Siman 79

There are four positive commandments regarding foods: the first is to examine the signs of domestic and wild animals to distinguish between the impure and the pure; the second is to examine the signs of birds to distinguish between the impure and the pure; the third is to examine the signs of grasshoppers to distinguish between the impure and the pure; and the fourth is to examine the signs of fish to distinguish between the impure and the pure, as it is said: "And you shall distinguish between the pure animal and the impure etc." and it is said: "To distinguish between the impure and the pure" [Sefer Mitzvot Gadol 39]. And the Rambam, of blessed memory, wrote likewise at the beginning of the Laws of Forbidden Foods, see there.

The intention is not that the examination is a positive commandment, but rather this is the explanation: behold, regarding forbidden foods of the impure species, there is a negative commandment as with all prohibitions such as nevela and tereifa and the like. However, in these there is also a positive commandment, for one who eats from the impure species violates a positive commandment and a negative commandment. Behold, regarding fish this is explicitly stated in the Gemara [Chullin 66b], and regarding domestic and wild animals it is explained in the Sifra, "it you shall eat"—it in eating, and an impure animal is not in eating, and a negative commandment derived from a positive commandment is a positive commandment. And so too regarding birds, it is cited in the Yalkut in the name of the Sifrei, and also the Rambam in the Sefer HaMitzvot [150], "every clean bird you shall eat," this is a positive commandment [in our edition this is not found]. And the intention is not that there is a positive commandment to eat a clean bird, but rather to say that there is a positive commandment in addition to the negative commandment regarding the eating of an impure bird. And so too regarding locusts, it is written in Shemini, "these of them you shall eat," also regarding the impure ones it is a negative commandment derived from a positive commandment [ibid.]. And this is what we said, that the examination is a positive commandment, meaning that when one eats from the impure ones, he has also violated a positive commandment [and the difficulty of the Ra'avad in the introduction to the Rambam part 1 is answered, see there, for so he explained himself in the Sefer HaMitzvot, and this is also the intention of the Maggid Mishneh and the Lechem Mishneh at the beginning of the Laws of Forbidden Foods, see there. And as for what the Lechem Mishneh questioned, why he did not mention in chapter 2 regarding locusts that there is a positive commandment, I am astonished, for since he revealed this at the beginning of the laws and also at the beginning of chapter 2 regarding animals, why should he repeat the matter? And reflect on this].

The prohibitions are explicitly stated in the Torah regarding all species in Parshat Shemini, and the signs of pure domestic and wild animals are explicitly stated in the Torah: bringing up its cud and having a split hoof. Bringing up its cud means that it swallows the food and afterwards brings up the food and vomits it from its innards and returns it to its mouth to crush it and grind it finely [Rashi]. And regarding having a split hoof, it is written "and cleaving a cleft," meaning that it is separated from above and from below into two hooves; for there are those whose hooves are cracked from above but are not cleft and separated completely, as from below they are joined [ibid.], and this is not "having a split hoof."

It was taught in a baraita: Rabbi says, it is revealed and known before Him who spoke and the world came into being that impure animals are more numerous than pure ones; therefore, the verse enumerated the pure [Chullin 63b]. And the verse enumerated ten species [ibid. 80a] among the pure ones, and you have no animal or beast in the world that is permitted for eating except for the ten species enumerated in the Torah in Parshat Shemini: three species of behemah, which are the ox, the sheep, and the goat; and seven species of chayah, and these are: the hart, and the gazelle, and the roebuck, and the wild goat, and the pygarg, and the antelope, and the mountain sheep. They and their sub-species, such as the wild ox and the meri, which are of the ox species. And all ten species and their sub-species are ruminants and possess split hooves; therefore, one who recognizes them does not need to examine either the mouth or the feet [the Rambam ibid.]. And one who does not recognize them, their signs were specified in the Torah: ruminating and possessing split hooves, as we have explained. [And it requires investigation according to the one who says that a koy is a distinct creation unto itself, whether it is included in these species; and perhaps one who holds this does not hold of this principle of ten animals and no more. And the Rambam holds that a koy is a crossbreed of behemah and chayah, see there].

