1) IF THE OWNER OR ONE WITNESS TESTIFIES ABOUT A KILLER OX

OPINIONS: The Mishnah states that when an ox that was been sentenced to Sekilah for killing a person becomes mixed up with animals designated as Korbanos, all of the animals in the mixture must be put to death. However, if only one witness, or the owner himself, saw the animal kill a person, all of the animals in the mixture must be put out to pasture until they become blemished, and then they are sold. For each animal which was designated as a Korban, one animal must be brought as a Korban with the money from the sale. Each Korban purchased should be as valuable as the most valuable animal of the lot.

What is the reason why the owner of an ox or a single witness do not render the animal Chayav Misah?

(a) RASHI (71a, DH Nis'arvu) writes that the animal is exempt from Sekilah because of the rule of "Modeh b'Kenas Patur," a person's admission absolves him from the obligation to pay a Kenas.

TOSFOS (DH Al Pi) questions Rashi's explanation from the Gemara in Sanhedrin (10a). The Gemara there teaches that if Reuven testifies with another witness that Shimon was Rove'a Reuven's ox, both Shimon and the ox Chayav Misah. Why does the Gemara in that case not apply the rule of "Modeh b'Kenas Patur" and exempt the ox from Misah? (See the TZON KODASHIM, who writes that the text of Rashi should read, "It is like 'Modeh b'Kenas Patur.'")

(b) TOSFOS explains that a Gezeiras ha'Kasuv teaches that the ox is not put to death. The Gemara in Temurah (29a) explains that since the Torah needed to teach that an ox which kills (or is Nirva) in front of one witness may not be brought as a Korban, it must be that it may be eaten by an ordinary person. The Gemara there clearly states that the ox in such a case is not put to death.

The YAD BINYAMIN, however, quotes the MAHARSHAL, who has difficulty with Tosfos' proof from the Gemara in Temurah. The Gemara in Temurah discusses only a case of an ox which kills (or is Nirva) in front of one witness. Why does Tosfos extend the Gemara's ruling to a case in which the owner saw the act? Perhaps in that case the common principle of "Hoda'as Ba'al Din k'Me'ah Edim Dami" applies, as it applies in all monetary cases. This principle states that the admission of the defendant is tantamount to testimony of a hundred witnesses.

(c) The SHITAH MEKUBETZES challenges Rashi's explanation from a different angle. He asserts that nowhere does the Gemara refer to the death of an ox as a Kenas, a penalty. Why, then, is the ox not killed based on the testimony of the owner? The Shitah Mekubetzes explains that it is not killed because of the principle of "Adam Karov Etzel Mamono" -- "a person is a considered a relative with regard to his own money." The Shitah Mekubetzes anticipates the obvious question: If this is the reason why the ox is not killed based on its owner's testimony, then why does the Gemara in Sanhedrin say that if Reuven testifies with another witness that Shimon was Rove'a his ox, both Shimon and the ox are killed? Since the owner is "Karov Etzel Mamono," his testimony should not be accepted!

The Shitah Mekubetzes answers that the principle of "Adam Karov Etzel Mamono" does not apply in a case in which Beis Din would have to apply the concept of "Palginan Dibura" -- "we split his words." This means that when the owner testifies about something else (Shimon's transgression) for which his testimony is acceptable, and according to that testimony the ox should also be killed, the principle of "Adam Karov Etzel Mamono" does not apply. (Y. MONTROSE)

71b----------------------------------------71b

2) REDEEMING ANIMALS THAT ARE "SAFEK TEREIFAH"

QUESTION: The Mishnah states that if a Tereifah becomes mixed up with animals designated as Korbanos, all of the animals in the mixture must be put out to pasture until they become blemished, and then they are sold. For each animal which was designated as a Korban, one animal must be brought as a Korban with the money from the sale. Each Korban purchased should be as valuable as the most valuable animal of the lot.

