Siman 30

A beast or a wild animal whose skull bone was crushed in its majority, having been struck many blows, yet it was not diminished and the membrane was not perforated—and even if the upper membrane of the brain is intact—if the majority of it is crushed, it is treifah. It has not been clarified whether this treifut is due to itself or because the membrane of the brain will eventually be perforated, as with birds, where it will be explained that the sages, of blessed memory, stated there that the reason is due to the membrane. It appears that in a beast and a wild animal as well, the prohibition is due to the membrane, for the sages, of blessed memory, established that when the majority of the skull bone in which the brain is placed is shattered, the brain can no longer endure; for it does not seem correct to say that some vitality depends on the bone itself. Furthermore, since it was explained regarding birds that it is due to the membrane, it follows that in a beast and a wild animal it is also so. And the reason the Gemara [56a] needed to explain this regarding a bird and not regarding a beast is because in a beast the measure is large—the majority when shattered, and when diminished, a sela, as will be explained—it is understood automatically that when there is such a great ruin in the bone and the membrane of the brain is as if exposed, it will certainly be ruined. But in a bird, whose measure is small, as will be explained, it was necessary to explain that in a bird, whose vitality is minimal, the membrane will be ruined even with a small measure [and see Tosafot 42b, s.v. "ve-amar," and study it closely].

And that which the Rambam wrote this law in the laws of a broken [bone] and not in the laws of a perforated [organ] is because the treifut depends on this; therefore he wrote it in the tenth chapter of Shechitah in the laws of a broken [bone]. And likewise when he enumerated the seventy treifot in that chapter in detail, he also counted it among the broken [bones] for this reason. And there is proof, for he also counted birds there in these laws, and they are certainly due to the membrane of the brain as has been written. And there is further proof for this from what the Rambam and the Tur wrote regarding this law: "even though the membrane is intact." And if you should think that the treifut is on its own account, what does it come to teach us with "even though the membrane is intact"? For one cannot say that it comes to teach us this itself, that the treifut is not on account of the membrane, for even if they had not written so, we would have known this from the silence of their words. Rather, it is certain that the treifut is on account of the membrane, and for this I would have said that specifically when we see some damage in the membrane, but without this it would not be a treifa; and it comes to teach us that even if the membrane is intact it is a treifa. And the reason is that it was established by our sages, of blessed memory, that the membrane is destined to eventually become damaged. And there is one who wishes to say that the treifut is on its own account and not because of the membrane [Noda BiYehudah siman 5], but it does not appear so [and his primary proof is from Tosafot 76b, starting with the words "if it was severed," and they are not similar to one another, for the "extra over them" regarding a bird on 56 is not corresponding to a beast but rather a water bird corresponding to other birds regarding the matter of examination as is explained there; and likewise his proof from the Hagahot Ashri and the Mordechai regarding the matter of the "court of the liver" where they brought proof from the liver and not from the skull, I am wondered, since they are able to bring proof from that organ itself, why should they bring it from another organ, as one does not compare treifot to one another? And see Noda BiYehudah Tinyana Yoreh Deah siman 18 where they challenged him for other reasons, and he is the one who believes to answer them, but our words are clear with the help of Heaven, and delve into it] [and so wrote the Yam Shel Shlomo, Perek Ellu Tereifot, end of siman 80, that the treifut is because of the membrane]:

And one should not ask that if the reason is because of the membrane, if so, why regarding land birds is there an examination of the membrane, whereas regarding a beast it is not explained that an examination is effective? For this is not a question, for there, where the hole is very small, as will be explained, and the air does not rule over it such that the membrane would be ruined by this, but rather the concern is perhaps there is now a hole in the membrane, an examination certainly helps, as will be explained. However, regarding a beast, when most of the bone is crushed or it is missing the size of a sela, the membrane will certainly be ruined even if it is currently intact, and therefore an examination is not relevant in this case. And this is what our teachers, of blessed memory, said: "even though the membrane is intact," meaning that even so, it is destined to be ruined.

