Siman 16

In the parsha of "an ox or a sheep," it is written after this verse: "And whether it be an ox or a sheep, it and its offspring you shall not slaughter on one day," to teach that this prohibition applies both to chullin and to kodashim. For it is impossible to say that it applies only to chullin and not to kodashim, since it is written in the context of sacrifices. And it is impossible to say that it applies only to kodashim and not to chullin, for if so, this "and whether it be an ox or a sheep" is superfluous, since it was already written previously "an ox or a sheep," and it should have written "and it and its offspring you shall not slaughter etc." Rather, it is to teach that this law applies also to chullin, and it applies in every place and at every time. And thus the sages taught in the Mishnah [78a]: "It and its offspring" applies both in the Land and outside the Land, both in the presence of the Temple and not in the presence of the Temple, in chullin and in kodashim, and both in kodashim that are eaten and in those that are not eaten, such as an olah. For even though it is not for human consumption, nevertheless, the consumption of the altar is also called "eating," as it is said: "And if eating it shall be eaten of the flesh of the sacrifice of his peace offerings"—the verse speaks of two eatings, one the eating of man and one the eating of the altar [81a]; and one is liable for malkot.

It is a simple matter that one only incurs lashes for the slaughter of the latter one, for with this he performed the prohibition. And if Reuven slaughtered the first and afterward Shimon slaughtered the second, Shimon is liable for lashes. The Rambam wrote [chapter 12]: Therefore, if the first slaughtered in the courtyard and the second outside, or the first outside and the second in the courtyard, whether both were chullin or both were kodashim, or whether one of them was chullin and one was kodashim, the one who slaughtered last incurs lashes because of "it and its offspring." Thus far his words. For even though when one slaughters kodashim outside it is forbidden for eating because of "slaughtering outside," and similarly chullin inside is forbidden due to the reason of "chullin in the courtyard," nevertheless, regarding the matter of "it and its offspring," we hold that a slaughter that is not fit is still called a slaughter [Chullin 85a: Rabbi saw the words of Rabbi Meir regarding "it and its offspring" and taught them in the language of the sages].

And for this reason, if the first person slaughtered chullin in the azarah, or slaughtered a treifah, or an ox condemned to stoning, or a heifer whose neck is broken, or a red heifer, or slaughtered for idols, and the second person came and slaughtered the second one, he is lashed. And similarly, if the first person slaughtered the one, and the second person came and slaughtered the second as chullin in the azarah, or an ox condemned to stoning, or a heifer whose neck is broken, or a red heifer, behold, he is lashed. But if he slaughtered the second for idols, he is not lashed on account of "it and its offspring," for behold, he is liable for his life, and the rule of "he is established with the greater punishment" applies to him, for one does not punish with death and lashes for one matter, unless they warned him only on account of "it and its offspring" and not on account of idols, in which case he is lashed on account of "it and its offspring" [the Rambam there]. And even though regarding a liability of death and money one is exempt from payment even if they did not warn him regarding death, and even if he was unintentional, as written in chapter 1 of Na'arah law 13 and in chapter 4 of Chovel U'Mazik, see there; nevertheless, regarding a liability of death and lashes, he is liable for lashes if they warned on account of lashes and not on account of death [and this requires further study, for behold, in Chullin 81a this was brought from Rav Dimi, and in Ketubot 35a this teaching of Rav Dimi was rejected, see there; and furthermore, there on 37b it is proven that death and money and death and lashes have one law, as is the way of every "tzrichuta" in the Shas, which is nothing but a mere "tzrichuta." And one must say that he holds that Rav Dimi was not refuted except regarding death and money because of the Baraita of the school of Chizkiyahu, and not regarding death and lashes. And so it appears to be the opinion of the Tosafot in Chullin ibid. s.v. "keivan," see there and examine carefully].

