Siman 309

A בכור in this time has no permission for use except by way of a מום. The Tur and the Shulchan Aruch wrote that even if the owners or the כהן wish to place it in a cell until it dies on its own, they are not permitted; rather, the כהן must raise it until a מום falls upon it. Thus far their words. This means that until thirty days for a small animal and until three years for a large animal, the Israelite shall raise it, and afterwards the כהן shall raise it or hand it over to a non-Jew to raise it, as is written in siman 307; see there. And even though in its raising there is concern for a stumbling block—that they might work with it or shear its hair and the like—nevertheless they did not permit it, as the reasons for this will be explained with the help of Heaven.

And behold, in the Mordechai, the first chapter of Avodah Zarah, he wrote that the Re'ah of Metz permitted in this time to place a bechor into a kippah so as not to come to a stumbling block, and the Ri forbids since it has a permit through a mum. And behold, in the Tosafot there [13a], they did not write a language of prohibition, but rather that they did not require for a bechor in this time to place it into a kippah, for they only required this in a place where one committed a transgression, such as one who sanctifies in this time; but a bechor, which is sanctified on its own, they did not penalize him to place it into a kippah, see there. And even though even regarding a bechor there is a slight transgression in that he did not sell it to a gentile, nevertheless this is not called a transgression. However, it is implied from their words that they did not require him to do this, but if he wishes to place it into a kippah, he is permitted.

But in Bekhorot (53a, starting with "v'ee") they wrote that it is forbidden, see there. Also the Rosh in two places there, in Avodah Zarah and at the end of Bekhorot, wrote that it is forbidden and that his teacher, the Maharam of Rothenburg, instructed thus. They wrote the reason is because of the loss of kodashim, and in one place the Rosh wrote because of the disgrace of kodashim; perhaps it is all one, for it is a disgrace to cause the loss of kodashim. Their primary foundation is from the fact that we do not find in the Shas that they required a bekhor in this time to be placed in a dome, see there. And that which they did not mention the reason of tza'ar ba'alei chayim, it appears to me that they hold that whenever one acts due to a prohibition or a concern of a prohibition, there is no tza'ar ba'alei chayim; for if not so, they would not have decreed even against one who consecrates in this time, for would it be that if he committed a prohibition they would penalize him to commit another prohibition? Rather, certainly there is no prohibition in this (and in the Mordekhai there he mentioned this, see there). And even though at the end of Bekhorot regarding ma'aser behemah in this time they required placement in a dome, see there, it can be said that this is like one who consecrates in this time, for they abolished ma'aser behemah in this time as is stated there at the beginning of chapter 9, see there.

Were it not for the words of our teachers, I would have said in my humble opinion that the reason the Shas did not mention placing it in a vaulted chamber regarding a bechor is because in Yoma (66a) there is a dispute of Tannaim whether we are concerned for a potential pitfall or not, see there. And the explanation of the matter appears to me that even though regarding terumah it is simple in the Shas at the end of the first chapter of Pesachim and in the first chapter of Shabbat regarding the eighteen matters that we are concerned for a potential pitfall, it could be said that regarding living animals, since there is tza'ar ba'alei chayim, there is therefore one who holds that we set aside the concern of a potential pitfall because of this. Furthermore, regarding terumah there is a concern of eating it, which is more severe. Furthermore, in Pesachim there, there is also a dispute whether we are concerned for a potential pitfall, see there. However, since our teachers forbade it, we have nothing to say of this. And even regarding a doubtful bechor, which occurred to the mind of one great authority to place it in a vaulted chamber, they turned him back from his opinion and he himself retracted (Noda BiYehuda siman 83 and Chatam Sofer siman 315). And even though there is no clear proof regarding a doubtful bechor that it is forbidden—for if it is because of tza'ar ba'alei chayim, they did not adopt this reasoning as I wrote, and if it is because of loss and degradation of holy items, who is to say that this also applies to a doubtful bechor—nevertheless, there is also no proof for permission. And there is room to doubt if one delivered it to a Cuthean guard and sees that the guard is starving it so that it will die, whether he must protest against him or not, and this requires deliberation.

