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Zevachim, 78

1) A MIXTURE OF "PIGUL," "NOSAR," AND "TAMEI"

OPINIONS: The Gemara quotes Reish Lakish who states that if one eats a dish containing a mixture of Pigul and Nosar (and Tamei, according to the text of our Gemara and some Rishonim), he would not be punished with Malkus for transgressing these two (or three) prohibitions, although it certainly is forbidden to eat the mixture. It is assumed that Reish Lakish is discussing a case in which the person was properly warned against transgressing these prohibitions, and he still states that the sinner does not receive Malkus. The Gemara says that we learn three things from Reish Lakish's statement. First, we learn that items of Isur can be Mevatel each other. Second, we learn that the presence of the taste of a forbidden item in a mixture with a majority of a permitted item (Nosen Ta'am in a Rov) does not prohibit the mixture mid'Oraisa. Third, we learn that a Hasra'as Safek (the warning given to a person who is about to commit a sin when it is not certain that the potential punishment will be applicable to his sin) is *not* a valid Hasra'ah.

What exactly is the case that Reish Lakish is discussing, and what is the logic behind his ruling?

(a) RASHI (DH Iy Efshar) says that the reason this sinner does not receive Malkus is because he is eating from a mixture of various prohibited foods, an we can never be certain what is the majority of food in his mouth, Pigul or Nosar. If we were to know what the majority in his mouth is at any given moment, then we could warn him with a proper Hasra'ah and give him Malkus for transgressing that prohibition. However, since we are not sure which food is the majority of the food in his mouth at any given moment, we cannot give him a proper Hasra'ah with definite knowledge of the exact Isur he is committing.

Rashi clearly learns that the reason we cannot administer Malkus is because the Hasra'ah in this case is a Hasra'as Safek.

(b) Among other questions, TOSFOS (DH ha'Pigul) asks that according to Rashi's depiction of the case, the case does not entail a problem of Hasra'as Safek. Hasra'as Safek occurs when, at the time of the warning, there is a doubt whether the person will *ever* commit the Isur by doing what he is planning to do. Even though he eventually commits the Isur, it was not known that he would ever do so at the time of the Hasra'ah. In this case, though, we clearly see that he is about to transgress the prohibitions of Pigul and Nosar; the only doubt is *when* exactly he will transgress these prohibitions. We have no doubt that if he does what he plans to do, he will definitely transgress all of these prohibitions. If the witnesses would warn him that he may not do all of these Isurim, that is a proper Hasra'ah and not Hasra'as Safek.

Tosfos therefore says that the case of the Gemara is one in which there are two separate food items. One is a mixture of two k'Zeisim of Pigul and one k'Zayis of Nosar, and the other is a mixture of two k'Zeisim of Nosar and one k'Zayis of Pigul. It is unknown now which mixture is which. When the sinner takes the first mixture in order to eat it, the witnesses warned him not to eat Pigul. This is obviously Hasra'as Safek, since this mixture might be the one that contains a Rov of Nosar, in which case the person will not transgress the prohibition of Pigul for eating the mixture, but rather that of Nosar (since the Pigul is Batel to the Nosar). Even when the person proceeds to eat the second mixture and the same warning is given not to eat Pigul, we are still uncertain that he is eating the mixture that contains the majority of Pigul, since the second mixture that he eats might be the one with a majority of Nosar. This case is a case of Hasra'as Safek, since it was uncertain at the time of each warning whether the person would commit the Isur of eating Pigul through his action.

(c) Tosfos gives a third explanation. It is not clear, though, what the intention of Tosfos is. The TZON KODASHIM and BIRKAS HA'ZEVACH explain that Tosfos is suggesting that the case is one in which the person first set aside two k'Zeisim of one Isur, such as Pigul. He then took another four k'Zeisim from two types of Isurim (such as two k'Zeisim each from Pigul and Nosar) and mixed them together in a separate bowl. He then decided to eat all of this in two stages -- in each stage, he intended to eat one k'Zayis of the definite Pigul with two k'Zeisim from the second mixture. He was warned before his first meal that he was transgressing the Isur of Pigul, and he was warned before his second meal that he was transgressing the Isur of Nosar. In both situations, we are unsure what the Rov is that he is eating. His definite Pigul might be mixed with a Rov of Nosar (from the mixture of four k'Zeisim that he made), or it might be mixed with more Pigul, creating a Rov of Pigul. In any case, each Hasra'ah that he receives is a Hasra'as Safek. (This explanation in Tosfos maintains that giving the same Hasra'ah for the same Isur in both stages of the case would not entail a Hasra'as Safek.)

