Siman 82

It has already been explained in siman 79 that one who eats an impure bird violates a positive commandment and a negative commandment, as it is written in parashat Re'eh: "Every pure bird you may eat," and they expounded in the Sifrei: "this is a positive commandment," meaning that certainly the intention is not that there is a mitzvah in the eating of a pure bird, but rather the intention is a pure bird and not an impure bird, and a negative commandment derived from a positive commandment is a positive commandment. And the negative commandment is explicit in Shemini: "And these you shall detest among the birds; they shall not be eaten," etc. And know that in the Shas it is found: "Every pure bird you may eat" to include the one that is sent away [Kiddushin 57a], meaning that the bird of the purification of the metzora that is sent away over the face of the field is permitted for eating. If so, from where do we know that for an impure one, one also violates a positive commandment? And in truth, the exposition "this is a positive commandment" is not found in the Shas at all, and it is also not found in the Sifrei before us; however, the Rambam and the Smag wrote so, and it requires further study. [And it seems to me that their reason is that according to the law there, where it says "the Torah did not say 'send' for a stumbling block," then a verse is no longer needed for the one that is sent away, and it is somewhat implied at the end of Chullin, see there, and examine carefully].

The signs of impure birds were not specified in the Torah; rather, it enumerated only the impure species, and all other species of bird are permitted [the Rambam, section 1]. The forbidden species are the twenty-four in the portion of Shemini, which were repeated in the portion of Re'eh, and they are: the nesher, the peres, and the ozniyah; the da'ah, which in the Mishneh Torah is called ra'ah, and the ayah and its kind, for so it is written, "and the ayah after its kind," and in the Mishneh Torah it is also called dayah, for so it is written there, "and the ayah and the dayah after its kind," and it is one and the same, but some call it ayah and some call it dayah [63b]; the orev and its kind, for so it is written, "every orev after its kind"; the bat haya'anah, the tachmas, the shachaf, and the netz and its kind, for so it is written, "and the netz after its kind"; the kos, the shalach, and the yanshuph; the tinshemet, the ka'at, and the racham; the chasidah, and the anafah and its kind, for so it is written, "and the anafah after its kind"; and the duchifat and the atalef. Totaling twenty explicitly mentioned and four from "after its kind," which makes twenty-four. And why in the case of animals did the Torah detail the pure ones, while in the case of birds the impure ones? Because impure animals are more numerous than pure ones, and in the case of birds, the pure ones are more numerous, for pure birds are without number [Gemara ibid.]. And a person should always teach his student in a concise manner. And one should not say that according to this, when a bird is found and it is not known to us if it is impure or pure, we should follow the majority and declare it pure, for in truth, within each of the impure ones there are hundreds of species [Tosafot], as our sages, of blessed memory, said [ibid.]: There are one hundred impure birds in the East, and all of them are of the ayah kind. Furthermore, since they have signs, one may not rely on the majority.

And these are the four signs of impurity in the impure and the four signs of purity in the pure: an extra toe, a crop, a gizzard that is peeled, and it does not tread. And the opposite, when there is no extra toe, and it has no crop, and its gizzard is not peeled, and it treads, these are signs of impurity. And what is an extra toe? Rashi explained: this is the high toe that is behind the toes. And some say that it is impossible to say so, for behold even in the eagle there is this toe, and in the Gemara they said that the eagle has all the signs of impurity. Therefore they explained that one of the toes in front of it is larger than its fellows, and in the eagle the toes are equal [Ran in the name of Tosafot]. And according to the explanation of Rashi, one must say that that which we call an eagle is an error and it is not the eagle, but is another [Tosafot 63a, starting with "Netz"]. Or it is possible to say that for this reason Rashi was precise to say "the high toe that is behind the toes," meaning that it is inclined away from the other toes, and in the eagle it is not high but equal to them all [it appears to me].

