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Beitzah 6

1) THE "TAKANAH" THAT NEVER WAS

QUESTION: Naharda'i say that an egg laid on the first day of Rosh ha'Shanah is Mutar on the second day, because the two days of Rosh ha'Shanah are considered two Kedushos. Even though the two days of Rosh ha'Shanah will be one Kedushah if the month of Elul is made into a full month ("Me'ubar," with 30 days), which happens when witnesses do not come until after the 29th of Elul, nevertheless that never happened and Elul was never a full month. Therefore, the two days of Rosh ha'Shanah are always observed because of a doubt when the new month is (and not because of a concern that in Yerushalayim they might have declared two days of Rosh ha'Shanah with one Kedushah, in the case of witnesses coming after the time of Minchah).

If Elul was never made into a full month (and thus there is never any doubt when the first of Tishrei occurs), then why, in the Diaspora, were two days of Rosh ha'Shanah observed? We should observe only have observed one day in the Diaspora, since it is certain that it will only be one day in Yerushalayim according to Naharda'i (which is why they maintain that the two days of Rosh ha'Shanah are Kedushah Achas)!

ANSWERS:

(a) The PNEI YEHOSHUA and CHASAM SOFER explain that certainly, every year we must be concerned that Elul might be a full month. The fact that in the past it was never a full month does not determine that this year it also will not be full.

With regard to the two days of Rosh ha'Shanah having one long Kedushah, though, it is different. After Raban Yochanan ben Zakai re-enacted that witnesses be accepted even after Minchah time, the concept of observing two days of Rosh ha'Shanah with one long Kedushah was annulled. The only reason we would observe two days as one long Kedushah is because our fathers observed two days as such ("Minhag Avoseinu b'Yedeinu"). But in truth, they never observed two days of Rosh ha'Shanah definitely as one long Kedushah (because it never happened that witnesses came after Minchah time). The original Takanah (that if witnesses come after Minchah time, then both days are Rosh ha'Shanah with one long Kedushah) never manifested itself. Since it never manifested itself practically, we may view it as though the Takanah to make two days of Rosh ha'Shanah with one long Kedushah was never really enacted, retroactively. Therefore, the "Minhag Avoseinu" will not apply to require that we observe two days as one long Kedushah, because our father's practice in that regard was a mistake. We are required, though, to observe two days of Rosh ha'Shanah (with two separate Kedushos), because that practice was because of the doubt when the new month was declared and not part of the Takanah which never manifested itself.

OPINIONS: The Gemara says that if there is a Mes on the first day of Yom Tov (Yom Tov Rishon), we may request gentiles to take care of it. On the second day of Yom Tov (Yom Tov Sheni), it is permitted even for a Jew to take care of it. Mar Zutra and Rav Ashi dispute whether these Halachos refer to a Mes that has been lying around for some time (and is going to putrefy), or even to a Mes that died that day (and is not going to putrefy if left until after Yom Tov).

The Gemara concludes that nowadays, since the Jews are under the dominion of nations that force them to do work on the weekdays, we may not take care of the Mes on Yom Tov, because then they will think that we do work on Yom Tov and will force us to work for them on Yom Tov. This logic, though, should only prohibit a Jew from taking care of the Mes on Yom Tov Sheni, but not a gentile from taking care of the Mes on Yom Tov Rishon. What is the Halachah concerning the burial of a Mes on Yom Tov Rishon? (See next Insight for the Halachah concerning the burial of a Mes on Yom Tov Sheni.)

There are a number of opinions how to interpret the Gemara that says that Mar Zutra and Rav Ashi argue whether it is permitted only to take care of a Mes that has been lying around for some time, or even to take care of a Mes that died on that day. Our Gemara concludes that even if the Mes was not lying around, it is permitted for a Jew to bury the Mes on Yom Tov Sheni. Does the Gemara also mean that it is permitted to have gentiles take care of the burial on Yom Tov *Rishon*, as well, when the Mes was not lying around?

(a) The ROSH (1:5) writes that even if the Mes was not lying around, we may have gentiles bury the Mes, because Mar Zutra and Rav Ashi are arguing about both Yom Tov Rishon and Yom Tov Sheni, and we follow the opinion of Rav Ashi.

