Siman 313

It is stated in the Torah not to inflict a blemish upon a בכור, as it is said, "no blemish shall be in it" (כל מום לא יהיה בו). It is as if the yod is written with a sheva and the heh with a patach, the meaning of which is that a blemish shall not be made in it. Why it is written with this phrasing and not written "he shall not make in it" will be explained before us. And so the sages, of blessed memory, said (34a): I only know that he may not place a blemish in it; from where do we know that he may not bring a dried fig or dough and place it upon the ear so that a dog will come and eat it—meaning, along with the ear? The Torah teaches, "any blemish" (כל מום). The inclusion of "any" includes even a secondary cause (גרמא), that he should not cause through any means that a blemish should be formed in it. And for this reason I say that it is written with the phrasing "shall not be in it" and it is not written "you shall not make a blemish in it," for if it were written with this phrasing, it would necessarily follow that a secondary cause is permitted. As they said in Shabbat (120b) regarding the erasing of the Name, where it is written "you shall not do so to Hashem your God"—doing is what is forbidden, but a secondary cause is permitted. And so too regarding the labors of Shabbat, where it is written "you shall not do any labor"—doing is what is forbidden, but a secondary cause is permitted; see there. But here, even a secondary cause is forbidden, therefore the Torah did not write the phrasing of doing. (And the sages, of blessed memory, did not derive it from this itself because it could be said that it was not for this intent, and they derived it from "any"; and examine this carefully).

One who inflicts a defect upon a בכור, behold, he receives lashes, and this matter was explained by the Rambam in chapter 1 of Issurei Mizbe'ach, law 7, regarding all consecrated animals, and consequently the same applies to a בכור. This is the wording of the Rambam there: One who inflicts a defect upon consecrated animals, etc., receives lashes, for it is stated regarding a sacrifice, "no defect shall be in it"; from the oral tradition they learned that this is a prohibition that one should not inflict a defect upon it. And he only receives lashes during the time the Beit HaMikdash exists, for it was fit for a sacrifice and he disqualified it, but in this time, even though he has transgressed a negative commandment, he does not receive lashes. Thus far his words. And according to his words, there is a Torah prohibition even in this time. And the language of the Gemara in the chapter "Before their festivals" (Avodah Zarah 13b): These matters apply during the time the Beit HaMikdash [exists], etc., but now we have no concern with it. And Rashi explained that it is not prohibited by the Torah, but rather by the rabbis. Thus far his words. And so wrote the Tosafot in Menachot (56b) and in Bekhorot (33b), see there. And so wrote the Rosh in chapter 5, at the end of section 4, see there. And the words of the Rambam are very puzzling (see the Lechem Mishneh there who remained in "needs further study"). And it appears to me that during the time of the Mikdash, one receives lashes even for indirect causation since it is derived from a verse, and likewise for instructing a gentile, for it is no less than indirect causation.

Since causation is forbidden, it follows that telling a non-Jew to inflict a blemish for him is forbidden, and it is more severe than any telling a non-Jew regarding all other prohibitions in the Torah; for we establish that telling a non-Jew is a shevut, but here it is like the action itself. Since the Torah equated causation to action, telling him is like causation. Therefore, even in this time, when the prohibition is rabbinic according to most poskim, telling a non-Jew is forbidden like the action itself. And even regarding a doubtful bekhor, it is forbidden to inflict a blemish, neither by himself, nor through his causation, nor through his telling. And one should not say regarding this that since in this time it is rabbinic, a rabbinic doubt is ruled leniently; for if so, why did all the poskim trouble themselves with cases of doubtful bekhorot to inflict a blemish on them? Rather, it is certain that this too is forbidden, for according to the opinion of the Rambam, even in this time it is a Torah prohibition as I have written. And even if it is rabbinic, it is also forbidden even through a non-Jew, as the Rosh wrote in the seventh chapter of Bava Metzia (siman 6), that due to the severity of kodashim it is forbidden even regarding a rabbinic law and even through telling, see there. And he inferred this from the Sugya of the Shas in Bekhorot (35) where they forbade the bekhorot that were blemished intentionally by a non-Jew, and all of them were in this time, and the Shas did not happen to say that in this time it is permitted. Rather, it is certain that because of the degradation of kodashim it is forbidden (and so wrote the Chatam Sofer, siman 306).

