Siman 63

Our teacher, the Beit Yosef, wrote: Meat found cast in the marketplace follows the majority, for "whatever separates, separates from the majority." If the majority of the sellers were Cutheans, it is forbidden; and if the majority of the sellers were Israel, it is permitted. Similarly, meat found in the hand of a gentile and it is not known from whom he took it, if the meat sellers were Israel, it is permitted. This is the Torah law. However, the sages already forbade all meat that is found, whether in the marketplace or in the hand of a Cuthean, even if all the sellers and all the slaughterers are Israel. Furthermore, one who purchases meat and leaves it in his house and it was hidden from the eye, it is forbidden unless he had a sign on it, or he had recognition of it by sight and he recognizes it with certainty that it is this, or it was tied and sealed. If he hung a vessel containing pieces of meat and the vessel broke and the pieces fell to the ground, and he came and found pieces and they have neither a sign nor recognition by sight, this is forbidden; for it can be said that the meat that was in the vessel was dragged away by a wild animal or a creeping creature, and this is other meat. Thus far his words. And all of this is the wording of the Rambam in the eighth chapter of Ma'achalot Assurot, see there.

He further wrote that if one hung it on a nail or the like, where it is impossible for a sheretz to take it and place it, it is permitted. And there are those who permit meat that was hidden from the eye if one found it in the place where he left it. Our teacher, the Rema, wrote: and the custom is to be lenient according to the latter opinion, and even if it was in the hand of a Kutite in a place where all the sellers are Israelites who sell kosher meat. Thus far his words.

The explanation of the matters is that in the Gemara [95a] Rava said: Meat that was hidden from the eye is forbidden, for since some time passed where he did not see the meat, even if it is placed upon his table, we concern ourselves that perhaps it was exchanged for nevelah [Rashi]. And even in a city that has a majority of Israelite butchers, for we concern ourselves that perhaps ravens brought nevelah from elsewhere and exchanged it, and it is merely a stringency [Tosafot]. And so it is explained in the Yerushalmi Shekalim [Chapter 7, Halacha 2] that when Rava descended to Babylon and saw them treating prohibitions lightly, he was stringent upon them to forbid all meat that was hidden from the eye; see there.

According to this, it is not understood what the Gemara challenges Rava from several mishnayot—that when meat is found in the hand of a Kutite, the meat is permitted if the majority of butchers are Israelites—and the Shas answers that being found in the hand of a Kutite is more lenient than being hidden from the eye, for the meat was under the presumption of being guarded, and he did not slaughter it, and they would not sell him a terefah; but meat that is left and hidden from the eye, we fear perhaps crows swapped it [Rashi]. For what is the challenge? Since Rava himself innovated this decree because they are not careful regarding prohibitions, if so, how is it relevant to challenge from mishnayot? And perforce one must say that our Shas does not hold like the Yerushalmi in this, but rather holds that Rava prohibits it by law—not by Torah law, but by a decree of the sages who had decreed previously—and therefore it correctly challenges.

And according to this, it is difficult regarding the Rambam, who was stringent even when it is found in the hand of a kutei, whereas in the Gemara it is lenient in this case. The commentators on his words have already raised this difficulty and answered that the Rambam ruled according to the Yerushalmi, which was stringent in every case [the Maggid Mishneh]. However, according to the Yerushalmi, the sugya of our Shas is not settled at all. Some have answered that the fact that the Gemara permits it when found in the hand of a kutei refers to a place where they announce whether there is treifah in the butcher shops or not, and when they did not announce, it was a sign that there was no treifah in the butcher shops, as is explained in the Shas [94b] that in their days there were places that announced. Therefore, the Rambam forbids it because in his days there were no announcements in any place, and therefore we are concerned that perhaps there was treifah in the butcher shops and they sold it to this kutei [Beit Yosef and Bach]. And this is certainly more puzzling, for if it is in this manner, it is certainly forbidden even from the Torah; and even if from the Torah it is permitted based on the principle that the majority of animals are kosher, nevertheless, if it entered your mind that the distinction depends on whether it is a place that announces or a place that does not announce, the Gemara should have answered so. Furthermore, the Rambam certainly deals even with a case where it is known to us that the kutei took kosher meat from the butcher shops [so wrote the Shach in subsection 5], for he did not make a distinction in the matter and wrote that even if all the sellers are Israelites such that no other meat was found at all. And the system of the Rambam is the system of the Geonim, as the Rishonim, of blessed memory, wrote:

The essence of the matter is a wonder to me, for while it is true that we frequently find a dispute between the Yerushalmi and our Shas, nevertheless, in a matter such as this—where in the Yerushalmi in two places it is explained that the matter was known, that Rav decreed this thing because they were lenient regarding prohibitions in Bavel, and it is not from the decrees of the sages of old—and our Shas would not hold so, to the point that it raises difficulties against him from the previous mishnayot [this is also brought in Avodah Zarah chapter 2, halacha 8]. And even more wondrous is the sugya of our Shas, for regarding this statement of Rav concerning meat that was hidden from the eye, it says that this [ruling] of Rav was not stated explicitly, but was stated by implication from an incident where he saw a man washing a head of an animal in a river, and it fell into the river, and he brought a vessel and cast it into the water and brought up two heads, and he wanted to eat both of them, and Rav rebuked him and prohibited them. And the Gemara rejects this, that from this there is no proof, for by the letter of the law they are prohibited because the harbor was a place of gentiles and treifot were more common than kosher meat, see there. And in the entire Shas, when such a statement is found, that it was not stated explicitly but was stated by implication, and the implication is rejected, the statement is rejected entirely [Berakhot 11b; Shabbat 146b; Ketubot 80a; Bava Kamma 20a; Chullin 111b]. Yet here the statement was not rejected, for it asks afterward: and how did Rav eat among Israel? See there.

Therefore, it appears to me that certainly at first the Gemara thought he spoke from the perspective of the law, and it raised a difficulty against him from Mishnayot, and it answered that what is found in the hand of a Kuthi is more lenient. Then the Gemara stated that he did not explicitly say it from the perspective of the law, but rather by inference, because they were treating prohibitions lightly as the Yerushalmi says. And it brings an incident of a certain man who lost one head and found two and wanted to eat them, and Rav rebuked him, and for this reason he decreed this decree. Consequently, in every case it is forbidden, even when found in the hand of a Kuthi, since he wanted to be more stringent with them than the law requires; and this is one of the instances of treating prohibitions lightly that the Yerushalmi mentioned. And indeed, the Yerushalmi there brings an incident of one who lost one head in the water and found one, and Rav forbade it [the words of the Tosafot in the heading beginning "Assik" require great study]. And this is for the sake of a fence and a safeguard, for by the law it is permitted. And the Gemara asks: what difference does it make to us if he said it explicitly or by inference? And it answers that from this incident alone it is impossible to say that Rav holds meat that was hidden from the eye is forbidden in every case, for in this incident it is forbidden by Torah law since treifot are more common. Rather, certainly because of this incident and others similar to it, Rav decreed [and with this it is understood what Rav replied to Rav Kahana and Rav Assi, that the prohibition is more common; yet he forbids even when all the sellers are Israelites as the Rambam wrote. Rather, this is the explanation: Rav was angry because of this incident and decreed, and for this they asked him: why are you angry, for is it not permitted by the law? And he replied to them that by the law it is forbidden, and therefore he was angry and decreed. And the incident with Rav Chananel his son-in-law was a long time afterward, and the difficulty of the Tosafot there is settled, for by that incident his decree had already spread].