And even when a clear blemish has occurred to it, such as if its hand or its foot was severed and the like, it is not permitted immediately and still remains in its prohibited state until he shows it to a wise expert and he permits it. And the Sages, of blessed memory, established this fence so that blemishes would not be a matter entrusted to everyone, leading them to be lenient regarding blemishes. And they were so stringent that we learned in the Mishnah (28a): One who is not an expert and saw the bechor and it was slaughtered based on his word, it must be buried and he must pay from his house, and even when it had a permanent blemish; see there. And nowadays, since there is no expert as is written in Choshen Mishpat siman 1, we do not permit except by three who are a beit din in every place, and the Shas calls them "three members of the synagogue," meaning not that they should be completely simple people, but rather somewhat wise though they are not so proficient. And such is the custom, that they bring the bechor to the house of the Rav and he joins two others with him and they permit it with a permanent blemish, as will be explained.

There are many blemishes in a bechor, up to sixty-seven blemishes, and the Rambam counted them in the second chapter of Issurei Mizbe'ach, for all blemishes that disqualify for the altar in all kodashim disqualify in a bechor from being offered upon the altar, and consequently it is permitted to be eaten by its blemish. Specifically a permanent blemish and not a transient blemish, and likewise when it is done intentionally it does not permit it, and it will be explained in siman 313. And since nowadays there is no expert, therefore we do not permit based on all blemishes, but only based on a blemish visible to all. And the Rambam in the third chapter wrote, and this is his wording: If there is no expert there and the blemish was of the visible, clear blemishes, such as if its eye was blinded or its hand was severed or its leg was broken, it is permitted by three members of the synagogue; and likewise a bechor that went out to the Diaspora and a clear blemish fell upon it, it is permitted by three members of the synagogue. Thus far his words. And it is not understood at all, for it appears that this is from what they said in the Gemara (36): The permitting of a bechor in the Diaspora is by three members of the synagogue, and it implies that in Eretz Yisrael it requires specifically an expert. And Rashi and Tosafot explained that it refers to the time of the Temple, and therefore in Eretz Yisrael, where it is for offering, it requires specifically an expert, but not so in the Diaspora; however, in this time, Eretz Yisrael and the Diaspora are equal. And one cannot say that the Rambam holds that even in this time in Eretz Yisrael it requires specifically an expert, for previously he wrote: We do not slaughter except by an expert to whom the Nasi in Eretz Yisrael gave permission, even a visible blemish, etc., if there is no expert there, etc., he shall slaughter by three, etc. Behold, even in Eretz Yisrael he permitted when there is no expert (Lechem Mishneh).

And it appears in my humble opinion that there is another intention in his words, for to the Rambam it did not seem correct to interpret the statement of the Amoraim as referring to the time of the Temple, but rather it stands in this time. And there in the Gemara, Rava said: "And with clearly evident blemishes," and the Gemara asks: "What is he coming to teach us?" etc., and answers: "If from our Mishnah, I would have said that in the Diaspora, they may permit even with blemishes that are not clearly evident by way of three laymen; he comes to teach us that even in the Diaspora, it was not permitted by way of three laymen except with clearly evident blemishes." And these are the very words of the Rambam, for initially he says that if there is no expert, they permit clearly evident blemishes by way of three laymen; and so that we should not say that this is only in the Land of Israel, but in the Diaspora they permit even with blemishes that are not clearly evident by way of three laymen, for this he says that also in the Diaspora the law is so, that only with clearly evident blemishes do they permit by way of three laymen. And that which he said, "A bechor that went out to the Diaspora," this is according to his view in chapter 1 there, that bechor is not practiced in the Diaspora, as I wrote at the beginning of siman 306, and therefore he was forced to interpret it so. And in truth, according to the words of our teacher, the Beit Yosef, which we explained there, that it is a mistaken version, we shall say here also that it is a mistake, and it should be said: "And so too a bechor in the Diaspora" (as appears in my humble opinion). (Afterwards I saw the Rit Algazi who wrote at length on this and was greatly pressed in his words, but in my humble opinion it is simple).