The CHOK NASAN explains that Tosfos is suggesting a different case. The person takes two k'Zeisim of one type of Isur, and he mixes it with four k'Zeisim of another Isur, and then he divides the mixture in half. The rest of the case is as described above. The YAD BINYAMIN says that most commentaries understand that this is the intention of Tosfos. (Y. Montrose)

QUESTION: The Gemara quotes Reish Lakish who states that if one eats a dish containing a mixture of Pigul and Nosar, he would not be punished with Malkus for transgressing these two prohibitions, although it certainly is forbidden to eat the mixture, because "each type annuls the other." RASHI (see previous Insight) explains that Reish Lakish is referring to a case in which a k'Zayis of Pigul became mixed with a k'Zayis of Nosar, and the person ate the entire mixture. The reason he does not receive Malkus is because he is eating from a mixture of various prohibited foods, and we cannot be certain what is the majority of food, Pigul or Nosar, in his mouth at any moment. If we were to know what the majority in his mouth is at any given moment, then we could warn him with a proper Hasra'ah and give him Malkus for transgressing that prohibition. However, since we are not sure which food is the majority of the food in his mouth at any given moment, we cannot give him a proper Hasra'ah with definite knowledge of the exact Isur he is committing.

The Gemara says that one of the things we learn from Reish Lakish's statement is that items of Isur can be Mevatel each other. In this case, when there is a majority of Pigul, for example, in the person's mouth and a minority of Nosar, the Pigul is Mevatel the Nosar. The only reason one does not receive Malkus is because the Hasra'ah is a Hasra'as Safek.

According to this principle, that one Isur is Mevatel another, what will be the case when there are *three* different types of Isur mixed together, such as Pigul, Nosar, and Tamei (this is according to the Girsa which removes the word "Tamei" from the text of Reish Lakish's statement)? Since there are two other Isurim in each mouthful to be Mevatel the third Isur, the majority should annul the minority. Consequently, the Pigul and Nosar should be Mevatel the Tamei, the Nosar and Tamei should be Mevatel the Pigul, and the Pigul and Tamei should be Mevatel the Nosar, and the entire mixture should be permitted, l'Chatchilah, to eat! Obviously, this is not the Halachah; the mixture certainly remains forbidden. The reason is because only an item of *Heter* can be Mevatel an Isur and make it permissible like itself; an Isur cannot make another Isur become permitted. Why, then, does Reish Lakish teach that an Isur can be Mevatel another Isur with regard to Malkus?

ANSWER: The answer to this question is that while it is true that a majority of one Isur cannot be Mevatel another Isur to make it permitted, it *can* be Mevatel the *specific status* of the other Isur, such that it no longer retains the specific title of Nosar, for example. It still retains, however, its general state of being prohibited. Thus, Hasra'ah against eating the "annulled" Isur is not effective, because Hasra'ah must be given for a specific type of Isur, the identity of which is clear. An Isur whose specific identity became annulled due to Bitul in a majority of other Isurim is not subject to Hasra'ah. Accordingly, Malkus cannot be given in the case of three Isurim that became mixed together, but, nonetheless, the mixture remains prohibited to eat. (See VA'YIZRA YITZCHAK 98:9.) (M. Dicker)

QUESTION: The Gemara says that the second thing we learn from Reish Lakish's statement (see previous Insights) is that a Hasra'as Safek is not a valid Hasra'ah. Rashi understands from here that if we would know for certain that the person is placing into his mouth a k'Zayis comprised of a majority of Pigul and a minority of Nosar, then we would be able to give a proper Hasra'ah and administer Malkus. Since we do not know what quantities of each Isur are in the k'Zayis that he is placing into his mouth at this moment, the Hasra'ah is only a Hasra'as Safek.

