Siman 13

It has already been explained in siman 1 that a beast requires two simanim and a bird is permitted with one siman, and fish do not require shechitah, see there. Also, grasshoppers do not require shechitah, for the Torah compared them to fish, as it is written: "This is the law of the beast, and the bird, and every living creature that moves in the waters" — these are fish — "and every creature that swarms upon the earth" — these are grasshoppers [Rashi 66a], for "swarming creature" refers to grasshoppers as it is found in Torat Kohanim at the end of Shemini, see there. The Rambam, of blessed memory, in chapter 1, derived it from that which is written: "the gathering of the locust" [Isaiah 33], for since we learned that there is no shechitah for fish from that which is written: "if all the fish of the sea be gathered for them," for regarding sheep and cattle the term shechitah is written there, and regarding fish, "gathering," as it is found in the Gemara [27b]. From this we learned that any place where the term "gathering" is written regarding any animal, and we do not find regarding it the term shechitah, it is to teach us that it does not require shechitah [and the difficulty of the Rashba against him is settled, who questioned that "gathering" does not stand in place of shechitah, and see Kesef Mishneh and Kereti U-Peleti].

The Rambam wrote: Therefore, if they died on their own within the water they are permitted, and it is permitted to eat them alive. Thus far his words. For specifically regarding domestic animals, wild animals, and birds, where the Torah required that their life depart through shechitah, if it did not depart through shechitah but rather through death, it is nevelah; and similarly, if one ate from them while they were still alive, it is ever min hachai. However, regarding fish and grasshoppers, for which the Torah did not require that their life depart through shechitah, it follows that there is no nevelah here when they die, and there is no ever min hachai. Nevertheless, some say that although there is no ever min hachai in this, it is nonetheless forbidden to eat them alive because of "do not make yourselves detestable" [Tosafot Shabbat 90a and Chullin 66a, and the Mordechai in the glosses to the first chapter of Chullin]. And that which we learned in the Tosefta of Terumot [chapter 9], "A person may eat fish and grasshoppers whether alive or dead and need not be concerned," this is its explanation: whether he found them alive or whether he found them dead, but to eat them, he must wait until it dies. But the Rambam interprets according to the plain meaning of the language of the Tosefta. And that which is explained in the Gemara Shabbat there, that he violates "do not make yourselves detestable," it appears to me that this prohibition is not general, but rather applies to something that most people find repulsive, as is explained from his words at the end of the Laws of Forbidden Foods, and it is explained there in detail which things. But regarding something that fastidious people find repulsive, it is not forbidden to one who has a robust constitution, for we learned in the second chapter of Avodah Zarah regarding the stomach of a burnt-offering: a kohen who has a robust constitution may swallow it raw, see there. And so it is in this matter, for there in Shabbat it was a man of great stature, and regarding him "do not make yourselves detestable" applies, but not to others. Nevertheless, in practice, since many of our teachers forbid it, one should rule accordingly, as is written in the Shulchan Aruch. And whether this prohibition is from the Torah or is rabbinic will be explained, with the help of Heaven, in siman 116.

Since regarding fish and locusts shechitah is not applicable, it follows that the terefot of organs—such as if the intestines were perforated and the like—are not applicable to them. For the reason for terefot is because it cannot live and will die, whereas here it is permitted when it dies [and so it appears in the Gemara 75a which inquires regarding the matter of tumah, see there]. And even though regarding the permission of eating there is no distinction in them between the living and the dead, nevertheless regarding tumah there is a distinction; for in their lifetime they do not contract the tumah of foods, but upon their death they contract tumah, as the Rambam wrote in the second chapter of Tumot Ochlin. And the reason is because no living thing contracts tumah except for man. Furthermore, if signs of terefah appeared in them, they contract tumah out of doubt, as he wrote there.