And behold, the Rambam did not count among distinct blemishs except three, as he wrote, and it is not meant exclusively, for he wrote "such as if his eye was blinded," etc. Therefore, our teacher, the Beit Yosef, in the Shulchan Aruch wrote that a slit in the ear is a distinct blemish where it is clearly recognizable and visible to the eyes that it is more than a notch from a fingernail. And what is a slit in the ear? That it was damaged by a deficiency from the cartilage and not the skin on the edge of the ear, whether it was damaged by the hands of man or damaged by the hands of Heaven. Thus far his words. And so it is with all blemishs, there is no distinction in this. And what is the cartilage mentioned in the Mishnah at the beginning of the chapter "On these blemishs"? This is the ear-lap (Tosafot ibid.). And in the rulings of the Terumat HaDeshen (siman 244) he explained this, and this is his wording: It appears that cartilage is hard to the touch of the hand and has a bit of height from the inside within the ear; and in the ear of a person it is also recognized as such, for any flesh that is somewhat hard and somewhat soft, this is called cartilage, like the tips of wings and the cartilages in the chapter "How do we roast." Thus far his words. But anything lower than this that is not elevated and is completely soft is not a blemish. And our teacher, the Rema, added another blemish: if the tail was cut above the vertebra, see there. And this too is from the Terumat HaDeshen there, and the proof is from the tails of lambs that the children tied in the Gemara (35) in the Mishnah there. And the sages did not count this among blemishs because it does not require that much, for even if the tail was damaged from the bone and not from the joint, we learned there (39b) that it is a blemish, and certainly if it was cut completely. And in the tail there are vertebrae like joints and it is recognizable to all, and if it was damaged or cut between the joints, it returns to health and is not a blemish. Therefore, he required "above the vertebra," meaning that it should affect the bone, for anything lower than this is not a blemish.

And know that I have room for deliberation in this, for behold, the wording of the Mishnah is "from the bone, but not from the joint," and such is the wording of the Rambam in the second chapter of Hilkhot Issurei Mizbe'ach. Rashi explained that if it was damaged between the joints, it will heal if the entire tail was not severed but only slightly damaged. Thus far his words. It is explicitly clear that it is not specifically between the bottom joint, but even between the upper joints it is not a mum without a defect in the bone. According to this, the Terumat HaDeshen, who derived "severed" from "damaged," the law is also thus. If so, why did he and our teacher, the Rema, write "above the vertebra," which implies even between the joints that are above the first vertebra? And in the Terumat HaDeshen it is even more clear, and this is his wording: For all the more so if it was completely severed from the place where the vertebrae begin and above, it is a mum. Thus far his words. For it is explicitly clear that anything above is a mum, and this requires great study. In practice, it appears in my humble opinion that one should not be lenient in this unless the incision hit the bone itself; and even though there is a reason to say that "severed" is worse, nevertheless, from where do we have [authority] to be lenient in this?

This is the wording of our teacher, the Rema: Furthermore, the author of the Tur enumerated several defects for which one may slaughter in this time, and the rabbi who composed this book (he is the Beit Yosef) followed the words of the Rambam; and it appears to me that one who relies on the words of the Tur, which are built upon the opinion of the Rosh, has not lost. Thus far his words. And in truth, even from the Rambam there is no proof regarding all the defects, for he wrote "for example," etc.; rather, certainly his intention was not regarding all the defects that the Tur enumerated, as is understood. And since our teacher, the Rema, wrote that it is possible to rely on the words of the Tur, it is therefore necessary to enumerate everything that the Tur enumerated, and the Levush also enumerated many of them; see there.

This is the wording of the Tur: And Ri wrote that nowadays when there are no experts, it is not slaughtered etc. except for manifest blemishes etc. but cataracts in the eye etc. no, and a slit in the ear etc. whether it was notched etc. or it was split with a recognizable split even though nothing is missing, and likewise if the ear was perforated the size of a karshina, and it is a type of tool with which they pierce, or if it dried such that it would crumble with a fingernail. Thus far his words. And the Rambam holds that dryness is not a blemish, and it is a dispute at the beginning of the sixth chapter of Bekhorot, and the Bartenura also rules like the Rambam. And the reasoning of the Tur is according to the sugya in Chullin (46b), see there, and it is not definitive. And it is simple that everything regarding the ear is specifically in the cartilage and not in the soft part (see Beit Yosef and Bach), and if so, in practice one should not rely on this blemish.