Some say that the terefot of a crushed skull are the same for a bird as for an animal [Pri Chadash and Kereti U-Peleti], and even though regarding a hole they are not the same as will be explained, nevertheless regarding crushing, even in a bird we require the majority [and so wrote the Shach at the end of this siman]. And it appears that this is specifically a land bird, but regarding a water bird such as geese and wild geese, of which they said in the Gemara there that their membrane is soft, it appears that even if it was not crushed in its majority one should forbid it, for perhaps due to the softness of the membrane it was perforated when it was crushed [and so it appears from the Pri Chadash, see there]. And there is one who says that even a water bird is specifically in its majority [Tevu'ot Shor subsection 2]. And it appears to me as I have written. [And know that the Tevu'ot Shor in the middle of subsection 8 takes it as obvious that crushing is a terefah in its own right and not because of the membrane, like the opinion of the Noda Bi-Yehudah, and he brought proof from what the Tosafot wrote at the beginning of the third chapter, s.v. "ve-amar," that therefore it did not ask from a deficiency of the skull because that is due to the membrane and it was already taught in the Mishnah; and if so, if you should think that crushing is due to the membrane, why did it ask there that it should be counted, see there. And so wrote the Gara in the new Yoreh Deah. And this is no proof, for does it ask about crushing specifically? Behold, it asks about the category as a whole of the seven traditions; and let us say in truth that the difficulty is regarding the rest. And according to the conclusion where it said "remove seven and bring in seven," it is not difficult, for behold the conclusion of the Tosafot regarding a deficiency is that it is with the upper membrane, see there, and regarding this it does not ask. But crushing, whose terefah status is without any membrane, it asks well that it should be counted, even though the primary reason is because the membrane will eventually tear; and delve into this.]

And there is reason to doubt regarding this treifot of a crushed skull, whether it is specifically when it was crushed by means of blows, but if it was crushed by means of illness—for example, that through illness the parts of the majority of the skull became loosened—or through another cause, it is not a treifah; or perhaps there is no distinction. And it appears certain that this is so, and it is not necessary to state according to what I wrote, that the treifot is because of the membrane, if so, since it was crushed by whatever cause it may be, the membrane will be damaged; but even according to those who hold that it is a treifot in its own right, it also appears from the perspective of logic that there is no distinction, and in every case it is a treifah.

This treifah of being crushed in its majority is a doubt in the Gemara [52b] whether it is the majority of its height or the majority of its circumference, and it remained in doubt. Therefore, our teachers ruled that whether it is the majority of its height without the majority of its circumference, or the majority of its circumference without the majority of its height, it is a treifah out of doubt. And that which the Tur and the Shulchan Aruch wrote simply "treifah," their intention is also "doubtful treifah." This is their way in several places not to be precise in this, because regarding the essence of the law there is no practical difference in this; even though there is a practical difference regarding mixtures and the like, nevertheless, they did not concern themselves with being precise in this. And before us it will be explained what is the majority of its height and what is the majority of its circumference. And it is a simple matter that if it was the majority of its height and the majority of its circumference, it is certainly a treifah.

And so the Rambam wrote in chapter 10, law 6: Similarly, a skull that was crushed in most of its height and most of its circumference is treifah, even if the membrane is intact and nothing is missing from it. If most of its height was crushed but most of its circumference remains, or if most of its circumference was crushed but most of its height remains, this is a doubtfully treifah, and it appears to me that we forbid it. Thus far his words. And it appears that he is in doubt regarding this, but he decides stringently. And there is a question regarding this: behold, in the Gemara it remained in doubt, and every doubt regarding a Torah prohibition is decided stringently, so how did he depend the matter on his own reasoning? However, the Rambam followed his own system which we wrote in the previous siman, that regarding all treifot except for a clawed animal, there are doubts in which we are lenient; therefore, he depended this on his own reasoning [Kesef Mishneh]. Nevertheless, the matter is not settled in the heart, for how is it possible to be lenient regarding a Torah prohibition in a matter that remained in doubt in the Gemara? Therefore, it appears to me that because the Gemara can be interpreted such that the doubt is whether most of its height alone is treifah, or specifically until there is also most of its circumference, and according to this, in a case of most of its circumference alone, one could say it is certainly kosher. To this the Rambam says: it appears to me that we forbid it, and he refers to most of its circumference alone, because it implies to him that the doubt is also regarding most of its circumference alone as I have written. And this is the opinion of all the poskim [and it appears that the intention of the Lechem Mishneh is also thus, see there; and the second answer of the Kesef Mishneh is not understood and requires further study, see there and examine it closely].

