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Beitzah 24

1) "TZIPOR DROR"

QUESTION: RASHI (DH b'Tzipor Dror) explains that the reason that the bird is not considered captured while it is in the house is because it flies from one corner of the house to the other and one cannot catch it.

In the Havah Amina of the Gemara, though, Rashi (DH Chayav) explains that the bird (of the Beraisa) is not considered captured because it escapes through the windows, and not because it flees from corner to corner. Why does Rashi change his explanation? (Rashi in Eruvin (40a) also changes his explanation from the Mishnah there, in which he explains that the bird escapes through the windows, to the conclusion, in which he explains that the bird escapes by fleeing from one corner of the house to another.)

ANSWER: The Gemara initially suggested that the difference between being considered captured and not considered captured is based on the type of enclosure the bird is in; if it is roofed, the bird is considered captured, if it is not roofed, it is not considered captured. If the Gemara at that stage meant that the bird could dodge from one corner to the other, then it would not matter whether the enclosure is roofed or not; the bird could always escape. It must be that the Gemara at that stage was referring to a regular bird that can only escape through open parts of the house (and not by fleeing from corner to corner). Therefore, if the enclosure is roofed (and the windows closed, see Chart #8 footnote 3), it cannot escape.

The Gemara concludes that a bird is not considered captured even in a roofed area when that bird is a Tzipor Dror. If so, it must be that the bird escapes by going from corner to corner, and not by flying away through the windows. That is why a Tzipor Dror is the only bird that is not considered captured in such a situation.

24b

QUESTION: The Gemara concludes that an animal that was captured by a non-Jew on the first day of Yom Tov may be eaten on the second day of Yom Tov. Normally, when a Melachah is done by a non-Jew for a Jew on Shabbos, a Jew may not benefit from that Melachah until enough time has elapsed after Shabbos for the Jew to have done the Melachah himself. What is the Halachah, though, when a Melachah was done on the first of two days of Yom Tov Shel Galuyos (i.e., outside of Israel, when only one of the days is actually Yom Tov)? This question may be divided into two parts:

First, if a non-Jew picked a fruit on the first day of Yom Tov, when may a Jew eat it -- that day, that night, or the following night (after the second day of Yom Tov)?

Second, may a Jew other than the one for whom the non-Jew picked the fruit eat it at an earlier time?

ANSWERS:

(a) ON THE DAY IT WAS PICKED: The Gemara states that if we have reason to suspect that a non-Jew picked fruit on Yom Tov for a Jew to eat, then that fruit is forbidden for Jewish consumption for all that day, and it is forbidden after the day is over until after the time that would take to prepare the fruit has passed (this "preparation time" is defined as the time it would take to pick the fruit, plus the time that it took the non-Jew to transport the fruit from the place of harvest to the home of the Jew by whatever means of transport he used, -Shulchan Aruch OC 515:1).

The fruit is prohibited *on that day* for *two* reasons: (1) Since the fruit was attached to the tree when Yom Tov began and was thus inaccessible, it is Muktzah. (2) There is a decree of "Peiros ha'Noshrim" which prohibits the use of fruit which fell from the tree on Shabbos. The Rabanan made such a decree out of concern that one might pick fruit from the tree on Shabbos. If it is a two-day Yom Tov, the fruit is not Muktzah on the second day.

(b) ON THE FOLLOWING DAY: The reason for the prohibition *after* Yom Tov is the subject of dispute among the Rishonim. Two different approaches are suggested by the Rishonim:

1. RASHI (DH u'l'Erev), RAMBAN, RASHBA, RITVA, and others explain that one may not benefit at all from Melachah done on Yom Tov, even if it was done by a non-Jew. Enjoying the fruit immediately after Yom Tov would be benefiting from the Melachah performed by the non-Jew on Yom Tov. By waiting enough time to pass after Yom Tov, one is no longer considered to be benefiting from Melachah done on Yom Tov since he could have prepared the fruit after Yom Tov as well.

This reasoning leads to a leniency and a stringency. In the case of fruit picked on the first day of Yom Tov when there are two days of Yom Tov (outside of Israel), the fruit is permitted on the night going into the second day of Yom Tov after waiting the preparation time. The reason for this is that if the first day is actually Yom Tov then the fruit is permitted that evening just like after the end of any Yom Tov, and if the second day is actually Yom Tov then the fruit was picked on a weekday. On the other hand, according to this reasoning there is no distinction between fruit picked for a non-Jew or for a Jew, since no Jew may benefit from Melachah done on Yom Tov.

2. The BEHAG (cited in Rashi), TOSFOS, and others explain that one must wait the preparation time after Yom Tov as a *penalty* to discourage people from telling non-Jews to do Melachah for them.

This reasoning leads to the inverse stringency and leniency. On one hand, the preparation time that one must wait must be at a time when it is *permitted* to do such Melachah. Therefore, fruit picked by a non-Jew on the first day of Yom Tov would be forbidden until after the preparation time at the conclusion of the *second* day of Yom Tov. On the other hand, according to this reason, the requirement to wait after Yom Tov applies only to the what was picked for a *Jew*. If the non-Jew picked fruit for himself, it is permitted to use it without waiting until the preparation time has passed.

The ROSH (Beitzah 3:2) is even more lenient in this regard, and permits even fruit that was picked for a Jew to be eaten by *other Jews* (other than the one for whom it was picked, or his family) without waiting until the preparation time has passed. His logic is that since our objective is to discourage a Jew from instructing a non-Jew to do Melachah for him in the future, we are not concerned that a Jew will instruct a non-Jew to do Melachah solely for the benefit of *another* Jew.

(Of course, in any case, *no* Jew can eat the fruit on the day upon which it was picked, because it is Muktzah as explained above.)

HALACHAH: The SHULCHAN ARUCH (OC 515:1) rules like Rashi, that no one may eat fruit picked by a non-Jew on Yom Tov until the preparation time has passed at the end of that day, and therefore it may be eaten even by the person for whom it was picked immediately after the second day of Yom Tov. However, the REMA says that common practice is to follow the stricter opinion of the Behag and Tosfos and not permit the fruit to any Jews until Motza'ei Yom Tov Sheni, after the preparation time has passed.

We do not rely on the ruling of the Rosh to allow the fruit to a Jew other than the one for whom it was picked, except when it necessary for the honor of Yom Tov, or for Hachnasas Orchim (such as if the fruit is needed to guests on Yom Tov -- see MISHNAH BERURAH (515:12) who discusses exactly when one may or may not be lenient with feeding guests.)

The MISHNAH BERURAH (515:13) also cites the Taz who rules that in extenuating circumstances one may rely on the first opinion and permit the fruit even for the Jew for whom it was picked after waiting the preparation time at the conclusion of Yom Tov Rishon, like Rashi. In BI'UR HALACHAH (DH v'Yesh Machmirin) he concludes that the opinion of Rashi is indeed the more accepted one, and one may be lenient like Rashi whenever there are other factors involved that allow for leniency.