wording of the Rambam at the end of chapter 8 of Ma'achalot Assurot, one may infer somewhat that he holds like the Rashba, for he wrote, and this is his wording: And anything that is forbidden for eating but permitted for benefit, even though it is permitted for benefit, it is forbidden to engage in trade with it or to direct one's work toward forbidden things, except for chelev, for it is stated regarding it, "it may be used for any work." Therefore, one may not engage in trade with nevelot, etc. Thus far his words. And chelev is not for eating, as we brought from Tosafot in Meruba at the end of section 4, and in such a case the Rambam also forbade other things. However, one could say there is no proof from this, for certainly there is much chelev that is fit for eating, and Tosafot speak regarding the majority; and from their words it appears that therefore the Torah permitted it regarding chelev because it is not for eating, and from this they learned regarding all prohibitions that anything one does not raise or sell for eating is permitted. And from the words of the Rambam there is no definitive proof. [And nevertheless, it appears more likely that he holds like the Rashba even though he holds that the prohibition is from the Torah. And also from the wording of the Shulchan Aruch, who wrote "if it is a thing designated for food it is forbidden to engage in trade with it," it also implies like the Rashba, and so wrote the Levush. And although the Shach in subsection 1 wishes to interpret his words as meaning specifically when it is always designated for food, see there, it does not imply so; for he also concluded "from the chelev, etc.," and is chelev always designated for food? Behold, it is the opposite, as was written from Tosafot in Meruba. Therefore his words are astonishing and require further study, and delve into this.]

And behold, regarding the essence of this prohibition, whether it is from the Torah or from the rabbis: the opinion of the Tosafot and the Rosh is that this is from the Torah, and so it is clarified from the words of the Rambam that we brought, and so the great later authorities agreed [Pri Chadash subsection 1, Mishneh LaMelech end of chapter 8, and Atteret Zaken subsection 1]. However, from the words of the Rashba that we brought, it is explicitly clarified that the prohibition is from the rabbis. And so wrote the author of the Terumat HaDeshen, siman 200, and he wrote that in the margin of Tosafot, Pesachim there, they wrote that all these verses are only a mere asmachta. And so it is clarified from the words of the Bartenura on the Mishnah in Shevi'it there, who wrote: And they did not prohibit engaging in commerce except with something intended for eating, etc. Thus far his words. For this implies that the sages prohibited this [and so wrote the Tosafot Yom Tov, that this is the implication of his wording; and the Rash indeed wrote "and we do not prohibit" and not "and they did not prohibit," see there, and perhaps this was also the intention of the Bartenura. And the difficulty raised by the Tosafot Yom Tov from the first chapter of Bekhorot, which asks regarding milk "and perhaps for commerce," is not a difficulty at all; and this is the explanation: From where do we know that the Torah permitted it completely, even to eat? Perhaps it did not permit milk except for commerce—meaning, even though in other prohibitions it is forbidden for commerce. And so it appears from the Pri Chadash and the Mishneh LaMelech. And there are those who answered that there it can be said it was by chance, but it is impossible to say so, for Jesse sent them to the captain of the thousand, and for him it was not by chance, as the Noda BiYehuda, second edition, siman 62, challenged; but this is not necessary, as I have written, and examine this closely].

There is one who says that even if the prohibition is from the Torah, it is only regarding sheratzim which do not have the prohibition of ever min hachay, but regarding impure domestic animals, wild animals, and birds, the prohibition is not from the Torah except after their death. For while they are alive, even in pure animals there is ever min hachay, and the Torah permitted ever min hachay because it was equated to blood and blood to water, as is explained in the sugya in Pesachim there [Pnei Yehoshua]. And these are strange words. Firstly, because in impure animals there is no prohibition of ever min hachay, as I wrote in siman 62. Furthermore, we hold that a domestic animal while alive is not considered as standing for its limbs, as is explained from the words of the Rambam, chapter 5 of Ma'achalot Assurot, law 5, see there; and we have already explained this in siman 29, section 6, see there. Likewise, there is one who says that only regarding creeping and swarming things is it from the Torah, and not regarding nevelah, terefah, and other prohibitions, for the verse "they shall be" is stated regarding swarming things [Chavat Yair, siman 142]. And this too is not so, for if so, let us also say that only regarding impure fish is it prohibited from the Torah and not regarding other creeping and swarming things, for this verse of "they shall be" is written regarding fish. Rather, the main point is as I wrote in section 2, that all prohibitions are equal in this. And there is clear proof for this, for the Tanna included them together: "hunters of wild animals, birds, and fish that happened upon," etc. And so it is explained from all the poskim, and from the body of the sugya in Pesachim it is explicitly proven so, as is explained to one who is precise there in the entire sugya. Therefore, these words are not to be accepted.

