1) "TZIPOR DROR"
QUESTION: Rabah bar Rav Huna explains that the Mishnah in Shabbos (106a) which forbids trapping a bird even when it is already in an enclosed area (such as a house) refers to a "Tzipor Dror." RASHI (DH b'Tzipor Dror) explains that the reason why the bird is not considered already captured while it is in the house is because it flies from one corner of the house to the other and escapes one's attempt to capture it.
Rashi earlier (DH Chayav), however, explains that the bird mentioned in the Mishnah is not considered captured because it escapes through the windows, and not because it flees from corner to corner. Why does Rashi give a different explanation for why the bird is not considered captured while it is in the house?
(Rashi in Eruvin (40a) also gives two different explanations, one in his commentary on the Mishnah there in which he explains that the bird escapes through the windows, and a different one in the Gemara's conclusion in which he explains that the bird escapes by fleeing from one corner of the house to another.)
ANSWER: The Gemara initially suggests that the difference between the state of being captured and the state of being free depends on the type of enclosure in which the bird is found. If it is roofed, the bird is considered captured. If it is not roofed, the bird is not considered captured. If the Gemara, in this initial stage, means that the bird is able to avoid capture by fleeing from one corner to the other, then it does not matter whether the enclosure is roofed or not; the bird can always escape. It must be that the Gemara at this stage refers to an ordinary bird that can escape only through open parts of the house (and not by fleeing from one corner to another). Therefore, if the enclosure is roofed (and the windows closed -- see Chart, footnote 3), the bird cannot escape.
The Gemara concludes that a bird is not considered captured even in a roofed enclosure when the bird is a Tzipor Dror. Why is the bird not considered captured if it cannot escape the enclosure? It must be that the bird escapes by fleeing from corner to corner and not by flying away through the windows. Accordingly, a Tzipor Dror is the only bird that is not considered captured in such a situation. (See also Insights to Shabbos 106:2.)
2) HALACHAH: A FRUIT PICKED ON THE FIRST DAY OF YOM TOV
QUESTIONS: The Gemara concludes that an animal that was captured by a Nochri on the first day of Yom Tov may be eaten by a Jew on the second day of Yom Tov. The same ruling applies to fruit that was picked by a Nochri on Yom Tov.
Two issues need clarification.
(a) The animal or fruit is permitted on the second day of Yom Tov because the two days of Yom Tov (outside of Eretz Yisrael) are considered two separate Kedushos. Hence, on the second day of Yom Tov a Jew certainly may benefit from the results of a Melachah performed by a Nochri on the first day of Yom Tov. What is the reason, though, for the prohibition against eating the animal or fruit even on the first day of Yom Tov?
(b) Normally, a Jew may not benefit from a Melachah done by a Nochri for a Jew on Shabbos until enough time has passed after Shabbos for the Jew to have done the Melachah himself (Shabbos 18b). This is called "bi'Chedei she'Ya'asu." The Gemara here teaches that a similar requirement applies to a Melachah done by a Nochri on Yom Tov. The Gemara states that if one has reason to suspect that a Nochri picked fruit on Yom Tov for a Jew to eat, that fruit is forbidden for Jewish consumption for the entire day. It is also forbidden after the day ends until enough time to prepare the fruit has passed. (The SHULCHAN ARUCH (OC 515:1) defines this "preparation time" as the time it takes to pick the fruit, plus the time it takes for the Nochri to transport the fruit from the place of harvest to the home of the Jew by whatever means of transport he actually used on Yom Tov.)
In the case of two days of Yom Tov, though, how does the requirement of "bi'Chedei she'Ya'asu" apply? May a Jew benefit from Melachah done on the first day of Yom Tov after the first day of Yom Tov ends (after "bi'Chedei she'Ya'asu" passes), or must he wait "bi'Chedei she'Ya'asu" after the end of the second day of Yom Tov? If he must wait "bi'Chedei she'Ya'asu" after the second day, then why did the Amora'im permit one to eat the animal or fruit on the second day of Yom Tov?
(a) There are two reasons for why a Jew must wait until after Yom Tov to eat a fruit picked by a Nochri on Yom Tov.
1. Since the fruit was attached to the tree when Yom Tov began and was thus inaccessible, it is Muktzah. It remains Muktzah even after a Nochri picks it, and thus it is prohibited to a Jew.
This reason also applies to the meat of an animal that was captured by a Nochri on Yom Tov.
2. The enactment of "Peiros ha'Noshrim" prohibits the use of any fruit that falls from a tree on Shabbos or Yom Tov. The Rabanan enacted this decree out of concern that one might pick fruit directly from a tree on Shabbos or Yom Tov.