The prohibition of "it and its offspring" only applies to shechitah alone, even if it is an invalid shechitah as has been written. However, if there is no status of shechitah upon it at all, whether on the first or on the second, one does not transgress. Therefore, if the first or the second was killed by stabbing, or if one of them became nevelah during shechitah, one does not transgress. Similarly, a deaf-mute, an insane person, or a minor who performed shechitah on the first by themselves, it is permitted to perform shechitah on the second after them, for there is no status of shechitah upon this at all. If the shechitah of the first was a doubtful nevelah, it is forbidden to perform shechitah on the second after it, and if one performed shechitah, he does not receive lashes. Similarly, a thing that does not require shechitah, such as a fetus in its mother's womb, it is permitted to perform shechitah on the mother even though the offspring is also permitted through her shechitah, for a fetus is considered the thigh of its mother. But if it was a nine-month-old living fetus and it walked upon the ground, which requires its own shechitah by rabbinic law as has been written in siman 13, one may not perform shechitah on the offspring on that same day; and if one performed shechitah, he does not receive lashes unless the mother was a terefah, in which case it requires its own shechitah. If a deaf-mute, an insane person, or a minor performed shechitah and others saw them performing shechitah properly, it is forbidden to perform shechitah after them [Mishnah, chapter 6]. And it is possible that even if it is only known that they perform shechitah properly, even if they performed shechitah by themselves, it is forbidden to perform shechitah after them [Nekudat HaKesef], for the reason that it is permitted to perform shechitah after them is stated in the Gemara [ibid.] because most of their actions are flawed, and since we know that they perform shechitah properly, it follows that it is forbidden to perform shechitah after them. Similarly, if one performed shechitah on the first, it is forbidden to give the second to a deaf-mute, an insane person, or a minor in any case; for when others see him, it is obvious that it is forbidden, and even when others do not see them, it has already been explained in siman 1 that we do not hand over animals to them to perform shechitah, see there [Shach, subsection 20], and there these laws were explained.

The "one day" mentioned regarding "it and its offspring," the day follows the preceding night. Even though it is written in the context of kodashim, and in kodashim the night follows the day, nevertheless we learn from the "one day" of the creation of the world [page 83a]. Just as in the creation of the world the day follows the night, as it is written, "and there was evening and there was morning," first evening and afterwards morning, so too regarding "it and its offspring." Therefore, if one slaughtered the first at the beginning of the night, he shall not slaughter the second until the beginning of the second night. If he slaughtered the first at the end of the day, he may slaughter the second immediately at the beginning of the night. If he slaughtered the first during bein hashemashot, he shall not slaughter the second until the following day at the beginning of the night. If he did slaughter, he does not receive malkot, for bein hashemashot is a doubt whether it is day or doubt whether it is night, and we follow all its sides for stringency, and we do not administer malkot for a doubt. The time of bein hashemashot is explained in Orach Chaim siman 261; see there.

There is no difference in the prohibition of "it and its offspring" between whether one slaughtered the mother first and afterwards the son or the daughter, or whether one slaughtered the offspring first and afterwards the mother, and our sages of blessed memory learned this from a verse [82a]. Nevertheless, regarding two offspring there is a practical difference in this: how so? If he slaughtered the mother and afterwards slaughtered her two offspring, he is lashed eighty times, for on each slaughter of an offspring he is liable for lashes. But if he first slaughtered the offspring and afterwards the mother, he is lashed only forty times, since the prohibition is in the slaughter of the mother, and there is only one act in it [ibid.]. If he slaughtered it and afterwards slaughtered its daughter and afterwards its daughter's daughter, he is lashed eighty times, for he performed two acts of prohibition. But if he slaughtered it and afterwards slaughtered its daughter's daughter, for there is not yet a prohibition here, and afterwards slaughtered its daughter, who is the daughter of the elder one and the mother of the young one, even though from the perspective of both of them he is liable for lashes, nevertheless, since it is only one act, he is lashed only forty times [ibid.].

There is no obligation of malkot except when we know with certainty that she birthed it. However, if we do not know with certainty, even if the offspring is following after her—meaning it always goes with her—and it is forbidden by the Torah to slaughter them on one day because of the chazakah that she birthed it, nevertheless, one does not receive malkot for it. For it is a query in the Gemara [Bekhorot 24a] whether perhaps she also shows mercy to another's offspring; see there. The Rambam, of blessed memory, omitted this law, and his reason is not known. And if the offspring is not following after her, even though it resembles her in its growth and appearance, we are not concerned even for a prohibition, and it is permitted to slaughter them on one day [Shach subsection 6 in the name of the Rashal].

