עיקר י’: הח”י טרפיות שנמסרו לממ”ס (חלק א’)

In his introduction to tereiphot (Yoreh Dei’ah), the Pri Meggadim writes:

Although derusah (poisoning) is mentioned explicitly in the Torah, and its explanation is transmitted as a halakhah le-moshe mi-sinai, while all the other kinds of tereiphot are known only because they were transmitted as halakhot le-moshe mi-sinai, nevertheless eating the flesh of any other category of tereiphah is also punishable by lashes, inasmuch as the halakhot le-moshe mi-sinai concerning the other categories simply teach us what is covered by the Biblical prohibition “טרפה לא תאכל” even though the other categories are not implied by the plain meaning of “tereiphah” in the Scripture. As explained by the Rambam in the fourth chapter of Ma’akhalot Assurot there is no halakhic difference between an animal mauled by a lion and an animal with a defect in a vital organ, so that eating from the flesh of either is punishable by lashes.

Confusion is evident in this passage. First it is asserted that the halakhah le-moshe mi-sinai comes to tell us that the verse “בשר בשדה טרפה” includes defects other than derusah, and later it is stated that the Rambam writes that there is no distinction between the different tereiphot. But the Rambam contradicts this assertion, insisting that there is no distinction between how an animal is brought to the verge of death, arguing that the reference in the verse to “שדה” signifying the mauling of animal by a predator describes only the most common case but does not limit the application of “tereiphah” to animals mauled by predators. If so, there was no need for a halakhah le-moshe mi-sinai to explain which defects render an animal a tereiphah whose flesh, like that of an animal mauled by a predator, may not be consumed.

But it is not clear that consuming the flesh of one of the 18 tereiphot enumerated by the halakhah le-mosheh mi-sinai is punishable by lashes, because the Rambam explicitly states that the “tereiphah” mentioned in the Scripture is an animal on the verge of death because of its injuries. It is also obvious that most of the 18 tereiphot enumerated by the Rambam as halakhot le-moshe mi-sinai do not inevitably bring an animal to the verge of death. Among these 18 tereiphot is being poisoned by a predator that injects poison into the flesh of its prey. This tereiphah (derusah/poisoning) cannot be considered an interpretation of the Scripture, but is rather a contradiction of the Scripture, and should therefore have been included among the other three examples mentioned by the Gemara (Sotah 16a) of halakhot le-moshe mi-sinai that contradict the Scripture. Commenting on this Gemara, Rashi says that the Torah said not to shave using a razor, but the Sages prohibited shaving using any device. And he continues: “And should you say that this is an addition to what the Torah’s commandment not a contradiction, but it is indeed a contradiction, because one who violates the prohibition is punishable by lashes, and to strike an Israelite without cause is a Biblical violation.”

However, if the Torah, having prohibited as a tereiphah an animal on the verge of death because it is unfit, as the Rambam wrote, for human consumption, how could the Halakhah (i.e., the halakhah le-moshe mi-sinai) add on to the Biblical prohibition a minor defect in one of the vital organs of an animal — a defect that doesn’t disable the animal from walking and eating like other healthy animals — thereby subjecting one who consumes the flesh of such a tereiphah to punishment by lashes? In that case, the Halakhah would contradict the Scripture. Moreover, to administer lashes for consuming a derusah (i.e., an animal which was poisoned, but is still able to eat and walk like a healthy animal), even though derusah is supposedly derived from the Biblical text, would contradict the Torah law, because unless the poisoned animal is on the verge of death, it is not covered by the Biblical prohibition of tereiphah. So what is the basis for asserting that the injection of even a small amount of poison brings an animal under the category of “tereiphah” mentioned by the Scripture? Moreover, it is R. Yishmael who holds the opinion that the three examples of the Halakhah contradicting the Scripture are actual contradictions; the Sages disagree, offering Biblical derivations for each of the three supposed contradictions between the Scripture and the Halakha, as Rashi (Id.) and the Tosaphists (Hullin 88b ד”ה שוחק) explain. Thus, according to the authoritative opinion of the Sages, the Halakhah never adds a prohibition not derived from the Scripture for whose violation lashes are administered, so that the Peri Megadim had no basis for asserting that the Halakhah concerning tereiphah is exceptional in that its violation is punishable by lashes.

