Siman 31

The brain has two membranes: one is a thick membrane attached around the skull, and the second is a thin membrane in which the brain is placed. The opinion of Rabbeinu Tam and Rabbeinu Shimshon, the authors of the Tosafot, is that if the upper one is perforated, it is treifah; for since the strong membrane is perforated, the second one will naturally be perforated due to its thinness, and the living creature will not live. The opinion of the Rif and the Rambam in chapter 6 is the opposite: that everything depends on the lower one. Even though it is a thin membrane, nevertheless, since the brain is placed within it, once it is perforated, the brain is as if exposed to the bone and will not live. For the upper membrane, even though it is thick, nevertheless it is attached to the bone and not to the brain; and if the upper one is perforated but not the lower one, it is kosher, and we do not fear that it will burst due to its thinness. The first opinion holds that if the lower one is perforated but not the upper one, it is kosher, for the upper one protects the brain and the brain is not exposed to the bone. And some say that specifically with the perforation of both of them it is treifah [the Ra'avan and the Rosh], and some say that if either one of them is perforated it is treifah [the Bahag]. The reason for the differences of opinion is due to the variations in the versions of the Gemara regarding this matter; see there [45a].

And for the law, our teacher, the Beit Yosef, ruled like the Rif and the Rambam, that if the upper one was perforated it is kosher, and if the lower one was perforated it is treifah. Our teacher, the Rema, wrote that there are those who declare it treifah even if only the upper one was perforated, and such is the custom unless there is a great loss. Thus far his words. The great later authorities forbid it even in a case of great loss, since the opinion of the Bahag is to declare it treifah if either one of them is perforated, and all his words are words of tradition [Bach and Taz and Shach, and so wrote the Yam Shel Shlomo, Perek Elu Tereifot, siman 11]. It is simple that the perforation must be through-and-through, but if only half the membrane was perforated, it is nothing and it is kosher. If a portion of the membrane rotted or dissolved, its law is like one that was perforated. One should not ask why regarding the lung we permit it if both membranes were not perforated, as written in siman 36, yet regarding the brain we declare it treifah, for we do not compare tereifot to one another. Furthermore, in the lung the two membranes are equal and attached to the lung, which is not the case in the brain, where each of the membranes has an advantage and a disadvantage: the upper membrane is strong and thick, but its primary attachment is to the bone; and the lower membrane is thin and weak, and its primary attachment is to the brain. Therefore, there are arguments for both sides. According to the opinion of our teachers, the authors of the Tosafot, the primary one is the upper, and according to the Rif and the Rambam, the primary one is the lower. Who can decide a Torah prohibition between the fathers of the world? Therefore, I wonder at one who wishes to be lenient in a case of great loss when only the upper one was perforated [see Pri Chadash and Tevuot Shor, and in my humble opinion the primary view is like those who are stringent because of the differences of opinion between the Tosafot and the Rif and the Rambam, and delve into this].

If they opened the skull and saw that a thin and sharp bone protrudes from the inside, he should examine well against the bone in the membranes, and if they are found whole, it is kosher; for since it is a known location, we too are proficient in the examination. And in places where it is common to find such a bone, it appears that one should be concerned and open every skull and see, though there are those who are lenient in this [Responsa Beit Ephraim], and it appears that one should be stringent since it is a common occurrence. And likewise, if the bone was perforated by a thorn, and the perforation does not contain the measure of a sela which would render it treifah because of this, one must examine against the perforation in the membranes if there is no perforation in them. And it is possible that even if the bone was perforated slightly by illness, it requires an examination of the membranes, and one should deliberate on this.

The Rambam wrote in chapter 6: The brain itself that has rotted or been crushed while the membrane remains intact is kosher, but if it has dissolved like water or like wax, it is terefah. Thus far his words. And this is even when the defect is at the edge of the brain near the skull; nevertheless, as long as it has not dissolved like water or like wax, it is kosher, for we maintain that this does not harm the vitality of the animal. For if the defect is in the middle of the brain, we indeed maintain that even if actual water is found, it is kosher when the brain surrounds the water on all sides, as will be explained. And so wrote the commentators. And it is implied from the wording of the Rambam that there is no measure for this matter, for even if much of the brain has rotted or been crushed, as long as the membrane remains intact, it is kosher.