One who purchases an animal from someone, and the seller has its offspring or the mother of the one sold, and the purchaser wants to slaughter today and the seller also wants to slaughter its mother or its daughter today, the purchaser takes precedence, for it was on this condition that he purchased it. And so we learned in the Tosefta [chapter 5], see there. Therefore, if the seller afterwards sold the second one to another, he also has no permission to slaughter today when the first purchaser wants to slaughter today, for the seller did not have the power to sell to the second the right that he himself did not possess. And this is when the mother or the daughter was in the hand of the first seller; but if it was in the hand of another, whoever slaughters first is diligent and rewarded. And even if they are in the hand of one person, there is no prohibition for the seller or the one who purchases from him to slaughter unless the first purchaser informed him that his desire is to slaughter today. But if he did not inform him, the second is permitted to slaughter today, and he is diligent and rewarded, and it follows that the first purchaser will be forced to wait until tomorrow. And it is somewhat implied in the Gemara [82a] that specifically the second purchaser is permitted to slaughter beforehand when the first did not inform him, but the seller himself, even without the first informing him, should not slaughter beforehand, see there [see Shach subsection 14, and it requires further study, and look closely].

One who purchases an animal from another goes and slaughters and does not refrain, and he does not need to be concerned that perhaps it has a mother or a daughter with the seller and he will slaughter it today, for if so, the seller would be obligated to inform him, and since he did not inform him, presumably there is no concern in this. And also there is no concern that perhaps the seller sold the mother or the daughter to another and the other will slaughter today, for there are many doubts: perhaps it has no mother or daughter; and if you say it has, perhaps he did not sell them today; and if you say he sold them, perhaps the purchaser did not take them for slaughter; and if you say he took them for slaughter, perhaps he will not slaughter it today. However, if the seller knows that the one who purchased from him previously needs to slaughter today, or that he himself needs to slaughter today, he is obligated to inform the buyer. Therefore, when he did not inform him, he slaughters today and does not refrain. And if it became known to him that the seller or the first purchaser slaughtered today, he must perforce delay until tomorrow, and this is not a mistaken purchase; for even though the seller committed a prohibition by not informing him, nevertheless, it is not in our power to void the purchase, as he can say to him: "Slaughter tomorrow," for you did not say to me that it was urgent for you to slaughter today. And it is not similar to the four periods that will be explained before us. [ibid. subsection 9]

And our sages, of blessed memory, said [chapter 2] that there are four periods in the year when there is a presumption that anyone who purchases an animal needs to slaughter it today; therefore, if the seller sold its mother or its daughter to another today, he is obligated to inform the second purchaser. And if he did not inform him, it is a mistaken transaction when it becomes known that he sold the daughter or the mother to another today. Therefore, when he did not inform him, he slaughters and does not refrain. And there is no difference between whether the seller is an Israelite or whether he is not an Israelite, for even though when the seller is not an Israelite it is not relevant that they should warn the purchaser—and indeed there is one who holds that the purchaser must ask when he buys from a gentile [see the Rosh chapter 5, section 6]—we do not rule accordingly, for we need not be concerned for this, and we do not presume a prohibition. And the proof is that our sages, of blessed memory, did not warn the purchaser during these four periods that he should ask, but rather warned that the seller must inform, but the purchaser need not be concerned [the Rosh] unless he knows with certainty.

And these are the four periods in which one increases the meals: the eve of Pesach, the eve of Shavuot, the eve of Rosh Hashanah, and the eve of the final Yom Tov of Sukkot; for on the first days, because they are preoccupied with the mitzvot of sukkah and lulav, they are not accustomed to increase the meals. Therefore, one who purchases on the eve of these days, there is a presumption that he purchases them to slaughter them today. And this is specifically if he sold the mother or the daughter today, but if he sold them yesterday, he does not need to inform the second purchaser, for I say that the first purchaser slaughtered them yesterday.

And know that the Rambam, of blessed memory, after he wrote the law of the four periods, wrote, and this is his wording: In what case are these words said? When he saw that this one who purchased last was in a rush to buy and it was at the end of the day, such that the presumption is that he will slaughter now; but if there was time remaining in the day, he does not need to inform him, for perhaps he will not slaughter until tomorrow. Thus far his words. And his words are puzzling, and already the Rishonim wondered about him [for he explains in this way that which is written in the tenth chapter, "if he has time," see there]. And it appears that the Rambam, of blessed memory, has another approach in this, as he does not hold like that which was written previously, that if he sold from yesterday he does not need to inform, for this is not a logical reasoning at all; for most purchasers, even several days before Yom Tov, purchase for Yom Tov and will slaughter on Erev Yom Tov or the day before. Therefore, he explains that here we are dealing with a case where they purchased on the day before Erev Yom Tov, and the first one slaughtered the daughter or the mother today. Therefore, when this second one is not in a rush, the seller does not need to inform him, for we say that he will slaughter tomorrow on Erev Yom Tov. However, if he is in a rush and it is at the end of the day, such that it is evident that his desire is to slaughter immediately, he must inform him [Lechem Mishneh].

