Shulchan Aruch: Chapter 497 - The Laws [Governing] Preparing [Items to be Used on] a Festival

“Fishponds” is used as a translation for the term beibarin which is translated below as “vivariums,” i.e., an area where live animals are kept under conditions simulating their natural environment.

Beitzah 23b.

Rashi gives this explanation in his commentary to Beitzah, loc. cit. See also sec. 495:9, where the Alter Rebbe mentions a related point: People do not usually hunt or fish to provide food for that very day. Rather, people usually hunt or fish to provide food for the following day. See also the Kuntreis Acharon (note 1) to this section, where the Alter Rebbe discusses this rationale.

Beitzah 24a.

The Alter Rebbe uses the word metzudah, which we have translatedas “trap or net,” because this term implies both meanings.

See sec. 316:13, 24.

If the fish are not, “visible to the eye,” it cannot be said that they have been prepared to be used on the festival. Although the person knows there are fish in the pond, and he would like to catch the fish on the festival for his festive meal, since he did not actually see the fish, it is not considered that the person “prepared” the fish for use on the festival.

In his Kuntreis Acharon (note 1), the Alter Rebbe notes that Magen Avraham 497:1 rules that if the water in the pond is clear, the fish can be seen, and the pond is small enough that one could easily catch the fish, a person is permitted to catch some of those fish on a festival. The rationale for his ruling is that since the water is clear, it can be said that before the festival, the person intended to catch a specific fish, and therefore, that fish was prepared to be caught on the festival, and is not muktzeh. However, the Alter Rebbe rejects this ruling in the Kuntreis Acharon, and instead rules according to Turei Zahav 497:1, maintaining that even if the fish can be seen, they are still not considered to have been prepared to be caught on the festival, and are still considered to be muktzeh. Therefore, the Alter Rebbe maintains it is forbidden to catch such fish on the festival.

Although Magen Avraham maintains that it is permitted to catch fish on a festival in the abovementioned instance, he nonetheless maintains that in most instances it is forbidden to catch fish on a festival because doing so involves performing the melachah of trapping.

The Alter Rebbe rejects that rationale, supporting his view by citing the law quoted from Beitzah 25a later in the subsection regarding damming up a water canal before the festival. As the Alter Rebbe explains in the main text, such an action is effective in removing the fish from the category of muktzeh because by damming up the canal, the person is clearly demonstrating that he intends to catch these fish on the festival. Damming up the canal is also effective in avoiding the melachah of trapping, because on a festival, this melachah only applies to animals or fish that are categorized as muktzeh. The Alter Rebbe extends this logic in the main text, by ruling that fish placed in a small vivarium or in a crate of water are also not forbidden due to the melachah of trapping. Accordingly, the Alter Rebbe permits catching fish in a dammed-up pond or taking them from a closed crate, even if the pond or crate are not very narrow. For that reason, the Alter Rebbe proceeds to permit catching fish by hand, even if it requires more than one lunge to do so.

These rulings are based upon Rambam’s ruling in Hilchos Shevisas Yom Tov 2:7, that when a fish or an animal is prepared to be taken on a festival, the melachah of trapping does not apply. Rather, the melachah only applies to fish or animals in large ponds or pens. This view is supported by the later authorities. To quote Rambam, op. cit.: “Fish in large ponds and non-domesticated animals and fowl in large pens… are considered muktzeh and may not be snared on a holiday.”

The Alter Rebbe asks: Since catching a fish in a small pond does not violate the prohibition against trapping and is forbidden only because the fish are muktzeh, why was the person penalized and required on the night after the festival to wait until he could have performed the forbidden act before making use of the fish, as is the law regarding one who performs a forbidden melachah on the festival?

The Alter Rebbe resolves this question by explaining that since such fish (and the like) are forbidden to be eaten on the festival because they are muktzeh, the Scriptural prohibition against trapping applies, since the person is performing a melachah on the festival from which he may not benefit on the festival. Accordingly, the Sages penalized such a person.