And this is the wording of the Tur: And if a small amount of the brain is missing, such as if it rotted or was crushed and the membrane remains, it is kosher; but if it dissolved and pours like water within the membrane, or if it softened such that, as with the spinal cord, if they stand it up it does not stand, it is terefah. Thus far his words. And it implies that specifically when a small amount is missing it is kosher, and not when a large amount is missing. And also in the wording of the Rambam it is possible to say so, for he did not mention the language of missing at all, but rather it is understood of its own accord that since it rotted or was crushed, it follows that there is a deficiency, for from healthy and good flesh, when it becomes rotten, it is diminished in quantity. And nevertheless, the measure of the rot was not explained, neither in the wording of the Rambam nor in the wording of the Tur. And it implies that even if the entire brain rotted or was crushed, as long as the deficiency is small and the membrane remains, it is kosher.

But from the wording of our teacher, the Beit Yosef, in the Shulchan Aruch, who wrote: If the brain itself, a small part of it rotted or was crushed but the membrane remains, it is kosher; but if it was poured out like water or like wax, it is treifah, thus far his words, it appears that even the rotting must be a small amount, but when it has rotted much, it is treifah. According to this, we must know how much is "a small amount" and how much is "much," and they should have explained this. Therefore, it appears that there is no specific measure for this matter, but rather it teaches the common way of the matter, that it rotted a small amount, for if it had rotted much, the animal would have already died. The Rambam did not see fit to mention this as it is a simple matter. The Tur and the Shulchan Aruch who mentioned this do not disagree with the Rambam, for if so, they should have written that the opinion of the Rambam is not such, as is their way in all places; rather, they took the common way of the matter. The Tur mentioned the deficiency before he mentioned the rotting, and the Shulchan Aruch mentioned it afterward in that which he wrote "a small part of it rotted," and this is the "small deficiency" that the Tur wrote, and the intention is one. [And also the opinion of the Shach in subsection 2 is that the poskim do not disagree, and he took issue with the Bach; and regarding what he innovated that its law is like the brain in the spinal cord, it will be explained before us with the help of Heaven].

And according to what has been explained, everything depends on the quality of the decay; for if the decay is not yet so advanced that it has become like water or like wax, it is kosher. The Tur explained this: that if such decay were in the marrow of the spinal cord and they would try to stand it up and it would not stand—meaning that the crushing had reached such a degree—in the spinal cord such decay is comparable to water and is terefah. And this is the measure of wax mentioned by the Rambam and the Shulchan Aruch. And regarding the marrow in the head, it is not possible to give this sign, for the marrow is placed within the bone, whereas the marrow in the spinal cord is like a staff, and this measure is applicable to it; and all the words of the poskim are one.

And there are some of our teachers, the later authorities, who wrote that even if it is like it has rotted or been crushed, it is not kosher unless it was a small amount, in a manner that if there were such an amount in the spinal cord it would stand; but if there was such a measure in the spinal cord that it would fall when they stand it up, it is also treifah in the brain. Therefore, if it is poured like water or like wax, it is treifah because in the spinal cord it would fall even with a small amount [Shach subsection 2, and Pri Chadash, and Yam Shel Shelomo section 14]. And they explained thus in the words of the Tur, in what he wrote "or that it became softened, that the likes of this in the spinal cord, if they stand it up it does not stand, it is treifah," thus far his words, that his intention is regarding the quantity of the softening and not regarding its quality. That is to say, even if the softening is not in its quality like water or like wax, but rather it is much in quantity, such that it has rotted much and been crushed much [as the Yam Shel Shelomo wrote, see there].