The ear of a kid that is doubled and appears as two: if it has only one bone, such as if it has only one lobe but the upper lobe was doubled and joined below and appears as two, it is a mum. And if it is not one bone, but rather the lobes are separated below, it is not a mum (Tur). And this is according to the explanation of Rashi (40b); however, according to the Rambam in the seventh chapter of Biat Mikdash, it is the opposite, for two lobes are a mum and with one it is not a mum, see there. And according to this, because of the dispute of the authorities, this mum is nullified and one should not permit based on it, for it is a doubt regarding a Torah matter; and even regarding a doubt of a bechor, it requires further study whether to rely on this mum. The Tur further wrote: if one of its ears is larger than its fellow until it is recognizable to the appearance of the eye that it is larger than its fellow, it is a mum; but if it is not recognizable until they measure it by hand, it is not a mum. And the Rambam disagrees also in this in the second chapter of Issurei Mizbe'ach and holds that even if one is much larger and one is small, even up to double, it is fit for the altar and is not a mum. And according to this, this mum is also nullified as I have written.

If the socket of its eye is round like that of a human it is a mum, for it is the way of an animal for it to be elongated; and specifically the white of the eye, but the black, its way is to be round. And if one of its eyes is large like that of a calf and the second is like that of a goose, it is a mum, but if both are large or small it is not a mum. And regarding the rest of the eye mumin, one should not permit based on them. And a goat that does not have horns, it is not a mum, and the same applies to a ram. And if they had horns and they were cut with the flesh that is in them, if they were uprooted with force until there remained in their place something like a pit, it is a mum; and if they were cut evenly and there did not remain in their place a pit, it is not a mum.

If its mouth is similar to that of a pig, such that its upper lip overlaps the lower one or the lower one overlaps the upper one and the overlap is noticeable to all, it is a mum. Even if it is not sharp like that of a pig, it is a mum, provided that there is bone in the overlap; however, if it is flesh alone, it is not a mum. If its mouth is narrow in width such that it cannot open it, if it is due to the bone—meaning that the lips open well but the jawbones are stuck to one another—it is a mum. But if the lips do not open except as much as the jaws, even though both do not open in their normal manner, it is not a mum. And the sign that it is due to the jaws is that when it eats, it widens the lips and the bone appears like a bellows (Rashi 40b). And there is another version in the Gemara there, which is: a mouth closed due to the wind is not a mum; due to the bone, it is a mum. This is the version of the Rambam and also in the second explanation of Rashi, see there, and so it is in the Tosefta. But I do not know what "due to the wind" is, and from Rashi there it appears that "closed" means that its mouth is swollen, and this happens when it goes outside and a wind passes over it and swells its mouth.

If the majority of its tongue was removed or cut, it is a mum. And this is not the majority of the entire tongue, but even the majority of the tongue that is not attached to the gums, which is the part of the tongue that moves and with which a person speaks. And similarly, if the bone in its mouth in which the teeth are set was notched, it is a mum. This is the wording of the Tur. And know that I did not find this mum in the Rambam, neither in chapter 2 of Issurei Mizbe'ach nor in chapter 6 of Biat Mikdash. And I do not understand the words of the Tur, for behold, this is the explanation of what we learned in the Mishnah (40): "And that the bone of its mouth was dislocated," and some read "was severed." And Rashi explained: The bone itself in its mouth in which the teeth are set, and above the gums, for if it were the gums themselves, even if they were notched or chipped it would also [be a mum]. Thus far his words. And it is clear from Rashi that here "notched" is not effective, but rather that it was severed or dislocated entirely. And how did the Tur write "notched"? And if he explains the Mishnah thus, nevertheless, he should have brought the explanation of Rashi, and therefore this requires further study.

