Siman 50

Our sages, of blessed memory, said [50a]: We compare the intestines if they were found perforated and we do not know if it was before the shechitah or after the shechitah; we perforate another hole next to it and see if their appearances are equal, it is kosher, for it is known that they occurred after the shechitah [Rashi]. And if there was handling by hands in the first found perforation, we handle the second one as well, and if they are similar afterward, it is kosher [Gemara]. And if they did not handle the first one, they should not handle the second one either [Beit Yosef].

And know that from the wording of the Tur and Shulchan Aruch, who wrote: "And even if they do not appear similar, if they were handled by hand in the hole of doubt, they should also handle the hole that they make," thus far their words, it is explicitly clear that if they appear similar prior to the handling, it is kosher even though there was handling in the hole of doubt. And why do we not say that since there was handling in this one and there was not in the second, and they appear similar, this is a sign that the first was not made after slaughter? For it can be said that this is no rule at all that handling will change its appearance; sometimes it changes it and sometimes it does not change it, and therefore it is kosher in all manners [and so it appears from the Shas in the incident of Rava where they did not appear similar, and Rav Mesharshiya came and handled them and they appeared similar for the reason of "how many hands etc." and it implies that if they had appeared similar beforehand, they would also have declared it kosher, see there and examine carefully].

But from the language of the Rambam, chapter 6, law 14, it does not sound so, for he wrote: And if the hands felt the doubtful perforation, so must one feel the perforation that he compares to it, and afterwards they compare them to one another. Thus far his words. It is clear from his words that one must specifically do so, and this is for the reason we explained, that the comparison beforehand testifies to the contrary. Regarding the halacha, one certainly should be stringent, and I am surprised at the poskim who did not mention this [and it must be said regarding the Gemara there according to the Rambam, that R. Meir truly innovated that one must feel, see there and delve into it].

One may only compare the stomach and the small intestines, but not the heart, the spleen, or the gizzard, for these are not included in the category of the innards mentioned by the sages, of blessed memory. It must be said that only regarding the innards is it the way that they should be equal to one another when both were in the same state, but not regarding other organs, and in them this is not a sign at all, except for the trachea and the lungs as was written in siman 36. And even though there are those among the Rishonim who ruled that one may compare in these as well [the Tur in the name of the Ittur], for they too are included in the innards, nevertheless the Tur and the Shulchan Aruch decided according to the first opinion. However, for us there is no practical difference, for our teacher, the Rema, already wrote in siman 36 that we are not to rely on our examination in this, for we are not experts in comparison. But if there is another reason to be lenient, some say that even for us we rely on our examination, and we have already explained this in siman 36, section 36, and it was explained there that to be stringent we do rely on our examination; see there.

And so too regarding all these perforations, if there is something to which it may be attributed, such as a wolf or a dog or the handling of the butcher's hand, we attribute it to this, as was written there regarding the lung. And when there is something to which it may be attributed, we attribute it and there is no need to perform an examination by making another perforation to see if they are similar to one another. The reason is that since there is something to which it may be attributed, this constitutes a complete presumption. And even if it happened that they made another perforation and they are not similar to one another, we also do not concern ourselves with it for the reason that was explained. And there are those who are stringent in such a case, and we have already explained this in siman 36, section 19. And it is a simple matter that if there is something to which to attribute the difference between them, such as a change in air or a change in time and the like, all agree that it is permitted, as was written there.