In Parshat Shemini it is written: "Any among the animals that has a true hoof which is cleft through the paws and chews the cud—such you may eat." And in Parshat Re'eh it is written: "And every animal that has a true hoof which is cleft into two paws and chews the cud among the animals—such you may eat." The verse changed its style in Parshat Re'eh by writing "animal" twice, which is superfluous. From this, the Sages received, person from person back to the Halacha LeMoshe MiSinai, that a ben pekuah is permitted without shechitah. That is to say, an animal that was slaughtered and its belly was split open and a fetus was found there—this fetus is permitted for eating by means of the shechitah of its mother, whether it was found alive or whether it was found dead, as will be explained. And we apply the "animal" of the beginning of the verse to the "animal" of the end of the verse; that is to say, an animal found within an animal you may eat by means of the shechitah of its mother. Furthermore, even if one extended his hand into the innards of the animal and cut from the fetus that was in its innards and left it there, when he slaughters it afterward, the piece is permitted for eating; this is not the case when one cuts something from the animal itself, as will be explained at the end of siman 14. And so the Sages taught in the Mishnah [at the beginning of the fourth chapter of Chullin], see there. And it is all for the reason that the fetus does not require shechitah, for it is rendered permissible through the shechitah of its mother.

And just as the meat of a ben pekuah is permitted without its own shechitah, so too it contains no prohibition of chelev or gid, for its chelev and its gid are permitted, but not its blood [74b]. The details of these laws will be explained in siman 64 and 65. The reason there is a distinction between its chelev and gid and its blood is because we expound "any animal within an animal you may eat," as has been written, which implies everything, even its chelev and its gid. But its blood is absorbed throughout the entire body and is considered like the blood of the limbs of the animal itself [the Rosh there]. Furthermore, one cannot learn a permission from a verse except for something that is a matter of eating, such as its chelev and its gid, and not its blood, which is not eating but drinking [the Ran there]. And even though in every other place we say drinking is included in eating, and regarding blood itself the language of eating is written, "any chelev and any blood you shall not eat," nevertheless, in this case which is a novel matter and the language of eating is written regarding it, we only include actual eating. It appears that there is a practical legal difference between the reasons: according to the first reason, that it is like the blood of the limbs, one is not liable for kareth for its blood but only for a negative commandment like the law of the blood of the limbs; but according to the second reason, one is liable for kareth for its collected blood just like in the animal itself. And so wrote the Rambam in chapter 6 of Ma'achalot Assurot, that its blood is equal to the blood of an animal; see there. [And from the Gemara page 74b there is no proof, for even though according to Resh Lakish one is not liable for kareth for its blood, nevertheless according to Rabbi Yochanan it can be said that this is not so; see there and see the Beit Yosef at the beginning of siman 66].

Therefore, one who slaughters an animal and finds a fetus within it—whether its months were completed, such as a nine-month fetus in a large animal or a five-month fetus in a small animal, or whether its months were not completed, and whether the fetus is dead or alive—it does not require shechitah, and one may eat it as it is with its chelev, provided that one extracts its blood. This is the law of the Torah. However, by rabbinic decree, the sages prohibited [75b] when a fetus is found whose months were completed and it is alive and has trodden upon the ground—meaning it walked—it is not permitted through the shechitah of its mother because of appearances, lest they say that an animal is permitted without shechitah and come to exchange it for a mature animal. Therefore, it requires shechitah for itself. And it appears to me that it requires a berakhah upon its shechitah, for since the rabbis required him to slaughter, it is appropriate to say "and commanded us" as with all rabbinic commandments. And there is one who disagrees on this, but it is not the primary view [and so wrote the Pri Chadash at the beginning of siman 19, and see the Pri Megadim, subsection 30].

The Tur wrote that anything that invalidates in other slaughters invalidates in it, but other tereifot do not forbid it. Thus far his words. That is to say, since in any event they required shechitah, we require a valid shechitah; but other tereifot, which in every ben pekuah do not forbid, just as with fish and locusts—where regarding a thing that does not require shechitah, why should we care about its tereifah status, for even a carcass is permitted as is written there—it does not forbid in this case either, for there is no mar'it ha-ayin here since the tereifah is not revealed to all. Therefore, some say that even if the knife is found to be notched, it is of no consequence [the Maggid Mishneh in chapter 1 of Ma'akhalot Assurot], as this is not in the essence of the shechitah. However, from all the poskim it does not appear so [see Shach subsection 5]. And even regarding tereifot, when it is visible to all, such as the absence of a leg and the like, one should forbid [Pri Megadim subsection 5].