However, I have seen one who raised a difficulty against the Rambam and the poskim: from where do we know that chelev is permitted? For if it is because it is written, "may be used for any work," perhaps this is only when it happens to occur, like the verse regarding nevelah. And for me it is even more difficult, for in Pesachim there, Rabbi Yose HaGelili and Rabbi Akiva disagree regarding this verse of "the chelev of a nevelah and the chelev of a terefah may be used for any work," as Rabbi Yose HaGelili expounds it to mean that it is permitted for the work of a commoner, and Rabbi Akiva expounds it to mean that even for consecrated items it is not tamei. And the Gemara concludes that both of them hold that "it shall not be eaten" implies both a prohibition of eating and a prohibition of benefit, and Rabbi Akiva holds that when nevelah was permitted, its chelev was also permitted, and therefore a verse is not needed for the permission of benefit; and Rabbi Yose HaGelili holds that its chelev was not permitted together with nevelah and a verse is needed for the permission of benefit, see there. However, in any event, both of them hold that the permission of chelev is like the permission of nevelah, and if so, there is no permission in chelev except when it happens to occur like nevelah. And from where did the Rambam and the poskim have the basis to say that it is permitted to trade in chelev? This requires great study.

It appears to me that regarding chelev there is another reason, since it is written, "it may be used for any work, but you shall surely not eat it," which implies explicitly that the Torah explained to us that it only forbade it to us for the prohibition of eating and not for any other matter; for this is entirely redundant, as it was already written previously, "any chelev of ox, sheep, or goat you shall not eat." And even though from this we derive in Chullin [37a] that the prohibition of nevelah shall come and take effect upon the prohibition of chelev, etc., and likewise at the end of the chapter "Chatat HaOf" we derive "but you shall surely not eat it" [to mean] one whose chelev is forbidden and its meat is permitted, excluding a wild animal, etc.; nevertheless, just as we can derive from this two derivations, so too we can say that it comes to instruct also upon this. Furthermore, this is proven from the plain meaning of the verse, that it is only forbidden for eating and not for another matter [and it can also be said that regarding what they said, that the prohibition of nevelah shall come and take effect upon the prohibition of chelev, and Rashi explained that you should not say a prohibition does not take effect upon a prohibition, see there, and why do we not learn from here generally for a prohibition taking effect upon a prohibition? Therefore it can be said that the Torah is teaching us that nevelah is an "added prohibition," for it is forbidden for trade except when it happens by chance, while chelev is permitted for trade; and delve into this].

And behold, the opinion of the Rambam, the Tosafot, and the Rosh has already been explained, that this prohibition is from the Torah. This is also explicitly explained from the Tosafot in Sukkah [39a], who wrote regarding Shevi'it, and this is their wording: And it is possible that one who buys from his fellow in order to profit and sell at a high price, that this is also trade; and in the seventh chapter of Shevi'it we learned that one may not engage in trade with the produce of Shevi'it, nor with firstborn animals, nor terumot, nor nevelot and terefot, etc. And you do not find that they are all equal regarding trade except in such a case where the Merciful One explicitly permitted selling, as it is written, "or sell to a foreigner," etc. Thus far their words. And if it should enter your mind that the prohibition is only rabbinic, what do the Tosafot prove from the verse "or sell"? And there is one who wishes to say regarding their intent that this is the explanation: Since the permission is written explicitly in the verse, the sages do not have the power to prohibit it [Turei Zahav, subsection 1]. And many great authorities have already rejected this [Chavat Yair and Sma and others]. And in several places it is proven that the sages decreed in such a case; furthermore, is it better that the Torah permitted it, such that it is permissible to do so, than that the Torah said it is an obligation to do so? And even so, the sages decreed not to do so, such as shofar and lulav on Shabbat, for in a case of "sit and do not act" they have the power to do so, as is explicit in the Gemara. And all the more so they have the power to decree not to do what the Torah permitted. And should you say that regarding shofar and lulav they decreed so as not to come to the point of carrying, which is a Torah prohibition, whereas here one cannot say so—this is impossible to say, for here too they decreed so that he would not eat it, which is a Torah prohibition. Rather, certainly this principle is not so.

