F. Come
and take note: [140a] “The birds of the air nested in its branches,
and from it all living beings were fed” (Dan. 4:12) — [the verse indicates
that the term spr refers to all
birds, even unclean ones]. [No. This indicates that unclean birds] are called,
“The birds of the air.” They are not
called just plain “birds” [spr].
G. Come
and take note: “You may eat all clean birds” (Deut. 14:11) — may we derive from this the conclusion that
there are unclean birds [called spr]?
No. We may derive from this the
conclusion that there are prohibited birds [called spr]. What case is that? If
that is the case of terefah, that is
stated explicitly [elsewhere that it is prohibited]. If it is the case of the
slaughtered bird of the leper, we may derive that rule from the continuation of
the verse, “But these are the ones of which you shall not eat: [the eagle,
the vulture, the osprey]” (Deut. 14:9) — [the words “of which”] include the
slaughtered bird of the leper. [This is not an acceptable line of reasoning.]
Invariably [the first verse includes the case of] the slaughtered bird of the
leper. [And the verse informs us that one who eats this bird] violates thereby
[both] a [positive] commandment [“you may eat”] and a [negative] prohibition
[“of which you shall not eat”].
H. But
why do we not support [our earlier hypothesis and say the verse includes the
case of] terefah [and the verse informs us that one who eats this bird]
violates thereby [both] a commandment [“you may eat”] and a prohibition [“of
which you shall not eat”]? [We cannot accept this line of reasoning because we
have a principle that] we interpret a matter in accord with its context. And the context of the passage is [birds]
that were slaughtered.
I. Come
and take note: “[The priest shall command them to take for him who is to be
cleansed] two living clean birds [and cedarwood and scarlet stuff and hyssop]”
(Lev. 14:4) — what does “living” mean? Does it not mean that you may put them
in your mouth [and eat them]? We may derive the conclusion that there are those
that you may not put in your mouth [to eat that are also called “birds” (spr)].
J. No.
What does “living” mean? It means
[birds] that have life in their major limbs. [This excludes a bird that has a
limb that is devitalized or missing.]
K. Come
and take note: From the continuation
of the verse, “clean” may we derive
the conclusion that there are those that are unclean [that are called “birds”]?
No. We may derive from this the conclusion that there are terefot [that are
called “birds”]. But we derived the rule
for terefot from the word, “living”.
L. This
settles the matter according to the authority who holds the view that a terefah
is deemed as if it is alive. But
according to the authority who holds the view that a terefah is not deemed
as if it is alive, what can one say?
M. And furthermore, according to both the authority who holds the view that a terefah
is deemed as if it is alive, and the
authority who holds the view that a terefah is not deemed as if it is
alive, we derive the matter from what was
taught by the House of R. Ishmael.
N. For, taught the House of R. Ishmael:
It states the matter of [sacrifices that] render fitness and that render
atonement inside [the Temple]. And it states the matter of [sacrifices that]
render fitness and that render atonement outside [the Temple]. Just as we find
concerning the matter of [sacrifices that] render fitness and that render
atonement inside [the Temple], [scripture] equated that which renders fitness
with that which renders atonement, so too, we find concerning the matter of
[sacrifices that] render fitness and that render atonement outside [the
Temple], [scripture] equated that which renders fitness with that which renders
atonement. [We do not need a specific teaching to exclude a terefah as a sacrifice for a leper,
brought outside.]
O. Said R. Nahman bar Yitzhak,
“[Scripture states `clean'] to exclude the birds of a condemned city.” With regard to what rule [does it exclude
the birds]? If we say it is with regard to the rule of sending away [a bird],
the Torah never said that one should send away [a bird] if that might lead one
to stumble into sin [e.g., by eating a forbidden bird]. Rather it must be [that it excludes them
with regard to the rule of] slaughtering. [`Clean' excludes this bird.]
P. Raba said, “[Scripture states
`clean'] to exclude the case of one who wants to pair the bird with another
[for the purification of a leper] before sending it away.” With regard to what rule [does it exclude the birds]? If we say it is
with regard to the rule of slaughtering, lo, it must be sent away! Rather it
must be [that it excludes them with regard to the rule of] sending away [one
bird].