The practical guidelines resulting from this Kuntreis Acharon are:

a) It is forbidden to catch fish even when they are located in a clear-water pond where they are visible because of the prohibition of muktzeh.

b) If fish have been prepared and placed in a large tank before the festival, it is permitted to catch them, provided a net is not necessary.

Beitzah 25a. Such actions demonstrate the person’s intent to catch the fish on the festival. Therefore, they are effective in removing the fish from the category of muktzeh.

The Alter Rebbe uses the term, erev yom tov, which is usually translated as, “the day before the festival.” In this context, however, we have translated erev yom tov as, “before the festival,” because it is logical to say that there is no difference whether the fish were set aside to be used on the festival on the day before the festival or at any other time before the festival.

The rationale for this ruling is that since the owner could easily catch the fish by hand, catching them with a net does not violate the forbidden melachah of snaring (see sec. 316:24; see also subsection 10, below). Nevertheless, the Alter Rebbe advises against using a net for the reason mentioned in the main text.

The Alter Rebbe is referring to a trap or net. In this instance, using a trap or a net does not involve performing a melachah. Generally, the Alter Rebbe advises against using a trap or net so as to avoid catching the fish in the same manner as he would during the week (see subsection 2 above). However, in the instance at hand, one may use a trap or net since there is difficulty involved with catching the fish by hand.

I.e., the person can pick up a fish, inspect it, and return it to the water if he prefers to take a different fish.

See subsection 19, below. In that source the Alter Rebbe issues a similar ruling regarding taking doves from a dovecote. As the Alter Rebbe states there, the person need not be certain that he will need all the doves in the dovecote on the festival; all that is necessary is that he have in mind the possibility that he will need them all.

In his Kuntreis Acharon (note 2), the Alter Rebbe explains his ruling here. One might wonder why, in subsection 18 below, the Alter Rebbe rules that before the festival, a person must mark the doves he is selecting for use on the festival, while in this subsection he rules that the person is permitted to take any fish that he catches, without having previously marked the specific fish he will use on the festival. This is in contrast to other authorities, including Pri Chadash 497:5, who require the person to select and designate the fish he will take on the festival before the festival by marking them in some way, e.g., tying a strand to them.

To explain: In this matter, the Alter Rebbe rules in accordance with Turei Zahav 497:7. Indeed, the Alter Rebbe uses the same rationale as Turei Zahav for making this distinction, namely that it is very likely that a person will catch a dove and decide that he does not like it, and then take a different dove in its place. In contrast to that situation, it is unlikely that a person will catch a fish, decide he does not like it, and throw it back in the water.

Students of the Alter Rebbe’s text have explained that the license given to the person to take the fish on the festival depends on the principle of bereirah, retroactivity, i.e., retroactively, it is considered as if the fish that the person caught on the festival are the ones that he designated to be taken before the festival. It should be noted that our Sages maintain that the principle of bereirah only applies regarding matters of Rabbinic Law, but not regarding matters of Scriptural Law(Beitzah 37b-38a). Hence, leniency can be granted in this instance because the prohibition involved is muktzeh, which is Rabbinic in origin.

There is a principle in Talmudic Law that a Rabbinic decree may be established to safeguard a Scriptural prohibition, but not to safeguard an existing Rabbinic decree. The rationale is that such a practice would be establishing a safeguard for a safeguard, a gezeirah legezeirah (Beitzah 2b-3a, see Rashi there, s.v. vehatanya, et al.). The commentaries question why that principle is not applied in this instance, since, as the Alter Rebbe states, the person is forbidden to feed the animal lest he catch it, and he is only forbidden to catch an animal on a festival because of the prohibition against handling muktzeh, which is a Rabbinic decree.

