The previous iqarim have noted that the enumeration of the prohibition of tereiphah in parashatMishpatim and the prohibition of neveilah in parashat Re’eh is very strange, because the Ramban in his commentary searches for a reason why some commandments were not mentioned in the first four books of the Torah but only in Devarim (Mishneh Torah). His thesis is that either the commandments mentioned in Devarim were observed rarely, if at all, in the desert, or became effective only upon entry into the Land. But how would the Ramban explain the prohibition of neveilah which, unlike tereiphah, is not mentioned in the first four books, and certainly would have been relevant to the daily lives of the Israelites in the desert?

Both R. Yishmael and R. Akiva were addressing this question in their dispute about shehitah and nehirah. Both agree that the prohibition of neveilah is implicit in the prohibition of tereiphah, as codified by the Rambam in Ma’akhalot Assurot (4:17) (minimal amounts of neveilah and tereiphah being combined to constitute the minimum quantity necessary for punishment to be administered for eating a prohibited substance) because tarphut is the initial stage of navlut. The two disparate amounts are combined because if the Torah prohibits the first stage of navlut, then complete navlut must certainly be prohibited. This instance of a fortiori reasoning is (like the prohibition of relations with a daughter, which is inferred from the prohibition of relations with a granddaughter) so compelling that punishment is administered, contrary to the general rule that no punishment is administered for a prohibition inferred by a fortiori reasoning. Moreover, the verse prohibiting a tereiphah speaks about an animal mauled nearly to death by a predator (ובשר בשדה טרפה). The Rambam writes (Id. 4:6): “You cannot say that the term “tereiphah” used in the Torah refers an animal mauled to death by a predator, because once the animal dies, it becomes a neveilah not a tereiphah, and why would it matter if the animal died by natural causes, was struck by a sword, or was mauled to death by a lion?”

The Rambam did not mean to say, as suggested by the Rishonim and by the Malbim in his commentary, that neveilah was prohibited by the verse in Re’eh, most of the commandments having been enumerated in the first four books of the Torah and repeated in the Mishneh Torah. Although the Sages deduced halakhic implications from the repetition of the commandments in the Mishneh Torah, nevertheless the repetition of the commandments was to elaborate upon the original commandment, as implied by the term “Mishneh Torah.” The Rambam is explicit that an animal mauled to death by a predator is a neveilah, because if the Torah had merely wanted to teach that a neveilah is prohibited, it need not have stated that the animal was mauled to death in the field (בשדה), the status of navlut being independent of the cause of death. The Torah must therefore have been referring to a tereiphah that is still alive, teaching us that performing shehitah or nehirah before it dies does not render it fit for human consumption. But once the animal dies from its injuries, the prohibition against eating its flesh certainly remains. But if so, the prohibition of “neveilah“ in the Mishneh Torah must be less inclusive than the prohibition of tereiphah, as we are taught at Hullin 37a that a mesukenet (an animal on the verge of death from natural causes not injury or defect) is excluded from the prohibition of neveilah. The question therefore arises: why in the Mishneh Torah did the Scripture not just repeat the prohibition of tereiphah — the first stage of navlut — previously mentioned in parashat Mishpatim?

It was this question that R. Yishmael and R. Akiva were trying to answer. R. Akiva judged from the shift from “tereiphah” to “neveilah“ that the prohibition of “neveilah“ in parashat Re’eh actually created a new prohibition that took effect only upon entry into the Land along with the new commandment to perform shehitah on hullin and the implied invalidation of nehirah. Without the new prohibition of neveilah, the flesh of an animal slaughtered by the method of nehirah would have been prohibited only by inference from the obligation to perform shehitah (issur asseih), but would not have been covered by the prohibition of treiphah/neveilah. A new, explicit, prohibition of neveilah was required to prohibit the flesh of an animal slaughtered by the method of nehirah. This new prohibition was created by the verse”לא תאכלו כל נבלה” , which was meant to prohibit the flesh of animals slaughtered by the method of nehirah. And after R. Akiva accepted the tradition transmitted by R. Yesheivav that even a partially defective shehitah is regarded as nehirah, any defective shehitah is subsumed under “כל נבלה”. In parashat Re’eh, the Scripture therefore commands that neveilah be given to the stranger or sold to a foreigner rather than, like a mortally wounded treiphah or a neveilah that died naturally, because such a neveilah is unfit for human consumption and is universally prohibited to be fed to another person, as noted by Rashi (Hullin 92b) that the prohibition of eating the flesh of an animal that died naturally is one of the 30 commandments accepted by the descendants of Noah. And it also appears from the Gemara (Hullin 32b) that Gentiles are also required to perform nehirah before consuming the flesh of any animal. But the neveilah that the Torah required be given to a stranger or sold to a foreigner is the new category of neveilah introduced upon entry to the Land.

