Siman 14

It has already been explained in the previous siman that the Torah permitted a fetus found within a slaughtered animal, for the fetus does not require shechitah. Consequently, it is understood that if at the time of shechitah the fetus extended its limb or its leg outside the womb, the protruding limb is not permitted by the shechitah of its mother, for the Torah only permitted "an animal within an animal," as is written there—that it must be resting within the mother's innards, and not that which protrudes outside the mother's partition. Furthermore, the Sages received a tradition [68a] that a limb which protruded outside prior to shechitah, even if the limb returned inside to within her innards prior to shechitah and she was slaughtered, this limb remains in its forbidden state; for it is written, "And flesh in the field, tereifah, you shall not eat"—once flesh has exited outside its partition, it is forbidden like a tereifah, which has no permit.

The explanation of the matters is that if it would enter your mind that the intent of the verse is only regarding an actual tereifah, why do I need it to write "in the field"? For in any place that it was mangled, it is forbidden. Rather, this "in the field" is a term for "outside," like the field which is outside the boundary of the city. And this is the explanation: any meat that has a partition through which it may not exit outside its partition—such as the meat of the most holy offerings that exited outside the courtyard, or the meat of the lesser holy offerings that exited outside Jerusalem, or a fetus in its mother's womb where some limb exited from the mother's partition—behold, this is like a tereifah. Just as a tereifah has no permit, so too these, since they exited outside their partition, they were forbidden like a tereifah, and their return to their partition is of no avail.

And similarly, one partition does not avail for another partition. For example, a pregnant animal that is of the most holy sacrifices standing in the courtyard, or of the lesser holy sacrifices standing in Jerusalem, and the fetus extended its limb—this limb is forbidden in every case. Even if they subsequently slaughtered the mother in the Mikdash as a sacrifice and the entire fetus was permitted according to the law of a ben pekuah, nevertheless, this limb remains in its forbidden state, even if it returned inside. And we do not say: since the courtyard is a partition regarding the most holy sacrifices, and similarly Jerusalem is a partition regarding the lesser holy sacrifices, let it also be a partition regarding the limb, such that we would not consider it as a limb that went outside the partition of its mother; for this partition does not avail for another partition [Gemara 69a].

And even though there is no practical difference regarding the limb whether it returned inside or did not return, for in any case it is forbidden as has been written, nevertheless there is a practical difference between if it returned or did not return regarding the place of the cut. That is to say, when the limb is still outside at the time of the shechitah, when one cuts the limb, he must leave some of what is inside toward the outer side and cut it, for the place of the cut—the separation of the outer and the inner—is forbidden because it stands at the edge of the womb and we do not read concerning it "an animal within an animal," for it is not inside it. But if he returned the limb before the shechitah, he does not need to cut toward the inside; rather, he aligns it exactly and cuts, and the place of the cut is permitted, for we read concerning it "an animal within an animal," since by the emergence of the limb only the limb alone was forbidden, and the rest of the fetus is permitted.

In what case is it said that only the limb is forbidden and the rest of the fetus is permitted? When it extended its hand or its foot or another limb. However, if the fetus extended its head before the shechitah, the entire fetus is forbidden, for the shechitah of its mother does not avail it even if it was returned before the shechitah, because with the emergence of its head it is considered as born and is not permitted except through its own shechitah. And know that in Choshen Mishpat siman 277 it was explained that the emergence of the majority of the forehead is like the emergence of the entire head, see there, and here too it is so [Taz and Shach]. Therefore, when its head or the majority of its forehead emerged such that it is not permitted by the shechitah of its mother, if the fetus is found to be eight months old, whether alive or dead, or nine months old and dead, it is nevelah. But when it is found to be nine months old and alive, one performs shechitah on it like any animal, for it is not considered a fetus at all. And there is one who says that with the emergence of the majority of the forehead or even all of it, it is not considered as born except as a stringency and not as a leniency. The practical difference is that if it is nine months old and alive and requires its own shechitah, nevertheless the forehead is forbidden, for perhaps it is not as born and would have been permitted by the shechitah of its mother, and consequently the limb that emerged is forbidden [Tevu'ot Shor]. However, with the emergence of the majority of the head, it is certainly as born. And it appears to me that there is no difference whether its head emerged alive or emerged dead, it is as born; and if it is alive, it is permitted by its own shechitah, and if it is dead, the whole of it is nevelah. For even though in Choshen Mishpat ibid. it was explained that with the emergence of its head dead it is not certainly as born, nevertheless here because of the doubt it is also forbidden, for perhaps it is as born and is nevelah.