Q. R. Papa said, “[Scripture states
`clean'] to exclude the case of one who exchanges birds for birds that were
consecrated to idolatry.” As it is written, “[Do not bring an abhorrent thing
into your house,] or you will be set apart for destruction like it” (Deut.
7:26) — whatever you spawn from it, takes on its characteristics. With regard to what rule [does it exclude
the birds]? If we say it is with regard to the rule of sending away [a bird],
the Torah never said that one should send away [a bird] if that might lead one
to stumble into sin [e.g., by eating a forbidden bird]. Rather it must be [that it excludes them
with regard to the rule of] slaughtering. [`Clean' excludes this bird.]
R. Rabina
said, “In this case, what are we dealing with? With a fowl that killed a
person.” What is the situation [regarding the bird]? If they passed judgment on
it — it is put to death [and would not have escaped]. Rather it must be the
case that they had not yet passed judgment on it. And with regard to what rule
[does it exclude the birds]? If we say it is with regard to the rule of sending
away [a bird], they need to bring it to the court and to fulfill by [killing it
the requirement of the verse], “So you shall purge the evil from your
midst” (Deut. 13:5). Rather, it must be
with regard to the rule of slaughtering. [`Clean' excludes this bird.]
V.1
A. If
an unclean bird sits on the eggs of a clean bird [M. 12:2 B] — it makes perfect sense to say that where an unclean bird sits on the eggs of a clean
bird [one is free of the requirement of letting the dam go]. We need to
have “a bird [=spr, a clean one]” and
that is lacking [in this case]. But where a
clean bird sits on the eggs of an unclean bird [C], lo this is “a bird”
[and he should be liable to the requirement].
B. This accords with what was stated by
R. Kahana, “[You shall let the mother go, but the young] you may take to
yourself; [that it may go well with you, and that you may live long]” (Deut.
22:7) — and not for your dogs. Here too
[we say], “You may take for yourself” — and not for your dogs.
C. And
with regard to what case did R. Kahana state the matter? With regard to that
which was taught on Tannaite authority: Where the dam is terefah, one is liable to the law of
letting the dam go. If the young birds are terefot,
one is free from the requirement of letting the dam go. [Cf. T. 10:10 G-H.]
D. What
is the source of these assertions? Said R. Kahana, As scripture stated, “[You shall let the mother go, but the young]
you may take to yourself; [that it may go well with you, and that you may live
long]” (Deut. 22:7) — and not for your dogs.
E. And
why do we not link [with regard to the law, the case of] the dam that is terefah with [the case of] the young birds that are
terefot? [We would then argue that] what is the case where the young birds
are terefot? One is free from the
requirement of sending away the dam. So too where the dam is terefah, he also should be free from the
requirement of sending away the dam.
F. [140b] If this is the case
then why do I need the word “a bird” to exclude an unclean bird from the rule?
Lo, was it not taught on Tannaite authority, If the dam of young birds are terefah, one is liable to the
requirement of letting the dam go?
G. Said
Abayye, “Here is how you should state the matter: A young bird whose mother is terefah is liable to the requirement of letting the
dam go.” [Contrary to C.]
V.2
A. R.
Hoshaya posed a question: If one thrust his hand into the nest and slaughtered
a portion of the organs [of a young bird by slitting less than half of its
windpipe or esophagus in its throat] what is the law? Do we say that because if
he leaves it [in this condition] it renders [the young bird] terefah, therefore we must follow [the implication of
the verse that the law applies to young that], “[you may take] to yourself”
(Deut. 22:7), but not to [those terefah birds
that you must feed] to your dogs? Or
perhaps since he has it in his power to complete the act of slaughter, we label
this [a case where the verse], “you may take to yourself” [applies] and he
is liable to the requirement of letting the dam go. The question stands unresolved.