(b) RASHI in Shabbos (139b, DH v'Lo), however, writes that burial is permitted on Yom Tov Rishon only if the Mes was lying around for some time. Rashi hints to this in our Sugya as well (DH Amar Rava), when he writes that the Gemara is discussing a case of a Mes that is "*waiting* to be buried on Yom Tov Rishon" (implying that it did not die on Yom Tov Rishon, but earlier). Furthermore, Rashi explains that the question in our Gemara whether it is permitted to bury the Mes only if it has been lying around a while concerns only Yom Tov Sheni (RASHI DH Lo Amran). On Yom Tov Rishon, though, it is clear from the Gemara in Shabbos (139b) that it certainly needs to have been lying around in order to be permitted to be buried by a gentile. This is also the opinion of the BEHAG cited by the Rosh here, and the SHE'ILTOS (#94).

HALACHAH: The SHULCHAN ARUCH (OC 526:1) follows the opinion of the Rosh, that even when the Mes was not lying around, but rather died on that day, it is permitted to have a gentile bury the Mes.

OPINIONS: The Gemara says that if there is a Mes on the first day of Yom Tov (Yom Tov Rishon), we may request gentiles to take care of it. On the second day of Yom Tov (Yom Tov Sheni), it is permitted even for a Jew to take care of it. Mar Zutra and Rav Ashi dispute whether these Halachos refer to a Mes that has been lying around for some time (and is going to putrefy), or even to a Mes that died that day (and is not going to putrefy if left until after Yom Tov -- see above Insight). The Gemara concludes that nowadays, since the Jews are under the dominion of nations that force them to do work on the weekdays, we may not take care of the Mes on Yom Tov, because then they will think that we do work on Yom Tov and will force us to work for them on Yom Tov. What is the Halachah regarding the second day of Yom Tov?

(a) The conclusion of our Gemara seems to be that a Jew may bury a Mes on Yom Tov Sheni, even if it was not lying around, because "the Rabanan made Yom Tov Sheni like a normal weekday when it comes to burying a Mes." This is how the ROSH understands the Gemara.

(b) The OR ZARUA (#330) and the MAHARAM M'ROTENBURG (cited by the Mordechai in Maseches Shabbos, #426) rule that it is permitted to bury a Mes on Yom Tov Sheni only when the Mes was lying around (this ruling is based on the Gemara in Shabbos 139b).

(c) RABEINU TAM (cited in Tosfos) may be expressing a third opinion. He once rebuked a community that buried a Mes on the second day of Yom Tov. The Jews of the town of Melun (France) buried a Mes on the second day of Yom Tov, and when Rabeinu Tam heard about it, he sharply reprimanded them. What was incorrect about the conduct of the people of Melun, and why did Rabeinu Tam object so strongly?

There are two basic explanations concerning what was incorrect about the conduct of the people of Melun, and for each explanation, there are various opinions why Rabeinu Tam objected.

[1] According to some, Rabeinu Tam objected to having *Jews* bury the Mes on the second day of Yom Tov, for the one of the following reasons:

1. TOSFOS (Shabbos 139b, DH Yom Tov Sheni) explains that in the Gemara here, Ravina concludes that even though it was initially permitted for Jews to bury a Mes on the second day of Yom Tov, nowadays it is prohibited because the nations that rule over the Jews might see the Jews doing Melachah for the Mes and they will force the Jews to do Melachah for them on Yom Tov. Even though this concern does not exist today in most places since the Jews are not so oppressed by the nations, the Halachah remains the same.

2. TOSFOS here and other Rishonim write that Ravina's reasoning still applies today. Even though we are not oppressed, we are still concerned that the officials of the king or governing body will see Jews doing Melachah for a Mes on Yom Tov and they will draft the Jews to do Melachah on Yom Tov. This is the reason why Rabeinu Tam objected to the Jews of Melun burying a Mes on the second day of Yom Tov.

3. Rabeinu Tam was upset that the Jews of Melun buried the Mes *themselves* and did not commission gentiles to do it. Since it was possible to have gentiles do the work for them, they should not have buried the Mes themselves. This is the ruling of the SHE'ILTOS.

4. Rabeinu Tam may have been of the opinion that today we should be stringent not to permit Jews to bury a Mes on the second day of Yom Tov because we are not considered to be Bnei Torah (HAGAHOS MAIMONI, Hilchos Yom Tov 1:70). However, we are permitted to ask gentiles to bury the Mes for us (even though, in the Gemara in Shabbos (139b), Rebbi Menashya did not permit the people of Bashkar to do so, that was because the people of Bashkar were even less of Bnei Torah than we).

