Siman 17

A domestic animal, wild animal, or bird that is sick and dangerously ill and tending toward death, nevertheless, since they do not have a specific wound in their organs that renders them treifah, behold, this is permitted. For the Torah only prohibited a nevelah, which is when it died or was not slaughtered properly, which constitutes a nevelah, or if it has a treifah in one of its organs as explained in the laws of treifot, and then it is prohibited while alive even if it was slaughtered properly. This is not the case for a dangerously ill animal which only has a weakness of strength, and therefore even though it is tending toward death, it is kosher when it is slaughtered properly, as will be explained.

And this matter is explicit in the Torah and in the Prophets. For the Torah said, "You shall not eat any nevelah," and nevelah is after death, as it is written: "And if there die of the beast which is yours for food, he who touches its nevelah etc." And you have no dying animal that was not, a short time before death, a mesukanat. And if we were to say that the Torah forbade a mesukanat, why would it need to forbid nevelah after death? For behold, even while alive it would be forbidden. Rather, it is certain that while alive it is permitted [Gemara 37a]. And in the Prophets this is also explained, for Ezekiel the prophet cried out [4]: "Ah, Lord God! Behold, my soul has not been defiled; and nevelah or terefah I have not eaten from my youth etc." And it is impossible to say it refers to actual nevelah and terefah, for if so, this is no praise for a prophet regarding a matter that is forbidden to all of Israel. Rather, the tradition has come that it refers to a mesukanat, because it is the way to hasten its shechitah so that it does not die and become nevelah [ibid.]. And therefore he calls it nevelah. And regarding terefah, one can also say something similar, such as if a needle was stuck in its rumen before us and they hasten to perform shechitah upon it so that the needle does not go further and pierce the intestines and it become a terefah. And therefore he calls it terefah, meaning that these are close to becoming nevelah and terefah if they do not perform shechitah immediately. And since the prophet praised himself for this, learn from it that by the law it is permitted, and only the prophet was careful in this.

This is what the Rambam [Chapter 4 of Ma'achalot Assurot] and the Shulchan Aruch in section 3 wrote, and this is his wording: The greatest of the sages would not eat from an animal that they rushed to slaughter so that it would not die, even though it convulsed at the end of the slaughter. This matter contains no prohibition, but anyone who wishes to be stringent upon himself in this matter, behold, he is praiseworthy. Thus far his words. And it is implied from their words that there is no distinction between the animal of an Israelite and the animal of a non-Jew [and see there in the Maggid Mishneh].

This is the wording of the Tur: There are some of the Geonim who wrote that they did not permit a mesukenat by way of signs except in the case of an animal belonging to an Israelite because of financial loss, etc. And in another responsa of a Gaon: A mesukenat that belongs to a Cuthean, it is permitted for an Israelite to slaughter it and take meat from it, and it is permitted for an Israelite to buy it from the Cuthean. Thus far his words. The commentators wrote that these two opinions are not divided at all, and the first opinion also does not state a prohibition, and it is only a measure of piety for one who conducts himself with piety, and the second opinion is for every person [Beit Yosef and Bach]. And there are those who add further that regarding an animal belonging to an Israelite, even a measure of piety does not exist, but rather a stringency for the great sages [Shach, subsection 8]. However, there are those who disagree and hold that regarding an animal belonging to a non-Israelite there is a prohibition by law until it stands up on its own and walks four cubits of proper walking [ibid. in the name of the Ra'avan and the Bach in the name of the Or Zarua]. And all this is regarding a mesukenat, but a sick animal that is not a mesukenat, even a measure of piety does not exist [Tevuat Shor]. [And now there is a doctor appointed by the government who supervises that they shall only slaughter those that are healthy and good].

There is a difference between the slaughter of a healthy animal and the slaughter of one in danger. For a healthy animal, even if it did not convulse at all during the time of slaughter, such that it did not move a limb, it is permitted; since it is healthy, we have no concern regarding this. However, regarding one in danger, if it convulsed at the end of the slaughter in a manner where the convulsion continued until after the slaughter, it is permitted. But if it did not convulse at all, it is a nevelah and one is lashed for it, for the sages established that an animal in danger that did not convulse at the end of the slaughter is known to have had its soul depart from it before the completion of its slaughter. And what constitutes convulsion will be explained below in section 9.

And know that from the words of the Rambam in chapter 4 of Ma'achalot Assurot, law 13, it is clarified to me that even though we hold that one who performs shechitah and blood did not exit from it, it is kosher, and it will be explained in siman 28, nevertheless, in a mesukanat where blood did not exit from it, even if there was pirchus, it is forbidden. For he wrote there: One who performs shechitah on a domestic animal, wild animal, or bird and blood did not exit from them, behold these are permitted, and we do not say perhaps they were dead; and similarly, one who performs shechitah on a healthy animal and it did not perform pirchus, behold this is permitted, etc. Thus far his words. And it appears from his wording that the absence of the exiting of blood contains a concern of death in this case, and only in a healthy animal do we not concern ourselves, just as we do not concern ourselves with pirchus. But in a mesukanat, certainly there is cause for concern even if it performed pirchus, and we say that the pirchus is not a sign of life but rather like the tail of a lizard that performs pirchus. And the sages of blessed memory did not need to clarify this, as this is a simple matter, for the blood is the soul, and when there is no blood there is no soul. And on the contrary, even if blood exited, if it did not perform pirchus, it is also a nevelah [so it appears to me].

