1) A "BECHOR" THAT FELL INTO A PIT ON YOM TOV
QUESTIONS: In the Mishnah, Rebbi Yehudah states that if a Bechor which had an unexamined blemish (Mum) on Erev Yom Tov falls into a pit on Yom Tov, the owner may not lift it out of the pit without first having an expert (Mumcheh) examine the blemish. If the Mumcheh determines that the Mum is a Mum Kavu'a (permanent blemish), then the owner may lift the animal out of the pit and slaughter it on Yom Tov. If the Mum is not a Mum Kavu'a but a Mum Over (temporary blemish), then the animal must be left in the pit until after Yom Tov.
The Gemara explains that if Rebbi Yehudah's sole intent would be to teach that a Mumcheh may examine a Mum on Yom Tov, then he would not need to discuss a case of a Bechor that fell into a pit. Rather, Rebbi Yehudah's intent is to teach an additional law: when a Bechor falls into a pit, one is not permitted to lift it out in order to prevent it from suffering ("Tza'ar Ba'alei Chayim") until he determines that the Bechor has a Mum Kavu'a.
The Gemara asks that if this is Rebbi Yehudah's intent, then why does he say, "Im Lo, Lo Yishchot" -- "If [it does] not [have a Mum Kavu'a], then he may not slaughter it"? He should say instead, "Im Lo, Lo Ya'aleh" -- "If not, then he may not lift it out." The Gemara answers that Rebbi Yehudah means to say that if one already lifted the animal out of the pit (unlawfully), and then on Yom Tov the Mum became a Mum Kavu'a, he still may not slaughter it.
RASHI (DH Ka Mashma Lan) gives two reasons for why he may not slaughter the animal. He may not slaughter it either because it is Muktzah (since it did not have a Mum Kavu'a before Yom Tov), or because he is penalized for transgressing the prohibition against raising it out of the pit before the Mumcheh examined the Mum.
There are several difficulties with Rashi's explanation.
(a) According to the first reason which Rashi writes, the Chidush of Rebbi Yehudah in the Mishnah is that the owner may not slaughter the Bechor because it is Muktzah. One might have thought that it is not Muktzah because it had a Mum Over before Yom Tov, and thus when it develops a Mum Kavu'a on Yom Tov the owner may slaughter it. Hence, Rebbi Yehudah needs to teach that it is Muktzah.
Why would one have thought that the animal is not Muktzah? Just because it had a Mum Over before Yom Tov does not mean that the owner had intention to use it. On the contrary, a Mum Over does not permit the owner to use a Bechor. Since it is obvious that the Bechor is Muktzah when it gets a Mum Kavu'a on Yom Tov, what is Rebbi Yehudah teaching?
(b) Even if there is some reason for why one would have thought that a Bechor without a Mum Kavu'a is not Muktzah, why does Rebbi Yehudah teach that it is Muktzah in such an unusual case (when the owner transgressed the decree of the Chachamim and lifted the animal out of the pit)? Rebbi Yehudah could have taught the same Chidush -- that the Bechor is Muktzah -- in the case of an animal that is still in the pit. Whether or not the animal is Muktzah is unrelated to the fact that it was lifted out of the pit without first being examined by a Mumcheh.
(c) According to Rashi's second explanation, that the owner is penalized because he lifted the animal out of the pit before he showed it to a Mumcheh, why does the Gemara need to say that it had a Mum Over before Yom Tov began? Even if it had a Mum Kavu'a before Yom Tov, he should be penalized because he lifted it out before he had a Mumcheh examine it. Why does Rebbi Yehudah say that "if [it does] not [have a Mum Kavu'a], he may not slaughter it"? Even if it had a Mum Kavu'a he may not slaughter it because he lifted it out before a Mumcheh examined it.
(a) There are several reasons for why one might have thought that the Bechor is not Muktzah when it had a Mum Over before Yom Tov.