And there is reason to wonder about this, for if so, that the primary status of treifot depends on this, how did the Rambam, the Rosh, the Rashba [in Torat HaBayit], the Shulchan Aruch, and all the Rishonim not explain this matter? For they explicitly spoke that the difference is only in the quality of the decay. It also appears that the words of the Tur intended the quality of the decay, meaning if the decay is like water or similar to water in a manner that in the spinal cord it would fall, and this is "like wax" that the Rambam wrote. But if the decay did not reach this quality, we do not care about the quantity of the deficiency. For what is the comparison to the spinal cord, which is upright like a staff and its entire essence is that it stands, and therefore if it is unable to stand it is treifah? But regarding the brain which is placed within the bone of the skull, what do we care about this? For either way it stands and does not fall, and in it the primary factor depends on the quality of the decay, for when it is decayed until it is similar to water or to wax, the membrane will eventually be perforated and it is treifah, and if it did not reach this quality, it will not eventually be perforated and it is kosher. And in truth, there are great Acharonim who took issue with their words [such as the Kereti U'Peleti and Tevuot Shor]. Nevertheless, in practice, it is difficult to be lenient against the great ones who are stringent, except in a case of great loss, and it requires further study [for behold, it is also the opinion of the Bach to be stringent in a case of great deficiency, and although the Shach and the Pri Chadash took issue with him on this, nevertheless, at any rate, regarding the law he is among the stringent ones, see there and delve into it].

That which has been explained, that if it is poured out like water it is treifah, this is at the edge of the brain near the membrane. However, if water is found in the middle of the brain, and from the brain is missing an amount corresponding to the measure of the water, if the brain surrounds the water on all sides in a manner that the water is not revealed at all, not to the bone and even to the membrane it is not revealed—meaning that surrounding the membrane is whole and healthy brain—it is kosher. And if it is revealed even only to the membrane, it is treifah, for the membrane will eventually tear. And according to the opinion of those who permit when only the lower membrane is perforated, it must be said that when it is revealed to the lower membrane, the upper membrane will also eventually tear. And the same law applies if the water was resting inside a small pocket which is like a bladder: if the brain surrounds the bladder such that it is not revealed even to the membrane, it is kosher; and if not, it is treifah, for the bladder has the same law as the water itself.

There is a doubt in a case where there is water in the brain and the brain surrounds it on all sides, but the brain has a partial decay near the membrane, and without the water it would be kosher as has been explained; but now that there is water in its center, and the kashrut of the water depends on the brain surrounding it, [the question is] whether this brain is considered a protector for the water so that they do not dominate the membrane or not. From the wording of the poskim, it appears that specifically when the water is exposed to the membrane it is treifah, but as long as it is not exposed it is kosher; and one should deliberate on this.

If the brain is intact on all its sides, and after they cut the skull and removed the brain, some water was found in the skull, there is no prohibition in this, for the primary prohibition regarding water is because we say the brain dissolved and became water; but here we see that the brain is intact and the water came from another place [Taz subsection 2 and Kereti U'Peleti]. And there are those who prohibit in this, for ultimately, since the water is exposed to the membrane, even when they are between the membrane and the skull, nevertheless the membrane will be spoiled [Shach subsection 4 and Pri Chadash]. And all the more so if the water is between the membrane and the brain or between membrane and membrane, even if the brain is intact, it is treifah. However, when the water is in a bladder, even according to the first opinion, and even if it is found between the membrane and the skull, it is treifah, for since they are placed in a bladder, it appears clearly that they came from the brain [Taz]. And so ruled our teacher, the Rema [see Kereti U'Peleti who decided like the Taz to be lenient regarding water alone between the membrane and the skull, and according to what the Pri Megadim wrote on the Taz there, the same law applies even between the membrane and the brain, it is kosher when the brain is intact and beautiful on all its sides, see there].

