Siman 15

A chick, as long as it has not emerged into the air of the world, is forbidden; and after it has emerged into the air of the world, it is permitted immediately, even if its eyes have not yet opened. And even though there is one in the Shas who holds thus, that before their eyes have opened they are forbidden [Rabbi Eliezer ben Yaakov, Beitzah 6b], and furthermore it says in the Gemara [Chullin 64a]: "Every swarming thing that swarms upon the earth" to include chicks whose eyes have not opened, and it is stated there that the prohibition is rabbinic and the verse is a mere asmakhta—we do not rule accordingly, for this is a minority opinion and the sages disagree with him and hold that as soon as they emerge into the air of the world they are permitted immediately. Thus ruled the Rif, the Rambam, the Rashba, the Ran, and other Rishonim. However, the Rosh, of blessed memory, ruled [ibid. in Beitzah] that they are forbidden until their eyes open, and the Tur brought both opinions, but in the Shulchan Aruch this opinion was not brought at all [The reasoning of the Rosh is that the Mishnah of Rabbi Eliezer ben Yaakov is "kab venaki," and in the Sifrei he copied the wording of the Rif as is his way and not because he holds thus, and the difficulty of the Taz in subsection 1 is answered, and as written in the Nekudot HaKesef; and the Yam Shel Shlomo, first chapter of Beitzah, siman 17, ruled like the Rosh, see there].

There are some of the Rishonim who wrote that due to the matter of sheketz one may not eat them until the wings grow, meaning the large feathers on its body that have quills [Hagahot Ashri there in the name of Or Zarua]. There are some of the great authorities who rejected this matter [Taz], and there are those who agreed to this [Shach and Pri Chadash]. And it is true that it is thus explained in the Yerushalmi of Beitzah [Chapter 1, Halacha 1]. This is its wording: Fledglings that have not grown wings upon them are forbidden due to sheketz, see there [and there it is impossible to say that this is according to Rabbi Eliezer ben Yaakov as the Taz wrote regarding the Hagahot Ashri, see there and examine it closely]. But in truth the matter is astonishing, for if our Shas held so, how could it have omitted this from a matter of daily occurrence? For even according to the one who is stringent in the Gemara until their eyes open, they have not yet reached the growth of wings, as is known. And even though the intent of the Yerushalmi that they are forbidden due to sheketz is not literal sheketz but rather the prohibition of "do not make yourselves detestable" which is Rabbinic—and this is the intent of the poskim who forbid, as they themselves wrote—nevertheless, even before they are born the prohibition is only Rabbinic as we have cited. If so, how did the Shas not mention this prohibition? And likewise, to reject the words of the Yerushalmi is very difficult.

Therefore, it appears to me as we explained in siman 13, section 2, that aside from what is explicitly mentioned in our Shas as being subject to bal teshaktsu, this is not a general prohibition and is only forbidden to those who are refined. We brought a clear proof for this from what the sages, of blessed memory, said regarding the stomach of an olah: a kohen of refined temperament may eat it raw, see there. According to this, it is well-settled, for the Yerushalmi is dealing with refined people, as we indeed find that the people of Eretz Yisrael were refined, as is stated in Shas [Ketubot 62a]: the refined ones of the West. We also find [Shabbat 145b] that the foods of Bavel were loathsome in their eyes. Therefore, the Yerushalmi mentioned this, while our Shas was not concerned with it. Consequently, for one to whom the matter is loathsome, it is forbidden for him to eat them due to bal teshaktsu [and nevertheless, in practice, one should be concerned for the great authorities who prohibit it].