And so the Sages, of blessed memory, said [ibid.] that if one sold the one to a groom and the second to a bride, even if he sold them on two separate days, he is obligated to inform the second, for presumably they will slaughter on one day. And if he did not inform the second, it is a mistaken transaction. The great Acharonim wrote that now that the custom is that they slaughter several days before the wedding canopy, there is no need to inform when he sold on two days one after the other [Bach and Shach]. And such is the law regarding Yom Tov, for the custom now is to slaughter several days beforehand, and therefore regarding two days there is no concern [ibid.]. In our times, the custom is to slaughter for Yom Tov on the day before Erev Yom Tov, and therefore on that day or even on the preceding day, one must inform the second, for most of the world slaughters on one day, and one must be careful in this.

If one transgressed and slaughtered it and its offspring on one day, it is not clarified in the Gemara that there is a prohibition to eat the meat of the second one; on the contrary, it implies explicitly that it is permitted to eat the meat immediately, for the sages, of blessed memory, spoke in this language [115a]: Since the Merciful One prohibited it for the Most High, it follows that for a commoner it is permitted, see there. And it implies that it is permitted immediately, and so it is clarified from the wording of the Rambam. However, the Rishonim cited from the Bahag that it is prohibited to eat the latter one on that same day due to a fine. Therefore, the Acharonim wrote that we only fine him, and not others [Shach subsection 3 and Perishah]. And it is possible that for the members of his household it is prohibited just as for himself, so that he should not benefit from the prohibited act that he performed. And there is one who is concerned to be stringent even for others on that day [Tevuat Shor], but it does not seem proper to be so stringent regarding a prohibition that has no root in the Shas. And in a case of inadvertence, it seems that even for him it is permitted on that day [according to the Pri Megadim subsection 3].

Our teacher, the Beit Yosef, wrote in section 11: A Kuti who sold two animals and afterwards said, speaking offhandedly, that they are a mother and its offspring, he is not believed in what he said after he sold it and it left his possession; however, if he is believed by him, it is forbidden. Thus far his words. The explanation of his words is that if he had said it before it left his possession, he would be believed with a migo that if he wanted he would not have sold it, and also since he is speaking offhandedly, he is believed to be stringent. And this requires deliberation. And even if he intended to improve his sale, if he has a migo, it appears that he is believed. And there is one who says that there are those who disagree on this [Shach, subsection 23], but it is not compelling [Tevu'ot Shor]. And since the opinion of the Rosh and the Mordechai is explicitly explained as such, as I wrote in siman 127, even if there are those who disagree on the matter, one should be stringent. But after it left his possession, he is certainly not believed even when speaking offhandedly, except in a place where the matter appears to be so, as below in siman 313 regarding the matter of a Kuti who inflicted a blemish on a bechor, when he says offhandedly that the Israelite commanded him, he is believed, for if not so, why did he do this? [Shach, ibid.] And so too in any place where according to appearances he is telling the truth, he is believed when speaking offhandedly [Taz, siman 122]. But in this law, we have no reason from logic to hang it on him telling the truth. However, "if he is believed by him," meaning that he knows that this Kuti is far from speaking a lie, he is believed, for it is no worse than a place where according to the matter it appears that he is telling the truth, and here too, it appears that the matter is true since he is believed by him. And it is simple that this applies even to another Kuti to whom the offspring does not belong, since it depends on credibility.

He further wrote: An animal whose mother or daughter was slaughtered today and it became mixed with others, and one needs to slaughter from them today—what is the remedy? We should force them to move from their fixed place, and he should take one of them and slaughter it, for "anything that separates, separates from the majority." It is forbidden to slaughter the remaining two today. Thus far his words. And this is due to the reason of "fixed," and this is not "fixed" by Torah law but rather by Rabbinic law, as will be explained in siman 110 with the help of Heaven. And it is obvious that this refers to a case where it is necessary to slaughter today, for if it were not so, it would be a "thing that will become permitted," which is not nullified even in a thousand. The details of these laws and their reasons will be explained there with the help of Heaven.