Our teacher, the Rema, wrote: If there was a doubt whether it was covered by the brain or not, it is treifah; therefore, one must be careful when opening the head to open it in a manner that one can see if the brain surrounds it if water is found there or not. Nevertheless, one does not need to inspect for this and we rely on the majority, and he may discard the head or sell it to a non-Jew without opening it. Thus far his words. And that which he wrote, that in a case of doubt whether it is covered by the brain or not it is treifah, follows his reasoning later in siman 50, that whenever the doubt arose during its lifetime we do not say "once slaughtered, it is permitted," but according to those who disagree with him it is permitted, and there it will be explained with the help of Heaven. And that which he wrote, that one does not need to inspect for this and may discard the head without opening, this is when no defect was recognizable during its lifetime; but when a defect was recognizable, such as if during its lifetime it was shaking its head, which comes because of water in the head, it is obvious that it is forbidden to leave it without opening, and it is worse than the inspection of the lung [Bach and Taz]. And specifically regarding sheep and during the summer days, for then it is very common for them to have water in the head, they are obligated to inspect [Tevu'ot Shor]. And if they discarded it without inspection, he should be penalized; nevertheless, one should not forbid it in a case of great loss, according to the law of a lung without inspection which will be explained at the beginning of siman 39 [and so it appears from the Tevu'ot Shor and Pri Megadim].

If discharge issues from the head near the horns, and there is reason to doubt whether perhaps there is a hole in the bone wherein the brain is situated and the brain has become corrupted and flows out through the horn, they shall open the skull and remove the brain; and if the bone from the inside is not [healthy], it is treifah [in the Be'er Heitev in the name of the Rashal]. And according to the first opinion in section 12, if only the brain is whole and sound, we are no longer concerned; and then, even if there is a small hole in the skull that does not have the measure to be forbidden by it, we do not fear the discharge.

If water was found in the head of one lamb in a manner that it is a certain terefah, and the body of the lamb became mixed with many lambs and it is impossible for it to be nullified according to the law because of "a piece worthy of being served to guests" and the like, or if it became mixed one in one, some say that one should examine the spinal cords of the lambs. And if water is found in one lamb in the cord that extends from the brain to the spine, we attribute that the head is from that lamb [Bach, end of siman 101]. And there is one who hesitates regarding this, since this sign is not mentioned in the Shas [Taz, ibid.]. And there is one who says that regarding a rabbinic prohibition, such as where it was mixed one in two, where by Torah law it is nullified and it is only by rabbinic law that it is not nullified due to the reason of "a piece worthy of being served to guests" or because of "a counted item," one may rely on this when the prohibition was not known beforehand [Pri Megadim in Shiftei Da'at, subsection 6, and see there].

If a worm is found on the upper membrane of the brain and the brain is intact, and there is no mark or speck of blood on the lower membrane, it is kosher according to the method of the Rif and the Rambam, who permit if only the upper membrane was perforated. However, according to the method of the Tosafot, it is terefah. And even according to those who permit, nevertheless, for us it is terefah because we are not experts in such an examination. And since we are not experts in such an examination, therefore, even if it is found on the upper membrane and there is no perforation, nor a mark, nor a speck of blood, it is terefah [Shach, subsection 8], for we fear that perhaps before shechitah it emerged from the brain and perforated the membranes. And that which will be explained in siman 36 regarding the lung, where we permit in such a case and we say that it emerged after shechitah, the lung is different; for since the worms were formed from it, we rightly hang the matter on the fact that during its life they were inside it, and after shechitah, when the natural heat ceased, they were forced to emerge. But in the brain, where they come from the outside, certainly there is reason to fear that they emerged and perforated during its life [Bach]. And furthermore, even if we could say that in the brain they were also formed there and did not come from the outside, nevertheless, it is not similar to the lung; for in the lung, since it is always fluttering during the life of the animal, it is impossible for the worm to perforate it, as the fluttering would push it away, and certainly it emerged after shechitah. But in the brain, which lies at rest, it is within the power of the worm to perforate it during life just as after shechitah [Shach, subsection 7]. And see what I wrote in section 21.