And it is a simple matter that when is a ben pekuah permitted? When they slaughtered its mother with a kosher shechitah and she also did not become a tereifah from other types of tereifot; but if its mother became a tereifah, it too is a tereifah, unless its months were completed and it is alive such that they can slaughter it. And thus our sages, of blessed memory, said: The Merciful One permitted four simanim in it [75a], meaning that it is permitted either through the shechitah of the two simanim of its mother or through its own two simanim. Its law is like any other animal: its chelev and gid are forbidden, and all other tereifot disqualify it.

Therefore, if he did not slaughter the mother but rather tore her open, and similarly if he slaughtered her and she became nevelah through the slaughtering or was found to be treifah, if the fetus is nine months old and alive, it requires slaughtering for itself by Torah law as has been written. And if it is nine months old and dead, or eight months old even if alive, it is forbidden, for an eight-month-old is not fit for slaughtering; and the same applies to small livestock at four months. Our teacher, the Rema, wrote that nowadays one should not permit any offspring found in an animal if the mother is treifah, and slaughtering it for itself does not avail it, for we concern ourselves that perhaps it is not nine months old. Thus far his words. Therefore, when he waited until the beginning of the eighth day from its birth, such that it emerged from the doubt of being a nefel, it is permitted through its own slaughtering even nowadays [Shach subsection 11]. And there are those who disagree on this [Tevu'ot Shor], but it is not the primary view, and thus the great later authorities agreed [Dagul Mervavah and Levushei Serad].

And one should not ask how there is a reality to this law where a nine-month-old living fetus is found within her, for we maintain that when the mother dies and she is pregnant, the fetus dies first [Arachin 7a]. For the truth is that this is when she dies of her own accord, but if they slaughtered her or killed her, there is a reality that when they immediately cut open her womb, the fetus will still be alive [ibid.].

Since the requirement of shechitah for a ben pekuah, a nine-month-old live fetus that has stepped upon the ground, is due to marit ha-ayin as has been written, therefore the sages of blessed memory said [75b] that if there is something about this ben pekuah that is wondrous to the masses, such as having uncloven hooves that are not split like other animals, it is permitted without shechitah according to Torah law. For a report will spread about it that this uncloven animal is a ben pekuah, and because they wonder at its uncloven hooves, they will also remember that it is a ben pekuah, and they will not come to permit another animal without shechitah. The same law applies if it has any other thing that is wondrous to the masses; it is also permitted without shechitah, but rather he performs nechirah and eats it. There is one who requires that there be two wondrous things in this matter, such as it being uncloven and its mother also having uncloven hooves, for specifically two wonders are remembered by people and they speak of it, but not with one wonder [as the "some say" in the Gemara]. Most poskim agreed that one wonder is sufficient, and since the primary requirement of shechitah is rabbinic due to marit ha-ayin as has been written, we follow the lenient view and one wonder is sufficient [the Rosh]. The Rambam, of blessed memory, omitted this law and his reason is not known.

Our sages, of blessed memory, further said [ibid.] that if this ben pekuah grew up and mated with a beast and the beast gave birth to an offspring, that offspring has no remedy through shechitah. The reason is that this offspring, from the side of its father, is considered as slaughtered according to the Torah, and from the side of its mother, it requires shechitah; if so, every single siman within it is like half-slaughtered and half-not-slaughtered, and it does not possess a majority of simanim that would be fit for shechitah [Tosafot]. This is also considered like a shehiyah between the first half of the siman and its second half, for since we consider their halves as slaughtered, you have no greater shehiyah than this. This law applies only according to the one who holds that we are concerned for the seed of the father; for according to the one who does not hold this reasoning, we follow the mother for the entire offspring, and it is not considered as half-slaughtered. We, in truth, established that this law is a legal doubt, as I wrote in siman 16. And so too the reverse: if the pekuah is a female and she grew up and a male mated with her and she gave birth to an offspring, it also has no remedy for this same reason, for from the side of its mother it is as if slaughtered and from the side of its father it is not as if slaughtered.