And according to this opinion, even with a whole animal it is forbidden in a case of concealment from the eye, and even though the concerns are remote, the rabbis did not distinguish in their enactment. And so wrote the Rosh there. And there is one who permits in the case of a whole animal [Shach subsection 6], but it is not the primary view, and it is explicitly proven so in the Gemara there [and what the Shach wrote from the Tosafot requires further study, and they wrote so according to the initial thought, see there and examine closely]. However, if he hung it on a nail or the like, it is permitted even according to this opinion, for in this case the decree does not apply at all, and this is like a sign that is effective. And all this is when he does not have for it a recognition of the eye or a medium sign, but if he has for it a sign or recognition of the eye, even with a piece it is permitted. And even an am ha'aretz has recognition of the eye [Ateret Zahav subsection 1, and there is no need for this at all, for the common practice is because he is not believed, and examine closely].

But the opinion of Rashi, of blessed memory, and several more of our teachers is that the halacha does not follow Rav, and we do not forbid in a case of being hidden from the eye. And if he found the meat in the place where he left it in his house or in his courtyard, or even in the market, even if it has no siman or tevi'at ayin, and even in a place where the majority of butchers are gentiles, nevertheless, since he found it in the place where he left it, we do not concern ourselves with anything. However, if he found it in another place, it requires a siman or tevi'at ayin, even in his house, if there is no room to say that one of the members of the household placed it in another location. And this is when the majority of butchers are gentiles; but when the majority are Israelites, it is no worse than found meat which will be explained before us, for it is permitted in such a case [Shach, subsection 8 and Pri Megadim in the Mishbetzot Zahav, subsection 2]. And there are those who forbid even with a majority of Israelite butchers when he found it in another place [Pri Chadash and the Tevu'ot Shor, subsection 16], and it is worse than found meat because there is a deficiency before us in that he found it in another place, and there is reason to attribute it to ravens that brought it from a distant place. However, the primary view appears like the first opinion, and particularly by us, ravens are not common, as the Yam Shel Shelomo wrote [Chapter 7, siman 22]. And regarding this, our teacher, the Rema, wrote that the custom is to be lenient like this view and not like the opinion of the Rambam [and a master of his soul should be concerned for himself for the opinion of the Rambam, which is the opinion of the Geonim; so wrote the Tevu'ot Shor in siman 48, section 8, see there].

There is one who says that in a marketplace of gentiles where they are the majority, one must forbid even if he found the meat in the place where he left it, if it remained for some time such that there is concern that the gentile exchanged it, unless the majority of meat in the city is kosher meat and the gentiles also purchase kosher meat. But without this, one requires some siman or recognition of the object [ibid. section 14]. These are words of reason, and it appears to me that in this case even a weak siman is sufficient.

If a bird or a creeping animal took the meat in our presence and went away for some time and returned and brought it, it is forbidden even when the majority of meat in the city is kosher, because we are concerned that perhaps it left the meat in another place or ate it and brought a terefah from a distant place, and there is no permission for this except through a siman or recognition by sight. This is as the Tur wrote in the name of the Rashbam; see there.

According to the opinion of Rashi, one who finds meat in the market in places where many people are found, if the majority of those found in that market are Israel, even though the majority of the city are gentiles and also the majority of the butchers are gentiles, and even in the market itself the majority of those found are gentiles, if it is only known that in the place of the finding the majority of those found are Israel, the meat is permitted. For we hang the matter on the majority of those found in that place from whom it fell, and we also do not fear that perhaps a creeping thing or a bird brought it from another place and cast it here, for it is an uncommon matter, and we do not say this except when there is a basis for the matter [Tevu'ot Shor, section 5]. And there is one who forbids when the majority of the city and the majority of the butchers are gentiles, and there is no permission unless the majority of the city or the majority of the butchers are Israel [Pri Chadash]. And certainly one should be concerned for this opinion [see Tevu'ot Shor, subsection 1, who disputed him, and nevertheless one should be stringent].

And if that marketplace does not have people frequently present there, and it is not known who were those present at the time of the meat's loss, we follow the majority of the city; if the majority of the city is Israel, we assume it fell from an Israelite and it is kosher, and if the majority are Cutheans or even half and half, it is forbidden [ibid.]. And similarly, if the majority of those present in the marketplace is known to us, but in the place where the meat was found it is not known to us who are those present, we follow the majority of the marketplace [ibid.].