Our teacher, the Rema, wrote: In any case where we cannot attribute it to having occurred after shechitah, even if it is a treifut that has an inspection, if they did not inspect it or they cannot inspect it, it is like a doubtful treifa and we forbid it. We do not say "once slaughtered, it is permitted" except in a matter where we can say that the defect occurred after shechitah, for it did not leave its status of being permitted from its lifetime. Thus far his words. And he explained his words in his book Darkei Moshe, siman 31, regarding an incident of water in the head of an animal, where before they knew of the defect, they cut the skull in two and also part of the brain from the skull, and it was not known if the brain surrounded it and it was kosher or not. There were those who wished to permit it based on the reasoning that we say "once slaughtered, it is permitted" until it becomes known to you by what it became treifa, and when there is a doubt in this, we establish the animal in its status of permitted slaughter. And he rejected their words, for this is only in a matter where it is possible to attribute that the entire essence of the defect occurred after shechitah, such as if we found it with a broken leg and there is a doubt when it was broken, we attribute that it was broken after shechitah, and so too anything similar to this. But in something where the defect certainly existed during its lifetime, such as water in the head, but there is a doubt if it was in a manner that renders it treifa or not, one should not permit it based on this reasoning. And so it is implied in Tosafot [Yevamot 30a]. And according to this are his words here in the Shulchan Aruch. And the truth is that our sages, of blessed memory, who said "once slaughtered, it is permitted," said it regarding a case where a wolf came and took the intestines and returned them perforated, for in this we indeed attribute that it occurred after the shechitah. But in a matter that certainly occurred during its lifetime, who is to say that in this too we say "once slaughtered, it is permitted"?

And behold, all the great Acharonim debated his words; some rejected his words [the Maharamal] and brought proof from the Tosafot to the contrary, and some upheld his words [Shach subsection 3 and Taz at the end of siman 49]. However, the truth is that this is a dispute among the great authorities. Our teachers, the authors of the Tosafot, wrote explicitly in Chullin [43b] that except for a case of drusa, we maintain the status of permissibility even when a defect arose during its lifetime, see there. And so it is there in the Piskei Tosafot, sign 123, in this wording: If a doubt arose during its lifetime and it is still in a status of prohibition, even so, once slaughtered it is permitted. Thus far his words. And also in the Tosafot in Yevamot there, it appears clearly so, according to the words of those who disagree with our teacher, the Rema [Pri Chadash siman 29]. And so it is explained from the wording of Rashi in Chullin [9a, s.v. de-af al gav] who wrote: If a doubt of terefah arose in it—a doubt whether it was in it before slaughter, and there is reason to attribute it to after slaughter—we establish it upon its status of permissibility, for the average animal is not a terefah, and we attribute it to after slaughter and it is kosher. Thus far his words. And even though regarding the wording "and there is reason to attribute it to after slaughter" one could say his intention is specifically when there is something to attribute it to, such as a wolf or the like, nevertheless, since he wrote the reason that "the average animal is not a terefah," it implies that he is dealing with all cases.

And the opinion of the Rambam is also thus, for besides that his opinion is known that all doubts are of rabbinic origin, he wrote explicitly in chapter 5, law 3, that even rabbinically they were not stringent regarding doubts except in the case of a drusa, and we explained his words in siman 29, section 21, see there. Therefore, he wrote in chapter 9, law 7, that a case of doubt regarding a gluda is permitted, see there, and in several other places as we explained there. And there in section 28, we brought clear proof from his words in chapter 2 of Laws of a Murderer that even if a defect arose during its lifetime, it does not leave the general rule that "the majority of animals are kosher," unlike those who say that since there was a defect during its lifetime, it has left the general rule of the majority, see there.

And even regarding the matter of chazaka, it is clear from the wording of the Shas that even if it was revealed that the defect existed during its lifetime, nevertheless, it remains in its chazaka of permissibility. For the Shas states two laws: An animal during its lifetime stands in a chazaka of prohibition until it becomes known to you how it was slaughtered; once slaughtered, it stands in a chazaka of permissibility until it becomes known to you how it became a tereifah. And behold, just as regarding the chazaka of prohibition the permissibility of the shechitah must be clear, and when there is a doubt it is prohibited—as they said, that any doubt in shechitah is invalid—so too the opposite: when it stands in a chazaka of permissibility once slaughtered, the tereifah status must be clear, and if there is a doubt, we establish it upon its chazaka of permissibility, for the Shas included them in a single phrasing. And do not find difficult that which the Sages, of blessed memory, required to say regarding the permissibility of an animal that drags its legs, that we attribute it to rheumatism and not to the severing of the spinal cord because rheumatism is common and the spinal cord is not common [51a]; and let it be derived from the reason that once slaughtered it stands in a chazaka of permissibility. For it is not comparable at all, as there we saw the defect during its lifetime before the shechitah, and it is impossible to say of it "once slaughtered it stands in a chazaka of permissibility," for it never entered the chazaka of permissibility due to the defect. But when during its lifetime we did not see any defect and it was slaughtered and stands in a chazaka of permissibility, one may not prohibit it except with a clear matter. However, it is possible to say that since it was afterwards revealed that there was a defect during its lifetime, the matter was revealed retroactively that it was never in a chazaka of permissibility.

