Siman 25

An animal in its lifetime stands in a status of prohibition, under the prohibition of a limb from a living animal and the prohibition of being unslaughtered. When you come to remove it from the status of prohibition through your actions, you must know with certainty that you have removed it from the status of prohibition; as long as you do not know with certainty, it still stands in its status of prohibition. Therefore, the sages, of blessed memory, said [9a] that the one who performs shechitah is obligated to inspect the simanim after the shechitah to see if the majority of them were slaughtered. If he did not inspect, it is a nevelah and conveys impurity through carrying, even if the one who performed shechitah is expert and swift [the Rambam, chapter 1], because since it stands in the status of being unslaughtered and now it is dead, it is necessarily a nevelah.

And one should not ask, behold he turned the knife on all sides and certainly the majority were slaughtered, for this is no proof, as sometimes the simanim slip this way and that and he thinks they were slaughtered and in truth they were not slaughtered, and therefore you are not permitted to permit from doubt that which is under the presumption of prohibition [Rashba in Torat HaBayit, gate 2, house 2]. And also one should not say that we should follow the majority and the majority of slaughterers slaughter the majority of the simanim, for since it stands under the presumption of prohibition, one can say join the minority to the presumption and the majority is weakened. Furthermore, this majority is not clarified, for many times the majority of the simanim are not slaughtered [Mordechai, chapter 1]. And one should not ask, behold we hold that the majority of those found engaged in slaughtering are experts, and this majority is like all as written in siman 1, and if it is not clear that they slaughter the majority of the simanim, then they are not experts; for one can say that regarding this matter expertise is not relevant at all, since it is possible to inspect. And so wrote the Rosh in a responsum [klal 20, siman 14], and this is his wording: For when he did not inspect the simanim, it did not leave the presumption of being unslaughtered, and we have not found in any place that it says the majority of slaughterers slaughter the majority of the simanim such that we would rely on this majority to remove it from the presumption of being unslaughtered. Thus far his words.

From all the reasons that have been explained, it is clear that the opinion of our teachers is that when one did not inspect the simanim, it is nevelah from the Torah. This is also clear from the wording of the Rambam. There are some of the great later authorities who are uncertain about this [Tevuat Shor], and there are those for whom it is obvious that it is only rabbinic [see Chiddushei Rabbi Akiva Eiger and Chachmat Adam in Binat Adam, Sha'ar Orach Chaim, section 1]. They brought proof from what the Tosafot wrote there, that most of the time a slaughterer slaughters well and it is permitted by Torah law, see there. Also the Rashba in his Chiddushim there wrote, and this is his wording: Since most of the time the majority of the simanim are slaughtered, etc., and because it is a prohibition that depends on an action, the sages established it upon its initial status of prohibition, etc. Thus far his words.

But in truth, this is not so regarding the halakha, for they wrote this explicitly according to the one who holds in the Gemara there that it is only a treifa and not a nevela. Therefore, it is necessary to say so, that it is only midrabbanan, for if not so, in any case—if it was not slaughtered properly, it is a nevela. Therefore, they wrote that midrabbanan they were stringent regarding the matter of eating and not regarding the matter of nevela. But according to the one who holds in the Gemara that it is a nevela, it is certainly from the Torah, and on this itself the dispute in the Shas depends; see there. And even though one could say that the other also holds that it is midrabbanan, but that they were stringent also regarding the matter of nevela, it is not logical to say so. Furthermore, behold, from the words of the Rashba that we brought in section 2, it is explained that it is from the Torah, and how could the Rashba contradict himself from his book to his Chidushim? Rather, it is certain that in his book he wrote regarding the halakha, and in his Chidushim he wrote to explain the one who holds that it is not a nevela. And there is further clear proof for this, for behold, the Rif lengthily brought the entire sugya that it is a nevela, see there; and behold, the laws of tumah do not apply in this time, but rather it is certain that he intentionally brought this to instruct that the halakha is like the one who holds that it is forbidden from the Torah and is a nevela. And there is a practical halachic difference regarding several things: for if we say that it is forbidden only midrabbanan, it is forbidden to slaughter its offspring after it, and so too it requires kisuy hadam in a wild animal or a bird; and if we say that it is from the Torah, it does not require kisuy and it is permitted to slaughter its offspring after it. And regarding the core of the prohibition, there is a great practical difference between de-oraita and derabbanan regarding a doubt, for a doubt of the Torah is to be stringent and midrabbanan is to be lenient [and the Ma'adanei Yom Tov exerted himself there as to why the Rif and the Rosh brought this]. However, regarding the matter of tumah, it is possible that one is not lashed from the Torah because for tumah it does not have a chazakah [according to the Pri Megadim in the opening].

And one should not ask regarding this: behold we maintain that every doubt in shechitah is only a doubt of nevelah, as the Rambam wrote in the third chapter and as is written in siman 18, section 30, regarding one who slaughters with a checked knife and it was found to be notched, that it is a doubt of nevelah, and similarly regarding a doubt of delay and the other laws of shechitah, in their doubt they are only a doubt of nevelah; and in what way is this doubt stronger, such that it is definite nevelah? For in truth, they are not similar to one another; for in all the doubts, the act of shechitah was completed properly, but a doubt arose due to another reason for disqualification. However, when he does not know if the majority of the simanim were slaughtered, behold the act of shechitah has not yet been completed properly, and through what has it left its status of prohibition? Consequently, now that it is dead, it is definite nevelah [so it appears to me].

