1) THE PROOF THAT ONE MAY DERIVE BENEFIT FROM THE REMAINS OF THE "SA'IR HA'MISHTALE'ACH"
QUESTIONS: The Gemara records a dispute between Rav and Shmuel with regard to whether one may derive benefit from the limbs of the Sa'ir ha'Mishtale'ach. Rava asserts that it is logical to say that one may derive benefit from them, because had the Torah prohibited them it would not have commanded that the Sa'ir be sent away in a manner that would cause a person to sin. (As Rashi explains, one might find the limbs and derive benefit from them without realizing that they came from the Sa'ir ha'Mishtale'ach.)
A similar discussion appears in the Gemara in Kidushin (57b). The Gemara there asks whether one may derive benefit from the live bird of the Metzora (which he dips into blood and sends away as part of his purification process). The Gemara answers that it is not possible that the bird is Asur b'Hana'ah, because the Torah would not have commanded that it be sent away in a manner that would cause a person to sin (one might find it and eat it without realizing that it is Asur b'Hana'ah). The fact that the Torah commands the Metzora to send away the bird proves that it is Mutar b'Hana'ah.
The proof that the limbs of the Sa'ir ha'Mishtale'ach, and bird of a Metzora, are Mutar b'Hana'ah is difficult to understand.
(a) The MISHNEH L'MELECH (Hilchos Me'ilah 7:6) points out that even if the limbs of a Sa'ir ha'Mishtale'ach and bird of a Metzora are Asur b'Hana'ah, one who finds them and unknowingly derives benefit from them has not transgressed. In such a situation, the person is permitted to derive benefit from them because of the principle of "Kol d'Parish, m'Ruba Parish." This principle teaches that when there is a doubt about the source of a certain item (such as from where it came or to which group it belongs), the item is assumed to have come from the majority group. One who finds the limbs of a goat or catches a bird may assume that his find comes from the majority of goats and birds in the world, from which one is permitted to derive benefit.
Accordingly, even if the limbs of the Sa'ir ha'Mishtale'ach are Asur b'Hana'ah, one who finds them is permitted to derive benefit from them. How does the Gemara prove that they are Mutar b'Hana'ah from the fact that one might find the limbs and benefit from them?
(b) The GEVURAS ARI and SI'ACH YITZCHAK ask that the sending away of the Sa'ir, even if it is Asur b'Hana'ah, should not be considered a potential cause for transgression ("Takalah"). If the Sa'ir ha'Mishtale'ach is Asur b'Hana'ah, then it should be treated like any other Isur Hana'ah and buried after Yom Kippur in order to prevent any Takalah from occurring. The argument of Takalah is appropriate only when an object is sent out to roam freely in the wild (such as the bird of the Metzora). In such a case, it is not possible to treat the animal like other Isurei Hana'ah and bury it, and thus the concern for Takalah is relevant. In contrast, the Sa'ir is pushed off a cliff to its death, and its limbs can easily be buried.
(The Si'ach Yitzchak adds that it is because of this question that the Amora who maintains that the Sa'ir remains Asur b'Hana'ah does not compare the Sa'ir ha'Mishtale'ach to the bird of the Metzora. The proof that the bird of the Metzora is Mutar b'Hana'ah because of the concern for Takalah does not apply to the limbs of the Sa'ir.)
(a) The MISHNEH L'MELECH answers the first question as follows. The potential Takalah is not that a person who finds the limbs will benefit from them and transgress a prohibition (because, as mentioned above, the principle of "Kol d'Parish" permits him to benefit from the limbs). Rather, the Takalah in the case of the Sa'ir is that the person who sends away the Sa'ir transgresses if the Sa'ir is Asur b'Hana'ah: When he sends it away, he deliberately causes a prohibited object to become annulled, and the principle of "Ein Mevatlin Isur l'Chatchilah" teaches that one may not deliberately cause a prohibited object to become annulled. The Torah would not have commanded that he send away the Sa'ir and thereby annul a prohibited object. It must be that the Sa'ir is Mutar b'Hana'ah.
The SHA'AR HA'MELECH (Hilchos Ma'achalos Asuros 15:25) challenges the answer of the Mishneh l'Melech. Almost all of the Rishonim rule that the prohibition of "Ein Mevatlin Isur l'Chatchilah" is only mid'Rabanan. The Torah does not prohibit one from annulling a prohibited object (see SHULCHAN ARUCH YD 99:5, and SHACH 99:7). Consequently, the person who sends away the Sa'ir does not transgress any Torah prohibition against annulling a prohibited object, and his act cannot be the Takalah to which the Gemara here refers.
The MAHARATZ CHAYOS answers the Sha'ar ha'Melech's question. He explains that the Isur d'Rabanan of "Ein Mevatlin Isur l'Chatchilah" applies when the mixture of forbidden and permitted items is comprised of items which blend with each other and render each other unrecognizable (such as a forbidden liquid which fell into a permitted liquid). In such a case, the Torah permits one to annul the Isur, and the Rabanan prohibit it. However, when solid items become mixed up in such a way that each piece remains separate but one does not recognize which piece is the piece of Isur, even mid'Oraisa one is prohibited from annulling the Isur (because the piece of Isur in the mixture remains physically unchanged and is independent of the other pieces; the only doubt is its location in the mixture).
(b) The GEVURAS ARI and SI'ACH YITZCHAK answer the second question as follows. The reason why the Gemara considers sending away the Sa'ir to be a Takalah if it is Asur b'Hana'ah, even though the limbs can be buried and kept away from inadvertent use, is because it is possible that the Sa'ir will not die during its descent, and when it reaches the bottom it will run away. (Although the Gemara (66b) teaches that in the event that the Sa'ir does not die from the fall the Torah requires that one go down and kill it, nevertheless it is possible that the animal will run away before the person reaches it.) Indeed, the Yerushalmi (Yoma 6:3) relates that this was a common occurrence after the death of Shimon ha'Tzadik.
However, RASHI (DH l'Takalah) apparently does not accept this answer. Rashi implies that the Gemara is concerned only that one will find and use the dismembered limbs of the Sa'ir, and not that one will find and use a live Sa'ir.
Perhaps the reason why the Gemara does not consider the burial of the Sa'ir as a way to prevent Takalah is because the Sa'ir is crushed into many pieces as it falls down the steep incline, as the Mishnah here says. So many small pieces become scattered that it is not possible to bury every little piece of the Sa'ir. Consequently, the concern for Takalah remains even after the limbs of the Sa'ir are buried. (M. KORNFELD)