A zefek is well-known, and in the language of the Scripture it is called "mor'ah," and in our language "volye," for the food goes from the esophagus to the zefek [and a goose has no zefek]. And its korkaban is peeled, which means that in every korkaban there is a white pouch inside it that is peeled from the korkaban by hand. And even if it were strong and attached and not peelable by hand until they place it in the sun to soften and then it is peeled by hand, this is also a sign of taharah. But if it is not peelable at all by hand but rather with a knife, it is not a sign of taharah and remains in doubt in the Gemara [62b].

And what is "doras"? Rashi explained that it seizes with its claws and lifts from the ground that which it eats. They raised an objection against him, for even a hen does this [Tosafot 61a]. And it is possible to say that according to what our eyes see, the hen treads upon the food with its claws, but with its mouth it eats while the food is still on the ground. And some say that this "derisah" is like that which our sages, of blessed memory, said, "a lion seizes and eats," meaning that it eats the living creature while it is alive and does not wait until it dies. And this is not related to the fact that chickens eat live worms [Ran and Tosafot], for worms are not included in the category of living creatures. And some say that this "derisah" is the injecting of venom, similar to the matter of "derusah" in siman 57 [Ramban and Rashba and Ran in his name and Maggid Mishneh]. And many of the great authorities agreed with this explanation [see Shach, subsection 3].

For the sign that it does not prey, the Sages, of blessed memory, gave a test to know if it preys or not: if when one places it on a cord it divides its feet two toes to this side and two to this side, it preys; and if it divides three to this side and one to this side, it does not prey [section 5]. And another sign: if when one throws food to it in the air, it catches the food from the air and eats it before placing it on the ground, it preys; and if it does not catch it from the air, or even if it catches it but places the food on the ground and afterwards eats it in the manner that a rooster does, it does not prey [ibid.].

Regarding these signs, it is not necessary that a pure bird possess all four signs of purity, for the goose does not have a crop. And similarly the opposite: regarding an impure bird, it is not necessary that it possess all the signs of impurity. Thus our Sages, of blessed memory, said [61a] that the nesher possesses all four signs of impurity, and turtledoves possess all four signs of purity, and from this we learned the distinction between signs of impurity and signs of purity. However, there are those among the impure that also possess signs of purity, and conversely among the pure that also possess signs of impurity; rather, the Torah decreed these for purity and those for impurity, as will be explained. Only "does not tread" must be present in every pure bird, for if it only treads, we do not pay heed to the other signs. Thus the Sages taught in the Mishnah: Every bird that treads is impure [59a]. There are several approaches to this matter, and we will explain them with the help of Heaven:

The approach of Rashi, the Tosafot, and the Geonim is that among these twenty-four impure birds, twenty of them have three signs of purity and one sign of impurity; and regarding the orev, it has two signs of impurity and two signs of purity; and regarding the peres and ozniyah, they have one sign of purity and three signs of impurity, except that the sign of purity of the peres is not the sign of purity of the ozniyah, for in one of them there is a sign of purity from one of the signs found in all the impure birds, and in the second there is a new sign of purity that is not in all the impure birds; and regarding the nesher, it has all four signs of impurity.

And according to this, if a bird is found that has the new siman of purity of the peres or ozniyah along with another siman of purity, it is tahor, for there is no reason to doubt it is any tamei bird; for the twenty have three simanim as I have written, and in the orev the new siman is not present, and the peres or ozniyah have only one siman. However, besides the fact that the identity of the new siman is hidden from us, and therefore it is impossible to permit with two simanim because perhaps it is a species of orev, there is another doubt. For behold, this is if we say that besides these twenty-four tamei birds, there is no other tamei bird here, as is implied by the wording of the Rambam that we brought in section 2, and so it is implied by the wording of Rashi, of blessed memory [63b, s.v. yeshnah]. However, the Rashba, of blessed memory, wrote [61a, s.v. girsat] in his novellae that there are tamei birds even besides these twenty-four, and that which the Sages, of blessed memory, said—that tahor birds are more numerous than tamei ones and therefore [the Torah] specified the tamei ones—is not to say that only those that the verse specified for you exist, but to tell you that the tamei ones are few; see there. And since there are other tamei ones, behold we do not know, perhaps they have the new siman along with another siman of purity. And according to this, even if the new siman were known to us as the Rishonim wrote, that it is its gizzard is peeled, it also does not avail according to this view, as I have written.