TOSFOS questions this. Even if we know that the k'Zayis that he is placing into his mouth contains a majority of Pigul and a minority of Nosar, how can Bitul cause the Nosar to join the Pigul to form a k'Zayis of Isur, for which the person will receive Malkus for eating? The end result remains *less* than a k'Zayis of Pigul, and less than a k'Zayis of annulled Nosar, and a person does not receive Malkus for eating less than a k'Zayis!

Some Acharonim (see SHA'AREI YOSHER 3:15) understand that Rashi and Tosfos are arguing about the following point. Rashi maintains that Bitul causes the minority to acquire the status of the majority. Consequently, the minority of Nosar actually becomes Pigul, as it were. Tosfos, on the other hand, maintains that Bitul merely removes the specific status of an item (such as removing the status of Isur of a minority of Isur that became mixed with a majority of Heter), but it cannot give a new status to the minority (such as giving the minority of Nosar the status of Pigul).

The actual function of Bitul is discussed at length by the Acharonim. Most Poskim (see ONEG YOM TOV OC #4) maintain that Bitul b'Rov cannot give a new status to the minority. One practical question discussed by the Acharonim that depends on this issue is a case of five Matzos that were not baked Lishmah that became mixed with ten Matzos that were baked Lishmah. May all fifteen Matzos be used for the Mitzvah? The MESHIV DAVAR (#34) rules that all of them may be used. Proof for his ruling is from Rashi here, who maintains that Bitul b'Rov causes the minority to acquire the status of the majority. Thus, the five Matzos that were not baked Lishmah become Batel to the ten Matzos that were baked Lishmah and acquire the status of having been baked Lishmah. Most Poskim, however, disagree with the Meshiv Davar. How, then, do they answer the proof from Rashi?

ANSWER: The SHA'AREI YOSHER (3:16) points out that the case of our Gemara is different, and we cannot prove from Rashi that in other cases of Bitul, the minority acquires the Halachic status of the majority. In the case of our Gemara, there is definitely a k'Zayis of prohibited food in the mixture; we do not need Bitul in order to reach a k'Zayis. Rather, we need Bitul for purposes of Hasra'as Vadai. For this, perhaps Rov suffices.

This is consistent with what we explained earlier (see previous Insight). The concept of "Isurin Mevatlin Zeh Es Zeh" means that the specific identity, relevant to whether a proper Hasra'ah can be given and Malkus administered, is annulled, or "blurred," but the Isur remains.

Therefore, there is no proof from Rashi here that Rov can give a new status to the minority such that the minority would turn into the type that comprises the majority to complete k'Zayis. (M. Dicker)

QUESTION: The Gemara says that the second thing we learn from Reish Lakish's statement (see previous Insights) is that a Hasra'as Safek is not a valid Hasra'ah.

Why does the Gemara need to deduce that this is what Reish Lakish maintains? In a number of places in the Gemara (see, for example, Makos 16a), Reish Lakish states explicitly that a Hasra'as Safek is not a valid Hasra'ah! Why, then, do we need to infer this principle from a different statement that he made? (SHIVAS TZIYON #88)

ANSWER: The SHIVAS TZIYON answers this question as follows. The LECHEM MISHNEH (Hilchos Shevu'os 5:2) writes that the witnesses must include the specific Lav in their Hasra'ah. When they are not sure which Lav the sinner is about to transgress, their Hasra'ah is not a valid Hasra'ah, *according to all opinions*. The argument whether Hasra'as Safek is a valid Hasra'ah or not applies only in a case in which the witnesses know which Lav the sinner is potentially going to transgress, but they are not sure, at the time of the Hasra'ah, whether the sinner is actually transgressing the Lav.