But the opinion of the Rashba, the Gilyon Tosafot, and the Terumat HaDeshen is that the prohibition is only rabbinic, so that one does not come to eat them. It is also explained from the words of some great Acharonim that they hold this way. According to their words, it must be said that this verse, "they shall be in their state," is merely an asmachta. Furthermore, that which we learned in the Torat Kohanim, "they are a detestable thing to you," that you shall not engage in commerce with them, see there, is also merely an asmachta, like many derashot in the Torat Kohanim which are merely an asmachta. One can bring proof for this opinion from the Yerushalmi there, which our teacher, the Beit Yosef, cited in his great work, and the Bartenura there, and other commentators, which says regarding the Mishnah that permitted a hunter to whom non-kosher animals happened to come because he pays taxes from this, see there. And if you should think that from the Torah it is permitted, why is this reason necessary? Rather, it is certainly only rabbinic, and they permitted it for a hunter because of taxes. However, with forgiveness from their holy persons, the Yerushalmi is not referring to this law at all, but rather to traders of Shevi'it. This Yerushalmi is also found letter for letter in the chapter "Zeh Borer," Halacha 5, and in the fourth chapter of Shevi'it, Halacha 2, see there. It refers to Shevi'it and not to non-kosher species. The Yerushalmi was brought here incidentally, as is the way of the Yerushalmi in every place, and because Shevi'it was also mentioned here in the Mishnah. Therefore, the Rambam, of blessed memory, did not mention this reason at all, and it is clear with the help of Heaven [and also the Pnei Moshe explained that it refers to Shevi'it, and I wonder why he did not challenge them, the Bartenura, the Tosafot Yom Tov, the Beit Yosef, and the Derisha]. In section 16, a clear proof for this will be explained with the help of Heaven, see there.

However, evidence for this opinion can be brought from that which was taught in the Tosefta, chapter 5 of Shevi'it, halacha 7, and this is its wording: One should not bring Kuphrian dogs, or weasels of the bush, or cats, or hedgehogs to sell them to a Cuthite or to rent them out; but muries, and cheese from Beit Unayki, and their bread and oil, it is permitted to sell them to a Cuthite and to rent them out. Thus far its words. And it is explained that the Tosefta stands upon the Mishnah that one may not sell nevelot and terefot, and the Tosefta says that a rabbinic prohibition such as muries and bread is permitted to sell, while dogs, cats, and weasels are forbidden to sell. And it is well understood if the primary prohibition is rabbinic, for they properly forbade the sale of these even though they are not for eating; nevertheless, since there is some slight damage in this and it is not the way of the world to trade in them as with horses and donkeys, the sages forbade selling them. But if it is from the Torah, why is it forbidden to sell these? Behold, they are not for eating at all.

However, even this is well-settled, and on the contrary, the Tosefta states a novelty regarding a matter and its opposite. For behold, in the Mishnah, the Torah forbade selling forbidden items intended for consumption, but those intended for labor are permitted, such as horses and donkeys, as is found in the Yerushalmi. And for this, the Tosefta comes to say that sometimes it is the opposite: that for consumption it is permitted, namely regarding rabbinic prohibitions, and those intended for labor are forbidden, such as those whose labor is to clean the house, as is found in Tosefta Bava Kamma chapter 8 and brought in the Gemara there [80a]. And thus it is stated there: Just as they said one may not raise small livestock, so too one may not raise small wild animals; Rabbi Ishmael says one may raise village dogs, cats, monkeys, and Egyptian weasels because they are made to clean the house. Thus far his words. And the halacha follows the first Tanna. And for this, the Tosefta forbids here, for just as they forbade raising them, so too they forbade even buying and selling them due to the concern of damage. And this is in relation to the Mishnah and its opposite, as I have written, but there is no connection at all between one and the other.