The prohibition of oto v'et bno applies only to a pure domestic animal and not to wild animals nor to birds, as it is written: "And whether it be an ox or a sheep, you shall not slaughter it and its young in one day," and our sages, of blessed memory, expounded in Torat Kohanim: "ox" and not a wild animal, "sheep" and not birds. However, regarding domestic animals it applies even to those born from kilayim who were born from a lamb and a goat, and thus the tradition arrived: "or" to include kilayim [8b]. And kilayim in a pure domestic animal is only found from a lamb and a goat, for pure domestic animals are only three species: ox, lamb, and goat, and from an ox and a lamb or from an ox and a goat it is not found, for a large animal does not conceive from a small one, nor a small one from a large one [Bekhorot 7a]. And that which will be explained before us regarding kilayim that comes from a he-goat and a deer, even though it says there that a wild animal does not conceive from a domestic animal nor a domestic animal from a wild animal, nevertheless in this detail there are Tannaim there who hold that it is possible from a wild animal and a domestic animal, see there. And the laws that will be explained are according to them, but regarding small and large animals there is no one who disagrees; see there carefully.

The primary prohibition of "it and its offspring" is regarding females, meaning that one may not slaughter the mother with the son or the daughter on one day. Even though it is written in the masculine form, "it (oto) and its son (beno)," nevertheless the intent is regarding the mother. Onkelos translated it accordingly: "her and her son," see there. And why should we not say that it refers to the father and the son? This is something that is impossible, for it is known that animals do not have a known father, as all the males among the animals mate with all the females. And even if we were to force the matter and say that it deals with a case where there was no other male with her and both were closed together, nevertheless even this cannot be said, for it is written "and its son," which implies that which follows after it, and it is a known matter that the offspring only follows after the mother [Gemara Chullin 78b]. And why did the Torah not write "and a cow or a ewe, her and her son you shall not slaughter in one day"? Because in the preceding verse it is written "When a bull or a sheep or a goat is born," for these are the general species; therefore it is written afterward "And a bull or a lamb," meaning the species that I mentioned to you previously, you shall not slaughter in one day, and the intent is regarding the mother. Therefore it is written "lamb" (seh) because "seh" includes sheep and goats, as it is written "a lamb of sheep and a lamb of goats." And since it mentioned the types of the species, and all types are spoken of in the masculine form in the language of the Torah—as it is written regarding fish, "all that has (lo) fins etc.," and regarding winged swarming things it is written "that goes (haholech) on four, it is (hu) an abomination to you," and regarding the locust it is written "the locust according to its kind (lemino) etc.," and similarly regarding the specific species it is written "ram (ayal) and deer (tzvi) and yachmur," and the females are called "ayalah" and "tzviyah," and in all these there is no difference between males and females—therefore here too it is written in the masculine form [see Menachot 93a and Tosafot Bava Kamma 15a].

Nevertheless, there is a Tanna in the Gemara [78b] who holds that since it is written "it" [oto] in the masculine form, it applies also to males, such that if we knew who the father is, it is forbidden to slaughter the father and the son as well on one day. The sages disagree with this and hold that it only applies to females, see there. Our teachers divided on this: the She'iltot, the Bahag, and the Rif ruled that it does not apply to males; the Rosh ruled that it applies to males, and so wrote the Tur. However, the Rambam was in doubt, and therefore he wrote there: If it is certainly known that this is the father, one may not slaughter both of them on one day, and if he slaughtered, he does not receive lashes, for the matter is a doubt whether it applies to males or does not apply. Thus far his words. And so wrote the Shulchan Aruch in section 2, see there. [The reasoning of the Rosh is because Shmuel said the halacha follows Chananya, and because of the Mishnah in Bechorot 45a, see there. The reasoning of the Rambam is because we rule there on 79a like Rabbi Yehuda, and Rabbi Yehuda was in doubt, see there. The reasoning of the She'iltot, the Bahag, and the Rif is because Rabbi Abba there performed an act not in accordance with Chananya; so wrote the Rashba in Torat HaBayit, the second house, the fourth gate, see there.]