However, R. Yishmael, believing that, even in the desert, nehirah was an invalid method of slaughter and only shehitah prevents an animal from becoming a neveilah upon death, understands the prohibition of neveilah in parashat Re’eh to be just a repetition of the prohibition of tereiphah in parashat Mishpatim. The reason that the Scripture changed from prohibiting tereiphah in Mishaptim to prohibiting neveilah in Re’eh is provided by the Sifri, reflecting the opinion of R. Yishmael. The Sifri asks: if in Re’eh the Scripture prohibits only neveilah, how do we know that tereiphah is also prohibited? The Sifri answers that the Scripture writes “every neveilah”)  (כל נבילה to include the tereiphah as well as the neveilah. Understanding that, according to R. Yishmael, the prohibition of neveilah is meant as a repetition of the earlier prohibition of tereiphah, the Sifri starts from the premise that the prohibition of tereiphah in Mishpatim implicitly included neveilah based on a qal ve-homer that tereiphah is simply the first stage of navlut. If tereiphah is a more inclusive category than neveilah, then it would seem that a prohibition of neveilah alone, without reference to tereiphah is implicitly excluding at least some kinds of tereiphah. The Sifri therefore asks how do we know that the Scripture in Re’eh is not to be understood to exclude tereiphah from the prohibition of neveilah? The answer given by the Sifri s that the inclusive language “every neveilah” (כל נבילה) implicitly includes tereiphah in the prohibition, just as the verse”  “איש כי יכה כל נפש includes even a partial life, i.e., the life of a mortally ill individual, in the prohibition of homicide, subjecting the one who kills a mortally ill person to a death sentence even though the violation is derived from a textual inference. So, the prohibition of “every neveilah” is exactly the same as the prohibition of tereiphah.

According to the Mechilta (quoted by Rashi in his Torah commentary) the reason that the Scripture writes in reference to tereiphah, “you shall cast it to the dog” (לכלב תשליחון אותו) while writing, in reference to neveilah, “give it to the stranger or sell it to the foreigner” (לגר אשר בשעריך תתננה . . . או מכור לנכרי) is that strangers and foreigners are comparable to dogs. But it might have been said, contrary to the Mechilta, that the verse concerning disposal of a tereiphah was conveyed when the Israelites were in the desert, with no strangers or foreigners among them, so that a tereiphah could be disposed only by throwing it to the dogs, while the verse concerning disposal of neveilah was written upon entry into the Land where strangers and foreigners would be living among the Israelites.

Nevertheless, R. Yishmael and R. Akiva argued about how to explain the prohibition of neveilah. R. Akiva understands it to create a new prohibition, under the category of neveilah, of eating the flesh of an animal slaughtered by the method of nehirah, while R. Yishmael understands the prohibition of neveilah to be just a repetition of the earlier prohibition of tereiphah. But R. Yishmael also believed that the earlier prohibition of tereiphah included the prohibition of neveilah, tereiphah being the first stage of navlut, but the prohibition of tereiphah could therefore only have referred to a mortally wounded or injured or defective animal on the verge of death. Although there is a statement attributed to Tanna de-vei R. Yishmael (a teaching from the academy of R. Yishmael), presumably reflecting the opinion of R. Yishmael, at the beginning of the chapter Eilu Tereiphot, that a tereiphah is capable of remaining alive (טרפה חיה), the tereiphah of the Scripture is an animal on the verge of death as a result of wounds, injuries, or defective organs. The dispute recorded in the Gemara about whether a tereiphah can remain alive concerns the 18 tereiphot enumerated as halakhot le-moshe mi-sinai, as will be explained. based on the opinion of the Rambam, in Iqar 10.

The Mechilta itself actually makes this clear:

It is written: “ובשר בשדה טרפה”. From this we know only that the flesh of an animal mauled in the field is prohibited. How do we know that the prohibition applies if the animal is mauled near the home? The Scripture says:  “טרפה ונבלה, נבלה וטרפה”, thereby comparing tereiphah to neveilah. Just as there is no distinction between a neveilah that died in the field and one that died near the home, there is no distinction between a tereiphah mauled in the field and one mauled near the home. What, then, does the word”בשדה”  teach us? The Scripture is just speaking of the normal situation (דיבר הכתוב בהווה).

The Mechilta is problematic for three reasons:

First, once the Mechilta concludes that the verse “ובשר בשדה טרפה” is speaking about the normal situation, no halakhic inference may be derived from a comparison between neveilah and tereiphah, because whenever the Sages explain an otherwise redundant phrase in that way, no halakhic inference is deduced from the phrase.

Second, neveilah and tereiphah are juxtaposed in neither of the verses in Mishpatim and Re’eh, so how could Mechilta draw any inference from the order in which they were stated? And if the Mechilta was referring to the verse (Leviticus 22:8)  “נבלה וטרפה לא יאכל לטמאה בה” , why did the Mechilta refer to a comparison between neveilah and tereiphah in which the tereiphah mentioned is not one mauled in the field? How could the prohibition of tereiphah in that verse serve to limit the prohibition to an animal mauled in the field? The Mechilta could have inferred its conclusion directly from that verse without making any comparison between tereiphah and neveilah.