If it has three forelegs it is a mum, and likewise when it has only one foreleg; but regarding a hindleg in such a case, it is also a tereifah, and even with three, for anything extra is considered as if it were removed. And likewise if one of the hooves of its forelegs or hindlegs is round like that of a donkey, even if they are cloven; or if the thigh was displaced from its place of attachment, even if its tendons were not decayed, it is also a tereifah; or if one of its thighs is fixed in the place of the loin and the second is above it, for the way of animals is that the thigh is attached at the fat tail near the loins and not above this; or if one thigh is larger than its fellow; or if the bone of the foreleg or hindleg was broken, even if it is not missing anything at all, and even if the break is small such that it is not noticeable that it was broken except when it walks; or if the bone of its foreleg or hindleg was notched—in all these it is a mum. And know that everywhere we said "notched," there must be some deficiency of any amount. And if the hooves of its forelegs were narrow, such that they are not wide as is their way, if because the flesh is narrow and the bone widens, it is a mum, and when it widens it protrudes outward; so it is in the Tur. And I do not understand how the bone protrudes outward; and in Rashi there (40) on that which says "its legs are closed," he explained the opposite, that the bone is short and the flesh widens and protrudes outward, see there. And this is possible, that the flesh protrudes from the bone, and not that the bone would be protruding without flesh. And know that the Tur wrote regarding forelegs, and the same law applies to hindlegs. And if the flesh is equal, that both are narrower than their way, it is not a mum. And the Tur further wrote: if the hooves were removed with the flesh that is in them, it is a mum. Thus far his words. And in the Gemara (44) it is stated: even if they were cut from above and their roots remained, it is a mum. And the Rambam wrote so there, that even though a small reminder of them remained close to the flesh, see there. However, the Tur was concerned that perhaps in such a case it is not a definitive mum (Perishah).

If it has no testicles or if it has only one, it is a mum, even if it has two scrotums, meaning that each scrotum is divided in the middle and appears like two scrotums. And likewise, if it has only one scrotum it is a mum, even though it has two testicles. The Tur wrote that when it has two scrotums and one testicle, one slaughters it immediately under the presumption that it has only one testicle, and one does not need to feel to see if there is another one. And even if after slaughtering it is found attached to the loins, it is a mum since it is not in its place. The Rambam wrote: if one did not feel it initially and afterwards it was found attached to the loins, it shall be buried. The Ramban and the Rosh disagree with him. Thus far his words. And it is a dispute of Tannaim. And if one testicle is larger than the other, it is not a mum.

If the tail is split into two until the bone, and this means until inside the bone, it is a mum. And similarly, if there is additional flesh like a thumb between one vertebra and another—meaning that vertebra to vertebra are adjacent to one another, and when there is a separation between them like a thumb, it is a mum (Erachin 6, Mishnah 5). And the tail of a calf that is short and does not reach the upper joint that connects the knee to the leg is a mum (Tur), and it is the middle joint, and he called it "upper" relative to the lower one (Prisha). The Rambam did not count this among the mumim, for he interprets the Gemara (40) where they said: It was taught, "the upper jumped," etc., this is the explanation: that even in such a case it is not a mum, and according to this it is impossible to rely on this mum. And the tail of a kid that is round like that of a pig is a mum, even if it is thick in its usual way. And if it is short such that it has only one vertebra, it is a mum; if it has two vertebrae, it is not a mum. And in a ram, if it has two it is a mum, three it is not a mum. And a wart—and this means an additional piece—if it has a bone in it, in any place that it may be, whether in the eye or in the rest of the body, it is a mum. And if it does not have a bone in it, in the rest of the body it is not a mum. Thus far the words of the Tur. And in the Gemara (40b) it distinguishes between black and white; according to Rashi, in black even without hair it is a mum, and it is similarly explained from the Rambam there, but the Tosafot explained the opposite, that in white it is a mum without hair. And the commentators (see Beit Yosef and Bach) labored over why the Tur did not mention this. And in my humble opinion it is simple: since they are divided on this, it follows that for the halacha one requires hair in both of them, and therefore he intentionally omitted this. And the Tur concludes that all these are definitive mumim to rely upon even in this time.