1) DOES "EVER MIN HA'CHAI" APPLY WHEN THE ANIMAL IS ALIVE?
QUESTION: The Gemara quotes a Beraisa in which Rebbi Shimon states that one who accidentally eats Neveilah on Yom Kippur is exempt. RASHI (DH Patur) explains that he is exempt from the obligation to bring a Korban Chatas for accidental desecration of Yom Kippur. If the animal was already a Neveilah before Yom Kippur, the prohibition of Kares for eating on Yom Kippur cannot apply to the pre-existing prohibition of Neveilah because of the principle of "Ein Isur Chal Al Isur" -- one Isur cannot take effect when there is already an Isur in effect.
Rashi adds that even if the animal became a Neveilah only on Yom Kippur itself, the animal still was forbidden by a pre-existing prohibition of Ever Min ha'Chai before Yom Kippur started. The prohibition against eating on Yom Kippur cannot take effect on the pre-existing prohibition of Ever Min ha'Chai.
The Gemara quotes this Beraisa in order to prove that Rebbi Shimon does not agree that an "Isur Kolel" overrides the rule of "Ein Isur Chal Al Isur." Rebbi Shimon maintains that an Isur cannot take effect on a pre-existing Isur even when the second Isur is an "Isur Kolel," which means that the second Isur includes more objects than the first. The prohibition against eating on Yom Kippur is an Isur Kolel, because the day before Yom Kippur only forbidden foods were prohibited, but upon the arrival of Yom Kippur a more inclusive prohibition takes effect which forbids all foods. From Rebbi Shimon's statement that one is not liable for transgressing the Isur against eating on Yom Kippur when he eats a Neveilah, it is evident that Rebbi Shimon disagrees with the concept of "Isur Kolel."
TOSFOS (DH ha'Ochel) questions Rashi's explanation of Rebbi Shimon. The Gemara in Chulin (103a) records an opinion that "Behemah b'Chayeha Lav l'Evarim Omedes," an animal during its lifetime is not designated to be cut up into limbs (and eaten), and thus the prohibition of Ever Min ha'Chai does not apply when the animal is still alive. Accordingly, prior to Yom Kippur, the limbs of the Neveilah (which the person ate on Yom Kippur) were not prohibited as Ever Min ha'Chai.
According to the opinion that "Behemah b'Chayeha l'Evarim Omedes," there is also a question. According to that opinion, an animal during its lifetime is designated to be cut up into limbs (and eaten), and thus each limb has the status of Ever Min ha'Chai even while the animal is alive. If the animal dies on Yom Kippur, the prohibition of Ever Min ha'Chai goes away and is replaced simultaneously with the prohibitions against eating Neveilah and eating on Yom Kippur. Rebbi Shimon agrees that when two prohibitions take effect simultaneously, they are valid.
According to either of these two opinions, one who eats Neveilah on Yom Kippur should be liable for transgressing the prohibition against eating on Yom Kippur. Why does Rebbi Shimon say that one is liable only for eating Neveilah, and not for eating on Yom Kippur?
(a) TOSFOS answers that a different prohibition prevents the prohibition of eating on Yom Kippur from taking effect. A Mitzvas Aseh prohibits one from eating an animal that was not properly slaughtered. The verse states, "You shall slaughter... and you shall eat..." (Devarim 12:21), which teaches that one may eat only what he slaughters, but he may not eat what he has not slaughtered. Tosfos maintains that this prohibition always applies, whether the animal is alive or dead. Since, before Yom Kippur, a Mitzvas Aseh prohibits eating any live animal because it is "Einah Zevuchah" (not slaughtered), when Yom Kippur enters the prohibition against eating on Yom Kippur cannot take effect on such an animal.
(b) Tosfos cites the RITZBA who disagrees with his explanation. The Ritzba asks that according to the opinion that "Behemah b'Chayeha Lav l'Evarim Omedes," if the prohibition of "Einah Zevuchah" applies when the animal is alive, then Ever Min ha'Chai would never apply! Since Ever Min ha'Chai does not apply when the animal is alive, and when it dies it does not apply because there is a pre-existing prohibition of "Einah Zevuchah," when would Ever Min ha'Chai ever apply?
The Ritzba therefore understands that no Mitzvah of slaughtering is derived from the verse, "You shall slaughter." This raises a new problem, however. How can one recite a blessing before he slaughters an animal? There is a rule that one does not recite a blessing for the fulfillment of a Lo Ta'aseh, a negative commandment. This is why one does not recite a blessing before the removal of the forbidden fats and Gid ha'Nasheh from the meat. If there is no Mitzvas Aseh of Shechitah, but Shechitah is necessary only to ensure that the animal is not forbidden, why is a blessing recited for the act of Shechitah? (See PRI MEGADIM in MISHBETZOS ZAHAV YD 19:1, DH v'Da.)
CHIDUSHEI REBBI AKIVA EIGER answers that a distinction may be made between the removal of the forbidden fats and the act of slaughtering. One does not recite a blessing when he merely removes forbidden fats from the meat. The meat itself became permitted once the animal was slaughtered properly. It could not be eaten only because forbidden things, such as the Gid ha'Nasheh, were mixed with it. One does not recite a blessing on the process of separating a forbidden item from the permitted item.