If one transgressed and caused a defect, whether by himself or through his causation or his instruction, and even if a non-Jew caused the defect, if his intention was to permit it, the sages penalized him such that he may not slaughter based on that defect until another defect occurs in it on its own. And if he died, they did not penalize his son after him, and the son may slaughter based on that defect after the release of three in such a case, for the rabbis penalized him but did not penalize his son. And there is one who wishes to say that even for him, since it is by way of a penalty, if they slaughtered it based on this defect, the meat is permitted to others (Shach, subsection 2). But all the great authorities disagreed on this and wrote plainly that it is forbidden (Tevu'ot Shor, section 16, and Pri Megadim, and the Gra), and furthermore, for the three members of the assembly will not permit it for him, and automatically he has no permission. And even if they did permit it, such as where it was not done with intention, nevertheless the meat and the hide are forbidden and require burial.

Our teacher, the Beit Yosef, wrote in section 2: If a gentile or a minor casts water upon it himself, if he did not intend to permit it, it is permitted, even if he asked why they do not slaughter it and they answered him incidentally that it is forbidden to slaughter it until a mum falls upon it. However, if he intended to permit it—for example, after seeing that they permitted it through this, he does so to others—it is forbidden. Thus far his words. And this is a Mishnah (35a): It happened that a kasedor saw an old male and said, "What is its nature?" and they said to him, "It is a bekhor and is not slaughtered without a mum." He took a branch and slit its ear, and the sages permitted it. And after they permitted it, he went and slit the ears of other bekhorot, and the sages forbade them. See there. And even though it appears explicitly that the first one also acted with intent—for since they told him that it is not permitted without a mum, he did so—nevertheless, Rashi explained, and this is his wording: For it cannot be said that he intended to permit it, for he did not know that through a mum that he makes in it, it would be slaughtered, unless it fell on its own. Thus far his words. The explanation of his words is that the Israelites told him that it is not permitted unless there was a mum in it, which implies that the mum falls on its own, and consequently he did not intend to permit it; and that which he slit its ear, it can be said that he did so out of anger and not for the intent of permission. And even if there is a doubt regarding his intent, our teacher, the Rema, wrote: If it is a doubt whether he intended to permit it or not, we follow the lenient view. Thus far his words. And the reason is simple, for in this time it is a rabbinic doubt. And in any case, we have learned from the approach of Rashi, of blessed memory, that if the gentile acted with the intent of permission, even if not at the request of the Israelite, it is forbidden to slaughter based on this mum.

But the Rambam in the Commentary on the Mishnah has another approach in this, and this is his wording: It is a clear matter that this quaestor only intended so that water would be made through it, but since he did this on his own without us having commanded him, it is therefore permitted to slaughter based on it; and when he intends for this constantly, it is as if we commanded him, etc. Thus far his words. Behold, he wrote explicitly that even if he intended to permit it, since we did not request it of him, it is permitted. And similarly to this, the Bartenura wrote, and this is his wording: Even though he intended to inflict a blemish upon it, since he did so without the knowledge of the Israelite, for he did not intend to provide satisfaction to the Israelite; and when he saw that they permitted it and he slit the ears of others in order to provide satisfaction to the Israelite, it becomes as if the Israelite told him to do it, and it is forbidden. Thus far his words. (And the Tosafot Yom Tov synthesized the words of the Bartenura with the words of Rashi, see there; and his words are puzzling, for the Bartenura follows the system of the Rambam, and one must further study the Tosafot Yom Tov as to how he did not bring the words of the Rambam).

This is the wording of the Rambam in his composition, chapter 2, law 8: Or if he asked a gentile to inflict a wound upon it, behold, he may not slaughter based on it; this is the general rule: any wound that was made with his knowledge is forbidden, etc. And if it was made without his knowledge, behold, he may slaughter based on it, since it was not made with his knowledge. Thus far his words. And this is also according to his commentary on the Mishnayot. And it appears explicitly that Rashi and the Rambam disagree in the explanation of the Mishnah there, as we learned: "This is the general rule: anything that is with his knowledge is forbidden, and without his knowledge is permitted," for the Rambam explains "with his knowledge" as referring to the Israelite, and Rashi explained there: "anything that is with intent, that he intended to inflict a wound to permit it." Thus far his words. And according to Rashi, the version is "with intent" and refers to the gentile, and not "with his knowledge." And even if he reads "with his knowledge," the intention is regarding the gentile. (And that which he wrote in law 12, "minors who inflicted a wound by way of play, and similarly a gentile who did so with his own knowledge, behold, he may slaughter based on it, and if they did so in order to permit it, etc.," this is based on the request of the owners, as with the minors).

