חולין 81 — Soncino English Talmud

¹has stated it in the form of a positive command. How is this? For the verse says. From the eighth day and henceforth it may be accepted, that is from the eighth day only, but not before; it is therefore a negative precept derived from a positive command which has only the force of a positive command. But is not this verse required for R. Aptoriki's exposition? For R. Aptoriki pointed out a contradiction between verses. The verse says: It shall be seven days under the dam, accordingly on the night [following the seventh day] it is valid; and then it continues: From the eighth day and henceforth it may be accepted, that is only from the eighth day and henceforth but not on the night [following the seventh day]. How is this [to be reconciled]? On the night [following the seventh day] it is fit for consecration, but on the [eighth] day it is acceptable [as an offering]! — There is another verse to the same effect, viz., Likewise shalt thou do with thine oxen and thy sheep; [seven days it shall be with its dam; on the eighth day thou shalt give it Me]. R. Hamnuna said: R. Simeon used to say that the law of ‘It and its young’ does not apply to consecrated animals. Why? For since R. Simeon has stated that a slaughtering which does not render [the animal] fit is no slaughtering, the slaughtering of consecrated animals is [by itself] a slaughtering which does not render [the animal] fit. Raba raised the following objection: If two persons slaughtered a dam and its young [on the same day], both being consecrated animals, outside the Sanctuary, [he who slaughtered] the second, says R. Simeon, has transgressed a negative command. For R. Simeon used to say: For [slaughtering outside the Sanctuary] any [consecrated] animal which is fit to be brought [as a sacrifice] at a later time, there is a negative command but not the penalty of Kareth. The Sages, however, say: Where there is no penalty of Kareth there is neither [the transgression of] a negative command. Now upon this was raised the following difficulty: [You say,] Where both were consecrated animals and they were slaughtered outside, [he who slaughtered] the second has transgressed a negative command [and nothing more]? But surely, the first animal is merely regarded as ‘killed’ and the second would therefore be acceptable [as a sacrifice] within; consequently he [who slaughtered it] should also incur the penalty of Kareth! Whereupon Raba (others say: Kadi) answered: There is an omission here, and this is how it should read: If both animals were consecrated add [were slaughtered] outside [the Sanctuary]: according to the Rabbis, [he who slaughtered] the first incurs the penalty of Kareth, and the second [animal] is invalid but he [who slaughtered it] is not culpable; and according to R. Simeon, both incur the penalty of Kareth. If both animals were consecrated and [were slaughtered], the first outside and the second inside [the Sanctuary], — according to the Rabbis, [he who slaughtered] the first has incurred the penalty of Kareth, and the second [animal] is invalid and he [who slaughtered it] is not culpable; according to R. Simeon, the second animal is valid. If the first [was slaughtered] inside and the second outside [the Sanctuary]: according to the Rabbis the first animal is valid and he [who slaughtered it] is not culpable, and the second is invalid and he [who slaughtered it] is likewise not culpable; according to R. Simeon, he who slaughtered the second has transgressed a negative command. Now if you are to assume that [according to R. Simeon] the law of ‘It and its young’ does not apply to consecrated animals, then why [is it stated that] he who slaughtered the second has transgressed a negative command and no more? He should also have incurred the penalty of Kareth! — Rather, said Raba. This is what R. Hamnuna meant to say. The punishment of stripes for the [transgression of the] law of ‘It and its young’ does not apply to consecrated animals. Why? For in as much as the flesh is not permitted to be eaten so long as the blood has not been sprinkled, [the warning that is given to the slaughterer] while he is slaughtering is a dubious warning, and a dubious warning is no warning. Raba is consistent in this view of his. For Raba said: If the dam was an unconsecrated animal and the young a peace-offering, and a man slaughtered first the unconsecrated animal and later [on the same day] the peace-offering, he is not culpable. If he first slaughtered the peace-offering and then the unconsecrated animal, he is culpable. Raba also said: If the dam was an Unconsecrated animal and the young a burnt-offering, it goes without saying that if a man first slaughtered the unconsecrated animal and later [on the same day] the burnt-offering, he is not culpable;^ᵃ^ᵇ^ᶜ^ᵈ^ᵉ^ᶠ^ᵍ^ʰ^ⁱ^ʲ^ᵏ^ˡ^ᵐ^ⁿ^ᵒ^ᵖ^ᵠ

^ᵃnote:Lev. XXII, 27.