And if one found meat in a city, if the majority of butchers are gentiles, even though the majority of the city is Israel, the meat is treifah. And if the majority of butchers are Israel, even though the majority of the city are gentiles, it is permitted. This is explicitly implied in the Mishnah in Makhshirin [chapter 2, mishnah 9] and in the Gemara in Chullin [95a]. However, there is one who says that this is specifically when all the butchers are Israel; but if there are some gentile butchers, there is a concern that perhaps when we combine the small amount of treifot that the Israel butchers have with the small amount of gentile butchers, the kosher ones will not be a majority, and we require knowing clearly that there is a majority [Tevuat Shor, section 2]. And it requires further study.

If meat is found on a path, its law is like that of meat found in the marketplace: if the majority of those who pass on that path are Israel, it is permitted, and if the majority are gentiles, it is forbidden. And if all the butchers of Israel are from the two cities for which the path is in the middle, it is permitted even with a majority of Cutheans. And know that nowadays there is no permission at all to permit found meat even with a majority of Israel and all butchers being Israel, for in every animal there is the hindquarters portion which in most places they do not remove the forbidden fats from, and they are treifah. Consequently, all meat is a doubt whether it is from the forequarters portion or from the hindquarters, and although it is possible to recognize between them, nevertheless it is difficult to rely on this.

If that which was found is a whole animal, and in a place where the majority are Israelite butchers and it is recognizable that a slaughterer slaughtered it and it is possible to examine the lung, it is permitted based on the majority of Israelite butchers, and they examine the lung; if it is kosher, they permit it. We do not fear that perhaps it became nevelah during slaughter, for this is not common [ibid.], and see what I wrote in siman 1, section 35. And some say that regarding birds, when they are found slaughtered, a majority of Israelite butchers is not effective, and we require a majority of Israelites, for there are no butcher shops for birds and everyone slaughters in his home; we only permit based on a majority of Israelite butchers something that they slaughter in butcher shops. One may not rely upon the mark of slaughter, for this is not a definitive mark, and it is possible that the gentiles also slaughter in this manner. Therefore, if it is the custom of the people of the place to also slaughter small livestock in their homes and not in butcher shops, one may not permit small livestock based on a majority of Israelite butchers [ibid.]. Similarly, if cooked or roasted meat is found, we follow the majority of meat eaters and not the butchers, for perhaps it was forbidden through the cooking or roasting of a gentile. Similarly, if salted meat is found, we follow the majority of those who salt meat [ibid.]. Similarly, if one saw that someone threw a bird or a piece of meat here, it is forbidden even with a majority of Israelites, for perhaps he brought it from afar from a terefah [ibid.].

The Mordechai wrote in the seventh chapter: An incident came before me regarding a slaughtered chicken that they sent by the hand of a Cuthean without a guard, and they were in doubt about the matter, saying perhaps it was another and was exchanged. They went to the slaughterer and asked him if he slaughtered this chicken, and he replied: I do not have a clear recognition of it, however I did just now slaughter one chicken. But the owner of the chicken recognized it and said that this is it, and I permitted it since the owner of the chicken recognized it, according to the words of Rabbeinu Tam who said the halacha is not like Rav, who said meat that has been hidden from the eye is forbidden. Thus far his words. Many wondered, for since he recognized it with a clear recognition, even according to Rav it should be permitted. Many things were said regarding this, and what is clarified in this is that it is true that between the two of them, between the slaughterer and the owner, it is permitted; but this is only if we knew with certainty that the slaughterer slaughtered this chicken. For there is a concern that when the owner sent it to the slaughterer by the hand of the Cuthean to slaughter it, the Cuthean exchanged it for another and gave another inferior one to be slaughtered, and afterward out of fear he decided to give his own to the owner and slaughtered it himself. And although it is a remote concern, nevertheless according to Rav, who is very stringent, it should be forbidden. But since we do not rule like Rav, one need not be concerned for such stringencies [Pri Chadash]. And the laws of agency via a Cuthean will be explained with the help of Heaven in siman 118, see there.