And according to this, what our teacher, the Beit Yosef, wrote in section 3—if they said to the gentile maidservant in a Jew's house regarding the bekhor that it may not be eaten without a blemish, and she went and cut its ear, it is considered intentional and one may not slaughter it based on that blemish because she intended to permit it, and also those who told her that it is not eaten without a blemish intended for her to inflict a blemish upon it, thus far his words—it will be interpreted according to both views. First he says that it is considered intentional, which is according to Rashi regarding her intent, and according to the Rambam regarding the intent of the owner. And this is why he concludes "because she intended to permit it," and it is forbidden according to the view of Rashi, "and also those who said etc." and it is forbidden according to the view of the Rambam. The commentators struggled with this entire matter, and I wonder that they did not sense the difference between Rashi and the Rambam (see Taz subsection 2 who elaborated and struggled and went a great distance, and likewise the words of the Bach and Shach subsection 5 are forced, see there). And even if perhaps the Beit Yosef did not intend this, it is known that with the help of Heaven our teachers, the authors of the Shulchan Arukh, were assisted to align their wording with the halakha, as I wrote in siman 10, section 3, see there (and the Tur follows the view of Rashi, see there).

It has already been explained that if an Israelite caused a blemish indirectly, such as by placing food on its ear or leading it between iron and glass lanterns so that its limb would be severed and the like, one may not slaughter based on it. The Rambam wrote there: If we saw him perform an action that habitually leads to inflicting a blemish, and a blemish occurred, and we do not know if he intended this blemish or did not intend it, behold, he may not slaughter based on it. How so? For example, if he gave it barley in a cramped place intertwined like thorns, and when it ate, its lip was split; even if he was a scholar, behold, he may not slaughter based on it, and so too anything similar to this. Thus far his words. And this is in the Gemara in the incident of Rabbi Tzadok and Rabban Gamliel (36a), and the Tur and the Shulchan Aruch brought this in siman 314.

It is stated in the Mishnah (35b): Once, children were playing in the field and they tied the tails of lambs to one another, and the tail of one of them was severed, and it was a firstborn, and the sages permitted it. The children saw that they permitted it and they tied the tails of other firstborns, and they prohibited it; see there. And it appears from this that if adults did so, even for mere play, it is prohibited even the first time, and we say that their intention was to permit it, and they are not believed to say that their intention was for mere play.

And there are times when even a great person who caused an actual defect with his hands is permitted, such as if the firstborn animal was chasing him and the person kicked it with his foot and caused a defect in it; since it is clearly evident that he did so in order to save himself, this is not with the intention of permitting it. And even if he kicked it afterward, after he was saved from it, it is also permitted on the grounds that we say he remembers his pain and kicked it (Gemara 35). And this is specifically immediately after the chasing, but after some time, it stands to reason that it is forbidden. And from this one may judge regarding all matters similar to this.

Our teacher, the Rema, wrote in section 2: And if a koti speaks offhandedly and says that an Israelite commanded him, it is forbidden. Thus far his words. And even though we hold that he is not believed to be stringent when speaking offhandedly, as written in siman 16, it is different here because the circumstances indicate so, for otherwise, why would the koti cause a defect in it (Shach, subsection 4). And it is obvious that this is when the Israelite does not contradict him, such as if he went away from here, but if he contradicts him, he is not believed (Taz, subsection 4). And know that in all the laws explained here regarding intent and lack of intent, there is no difference between an Israelite and a kohen (as is evident from the Tur; and see Perisha, letter 8), and the reason will be explained at the beginning of siman 314.

He further wrote in section 3: It is permitted to give a firstborn to a gentile in order to raise it, and if the guardian inflicted a blemish upon it, it is permitted, and we do not say that he intended to permit it even though he knows that it is permitted through its blemish and that it is a firstborn. Thus far his words. For he certainly did not intend to permit it; on the contrary, he wants them not to slaughter it, for they intended to raise it, and he would receive his reward if it grew larger (Shach, subsection 6). And there is one who wrote that from this wording it implies that even regarding a kohen this is permitted, and it requires further study: why should he be believed, for he himself is suspected of inflicting a blemish, all the more so that he would tell a gentile (Taz, subsection 5). But it is not a difficulty at all, for we have already written that there is no distinction in all of this between an Israelite and a kohen, and especially according to the reason that was explained, that he would not lose his reward. And in my humble opinion, it appears that even if he does not receive a reward it is permitted, for according to the laws that were explained, it is clear that as long as we have no proof that he acted with the knowledge of the Israelite, we are not concerned at all, and according to Rashi, we are not concerned that he intended to permit it.