According to this view, even if a bird has three physical signs—namely, an extra toe, a crop, and its gizzard can be peeled—if it is a predator, it is impure. Regarding the matter of predation, it is difficult to ascertain its truth, for we find in the Gemara [62b] regarding the marsh-hen that they held it to be a pure bird, and afterwards it was found to be a predator. Therefore, no bird is eaten among us except by a tradition of a bird that our fathers passed down to us as pure; and regarding those they did not pass down to us, there is reason for concern. In tradition we are to rely, as it is found in the Gemara [63b]: A pure bird is eaten by tradition [Rashi 62b, s.v. "chazyua"]. And when there is a tradition, there is no need for all four signs; and a clear proof for this is that the goose has no crop.

And some say that when a bird is found with three signs in its body, it is certainly not a predator and it is kosher and permitted to eat it. And regarding this we learned in the Mishnah [59a]: Any bird that has an extra toe, a crop, and its gizzard is peeled is pure; meaning, even if we do not know if it is a predator or not, because it is certainly not a predator [the system of Rabbenu Tam in Tosafot and in the Maor and in the Sefer HaYashar]. For even though there are twenty impure birds that also have three signs, and how can we permit one with three signs? However, among the impure ones, "is not a predator" is one of them, and it has only two signs in its body [Tosafot 61a, s.v. "kol"]. But when there are three signs in its body, it is certainly not a predator, for among all the impure birds there are none with three bodily signs [and from the goose it can be proven that the impure ones have a crop and another sign is missing from them; and so it appears from the tradition of Rabbeinu Chananel brought in Tosafot and the Rishonim that "its gizzard is peeled" was the new sign, and this is not like the words of Tosafot 62b s.v. "mai," and all that is written there is not according to this system but according to the system of Rashi, see there and examine carefully].

There is another approach of one of the great authorities to which most of our teachers agreed [this is the approach of Rabbenu Meir bar Yosef in the Maor] that for all twenty birds they have only one siman of purity and three simanim of impurity, but the siman of purity is not the same for each; for example, the kos has a crop and the yanshuf has an extra toe, etc. However, one siman of purity of the four simanim is not in all of them, and it is hidden from us which siman it is. According to the tradition of Rabbeinu Chananel, it is "its gizzard is peeled," meaning that an extra toe, a crop, and not being a predator—these three simanim return in all of them, and that is to say that one of these three is in each one of them. In the orev there are two simanim of purity from these three, and in the peres and ozniyah there is one siman of purity like in all the twenty impure birds. The only difference between them is that in one of them, either in the peres or in the ozniyah, there is the new siman of purity that is not in all of them, and according to the tradition of Rabbeinu Chananel, it is "its gizzard is peeled."

And behold, according to this view, if we found a bird with two signs of purity that are different from the two signs found in the raven, one need not be concerned for any impure bird; for these views hold that aside from the twenty-four impure birds in the Torah, there is no other impure bird in the world, and if so, there is no concern here. And all the more so, if a bird is found with three signs, there is no longer any concern. And according to the tradition of Rabbeinu Tam, if two signs are found and one of them is that its gizzard is peeled, there is also no concern even if we do not recognize the raven; for in the raven the gizzard certainly does not peel, as this is the new sign as I have written. And even regarding the species of the raven, for which it is possible to say that the two signs of its species are not similar to the signs of the raven itself, nevertheless, at any rate, it is impossible to say that the peeling of the gizzard is one of them; for if we were to say so, this would not be a new sign that exists in the peres or the ozniyah. And likewise, if it becomes clear that the raven and its species are predators, if two signs are found and one of them is that it does not prey, there is also no concern, as is understood. However, we have already written that regarding preying there is a concern that we are unable to ascertain the matter clearly, as I wrote in section 10, see there.

However, this is certain: whether according to this opinion or according to the previous opinion, a bird that has three signs in its body is certainly tahor. It is only according to the opinion of Rashi that one must also know if it is not a dores, and since regarding the matter of derisah it is possible to err, therefore one may not rely on signs and requires a masoret, as I wrote in section 10.