If one ate the chick before it emerged from the egg, the Rambam wrote in chapter 3 of Ma'achalot Assurot, law 8, and this is his wording: But an egg of a pure bird in which the chick has begun to form, and one ate it, he is given lashes of rebellion. Thus far his words. And even though in the Gemara [64a] they derived this from "every swarming thing that swarms," it is a mere asmachta, as is explained there in the Gemara and as I wrote in section 1. However, there are some among the Rishonim who hold that while there is no Torah prohibition on account of the prohibition of swarming things, nevertheless it is nevelah from the Torah, like a fetus of a beast; and the Shas which says that the verse is a mere asmachta, this is regarding the prohibition of swarming things [Sefer HaTerumah]. And his reasoning appears to be that since it is meat, why should it not be forbidden on account of nevelah? And from the Rambam it is explicitly proven that he does not hold so, as I wrote. And so too the Rashba, of blessed memory, [in Torat HaBayit, gate 4] disagrees with this, see there. And I am surprised that he did not bring a proof for his words from the Yerushalmi [Beitzah chapter 1, halacha 1] which says there explicitly: eggs that have formed chicks, one does not receive lashes for them on account of nevelah, see there. And it is not similar to a fetus situated in the womb of the mother, for the mother requires shechitah, and if so, automatically when she miscarries it is nevelah since it was not slaughtered; but eggs, which the Torah permitted to be eaten as they are, it did not distinguish between whether there is a chick in it or there is no chick in it, for as long as it is situated in the egg, it has the status of an egg from the Torah. And therefore it seems to me that his intention is this: that when he removed the chick from the egg and it is dead, it is subject to the prohibition of nevelah, for since it is on its own, it has left the permission of an egg; but when he ate it with the egg, all agree that there is no prohibition of nevelah in it. And perhaps in such a case even the Rambam agrees, and the Yerushalmi is also dealing with where he ate it while it was in the egg. And perhaps even the Rashba would agree to this [even though from his wording in Torat HaBayit it does not imply so, nevertheless we can say so with difficulty, see there; but according to this, the Sefer HaTerumah should not have pressured himself regarding what they said in Chullin there that it is a mere asmachta, and we would say that this is while it is in the egg].

An animal that gave birth, if it is known that its months were completed—meaning nine months for a large animal and five for a small animal—it is permitted immediately on the day it was born, and we do not fear that its limbs were crushed from the birth pangs. And thus the sages, of blessed memory, said [51a]: The womb does not cause the crushing of limbs. And behold, the Tur and the Shulchan Aruch left their words unspecified, and it implies that even if there is a deficiency, such that it does not walk and is unable to stand, and even if she had difficulty giving birth, nevertheless we do not fear the crushing of limbs [Beit Yosef and Shach, subsection 3]. And so wrote the early authorities [Tosafot and the Rosh, ibid.]. And of necessity it must be said so, for if not so, it is obvious that there is no fear of the crushing of limbs in any offspring, for if we do not say so, most of those born would die [the Ran in the name of early authorities].

However, our teacher, the Rema, in his book Darkhei Moshe at the end of Orach Chaim siman 498, wrote that when there is a deficiency, one must be concerned [cited in Magen Avraham there, subsection 10]. This is also the opinion of several of the great Acharonim [Be'er Heitev and Tvu'ot Shor]. Logic dictates this as well, for since a deficiency has arisen, it no longer possesses the chazakah of the majority of kosher animals, as it has departed from the rule of the majority. And even though in siman 29 it will be explained, with the help of Heaven, that even when it has a deficiency it has not departed from the rule of the majority—unlike the one who disagrees on this, and we brought clear proofs for this, see there—that is when it was born without a deficiency and afterwards a deficiency arose in it. This is not the case when it was born with a deficiency; it never had a chazakah of kashrut from the majority of kosher animals. One should not ask that without a deficiency it is obvious there is no concern, as I have said; for one could say that this is what he meant: that we should not say it is a common minority and we must be concerned for it, just as we are concerned when we do not know if its months were completed to wait seven days, as will be explained, even though the majority of offspring are viable, nevertheless we are concerned because it is a common minority. So too, we might be concerned for crushed organs; he comes to teach us that this is not a common minority and we are not concerned for it [and it appears from our teacher, the Beit Yosef, there that this is his opinion, see there].