But there are some of our teachers who are very stringent in this, and they hold that even in a case of doubt where it is possible to attribute it to having occurred after the shechitah, it is also forbidden. This is the wording of the Rashba in Torat HaBayit, page 25: We do not attribute it leniently except when we have a tangible thing before us to attribute it to, such as a wolf or the hand of the butcher and the like. However, in any place where the matter of a predator is found and we do not know its nature, we do not attribute it leniently. And the proof is from a doubt regarding a drusah, etc., and from a charuta where it is a doubt whether it was caused by human hands or by the hands of Heaven, it is forbidden until it is checked. Thus far his words.

And so wrote the Rashba in his novellae, page 9: This is his wording: And where the wing of a bird was dislocated or its leg was broken from the joint and above, and it is not known if it was before slaughter or after slaughter, our teacher, of blessed memory, wrote that it stands to reason that it is a doubt regarding a Torah law and is to be treated stringently, as it is taught: If one slaughtered the esophagus and the trachea was found dislocated and he does not know if it was before slaughter etc., any doubt in slaughter is invalid, and so too for all other terefot. Thus far his words. And he brings proof from that which we say, that a neck injury is common but the severing of the spinal cord is not common; but if it were not more common, we would not hang the matter on a lenient ruling. And that which we say, "doubt dog, doubt cat, say it was a dog," is because it is not common for a cat to claw. And you should know that we are concerned for a doubt of clawing, and this that we hang the matter on a wolf or on the handling of the butcher's hand is because there is a factor before us upon which to hang a permit, and there is no factor before us upon which to hang a prohibition. And anywhere that there is a factor before us upon which to hang a permit—that they clawed the bird after slaughter, or it struggled and was pressed against the wall, and there is an assessment that it is possible that its wing was dislocated because of this—we hang the matter on a lenient ruling, for we hang the matter on a wolf. Thus far his words. And so wrote the Ran in the first chapter in the name of our teacher Yonah; see there.

And all these proofs do not contradict the first opinion, for regarding the proof from a drusah where we are concerned for a doubt, the Rambam already wrote that they were only stringent regarding a drusah. And the proof for this is that only regarding a doubt of drusah did the Sages, of blessed memory, disagree as to whether we are concerned or not; this implies that in other matters we are not concerned, as I wrote in siman 29 there. And from a doubt regarding the shechitah, it is simple that it is no proof at all, for since it was slaughtered, it stands in its status of permissibility. And from the "blackness" there is no proof, for certainly since there is a way to examine this, we are obligated to examine, as even regarding a majority we have established in siman 1 that wherever it is possible to clarify, we clarify, and all the more so regarding a presumptive status. And from the "shigrona" there is no proof, for there the doubt arose before the shechitah during its life, and it is not relevant to say "once slaughtered, it is permitted"; and furthermore, the Gemara cited a definitive matter.

And it appears clearly that our teacher, the Rema, made a sort of compromise between the opinions, for regarding a matter that could be that it occurred only after shechitah, he ruled according to the first opinion, and regarding a matter that certainly occurred during life, he ruled according to the latter opinion.

And know that the reasoning of our teachers who forbid is not as it appears from the flow of their words, that since there is a defect before us its presumption of permissibility is lost; for it is proven in several places in the Shas that even a weakened presumption is a presumption. Furthermore, the Rashba and the Ran themselves wrote regarding the milk of an animal when they slaughtered it and it was found to be a certain terefah, if it can only be said that it became a terefah just before slaughter and not earlier, we attribute it to this and permit the milk that was milked from it before its slaughter based on the reason of presumption and also based on the reason that the majority of animals are kosher, as will be explained in siman 81. And so they wrote in the name of our teacher Yonah [Ran, first chapter]. On the contrary, the Tosafot are more stringent in this regarding the reason of a presumption that has not been clarified, as is written there; but all of them hold that by reason of the defect its presumption is not lost.