However, it is also true that the Rambam himself wrote (Ma’akhalot Assurot 5:1) that derusah was explicitly mentioned by the Scripture, while other categories of tereiphah enumerated by the Halakhah were not mentioned by the Scripture, ruling, on that basis, that all the categories of tereiphah enumerated by the Halakah, with the exception of derusah, are treated leniently in doubtful cases, while derusah, being mentioned by the Scripture, is treated stringently in doubtful cases.

This ruling is completely obscure. First, how is derusah implied by the Scripture, wherein the only the term used is (tereiphah), derusah being included as a tereiphah only by way of halakhah le-moshe mi-sinai. Second, the Rambam seems to contradict what he wrote previously: “we already explained in Hilkhot Ma’akhalot Assurot that the tereipah mentioned in the Torah is an animal on the verge of death because of injuries or internal defects, and the term “tereiphah” was used by the Torah only because it spoke of the usual case. Thus, the meaning of “tereipah” is clear from the Scriptural text, and the meaning of “derusah” is not implicit in the Scripture, because “derusah” could mean that the animal was dragged by a limb or was torn open like a fish. That derusah means poisoning is known only from the Halakhah. Third, if we assume that the other tereiphot mentioned by the Halakhah are, unlike derusah, treated leniently, how would could lashes be administered as punishment for violating the other categories of tereiphah enumerated by the Halakah? To administer lashes without Scriptural authorization is the greatest leniency, because to do so, as explained by Rashi (Id.), is prohibited by the verse לא יוסיף להכותו”. If we are lenient concerning the other tereiphot enumerated by the Halakhah, then it is obviously forbidden to administer lashes for consuming the flesh of such tereiphot.

Because the laws of treiphot are also applicable in the event that one person takes the life of another person, if either the perpetrator or the victim is a tereiphah. To  understand the opinion of the Rambam concerning an animal that is a tereiphah, we must consider his rulings concerning a human being who is a tereiphah (Rotze’ah 4:3) and compare those rulings to those concerning an animal that is a tereiphah.

When a person strikes another person with a stone or a fist in a manner that could cause his death, but he does not die immediately, an assessment should be made.

If the judges assess that the victim would live, the person who struck the blow is liable only to pay the five damages awarded to a person who is injured, and he is released. Even if the victim falls ill, and his situation becomes more serious and ultimately he dies, the person who struck the blow is not held liable.

If the judges assess that the victim would die, they should imprison the person who struck the blow immediately and wait to see the outcome. If the victim does die, the person who struck the blow should be executed. If, however, the victim’s condition improves, and he becomes healed entirely to the extent that he walks in the marketplace on his feet like other healthy people, the person who struck the blow should pay the damages and should be released.

These laws emerge from the sugya in Sanhedrin, which requires that the victim be unable to stand, because if the victim can stand and walk like a healthy person, the one who injured him cannot be held liable for his subsequent death. But if the injured person cannot stand, the physicians must evaluate him to determine whether he is likely to die. If they determine that the victim will survive, because his injury is not fatal, the one who struck him cannot be held liable even if the victim does eventually die. And we see that in these circumstances, no mention is made of the 18 defects that render an animal a tereiphah. So, clearly, even if someone injures another person, causing one of the 18 defects that render an animal a tereiphah, e.g., puncturing the cerebral membrane or one of the internal organs, the one causing the injury is not held liable if the physicians determine that the injury is not fatal, even if the victim subsequently dies as a result. And if the physicians determine the injury to be fatal, but the victim recovers sufficiently to get up and walk, then the perpetrator is not held liable should the victim die subsequently.

Moreover, the Rambam rules (Id. 2:8)

If a person kills a someone who is a tereiphah, even though the tereiphah eats, drinks and walks in the street, the person is not held liable, under the temporal law, for murder.

Every person is presumed to be physically sound, so that a person who kills another should be executed unless it is known definitively that the victim was a tereiphah, and the physicians say that his injury cannot be remedied and it will surely be fatal.