The Gemara later (74b) asks, how can a Tereifah animal become mixed up, unidentifiably, with other animals? A Tereifah has an obvious sign of mortality, and thus it should be identifiable among other animals which are not Tereifos!

The Gemara quotes three opinions about the unrecognizable Tereifah of the Mishnah. Rebbi Yirmeyah says that the Mishnah's case is according to the view of Rebbi Eliezer, who maintains that the offspring of a Tereifah also has the status of a Tereifah.

Rebbi Yanai says that an animal which was punctured by a wolf and is a Tereifah became mixed with animals which were punctured by thorns and are not Tereifos. The puncture wounds look the same.

Reish Lakish says that the animal is a "Nefulah," an animal which suffered a fall, which is a Safek Tereifah and may not be offered as a Korban.

TOSFOS (DH uv'Tereifah) quotes RABEINU EFRAIM who questions the opinion of Rebbi Yirmeyah. The advantage of being able to redeem these animals is that the animals may be sold and become ordinary Chulin animals, instead of having to be left to die (as in the first case of the Mishnah). How, though, can these animals become ordinary Chulin animals? Since they are Safek Tereifos, they cannot be eaten anyway. The Mishnah cannot be teaching that the animals may be sold as food for Nochrim or for dogs, because there is a rule that Kodshim may not be redeemed for the sole purpose of feeding it to Nochrim or to dogs. Similarly, these animals may not be used for their shearings or any other product that they produce while alive, because Pesulei ha'Mukdashim are forbidden from being used for work or for their shearings.

Tosfos points out that this is not a question on the opinions of Safek Nefulah and Derusah (from a wolf), since there is a test which can be done after Shechitah to determine whether or not the animal is a Tereifah. (This is true according to the view of Tosfos; RASHI in Chulin 53b disagrees in the case of Derusah. See Tosfos to Chulin 53b, DH Derusah.) If the test shows that the animal is not a Tereifah, then it may be eaten. However, according to Rebbi Yirmeyah, who explains that the Mishnah refers to the offspring of a Tereifah, and there is no test which can permit the offspring of a Tereifah, why does the Mishnah say that the animals may be redeemed?

ANSWERS:

(a) TOSFOS answers that Rebbi Yirmeyah may follow the opinion recorded in Bechoros (15b), that one indeed may redeem Kodshim in order to feed it to dogs.

(b) Alternatively, Tosfos answers that the only situation in which one may not redeem Kodshim in order to feed it to dogs is where there is an intrinsic problem with the Kodshim. For example, it died without Shechitah, or it became a Tereifah. In contrast, where the animal of Kodshim itself is fine and the only reason why it cannot be offered as a Korban is because a Tereifah Chulin animal became mixed among the animals, one may redeem the Kodshim to feed it to dogs. Tosfos explains that this is based on a Gezeiras ha'Kasuv of "v'Achalta" -- "and you will eat" (Devarim 12:15), from which the Gemara in Bechoros (15a) derives "v'Achalta, v'Lo l'Kelavecha" -- "and you will eat, but not [give it] to your dogs."

The KEREISI U'PLEISI (57) asks, why are the other two opinions of the Gemara (cited by Tosfos) not problematic? If the question is only one of Safek Tereifah according to the opinions that the animal was a Nefulah or Derusah, all of the animals should simply be kept for twelve months, at which time any animal still alive will be declared not a Tereifah (since it did not die within twelve months)! Although the Gemara does not permit a definite Tereifah using this method, it does permit a Safek Derusah if it lives twelve months, according to the opinion "Tereifah Einah Chayah" -- "a Tereifah does not live [twelve months from the time it became a Tereifah]." The fact that the animal lived for twelve months proves that it was not a Tereifah.

The Kereisi u'Pleisi answers that Tosfos understands that once the other animals are forbidden due to the Safek Tereifah in their midst, the rule of "Ba'alei Chayim Nidachim" ("animals are pushed aside [from being used as a Korban]") applies, rendering them unfit to be offered as Korbanos (see 73b). (Y. MONTROSE)

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