However, their reasoning is this: they hold that since a defect was found in one of the organs, it never left its status of prohibition as an unslaughtered animal. Not only do we not say regarding it that once slaughtered it stands in a status of permissibility, but we even say that it stands in a status of prohibition, for an animal in its lifetime stands in a status of prohibition. And the reason for the matter is that we do not say "once slaughtered it stands in a status of permissibility" except when there is no defect before us, or when there is something recognizable before us upon which to attribute the defect, such as a wolf or the handling of the slaughterer's hand and the like. But without this, how is it in a status of permissibility? For the status of permissibility is only through a proper shechitah and with kosher organs, for in a treifah, what does the shechitah avail regarding the matter of eating? And just as if the shechitah is not proper it remains in its status of prohibition, so too if the organs are not proper it also remains in its status of prohibition. Therefore, it is not similar to chelev, for the permissibility of the chelev does not require a proper shechitah, and therefore it is in a status of permissibility; this is not the case with the meat, which requires a proper shechitah, as I have written [and with this, the difficulty of the Kereti U'Peleti is settled].

The first opinion holds that the shechitah is not related to the organs, and we first judge the shechitah; once it has been slaughtered properly, it has entered the presumption of permissibility, and when there is a doubt regarding the organs, we establish it upon the presumption of permissibility until it becomes known to you by what means it became a tereifah. And there is a great reason for this matter, for the shechitah is always effective even in a tereifah regarding the matter of the impurity of nevelot, and the name "shechitah" is upon it. Therefore, we say even regarding the matter of eating that it is a complete shechitah, and if a doubt subsequently arose regarding its status as a tereifah, we establish it upon the presumption that since it was slaughtered, it stands in a presumption of permissibility. Our teacher, the Rema, decided that in a matter where we can say that the defect arose after shechitah, it is certainly a complete presumption; however, when the defect was certainly present during its life, the presumption of permissibility of its shechitah is no longer so powerful that we should say "since it was slaughtered, it stands in a presumption of permissibility." And this is like a compromise between the two opinions that were explained, as I wrote in section 13.

And know that from the words of the Behag it appears like the first opinion, for he raised a difficulty regarding that case of "doubtful dog or doubtful cat" where we attribute it to a dog—but is it not a doubt regarding a prohibition, which is ruled stringently? And he answers with this wording: When we say a doubt regarding a prohibition is ruled stringently, it is in a case such as a piece of chelev that was mixed with other pieces, where there was certainly a prohibition present; but here, who says there was a prohibition? And we do not establish a defect. Thus far his words. Behold, he did not write the reason as being because a cat is not common, as the Rashba wrote, but rather because one does not establish a defect; and this defect occurred during the animal's life. If so, in every doubt of terefot it is so, even with a defect during its life, and we attribute it to a permitted cause.

And behold, the Semag and the Mordekhai [chapter 4] also cited matters from the Bahag that are not in the editions of the Bahag before us, and it also indicates like the first opinion. This is the wording of the Semag regarding the law of a dislocated limb: And regarding any doubt of terefot that comes before a sage, Rav Yehudai Gaon ruled that we are not experts in examination, and we must forbid everything; and we are not to be lenient to permit the doubts based on the reasoning of Rav Huna, who said, "Once slaughtered, it is permitted until it becomes known how it became a terefah," for he only said this in a case where it is possible to attribute it to a permitted cause, such as where a wolf came, etc., where the puncture can be attributed to the wolf. But in a doubt of terefot that is found, and due to a lack of wisdom we are unable to clarify the matter, it is proper to forbid everything. Thus far his words. Behold, he only forbade in a matter that requires examination by law, such as whether its filaments were consumed and the like, as the Mordekhai wrote there. But in a matter where it is possible to attribute that this is not a terefah at all, such as in the case of the Rema regarding water in the head, where it can be said that the brain surrounded it, and all the more so if it can be said that it happened after slaughter, for we attribute it to this; and behold, he did not write this because we have before us a specific thing to which to attribute it, as the Rashba wrote, as is proven from the end of his words, that he only forbids due to a lack of wisdom.