In contrast, the act of Shechitah transforms the meat itself from a prohibited item into a permitted item. Rebbi Akiva Eiger compares the blessing made for Shechitah to the blessing made for making an Eruv Techumin. Although there is no Mitzvah per se to make an Eruv Techumin, but only a Lo Ta'aseh against walking beyond one's Techum, if one seeks to walk beyond his Techum on Shabbos he must make an Eruv. The Eruv Techumin "prepares" the area at the edge of his present Techum so that he will not transgress the Isur of Techum, and therefore he may recite a blessing for it, even though the Isur of Techum is a Lo Ta'aseh.
The explanation of Rebbi Akiva Eiger sheds light on the words of the MAGEN AVRAHAM (OC 415:4). The Magen Avraham writes that although an Eruv Techumin is a leniency, it is still appropriate to recite the blessing, "... Who has sanctified us with His Mitzvos...." The Eruv Techumin saves a person from sinning by walking beyond his Techum in the same way that slaughtering meat prevents a person from eating Neveilah. The Magen Avraham clearly is alluding to the explanation of Rebbi Akiva Eiger, that one recites a blessing when he makes something permitted when it was previously forbidden. (See also RA'AVAD, Hilchos Eruvin 6:24.) (D. BLOOM)
2) THE FATS OF AN ANIMAL WHICH ARE PERMITTED
QUESTION: Rava says that according to the opinion that an Isur Kolel takes effect, when a person swears, "I will not eat figs," and afterwards says, "I will not eat figs and grapes," the second Shevu'ah takes effect. Since the second Shevu'ah adds grapes to the prohibition, the Shevu'ah also applies to the figs.
Rava brei d'Rabah challenges Rava's statement from a Beraisa. The Beraisa states that it is possible for one to eat a single k'Zayis of Chelev and be liable for four Korbenos Chatas and one Korban Asham (which the Beraisa enumerates). According to Rava, the Beraisa should have added a fifth Chatas -- for transgressing a Shevu'ah that "I will not eat dates and Chelev." Since the Shevu'ah applies to the dates, it also should apply to the Chelev!
The oaths mentioned in the Gemara here seem to lack a basic qualification to be valid oaths. The Shevu'ah that, "I will not eat figs and grapes," which one states after he swears, "I will not eat figs," and the Shevu'ah that, "I will not eat dates and Chelev," should not be valid Shevu'os because of the rule (25a) that an essential part of a Shevu'ah is that it must be able to be said both in the positive and negative form. In the case of the Gemara here, the person cannot say the positive form, "I will eat figs and grapes," because he has already sworn that he will not eat figs. Similarly, he cannot say, "I will eat dates and Chelev," because every Jew made a Shevu'ah at Har Sinai not to eat Chelev. How, then, can the Shevu'os mentioned here be valid?
(a) TOSFOS (DH she'Lo) answers in the name of RABEINU TAM that the Shevu'ah, "I will not eat dates and Chelev," is possible in the positive form. One indeed can swear, "I will eat Chelev," because there are some fats which people call "Chelev" even though they are permitted. The person who swears, "I will eat Chelev," might be referring to the Chelev on the Keivah (the abomasum, the last of a cow's four stomachs) which the Gemara in Chulin (49a) permits.
Alternatively, he might be referring to the Chelev of a Chayah (an undomesticated animal), which is permitted to eat. The verse (Vayikra 7:23) prohibits only the Chelev of a Behemah (a domesticated animal), such as a cow, sheep, and goat.
Tosfos adds that only because the person mentions other permitted food items together with the Chelev ("I will eat dates and Chelev") that it is assumed that he is referring to permitted Chelev. Otherwise, the word "Chelev" would be assumed to mean specifically forbidden fat, which is the common meaning of the word.
(b) TOSFOS (24a, end of DH Ela) answers that the Shevu'ah, "I will not eat figs and grapes," which one states after he swears, "I will not eat figs," may also exist in the positive form. Although the person first said, "I will not eat figs," he still can swear afterwards, "I will eat figs and grapes." This is because when he mentions figs the second time, he may mean "Te'enim ha'Sho'arim," a type of fig that is harmful to consume (see Yirmeyahu 29:17).
Tosfos adds that only because the person mentions both figs and grapes in his second Shevu'ah that it is assumed that he is referring to bad figs. If he would have made a Shevu'ah on figs alone, his words would have been understood to mean good figs.
The MAHARSHA explains that Tosfos means that when the person first swears, "I will not eat figs," his words do not include Te'enim ha'Sho'arim, and therefore he is not forbidden from eating them. When he later swears, "I will eat figs and grapes," since he includes grapes together with figs, he implies that just as he is referring to grapes which are permitted to him, he is referring to figs that are permitted to him. He therefore must be referring to Te'enim ha'Sho'arim.
(c) The RAMBAN gives a different answer for why one's Shevu'ah not to eat figs and grapes takes effect, even though that Shevu'ah apparently cannot be made in the positive form. Since the figs were prohibited in the first place only by a Shevu'ah, they potentially may become permitted through the instrument of nullification of the Shevu'ah. Once they become permitted, the person can swear, "I will eat figs." Therefore, the second Shevu'ah takes effect because it can be made in the positive form ("I will eat figs and grapes") in the event that the person has his first Shevu'ah nullified. (D. BLOOM)