And just as with the emergence of its head it is considered as born, so too with the emergence of the majority of the fetus; for if the majority of the body emerged even without its head, it is considered as born. And so we learned in the Mishnah [69a] regarding a first-born animal, and as I wrote below in siman [309]. And even if only half of it emerged, but it is with the majority of a limb—for example, that in the half there emerged the majority of its foreleg, and when we measure the fetus in its entirety only half or even slightly less emerged, but if we cast the minority of the foreleg that is inside after the majority of the foreleg that is outside, it will be the majority of the fetus—it is forbidden. And we say "two majorities," for the minority of the foreleg we cast after the majority of the foreleg that is outside, and it is as if the entire foreleg is outside, and afterwards we cast the minority of the fetus after its majority. Nevertheless, for a leniency we do not cast the minority after the majority; for example, if the majority of the fetus emerged and within this there is a minority of the foreleg, we do not cast its minority that is outside after the majority of the foreleg that is inside and consider it as if the entire foreleg is inside, in which case there would be only a minority of the fetus outside—we do not say this. Rather, the minority of the foreleg that is outside is counted with that which emerged, and it is its majority, and it is as born.

The reason for this is that most of it in a minority of a limb is certainly considered as born, for we do not abandon the majority of the fetus which is outside and cast it after the majority of its limb which is inside [Gemara 70a]. For certainly the majority of the fetus is more significant than the majority of a limb. However, half of it in a majority of a limb is a legal doubt in the Gemara there. And the doubt is whether the majority of a limb is as significant as the majority of the fetus to pull the minority of the limb after it. According to this, the laws are not equal, for most of it in a minority of a limb is as born whether for leniency or for stringency. But half of it in a majority of a limb is not as born except for stringency; for example, if it is a live nine-month-old and requires its own shechitah, nevertheless that which emerged is forbidden, for perhaps it is not as born and would be permitted through the shechitah of its mother, and consequently that which emerged becomes forbidden [Shach, subsection 7]. And the Tur, who did not clarify this, relied upon what he wrote later in siman 319 regarding the matter of primogeniture, see there. And likewise the Rambam did not bring this law in chapter 5 of the Laws of Forbidden Foods, for he relied upon what he wrote in chapter 4 of the Laws of Primogeniture, see there.

And all this is when we need to judge regarding the entire fetus, for then there is a doubt regarding its half in the majority of a limb, as has been written. However, regarding one limb alone, it is obvious that we do not cast its minority after its majority. Therefore, if it extended the majority of its hand, the minority of the hand that is inside is not forbidden. The reason is because we hold that there is no birth for limbs [68b]; that is to say, that the term "birth" does not apply to a single limb such that we should say it is in a state of being born and the minority follows the majority. It is specifically when it pertains to the majority of the fetus, which is considered as being born, that it is relevant to say so, and not regarding a limb, for the significance of the majority exists only if it is as if it were born.

It is a simple matter that this which we have forbidden regarding a protruding limb is only when the fetus is permitted through the shechitah of its mother. However, if it is not permitted through the shechitah of its mother, such as if the mother became a tereifah and it is a nine-month-old live fetus and requires shechitah for itself, the limb is also permitted, for its own shechitah permits everything. And it is a kal vachomer if the fetus was born before the shechitah of its mother, for it causes no harm that it protruded a limb while still in her womb; and all those born are thus, for they protrude part of a limb and return it until the whole is born. But if it was permitted through the shechitah of its mother, even if it emerged alive after her shechitah and grew up, such that midrabbanan it requires shechitah for itself, nevertheless, since from the Torah it is as if it were slaughtered, the limb is forbidden. This is not the case when its mother became a tereifah, for since from the Torah it requires shechitah for itself, the limb is also permitted [and see Shach, subsection 6].