However, the Ran also brought these matters, and it is explained according to the latter opinion. This is his wording in the fourth chapter: And regarding a case where the bone broke and protruded outward and we do not know if it occurred during life or after death, the Bahag wrote that it is forbidden, for it cannot be permitted based on Rava who said "if it was slaughtered it is in its status of permissibility" etc., for there it is specifically where it is possible to attribute it, such as to a wolf or to handling etc., but here where it is not possible to attribute it, it is forbidden due to doubt unless etc. Thus far his words. And this is according to his approach, for he holds like the Rashba as I have written [and similar to this is the wording of the Semak and the Issur Ve-Hetter in the name of the Bahag which the Shach brought in subsection 3, and it appears that these matters are not in the Bahag, but rather each one interpreted according to what he holds; and therefore the Semag and the Mordechai who hold like the Tosafot interpreted according to their words, and the Ran and the Semak and the Issur Ve-Hetter hold like the Rashba and interpreted according to his words, and examine this carefully; but from his wording which we brought in section 17, it is explained like the Tosafot]:

Furthermore, it appears to me that even our teachers who are stringent were only stringent regarding a matter that, according to what is seen now, is a complete terefah, except that there is a doubt whether perhaps it occurred after shechitah. In this, they say that we require something before us to attribute it to, such as a wolf or the handling of the butcher's hand. But in a matter where even now we do not see a certain terefah, such as with water in the head where it is impossible to recognize if the brain surrounded it, we establish it upon its status of permissibility when it is impossible to examine it, provided the lack of examination is not due to a deficiency of wisdom like a doubt of drusah or a doubt of charutah. For this is implied by the precision of their wording that we brought in section 10 and section 11, see there. And according to this, it would be possible to say that they do not disagree at all with the first opinion, for the first opinion deals with a case where even now there is a doubt in the matter as it is, even if it occurred during its life. However, this is the exact opposite of the words of our teacher, the Rema, and all of this requires further study.

And for the practical halacha, one of the great Acharonim decided that in a case where the permitted possibility is more common, we attribute it to the lenient side, even regarding something that certainly occurred during the animal's life. If the forbidden possibility is more common, it is certainly forbidden even when there is a doubt if it occurred during life, unless there are "proving hands" that it occurred after shechitah. When the forbidden and the permitted are equal, if it is not a case of great loss, one should forbid it; but in a case of great loss, one may rely on the opinion of these, our teachers, who permit in such a case [Shach, subsection 3], even if the defect arose during life [ibid.]. And there are some of the great authorities who were very stringent in this, that in any balanced doubt one should not be lenient at all, even in a doubt whether it perhaps occurred after shechitah, unless there is more reason to attribute it to the permitted than to the forbidden [Pri Chadash and Tevuot Shor, siman 29]. And there is one who wrote that one should not deviate from the ruling of our teacher, the Rema, for such is the primary law [Kereti U-Peleti, subsection 3]. According to this, we do not have a clear halacha in all of this. It is possible that since the words of the Ba'al HaHalachot Gedolot are words of tradition, as all the Rishonim wrote, and we brought his words in section 17 where it is proven that he holds like the first opinion, perhaps one may rely in a case of great loss on the opinion of those who permit and like the first opinion in this section; and one must deliberate on the matter.

Any organ regarding which the sages said that if it is perforated by any amount it is terefah, so too if it is entirely removed it is terefah, whether it was removed by hand or through illness, or if it was created missing, or if it was created with two organs, for an extra organ is considered as if it were removed, except for the spleen as is written in siman 43. And likewise regarding the removal of the womb, which is kosher, while if it is perforated it is terefah according to one opinion, as is written in siman 45. And if the perforation was from birth, this is not included in the category of perforation but rather in the category of deficiency [Taz siman 43, subsection 2], and it was created deficient in this perforation. Therefore, in the lung, intestines, rumen, omasum, and reticulum, it is terefah in such a case, for there even a deficiency is terefah. But in the spleen it is kosher, for if the spleen is removed it is kosher, and all the more so if it was missing from its creation [ibid.]. And likewise regarding the liver according to the opinion of the Rambam, that if it was created deficient it is kosher, as is written in siman 41, section 5.