Third, the Mechilta’s juxtaposition of neveilah and tereiphah with tereiphah and neveilah has no Scriptural basis. However, it can be understood as drawing attention to idea that, as the Rambam explains in Ma’akhalot Assurot (4:8) tereiphah refers to a mortally wounded or injured animal on the verge of death. That is the basic comparison between the meaning of tereiphah and neveilah in the Scripture. Just before death from its injuries, the animal becomes a tereiphah — first stage of navlut — and upon death, it becomes a complete neveilah. Because the status of neveilah applies regardless of the cause of death, the Rambam explains that the reference in the verse to  “שדה”is merely a figure of speech referring to the common case in which an animal becomes a tereiphah, but, being a figure of speech, it has no halakhic significance, the cause of the injuries being irrelevant to the status tereiphah. But this explanation of the comparison between tereiphah and neveilah is possible only if the meaning of tereiphah is restricted to a mortally wounded or injured animal that is on the verge of death. However, if the meaning of tereiphah in the Scripture is expanded to include any fatal defect, even if the animal is not on the verge of death (e.g., the 18 tereiphot enumerated as halakhot le-moshe mi-sinai), there is no longer a direct comparison between neveilah and tereiphah. The Mechilta makes this inference from explicit mention of tereiphah in Mishpatim from which neveilah must be inferred and the explicit mention of neveilah in Re’eh from which tereiphah must be inferred, thereby teaching us that neveilah and tereiphah are halakhically equivalent, both being a form of navlut, tereiphah being the initial stage of navlut at the verge of death, and neveilah being complete navlut at the moment of death.

Just as the cause of death is irrelevant to a determination of whether an animal is a neveilah so, too, the reason that an animal is on the verge of death is not just being mauled by a predator, so that the tereiphah referred to in the Scripture must be any animal on the verge of death because of wounds or injuries regardless of where or how the wounds or injuries were inflicted. The Rambam, however, unlike the Mechilta does not infer the equivalence between neveilah and tereiphah from the textual comparison of neveilah and tereiphah in Mishpatim and Re’eh but from the commandment to throw the flesh of the tereiphah to the dogs, implying that the flesh of a tereiphah is fit only for dogs, but not human beings. The Rambam could not have accepted the hermeneutic inference of the Mechilta, obviously rejecting the position taken by the Rambam, that the verse in Mishpatim “לכלב תשליכון אותו” to cast the flesh of a tereiphah also implies giving it to a stranger or selling it a foreigner, because the Gentiles are considered “עם הדומה לכלב” similar to dogs.

However, the Rambam understood the Mechilta to be following the opinion of R. Yishmael that nehirah had never been a valid method of slaughter, so that the prohibition of neveilah in parashat Re’eh upon entry into the Land merely reiterated the prohibition of tereiphah in Mishpatim. But, inasmuch as Gentiles were not commonly found in the desert, and because the dogs in Egypt had not barked on the night of the Exodus, the Scripture rewarded the dogs by commanding that the flesh of neveilah or tereiphah to be given to the dogs, while, after entry into the Land, the Mechilta held that the flesh of neveilah or tereiphah was to be given to a stranger or sold to a foreigner from a distant land. However, according to R. Akiva, who believes that, in the desert, the Israelites had been permitted to eat the flesh of animals slaughtered by the method of nehirah until that method was invalidated by inference when they were commanded in Re’eh to perform shehitah before consuming the flesh of any animal, a new prohibition against consuming the flesh of animals slaughtered by the method of nehirah or by an improper shehitah was necessary, because, otherwise, the status of neveilah and the consequent ritual impurity would not have devolved upon an animal slaughtered by nehirah or an improper shehitah.

R. Akiva therefore offered a different explanation of the verse “לא תאכלו כל נבלה” from that of the Sifri and the Mechilta that “כל” comes to include treiphah aligning the verse with the earlier verse in Mishpatim prohibiting tereiphah. Instead, he understands “כל נבלה” to include a new category: animals slaughtered by the method of nehirah, which, in the desert, had been permissible. It was this new category of neveilah which they would be required to give to the stranger or sell to the foreigner, strangers and foreigners not being forbidden to eat the flesh of animals slaughtered by the method of nehirah or an improper shehitah. However, the flesh of a mauled animal slaughtered on the verge of death and the flesh of an animal that had died naturally is subsumed under the prohibition of tereiphah in Mishpatim, being unfit for consumption by any human, may be fed only to the dogs. Nor is any other interpretation of the Rambam possible, because he states explicitly that the verse in Mishpatim refers to any animal slaughtered on the verge of death from injuries or fatal bodily defects, as is the case when the Torah prohibits the flesh of a goring ox that must be stoned to death after killing a human being, which could only be referring to an ox slaughtered before being stoned.