And know that all the Rishonim agreed with the Rambam that this law is a legal doubt, and therefore it is forbidden to slaughter the father with the son on one day, but if one slaughtered, he does not receive lashes. And in all matters in the world, the matter is a doubt whether we are concerned for the seed of the father regarding domestic animals and wild animals or not. And this is the opinion of the Tosafot, the Semag, the Meor, the Sefer HaTerumah, the Rashba, and the Ran, of blessed memory. And also the Rosh and the Tur hold that in the essence of the law, the matter is a doubt whether we are concerned for the seed of the father or not; even though their opinion inclines that we certainly are concerned for the seed of the father, nevertheless, for the halakha they ruled that the matter is a doubt, as is explained in the words of the Rosh there. And the Tur, who did not mention the doubt, did so because he does not deal with lashes which we do not have in this time, and regarding the prohibition, there is no practical difference whether it is a doubt or a certainty. And there is clear proof for this, for regarding the priestly gifts in siman 61 and regarding shaatnez in siman 297, the Tur wrote there explicitly that the matter is a doubt whether we are concerned for the seed of the father or not, see there. And some say that even the Bahag and the Rif, who wrote that we are not concerned, it is only regarding lashes, but regarding the prohibition they admit [Semag]. And in any case, this is the opinion of most of our teachers, the Rishonim and the Acharonim, that the matter is a doubt, and so it is implied explicitly in the entire Shas, and such is our established ruling.

There is a further dispute in the Gemara there whether we say "a lamb," and even a partial lamb, or whether we require an entire lamb. We hold that we say "a lamb," and even a partial lamb. The explanation of the matter is that it has already been explained that "it and its offspring" applies to kilayim that comes from a goat and a ewe, and these two species are of the domestic animals, and in both of them the law of "it and its offspring" applies. However, in kilayim that comes from a domestic animal and a wild animal, according to the one who holds that they can conceive from one another as I wrote in section 17, and in a wild animal the law of "it and its offspring" does not apply at all as I wrote there, and it has already been explained that the matter is in doubt whether we are concerned for the seed of the father or not. Therefore, there is a major practical difference in the law of "a lamb," and even a partial lamb, as will be explained with the help of Heaven:

How so? For example, a male lamb that mated with a female deer, and the deer gave birth to a daughter, and that daughter gave birth to an offspring, and he slaughtered the daughter and the offspring on one day. Behold, he is certainly exempt from lashes, for since there is a doubt whether we are concerned for the seed of the father or not, perhaps we are not concerned, and it turns out that this daughter is entirely a wild animal and not a domestic animal. However, there is a prohibition in this, for perhaps we are concerned for the seed of the father and she is partially a lamb. And if so, the prohibition only exists if we say "a lamb" and even "partially a lamb," but if we say that the Torah required it to be entirely a lamb, there is not even a prohibition.

Therefore, there is a practical difference regarding malkot, such as a male deer that mated with a female lamb and she gave birth to a daughter, and that daughter gave birth to an offspring, and he slaughtered the daughter and the offspring on one day. Behold, there is a certain prohibition, for perhaps we do not concern ourselves with the seed of the father and the daughter is entirely a lamb. However, regarding the matter of malkot, the matter depends on "a lamb and even a partial lamb." For if we say so, he is liable for malkot, because even if we say that we concern ourselves with the seed of the father and she contains a partial wild animal, nevertheless, she contains a partial lamb. But if we require "entirely a lamb," there is no malkot for her, for perhaps we concern ourselves with the seed of the father and she is not entirely a lamb. And the halacha was decided that we say "a lamb and even a partial lamb" [according to the Rabbis of Rabbi Eliezer, 79a]. Therefore, a male lamb that mated with a female deer and she gave birth to a daughter, and the daughter gave birth to an offspring, and he slaughtered the daughter and the offspring on one day, he has committed a prohibition but is not lashed. And conversely, a male deer that mated with a female lamb and she gave birth to a daughter, and that daughter gave birth to an offspring, and he slaughtered the daughter and the offspring on one day, he is liable for malkot, for it is "a lamb and even a partial lamb" [all is in the Gemara ibid. and thus all the poskim concluded].

It is further stated there [78b] regarding a male sheep that mated with a female deer and she gave birth to a sheep, and one slaughtered the deer and the sheep on the same day, that this is not a prohibition even if we are concerned for the seed of the father, because the Torah only prohibited a domestic animal and its offspring, and not a wild animal and its offspring. And the opposite: a male deer that mated with a female sheep and she gave birth to a deer, and one slaughtered the sheep and the born deer on the same day, he certainly receives lashes, because the Torah prohibited a domestic animal and its offspring, whatever the offspring may be, since the mother is a certain domestic animal. And the practical difference is only regarding the offspring born from them, when the offspring is a female and she gave birth to an offspring, and one slaughtered the female and the offspring on the same day; in this, the clarifications of the laws are dependent, as explained in section 22 and 23, as I have written with the help of Heaven.