If the fetus extended its foreleg and retracted it, and then extended its hindleg and retracted it, and then extended its spine and retracted it, in a manner that when we combine them it would constitute the majority of the fetus, nevertheless, the minority that did not exit is not forbidden. We do not apply in this case the law of "the majority has exited," which would render it as born and cause us to cast the minority that is inside after the majority that is outside. For since with every limb, when it extended it, it retracted it, and there was never a majority outside at one time, this is not like a birth but rather like the extension of a limb, where we do not cast its minority after its majority because there is no birth by limbs, as has been written. For even though retraction is not effective regarding the permissibility of the limb, as has been written, nevertheless it is effective regarding this matter: that we do not consider it like the extension of its majority at once. There is no birth here, but rather the extension of a limb [Gemara 68b].

But if he cut it limb by limb as it emerged, even though the majority of the fetus did not emerge at once, nevertheless, since ultimately the majority emerged outside and was not returned inside, the minority remaining inside is also forbidden. For it is a legal doubt whether in such a case it is considered born or not, and we follow the stringent view [ibid.]. And know that the Rambam there omitted these laws and his reason is not known, and the commentators have already been aroused by this. It appears to me that in truth he omitted several laws in this matter, such as the emergence of its head or its majority being considered born, and he relied on what he wrote regarding these laws concerning a firstborn in the Laws of Firstborns, chapter 4. And there in Law 14 he explained this law, that with the cutting of limbs it is considered like a majority, see there. And the same applies here, and consequently it is proven that without cutting, where he returned each limb inside, it is not like a majority.

Some say that when half of it has emerged through the majority of a limb, and in that half there is a limb whose minority is outside and its majority is inside, that which is inside is permitted in any case; for if we cast the minority of the limb that is inside to the outside, then we should also cast the minority of the limb that is outside to its majority that is inside [Bach in the name of Rashal and Pri Chadash]. And there is one who disagrees with this [Tevu'ot Shor subsection 13], and so it appears to me to be the primary view, for we have already explained that we do not cast the minority after the majority except regarding the matter of birth and not for any other matter. Therefore, even though we cast the minority that is inside to its majority that is outside, this is because through this a majority of the fetus is formed and it constitutes a birth; but to cast the minority that is outside to its majority that is inside, there is no reason for this to follow the majority [and the Tevu'ot Shor objected on the grounds that it is destined to emerge, but they are not similar to one another, and the Pri Megadim subsection 7 objected to him, and I do not know how to reconcile it, see there and examine carefully]:

It has already been explained in the previous siman that a ben pekuah that mates with a beast and she gave birth, that offspring has no remedy because it is like one who is half slaughtered. And if it mated with a bat pekuah, the offspring is permitted; see there. And even if one of the pekuim had extended a limb, such that that limb is forbidden as we have written, we do not say that the offspring born from it shall have that limb forbidden because we do not say that a limb begets a limb. For it is known that a limb does not beget a limb, for if it were not so, every blind person would beget a blind person and every lame person would beget a lame person; rather, the seed is mixed throughout the entire body [Gemara 69a]. And if it is difficult, for if so we should forbid the entire offspring because there is in its formation from the power of the forbidden limb as well—for in truth, anything formed from the power of a prohibition is not forbidden, for if it were not so, we would forbid all beasts because their formation is from the power of the chelev and blood of the father and the mother; rather, anything from a power is not forbidden [ibid.].

And only regarding the matter of the milk of this fetus from which a limb emerged: if it is a female and she grew up, it is a legal doubt, for milk is not similar to a fetus. For a fetus comes from the power of the mother, but the milk is her own essence; if so, the milk contains a mixture of milk from the forbidden limb. And we maintain that the milk of a treifah is forbidden, and here too, the limb has the status of a treifah as has been written. Or perhaps it is not similar to a treifah, which is a treifah in its essence, whereas this limb—even though the Torah forbade it like a treifah—nevertheless its prohibition is not due to treifut, but rather that it is like a limb from a living animal. And behold, all milk comes from a limb from a living animal and the Torah permitted eating milk; so what does it matter to us if milk also comes from this limb, which is also a limb from a living animal? Or perhaps it is not similar, for every animal during its life has a permission through shechitah, but this limb has no permission through shechitah as has been written. Therefore, it is a legal doubt and the milk is forbidden due to the doubt [Gemara ibid.]. And so ruled all the poskim, and so ruled the Tur and the Shulchan Aruch section 5 [and we have written the explanation according to the words of the Ran, of blessed memory, see there].

