1) "EVER MIN HA'CHAI" OF A BIRD
QUESTION: The Tana'im disagree about whether the Isur of Ever Min ha'Chai applies to the limb of a non-Kosher species of animal, or only to the limb of a Kosher species. Rav Gidal says that the Tana'im disagree only about the Isur as it applies to a Jew. They all agree that a Nochri is forbidden to eat the Ever Min ha'Chai of a non-Kosher species. Rav Shizbi cites support for Rav Gidal's assertion from the Mishnah in Taharos (1:3) which says that one who eats Ever Min ha'Chai of a non-Kosher species of bird is not punished with Malkus, and Shechitah does not permit the bird. The Gemara explains that the Mishnah there must be referring to a Nochri (since it is obvious that Shechitah will not permit a Tamei bird to a Jew). The Mishnah is teaching that a Nochri may not eat a bird after it has been slaughtered while it is still twitching, presumably because it is considered Ever Min ha'Chai. The Mishnah shows that an Ever Min ha'Chai of a non-Kosher bird is forbidden to a Nochri.
The RAMBAM (Hilchos Melachim 9:10-11), however, rules that "a Nochri is liable for eating even the smallest amount of Ever Min ha'Chai... but it seems to me that a Nochri is not liable for eating the Ever Min ha'Chai of a bird." The Rambam's ruling apparently contradicts the Gemara here, which concludes that a Nochri is not permitted to eat the Ever Min ha'Chai of a bird.
(a) The RA'AVAD writes that there apparently is a printing error in the text of the Rambam. The Rambam's text should read that a Nochri is not liable for eating the Ever Min ha'Chai of a Sheretz.
The RADVAZ disagrees with the Ra'avad's emendation of the text of the Rambam. The Rambam writes, "v'Yir'eh Li" -- "it seems to me." This wording is not appropriate if the Rambam is discussing the Ever Min ha'Chai of a Sheretz, because the law that an Ever Min ha'Chai of a Sheretz is not prohibited to a Nochri is written explicitly in a number of places.
(b) The Radvaz explains that the Rambam agrees that a Nochri is prohibited from eating the Ever Min ha'Chai of a bird. He means only that a Nochri is not Chayav Misah, punished with death, for eating it. (Even though the transgression of every Mitzvah that a Nochri has is punishable with Misah (Sanhedrin 57a), this does not apply to the Isur of Ever Min ha'Chai of a bird, since that Isur is not written explicitly in the Torah.) (Z. Wainstein)
2) THE STATUS OF "EVER MIN HA'CHAI" AS A "BIRYAH"
QUESTION: Rav (102a) says that in order to transgress the Isur of eating Ever Min ha'Chai, one must eat at least the amount of a k'Zayis. The Gemara asks that Rav taught elsewhere that one who eats a live Kosher bird is Chayav for Ever Min ha'Chai, regardless of how small it is, while one is Chayav for eating a dead bird (Neveilah) only when he eats a k'Zayis. This seems to contradict Rav's teaching that one must eat a k'Zayis in order to transgress the Isur of Ever Min ha'Chai.
The Gemara answers that when Rav says that one is Chayav for eating a live bird of any size, he means that the flesh may be any size (even less than a k'Zayis). The bird, however, is indeed a k'Zayis with regard to Ever Min ha'Chai, since its bones and sinews are included in the measurement.
RASHI (DH b'Misasah) explains that in the case of most forbidden foods, one is not Chayav until he eats a k'Zayis. The Torah uses a form of the word "Achilah" with regard to each Isur, and "Achilah" ("eating") is defined as eating at least a k'Zayis. The only Isur for which one is punished for eating less than a k'Zayis is the Isur of Ever Min ha'Chai. The Torah includes even an Ever Min ha'Chai that is less than a k'Zayis in the Isur for which one is Chayav.
However, Rashi in his following comment (DH Teme'ah) explains that the reason why one is Chayav for eating any amount of a non-Kosher species of bird, whether it is alive or dead, is that it is considered a "Biryah," an independent entity that is significant in itself. Why does Rashi not give this reason for why one is Chayav for eating any amount of an Ever Min ha'Chai?