But according to what the Ba'al HaMaor wrote, that he has a tradition that any bird whose beak is wide and whose foot is wide like that of a goose is certainly not a predator, and the Rosh, the Rashba, the Tur, and most of the poskim agreed to this, as our teacher, the Beit Yosef, wrote in his great work, see there—if so, even according to the method of Rashi, a tradition is not necessary. The Tur and our teacher, the Beit Yosef, wrote likewise in the Shulchan Aruch, but our teacher, the Rema, does not hold accordingly, as will be explained with the help of Heaven in section 29.

The words of the Rambam, of blessed memory, are very puzzling in this matter, and the sages of the generations have already exerted themselves to settle his words, but they have not been settled upon the heart [see Rivash siman 191, Beit Yosef, Lechem Mishneh, and Kereti U-Peleti in the Kuntras Pelati Niddah]. This is the wording of the Rambam in chapter 1: The signs of a pure bird were not specified by the Torah; rather, it enumerated the impure species, and the rest of the bird species are permitted. The forbidden species are twenty-four, and they are as follows, etc. Anyone who is expert in these species and their names may eat any bird that is not among them and does not require examination. A pure bird is eaten by tradition, provided that it is a simple matter in that place that it is a pure bird. A hunter is trusted to say, "This bird my teacher the hunter permitted to me," provided that this hunter is established as being expert in these species and their names. Thus far his words.

He further wrote: One who does not recognize them and does not know their names examines them with these signs that the sages provided. Any bird that is a predator and eats is known to be of these species and is tamei. And one that is not a predator and eats, if it possesses one of these three signs, it is a tahor bird. And these are they: an extra toe, or a crop—which is the mor'ah—or if its gizzard can be peeled by hand. For among all these forbidden species, there is no species that is not a predator and possesses one of these three signs, except for the peres and the ozniyah. And the peres and the ozniyah are not found in settled areas, but rather in the deserts and very distant islands of the sea which are at the edge of the settled world, etc. Thus far his words.

He further wrote: The Geonim said that it is a tradition in their hands that we do not instruct to permit a bird that comes with one sign unless that sign was that its gizzard peels by hand; but if it does not peel by hand, even though it has a crop or an extra finger, they never permitted it. Any bird that divides its feet when one stretches a cord for it, two to this side and two to that side, or that catches from the air and eats in the air, behold, this is a predator and is tamei. And any that dwells with the tamei ones and resembles them, behold, it is tamei. Thus far his words.

And they wondered about him, for how could he write that the peres and ozniyah have one sign in the body and do not tread, when it is explicitly stated in the Gemara that the peres and ozniyah have only one sign of purity and three signs of impurity? Furthermore, why did he not write what the law is if there are found in a bird two signs in the body or three signs in the body? Furthermore, I have a difficulty, for according to his words all the impure birds tread and the pure ones do not tread, and if so, why do we need other signs? He should have said that any bird that does not tread is pure. Furthermore, it is a wonder regarding him that this which he brought from the Geonim—that they do not permit with one sign unless that sign is that its gizzard is peeled by hand—was brought by the Tosafot and all the Rishonim in the name of the tradition of Rabbeinu Chananel, and it is explicit in them that it does not need for this another sign of not treading, yet he brought their words regarding not treading and another sign in its body. And I have a further difficulty, for regarding that which he wrote that a bird that divides its feet two to this side and two to this side is a treader and is impure, the Gemara concludes [65a] three to this side and one to this side is pure, and why did he omit this? [See the Ran and it requires further study, and examine closely].