V.3
A. R.
Jeremiah posed these questions: [In cases where the mother bird was not sitting
directly on the young, would one be liable to the requirement of letting the
dam go? To wit,] if a cloth [separated the mother from the young] what is the
law as to whether it interposes [and the result is a circumstance not covered
by the commandment of the verse]? If its
wings [separated the mother from the young] what is the law as to whether it
interposes [and the result is a circumstance not covered by the commandment of
the verse]? If spoiled eggs [separated
the mother from the young] what is the law [as to whether it interposes and the
result is a circumstance not covered by the commandment of the verse]? If there were two rows of eggs, one on top of
another [and the upper row separated the mother from the lower row] what is the
law [as to whether it interposes and the result is a circumstance not covered
by the commandment of the verse]? If the
male bird sat on the eggs and the female bird sat upon the male bird [and
separated the mother from the young] what is the law [as to whether it
interposes and the result is a circumstance not covered by the commandment of
the verse]? The question stands unresolved.
V. 4
A. R.
Zira posed these questions: If a dove [sat] on the eggs of a tasil-dove, what
is the law [as to whether the circumstance is covered by the commandment of the
verse]? If a tasil-dove [sat] on the
eggs of a dove, what is the law [as to whether the circumstance is covered by
the commandment of the verse]?
B. Said
Abayye, “Come and take note: [If] an
unclean bird sits on the eggs of a clean bird, or a clean bird sits on the eggs
of an unclean bird, one is free of the requirement of letting the dam go [M.
12:2 B-C]. Lo, if a clean bird [sits on the eggs of a] clean bird, one is
liable to the requirement. [What then is the question?]”
C. Perhaps
[this inference from M.'s rule] applies only to a hen-partridge [which is
accustomed to sit on the eggs of other birds].
VI.1
A. A
cock partridge — R. Eliezer declares liable [to the law of letting the dam go]
and sages exempt [M. 12:2 E-G]. Said
R. Abbahu, “What is the basis for the view of R. Eliezer? He derives the
inference from [the common use in two verses of the term] `brood.'” It is
written here, “Like the partridge that gathers a brood which he did not
hatch, so is he who gets riches but not by right; in the midst of his days they
will leave him, and at his end he will be a fool” (Jer. 17:11). And it is written there, “There shall
the owl nest and lay and hatch and gather her young [brood] in her shadow; yea,
there shall the kites be gathered, each one with her mate” (Isa. 34:15).
B. Said R. Eliezer, “The dispute
pertains only to a case of a cock-partridge. But in the case of a hen-partridge
[sitting on eggs], all agree that one is liable [to the requirement to send
away the dam].”
C. But
this is obvious. A cock-partridge is what is taught in the Mishnah. [Eliezer
had to state the matter because] it might have made sense to maintain that
sages exempted [from the requirement] even a hen-partridge. And the reason that
it taught in the Mishnah, A
cock-partridge, was in order to
instruct you of the potency of R. Eliezer's view. It comes to make the novel point [that a hen-partridge is not exempt].
D. And said R. Eliezer, “The dispute
pertains only to a case of a cock-partridge. But in the case of any other cock
[sitting on eggs], all agree that one is exempt [from the requirement to send
away the bird].”
E. But
this is obvious. A cock-partridge is what is taught in the Mishnah. [No.
Eliezer had to state the matter because] it might have made sense to maintain
that R. Eliezer included [in the requirement] even any other cock. And the
reason that it taught in the Mishnah, A
cock-partridge, was in order to
instruct you of the potency of the rabbis' view. It comes to make the novel point [that a cock-partridge is liable].
F. It
was taught on Tannaite authority in accord with this view: Any other cock
is exempt [from the requirement to send the bird away]. R. Eliezer declares
liable and sages exempt.
Unit
I.1 gives two explanations of the text of the M. Unit I.2 provides a scriptural
basis for the rule of M. Further discusses its implications. I.3 spells out two
views of the circumstances of the case in M. and shows why they are mutually
exclusive. It then explores intersecting rules on related issues. II.1 analyzes
the implications of M.'s rule in light of its scriptural basis. III.1 comments
on a term in M. Unit IV.1 works out the scriptural basis of M.'s rule. V.1
works out the scriptural basis of M.'s rule. V.2-4 raises several questions
related to M. Finally, VI.1 works out the scriptural basis of M.'s rule.