What is called the majority of its height and what is called the majority of its circumference? Rashi explained: the majority of its height is from the eyes and above, and the majority of its circumference is greater than the majority of its height. Thus far his words. And the Tur wrote: whether in the majority of its circumference, which is from its middle and above, which is below the eyes, or in the majority of its height, which is from the place where it already began to slope, and it is above the eyes, etc. Thus far his words. And our teacher, the Beit Yosef, wrote that his words are astonishing and have no understanding, see there. And many of the great authorities exerted themselves to explain his intention, and in my humble opinion it seems clear that his intention is also like the explanation of Rashi, as we will explain with the help of Heaven:

For behold, the skull in which the brain is placed is round; it begins below the eyes, and in all its surroundings it is low, and in its center it is high and protrudes like a mountain, and this is above the eyes. And behold, when it is crushed in its majority—meaning the majority of its entire surface area, for example, if it holds a handbreadth by a handbreadth, it is not treifah unless the crushing is more than a handbreadth by a half-handbreadth—and the doubt is whether the majority of the surface area of the entire skull is required, meaning the majority of its circumference from the edge of the skull at its bottom which is below the eyes until the top in its majority, or the majority of its height alone. That is to say, that we should not consider all its surroundings at all, but only the protrusion itself, from the place where the slope begins above the eyes until the end of the protrusion, which is until the place where the slope begins to descend. And this is much less than the majority of its circumference, for in the case of the majority of its height, when the majority of the protrusion is crushed, it is treifah. And this is what Rashi explained, that the majority of its circumference is greater than the majority of its height. And that which the Tur wrote regarding the majority of its circumference "from its middle and upward," he means at the lower edge, for regarding a round object, in measurement, every point at the lower edge is called "middle" with respect to the circle. And according to this, when there is a majority of its circumference, it necessarily includes within it also the majority of its height, since the protrusion is in the middle from every side.

And according to this, it is impossible to explain the words of the Rambam who wrote, "or if the majority of its circumference was crushed while the majority of its height remains intact," etc., for this cannot be found at all. And it appears that he explains that we do not require the crushing to be across the entire area of the majority of the skull, but rather the crushing of a single line; either it is around the entire bone, such that when it was crushed in the majority of its circumference at its edges in a single line it is treifah and the crushing follows a circle, or the crushing follows a straight line from the middle of its base until the top in the majority of its height. And according to this, "the majority of its height" is literally a different place from "the majority of its circumference," and both of them begin below the eyes, except that this one goes in a circumference like a half-circle and slightly more, and this one goes straight until the middle of the bone and slightly more. And the wording of the Rashba in the short Torat HaBayit is also like the wording of the Rambam, see there. And it is simple that for the halacha one must prohibit according to the opinion of the Rambam and the Rashba [and in the Tur there are several explanations and it is difficult to ascertain them, and the Perishah appears to have explained the intent of the Tur like our words regarding the Rambam, see there, but it does not appear so; however, for the halacha there is no practical difference, as I have written].

And I have seen those who interpreted the words of the Tur, in what he wrote "from its middle and above," that the intention is the actual middle of the bone's surface, meaning from the place where the bone begins to rise in an incline. Based on this, they ruled that anything in the bottom of the bone before the incline, the crushing does not forbid it at all [Bach and Taz]. And these are astonishing words: first, because if so, "most of its height" is close to "most of its circumference," as they themselves were forced to suggest; and furthermore, the language "and above" does not appear so; and furthermore, granted that they understood the words of the Tur this way, nevertheless in the words of the Rambam it certainly does not appear so, for according to their words, "most of its height" would also be included in "most of its circumference," so how could he write "most of its circumference" without "most of its height"? Rather, it is certain that the Rambam interprets as I have written, that even at its very bottom, if it was crushed even like a single strip in a circle or in height, it is treifah, and such is the primary ruling [and see Tevuot Shor].

If it was diminished from the bone entirely, if it is missing the equivalent of a sela, it is treifah, for when there is such a deficiency, the membrane will be ruined. And even if the deficiency is not in one place, but rather the entire expanse of the skull was perforated with small holes and the place of the perforation is missing, if in the combination of all the holes the equivalent of a sela is missing, it is treifah. With less than this measure, one may permit it even in this time, because one need not concern himself regarding a beast for the perforation of the membrane of the brain as long as there is not this measure. And if there are many perforations that do not have a deficiency, they combine to a majority, as in the case of one that was crushed [Shach subsection 4]. And there are those who permit it entirely in the case of perforations that do not have a deficiency [Beit Yosef]. And even though it appears so from the wording of the Tur, nevertheless, one should be stringent like the first opinion, and so several of the great authorities agreed, for it is no worse and no better than the case of one that was crushed.

The measurement of a sela, our teacher, the Beit Yosef, wrote that it is a third of a tefach, meaning a third of a tefach by a third of a tefach circular, and in circumference it is a tefach. For anything that has a circumference of a tefach, the width is a third of a tefach, as a square is greater than a circle by a quarter according to the measurement of the Torah. Even though the calculation is not so precise according to the mathematicians, nevertheless, the Torah decreed to measure in this manner [and this is what we learned in Eruvin 13b: Anything that has in its circumference etc. and they asked in the Gemara: From where are these matters derived? And it brings from the sea of Solomon, see there. And it is difficult: what does it ask, "from where are these matters derived," let us bring a string and measure? Rather, on the contrary, since the calculation is not exact and one must say that the Torah decreed so, if so, from where do we know that it decreed so? And for this it brings from the sea of Solomon, and the difficulty of the Tosafot there is answered; and examine this carefully].