What is the sign of a mesukenet? When it is sick and lying down and cannot stand, and even if it eats hard things like all healthy animals, this is nothing. And even if they stand it up by hand and it stands, it is nothing. But if it stands by means of a shout or by means of a stick, this is not a mesukenet. And any that does not stand by means of a shout or a stick, behold it is in the status of a mesukenet and requires pirkus. And it is simple that if its leg was broken, whereby because of this it cannot stand and the entire body is healthy, it is not in the status of a mesukenet, for behold we see the reason why it cannot stand. Nevertheless, it appears to me that this is specifically when it eats, but if it cannot eat, behold there is a sign that through the breaking of its leg—even though it does not have the law of a nefulah which will be explained in siman 58—nevertheless its body has weakened and perhaps it is like a mesukenet, and it requires further study for the law.

We have already written that the convulsion must be at the end of the shechitah and that it should extend slightly even after the shechitah, and there is one who is lenient in this, but it is not so [see Shach, subsection 3]. And all the more so if the entire convulsion was after the shechitah, it is permitted. And if at the time of shechitah and immediately after shechitah it did not convulse, and after a duration of time it began to convulse, there are those who forbid and there are those who permit [see Pitchei Teshuvah]. And it appears to me like the words of those who forbid. And similarly, at the beginning of the shechitah and in the middle of the shechitah it is not effective until it is at the end of the shechitah and it extends slightly after the shechitah, or that the entire convulsion shall be immediately after shechitah.

How is the pirkus? The Rambam wrote [ibid.] regarding small livestock and regarding large and small wild animals: whether it extended its foreleg and returned it, or extended its hindleg even if it did not return it, or even if it only bent its hindleg, this is pirkus and it is permitted. But if it extended its foreleg and did not return it, this is forbidden, for this is nothing more than the departure of the soul alone. And regarding large livestock, whether the foreleg or the hindleg, whether it extended and did not bend, or whether it bent and did not extend, this is pirkus and it is permitted. And if it extended neither foreleg nor hindleg and did not bend at all, this is nevelah. And regarding a bird, even if it only fluttered its eye or only wagged its tail, this is pirkus. Thus far his words.

It is clear from his words that regarding small livestock and large or small wild animals, the bending of the hand alone is not effective, but the Tur wrote that it is effective, see there. And such is the opinion of the Rashba and the Ran and other Rishonim [Bach and Shach]. Certainly one must be concerned for the words of the Rambam regarding a Torah prohibition [and so wrote the Tevuot Shor and Pri Megadim]. Regarding the wagging of the tail in an animal, some say that this constitutes pirkus [Shach subsection 6], and so it is clear from the words of the Rishonim, and it requires a significant wagging. It is a simple matter that in a case where the pirkus is the extending of a hand or leg, it is necessary that it was previously completely bent; and similarly, in a case where bending is effective, it is necessary that it was previously completely extended, for if not so, it is not effective, as this is not considered bending or extending [Tevuot Shor]. Regarding that which he wrote concerning a bird, that the fluttering of its eye is effective, there are poskim who had the version in the Gemara "its wing," but its eye is not effective [Shach]. According to the opinion of the Rambam, perhaps its wing is not effective, and therefore it requires fluttering in both the eye and the wing; and one should not be lenient in a Torah prohibition.

He further wrote: One who slaughters a dangerously ill animal at night and did not know if it convulsed, this is a case of doubtful nevelah and it is forbidden. And so wrote the Shulchan Aruch in section 2. However, the Tur wrote that if at the conclusion of the shechitah blood issued from it in a stream, it is kosher; and if he slaughtered at night and was unable to see, and the next day he found the place of the shechitah soiled with blood, it is certain that it issued at the conclusion of the shechitah by way of a stream, and it is kosher. Thus far his words. And all the commentators wondered at him, for these are the words of individuals in the Mishnah [37a], and the sages disagree regarding this, and the halachah follows the sages; and they rejected his words. And in truth, there is no difficulty against the Tur, for he interprets that regarding this everyone agrees, and he holds that the convulsion of a foreleg or hindleg is a lighter convulsion than a stream of blood. But for the law, the primary view is like the opinion of most poskim, that a stream of blood is not effective [and so it appears from the wording "until it convulses" that the sages stated].

The Tur further wrote that there are two additional signs in the Gemara that constitute pirkus: that if she excreted waste, and it was projected to a distance, she is kosher; but if she excreted waste nearby, she is treifah, for this is not a sign of pirkus and other signs are required [it appears to me]. And similarly, if she cries out and her voice is strong, it is a sign of pirkus. However, all of our teachers omitted this, and it appears their opinion is that according to the conclusion of the Shas there, all of these are not signs of pirkus, and so one should rule. The opinion of the Tur is a minority opinion [and so the Beit Yosef wrote]. There are those who ruled according to the opinion of the Tur [the Rashal and the Bach], but since our teachers, the authors of the Shulchan Aruch, omitted this, one should not be lenient at all. And know that in this time, one must see that there is good pirkus without any shadow of a doubt, and one should not rely in this matter upon the butchers, whose way is to incline their opinion toward a permissive ruling. Regarding such matters, our sages, of blessed memory, said [9b]: A living animal stands in a presumption of prohibition until it is known to you how it was slaughtered.