Thus, it is not required that the deceased be bedridden for the one that killed him to be exempt from punishment, because we infer from the verse “איש כי יכה כל נפש אדם” that for someone to be held liable for killing another, the victim must be a “complete soul,” which is understood to exclude a tereiphah who, in some respect, is defective or incomplete in a manner that could cause death. Therefore, even if someone can eat and walk like a healthy person, but has a defect that will eventually cause death, that defect would exempt the one who killed him from punishment. But it is not enough that the defect be identified; the physicians, based on the state of medical knowledge at that time, must determine whether the defect would have caused the death of the victim, and whether there was any possible remedy for the defect. If the doctors determine that the defect could have been remedied, then the perpetrator would be held liable for punishment, even though it is presumed that an animal with one of the 18 defects enumerated by the Halakhah cannot survive. Thus, the life of an accused murderer is saved only if the physicians determine that the victim could not have survived his fatal defect.

There are some that say that the 18 tereiphot of Halakhah do not exempt an accused murderer from punishment, because human beings have mazal (אדם אית ביה מזלא). This idea is mistaken. Is it possible that, if the victim were indeed a tereiphah who surely would have died because of that defect, that we would nevertheless execute the accused based on the assumption that victim might nevertheless have survived despite his fatal defect? Moreover, if victim’s mazal is sufficient to cause us to inflict the death penalty, why would the physicians’ assessment that the victim would have died as a result of his defect cause us to administer the death penalty notwithstanding the victim’s mazal? We could still assume that the mazal of the victim would have allowed him to survive even though the physicians assessed his defect as fatal.

But it is clear that the Halakhah of the 18 tereiphot is not relevant or applicable (either leniently or stringently) to the punishment of a murderer. Nor did the Rambam reach this conclusion based on his own reasoning, but on the sugya in Sanhedrin (78a) in which Rava says that one who kills a tereiphah is not liable to be punished. The Tosaphists raise the difficulty that in the tractate Niddah, Rava holds the opinion that a tereiphah can survive despite having a defective vital organ, so why would one who killed a tereiphah be exempt from punishment? The Tosaphists answer that, although the tereiphah may survive for a time, he will eventually succumb to the defect. But this answer contradicts the sugya at the beginning of “Eilu Tereiphot” where the Gemara infers from the statement that any animal with such a defect cannot survive (כל שאינה כמוה חיה טרפה) is the opinion of the tanna that hold that a tereiphah cannot survive (טרפה אינה חיה). But how was such an inference possible if, as the Tosaphists assert, the opinion that a tereiphah can survive (טרפה חיה) does not disagree that eventually a tereiphah will die because of the defect? This difficulty compelled the Rambam to conclude that Rava’s statement concerning one who kills a tereiphah is not referring to a tereiphah with one of the defects enumerated by the Halakhah, concerning which there is a tannaitic dispute whether such a tereiphah can survive, but a tereiphah who was determined to be fatally ill by the physicians after medically assessing his condition.

If the 18 tereiphot were not enumerated by the Halakhah, the Biblical law would not have prohibited eating the flesh of an animal with a punctured esophagus or cerebral membrane, because only the flesh of an animal on the verge of death and beyond any medical remedy is prohibited by the Biblical law. Without the Halakhah, a medical assessment would be required to prohibit the flesh of an animal based on the obligation to eat the flesh only of animals capable of living (“זאת החיה אשר תאכל” — חיה תאכל אינה חיה לא תאכל), a prohibition inferred from a positive commandment (לאו הבא מכלל עשה). But eating the flesh of animals that are incapable of living, but not yet on the verge of death, would not be punishable by lashes, because there is no explicit prohibition against eating the flesh of such animals unless they are on the verge of death. But such prohibitions would apply only based on a medical assessment of the animal and that defective organ, as is the case for determining whether someone killed by another person was a tereiphah. A similar medical assessment of the animal and the defective organ would be required to determine whether the flesh of an animal was permissible when the condition of the animal was not sufficiently grave that, even without a medical assessment, it could be determined that the animal was on the verge of death.

Thus, without the Halakhah, we would have explained the Scripture to require a medical assessment of each animal to determine whether it was a tereiphah. The Halakhah therefore came to establish fixed rules that make the medical assessment necessary when a human life is involved, unnecessary for animals with the enumerated defects. The Halakhah therefore doesn’t interpret the Scripture, but imposes a stringency beyond what would have been required by the Scripture had it been interpreted without the Halakhah.