The Torah enumerated those forbidden for consumption, such as the pig, the camel, the hare, and the hyrax, to inform us that even though they possess one sign of purity as explained in the Torah, they are nevertheless forbidden because they lack the second sign, as is explained there. And it is a kal vachomer regarding those that do not possess even one sign of purity. And so we learned in Torat Kohanim: "These you shall not eat" — I only have these alone; from where do we derive the other impure domestic and wild animals? And it is a logical deduction: if these, which possess a sign of purity, are under a negative commandment regarding their consumption, other impure domestic and wild animals that possess no sign at all, is it not logical that they should be under a negative commandment regarding their consumption? And this is not a complete kal vachomer like all the other instances of kal vachomer in the Torah, where we say "one does not punish based on a logical deduction," for this is merely a general clarification of the matter [the Rambam in the negative commandments there]. And there is one who answered that since there is also a positive commandment in this, as I have written, they therefore receive lashes for the negative commandment even though it comes from a logical deduction [the Maggid Mishneh at the beginning of chapter 2 there, and I wonder why he did not write the reason of the Rambam that we cited].

Our Sages, of blessed memory, received a tradition that every beast and animal that does not have teeth in the upper jaw, nor canines—which are curls of flesh like protruding teeth in the gums, and some say that canines are two teeth above, one here and one there at the ends of the jaws—it is known that it is tahor, provided that one recognizes a young camel, meaning a small camel, which is tamei, for it has no teeth and also has no canines until it grows [59a]. And the reason is because since it has no teeth and canines, it cannot grind the food finely at first, and the food descends into the stomach very coarsely; because of this, it does not digest the food until it brings it up once more into its mouth to grind it very finely. Because of this, the wisdom of the Creator, may He be blessed, necessitated giving it the nature to be a ruminant. And everything that is a ruminant also has a split hoof, except for the camel, the hare, and the hyrax, which are ruminants but do not have split hooves; and regarding them there is no concern, because they have teeth above or canines. And everything that has a split hoof is a ruminant, except for the pig.

Therefore, if one was walking in the desert and found a beast whose hooves were severed, and it is impossible to recognize if it is cloven-hoofed or not, and he does not recognize if it is from the pure beasts and animals or not, he should examine its mouth; if it has no teeth and no canines above, it is known to be pure, provided that he recognizes a young camel. Similarly, when he finds a beast whose mouth is severed and he cannot examine the canines and does not recognize it, he should examine its feet; if its hooves are split, it is known to be pure, provided that he recognizes a pig. And if it has horns, it is known that it is not a pig, for a pig does not have horns. Furthermore, our Sages of blessed memory received a tradition [ibid.] that there is no impure beast or animal whose meat under the tail-end of its rump bone runs lengthwise and crosswise to whichever side one cuts it, except for the wild ass. Therefore, one who finds a beast or animal whose hooves are severed and its mouth is also severed, such that it is impossible to examine the two signs, should slaughter it without a blessing and examine the meat under the sides of the tail-end; if the meat runs lengthwise and crosswise, it is pure, provided that he recognizes a wild ass. And all these matters our Sages of blessed memory received from person to person until the Law of Moses from Sinai.

The Rambam wrote in chapter 2 of Ma'akhalot Assurot, halacha 3: Man, even though it is said of him, "and man became a living soul," is not included in the category of hoofed animals; therefore, he is not subject to a negative commandment. One who eats of human flesh or of its milk, whether from the living or from the dead, does not receive lashes. However, it is forbidden by a positive commandment, for the verse enumerated seven species of animals and said regarding them, "These are the animals which you may eat"—consequently, anything other than them you shall not eat, and a negative commandment derived from a positive commandment is a positive commandment. Thus far his words. In the Shas this derivation is not found; however, in the Torat Kohanim it is stated: I might think that even the flesh of bipeds and the milk of bipeds are subject to a negative commandment regarding their consumption; the verse says "this you shall not eat"—this is subject to a negative commandment regarding its consumption, but the flesh of bipeds and the milk of bipeds are not subject to a negative commandment regarding their consumption. Thus far the words of the Torat Kohanim. From this the Rambam learned that they were only excluded from a negative commandment and not from a positive commandment. The Ra'ah, the Ritva, and the Ran, of blessed memory, agreed with his opinion [Ketubot 60a; see there].