The words of the Rambam in these matters are very puzzling, for he wrote, and this is his wording: And it applies to kilayim. How so? A deer that mated with a goat, and one slaughtered the goat and its son, he is lashed. But a goat that mated with a female deer, it is forbidden to slaughter her and her son, and if he slaughtered, he is not lashed. The Torah forbade a cow and its son, not a female deer and its son. If this daughter of the female deer was a female and gave birth to a son, and he slaughtered the daughter of the female deer and her son, he is lashed. Thus far his words. And also in the Shulchan Aruch, section 8, they wrote according to his words. And the matters are puzzling in that which he ruled regarding a goat that mated with a female deer, that it is forbidden to slaughter her and her son; for since the Torah did not forbid a female deer and its son, from where do we have the authority to divide between a prohibition and lashes? And certainly there is not even a prohibition in this. And likewise that which he ruled that when he slaughtered the daughter of the female deer and her son he is lashed—behold, he himself ruled that the matter is a doubt whether we are concerned for the seed of the father or not, and how can he be lashed? Perhaps we are not concerned for the seed of the father and it is entirely a deer, and there is not even a partial sheep in it. And already all the poskim have wondered at him, and many things were said regarding this [see Maggid Mishneh, and Bach, and Shach subsection 16, and Taz subsection 12, and they remained with a difficulty].

And more than this, his words in chapter 9 of Hilkhot Kilayim, law 6, are puzzling, where he wrote: Those born from kilayim, if their mothers were of one species, it is permitted to mate them with one another; and if they were of two species, it is forbidden to mate them with one another, and if he mated them, he receives lashes. And so too, if he mated this offspring even with the species of its mother, he receives lashes. How so? A mule whose mother is a donkey is permitted to be mated with a female mule whose mother is a donkey, but it is forbidden to mate it even with the donkey. But a mule whose mother is a horse is forbidden to be mated with a female mule whose mother is a donkey, etc. Thus far his words. For from the first part it is clear that we do not concern ourselves with the seed of the father at all, and in the latter part it is clear that we certainly concern ourselves with it, for he wrote that if he mated it with the species of its mother, he receives lashes. And the Rosh, of blessed memory, already wondered at him in the laws of kilayim, see there. And the commentators labored to emend his words, but they did not succeed, see there.

In my humble opinion, it appears that the Rambam, of blessed memory, had a different approach to all these matters because he saw in the Shas two things that contradict one another. For in Chullin [79a] they ruled the halacha like Chananya, that "it and its offspring" applies to males, which indicates that we are concerned for the seed of the father. Yet in Ketubot [111b] they ruled the halacha like Rabbi Yehuda regarding mules, that a mule that is in heat, one may not mate with it either a horse or a donkey, but only its own kind. From this it is explicitly clear that we are not concerned for the seed of the father, or that it is a matter of doubt, as is explained in the Shas in Chullin. He holds that since the Shas did not bring this dispute in one place, it proves they do not contradict each other. And the truth is indeed so: certainly we are concerned for the seed of the father regarding the offspring itself, as the offspring contains a portion from the father as well; nevertheless, the portion of the mother is greater than the portion of the father, and thus the language "we are concerned for the seed of the father" proves. Therefore, to mate this offspring with the species of the mother itself is shaatnez because of the father's side, and one is lashed for it, because in the species of the mother no other species is mixed, while in the offspring another species is mixed. However, to mate it with a species that is from its mother's side is considered "its own kind," for even though they are divided from the side of the fathers, we are not concerned for the seed of the fathers; since both are equal from the mother's side and both are equal in the sense that another species is mixed in them, the seed of the father is nullified by the seed of the mother regarding mating. This is not the case when mating it with the species of its mother alone, for then they are not equal at all. [And he would explain that which Rabbi Yehuda said, "a mule that is in heat etc.," meaning not the species of a horse alone and not the species of a donkey alone—that is to say, not with the species of the father alone and not with the species of the mother alone—but "its own kind," meaning those that are equal from the mother's side, even though they are not equal from the father's side. And that which the Shas in Chullin labored over regarding the words of Rabbi Yehuda to establish it as referring to a mute or a stump-tailed animal, that was before it brought the words of Rav Huna the son of Rabbi Yehoshua that everyone agrees that a mule with its mother is forbidden. And that which the Shas said there, "conclude from this that he is in doubt," he rejected because of that which is in Ketubot, for regarding a doubt it is not appropriate to say "the halacha is..." Also, that which the Shas said there, "and Shmuel follows his reasoning etc., but the Sages say all kinds of mules are one, who are the Sages? Chananya," see there; and according to this, the father's side is equal to the mother's side—this too he rejected from that which is in Ketubot. And he would hold that according to the Shas there, Chananya would not contradict Rabbi Yehuda, according to what I have written. And there is a proof for this from the Yerushalmi, chapter 8 of Kilayim, halacha 3, which says there: the Sages agree with Rabbi Yehuda regarding a horse that is the son of a horse that is the son of a donkey with a donkey that is the son of a donkey that is the son of a horse; that is to say, this one is a horse from its mother's side and a donkey from its father's side, and that one is a donkey from its mother's side and a horse from its father's side. Yet in Chullin it says the opposite, that for the Sages all kinds of mules are one. Rather, it is as we have said, and the Rambam holds that the Shas in Ketubot also holds so. The commentator there labored over this, but according to what I have written it is simple and correct; and study it well].