And know that blood and a limb from a living animal are also explained in Pesachim there, that the Torah permitted them completely. And that which the Rambam did not bring them along with the permission of chelev is also well-settled, for blood is certainly not something one would conduct business with, as the soul of a person is repulsed by it. And a limb from a living animal is forbidden to the children of Noah, and it is obvious that it is forbidden to sell or give it to them, as is explained there in the Gemara. And if it were for a merely incidental occurrence to sell them for some need, is it not permitted even with all other prohibitions? But chelev is a great trade, and therefore the Rambam did not bring blood and a limb from a living animal with chelev.

We further learned there: Hunters of beasts, birds, and fish who happened upon impure species are permitted to sell them. Rabbi Yehuda says: Even one who chanced upon them by his way may buy and sell, provided that his profession is not in this; and the sages prohibit. Thus far the wording of the Mishnah. The commentators explained that they disagree in this: for Rabbi Yehuda holds that in an incidental case, any person is permitted, and the sages hold that they did not permit even in an incidental case except for a hunter who pays a tax from this. See there in the Bartenura and in the Tosafot Yom Tov. He further wrote that even if the prohibition is from the Torah, they have the power because of the tax to say that the Torah did not prohibit in such a case, see there. And how very forced this is! And this all revolves around what they thought, that the tax mentioned by the Yerushalmi refers to this matter. Therefore, the Bartenura wrote that the halacha is like Rabbi Yehuda because it is stated so in the Yerushalmi. However, we have already written in section 12 that this is not so, and the Yerushalmi refers to Shevi'it and does not deal with this matter at all, and also the halacha like Rabbi Yehuda refers to there. But here, the halacha is not like Rabbi Yehuda. And the Rambam, of blessed memory, even if in the Commentary on the Mishnah he ruled like Rabbi Yehuda, in his Composition he retracted and did not permit except for a hunter, and so too the Tur, because they saw that the Yerushalmi does not refer to this matter at all. If so, it must be understood regarding what Rabbi Yehuda and the Rabbis disagree.

And that which appears correct in my humble opinion is that this is the explanation: For behold, we have already clarified that the Torah itself permitted it when it occurs by chance, as it is written regarding a nevela, "or sell it etc.," in what I wrote in section 2. And behold, the owner of this nevela is not necessarily a meat merchant, for even a homeowner, when a nevela occurs in his possession, is permitted to sell it. And from this Rabbi Yehuda judged that it is not specifically a hunter, for the same law applies to any homeowner if in the course of his travels an impure thing happened upon him to buy, provided that his craft is not in this, for this is a chance occurrence which the Torah permitted. And the sages prohibit it, for they hold that the Torah did not permit it because of a chance occurrence except when the thing fell into his hand, and that is similar to a nevela, where he bought it for a permitted purpose and it turned into a prohibited thing in his hand; and likewise the hunter, whose intention is to hunt pure animals and impure ones came up in his trap. But to buy initially by chance in any manner is prohibited, even when his craft is not in this. And they follow their reasoning in the chapter "Zeh Borer" [24b] regarding those disqualified from testimony, as we learned in a Mishnah: And these are those who are disqualified: one who plays with dice, etc., and merchants of Shevi'it. Rabbi Yehuda said: When? At a time when they have no craft other than it, etc. And Rashi and Tosafot and all the poskim explained that Rabbi Yehuda refers to one who plays with dice, and his disqualification is because he does not engage in the settlement of the world, and this is specifically when he has no other craft. And Rabbi Yehuda comes to explain and not to disagree, as is explained there in the Gemara. But in the Tosefta, chapter 5 of Sanhedrin, it is explicitly stated that he refers to all of them, even to merchants of Shevi'it, for so it is stated there: And regarding all of them Rabbi Yehuda said, etc. And so it is explicitly stated in the Yerushalmi there, and this is the Yerushalmi that we brought in section 12. And they disagree regarding Shevi'it whether by chance one is called a merchant or not, for Rabbi Yehuda holds that by chance one is not called a merchant of Shevi'it, and here too he holds that by chance one is not called a merchant of impure things and it is like those that occurred by chance. And the sages, who hold regarding Shevi'it that even by chance one is called a merchant of Shevi'it, here too regarding impure things it is so, and therefore they did not permit it except in a case where it already fell into his hand [as appears correct in my humble opinion. And therefore, what the Tosafot Yom Tov scrutinized, that the sages are the first Tanna—according to what I wrote it is a completely different matter. And also without this, I do not know what was difficult for him; is this not a dispute on its own? And it is possible that the first Tanna who said "a hunter" his intention was because of chance, and if so, for any person it is permitted like Rabbi Yehuda, and for this the sages were compelled to disagree and not to rely on the first clause. See there and delve into it].