The most simple reason for why one might have thought that the Bechor is not Muktzah is because it is common for a Mum Over to develop into a Mum Kavu'a. Accordingly, the owner expected that his animal's Mum would become a Mum Kavu'a on Yom Tov, and thus before Yom Tov he had in mind to use the animal on Yom Tov. (This is similar to the case of a mortally-ill animal ("Mesukenes"), which a person has in mind, before Shabbos, to feed to his dogs if it eventually dies on Shabbos (Beitzah 27b). According to some Rishonim, even Rebbi Yehudah agrees that such an animal is not Muktzah; see Insights to Beitzah 27:2
.) Therefore, the Mishnah teaches that the Bechor nevertheless is Muktzah. (This seems to be the intention of the RE'AH
2. Alternatively, one might have thought that even though the blemish was a Mum Over before Yom Tov, since the owner does not know the difference between a Mum Over and a Mum Kavu'a he thought that it was a Mum Kavu'a before Yom Tov, and he intended to use the animal on Yom Tov. Consequently, when it indeed becomes a Mum Kavu'a on Yom Tov, one might think that it is not Muktzah. Therefore, Rebbi Yehudah teaches that it is Muktzah, because the Muktzah-status of the animal does not depend on the owner's intention, but rather on what type of Mum it actually had. (This is similar to the case on 27b of fruit which one laid out to dry before Yom Tov, which he thought was inedible at the time Yom Tov entered but in reality was ready to be eaten. In that case, too, the status of the fruit depends on the reality and not on what the owner thought.) (CHIDUSHEI HA'ME'IRI, DH Iy Hachi)
3. The TZELACH suggests a third answer. One might have thought that although the animal is Muktzah at the onset of Yom Tov, the Mum Kavu'a which develops on Yom Tov removes the animal's status of Muktzah. How does this work?
In the Gemara earlier (6a), Shmuel teaches that a chick that hatches on Yom Tov is not Muktzah -- "since it is now permitted to be eaten by being slaughtered, its prohibition of Muktzah also becomes permitted." Similarly, when a Bechor develops a Mum Kavu'a on Yom Tov, since it becomes permitted to be slaughtered (and is no longer forbidden as a Bechor), it also becomes removed from its status of Muktzah. Accordingly, this explanation of Rashi (that Rebbi Yehudah teaches that the Bechor nevertheless remains Muktzah) follows the opinion of Rav (6a) who argues with Shmuel and maintains that the status of Muktzah cannot be removed simply because some other prohibition was removed from the object. (However, according to this explanation it is not clear why the animal is permitted only if it had a Mum Over before Yom Tov.)
(b) In response to the second question, the RE'AH says that the Gemara asks only that the Mishnah should have said "Im Lo, Lo Ya'aleh" because it thought that this line in the Mishnah simply serves to contrast the first line and does not teach its own Chidush (and thus as a contrast to the first line it makes sense that it uses a parallel phraseology). Once the Gemara answers that this line teaches an additional Chidush (that is, the animal is Muktzah, and one should not think that it is not Muktzah because it had a Mum Over before Yom Tov), the Gemara is no longer bothered by the lack of parallelism in the wording of the Mishnah. Since this line of the Mishnah teaches that the animal is Muktzah and therefore may not be slaughtered, it is unrelated to the law taught in the first part of the Mishnah. The Mishnah says "Im Lo, Lo Yishchot" in order to teach that aside from the prohibition of lifting up the animal before the Mumcheh declares its Mum to be a Mum Kavu'a, there is a second prohibition -- that of Muktzah (when it had a Mum Over prior to Yom Tov). Therefore, when the Gemara says that "he already took the animal out of the pit," it means merely that the animal may not be slaughtered regardless of whether or not he removes the animal from the pit without first asking a Mumcheh to examine it.
In fact, the CHIDUSHEI HA'ME'IRI goes so far as to say that the Gemara retracts what it said before and no longer maintains that the Mishnah is discussing a case in which the owner transgressed and lifted the animal out of the pit. Now that the phrase "Lo Yishchot" teaches a separate Chidush, there is no need to say that it refers to a case in which the owner unlawfully lifted the animal out of the pit (and even if the Mumcheh went down into the pit and found that yesterday's Mum Over turned into a Mum Kavu'a today, the animal may not be slaughtered because it is Muktzah).
(c) According to Rashi's second explanation, why does the Gemara need to say that the Bechor had a Mum Over before Yom Tov began? The penalty which disallows the owner from slaughtering the animal on Yom Tov should apply even when the Bechor had a Mum Kavu'a before Yom Tov.
Perhaps the answer is as follows. According to Rashi, the reason why Rebbi Shimon prohibits a Mumcheh from examining a Mum on Yom Tov is because it is akin to issuing a judgment (Din) on Yom Tov, which is prohibited (36b). In contrast, one may show an animal to a Chacham to determine whether it is a Tereifah because the Chacham's ruling is not considered a judgment but rather a "Giluy Milsa," a clarification of what already exists. Rebbi Yehudah, who permits a Mumcheh to examine the Mum of a Bechor on Yom Tov, maintains that the Mumcheh's decision about the Mum is also merely a "Giluy Milsa" which clarifies whether the animal has a Mum Kavu'a or not. The Mumcheh is not issuing a Halachic judgment per se (as the Gemara says on 27a).