And so is the simple custom, that when a defect was born such that it cannot stand, even if it remained for seven days, we do not permit it until it leaves the defect. And even if it stood but did not walk all seven days, it should not be permitted until it walks four amot with a fine gait, and even post facto one should forbid it [Tevu'ot Shor]. And it is possible that post facto one may be lenient, since most of our teachers were lenient in this; however, ab initio one certainly must be stringent. However, a defect of difficulty in giving birth is certainly not a defect at all, for all those who have difficulty giving birth, nevertheless the offspring are healthy. And if there is no other defect in it, this is not a defect at all [and so it appears from the Tevu'ot Shor]. [And what he wrote, that after seven days the defect is greater, requires further study]:

And know that regarding the essence of this law that has been explained, that in a case where his months were completed one does not need to wait until the eighth day, we are not experts in "his months were completed" [Magen Avraham there, subsection 9], and in every case one must wait until the eighth day. And the reason our teacher, the Rema, did not write this law here is that he relied on what he wrote above in siman 13, section 3, and we explained it there in section 9, that we now are not experts in this, see there. And similarly, that it should not have a deficiency from walking as has been written. [And regarding that which they questioned the words of the Rosh and the Tur against one another, it appears to me regarding the opinion of the Tur that in Orach Chaim there he explained his opinion that it requires spreading upon the ground, and his intention was that there should be no deficiency in it, according to the opinion of the Ran that we brought. And here he left the matters unspecified and relied on what he wrote there; and the proof is that he did not write that even if there is a deficiency, as the Tosafot and the Rosh wrote, and his unspecified statement is according to its explanation, that it deals with where there is no deficiency. And he explains the statement of Rav Nachman accordingly, and it is well understood why he asks from a calf born on Yom Tov and from the baraita of "and they agree," for according to the Tosafot and the Rosh, what is the question? And that which he answers "when it spread etc.," he means to say that immediately upon its exit from the womb it spread with strength upon the ground, for we see that there is no concern of crushed organs. And Rav Nachman deals with where it did not spread immediately, but rather in the manner of newborns, and after an hour it stood and there is no deficiency in it. And the Tur, who wrote there "for example, that it spread," his intention was not "spread" specifically, but rather that there should be no deficiency in it, and he took the language of the Gemara; and study this carefully].

And if it has not been clarified that its months were completed, according to the law of the Gemara, it is forbidden to slaughter it within eight days due to the doubt of it being a nefel. However, eight full days are not required; rather, immediately at the beginning of the night of the eighth day, it is permitted. Furthermore, these seven days do not require twenty-four hour periods; if it was born on Sunday at the end of the day, it is permitted to slaughter it on Saturday night immediately. There are those who wish to be stringent to require twenty-four hour periods, but there is no reason for this. Thus, most of the great authorities agreed that twenty-four hour periods are not required, and so we establish the law.

It is a clear matter that this prohibition against eating an animal until the eighth day of its birth is not from the Torah, for we follow the majority, and the majority are not non-viable births. Only regarding a sacrifice did the Torah decree that from the eighth day and onward it shall be accepted as a sacrifice and not before, and even if we knew that its months of gestation were complete [Mishneh LaMelech, chapter 4 of Issurei Mizbe'ach]. However, regarding chullin, it is permitted from the Torah even in an unspecified case based on the principle of the majority, and only by rabbinic enactment did they rule stringently in this, as our teachers the authors of the Tosafot wrote [Yevamot 36b; Chullin 12b], for because it is a common minority, the sages ruled stringently. And although in all matters we follow the majority even by rabbinic enactment and do not rule stringently, nevertheless, in this case, since regarding a human the sages were forced to rule stringently concerning an offspring that did not survive thirty days—to require chalitzah for its mother when the father died without children due to the severity of the laws of forbidden relations, just as they ruled stringently regarding water that has no end—therefore they also ruled stringently regarding an animal, for if not for this one, that one would not endure [Tosafot Bekhorot 20b and Niddah 44b]. Furthermore, we decree regarding a healthy offspring on account of a sickly offspring, for when there is a defect from its birth, it is not included in the majority of offspring [ibid.].