[2] The RAMBAN (Teshuvos ha'Ramban, cited in Orchos Chaim, Hilchos Yom Tov 25) and TOSFOS RABEINU PERETZ (Beitzah here) explain that Rabeinu Tam was not upset that Jews buried the Mes on the second day of Yom Tov. Rather, he objected because a *large crowd* of the people of Melun were involved in the funeral, and he ruled that only the exact number of people necessary for burying the Mes may go out to the burial. The reasoning for this is as follows:

1. We do not permit the involvement of a large crowd, since that would make the event public and well-known. If the event becomes public, we are afraid that people will be lax in their observance of Yom Tov Sheni, since we are not considered Bnei Torah (Tosfos).

2. The RAMBAN (Toras ha'Adam, end of Inyan ha'Hotza'ah) explains that the Rabanan only permitted the bare minimum of Melachah necessary to bury a Mes on Yom Tov Sheni. Since it is not necessary for a large crowd to go out with the Mes, it is prohibited. (The Ramban points out that we find this type of enactment with regard to desecrating the Shabbos in order to give testimony for Edus ha'Chodesh, see Rosh Hashanah 21b.).

HALACHAH: The SHULCHAN ARUCH (OC 526:27) follows this last opinion ([2]:2) and maintains that it is only permitted to do what is necessary but not more than what is necessary. The REMA (OC 526:4), though, rules that it is not permitted for Jews to bury a Mes if it is possible to ask gentiles to do it (like opinion [1]:3).

6b

QUESTION: Rav Huna states, cryptically, that "an egg is finished when it exits [from the hen]." The Gemara suggests that he is referring to the laws of an egg on Yom Tov, and he means that an egg is Mutar only when it exits the chicken before Yom Tov, because that it when it is completed. If it does not come out before Yom Tov, it is Asur (for example, it is laid on Yom Tov, or the chicken is slaughtered on Yom Tov and the egg is extracted).

The Gemara rejects this and says that this could not be what Rav Huna is referring to, because there is a Beraisa which states explicitly that eggs found inside of a chicken slaughtered on Yom Tov are Mutar.

RASHI (DH b'Yom Tov) explains what Rav Huna meant according to the Gemara's initial suggestion. He writes that Rav Huna meant that if the egg did not emerge before Yom Tov, that shows that it was not completed during the weekday, and therefore it is Asur because of Hachanah, having been prepared on Yom Tov and not beforehand.

Rashi seems to be saying that an egg laid on Yom Tov is completed on Yom Tov, and because of that it is Asur. But we learned earlier (2b) that an egg is completed the day *before* it is laid! If it was born on Yom Tov, that means it *was* completed on a weekday -- the day before Yom Tov -- and not on Yom Tov! Why, then, is there any problem of Hachanah?

Besides, even it was completed on Yom Tov (the day that it was laid), why should it be Asur? The problem of Hachanah exists only when something is prepared on Shabbos for Yom Tov (or on Yom Tov for Shabbos). But when the Hachanah is done on Yom Tov itself, for the sake of that day, there is no problem of Hachanah, because "Yom Tov Mechin l'Atzmo" (it is permitted to prepare an item on Yom Tov to be used on that Yom Tov). After all, is not "Yom Tov Mechin l'Atzmo" the reason why the Gemara (2b) was forced to say that an egg laid on Yom Tov is prohibited only because of Yom Tov that occurs *after Shabbos*, and that the egg is finished the day *before* it is laid? This implies that if an egg were completed on Yom Tov, the day that it was laid, it would be Mutar! (MAHARSHAL)

ANSWERS:

(a) The MAHARSHAL explains that Rashi does not mean that the egg will be Asur if it is laid on Yom Tov since it is completed on the day it is laid. Rather, Rashi means that an egg laid on Yom Tov is completed the day before, and because of that *the Rabanan made a Gezeirah* and prohibited an egg laid on a regular Yom Tov because of an egg born on a Yom Tov that falls immediately after Shabbos (as the Gemara said on 2b). When Rashi says that it is "prohibited because of Hachanah d'Rabah," he is referring to the Gezeirah on a normal Yom Tov *because of Hachanah* in a case of Yom Tov after Shabbos.

This explanation, though, does not fit well with the words of Rashi, who writes clearly, "she'Lo Nigmarah b'Chol" -- the egg was not completed on a weekday. This clearly implies that it was completed on Yom Tov itself.

(b) The PNEI YEHOSHUA explains that Rashi is consistent with his opinion elsewhere (2b), where he says that Hachanah d'Rabah is an Isur of Muktzah, and is not merely Asur because Shabbos is preparing for Yom Tov. As such, Hachanah on Yom Tov for the same day is also Asur (see Insights to 2:4 ), unlike the Maharshal posited in his question. This answers the second question, how Rashi could call it an Isur of Hachanah if it is Hachanah on Yom Tov for Yom Tov. (As for the apparent contradiction between this position and the Gemara in Eruvin 38b, see Chidushei ha'Me'iri, Beitzah 2b, and what we wrote in Background to Eruvin 38:4:c.)

