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Chulin, 77

1) PERMITTING EVERY "SAFEK TEREIFAH" BECAUSE OF THE RULE THAT "HA'TORAH CHASAH AL MAMONAN SHEL YISRAEL"

QUESTION: The Gemara (76b) relates that Rava rules in a case of a broken bone that was covered by soft sinews that the animal is not a Tereifah. His reasoning is based on the opinion of Rebbi Yochanan, who rules that soft sinews are considered like flesh (with regard to one whose share of the Korban Pesach is the sinews). In addition, since the Torah is concerned for the money of Yisrael, we should not be stringent. Rav Papa questions Rava's ruling, asking how he could be lenient against the opinion of Reish Lakish, and when the issue involves an Isur d'Oraisa.

How can Rava use the logic that the Torah does not want to cause a financial loss to a Jew when a Safek Tereifah is involved? According to that reasoning, we should permit every case of a Safek Tereifah! (TORAS CHAYIM)

ANSWER: The LEV ARYEH answers as follows. Rava understands that Reish Lakish -- who argues with Rebbi Yochanan and maintains that a person may not eat as his portion of the Korban Pesach a soft sinew that eventually will harden -- agrees in that a soft sinew that will harden is considered *meat*. Reish Lakish maintains that it is prohibited to eat as one's share of the Korban Pesach only mid'Rabanan; the Rabanan were concerned that people might eat the sinew even after it hardened. Accordingly, it is possible that even Reish Lakish agrees that the Rabanan did not apply this stringency to the laws of Tereifos, because the Torah is concerned for the money of Yisrael.

Rav Papa asks that Reish Lakish maintains that a sinew that will harden is not considered meat even mid'Oraisa. Consequently, it is clear that Reish Lakish does not consider it to be meat with regard to Tereifos as well.

QUESTION: The Mishnah teaches that a Shilya (placenta) that partially emerged from the womb before the mother was slaughtered is forbidden to be eaten. The Gemara first cites a verse as the source for this law, but then the Gemara explains that it is logical that the Shilya is forbidden (and the verse cited is an "Asmachta"), since there certainly is a fetus within every placenta. Accordingly, once the fetus has emerged from the womb, it does not become permitted with the Shechitah of its mother.

Why, though, is it obvious that once the Shilya emerged, it becomes forbidden? What forbids it? Why is it not considered part of the mother until the entire fetus emerges?

Furthermore, the RAMBAM (Hilchos Ma'achalos Asuros 4:5) writes that "the Shilya that emerged together with the fetus is forbidden to eat, but one who eats it is exempt from Malkus, because it is not considered meat." What is the Rambam's source for saying that the Shilya is not considered meat and thus one does not receive Malkus for eating it?

ANSWERS:

(a) The KEHILOS YAKOV (Pesachim #14, DH v'Od) writes that the reason why the Shilya is forbidden is because it is "Yotzei Min ha'Chai" -- whatever emerges from a living animal is forbidden (unless there is an explicit verse or source to permit it).

There are two possible sources for the law that "Yotzei Min ha'Chai" is forbidden. First, the Gemara later (112b) cites the verse, "[Eleh] ha'Teme'im [Lachem]" - "These are the Teme'im to you" (Vayikra 11:31), and says that "this includes the juice, gravy, and jelly of the meat" (that is, everything that comes out of the meat is forbidden).

Second, the Gemara earlier (64b) derives from the verse, "v'Es Bas ha'Ya'anah" (Vayikra 11:16), that the egg of an impure bird is forbidden (see Insights there).

The Kehilos Yakov answers the second question, regarding the source for the Rambam's ruling that one who eats the Shilya does not receive Malkus, by comparing this Halachah to another Halachah recorded by the Rambam (Hilchos Ma'achalos Asuros 3:6). The Rambam rules that milk or eggs of an impure animal are forbidden, but one who consumes them does not receive Malkus. The MAGID MISHNEH says that the source for this ruling is the Gemara earlier (64a) that says that one receives Malkus for eating the egg of an impure bird only when the chick has begun to form and develop limbs. Prior to this state, one does not receive Malkus for eating the egg, even though the egg certainly is forbidden. Similarly, one who eats an undeveloped fetus does not receive Malkus.

(b) The CHAZON ISH (Bechoros 16:16) offers a different approach. He writes that the Shilya is forbidden because it has the status of Neveilah. Even though the Mishnah states that the Shilya is *not* Tamei as a Neveilah, this is not because the Shilya itself is not a Neveilah, but rather because the Shilya itself is not full-fledged meat ("Basar Gamur"). Eating the Shilya is like eating a Chatzi Shi'ur of Isur (such as eating half of a k'Zayis of Chametz on Pesach, which is forbidden mid'Oraisa but for which one does not receive Malkus). Similarly, less than a Shi'ur of actual Neveilah is not Metamei. Since a Shilya is not considered meat, even a large piece of it is not Metamei, even though it is forbidden to be eaten because it is Neveilah.

This is also the source for the Rambam's ruling that one does not receive Malkus for eating the Shilya. The Rambam himself compares eating the milk or eggs of an impure animal to eating a Chatzi Shi'ur of Isur. Accordingly, since a Shilya is considered like Chatzi Shi'ur of Neveilah, one does not receive Malkus for eating it. (D. Bloom)

QUESTION: The Mishnah states that we may not bury a Shilya at a crossroads nor may we hang it on a tree, because these acts are the ways of idolaters ("Darchei ha'Emori"). RASHI here (DH Darchei) and in Avodah Zarah (11a, DH v'Lo) writes that the source for the Isur of doing acts that are Darchei ha'Emori is the verse, "v'Lo Sa'aseh k'Ma'aseihem" -- "... do not do like their actions" (Shemos 23:24; see also RAMBAN there).