But our teachers the authors of the Tosafot [ibid.], and the Ra'avad, and the Rosh, and the Ramban, and the Rashba, of blessed memory, disagree on this and hold that there is not even a positive commandment regarding the flesh of a living human when it is severed from him. For certainly the flesh of a corpse is forbidden for benefit as well, and all the more so for eating, but regarding flesh from the living, there is no prohibition from the Torah at all, just like human blood and a woman's milk which are permitted from the Torah [ibid.]. And the intent of the Torat Kohanim was not only regarding a negative prohibition, but regarding the general prohibition. And the proof is that they also derived this regarding a woman's milk, and there it is completely permitted from the Torah, as I wrote in siman 81, and here it is the same. And on the contrary, if it should enter your mind that human flesh is forbidden from the Torah, how are the blood and the milk permitted? For we maintain that everything which emerges from the impure is impure. And those who forbid say the opposite: if it should enter your mind that human flesh is permitted from the Torah, if so, why do we need a verse that its blood and a woman's milk are permitted? For we maintain that everything which emerges from the pure is pure, like fish and locusts whose blood is permitted because they do not require shechitah. Rather, certainly its flesh is forbidden, and therefore a verse was necessary to permit its blood and a woman's milk. Furthermore, how is it possible to say that flesh would be permitted without shechitah? For the Torah specified only fish and locusts as being permitted without shechitah, but not any other type of flesh. However, we find in Sanhedrin [59b] regarding flesh that descends from heaven, see there. And even according to the opinion of those who permit, nevertheless there is a commandment of separation regarding it, just like a woman's milk after the infant has ceased to nurse, regarding which the Sages, of blessed memory, said that he is like one who nurses from a creeping thing, as will be explained in siman 81. So wrote the Rashba in a Responsum [siman 364], see there. And one of the Acharonim disagrees on this and holds that there is not even a commandment of separation regarding it, but there is no substance to his words.

And they asked the Rashba, of blessed memory, [ibid.] that according to the approach of those who permit the flesh of a living human, let the prohibition of a limb from the living apply to it; for we maintain that a limb from the living only applies to pure animals because it is written, "and you shall not eat the soul with the flesh," [meaning] that which you are permitted [to eat], you are commanded regarding its limbs [102a], as was written in siman 62. And if so, since his flesh is permitted, let it be prohibited due to a limb from the living. And he replied that this was only said regarding something that requires shechitah, and in a human this is not applicable, as is understood. For if not so, why does a limb from the living not apply to fish and locusts, for behold their flesh is permitted? Rather, it is certainly because they do not require shechitah that a limb from the living does not apply to them; see there.