Rashi apparently maintains that only an independent entity that is presently alive, or at one time was alive, can be considered a Biryah. An Ever Min ha'Chai was never an independent, living creature, and thus it cannot be considered a Biryah (just as the Chelev of an animal is not considered a Biryah). (See Insights to Chulin 96:2
Rashi explains, therefore, that the reason why one is punished for eating less than a k'Zayis of Ever Min ha'Chai is that the Torah specifically includes such an amount in the Isur (by repeating the Isur of Ever Min ha'Chai in two different verses (Shemos 22:30, Devarim 12:23), as the Gemara later points out). Although Ever Min ha'Chai is called a Biryah with regard to the Halachah d'Rabanan that a Biryah is not Batel, the Torah does not consider it a Biryah with regard to punishing one who eats less than a k'Zayis of it. (M. KORNFELD)
3) THE STATUS OF FLESH REMOVED FROM A LIVE ANIMAL
QUESTION: Rebbi Yochanan states that the verse, "Do not eat meat that is torn (Tereifah) in the field" (Shemos 22:30), teaches that one is forbidden to eat flesh (and not just a limb) that was taken from a live animal, and that one is forbidden to eat the flesh of a Tereifah animal.
Rebbi Yochanan's statement is difficult to understand. A Tereifah is an animal that has some anatomical deficiency and will not survive for twelve months. How, then, can the Isur of eating the flesh from a live, healthy animal be derived from the verse that specifically refers to a Tereifah?
(a) TOSFOS (DH u'Vasar) explains that the Isur of eating flesh from a live animal is derived from the word "ba'Sadeh" -- "in the field" -- which implies that the flesh has left its place of origin (that is, it has become detached from the body of the animal). Accordingly, this Isur is not derived from the Isur of Tereifah mentioned in the verse.
(b) The RAMBAM (Hilchos Ma'achalos Asuros 4:10) writes that when one cuts flesh off of a live animal (of a Kosher species), the flesh is considered to be a Tereifah, and one who eats it receives Malkus because of the Isur of Tereifah. His reasoning is that this flesh came from an animal that was not slaughtered (and thus is not Kosher), and that did not die on its own (and thus is not Asur as Neveilah). There is no difference between whether a wild animal tore off the flesh or whether it was cut off with a knife, and there is no difference between whether the entire animal was cut up or only a part of it. Once the animal becomes "meat that is torn in the field," it is a Tereifah.
The CHIDUSHEI CHASAM SOFER writes that the Rambam understands the verse in the way that TARGUM ONKELUS translates it: "Do not eat flesh that is pulled off from a live animal." The Rambam, like Onkelus, understands that the verse is teaching that the flesh pulled off by a wild animal is Tereifah. Similarly, if the flesh was pulled off by other means (for example, a person cut it off with a knife), it also has the status of a Tereifah (the Torah is merely describing the most common scenario). The Rambam elsewhere states this explicitly (Hilchos Ma'achalos Asuros 4:8, and Hilchos Shechitah 5:1).
Similarly, the Rambam (Hilchos Ma'achalos Asuros 4:17) writes that one who eats half of a k'Zayis of Neveilah and half of a k'Zayis of Tereifah receives Malkus because "a Tereifah is the beginning of the process that leads to Neveilah." This shows that Tereifah and Neveilah are considered a similar Isur (see Insights to Chulin 75:4
). The LECHEM MISHNEH
explains that the Rambam is consistent with his opinion that flesh from a live animal is Tereifah, as this is the beginning of the process of death. Just as Tereifah is the beginning of the process of Neveilah, flesh from a live animal is Tereifah because some of the life-force of the animal is removed when the flesh is cut off, in the same way that an animal that is a Tereifah lacks part of its life-force.
The AVNEI MILU'IM (Teshuvos, end of volume 4, DH Amnam Nosei, cited by TESHUVOS ACHIEZER 2:6:5) finds a source in the Torah for the similarity between Tereifah and Neveilah. The Sifri derives the Isur of Tereifah from the word "Kol" ("any") in the verse, "You shall not eat any Neveilah" (Devarim 14:21). That verse teaches that the Isur of Tereifah is an extension of the Isur of Neveilah. (D. BLOOM)