However, Rashi in Shabbos (67a, DH Darchei) gives a different source for the Isur of Darchei ha'Emori. He writes there that the source is the verse, "uve'Chukoseihem Lo Selechu" -- "... nor shall you walk in their ordinances" (Vayikra 18:3). This is also the verse that the Gemara in Avodah Zarah (11a) and Sanhedrin (52b) quotes with regard to the Isur of Darchei ha'Emori. Why does Rashi here give a different verse as the source for the Isur?

ANSWER: The verse (Shemos 23:24) that Rashi here mentions is discussing idolatry. We might have thought that this verse is referring only to practices of the Emorites that were originally used for the service of Avodah Zarah. The verse in Vayikra teaches that *any* superstitious practice of the Emorites is forbidden, even if it is not done for the sake of idol worship. (See also TOSFOS in Sanhedrin 52b, who similarly distinguishes between the two forms of Darchei ha'Emori.) (M. Kornfeld)

77b

OPINIONS: Abaye and Rava rule that any act that is done for the purpose of Refu'ah does not constitute Darchei ha'Emori, while any act that is not done for the purpose of Refu'ah constitutes Darchei ha'Emori. What is considered an act done for Refu'ah?

(a) RASHI (DH Yesh Bo) says that an act done for the purpose of Refu'ah includes using any liquid or potion (that has no quantifiable medicinal value) for healing, or chanting an incantation over a wound. Rashi (DH Ein Bo) explains that an act that is not done for the purpose of Refu'ah refers to any act that is not done "on a sick area," such as burying a Shilya at a junction in the road. The PANIM ME'IROS (1:36) understands that Rashi means to say that we are allowed to do an act, even for the sake of healing, directly over the body of a sick person, but we may not do an act from a distance. For this reason, the Panim Me'iros rules that it is forbidden to make a amulet to be hung in a tree to help a baby sleep better. (See, however, the PISCHEI TESHUVAH (YD 179:5), who disagrees with the understanding of the Panim Me'iros (his grandfather) of the words of Rashi.)

(b) RASHI in Shabbos (67a, DH she'Yesh) defines Refu'ah as an act that is an effective treatment for the illness from an empirical perspective. This seems to exclude an incantation that is whispered over a wound in order to heal it.

The RAMBAM (Moreh Nevuchim) also writes that the act must have some medicinal quality to its healing ability in order to be permitted. The RASHBA (Teshuvos 1:413) questions the Rambam's opinion from the case in the Mishnah in Shabbos (67a). The Mishnah quotes Rebbi Meir who permits one to wear a fox tooth in order to help him sleep. The Rambam himself rules in accordance with the opinion of Rebbi Meir (Hilchos Shabbos 19:13), which is difficult, since there seems to be no empirical therapeutic effectiveness in wearing a fox tooth.

(c) The RAN here quotes Rashi in Shabbos and asks (like the Rashba) that the Gemara permits one to wear a fox tooth to help him sleep, even though its therapeutic property is not understood from a scientific perspective. The Ran therefore defines an act done for the sake of Refu'ah as any act that we know works to heal, even if it works metaphysically. An act that is not done for the sake of Refu'ah is an act that has no known results.

QUESTION: Abaye and Rava rule that any act that is done for the purpose of Refu'ah does not constitute Darchei ha'Emori, while any act that is not done for the purpose of Refu'ah constitutes Darchei ha'Emori. RASHI (DH Yesh Bo) writes that chanting an incantation over a wound is included in the category of Refu'ah and thus is permitted.

However, the Mishnah in Sanhedrin (90a) states that one who whispers over a wound the verse, "Every illness that I placed upon Mitzrayim, I shall not place upon you..." (Shemos 15:26), has no portion in the World to Come! Similarly, the Gemara in Shevuos (15b) says that it is forbidden to heal oneself with words of Torah!

How, then, can Rashi say that it is permitted to whisper an incantation (such a verse) over a wound, since it is being done for the sake of Refu'ah?

ANSWERS:

(a) The MAHARSHA in Shabbos (67a) writes that when one's intention is to heal a spiritual ailment with a verse, it is permitted. (See RAMBAM, Hilchos Avodas Kochavim 11:12.)

(b) The MAHARSHA in Eruvin (54a) suggests that the prohibition to heal oneself with words of Torah applies only to reciting a verse with the specific intent that it serve to heal him. If he learns Torah primarily for the sake of learning, but also with the secondary intention that it help cure him, then it is permitted.

The PERISHAH (YD 179:17) explains similarly that the prohibition applies only when one pronounces a verse from the Torah expecting it to heal him superstitiously, like an incantation. However, when he studies Torah in order to do the Mitzvah of Hashem and he trusts that Hashem will heal him in the merit of the Mitzvah, it is permissible.

(c) TOSFOS in Shevuos (15b, DH Asur) and Pesachim (111a, DH Niftach) writes that if the illness poses a mortal danger, then one may use a verse for healing. This is also the Halachah as recorded by the SHULCHAN ARUCH (YD 179:8).

(d) The REMA (YD 179:8) writes that the opinion of RASHI in the name of his teacher (in Sanhedrin 101a, DH uv'Rokek) is that the prohibition to use a verse for healing applies only when the verse is said in Hebrew, but not when it is said in a different language. (See SHACH there, #11.)