And I am very much astonished, for a limb from a living human imparts tumah in a tent like the corpse itself, as we learned in the second chapter of Ohalot, and what relevance does this have to fish, which possess no tumah at all except for the tumah of foods like all other foods, and not like living creatures, as we learned in Uktzin [chapter 3]? Furthermore, where have we found something that is as tamei as the corpse itself and yet would be permitted for eating? And even if we say that a limb from a living human would be forbidden for eating and only flesh that separates from him is permitted for eating, and regarding flesh from the living there is no tumah at all, as the Rambam wrote in the second chapter of Tumat Met, it is also astonishing; for either way, if we say that his limb from the living is forbidden for eating, then his flesh from the living is also forbidden, for wherever a limb from the living is forbidden, its flesh is also forbidden, as written in siman 62. Furthermore, regarding the tumah of flesh there is a dispute in Eduyot [chapter 6, mishnah 3], and the Rambam ruled like the one who purifies, and if so, according to the one who renders it tamei, it is certainly forbidden for eating, and according to this, even for the one who purifies it is so, for they did not disagree on this. And should you say that the prohibition of eating is not dependent on tumah and tumah is not dependent on the prohibition of eating, it is impossible to say so; for certainly there is that which does not contract tumah and yet eating it is forbidden, such as a tereifah, but the reverse—that it should contract tumah like a corpse or a nevelah and yet be permitted for eating—certainly it is impossible to say so. For regarding all forbidden foods in Parshat Shemini, the Torah called them by the name "tumah," as it is written: "To distinguish between the tamei and the tahor," and it is written: "Do not make your souls detestable with any swarming thing... and do not become tamei through them, that you should be defiled by them," and the intention is regarding eating, as Rashi explained, see there. And it is written: "And this shall be tamei to you among the swarming things etc." and in Kedoshim it is written: "And you shall distinguish between the tahor animal and the tamei... which I have set apart for you as tamei," and its explanation refers to the prohibition of eating. And how can we say that a thing which imparts tumah through contact and carrying like a nevelah, and in a tent like a corpse, should be permitted for eating? And should you say, behold, blood from the living is permitted, however, in truth there is no tumah at all in blood from the living, as the Rambam wrote in the second chapter of Tumat Met, law 13. This is his wording: Blood from the living, even blood from slaughtering by stabbing, behold it is tahor as long as he is alive. Thus far his words. [And it requires great study].

And perhaps this is the opinion of our teacher, the Rema, who wrote: Human flesh is forbidden to be eaten by Torah law. Thus far his words. And they wondered about him, why he did not bring the opinions of those who disagree and permit it. The Levush indeed brought both opinions; see there. And perhaps he holds as we have written, that certainly to eat it as it is, there is no reasoning to permit it since there is tumah in this. And according to those who permit it, it is possible to permit it when the tumah has departed from it, such as when the flesh has dried excessively, for in such a case even with a corpse it is tahor, as is stated in Niddah [55a], and as the Rambam wrote in the third chapter of the Laws of Tumah of a Corpse; see there. And all the more so when it becomes like flour, for it is tahor as he wrote there. And in such a case, it is possible for those who permit it that they would permit flesh from the living. However, from their wording it does not imply so; nevertheless, there is no necessity for this. And only from the Responsa of the Rashba that we cited is the opposite explained. And perhaps for this reason as well, the Tur and the Beit Yosef did not bring this law at all, and it requires further study.

The sages taught in the Mishnah [Bekhorot 5b]: A pure animal that gave birth to something like an impure animal is permitted for eating, and an impure one that gave birth to something like a pure animal is forbidden for eating, for that which emerges from the impure is impure and from the pure is pure. And specifically when it gave birth to a species with hooves, as was written above in siman 13, see there. And since that which emerges from the impure is impure and from the pure is pure, therefore the milk of an impure animal is also forbidden like its flesh, and the milk of a pure animal is permitted, as will be explained in siman 81. And one should not ask: how do we permit a pure animal that gave birth to an impure one which possesses all the signs of impurity? Let us be concerned that perhaps its mother was impregnated by an impure animal and it resembles its father, and according to the one who is concerned for the seed of the father, it should be impure. However, the sages, of blessed memory, already said that an impure and a pure animal do not conceive from one another, and so wrote the Rambam in chapter 1 of Ma'akhalot Assurot, see there.

And that which we permitted regarding a pure animal that gave birth to a species of impure animal, this is specifically when she clearly gave birth to it, such as when we saw that she gave birth to it. However, by way of a chazakah—even a clear chazakah that is effective regarding the matter of bechorah, such as when we left her pregnant and afterwards we found an impure species following her and attached to her and suckling from her, which regarding the matter of bechorah is effective as I wrote in siman 316—nevertheless, regarding the permission of eating it is not effective. This is because we fear perhaps it was born from an impure animal and became attached to the pure animal. And thus our sages, of blessed memory, said [ibid. 54a]: If one saw a pig that is attached to a ewe, she is exempt from bechorah but it is forbidden for eating. And the reason for this is that even though this is a strong chazakah, and we stone based on such a chazakah [Kiddushin 80a], nevertheless, since it is not common at all for a pure animal to give birth to an impure species, it completely contradicts the chazakah, and we do not follow such a chazakah for leniency. This is not the case regarding the matter of bechorah; granted that she did not give birth to it, however, in any event she has already given birth since she is nursing and bringing a young animal close, and automatically she is exempt from bechorah.