And know that the Maharshal [Yam Shel Shlomo, siman 11] permits in a case where a worm is found in the brain if no impression or speck of blood is found on the two membranes, for we do not presume a deficiency, and especially since several great authorities declare it kosher when the two membranes are not perforated. If so, to be concerned lest the two membranes were perforated and in both of them we see no sign is a stringency without reason. The great later authorities agreed with him [Shach, Pri Chadash, and Kreiti U'Pleiti]. Furthermore, when it is found on the upper membrane, it certainly should be declared kosher for another reason, for we say that it came from the outside through the nose and is still resting there. Only if it is found between one membrane and the other, where it certainly perforated one membrane, in this case it should be declared treif in any event [Kreiti U'Pleiti]. But when it is found on the upper membrane between the membrane and the bone, and we checked the two membranes and they were found whole and beautiful, one may rely on the great authorities who permit in a case of great loss.

And all this is when it is found within the bone in which the brain is placed, but if the worm is found outside the bone, such as in the nose, it is kosher in any case, for we say "here it was found and here it was," and it has never yet reached the brain. And even if the mouth of the worm is toward the outside and it appears that it came out from within the brain, nevertheless it is permitted by reason of a double doubt: perhaps the worm turned around and had not yet reached the brain, and if you say it reached the brain, perhaps it did not perforate the membrane [Taz]. And we do not permit it except after examination [ibid.]. And even though we are not experts, nevertheless in such a case one may certainly rely on our examination [ibid.]. And there is one who permits it without any examination [Pri Chadash], and even according to the one who requires examination, if it was lost without examination, one should not forbid it [Pri Megadim].

If a worm is found inside the brain itself, it is treifah if it is exposed to the membrane, but if the membrane surrounds it on all sides, it is kosher, according to the law of water in the brain [Tevu'ot Shor]. The membranes certainly require examination, for if not, we should be concerned that perhaps they came from the nose and perforated the membranes. And even though we are not experts, nevertheless in such a case one should permit it, for we say "here it was found and here it was." However, according to the one who holds that it is impossible for a worm to be formed within the brain itself, it is certainly forbidden, for it came from the outside and perforated; but they have already rejected this reasoning, for in all organs it is possible for worms to be formed, and if we see that they are formed inside a bladder, why should worms not be formed [Pleiti at the end of this siman]. And in truth, the commentators of the Shulchan Aruch did not bring this matter at all, and therefore with an examination of the membranes one should permit it in a case of great loss. If the membranes were lost and they did not examine them, it requires further study [see the Pri Megadim who hesitated regarding the words of the Tevu'ot Shor, and according to what I wrote it is settled].

A bone within which the brain is placed has a large cavity like a sort of pot, and there are on its opening toward the neck like two beans, and everything of the brain that is in the pot until the beans, and including the beans, is judged as the brain, and the perforation of their membrane is in any amount. From there onward it is judged as the spinal cord, and their perforation is in the majority, as has been written in siman 32. And the brain that is opposite the beans, its law is as has been written. And also in a bird there is a recognition similar to these beans, and its law is like a beast.

And know that the Rambam wrote in chapter 2 of Ma'achalot Assurot, law 17, that worms found in the brain of a beast are forbidden, see there. And it is explicitly clear that the beast is permitted, and it is necessary [to say] that the worms were formed there in its body; for if we say that they came by way of the nose, if so, the membranes must have been perforated when they were found in the brain itself. And according to what I wrote in section 19, it must be said that it deals with a case where the brain surrounds it on every side. However, from this it is clarified for us that it is possible for worms to be formed in the brain itself, and as I wrote there, for it is a forced interpretation to say that his intention is when they are found on the membrane, as his wording does not imply this [the Lechem Mishneh explains there that this is the "kokyana" mentioned at the end of "Elu Terefot," but it is not so, for "kokyana" is only in fish as is explicit in the Rif there, and that which he wrote "worms in the brain" is what they said there in the Gemara "the worms of the meat," and so it appears from the Kesef Mishneh, see there and examine closely].