An incident occurred with a goose where the skin was intact over its entirety, but a deep pit the width of two fingers was visible in the middle of the abdomen along its length, and it was evident that there was a deficiency inside beneath the skin. They stripped the skin and it was found that the middle bone that protrudes in the center like a thin board, which has flesh on both its sides, was cracked and divided along its entire length exactly in its middle. In that gap that was between them, the heart and the liver were visible from the outside as they lie in the cavity of the body, and it appeared that it was made this way from its birth, and they declared the goose kosher [Tzemach Tzedek siman 76]. However, if the perforation is evident from the outside, one must declare it treif, for in such a case it appears more likely that it was caused by a thorn, as one should not declare it kosher unless there is a doubt whether it was caused by a thorn or by illness due to a double doubt [Pri Chadash subsection 2], as I wrote in siman 49 section 7, see there. And similarly, geese and wild geese that have perforations in the skull and they are from birth, and they have a mark from the outside in the feathers, the greats of the generation declared them kosher, as I wrote in siman 30 section 18, see there.

Any organ regarding which the sages, of blessed memory, said that if it was created deficient it is treifah, all the more so if it was removed by hand or through illness; but if it was perforated, it is kosher. And regarding anything of which the sages, of blessed memory, said if it was removed it is treifah, the Rashba wrote that the same applies to one created deficient. However, the Rambam at the end of chapter 8 wrote that regarding anything of which they said if it was removed it is treifah, if it was created deficient, behold, this is permitted; for if you do not say so, you find that the "deficient" and the "removed" are one. Thus far his words. That is to say, for behold, to Moses at Sinai were transmitted eight types of treifot, "deficient" on its own and "removed" on its own. But the Rashba wrote that thus it was said to Moses at Sinai: whether it is deficient from its creation or whether it was removed by hand or through illness [Torat HaBayit 4:29]. And regarding anything of which they said if it was removed it is kosher, all the more so if it was deficient from its birth.

And since this is a dispute among the Rishonim and there is no decisive ruling between them, and it is a Torah prohibition, we adopt the stringent view that anywhere where "removed" is treifah, the same applies to "missing," and likewise when there are two, for "any addition is considered as if it were removed" [see Beit Yosef]. And so it is clear from what we ruled in siman 41 that two livers are treifah, for according to the opinion of the Rambam it is kosher, since we learned "if the liver is removed it is treifah," and according to him, if it is missing it is kosher, and the same applies to two. Nevertheless, our teacher, the Rema, wrote in section 2 that in a case of great loss one may rely on those who permit. Thus far his words. And in siman 41 regarding the liver, they ruled without qualification that it is treifah and did not bring the opinion of the Rambam at all, and we have already explained there in section 38 that such is the primary law, see there [and so wrote the Pri Chadash and the Kereti U'Peleti, who upholds the words of the Rema and wrote that regarding the liver even the Rambam admits because of the large vessels, and therefore he only wrote regarding the spleen that with two it is kosher and not regarding the liver; and see what I wrote in siman 54].

Any organ whose perforation, removal, or deficiency renders it unfit—if the flesh has decomposed, it is considered as if perforated, deficient, or removed, for anything that has decomposed is as if it does not exist. And we, who are not experts in this, consider any case where the appearance of the flesh has changed for the worse, such that it appears worn and spoiled, as having decomposed. This is specifically when the substance of the flesh itself has changed, but if only the appearance has changed, we have no concern with it. Even if the flesh was torn and its appearance changed, we do not presume a defect unless the body of the flesh itself was spoiled. A great principle must be known: that in every place where the sages said if it is perforated it is treifah, if there are pustules there, which are called "pocken," one must open them. If the skin remains whole beneath them, it is kosher, even if there is phlegm or clear or foul water there. But if the skin beneath them is bad, it is as if it were perforated [Derishah]. And we have already explained this at the end of siman 46; see there.