And there is one who says that since the reason for the prohibition is like the milk of a tereifah that was mixed with the milk of a kosher animal, if so, when we estimate that there are sixty in the entire animal against the limb, the milk is permitted, for every prohibition is nullified in sixty [Levush and Bach]. And there are those who disagree with this, for who is to say how much milk this limb produced? For there is a small limb that produces much milk, as the milk comes from the power of the blood, and there is a large limb that does not have an abundance of blood, and there is a small limb that has an abundance of blood [Taz and Shach]. And there is one who permitted it for another reason: that although there is a doubt whether there are sixty against the limb, nevertheless, this is only a rabbinic doubt, for it is a case of a species in its own species, and from the Torah it is nullified by a majority, and the sages required sixty as has been written in siman 98, and a rabbinic doubt is ruled leniently [Shach, subsection 12]. However, if we say so, why did the poskim rule this law stringently? Let us say perhaps there are sixty and a rabbinic doubt is ruled leniently, for there is certainly a majority against the limb and it is permitted from the Torah [Tevuat Shor]. And furthermore, if so, we should permit it by power of a double doubt, for in the Gemara there is a doubt regarding the essence of the prohibition as has been written, and if you say it is for a prohibition, perhaps there are sixty [Pri Megadim]. Rather, certainly, anything that is before us and we do not have the ability to ascertain its measure, even in rabbinic matters we do not follow the lenient path [ibid.], and if so, in every case it is prohibited.

And also regarding the essence of bitul, some say that bitul is not applicable here, neither by a majority nor by sixty [Mishneh LaMelech chapter 1 of Mishkav U-Moshav, that bitul is only applicable to something that was initially recognizable on its own and was subsequently mixed, but something whose initial arrival into the world was in a state of mixture, bitul is not applicable to it (Mordechai at the end of Chullin in the name of our teacher, Meshullam)]. However, I have explained with the help of Heaven in Even HaEzer siman 169, section 57, that we do not say this reasoning except regarding something whose origin and entry are not recognizable; but when the matter is recognizable from the essence of its creation and its way of growth is such, bitul is certainly applicable to it. Therefore, also regarding kilayim in the case of passing a perforated pot through a vineyard, and in the case of the increase of dripping water over flowing water, bitul is applicable when they do not possess the measure that makes it impossible to nullify them, as is proven in the Shas. Therefore, regarding milk, bitul is applicable, see there [where we also brought the reasoning of the Noda BiYehuda which the Pitchei Teshuva brought, but our reasoning is clear with the help of Heaven].

Since the fetus does not require shechitah, as it is permitted through the shechitah of its mother, therefore even if one extended his hand into her womb and cut pieces from the fetus and left them there, and afterward slaughtered the mother, the pieces of the fetus are permitted for eating, for the Scripture permitted them as "a beast within a beast." But regarding the beast itself it is not so; for example, if one extended his hand into her womb and cut from her organs something by which she does not become a tereifah, such as from the spleen or from the kidneys, and left them there, and afterward slaughtered her, the pieces are forbidden as ever min hachai. For the Scripture permitted "a beast within a beast," and not that of the beast itself. Furthermore, it is written: "Among the beasts... that [otah] you may eat," and we expound: "that" while it is whole, and not while it is lacking. And thus the sages taught in the Mishnah [68a]: If one cuts from a fetus that is in its womb, it is permitted for eating; from the spleen or from the kidneys, it is forbidden for eating. This is the general rule: something that is of her body is forbidden, and that which is not of her body is permitted.

The slaughter of a fetus in its mother's womb is not called slaughter, for there is no slaughter except upon emergence into the air of the world. Such a slaughter, if the fetus requires its own slaughter, renders it nevilah; for example, if one extended his hand into the mother's womb and slaughtered the fetus, and it was a live nine-month-old and emerged from its mother's womb after its slaughter, or if they slaughtered its mother and she was found to be a tereifah and it requires slaughter for itself, this is not slaughter. Behold, this law is an inquiry in the Gemara [74a] and we follow the stringent view. Since there is a doubt in the matter, therefore when one slaughtered the fetus inside, it is forbidden to slaughter the mother after it on that same day due to the prohibition of "it and its offspring," for perhaps it is a slaughter [Shach, subsection 14].