But how could lashes be administered as a punishment for violating such a stringency? The Rambam therefore writes explicitly in his Sefer Ha-Mitzvot that lashes are administered for violating the 18 tereiphot of Halakhah only based on a rabbinic enactment. The Peri Hadash was needlessly perplexed by this statement, arguing against the Mahariqash who ruled leniently concerning tereiphot for this reason based on this opinion of the Rambam. In his commentary on the Mishnah, the Tipheret Yisrael also cites this statement of the Rambam in the Sefer ha-Mitzvot and dismisses it as a youthful opinion subsequently revised. But in fact this opinion that lashes are not administered as punishment for eating the flesh of any of the 18 tereiphot enumerated by the Halakhah is expounded in various rulings in the Yad ha-Hazaqah. For example, in Ma’akhlot Assurot 4:9, he wrote:

The intent of the verse is that a mortally wounded animal on the verge of death is forbidden. On this basis, our Sages said: “The general principle is: “whenever [an animal] with such a condition will not live, it is a tereiphah.” In Hilkhot Shehitahwe will explain which conditions cause an animal to be deemed a tereiphah and which do not cause it to be deemed a tereiphah.

So the Rambam states clearly that the verse prohibiting a tereiphah is speaking about an animal on the verge of death whose life cannot be saved, so that even if one performs a valid shehitah on such an animal before it expires, eating its flesh is forbidden, and anyone eating the flesh of such an animal violates the Biblical prohibition and would be subject to punishment by lashes. But the Sages further expounded that even an animal with a fatal defect, but not yet on the verge of death, is also considered a tereiphah. They deduced this from the verse “זאת החיה”, inferring that only an animal capable of surviving (חיה) may be eaten but an animal that cannot survive (אינה חיה)  may not be eaten. But violating this prohibition would not entail a punishment of lashes even if the status of the animal as a tereiphah was established by a medical examination, inasmuch as the animal is not on the verge of death and can still function normally.

It was in reference to this prohibition inferred from a positive commandment (איסור עשה) that the Halakhah came to add a stringency not to judge the status of an animal as tereiphah through a medical examination of its condition, but instead to follow fixed rules applicable to all species of animals. Such rules could not be based on medical science, because wisdom and common sense contradict such an idea (כי החכמה והשכל הבריא מכחיש את זאת); one wound cannot be compared to another wound, nor one wounded animal compared to another wounded animal, nor one species to another species. No single fixed rule can apply equally under all circumstances, except by going to an extreme and saying that removing the heart or another vital organ of an animal would certainly cause its death. But the Halakhah that enumerates all the tereiphot certainly was not intended to provide a leniency compared to performing a comprehensive medical examination, but to add a stringency through these rules above and beyond the separate medical examination of each animal. Indeed, we often see that animals are often rendered a tereiphah by a small puncture in an internal organ even though such punctures frequently heal themselves, and by broken bones in the external limbs even though broken bones frequently heal themselves in both humans and animals.

Nevertheless, the Rashba wrote in responsum 98 that even if 100 witnesses testified in contradiction to the tradition handed down from the Sages that a tereiphah cannot survive for more than 12 months, he would not believe them. Such an idea was unacceptable to the Rambam who believed that the rules about what conditions render an animal a tereiphah were intended to create stringencies that would eliminate any need to conduct a comprehensive medical examination to determine whether an animal is a tereiphah, not that those rules actually reflect the physical or medical reality that any slight puncture or crack in the esophagus or the lungs is incurably fatal for any and every animal.

Rather the dispute among the Sages about whether a tereiphah can survive is really about the following. Those who hold the opinion that a tereiphah can survive believe that, once the Halakhah established rules concerning what defects or injuries cause an animal to be a tereiphah, we cannot permit a doubtful tereiphah, even if it did survive for 12 months, because if even an animal that is certainly a tereiphah can survive for more than 12 months, how can a doubt concerning whether an animal is tereiphah be resolved by observing that it has indeed survived for 12 months? However, those of the opinion that the survival of an animal for 12 months does resolve a doubt concerning its status as a tereiphah argue that although we would not deviate from the Halakhah concerning an animal that is certainly a tereiphah just because it survived for 12 months, since the Halakhah is ultimately based on the verse “זאת החיה”, when a doubt does arise concerning whether an animal is a tereiphah, we revert to the source of the prohibition – not to eat an animal unable to live (אינה חיה לא תאכל) – and therefore permit the flesh of a sapheq tereiphah to be eaten if it survives for 12 months.

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