And the Rosh wrote similarly in the nineteenth chapter of Shabbat [67] that this is a stringency of rabbinic origin. And there are those who wish to infer from the wording of the Rambam [Chapter 4 of Ma'akhalot Assurot, Halacha 4] who wrote that it is forbidden to eat from an animal that was born until the night of the eighth day from its birth, for any that has not remained eight days in an animal is like a nefel and one is not lashed for it. Thus far his words. And from the wording "one is not lashed," it implies that it is from the Torah. But it is impossible to say so, for even if he were to hold that there is an even doubt whether it is a nefel or not, his position is well known that he holds that a doubt regarding a Torah law is, by the Torah, to be ruled leniently. Furthermore, how is it possible to say that it is an even doubt? For the eight days of an animal and the thirty days of a human are equal, and he wrote explicitly at the end of the second chapter of Yibbum regarding a Yevama who gave birth to an offspring whose months were not complete and it died within thirty days, that if she was betrothed to a Kohen who is forbidden to a chalutza, he does not perform chalitza for her, because we do not forbid his wife due to a doubt of their words. Thus far his words. Behold, he calls it a "doubt of their words." Furthermore, it is known that the way of the Rambam regarding every Torah prohibition for which he writes that one is not lashed, he writes the reason why one is not lashed, just as regarding this very prohibition concerning consecrated items, he writes in the fourth chapter of Issurei Mizbe'ach that one is not lashed for it because it is a negative commandment rectified by a positive commandment; see there. And the matter is clear that he employed a routine phrasing as he did there because he did not wish to be lengthy and state that it is only of rabbinic origin, and he relied on what he wrote in other places.

And there is one who brought a proof from the Gemara in Rosh Hashanah [7a] regarding a bekhor, that one must eat it within its year, as it is written: "Before the Lord your God you shall eat it year by year," and the sages, of blessed memory, said there that for an unblemished one we count the year from the eighth day, and for a blemished one from the day it was born. And it asks: For a blemished one, is he able to eat it? Meaning, even for a blemished one one must wait until the eighth day due to the doubt of a nefel, see there. And if it should enter your mind that this is only midrabbanan, why does it challenge from a rabbinic prohibition against a Torah prohibition? Rather, it is certainly so that even from the Torah one must wait [Noda BiYehudah Tinyana, Even HaEzer, siman 19]. And it cannot be said that the requirement to eat a blemished one within its year is also only midrabbanan [as the Turei Even wrote there], for the Sifrei explicitly expounds from the verse that even a blemished one is from the Torah [Sifrei, end of Parshat Re'eh], and it does not appear that it is a mere asmachta, for even a blemished one is mentioned there in that passage, see there. And so it is explained from the words of the Rambam in chapter 1 of Bekhorot, that this is from the Torah, see there.

But in truth, this is no proof at all, for it appears clear to me that according to the Torah, whether it is unblemished or whether it is blemished, it is permitted to eat it for a year and a month within the second year, as it is written, "year by year." And thus the sages of blessed memory expounded in Bekhorot [28a] regarding a blemished animal, see there. And it is clear that this is also the case regarding an unblemished animal, for the primary subject of the verse deals with an unblemished animal, as it is written, "Before the Lord your God you shall eat it year by year." Rather, it was by rabbinic enactment that they were stringent regarding an unblemished animal, and even regarding a blemished animal they did not permit it in all circumstances, as is explained there [and Rav Ashi, who was refuted there, was only refuted regarding the details of the laws, see there]. And if so, since this is only rabbinic, the Gemara rightly challenged [and this exposition of "year by year" is necessary, and also regarding hiring, where it is written "as a hired hand year by year," we expound thus in Bava Metzia 65a. and there is a great need for further study on the Tosafot in Bekhorot 27b there, who considered this regarding tithes, and there it is not written "year by year" but rather "year year," and what is the connection between them, see there]:

They further brought proof from what is written in the Shulchan Aruch, section 3, that one does not rely on a Kuti regarding small kids purchased from him when he says they are eight days old, thus far his words. And this is from the responsa of the Rashba, and he wrote the reason is because he is only trusted regarding the testimony of a woman, and certainly here where he speaks to improve his sale, see there. And according to this, even in "speaking in innocence" he is not trusted, for in the testimony of a woman he is only trusted in "speaking in innocence" [Shach, subsection 4]. Therefore, even another Kuti who does not own the kid is not trusted [Pri Megadim]. And from this they inferred that it is a Torah prohibition, for if it were Rabbinic, he would be trusted in "speaking in innocence" as in other Rabbinic prohibitions [ibid.]. And this is no proof at all, for there it deals with very small ones that according to appearance have not yet reached eight days [Tashbetz, as written by the Gara and the glosses of Rapa], and in a place where there is a deficiency, it is obvious that he is not trusted, for whenever there is a deficiency, such as it being very small or sick, it is certainly a Torah doubt, for it is not permitted by the principle of the majority, since the majority do not have this deficiency. But in a place where there is no deficiency, it is possible that he is trusted in "speaking in innocence" if his intention is not to improve his sale. Furthermore, even in Rabbinic matters he is not trusted in "speaking in innocence," as will be explained in siman 69, section 58, see there.

And there are those who wished to say that it is therefore forbidden by the Torah because we establish the mother in the status of being pregnant [Pri Megadim and Noda BiYehuda Tinyana Yoreh Deah 66], but it is not so. For this would be if we needed to judge regarding the mother; in that case, we would certainly say that the status of the mother is effective for the offspring. But in a case where there is no need to judge regarding the mother, this status is not relevant at all [Rashi Kiddushin 66, and even according to the Tosafot there, it is clearly not relevant to this, and all the commentators there agreed with Rashi]. And there is one who wished to forbid it based on the status of being unslaughtered [ibid.], and this too is nothing, for what relevance does this status have to whether it is an eight-month birth or not an eight-month birth [and also the Chatam Sofer section 25 rejected this, see there]. And also one cannot say that we should establish it upon the status of not being an eight-month birth as it was on the day it was born, for it is obvious that there is no status more prone to change than this, as it must necessarily become an eight-month birth [see Kiddushin 79a]. And so most of the great Acharonim agreed that this prohibition is only rabbinic. Nevertheless, if one transgressed and slaughtered it within seven days, it is forbidden. And it is not similar to what they permitted regarding one who was betrothed to a kohen, that she does not require chalitzah as I have written, for that is in order not to remove a woman from her husband, but not in other matters. And if they cooked the meat, the vessels are also forbidden. And perhaps in a case of a doubtful eight-month birth, one may permit the vessels but not the meat itself, because the sages made this a fixed enactment and were stringent regarding it. Therefore, one should not be lenient at all regarding the meat itself, even if one cooked it unintentionally.

There are some of the great authorities who wrote that one must recognize by signs whether they are eight days old or not, such as if they have teeth, and likewise a sign in the horns, for if they are hard such that one cannot thrust a fingernail into them, this is a sign that they are eight days old [Pri Chadash]. And we have heard of other signs as well. And in truth, even if there were intermediate signs—neither poor nor definitive—it would also be possible to rely on them regarding a rabbinic prohibition. However, it is already known that one land is not similar to another land in their growth, and there is a land where it is known that even within eight days they occasionally have such signs, and they are nothing but poor signs, and it is difficult to rely on them even regarding a rabbinic prohibition.

And in my humble opinion, it appears as the practical halacha that since it has been clarified that this is a rabbinic prohibition, if so, in every single place, if a certain sign is known to the shochatim and the butchers in their locale—where the vast majority of cases possessing this sign are after seven days—they may rely on this sign. However, it is impossible to establish a general rule in the matter because the signs change from place to place. Likewise, if according to the growth it is clearly apparent that they are eight days old, or if a gentile speaking offhandedly, who does not own the animal, says that it is eight days old, they may rely on this. And all the more so if an Israelite testifies, even a woman, they may be relied upon, for actual testimony is not required for this. Only upon a minor male or a minor female is it impossible to rely. And if there is some defect, such as if it is very small in its growth relative to the value of eight days, or if it is sick, clear testimony is required, for this is prohibited by the Torah as I have written [and it is possible that one valid witness is sufficient].