^ᵇnote:The prohibition of ‘out of time’, e.g., where the animal is not eight days old or where its dam was slaughtered on this same day, is modified in the Torah by the remedy stated, namely, keep it until it is eight days old, or slaughter it on the following day; hence the usual penalty for the transgression of a prohibition does not apply here (Rashi); v. infra 141a. Tosaf. interprets thus: the Torah has expressly singled out the disqualification of ‘out of time’ from all the other disqualifications stated in Scripture for which the usual penalty of stripes is in force, and has declared that the transgression of this prohibition is accounted as the none fulfilment of a positive precept.
^ᶜnote:Ex. XXII, 29
^ᵈnote:V. supra p. 448.
^ᵉnote:At present, however, it is ‘out of time’ or temporarily unfit, e.g., by reason of the slaughtering of the dam this same day. The negative command is indicated in Deut. XII. 8. V. Zeb. 114a.
^ᶠnote:For according to R. Simeon the slaughtering of the dam in this case, in as much as it does not render the flesh thereof permitted to be eaten, is no slaughtering; consequently the young is fit for sacrifice and he who slaughters it outside the Sanctuary incurs the penalty of Kareth.
^ᵍnote:Aliter: ‘as the case may be’; i.e., introducing respectively other persons.
^ʰnote:He has not incurred Kareth since it could not have been offered this day in the Sanctuary.
^ⁱnote:Since the slaughtering of the first animal was no slaughtering the second was fit to be offered this day in the Sanctuary, accordingly the penalty of Kareth is incurred even in respect of the second animal.
^ʲnote:He is not liable for slaughtering it outside the Sanctuary since it was not fit to be offered within on the same day. It must he observed that the Tanna of this Baraitha does not take into consideration the transgression of the law of ‘It and its young’.
^ᵏnote:For the slaughtering of the first animal was no slaughtering and the second animal was thus permitted to be slaughtered this day in the Sanctuary.
^ˡnote:V. p. 451, n. 4.
^ᵐnote:Kareth, however, is not incurred, for since the slaughtering of the first was a valid and proper slaughtering the second was not fit to be offered this day within the Sanctuary.
^ⁿnote:The reason being that the slaughtering of the first animal, having been performed according to all its rites, renders the second animal ‘out of time’, so that the slaughtering of the latter is no slaughtering and the punishment of stripes not incurred thereby (Rashi).
^ᵒnote:Rashi suggests the deletion from the text of the last passage (from ‘Why’ to ‘warning’) on the ground that the argument is misleading and erroneous. For the reason why stripes are not incurred is not because of the dubious warning but simply because the slaughtering is no slaughtering (v. prec. n.). V. however Tosaf. supra 80b, s.v. vyhja.
^ᵖnote:For slaughtering ‘it and its young’, as the warning at the time of the commission of the wrongful act, i.e., when slaughtering the peace-offering, is a dubious warning, for if the blood of this sacrifice will not later be sprinkled upon the altar, the slaughtering is no slaughtering and no wrongful act will have been committed. This statement is obviously only in accordance with R. Simeon's view.
^ᵠnote:The warning in this case before the slaughtering of the unconsecrated animal is a certain warning, for by the act of slaughtering alone the law is transgressed.