(b) Two different approaches are suggested by the Rishonim to explain the requirement of "bi'Chedei she'Ya'asu." The question of whether the requirement of "bi'Chedei she'Ya'asu" applies only after the first day of Yom Tov or even after the second day depends on these two approaches.
1. RASHI (DH ul'Erev), the 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 Nochri. One who eats this fruit immediately after Yom Tov benefits from the Melachah performed by the Nochri on Yom Tov. When one waits for enough time to pass after Yom Tov before he eats the fruit, he no longer benefits from Melachah done on Yom Tov since he could have prepared the fruit himself after Yom Tov.
This reasoning leads to a leniency and a stringency. Fruit picked on the first day of Yom Tov (outside of Eretz Yisrael) may be eaten that night (after one waits "bi'Chedei she'Ya'asu"). The logic behind this leniency is as follows. If the first day is actually Yom Tov, then the fruit is permitted that evening (which is no longer Yom Tov) just as it is permitted after the end of any Yom Tov. If the second day is Yom Tov, then the fruit that was picked on the first day was picked on a weekday and is therefore permitted.
The stringency, according to this reasoning, is that there is no distinction between fruit picked for a Nochri or for a Jew. No Jew may benefit from any Melachah done on Yom Tov.
2. The BEHAG (cited by Rashi), TOSFOS, and others explain that the Rabanan instituted that one must wait "bi'Chedei she'Ya'asu" after Yom Tov as a penalty to discourage people from telling Nochrim to do Melachah for them on Yom Tov.
This reasoning leads to the opposite stringency and leniency. According to the Behag and Tosfos, one must wait "bi'Chedei she'Ya'asu" during a time when he is permitted to do such Melachah. Therefore, fruit picked by a Nochri on the first day of Yom Tov is forbidden until "bi'Chedei she'Ya'asu" passes after the end of the second day of Yom Tov. On the other hand, the requirement to wait after Yom Tov applies only to fruit that the Nochri picked for a Jew. Fruit picked by a Nochri for his own consumption may be eaten by a Jew immediately after Yom Tov.
The ROSH (Beitzah 3:2) is even more lenient in this regard. Since the objective of "bi'Chedei she'Ya'asu" is to discourage a Jew from instructing a Nochri to do Melachah for him in the future, there is no concern that a Jew will instruct a Nochri to do Melachah for the sole benefit of another Jew. Therefore, even if the fruit was picked for a Jew, the Rosh permits another Jew to eat the fruit immediately after Yom Tov (with the exception of the Jew for whom it was picked and his family).
(Of course, on the day it was picked, no Jew may eat the fruit because it is Muktzah, as explained above.)
How to define to whom the Rabanan applied the requirement of "bi'Chedei she'Ya'asu" also depends on these different ways of understanding. According to Rashi, no Jew may benefit from any Melachah until after "bi'Chedei she'Ya'asu." According to the Behag and Tosfos, "bi'Chedei she'Ya'asu" applies only to a Melachah done for a Jew. According to the Rosh, "bi'Chedei she'Ya'asu" applies only to the specific Jew for whom the Melachah was done.
According to the Behag and Tosfos, who require one to wait "bi'Chedei she'Ya'asu" after the end of the second day of Yom Tov, there are two possible explanations for why the Amora'im permitted one to eat the animal on the second day of Yom Tov. They permitted it either because the animal was hunted by a Nochri specifically for Nochrim, or (according to the Rosh) because it was hunted for other Jews and not for them.
HALACHAH: The SHULCHAN ARUCH (OC 515:1) rules in accordance with Rashi that no one may eat fruit picked by a Nochri on Yom Tov until the preparation time has passed at the end of that day. It may be eaten, even by the person for whom it was picked, after "bi'Chedei she'Ya'asu" has passed after the end of the first day of Yom Tov. However, the REMA says that common practice is to follow the stringent opinion of the Behag and Tosfos and not permit the fruit to any Jew until after the preparation time has passed on Motza'i Yom Tov Sheni.
One may not rely on the ruling of the Rosh, who allows the fruit to be eaten immediately after the first day of Yom Tov by a Jew other than the one for whom it was picked, except when it is necessary for the honor of Yom Tov or for Hachnasas Orchim (the fruit is needed for guests on Yom Tov; see MISHNAH BERURAH (OC 515:12) who discusses exactly when this leniency applies).
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 he waits the preparation time at the conclusion of the first day of Yom Tov, as Rashi rules). 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.