And know that according to the plain meaning of the wording of the Rambam, the Tur, and the Shulchan Aruch, it implies that in every species of animal, whether large or small, a sela is required, and less than this is kosher. And some say that a sela is for a large animal, but for a small one we measure proportionally, and even with less than a sela it is treifah [Rabbeinu Yerucham in the Shas, most poskim, and it is implied by the Rosh]. The great later authorities were concerned for this opinion [Pri Chadash and Tevuot Shor], and certainly one should be stringent in a Torah prohibition. And it appears to me that in a case of great loss, one may rely on our teachers who did not distinguish in the matter, for there are some among the Rishonim who hold that a deficiency in the skull is entirely kosher, as is explained in the Tur, and according to the opinion of the Tur, the Rosh also holds so. And though we do not rule accordingly, nevertheless, regarding this—that we do not distinguish between a large and small animal—it appears that one may rely simply on all our teachers who did not distinguish in this.

Our teacher, the Beit Yosef, wrote in his great work regarding the law of punctures that involve a deficiency: if there is not the width of a puncture between one puncture and another, even the intact part between the punctures joins together to the size of a sela, as in the case of the windpipe in siman 34. However, in the Shulchan Aruch he did not bring this, nor did the commentators of the Shulchan Aruch bring this. And they did well, because it is not similar to the windpipe, where the treifut is due to itself and its membrane is soft, which is not the case with the skull, where the treifut is due to the membrane and the bone is hard and always protects. And so wrote the great later authorities [the Pri Chadash and the Kereti U'Peleti, and also the opinion of the Tevuot Shor inclines thus, see there].

A water bird, such as a goose or a wild goose, even if the bone was not perforated except for any amount, it is treifah, because its membrane is soft, and when the bone is perforated even a minute amount, the membrane will no longer endure [Gemara 56a]. And even if there is no deficiency in the perforation, it is treifah [Tevu'ot Shor]. And even a crack of any amount is treifah [ibid.]. And if only the skin was torn and the bone is whole, even though blood descends, it is kosher [Taz and Pri Chadash]. And likewise, if there is only a swelling there, and when they removed it the bone remained and there is no perforation in it, it is kosher [ibid.]. And likewise, if the perforation is from birth, there are those who permit it, as will be explained with the help of Heaven.

And a land bird that was bitten by a weasel with its teeth in its head, in which there is no concern of derusah, for derusah is only with the hand, or if it was struck by wood or by a stone—according to the law of the Gemara [ibid.], one places his finger on the side of the hole and presses his finger there, or inserts his hand into its mouth and pushes there. If the brain did not protrude and did not emerge from the hole, it is known that the membrane of the brain was not perforated and it is kosher; and if it emerged, it is terefah. However, we are not experts in such a difficult examination, for even in the Gemara [ibid.] they disagreed regarding the method of examination. Therefore, for us, land birds are equal to water birds, and in every species of bird, when the bone of the skull is perforated even by a minute amount, it is terefah even in a case of great loss. But regarding one that was crushed, there is no difference between an animal and a bird even for us [Shach], as I wrote in section 4; see there.

It has been about two hundred years since a matter was newly discovered regarding birds, specifically geese and wild geese, that some of them have a hole in the skull from birth, but the membrane is not perforated. They have a sign on the outside in the feathers on their heads, as some of the feathers on the crown of the head protrude more than the rest of the feathers of the head. When the feathers are removed, thin holes are visible in the bone. Similarly, there are some where after the feathers are removed, it appears like a depression in the head and the skin is intact, only that it is bent downward; and when they begin to cut the skin, a cleft is visible in the skull reaching until the membrane of the brain, but the membrane is intact. The greats of the generation declared it kosher because their growth is such, and there is no concern for the perforation of the membrane. Behold, even an organ whose treifot status is determined when it is perforated on its own, nevertheless there are those who wish to declare it kosher when the hole is from birth; all the more so regarding the skull, where its perforation is not a treifot on its own, that one should declare it kosher when the hole is from birth. And although there are some of the greats who hesitated regarding this, nevertheless those who permit it outnumbered them, and the matter emerged as permitted. One should not hesitate regarding this, and anyone who wishes to be stringent should be stringent for himself and not for others.