Regarding the first question, why Rashi assumes that if it was laid on Yom Tov it was also finished on Yom Tov, Rashi means that the Gemara thinks, at this point, that this is Rav Huna's position. Rav Huna, who prohibits (according to the Gemara's assumption) even eggs that were found inside the hen on Yom Tov, is arguing with the Gemara earlier (2b) and maintains that the egg is completed *on the day* that it is laid, and *not* the day before. (This is implicit in Rav Huna's words, "*Im Yetzia'asah* Nigmerah.")

The TZELACH suggests that when Rashi says that an egg that is not laid before Yom Tov is not considered to have been completed during the weekday, he is not referring to an egg laid on Yom Tov, because such an egg was indeed completed the day before. Rather, Rashi is only referring to eggs found inside the chicken when it is slaughtered. We are afraid that *those* eggs were completed on Yom Tov -- Hachanah on Yom Tov for Yom Tov is Asur, as the Pnei Yehoshua states. (Eggs laid on Yom Tov are Asur for another reason, because of the Gezeirah of Yom Tov after Shabbos).

QUESTION: The Gemara suggests that Rav Huna holds that eggs found in the chicken's stomach on Yom Tov are Asur on Yom Tov. Even though the Beraisa contradicts Rav Huna and states that such eggs are permitted, the Gemara says that the Beraisa might be mistaken, because we find no Mishnah that supports it. The Gemara then backs up the Beraisa by pointing out that our Mishnah (2a) implies support for the Beraisa: the argument between Beis Shamai and Beis Hillel is only when the egg was laid on Yom Tov; when it was extracted from a slaughtered chicken, everyone agrees that it is Mutar. If so, the Beraisa is again contradicting Rav Huna, and thus Rav Huna must not have been referring to a case of an egg on Yom Tov.

The Gemara then answers for Rav Huna and says that perhaps the Mishnah means that Beis Shamai and Beis Hillel are also arguing in a case of eggs found inside the chicken; the Mishnah only mentions their argument in a case of an egg that was laid in order to show the extent of Beis Shamai's leniency. But that cannot be what the Mishnah is saying, asks the Gemara, because if so, then the Beraisa is not in accordance with any Tana! (The Beraisa, which says that eggs found inside a chicken are Mutar, cannot be according to Beis Hillel, because Beis Hillel prohibits such eggs. It also cannot be Beis Shamai, because Beis Shamai permits even eggs that are laid on Yom Tov, while the Beraisa implies that only eggs inside a chicken are Mutar, but not eggs that were laid.)

Why is the Gemara asking a question against Rav Huna from the Beraisa, if it already said that the Beraisa is in error? (TOSFOS DH v'Chi Teima)

ANSWERS:

(a) The SHITAH MEKUBETZES, citing the RITVA, answers that we only suggest that a Beraisa is in error if there is no way possible to find its Halachah in a Mishnah. At this stage, though, the Gemara has shown that our Mishnah could be understood to imply the Halachah of the Beraisa. Although it could also be understood not like the Beraisa, it is not necessarily counter to the Beraisa, and therefore we cannot say that the Beraisa is in error.

(b) TOSFOS argues with Rashi because of this question. He explains that the Gemara was never suggesting (in defense of Rav Huna) that the Beraisa is incorrect. Rather, the Gemara was saying that the Beraisa does not contradict Rav Huna, because the Beraisa is expressing the opinion of Beis Shamai (while Rav Huna is expressing the opinion of Beis Hillel) and is adding something which our Mishnah left out -- that Beis Shamai permits eggs even when they are found inside the chicken. At this stage, the Gemara thinks that there is reason to say that eggs inside the chicken should be more stringent than eggs that were laid, and thus it is necessary for the Beraisa teach that even eggs inside the chicken are Mutar according to Beis Shamai.

The Gemara rejects this by saying that there is more reason to permit eggs inside the chicken than eggs that were laid. As such, there is no reason for the Beraisa to be teaching us that eggs inside the chicken are Mutar according to Beis Shamai, because once our Mishnah tells us that Beis Shamai permits eggs that were laid, then we know that certainly they permit eggs that are inside the chicken. It must be that the Beraisa is teaching us the opinion of Beis Hillel concerning eggs inside the chicken, and it is saying that Beis Hillel permits them even though they prohibits eggs that were laid. If so, the Beraisa stands as a contradiction to Rav Huna.