It is found in the responsa of the Or Zarua an incident regarding a firstborn animal that an Israelite handed over to a Cuthite guard and informed him that it is a firstborn and has a sentence of death to bury it whole in its hide, and the Cuthites investigate the matter and they inform them that with its blemish it is kosher, and the end proves that he came with deceit to the owner of the firstborn and said to him: "Know that I castrated the firstborn," and the Jew remained silent, and the Cuthite understood that the matter was true; and furthermore, the Jew came and saw that it was not castrated and remained silent, and when the Cuthite saw this, he went and castrated it immediately—that firstborn is completely permitted. Thus far his words (Shach, subsection 6). And there is one who wrote that it is an error and it should say: it is completely forbidden (Pitchei Teshuvah, subsection 6 in the name of the Tiferet LeMoshe). But it is not so, for it is explicitly stated so in the Or Zarua, siman 752, letter 5; see there, for he concludes: it is completely permitted, and who would give us of its meat that we might eat. Thus far his words. And it is obvious that according to the position of the Rambam that we explained, that anything done without the knowledge of the Israelite is permitted even if his intention was for permission; but even according to the position of Rashi, it is explained there that it is permitted, for whenever they said to the Cuthites "unless it had a blemish," it implies that it would fall away on its own; see there where he explained this. And it is obvious that since according to the opinion of the Rambam it is permitted, one should be lenient.

By the word of the Torah, a bechor that has sustained a temporary blemish is permitted to have a permanent blemish inflicted upon it, as it is written: "it shall be perfect to be accepted" for sacrifice—then one may not inflict a blemish upon it, which is not the case when it already has a blemish. However, the sages forbade it, and even when it already had a permanent blemish, it is forbidden to inflict another blemish upon it (see in the Gemara 33b: they only disagreed regarding one who inflicts a blemish on a blemished animal). And also in the case of a doubtful bechor the law is so, for the sages did not differentiate.

A firstborn animal that was seized by a blood-related illness and has no cure except through bloodletting, and if they do not let its blood in a place where a permanent mum is caused it will die, is considered now like a possessor of a mum, for you have no greater mum than this, that it cannot live. Nevertheless, this is not like a permanent mum to slaughter based upon it, but rather like a passing mum, because in any event it has a cure; and even though the cure is by way of a mum, nevertheless this illness will pass, and if so, for the time being it is not like a permanent mum. And what should be done with it? The sages permitted letting its blood and causing the permanent mum. And even though it was explained in the previous section that the Rabbis decreed against causing a permanent mum in a place where there is a passing mum, nevertheless here they did not decree so that it should not die. However, if they let its blood and the mum was formed, whether they may slaughter it is a dispute between Rabbi Shimon and the Sages (33a): Rabbi Shimon holds that they may slaughter based upon it, and the Rabbis hold that they may not slaughter based upon it until another mum is formed in it. The Rambam rules like Rabbi Shimon and the Rosh rules like the Rabbis, and our teacher, the Beit Yosef, in section 6, ruled like the Rambam, provided that his intention was not to cause a mum in it.

And if it is a case where he will not die if they do not perform bloodletting for him, or if he has a cure through bloodletting in a place where he will not cause a mum, the Rabbanan hold that they should not perform bloodletting for him even near the place where it could lead to a mum, such as near the ears or near the edge of the lips or near the nose, because we fear perhaps he will cause a mum unintentionally, and an unintentional act is forbidden; rather, he should perform bloodletting far from these places where he certainly will not cause a mum. And Rabbi Shimon permits it, for an unintentional act is permitted, and in this even the Rosh admits that it is a decided halacha that an unintentional act is permitted.

It is permitted to inflict a blemish upon a בכור before it emerges into the air of the world, for holiness has not yet taken effect upon it, as it is only sanctified by the opening of the womb. And how shall one act? A kid with its ears, which are long, and before its head emerges its ears are visible, and one may inflict a blemish upon them, for when its head emerges it is considered as born; and a lamb with its lips, for its lips are visible first. In what case are these matters stated? In this time, when there is no offering, and therefore there is also a mitzvah to save from a stumbling block; but in the time of the Mikdash it is forbidden to do so. And as long as the majority of its limbs or its head have not emerged, it is not considered as born (see Shach, subsection 8).