²but even if he first slaughtered the burnt-offering and later [on the same day] the unconsecrated animal, he also is not culpable, because the first slaughtering was not a slaughtering such as renders the animal fit for food. R. Jacob, however, said in the name of R. Johanan. The consumption [of sacrifices] upon the altar is deemed ‘eating’. Why? Because it is written: And if any of the flesh of the sacrifice of his peace-offerings be at all eaten; the verse speaks of two ‘eatings’, the eating by man and the ‘eating’ by the altar. MISHNAH. IF A PERSON SLAUGHTERED [AN ANIMAL] AND IT WAS FOUND TO BE TREFAH, OR IF HE SLAUGHTERED [IT AS AN OFFERING] TO IDOLS. OR IF HE SLAUGHTERED THE RED COW, OR AN OX WHICH WAS CONDEMNED TO BE STONED, OR A HEIFER WHOSE NECK WAS TO BE BROKEN, R. SIMEON SAYS. HE DOES NOT THEREBY TRANSGRESS [THE LAW OF ‘IT AND ITS YOUNG’]; BUT THE SAGES SAY, HE DOES. IF A PERSON SLAUGHTERED [AN ANIMAL] AND IT BECAME NEBELAH UNDER HIS HAND, OR IF HE STABBED IT, OR TORE AWAY [THE ORGANS OF THE THROAT]. HE DOES NOT THEREBY TRANSGRESS THE LAW OF IT AND ITS YOUNG. GEMARA. R. Simeon b. Lakish said: They said so only where the person slaughtered the first animal to idols and the second for his table [needs], but if he slaughtered the first animal for his table [needs] and the second to idols he is [certainly] not culpable [on the ground of ‘It and its young’] for he suffers the heavier penalty. Whereupon R. Johanan said to him: Why, even school children know that! But [I say that] sometimes even where he slaughtered the first animal for his table [needs] and the second to idols he is culpable [on the ground of ‘It and its young’], if, for example, he was warned of the prohibition of ‘It and its young but not of idolatry. R. Simeon b. Lakish, however, maintains, since if he had been warned [of idolatry] he would not be culpable [on account of ‘It and its young’], then even if he had not been warned of idolatry he is likewise not culpable [on account of ‘It and its young’]. They are indeed consistent in their views. For when R. Dimi came [from Palestine] he reported as follows: He who committed inadvertently an act which, if he had committed it wilfully, would have been punishable with death or with stripes, and [the act committed is punishable also with] something else, R. Johanan says, he is liable, but R. Simeon b. Lakish says, he is not liable. ‘R. Johanan says, he is liable’, for he had not been warned [of the major penalty]; ‘R. Simeon b. Lakish says, he is not liable’, for since if he had been warned [of the major penalty] he would not be liable, so, too, if he had not been warned of it he is also not liable. Now both [disputes] are required. For if only this [dispute] were reported I might have said that only here does R. Simeon b. Lakish assert his view, but there I should have said that he is in agreement with R. Johanan. And if the other dispute only were reported I might have said that only there does R. Johanan assert his view, but here I should have said that he is in agreement with R. Simeon b. Lakish. Both disputes therefore had to be reported. [Do you say that according to R. Simeon the slaughtering of] the Red Cow is a slaughtering which does not render it fit [for food]? Surely it has been taught: R. Simeon says. The Red Cow contracts food uncleanness. since it had a period of fitness [to be used for food].^ʳ^ˢ^ᵗ^ᵘ^ᵛ^ʷ^ˣ^ʸ^ᶻ^ᵃᵃ^ᵃᵇ^ᵃᶜ^ᵃᵈ^ᵃᵉ^ᵃᶠ^ᵃᵍ^ᵃʰ^ᵃⁱ^ᵃʲ^ᵃᵏ^ᵃˡ^ᵃᵐ

^ʳnote:For a burnt-offering must be entirely burnt upon the altar, consequently according to R. Simeon the slaughtering of a burnt-offering is no slaughtering for it does not render the flesh permitted to be eaten.