And know that the Rambam, of blessed memory, in chapter 5 of Ma'achalot Assurot, omitted this law as well, and they wondered about him. And it cannot be said that he holds we do not concern ourselves with the seed of the father, for he ruled at the end of the laws of Shechitah that there is a doubt in the matter; see there. And it seems to me his reason is that he holds that according to what we establish that "the Merciful One permitted four signs in it," that if the mother is treifah it is permitted through its own shechitah, this law does not exist at all. For how can we say that from the side of its mother it is like one that is slaughtered, when it does not require the shechitah of its mother [and Rashi, of blessed memory, also explained thus; see there]? And this statement is only if we say that it has no capacity for its own shechitah at all, and we do not establish it so. However, all the Rishonim hold that this which we say, "the Merciful One permitted four signs in it" and it is permitted through its own shechitah, is only when it requires its own shechitah, such as when its mother became treifah, and not when its mother was slaughtered properly and is not treifah. And of necessity, half of it is permitted in such a case and it is like half-slaughtered. Therefore, if the mother of the pekuah was treifah, there is no longer a concern regarding the offspring born from it, for it requires its own shechitah and its offspring is not considered like half-slaughtered.

There is one who says that regarding this offspring of a ben pekuah, when it is a female, its milk is also forbidden; for since we consider it as if half of it is slaughtered and half of it is not slaughtered, there is a pause in the middle of the simanim, and you have no greater tereifah than this [Shach, siman 14, subsection 11]. And there are those who permit its milk [Bach], for it is not a tereifah, but rather that the shechitah does not permit it. And it is not similar to the law of the removal of a limb in siman 14 where its milk was forbidden because of the mixture of the limb, for there the limb is forbidden by law as is written there; but here, the entire offspring is permitted, except that it has no remedy through shechitah [ibid.]. The great later authorities agreed with the first opinion [Pri Chadash, and Kreiti U'Pleiti, and Tevuot Shor]. In my humble opinion, the primary view seems to be like the latter opinion, for how is it possible to say that we consider them literally as half-slaughtered? Behold, they do not require shechitah at all from the aspect of the pekuah. Furthermore, how is it possible to say that they are literally like slaughtered ones? Behold, when half of the simanim are slaughtered, it must necessarily die quickly, for this is the general rule of tereifah: anything that cannot live similarly. Yet the offspring is perfectly healthy. How then shall we consider it a tereifah? Rather, regarding the matter of shechitah, this is what we are saying: that half of them do not require shechitah, and consequently, for the law of shechitah, half of them are like slaughtered ones, and we do not find a shechitah for half of the simanim. And that which we said, that it is like a pause, is merely a common expression, for it resembles a pause regarding the matter of shechitah; but what relevance does it have to tereifot, that we should say it is a tereifah? Moreover, according to the opinion of Rashi and the Rambam, even regarding the matter of shechitah we do not rule thus, as I have written. Nevertheless, in practice, it is impossible to permit the milk since most of the later authorities agreed to the prohibition.

A ben pekuah that mated with a bat pekuah like itself, their offspring and the offspring of their offspring until the end of all generations are like them, and they require shechitah by rabbinic decree once they have stepped upon the ground. Treifot do not disqualify them as long as a father or mother from a beast that is not a pekuah has not been mixed with them. And the same applies to the reverse: this offspring that has no remedy that mated with an ordinary beast, or a ben pekuah as well, there is no remedy for the offspring that is born, and so too until the end of all generations, because there are never complete simanim here, as a portion of them are as if slaughtered [Tevu'ot Shor]. And one does not follow in this the calculation of the majority of the simanim if they are as if slaughtered or a minority of the simanim and follow the majority, because from the Torah the entire siman must require shechitah [ibid.].

A ben pekuah that mates with an ordinary animal, and the animal was slaughtered with a valid shechitah and an offspring was found inside her, even a nine-month-old living offspring is permitted through the shechitah of its mother like any other ben pekuah. And we do not say that behold, from the side of its father it does not require shechitah, for in truth, also from the side of its mother it does not require shechitah, as it is a ben pekuah from its mother as well. But an ordinary animal that mates with a bat pekuah, and the bat pekuah was slaughtered according to the law that has been explained—that by rabbinic decree she requires shechitah—and an offspring was found within her, there is no remedy for the offspring. For the shechitah of its mother did not avail it according to the Torah, as she is considered like one already slaughtered and her shechitah is only by rabbinic decree; and its own shechitah it does not have, for the part from the side of its mother is considered like one already slaughtered [ibid.], not like the one who disagrees on this. And there is no difference whether the offspring is nine months old, living or dead, or eight months old or less. And even though one could say that an offspring of eight months or less is like one of its mother's limbs, nevertheless, ultimately even this limb is such that half of it is permitted and half of it is not yet permitted [ibid.]. And one should deliberate on this, for it appears to me that when it is not yet subject to shechitah, it is not in the category of being divided, for it is truly like the limbs of its mother [and so it appears from the wording of the Shach, subsection 14].