The Rambam wrote: A hunter who happened upon an impure beast, bird, or fish and trapped them, or if impure and pure ones were trapped for him, it is permitted to sell them, but he should not intend his work for the impure ones, etc. Thus far his words. And the wording of the Tur is as follows: But if there happened to a hunter an impure beast, bird, or fish, or if he trapped impure ones with pure ones, it is permitted to sell them, provided that he does not intend for this. Thus far his words. Our teacher, the Beit Yosef, explained in his great book that the intention of both of them is the same, and this is what they are saying: A hunter who spread a net to trap pure ones, and it happened that only impure ones were trapped there, or impure and pure ones, it is permitted. And this is a case of "this, and it goes without saying that." Or, that in the latter clause there is a greater novelty, for in the first clause, when only impure ones were trapped, it is necessary to permit it to him so that his exertion should not be in vain; but in the latter clause, I would have said that he should cast away the impure ones, and his exertion is not in vain since pure ones also came into his hand—it comes to teach us that even in such a case it is permitted. And there are those who explained the intention of the Tur in what he wrote, "or if he trapped impure ones with pure ones," that this means with intention; that is to say, at the time that he trapped the pure ones, there were also impure ones with them, and he trapped them all in his net with intention, because if he were to refrain from trapping the impure ones, the pure ones would also not be trapped; therefore it is permitted even in such a case [Bach and Derishah]. And certainly so it is regarding the law, that whenever his intention is for the pure ones, but through this the impure ones also fall in, it is similar to a nevelah which the Torah permitted. [And according to this, when an Israelite buys pure birds from a gentile and the seller does not want to sell unless he also buys the impure ones from him together, it is like "happened upon" and it is permitted, as appears to me; and one should deliberate on this].

Our teacher, the Beit Yosef, wrote in section 1: Any item that is forbidden by the Torah, even if it is permitted for benefit, if it is an item designated for food, it is forbidden to engage in trade with it, except for chelev, etc. Thus far his words. Our teacher, the Rema, wrote regarding this: or to lend upon it; and even to buy it to feed it to his gentile laborers is forbidden. Thus far his words. The commentators on the Shulchan Aruch have already challenged that which he forbade, to buy to feed to laborers [Shach subsection 3 and Taz subsection 2]. And the custom is already widespread to buy for the sake of laborers, and there is no concern of a prohibition in this, for it is only forbidden to trade, and not when he needs it for his laborers. And you have no greater case of "it happened upon him" than this, for what shall he do with his laborers? And even if it is within his power to give them kosher meat, if it is more expensive than treif, he is not obligated to lose his money. For the prohibition is only to profit, and not to lose thereby. And behold, this is exactly similar to a nevelah in his house, which the Torah permitted to sell because of loss, and this is even stronger than that.

And also regarding that which he forbade to lend upon it, in my humble opinion I do not know why, for he only holds it as a mashkon and perhaps he will redeem it; and even if he does not redeem it, it is like "it happened upon him." Furthermore, for behold R. Yehuda permits in the Mishnah even to buy occasionally, and granted that regarding buying the sages disagree with him, nevertheless, at any rate regarding lending they certainly agree, and why should we create a distant dispute? Also, in the source of the law in the Terumat HaDeshen, he only wrote that the matter is unseemly; see there. And in my humble opinion it appears that behold, our teacher, the Rema, held that this prohibition is rabbinic, like the opinion of the Rashba and the Terumat HaDeshen, and the prohibition is lest he come to eat it [and so it appears from the Shach, subsection 2, who wrote this reason, and from the Taz there, and they all followed this path]. According to this, he rightly forbade lending upon it, for behold in this too there is this concern. However, according to what we explained as the opinion of most of our teachers, that this prohibition is from the Torah, and when "it happened upon him" the Torah permitted it, it is certainly permitted to lend upon it, for even if the mashkon remains in his hand, it is nothing other than "it happened upon him." And there is one who explained his intention that to buy impure animals and raise them in his house is forbidden for the sake of his workers, but to buy slaughtered ones is permitted [Pri Chadash, subsection 3]. And if this is his intention, the prohibition is certainly simple, for who permitted him to raise them in his house? And this is not similar to nevela which the Torah permitted. And so it appears proper to instruct.