The Gemara here is not referring to the normal case of Hasra'as Safek, in which the witnesses know the Lav that the sinner is about to transgress, but they are not sure whether he is actually transgressing or not. In the case here, the sinner is certainly going to transgress an Isur. However, the doubt is what Isur he is transgressing -- the Isur of Pigul or the Isur of Nosar. This type of Hasra'as Safek is not the same type that Reish Lakish discusses elsewhere. The Gemara here is teaching that everyone, including Rebbi Yochanan (Makos 16a) who maintains that the normal type of Hasra'as Safek *is* a valid Hasra'ah, agrees that this type of Hasra'as Safek -- where an Isur is *certainly* being transgressed, but the exact Isur is subject to doubt -- is not considered a valid Hasra'ah. (M. Dicker)

78b

QUESTION: The Gemara states that there is a difference between a mixture of two items that are of different types (Min b'she'Eino Mino) and a mixture of two items that are the same type (Min b'Mino). A mixture of two different types of items, where one is permitted and one is forbidden, retains the identity (and status) of the forbidden type if the taste of that item is discernible in the mixture. In contrast, a mixture of two of the same type of items, where one is permitted and one is forbidden, retains the identity (and status) of the food which constitutes the majority of the mixture. The Gemara asks why this is so -- why should we not judge a mixture of Min b'Mino by its taste, just as we judge a mixture of Min b'she'Eino Mino by its taste? If the forbidden item in the mixture of Min b'Mino gives the mixture its taste, then it should prohibit the mixture, even if there is a Rov of Heter! Even though it is not possible to discern the taste of the forbidden item in the mixture of Min b'Mino because it tastes exactly the same as the permitted item, RASHI (DH v'Nisha'er) explains that we can still determine how much of the forbidden item would give taste if it were a different type (or mixed with a different type). If a discernible taste is the actual standard to forbid a mixture, then why should we be lenient and rely on a Rov?

The Gemara's discussion here seems difficult to understand. This concepts of Nosen Ta'am and Bitul b'Rov are mentioned numerous times throughout the Gemara with regard to many other Torah laws, and nowhere else is the Gemara bothered by the application of the principle of Bitul b'Rov! Why specifically here does the Gemara challenge the foundations of this principle?

ANSWERS:

(a) The SHITAH MEKUBETZES (Hashmatos #1) answers in the name of RABEINU SHMUEL that the Gemara is bothered by the statement of Reish Lakish, who says that the principle of Bitul b'Rov exempts a person who eats a mixture of Pigul, Nosar, and Tamei (see previous Insight) from the punishment of Malkus. The Gemara here is asking that in a case where there is a mixture of different types of Isur, we should be more stringent, for we find a precedent for setting aside Bitul b'Rov, such as in cases of blood of Kodshim and things that are offered on the Mizbe'ach (see 81a). The Gemara is asking why we do not set aside Bitul b'Rov in this case as well.

(b) The Shitah Mekubetzes quotes a different explanation in the name of his teacher ("Mori"). He explains that the source for the principle of Bitul b'Rov is the verse, "Acharei Rabim l'Hatos" (Shemos 23:2). The verse teaches that we follow the majority to decide the law, and, similarly, in a case of a mixture, we say that the majority of permitted food annuls the minority of forbidden food. However, the verse is not referring to cases in which the determination of the majority is not actual mass but rather appearance or taste (such as in our Mishnah and the case later regarding Mikvah, and Reish Lakish's case where the two components are both Asur). Since the Gemara is dealing with these atypical, it inquires why we need to follow the rule of Bitul b'Rov in these cases as well. This explanation is given by the MEROMEI SADEH as well.

(c) The Shitah Mekubetzes suggests a third explanation. The verse of "Acharei Rabim l'Hatos" is telling us that Bitul b'Rov changes the status of the minority to that of the Rov. For example, in a mixture of pieces of meat, where most are permitted and some are forbidden, all of the meat may be eaten, because we say that the forbidden meat becomes permitted meat. However, Kodshim are different. Even if one container of Kodshim blood was mixed with two containers of ordinary blood, it is logical to say that if the blood from every container was sprinkled on the Mizbe'ach, then owner of the Korban achieved his atonement, because the blood from his Korban was certainly sprinkled on the Mizbe'ach. This blood of Kodshim never acquires the status of ordinary blood. The Gemara, therefore, is asking that the law with regard to Kodshim does not have to be the same as the law of other Isurim. (Y. Montrose)