It is stated in the Gemara [69a]: One who slaughters a beast and finds in it the likeness of a dove, it is forbidden for eating. What is the reason? We require hooves, and they are not present. This means to say that since the permission of a ben pekuah is derived from "a beast within a beast," as has been written, and it is written there "two hooves in a beast," it is explained that when something is found that does not have hooves, it is forbidden for eating. And perhaps you will say that if so, even when a closed-hoofed animal is found in its womb it should be forbidden, for a closed-hoofed animal has only one hoof and the Torah said "two hooves"? They answered in the Gemara that it is also written "hoof" [singular]; that is to say, that in Parshat Shemini it is not written "two hooves," for thus it is written there: "and cleaves the cleft of the hoof, that brings up the cud among the beasts," to teach us that one hoof is sufficient. Since it is not written "two hooves" as in Parshat Re'eh, we follow the Masoretic spelling in this, which implies one hoof, as it is not written "hooves" with a vav, see there. Therefore, a closed-hoofed animal is permitted, but the likeness of a dove does not have even one hoof, for the feet of birds are not a hoof like a beast.

And from this we have learned that that which the sages taught in the Mishnah in Bekhorot [5b]: a pure animal that gave birth to the likeness of an impure animal is permitted for eating, for that which emerges from the pure is pure, and as I will write later in siman 79—this is specifically when it gave birth to a species of impure animal. However, if it gave birth to the form of a bird, even though it is pure, it is forbidden for eating. For this is a simple matter: since when it is found within it, it is forbidden, all the more so when it has emerged outside. As is proven in the Gemara [68b], that even the one who holds that a cow that gave birth to a solid-hoofed animal is forbidden, admits that a solid-hoofed animal within its mother's womb is permitted; see there. Behold, it is explicit that within its mother's womb it is more lenient than when it has emerged outside. And that which the Shas mentioned, "and he found within it the form of a dove," and did not mention "that it gave birth to the form of a dove," it said this to show the novelty: that even within its mother's womb it is forbidden, and all the more so when it has emerged outside. Furthermore, when it has emerged outside it is impossible for it to live, as is known. And so it implies explicitly in Niddah [23a], that any living creature that sired that which is not of its own kind does not live; see there. [And according to this, the rule in the Mishnah that "everything that emerges from the pure is pure" is well-settled, and it means that which emerges and lives].

And behold, the Shas derives it from that which is written "hooves," and the Yerushalmi in Terumot [Chapter 8, Halacha 1] derives it from that which is written "beast within a beast." This is the wording of the Yerushalmi: One who slaughters a beast and finds within it a creeping thing, it is forbidden for eating. What is the reason? "Beast within a beast you shall eat," and not a creeping thing within a beast. One who slaughters a beast and finds within it a pig, it is permitted for eating; a dove, it is forbidden for eating [so it should be, and so it is in Rabbeinu Yerucham as cited in the Beit Yosef, and not like the commentator there]. What is the reason? Beast within a beast, and not a bird within a beast, and not a creeping thing within a beast. Thus far his words. And it appears to me that our Shas as well relies primarily on this derivation, for if not so, it should also require that specifically a ruminant be found in its innards, for in the verses it is written "ruminant" regarding a beast; and if so, when the form of a pig is found within it, it should be forbidden. Yet it is explicitly explained in Bekhorot [24a] that a pig that follows after a cow, if it is only known to us that she gave birth to it, it is permitted for eating, and all the more so when it is found in its innards as I have written. And that which the Shas required the derivation of "hooves," it seems to me that from "beast within a beast" it holds that it is impossible to exclude anything but a tamei thing found in its innards, such as a creeping thing; but the form of a dove, which is tahor, would be forbidden since the Merciful One did not exclude it. It comes to teach us the derivation of "hoof," that since there is no hoof here, it is forbidden. But a pig is impossible to exclude from "ruminant," for the verse included every beast within a beast, and a wild animal is also called a beast, as is explained in the Shas in many places.