^ˢnote:Lev. VII, 18. Lit., the verse reads: And if eaten there shall be eaten of the flesh, etc. The repetition of the word ‘eaten’ indicates the two modes of consumption of a sacrifice, one by man and the other by the altar. Hence the slaughtering of a burnt-offering is a slaughtering, inasmuch as it renders the flesh fit to be eaten’, i.e., burnt, by the altar.
^ᵗnote:Lit., ‘the cow of purification’. V. Num. XIX.
^ᵘnote:For goring a human being. V. Ex. XXI, 28.
^ᵛnote:V. Deut. XXI, 4.
^ʷnote:The slaughtering in any of the above cases is no slaughtering since the animal is not thereby rendered permitted to be eaten, consequently he does not transgress the law of ‘It and its young’.
^ˣnote:At the throat.
^ʸnote:This is admitted by the Sages for in these cases there was either no slaughtering at all or the slaughtering was defective.
^ᶻnote:I.e., the statement of the Sages that he who slaughters an animal to idols can thereby transgress the law of It and its young.
^ᵃᵃnote:In which case he suffers stripes for transgressing the law of It and its young and is also put to death for sacrificing unto idols; for these two penalties are incurred by him by different acts, death for slaughtering the first animal, and stripes for the second.
^ᵃᵇnote:Since he incurs both penalties by the one act, viz., the slaughtering of the second animal to idols, he would only suffer the heavier penalty, namely, death.
^ᵃᶜnote:In this case he would not suffer the death penalty since he had not been warned of the prohibition of idolatry; he therefore suffers stripes by virtue of the law of It and its young.
^ᵃᵈnote:For then he would suffer the major penalty, namely, death.
^ᵃᵉnote:R. Johanan and R. Simeon b. Lakish.
^ᵃᶠnote:V. Keth. 34b.
^ᵃᵍnote:I.e., he had not been warned beforehand of the wrongful act he was about to commit.
^ᵃʰnote:E.g., the payment of money.
^ᵃⁱnote:To make the money payment.
^ᵃʲnote:And so there is no death penalty, and therefore he pays.
^ᵃᵏnote:Both the dispute here which involves the consideration of the death penalty (by virtue of slaughtering to idols) and stripes (by virtue of the law of ‘It and its young’), and the dispute in Keth. l.c., where the death penalty or stripes and a money payment are considered.
^ᵃˡnote:That stripes are not inflicted. For since there arises out of the act of slaughtering a consideration of the death penalty, the penalty of stripes, being a minor penalty and of the same character as the major penalty in that they are both corporal punishments, is set aside absolutely, even though in the circumstances for want of the requisite warning the death penalty cannot be inflicted. In the other case however where the penalties involved are of two distinct characters, the one being corporal, i.e., death or stripes, and the other a monetary payment, even R. Simeon b. Lakish would agree that if the major penalty of death or stripes did not apply for want of the necessary warning, the minor penalty of payment would apply.
^ᵃᵐnote:I.e., its flesh will become unclean by contact with a carcass, for it is regarded as a permissible foodstuff. Rashi raises the interesting question. Why is there any consideration here about the flesh of the Red Cow contracting uncleanness? Surely it conveys uncleanness without having first come into contact with a carcass, cf. Num. XIX, 7, 8, 10. He suggests therefore the following circumstances: A morsel of the flesh of the Red Cow was covered over on all sides by less than an egg's bulk of dough, but together the flesh and the dough make up an egg's bulk, which is the minimum quantity for a foodstuff to contract or to convey uncleanness (v. however Tosaf. B.K. 77a, s.v. vrp). If then it is held that the flesh of the Red Cow is deemed a foodstuff, then the entire bulk will be rendered unclean by contact, say, with a carcass, and will convey uncleanness to other foodstuffs. If, on the other hand, it is not deemed a foodstuff this built cannot suffer uncleanness, and whatever foodstuffs come into contact with it will likewise not be rendered unclean, since they did not make any direct contact with the flesh of the Red Cow which is covered up on all sides with dough; v. Ker. 21b. V. however, Tosaf. supra 81b, s.v. vrp.