Accordingly, when the owner lifts the animal out of the pit before a Mumcheh examines it, if the Mumcheh later examines it and says that it had a Mum Kavu'a from before Yom Tov, his words are only a "Giluy Milsa" as to what always existed. For all practical purposes we assume that it had a Mum Kavu'a before Yom Tov. As a result, retroactively the owner did nothing wrong by lifting out the animal, because it turned out that it always had a Mum Kavu'a. Therefore, the owner deserves no penalty. However, if the Mumcheh says that it had a Mum Over before Yom Tov and only on Yom Tov did the Mum become a Mum Kavu'a, then it becomes evident that the owner committed a wrongful act when he lifted the animal out of the pit, and thus he is penalized and may not slaughter it even though it now has a Mum Kavu'a.
Perhaps the reason why Rashi gives his first reason for why the animal may not be slaughtered (because it is Muktzah) is because he is bothered by this question on the second reason, and he maintains that the proposed answer is unlikely. Even if the Mumcheh says that the animal always had a Mum Kavu'a and thus the owner retroactively did nothing wrong by taking the animal out of the pit, the owner should still be penalized since he did not know that the animal had a Mum Kavu'a at the moment he lifted it out of the pit, and at that moment he acted improperly. For this reason, Rashi explains that the reason the animal is prohibited is because it is Muktzah, even though this reason presents a different difficulty. (That difficulty is how the Gemara understands the opinion of Rebbi Yehudah ha'Nasi cited next in the Gemara, who uses the same words as Rebbi Yehudah in the Mishnah ("Lo Yishchot") but yet maintains that there is no prohibition of Muktzah. Rashi (DH v'Im Lav) goes to great lengths to explain that Beraisa according to his first reason for why Rebbi Yehudah in the Mishnah prohibits the Shechitah of the animal (because it is Muktzah).)
2) FIGS AND DATES LAID OUT TO DRY
QUESTION: The Gemara says that when a person lays out figs and dates to dry on his roof and they are not completely dry when Yom Tov enters, they are considered unfit for consumption and are Muktzah. Even if the person says that he intends to eat them on Yom Tov, such intent does not help because the fruits are intrinsically unfit to eat at this time. RASHI explains that the reason why one cannot prepare the fruit if it is not yet edible is because "he who maintains that there is a prohibition of Muktzah (Man d'Is Lei Muktzah) requires Hachanah the day before [Yom Tov]." (Rashi is consistent with his opinion earlier (2b) where he explains that "Hachanah" is a prohibition of Muktzah and not a separate prohibition. His source for this understanding is the She'iltos (#47) which he cites later in DH Mutar.)
Why does Rashi say that "he who maintains that there is a prohibition of Muktzah" (that is, Rebbi Yehudah) requires that an object be prepared for use before Yom Tov? The Gemara here discusses figs and dates which were laid on the roof to dry. Even Rebbi Shimon (who maintains that there is no general prohibition of Muktzah) agrees that figs and dates are Muktzah (Beitzah 40b, Shabbos 45b, and as the She'iltos quoted by Rashi clearly states).
(a) Perhaps Rashi is not reffering to a specific Tana, when he says, "he who maintains that there is a prohibition of Muktzah." Rather, he means that in the cases in which the prohibition of Muktzah applies, each Tana according to his own view, the prohibition of Muktzah is related to Hachanah. (M. KORNFELD)
(b) The Gemara at this point seeks a situation in which the figs and dates are Muktzah, but they may lose their status of Muktzah if their owner specifies that he intends to eat them. Rashi may maintain that if one can permit the Muktzah objects by specifying that he intends to eat them on Shabbos, Rebbi Shimon does not consider them to be Muktzah by default. Any object that can be eaten is not Muktzah according to Rebbi Shimon, because a person always considers the possibility that he might eat the object.
This is consistent with the words of the SHA'AR HA'MELECH (Hilchos Yom Tov 2:9). He proves from Rashi (4a, DH Hi v'Ima, and 34a, DH Omed Adam) that when figs and dates are "slightly edible" ("Ichzi v'Lo Ichzi") -- which is the case, according to the conclusion of the Gemara here, in which one may remove their status of Muktzah by stating before Shabbos that he intends to eat them on Shabbos -- Rebbi Shimon does not require Hachanah. It is only Rebbi Yehudah who requires that one specify that he plans to eat them on Shabbos in order for the status of Muktzah to be removed.