And according to this, the matter is clear that if there was found in its innards an animal whose legs are like the legs of a pigeon or that has no legs at all, it is permitted; for granted that there is no parsa here, nevertheless there is "an animal within an animal" here. And this is the opinion of the Tur, who wrote: One who slaughters an animal and finds in it the form of a pigeon, it is forbidden; but if he found in it an animal whose legs are like the legs of a pigeon or that has no legs at all, it is permitted. Thus far his words. And this is the opinion of the Tosafot, the Rosh, the Ran, and the Rashba there. And it is true that they wrote the reason that we only require the species of parsa and we do not require an actual parsa, see there. And according to our words, one can say it is like the reason of the Yerushalmi, and nevertheless, for the halacha, it is all one.

And our teachers, the authors of the Shulchan Aruch, wrote in their books [the Beit Yosef and the Darkhei Moshe] that according to the Rambam it is forbidden in such a case, and they inferred this from what he wrote in chapter 1 of Ma'akhalot Assurot, law 7. This is his wording: A beast in which the form of a bird was found, even if it is a pure bird, it is forbidden for eating; nothing found in a beast was permitted except that which has a hoof. Thus far his words. And from this they inferred that anything that does not have a hoof is forbidden, see there. And in my humble opinion, it appears that the intent of the Rambam was to exclude only a pure bird for this reason, as this is the primary novel point as we have explained, and this is why he was precise in his wording: "even if it is a pure bird." However, a species of beast found within it is not at all due to the reason of a hoof, but rather due to the reason of "a beast within a beast" like the Yerushalmi, and our Shas also holds this way as I have written. And a proof for this is from what he wrote previously: A pure beast that gave birth to something like an impure beast, even though it does not have a split hoof and does not chew the cud etc., it is permitted for eating. Thus far his words. And his intent is as we have explained, that the permission is not due to the reason of a hoof, for if so, it would require chewing the cud which is explicit in the verse; rather, the permission is due to the reason of "a beast within a beast," and the reason of a hoof is only for a pure bird [and in vain did the Beit Yosef wonder at the Maggid Mishneh for bringing the words of the Rashba and the Tosafot regarding the words of the Rambam, for the Maggid Mishneh understood as I have written].

And also aside from this, the words of our teacher, the Rema, are very puzzling, as he wrote in section 5 regarding what the author wrote in the language of the Rambam that we brought: And some say that even if its hooves are uncloven, provided that it resembles an animal of a species that has a hoof, thus far his words, etc. And his intention was the words of the Tur, but he should not have written thus, but rather: And some say that even if it has no hoof at all. And the great later authorities have already wondered at his words. And one must say that his intention was the opposite: that even if a bird is found within it and it has a hoof, it is forbidden, for everything depends on the species of the hoof and not on the hoof itself. And this is what he wrote, that "even if its hooves are uncloven," it refers to a bird and is for stringency [Shach, subsection 20]. But in truth, it seems primary that the Rambam does not disagree at all, as I have written.

Our teacher, the Beit Yosef, wrote: One who slaughters a beast and finds within it a creature that has two backs and two spinal columns, it is forbidden. Thus far his words. And the reason was explained by the Rambam there, that even though the Torah permitted every species of beast found within it, nevertheless, the Torah explicitly excluded this matter, as it is written: "These you shall not eat from those that chew the cud and from those that have a split hoof, the 'shasua'." And this is a creature that has two backs and two spinal columns, and "shasua" means a creature that was born split into two beasts, see there. And they explained in the Gemara [Niddah 24a] that it is impossible to say that the Torah's intention is when it was born this way, for this is something that is impossible as it cannot live, and consequently it is forbidden as nevelah; rather, the intention is if such a creature is found inside it, it is not permitted like a standard ben pekuah. [And the wording of the Rambam there, who wrote "that gave birth or that was found etc." requires great study, for this is something that is impossible, and the Kesef Mishneh already wondered about him, see there. And perhaps his reason is that he holds that regarding the reality, Rav and Shmuel would not disagree, except that there is a minority of a minority that live as well, and Rav holds that the Torah spoke regarding the majority, and Shmuel holds that the Torah spoke regarding the minority, and he ruled like Rav, and according to this his words are correct; and examine this carefully].