And it appears to me that the Rambam was precise in all this from the Mishnah, as we learned: Any bird that is dores is tamei; any that has an extra finger, a crop, and its gizzard is peeled is tahor. And it is difficult: since any that is dores is tamei, it follows that any that is not dores is tahor, for every tamei bird is dores and every tahor bird is not dores; if so, why do we need other signs? Let it teach: "Any bird that is dores is tamei, and any bird that is not dores is tahor." Rather, it is certainly so that even though according to the essential Torah law it is surely thus, nevertheless, one may not rely on the sign of not being dores to permit it for eating. And there is a great reason for the matter: for these three signs in the body are signs of taharah in the affirmative, and their signs of tumah are in the negative; whereas the sign of dores is the opposite, for its sign of tumah is in the affirmative and its sign of taharah is in the negative. And the explanation of the matters is that an extra finger, a crop, and a gizzard that is peeled are signs of taharah, and we see this with our senses—that it has an extra finger, that it has a crop, that its gizzard is peeled by hand—and there is no room for error here; and their signs of tumah are in the negative, that they do not have all these. But the sign of derisah is the opposite, for its sign of tumah we see with our senses, that it is dores, and there is no room for error here; this is not the case regarding the sign of taharah, that it is not dores, which is in the negative, and every negative is liable to error. For example, it is not only if we did not see that it is dores, for certainly there is no proof, as "we have not seen" is not a proof; but even if we saw that it did not perform derisah, perhaps at that time it did not want to perform derisah or it had another reason. Therefore, the Sages said: Any bird that is dores, which we saw performing derisah, is certainly tamei, and one should not look further at other signs; and any that has an extra finger, a crop, and its gizzard is peeled is tahor—meaning that even if we saw that it is not dores, it is impossible to purify it in practice with a negative sign unless there is another sign in its body: an extra finger, or a crop, or its gizzard is peeled. And the Mishnah teaches "or, or." And the Rambam explained the reason: "Because among all these forbidden species, etc." And we shall explain his words:

For behold, it is stated in the Gemara [61a]: It is a tradition that there are twenty-four species of unclean birds, and four signs; three of them recur in all of them—twenty of them have three each, and two in the raven, one in the peres and one in the ozniyah, etc., see there. And he explains according to the system of Rashi and the Geonim that twenty have three signs of purity in the body, but he explains that their sign of impurity is only the sign of derisah. And in the raven there are two signs of purity in the body and one sign of impurity in the body and the sign of derisah. One in the peres and one in the ozniyah, for what is in this one is not in that one; that is to say, that one of them has one sign of purity in the body and it is a dores, and the second has no sign of purity in the body and is not a dores. And that which they said, "every unclean bird is a dores," refers to all except this one, which we do not concern ourselves with as it is not found in inhabited areas at all. Therefore, also for this reason, it was not possible for the Tanna to teach that "everything that is not a dores is pure," for behold, there is one that is not a dores and is unclean. And according to this, the new sign is that it is not a dores and it is an exception to the rule.

And most of our teachers explained that the new sign is that its gizzard is peeled, and they brought proof from the tradition of the Geonim that one should not permit except based on this sign. And the Rambam has a different opinion in all of this, as will be explained. And a clear proof for this is from what the Tosafot themselves wrote [62b, s.v. Mai] quoting the wording of Rabbeinu Chananel, who wrote that these two have a crop, and their gizzard is peeled, and an extra toe, but they are predators; and the raven has two of these three; and the peres and ozniyah—one of them has another of these three, and the other is not from these three at all, etc., but it is not a predator. Thus far his words. And the Tosafot wrote that Rabbeinu Chananel spoke only by way of example, and how forced this is! But according to the words of the Rambam, it is settled simply.

