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Beitzah 026: The Bechor that has fallen into the pit
michael plaskow asked:
Is there ever a situation where the animal is NOT hoisted out of the
pit? Is so, where does "Tsaar Baalai Chayyim" apply? I am aware of
R'Yehoshua's ruling re "Oso v'es b'no" on 37a. That was a subterfuge
in order to avoid leaving both animals in the pit.
michael plaskow, netanya, Israel
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The Kollel replies:
Indeed the Mishnah at the end of 25b gives a situation where the
animal is not hoisted out of the pit. According to R. Yehudah, if
there is no blemish ("Mum") one does not lift it out, whilst
according to R. Shimon, even if there is a Mum, one only pulls it out
if the Mum was recognizable before Yom Tov.
The Gemara on 26a says that one might have thought that because of
"Tza'ar Ba'alei Chayim" one could have done a trick ("Ha'arama") and
pulled the Bechor out of the pit. RASHI DH LA'ARIM writes that the
Ha'arama is to say that one will surely find a Mum when it is hoisted
out. YISSA BERACHAH writes that then even if one did not a Mum
nevertheless it was justified to take it from the pit because this
did at least save the animal from pain.
This is all the "Salka Da'atach " ("what one might have thought") of
the Gemara. However, the conclusion is that one may not remove the
animal from the pit because Tsaar Ba'alei Chayim does not justify this.
It seems to me that the reason Tza'ar Ba'alei Chayim does not justify
pulling it out of the pit is because there are alternative ways of
preventing pain to the animal. The Gemara in Shabbos 128b states that
if an animal fell into a water canal, if possible, one should place
food next to it to sustain it. If this is not possible because the
water is too deep, one may place soft cushions under the animal to
relieve its discomfort. Even though this renders the cushions
unusable ("Mevatel Kli me'Hechano") which is usually forbidden to do
on Shabbos, nevertheless Tza'ar Ba'alei Chayim, which is a d'Oraisa
prohibition (see Rambam in his Commentary to the Mishnah, Beitzah
25b), waives aside Mevatel Kli me'Hechano. If it is not possible to
place cushions underneath, Mishnah Berurah 305:70 cites a dispute
amongst the authorities whether one may pull the animal out by hand.
Some are lenient and maintain that since Tza'ar Ba'alei Chayim is
d'Oraisa this removes the d'Rabanan prohibition that an animal is Muktzah.
Therefore Tza'ar Ba'alei Chayim does justify waiving aside Mevatel
Kli me'Hechano if the animal cannot be fed where it is. And if the
cushions also cannot be used, some hold this justifies even removing
the animal from the pit by hand.
I found another interesting interpretation which applies the
principle of Tza'ar Ba'alei Chayim This is in Rambam's Commentary on
the Mishnah here. Rambam writes that the reason R. Yehudah in the
Mishnah (25b) permits the Bechor to be lifted out of the pit if it
possesses a blemish is because of Tza'ar Ba'alei Chayim - the pretext
of slaughtering the Bechor is a way of permitting us to get it out of
the pit to release it from it's pain there.
(Incidentally this explanation of Rambam's appears to be a proof for
what TESHUVAS NODA BE'YEHUDAH YD 2:10 DH VE'OMNAM writes, that to
kill an animal does not constitute Tza'ar Ba'alei Chayim. He proves
this from Chulin 7b which states that removing the hooves of an
animal is forbidden because of Tza'ar Ba'alei Chayim whilst killing
it is only forbidden because of Bal Tashchis - see INSIGHTS there 7b (2) .)
Even though the "Mum" was a temporary Mum before Yom Tov and only
became a permanent Mum on Yom Tov, nevertheless according to R.
Yehudah one may take it out of the pit because
(1) R. Yehudah maintains that one may examine blemishes on Yom Tov and
(2) even though the animal is Muktzah, because it only possessed a
temporary Mum before Yom Tov, nevertheless the prohibition of Muktzah
is waived aside because of Tza'ar Ba'alei Chayim.
However, if the Bechor is already out of the pit, one may not
slaughter it. This is because Tza'ar Ba'alei Chayim no longer applies
since it is not now suffering in the pit. Therefore the prohibition
of Muktzah can no longer be waived aside even if the Mum is now permanent.
(It seems that Rambam does not agree with what RASHI 26a DH IM writes
that the Bechor may only be slaughtered if the expert determines that
the Mum was permanent before Yom Tov because otherwise the animal is
Muktzah. Rather, according to Rambam, even if the Mum was only
temporary before Yom Tov and the Bechor was indeed Muktzah,
nevertheless the prohibition of Tza'ar Ba'alei Chayim waives aside
Muktzah. See MEROMEI SADEH by the NETZIV of VOLOZHIN 26a DH VE'ROYUI
who calls this a beautiful explanation.)
KOL TUV
D. Bloom
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