The Tur wrote: One who slaughters must inspect the simanim after the shechitah to see if the majority of them were slaughtered, etc., and if at the time of shechitah he sees them slaughtered before him, nothing more is required. Thus far his words. The explanation of his words is that you should not say that since the Gemara said "the butcher must inspect the simanim after shechitah," what he sees at the time of shechitah is not effective, for this is not logical; rather, even the sight of the eyes at the time of shechitah is effective [Derishah]. And the Gemara took the common way of the matter, because at the time of shechitah the simanim are full of blood and it is difficult to see if the majority of them were slaughtered. And in truth, there is one who wrote that one should not rely on the sight of the eyes for this reason, and he must insert his hand into the neck of the animal within the incision and see through the feeling of the hands that the majority was slaughtered [Taz in the name of Maharil]. And it is merely a stringency, as is proven from the words of the Tur and the Shulchan Aruch, see there.

Our teacher, the Rema, wrote that it is the custom to examine in this manner: that one presses the thumb upon the slope of the neck-cover, and through the pressure the simanim will be pushed outward, and then he can see if the majority of them were slaughtered even if he performed a shemutah; for if the simanim do not enter back inside after he removes his finger, it is a shemutah and is treif. However, one is not required to examine for shemutah, as we rely on the majority as with other treifot. And one should examine for this before he lets the bird out of his hand, but if they did not examine first, he examines afterward, and we do not fear that perhaps through the convulsion the incision widened. Thus far his words. And there are those who concern themselves that through the convulsion the incision widened, and they ruled that if he threw it from his hand before the examination of the simanim, it is treif [Bach in the name of Or Zarua]. And there is one who distinguished that if he found only the majority of the siman slaughtered, we fear that at the time of the shechitah there was not a majority and through the convulsion it widened, but if he found the entire siman slaughtered, it is kosher, for it is impossible to say that through the convulsion half the siman widened [Bach]. And there are those who distinguish between the esophagus and the trachea, for in the esophagus, when a majority of the siman is found, we do not fear that through the convulsion it widened, as it is not its way to tear across its width, but in the trachea we do fear, as it is the way of the trachea to fall apart [Shach, subsection 4]. And these are words of reason.

And regarding that which he wrote, that it is not necessary to check after the slaughter, there are those who disagree on this, because the Bahag wrote that it is necessary to check if they were slaughtered with displaced simanim, because it is common for the simanim to be displaced at the time of slaughter in a bird, as is proven from what was written at the end of the previous siman, see there. And if so, it is similar to the lung, which initially requires checking, but after the fact is kosher, as was written in siman 39, and the same applies to displacement in a bird [Shach, subsection 2]. And it is not similar to the slaughter of the majority of the simanim, which even after the fact is forbidden, for there the animal in its life stands in the presumption of not being slaughtered, whereas regarding displacement, even in its life it does not stand in the presumption of displacement [ibid.]. Therefore, initially one must check by pressing with the thumb as has been written, but after the fact when he did not press with the thumb, if he only saw that the majority of one siman was slaughtered, the bird is permitted [and it appears to me that in an animal the concern of displacement and struggling does not apply].

Those who check with a feather to see if the majority was slaughtered, may their spirit expire, for they are close to feeding treifot to Israel; for they thrust the feather through the mouth to the simanim to see if the majority is slaughtered, and perhaps the majority was not slaughtered, and we require a majority that is visible to the eyes. Furthermore, the feather tears and widens the incision, and even if it appears that the majority was cut, it is possible that the majority was not slaughtered and the feather widened the incision.

Our teacher, the Beit Yosef, wrote that there is one who says that it is necessary to see that they are slaughtered in the place of slaughter without hagramah. Thus far his words. In his great book, he wrote that he did not see people practicing this. The matter is simple: when one slaughters in the middle of the neck, there is no need to look for hagramah, but when one slaughters at the edge of the neck, certainly there is concern for hagramah and one must see that he slaughtered without hagramah. Because most slaughterers slaughter in the middle of the neck, therefore they did not practice this [Tevu'ot Shor].

Our sages, of blessed memory, further said [9a] that just as every doubt regarding shechitah is disqualified because it stands in a status of prohibition until it becomes clearly known to you that it was slaughtered properly, so too the opposite: when it was slaughtered properly and the animal left the status of prohibition for permission, it stands in a status of permission regarding every doubt that may subsequently arise concerning the matter of terefot that is not related to shechitah, until it becomes known to you how it became a terefah. Therefore, if a wolf or a dog came and took the intestines or the lung and returned them punctured, we are not concerned about this, for we say that they were whole and it punctured them with its teeth, and we are not concerned that perhaps there was a puncture even beforehand and it inserted its teeth into the location of the puncture. And it is not only necessary to say this in such a case, but even if many punctures were found not in the location of the teeth, we attribute them all to its teeth; and this matter will be explained in siman 36, see there. However, if a doubt was found regarding the shechitah, even if it left as permitted, it is forbidden, for it has been revealed that it left as permitted in error [Pri Megadim in Shiftei Da'at, subsection 6]. And let it not be difficult for you: since it was slaughtered, it stands in a status of permission, why then do we forbid it when the lung is lost where there is no great loss, as written in siman 39? For the lung is different, as the sages, of blessed memory, ordained to examine it for the reasons that will be explained there, and therefore when it is lost, the ordinance of the sages, of blessed memory, has not been fulfilled [see Kereti U-Peleti and Pri Megadim in Mishbetzot Zahav, subsection 5, and according to what I wrote it is well-settled, and delve into it]. And see what I wrote in siman 3.