12:3 A-L
A. [If the dam] was hovering [over the
nest],
B. when its wings touched the nest,
C. one is liable to send forth the dam.
D. [If] its wings are not touching the
nest, he is exempt from the requirement to send forth the dam.
I E. [If] there was there only one
nestling or one egg, one is liable to send forth the dam,
F. as it is said, “A bird's nest”
(Deut. 22:6) — a bird's nest of any kind.
II G. [If] there were there nestlings able
to fly
H. or spoiled eggs
I. one is exempt from the requirement
of sending forth the dam,
J. as it is said, “And the dam sitting
upon the young or upon the eggs” —
K. Just as the nestlings are those
likely to live, so the eggs must be those likely to live, excluding those which
are spoiled.
L. And just as the eggs require their
dam, so the nestlings require their dam, excluding those that can fly.
I.1
A. Our
rabbis taught: [The rule applies when the dam is] “Sitting upon” but not “hovering
over” [the nest]. You might infer that even when its wings touched the nest [that the rule does not apply]. It
comes to teach, “Sitting upon.” On what
basis do we derive this teaching? Because it is not written [simply],
“Sitting.”
B. Said R. Judah, said Rab, “If she
[the dam] was sitting [perched above the nest] upon two interlaced branches of
a tree — we assess the situation. In any case where, if the branch is removed,
she would fall down upon them [the young in the nest] — one is liable to send
forth [the dam]. And if not — one is exempt.”
I.2
A. They
posed a question: If she was sitting among them, one is exempt from letting
the dam go. If she was sitting on them, one is liable to let the dam go. If she
[the dam] was hovering [over the nest], even when its wings touched the nest,
he is exempt from the requirement to send forth the dam.
B. Is
it not the case that the instance where she is hovering above them is
comparable to the instance where she is sitting among them? What is the
circumstance where she sits among them? She touches them. So too the
circumstance where she hovers above them, she touches them. But where she was
[sitting between] the branches of a tree, one is exempt [because she is not
touching them].
C. No.
The instance where she is hovering above them is comparable to the instance
where she is sitting among them. What is the circumstance where she sits among
them? She does not touch them. So too the circumstance where she is above them
where she does not touch them. And this is identical to the case where she was
[sitting between] the branches of a tree [one is liable].
D. Here
too it makes sense to say [one is liable]. For if you might have concluded
[that when the dam is sitting above the nest] between the branches, one is exempt,
why then did it teach [in A]: If she
[the dam] was hovering [over the nest], even when its wings touched the nest,
he is exempt from the requirement to send forth the dam? Let it teach [the instance where she was sitting above the nest]
between two branches and we would derive that most certainly where she was
hovering above [he is exempt].
E. It
is necessary to state the instance where she is hovering [above the nest].
For [we learn from this that] even where its wings were touching the nest, one
is exempt from letting the dam go.
F. But
lo we know it was taught on Tannaite authority: When its wings touched the nest, one is liable to send forth the dam
[M. 12:3 B-C]. Said R. Jeremiah, “Concerning
what case did the Mishnah teach us the rule? Where she touched [the nest]
on the side.”
G. There
are those who give another version [of A-F]: Let us say this supports [Rab Judah in the name of Rab]. If she was
sitting among them, one is exempt from letting the dam go. If she was sitting
on them, one is liable to let the dam go. If she [the dam] was hovering [over
the nest], even when its wings touched the nest, he is exempt from the
requirement to send forth the dam.
H. Is
it not the case that the instance where she is hovering above them is
comparable to the instance where she is sitting among them? What is the
circumstance where she sits among them? She does not touch them. So too the
circumstance where she hovers above them, she does not touch them. And this is
identical to the circumstance where she was [sitting between] the branches of a
tree [and one is liable].
I. No.
The instance where she is hovering above them is comparable to the instance
where she is sitting among them. What is the circumstance where she sits among
them? She does touch them. So too the circumstance where she is above them
where she does touch them. But in the case where she was [sitting between] the
branches of a tree [one is exempt].
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