And according to this, his words will be interpreted very clearly, and this is the explanation: One who does not recognize them, etc., checks with these signs that the sages gave. Any bird that is a dores and eats is certainly tamei. And one that is not a dores and eats, if it has one of these three signs, it is tahor. This means that regarding the sign of not being a dores, the sages established not to rely on it because it is a sign of negation, as I have written. And only a bird that has only one sign is tahor, because among all the tamei birds, twenty of them have three signs, and the orev and its kind have two signs, and only the peres and ozniyah have one sign in their bodies and that they are not a dores, and we are not concerned about them because they are far from human settlement. And that which he wrote, that for one sign we also require that it is not a dores, this is not because of the sign, but because it is necessarily required to see regarding the derisah, because every dores is tamei. And although we do not establish based on the sign of not being a dores due to the stringency, nevertheless, conversely, to permit a bird, it is necessarily required to see that it is not a dores, for every dores is tamei. Therefore, if we come to permit a bird with one sign, it is necessarily required to also see if it is not a dores. And we are not concerned that perhaps we erred in the sign of not being a dores and in truth it is a dores, for there is no concern for this; for if we say so, it must be a peres or ozniyah, and behold, they are not found in human settlement. But with two signs and it is not a dores, it is impossible to permit without a masoret due to the great concern that perhaps we erred in not being a dores and it is an orev or a kind of orev which have signs. And so too, even if they have three signs and also it is not a dores, it is impossible to permit without a masoret, for perhaps we erred in not being a dores and it is from the twenty tamei birds that have three signs. And this is exactly like the system of Rashi, of blessed memory.

And this is what he says: "Since among all these forbidden species there is no species that does not tread and possesses one of these three signs except for the peres and the ozniyah," etc. That is to say, that in these two there is one that does not tread and one that possesses one physical sign. And his primary intention is regarding the permission of one sign, and that it does not tread is a necessity as I have written. Therefore, he did not say "except for the peres or the ozniyah," because in one of them there are not two signs, and only in both of them together are these two signs gathered. And he is forced to say that it does not tread as I have written, and because in both of them these two things are gathered, he therefore wrote thus; and among all the impure ones it is not so.

And this too, its source is from an explicit Gemara [62a]: Amemar said, the halacha is that a bird that comes with one siman is tahor, provided that it does not prey, etc. What is there to fear on account of the peres and the ozniyah? They are not found in inhabited areas, see there. And Rashi and Tosafot were pressed in the explanation of "provided that it does not prey," see there. But the Rambam explains according to its plain meaning, that this is a necessity to see that it does not prey. And that which it says, "what is there to fear on account of the peres and the ozniyah," this is its explanation: that even if we suspect perhaps we erred regarding its not preying, even so there is no concern for this, for if so, it is a peres or an ozniyah, and they are not found in inhabited areas. But two or three simanim is worse, for there is concern that we erred regarding its not preying, and this is a raven or other impure ones from the twenty impure birds, as I have written [and the Rambam, it is not his way to be so lengthy, therefore he included all that we have explained in few words, according to his holy way]:

And afterwards he wrote that the Geonim said, etc., that we do not instruct to permit, etc., unless, etc., that its gizzard peels, etc. And the reason is not because it is a sign of the new, but rather the reason is this: that the Geonim saw that the sages of the Shas were stringent regarding the sign of not being a predator, even though according to the essential law of the Torah it is permitted with this alone; because it is a matter transmitted to the whole world, there is concern for error in the sign of the predator as we have explained. Therefore, they fenced it in even further to say that also regarding these two signs, an extra toe and a crop, there is concern for error, for regarding an extra toe there is a dispute as to what this extra toe is, as written in section 3. To the sages of the Gemara it was known, but since among the poskim a dispute was renewed regarding this, certainly there is concern. So too regarding a crop, it is known that there are birds with a type of small crop and there are those that differ in their appearance and it is not a crop, as the Maharshal wrote [Yam Shel Shlomo 115]. This is his wording: And so too one must examine that the crop within it should be in its form and not differ in its appearance from the form of other crops, but one need not be exacting regarding its smallness, etc. Thus far his words. Therefore, the Geonim fenced it in not to rely on this, but regarding the peeling of the gizzard, there is no room for error at all.

And afterwards he wrote: Any bird that divides its feet etc. is a predator and is tamei. Thus far his words. And he did not write the second clause, that when it does not divide [its feet] it is tahor, because this is a sign regarding the testimony of its predation; and since we do not rely upon the fact itself that it does not prey, all the more so [we do not rely] upon the sign that indicates this. And the baraita in the Gemara cites the essence of the law, but the Rambam, who comes to rule in practice, omitted this intentionally for the reason we have written.

