Hello kollel!
The mishna talks about children tying the tails on animals together and this being prohibited as causing an intentional mum in a bechor bc when they ran the tails would get pulled off.
My question is, why isn't this prohibited as Tzar balei chayim? Or is it just that the mishna is coming to prohibit the animal even after the tail as Knas, even though the action was already forbidden anyway as tzar?
Thank you!
Josh
Hello Josh,
Great question. You are right that tying animals' tails so they rip is already prohibited because of Tza'ar Ba'alei Chayim. Many Rishonim treat this as d'Oraisa, with the classic derivation from "Azov Ta'azov Imo" about relieving an animal's burden in Bava Metzia 32b, and see also Shabbos 128b, and Rambam, Hilchos Rotze'ach 13:13.
What the Mishnah in Bechoros 35a is doing is not re-listing every prohibition in the act. Its focus is on the Bechor status and the consequences when a Mum is caused intentionally. In other words, it teaches how a willfully-produced Mum affects whether the Bechor may be used and when a Kenas applies to the one who engineered it. That is a different axis than the baseline Isur of Tza'ar Ba'alei Chayim.
This also explains why the case is framed with Ketanim. Since Ketanim are not punishable, the Mishnah can isolate the animal's Halachic status after the injury without getting pulled into liability of the perpetrator. If an adult orchestrated the same thing, he would be transgressing Tza'ar Ba'alei Chayim in addition to creating a Mum in a Bechor, and the Kenas discussion in Bechoros would still address the Bechor ramifications.
I hope this helps,
Aharon Steiner