Just as we learned from the verse "And meat in the field, a treifah, you shall not eat" regarding a limb that protrudes from the fetus, so too we learned from this verse regarding dangling limbs and dangling meat in the animal itself, which have no vitality from the animal but are merely hanging from it, that they are forbidden as a limb from the living. And thus the sages taught [73b]: "And meat in the field, a treifah, you shall not eat"—to include the limb and the meat that are dangling in an animal, a beast, and a bird, etc. See there, and it will be explained in siman 62. And it is explained in the Gemara that one does not receive lashes for them as a limb from the living except when the animal dies, for then we consider them as if the limbs fell from it during its lifetime. But if one slaughtered the animal, there is only a general prohibition in them. And thus our sages, of blessed memory, said there: When one slaughtered them, there is only a commandment of separation alone; for since they are hanging from the animal at the time of slaughter, even though they do not draw vitality from it, nevertheless we do not consider them as if they fell from it during its lifetime. And thus our sages, of blessed memory, received: Death effects detachment, but slaughter does not effect detachment [74a]. That is to say, when it dies, we consider them as if they fell from it prior to its death, but with slaughter we do not consider it so.

In the opinion of many of our teachers, when he slaughtered it, there is no Torah prohibition in them at all, only a rabbinic commandment of separation, as is implied by the language of the Gemara that we brought. However, the opinion of the Rambam in chapter 5 of the Laws of Forbidden Foods, law 6, makes it clear that they are prohibited by the Torah, only that there are no lashes for them. And that which the Sages, of blessed memory, said, "there is in them only a commandment of separation," means a commandment from the Torah without the liability of lashes. This is the wording of the Rambam: Flesh dangling from an animal and a limb dangling from it, if it cannot return and heal, even if it did not separate until after it was slaughtered, it is prohibited, but one does not receive lashes for it. And if the animal died, we view it as if it fell off during its lifetime; therefore, one receives lashes for it because of the prohibition of a limb from a living animal. Thus far his words.

And from his words we learned that even though we learned this prohibition from the verse "and flesh in the field, a tereifah," the prohibition is not due to tereifah but rather due to ever min hachai [and so Rashi explained on page 74a, s.v. "When they said etc." that it is not due to nevelah but rather due to ever min hachai] and the Torah did not say that it should have the actual prohibition of tereifah, but rather it is forbidden like a tereifah, but its prohibition is due to ever min hachai. And so it appears to me regarding a limb that emerges from the fetus, that even though it was included from "and flesh in the field, a tereifah," nevertheless its prohibition is due to ever min hachai and not due to tereifah. And there is a practical legal difference regarding the matter of forewarning, for if they forewarned him on account of ever min hachai, he is lashed, but on account of tereifah, he is not lashed. And this is implied in the Gemara [69a] regarding the prohibition of chelev that we wrote in section 14, where the Sages explicitly compared this to ever min hachai, see there.

According to this, the words of the Rambam there in law 11 are well explained, as he wrote: Any limb of a fetus that emerged and one severed it before shechitah while it was outside, this is an eiver min hachai and one is lashed for it, even if the fetus died before shechitah [for death causes detachment as I have written]. And if it was severed after shechitah, one who eats it is not lashed, even if it died [for shechitah does not cause detachment]. And if the animal died and afterwards he severed it, one who eats it is lashed on account of eiver min hachai. Thus far his words. The Ra'avad, of blessed memory, challenged him, for behold it contains the negative commandment of tereifah. The Kesef Mishneh also wrote this, that there are two prohibitions in this: tereifah and eiver min hachai, see there. In my humble opinion, it seems clear that it only contains the negative commandment of eiver min hachai, and there is clear proof for this from a dangling limb and from the prohibition of chelev of an emerged limb, as the Shas says explicitly so [see there page 69: ordinary chelev is not considered like eiver min hachai and is permitted; the living is also no different, etc. And the Rambam, who wrote regarding the chelev that it is like the chelev of a tereifah that was mixed, etc., it is certainly so that this law is like the law of the chelev of a tereifah, but the prohibition is on account of eiver min hachai. And so I have seen among the great Acharonim who held that there is a negative commandment of tereifah in this, but in my humble opinion it is clear that it is not so, as I have written].