A hunter, when impure and pure animals are caught for him together, which is permitted as has been explained, there is one who says that he must sell the pure and the impure together, and not the pure by itself and the impure by itself. And it is not similar to when only impure ones came into his hand, where it is permitted to sell them alone, for there it is impossible to do otherwise [Shach, subsection 9]. However, our teacher, the Beit Yosef, in his great book, permitted selling each one by itself, see there, and such is the primary ruling [Pri Chadash, subsection 8]. And how is it possible to be stringent in a matter that can lead to a loss and is based on a permissive positive commandment? Furthermore, for even regarding impure ones alone, our teacher, the Rema, wrote that he must sell them immediately and not wait until they become fat in his possession. Thus far his words. And since he sells them immediately, what does it matter to me if he sells them as one or if he sells each one by itself? However, it is certainly so that if he wishes to keep the pure ones with him for a long time, then he is obligated to sell the impure ones immediately, just as when he hunts impure ones alone.

However, regarding the primary words of our teacher, the Rema, we find that the Rashba, of blessed memory, in his novellae to Bava Kamma [82a] wrote that the obligation to sell immediately applies only to dogs and pigs, but other impure things that fell to him as an inheritance, which is like they happened upon him, he does not need to sell them immediately; see there. And it is possible that for this reason our teacher, the Rema, was precise to say that he should not wait until it becomes fat with him, for this is certainly forbidden as one who engages in new commerce. But if his intention is not for the fatness, but rather that a buyer who will give him the value of the purchase does not happen upon him, it is certainly permitted to keep them with him [Gloss of Rav B.P.].

It is a simple matter that the fat which the Torah permitted for any purpose refers to the fat of a pure animal, but the fat of an impure animal has the same law as its meat, for it is only called "fat" regarding an ox, a sheep, or a goat, as is written in the Torah and as the Rambam wrote at the beginning of chapter 7, see there. However, regarding the greasing of hides, it depends on the dispute between the Tosafot and the Rashba that we wrote of in section 5, see there. Similarly, that which the Torah permitted regarding a nevelah when it happens to come into one's hand is only that if it occurred in his hand he is permitted to sell it, but another Israelite is forbidden to buy it from the hand of this Israelite and sell it, and this is simple.

And likewise, it is permitted to collect impure items from an idolater for his debt because it is like one who rescues from his hand; and even pigs are permitted to be collected, but one only needs to sell them immediately and not keep them with him in order to profit from them. However, for their value, it is permitted to delay them, even pigs, so that he does not lose from his debt [Shach, subsection 11], and it is permitted to sell them little by little [ibid.].

Some say that it is forbidden to pierce he-goats whose skins are needed and to afterwards sell the meat to gentiles, for this is called intending one's work for a forbidden matter [Shach, subsection 8 in the name of Maharashdam]. And some say it is permitted, for there is no "do not destroy" here since he derives benefit from this, as the skins of pierced animals are better than the skins of slaughtered animals. And since it is permitted for him to do so, it is afterwards as if a nevelah happened to be in his house, for the sages only forbade it when one intends from the outset to act with a prohibition, such as one who intends to hunt impure species; but this person who acts for the sake of the skins, the meat is afterwards considered as having happened to be there [Taz, subsection 4]. And according to the first opinion, he must cast the meat to be lost. And in my humble opinion, it seems correct to decide that if the primary trade is the skins and the meat is secondary, the meat is considered as having happened to be there; but if the meat is primary like the skins, it is forbidden.