And according to this, I say that even regarding the sign written by the Ba'al HaMaor which we brought in section 15—that any bird whose beak is wide and the palm of its foot is wide like that of a goose is certainly not a predator, see there—and even though it is certainly so and Heaven forbid one should doubt this, nevertheless, according to what we explained regarding the opinion of the Rambam, that the Sages of blessed memory did not rely on the sign of not being a predator, and for this reason it is impossible to permit in practice even with the sign of the division of the feet mentioned in the Gemara, and the Geonim were stringent even regarding the signs of an extra finger and a crop because the matter was handed over to the masses as I wrote, all the more so one should not rely in practice to permit based on this sign of not being a predator; the secondary should not be better than the primary.

It appears clear to me that this is the reasoning of our teacher, the Rema, in section 3. Regarding what our teacher, the Beit Yosef, wrote—that there are those who say that any bird whose beak is wide and whose foot is wide like that of a goose is known not to be a predator and is permitted for eating if it possesses the three signs on its body, thus far his words—he wrote, and this is his wording: And there are those who say that one should not rely even on this, and one should not eat any bird except by a tradition received regarding it that it is pure, and such is the custom and one should not deviate, thus far his words. And there is seemingly no reason for this stringency [see Peri Chadash, subsection 9, who disagrees with him]. One of the great authorities lengthily attempted to prove that wild geese and the offspring of wild geese are permitted for this reason, for even according to the opinion of Rashi, they possess this sign, and he inclined the opinion of the Rambam toward the system of Rabbi Meshullam bar Yosef that we wrote in section 12. However, according to what we explained of the words of the Rambam, the words of our teacher, the Rema, are correct and clear, and Heaven forbid one should permit them without a tradition [see Kenaf Renanim in the kuntras Penei Nesher who lengthily attempted to reject the words of the Tzemach Tzedek who forbade them, while he permitted them; but according to our words, one should not permit them except by a tradition. Aside from this, I wonder at him for writing that they possess all three signs of the body, see there, and it requires further study, for we see that the goose and the offspring of the goose do not have a crop, and how is it possible that the wild goose and the offspring of the wild goose have a crop? I have never seen them, and it requires great further study].

And that which he wrote, that anyone who dwells with the impure and resembles them, behold, he is impure, thus far his words. And based on this, he wrote previously that the zarzir is impure, as he holds that it dwells with the impure and resembles them. And some say that the zarzir is pure [Ran], for it does not resemble the impure in its appearance, and only dwells with them. And I wonder at the Tur and the Shulchan Aruch for not writing this law at all. And for our teacher, the Rema, it is understandable, since he ruled that without a tradition one may not eat even with four signs; if so, even without this, we do not eat any bird that is not known. But regarding the Tur and our teacher, the Beit Yosef, it is difficult. And perhaps they hold that "dwelling and resembling" is only forbidden when it does not have all four signs, but when it has them, it is not relevant to forbid for this reason. And since they ruled that without three signs one should not permit without a tradition, therefore they did not need this law. [And regarding the Tur, I have a difficulty, for he wrote not in accordance with the conclusion of the Rosh in siman 59, that one should not eat without a tradition, and so he wrote in the Responsa, klal 2, see there, and it requires further study].

And know that a bird for which there is a tradition does not require examination for any sign. However, if it is found that it is a predator, or catches food from the air, or divides its feet, we forbid it and we do not pay heed to the tradition, and certainly it is a mistaken tradition [Shach subsection 10]. But if it is not known whether it is a predator or not, even if it is known that it does not have any of the three physical signs, it is permitted by tradition. For it is possible that it is pure when it is not a predator, as this is the primary sign of purity, and since there is a tradition regarding it, it is permitted to eat it [ibid.].