And regarding what he wrote concerning "it and its offspring," another intention is hidden in his words: for that which he wrote, that the matter is a doubt whether it applies to males or not, this is not because there is a doubt whether we are concerned for the seed of the father, for certainly we are concerned, but rather because the rabbis of Hanania excluded males from "it," which implies one and not two, as is explained in the Gemara there. And if so, it can be said that they also hold that we are concerned for the seed of the father, but that the Torah excluded the seed of the father regarding "it and its offspring." And "individual and many, the halakha follows the many," and Shmuel, who ruled the halakha follows Hanania, refers to the general principle that we are concerned for the seed of the father, for in the entire Shas the words of Hanania are mentioned regarding this matter. And the intention of Shmuel regarding Hanania and his dispute is in the manner of the Shas in every place, but in the specific matter of "it and its offspring" he is not dealing at all. Or, it is possible that the sages hold that from this midrash it is proven that we are not concerned for the seed of the father, and if so, the halakha follows Hanania even regarding the matter of "it and its offspring," and this is why he wrote that the matter is a doubt whether it applies to males, etc. But it is simple that we are concerned for the seed of the father, and therefore he correctly ruled regarding a goat that mated with a doe and the doe gave birth to a daughter, and the daughter gave birth to a son, and he slaughtered the daughter of the doe and her son, he is lashed. For since regarding itself it is simple to us that we are concerned for the seed of the father, and there is in this daughter a portion of a lamb from the side of the father, and we established that "a lamb," and even "part of a lamb," as has been explained, and if so, certainly he is lashed. And that which he wrote that it is forbidden to slaughter the doe and her son, even though in the Gemara they said "a lamb and its son" the Merciful One said, and not "a deer and its son," he holds since the Shas uses the language of "exempt," it is exempt but forbidden, as in Shabbat [16, subsection 11]. And regarding the covering of the blood which he wrote in chapter 14, that anything from a domestic animal and a wild animal one covers and does not recite a blessing, his reason is simple: for even if the father is from a wild animal one must cover, for we are concerned for the seed of the father, and he does not recite a blessing even if the mother is from a wild animal, for since we are concerned for the seed of the father and the father is from a domestic animal which does not require covering, its law is like that which is mixed with blood that does not require covering or with water, where it is required that there be in it the appearance of blood that requires covering, as I wrote in siman 28, and who can estimate this? [And there is no need for what the Kesef Mishneh wrote from his response to the sages of Lunel, and the proof is that he only mentioned there a koy, and study this.] And that which he wrote regarding the priestly gifts in chapter 9 of Bikkurim, a deer that mated with a goat and she gave birth, the offspring is liable for half of the gifts, for "a lamb," and even "part of a lamb," and a he-goat that mated with a doe is exempt, see there; even though he holds we are concerned for the seed of the father, nevertheless regarding monetary matters it is different, for he can say to the kohen: since there is a dispute in this, bring me proof that the halakha is that we are concerned for the seed of the father. And this is impossible to bring, for behold there is a dispute in this, and granted that regarding a prohibition we have decided thus, nevertheless to extract money is impossible without clear proof. [And he learned this from Hullin 79b, where it asks against the rabbis: let him say to him, "bring proof that we are concerned for the seed of the father and take," see there. And it is a wonder what it asks against the rabbis, let us say that they hold like Hanania? Rather, certainly regarding monetary matters it is different, and there is no need for what the Shach wrote in siman 61, subsection 10, and study this.]