There are some of the great authorities who complain about those who lease courtyards from ministers and rent all of their income, and among them are pigs, and within the time the Israelite is forced to raise them and feed his workers [Bach and Shach subsection 13]. And there are some of the great authorities who argued in their favor based on what the Tur wrote, that it is permitted to hunt impure animals with pure ones when it is impossible in any other manner, as was written in section 18. And there is one who says that this is only regarding hunting and not regarding selling [Pri Chadash subsection 8], but it is not the primary view, since we say that in such a case the Torah did not forbid it; for the Torah only forbade it when the primary intention is for the sake of the impure animals, but when his primary intention is for a permitted matter and only because of this is he forced to have the forbidden matter with him as well, it is rightly considered as "happened upon" and is permitted [Taz subsection 4]. And regarding what he feeds to the workers, it has already been explained in section 19 that it is a complete permission, see there.

And from this, I also have a basis to find merit for shopkeepers and cellar owners who keep among them for sale, within other items, also the entrails of non-kosher fish called "ikra," even though they are prohibited by Torah law. For this is also similar to the case of non-kosher and kosher fish together; and since the primary business is for the sake of other permitted foods and drinks, and they are forced to keep this as well, for if not, they will suffer a loss in their livelihood from those who seek this food, and if they do not have this food, they will lose the revenue from other items. And every business establishment, such as a shop or a cellar, pays a high tax on this and incurs many expenses, it is rightly considered like "they happened upon a hunter," for according to the opinion of many of the poskim, the permit there is because of the tax, as I wrote in section 12, and here it is the same. And even according to our words there, that it is not because of the tax, nevertheless, it is like the trapping of kosher and non-kosher together and like the renting of courtyards, and as I wrote here, that this species is merely secondary, such that it is like "they happened upon."

It is a simple matter that those who buy impure birds or treifot for sale violate a Torah prohibition and one must protest against them, for regarding a Torah prohibition we do not say "better they should be unintentional," etc. However, if a minister sends an Israelite to buy impure birds for him, it appears to me that it is permitted; and even though there is no agency for idolaters and it turns out that the Israelite is buying for himself, nevertheless, since his intention is not to profit from them or to conduct trade, there is no prohibition in this. And to be an agent in the business of selling impure items, it is possible to permit this since he does not buy and does not sell, and they are not prohibitions of benefit such that it would be forbidden to earn from them [and as written by the Taz in subsection 4]. And regarding a minister who gave an impure bird as a gift to an Israelite, it requires further study whether it is permitted to receive it; and even if he is forced to receive it because of enmity, there is doubt whether it is permitted to sell it. However, it appears that this is similar to "those that happened upon him," which is permitted. And it is forbidden to sell nevelah to a non-Jew in a place where it is thought to be kosher because of deception. And it has already been explained that regarding rabbinic prohibitions such as cheeses, milk, and muries, even though the prohibition is because of a concern of a Torah law, nevertheless it is permitted since ultimately it is only a rabbinic prohibition, unlike one who wishes to be stringent in this [and perhaps this is the intention of the Rambam at the end of chapter 8 who wrote that a matter whose prohibition is rabbinic is permitted whether in its doubt or in its certainty. Thus far his words. And there is no explanation for this, see the Mishneh LaMelech; and according to what I have written, this is the explanation: whether the sages prohibited it because of a doubt of a Torah prohibition like muries, or whether it is a rabbinic certainty like cheeses curdled with herbs where there is no concern of a Torah prohibition].

There are those who wish to forbid anointing with the soap called "section" based on the principle that "anointing is like drinking," and there are those who permit it, for the Tosafot in Niddah [32a] already wrote in the name of Rabbeinu Tam that "anointing is like drinking" only applies regarding Yom Kippur, see there. And even on Yom Kippur, it is only a rabbinic prohibition according to several poskim. And so it is explained from the words of our teacher, the Rema, in Orach Chaim siman 303, who wrote that on Shabbat it is forbidden to wash with soap because of nolad, see there; however, on a weekday it is permitted [see there in the Gra]. And even those who permit it only permitted it in a case of pain, such as sores. However, regarding our soap which is foul-smelling and is not fit even for a dog, and you have no greater spoilage than this, it is simple that there is no concern in this even for healthy people. And so is the widespread custom in all the dispersions of Israel to anoint with soap in the bathhouse, and no one opens his mouth or chirps.