One who is in a place where they practice a prohibition regarding a certain bird because they do not have a tradition, and he went to a place where they eat it because they have a tradition, he may also eat it there even if his intention is to return to his place. There is no issue here regarding the stringencies of the place from which he departed, for the fact that they do not eat it in his place is not because they say it is forbidden, but rather they admit that it is permitted, and it is only because they do not have a tradition, and without a tradition we do not eat. Since he is now in a place where they have a tradition, why should he not eat them? And similarly, one who goes from a place where they have a tradition to a place where they do not have a tradition, he may eat it there, and there is no issue here regarding the stringencies of the place to which he went for the reason we have written. And it appears to me that this is only when his intention is to return to his place, but when he settles there, it is forbidden for him to eat it, for every person is drawn after his place; for if not so, when several people from there settle and eat while the entire city does not eat, you have no greater case of "do not form factions" than this. And there is one who is uncertain about this, but it appears clear to me as I have written at any rate, and observe. [And so it implies explicitly in the Darkhei Teshuva, see there].

Our teacher, the Beit Yosef, wrote in section 5: Regarding other places that do not have a tradition, whether they may eat it based on a place that has a tradition, there is one who forbids and there is one who permits, and one should be concerned for the words of the one who forbids. Thus far his words. And previously he wrote the law that is in the previous section, that one who goes from a place without a tradition to a place with a tradition may eat it there, and this is the opinion of the Rosh. And the "one who permits" in this section is also the opinion of the Rosh, as he wrote in his great work; see there. And one should not ask that if so, according to this, why did he need to say previously that this person who went may eat, for even all the people of his place may eat based on a place that has a tradition? For it can be said that certainly it is so, and indeed his intention is so—that not only may this person who went eat, but even all the people of his place, and he took the approach of "not only this, but even that." And furthermore, this is no question at all, for certainly if all the people of the place who do not have a tradition want to rely on the place that has a tradition, they may do so; but if they do not want to and remain in their prohibition, who can compel them? And nevertheless, it is permitted for the individual who goes from his place to a place that has a tradition to eat it if he so desires, and we do not say that he is compelled to act like his place due to the stringencies of the place from which he departed, for the reason we have explained.

The reasoning of the "there is one who forbids" is that perhaps in the place where they practiced a prohibition, it is because in their location there are found impure ones that resemble them, and it is necessary to forbid this because of that; this is the opinion of the Rashba [Beit Yosef]. Nevertheless, even according to this opinion, an individual who goes from there to a place where there is a tradition may eat. For certainly, if it were clear to us that the place that forbids did so for this reason, and by law forbade them from eating, even the individual who separated from them would be drawn after them, and it would be forbidden for him to eat even in the permitted place because of the stringencies of the place from which he departed. But in truth, we do not know why they do not eat there, and therefore it is impossible to be stringent upon the individual who goes to another place, as we can say that the fact that they do not eat is because they do not have a tradition; and only to permit for all of them do we concern ourselves with another reason [Shach, subsection 1].

And there is one who says that they do not disagree at all, for the Rosh is dealing with places that did not receive a permission for it, therefore they do not eat it, but nevertheless they did not practice to hold it as a complete prohibition, and therefore they certainly may rely on the place that has a tradition for them. And the Rashba is dealing with places that hold it as a complete prohibition, and therefore they cannot rely on the place of permission [ibid.]. And even in an ordinary case, it can be said that perhaps the fact that they do not eat it is because they hold it as a prohibition or as a fence, and certainly even the one who permits cannot permit it to them unless we know clearly that the fact that they do not eat it is only due to a lack of tradition. And such is the established law [and so it appears to be the opinion of the Acharonim]. And only for an individual who goes from there to a place of permission is it impossible to prohibit it to him based on an ordinary case, as I wrote in the previous section.

The eggs of an impure bird are forbidden by the Torah, and not only because "everything that emerges from the impure is impure," but because the Torah explicitly forbade the egg of an impure bird. It is written, "and the daughter of the ostrich," and it is difficult: does this impure bird have a daughter? Rather, it refers to the egg that it laid [Gemara 64b]. And one should not ask why a verse is truly necessary since, regardless, everything that emerges from the impure is impure; for it can be said that since from the perspective of logic it would have been appropriate to forbid even the egg of a pure bird due to the prohibition of a limb from a living animal, but the Torah permitted it in the context of the bird's nest, I might have said that it is also permitted from an impure bird; therefore, a verse is necessary [Tosafot 64b].