And know that there is one of the early authorities who said that specifically when there is an impure species in the flock it is forbidden for eating, but when there is no impure species in the flock, we are not so concerned that a youngling from another flock will come and suckle from this one and follow after it, and it is permitted even for eating. [Ra'avad, chapter 1 of Ma'akhalot Assurot]. However, from all the poskim it appears that this is not so [Maggid Mishneh]. And there is a great reason for the matter, for even without this, it would be a strong presumption as I have written, and even so it is not effective for the reason that has been explained; if so, what would this addition—that there is no impure thing in his flock—add? Ultimately, this is only a powerful presumption, and that which is not common contradicts the presumption.

It is a simple matter that the same applies to an impure animal that was left pregnant and we did not see it give birth, and we see a pure species following after it, that it is also forbidden, for we fear that the impure animal gave birth to it [Levush]. And even if there is a pure animal in his flock, it is an a fortiori argument from the previous law: just as we do not follow the chazakah because of the weakness, since the matter is not common as has been written, all the more so we do not follow the weakness because of the chazakah.

It appears to me that a pure animal born from an impure animal has the full legal status of an impure animal for all matters; it is forbidden to write a Sefer Torah, tefillin, or mezuzot on its skin, and slaughtering is not effective for it to remove it from the status of tumah. And likewise regarding leniency, the law of ever min hachai does not apply to it, just as with an impure animal, as I wrote in siman 82, and there is no liability of karet for its chelev, just as with an impure animal. There is one who is uncertain regarding this, but I do not know why, for both were taught in a single context in the Mishnah: an impure animal that gave birth to the likeness of a pure animal, and a pure animal that gave birth to the likeness of an impure animal. Therefore, just as a pure animal that sired an impure animal is completely pure, so too the opposite. [And perhaps this is why the Tanna concluded "that which emerges etc.," meaning entirely; and it is possible that this is the intent of the Gemara in Bechorot 6a: "it is merely a sign etc.," see there, and see there in Tosafot s.v. "Lama," and reflect on this].

One born from a tereifah is permitted, and even though a fetus is considered the thigh of its mother, nevertheless, since the prohibition of the mother is only because she cannot live—as a tereifah does not live—and behold this fetus has a vitality of its own and is not dependent on the vitality of the mother. And even according to the one who holds in the Gemara that a tereifah can live, nevertheless, the offspring is not a tereifah. It is not similar to the egg of a tereifah which is forbidden, as I wrote in siman 86, for it was attached by sinews to the bird and therefore is considered like its body, which is not the case with the offspring of an animal [Gemara 58a]. And one should not ask how this law is found, given that we maintain that a tereifah does not give birth; for it can be said that it is found where she conceived and afterwards became a tereifah, or in a definite tereifah where twelve months do not avail, as I wrote in siman 57, and the same applies if it happened that she gave birth, she does not emerge from her status of tereifah through this. However, in the Shas it implies that it is impossible even in a remote instance for a tereifah to give birth [see Shach subsection 8 and Pri Megadim there, and examine carefully]. And know that there is one who is in doubt regarding a mother that was clawed (derusah), whether it harms the fetus or not [Taz subsection 5], for this is not similar to all other tereifot because the venom permeates. And behold, this is certain: if the fetus is permitted through the slaughter of the mother, it is certainly forbidden like the mother herself, and also in other tereifot it is so, as I wrote in siman 13. And if the offspring was born and lived twelve months, it is certainly permitted, for even for a definite derusah twelve months avail according to several poskim, as I wrote in siman 57. And the doubt is if it was slaughtered within twelve months [and see Pri Chadash subsection 10].