Eliyah Zuta 497:1 resolves this difficulty by explaining that this safeguard was included in the original decree against muktzeh. When the Sages deemed the animals as muktzeh, they also forbade feeding them. Hence, this prohibition is part of an existing Rabbinic decree, not a new Rabbinic decree. See Kaf HaChayim 497:6.

Talmud Yerushalmi, Shabbos 13:7.

In his Kuntreis Acharon (note 3) to this section, the Alter Rebbe emphasizes that this restriction was instituted because the animal in question is muktzeh, not as a safeguard lest the person trap it. Therefore, the Alter Rebbe maintains that the prohibition applies to domesticated animals, even though the prohibition against trapping them does not apply on a festival.

There are authorities who maintain that the prohibition against feeding an animal that is muktzeh on a festival was instituted as a safeguard against trapping. These authorities draw support for their ruling from the law cited in sec. 305:26, that it is permitted to feed an animal that fell into a cistern on a festival. They explain that since the animal is already trapped, there is no need for this prohibition as a safeguard. However, the Alter Rebbe does not accept this rationale, and explains that the prohibition was instituted as a safeguard for the prohibition against muktzeh. As such, the Alter Rebbe maintains that the prohibition should have been applied with regard to the animal that fell into the cistern as well. However, leniency is granted in that instance because of the suffering the animal will endure (see sec. 305:26). The rationale is that in other instances, an animal can graze and find its own food, but when it has fallen into a cistern, it is confined and would not have any food if a person did not feed it. Therefore, leniency is granted in consideration of the animal’s suffering.

In this Kuntreis Acharon, the Alter Rebbe also refers to the explanation he gave in the Kuntreis Acharon (note 1) of Rambam’s ruling (Hilchos Shevisas Yom Tov 2:7), reiterating that the rationale for Rambam’s ruling that catching such fish is forbidden as trapping is because they are muktzeh, and are therefore forbidden to be eaten on the festival. Hence, catching the fish is forbidden, since the person would be performing melachah on the festival from which he may not benefit on the festival.

In general, animals are placed into one of two categories with regard to whether or not a person is permitted to feed them on Shabbos and festivals: a) animals that rely on humans for food and b) animals that find their own food. On Shabbos, it is permitted to feed animals that are dependent on humans for their food.However, with regard to animals that find their own food, the Alter Rebbe writes in sec. 324:7 : “It is even forbidden to cast [food] before [bees or doves], because one is not responsible for feeding them since they go out and [feed themselves by] eat[ing] in the fields.”

See sec. 515:4, where the Alter Rebbe rules using similar logic.

Beitzah 24a-b. See also sec. 515:4, where the Alter Rebbe issues a similar ruling.

See sec. 252:1, where the Alter Rebbe explains that a person is permitted to set a trap on Friday so that it will catch prey on Shabbos, because a person is not obligated to have his utensils rest on Shabbos. However, on Shabbos and festivals, one is forbidden to take an animal that was caught in a trap on that day.

In which instance, the trapped animal would be muktzeh, because the person did not have in mind to slaughter it before the beginning of the festival.

In which instance, the trapped animal would be permitted, because before the beginning of the festival, the person had in mind to slaughter any animal already caught in the snare.

Beitzah 24b. See sec. 513:4, where the Alter Rebbe issues a similar ruling.

As the Alter Rebbe states in sec. 515:4, the second day of the festival is definitively given the status of a festival according to Rabbinic Law with regard to the prohibition of muktzeh. Hence, whatever is forbidden as muktzeh on the first day of a festival is also forbidden on the second day. This rule applies even if the object that is forbidden on the first day of the festival is only forbidden because of a doubt regarding its actual status.

See also the Alter Rebbe’s rulings in sec. 498:7, sec. 513:4, and sec. 515:4, where different laws concerning doubtful situations on the second day of a festival are discussed.

See sec. 514:4, where the Alter Rebbe rules stringently even regarding situations where the rationale that the object is muktzeh does not necessarily apply.

Beitzah 4a. This ruling can be understood in light of the ruling in Beitzah 4b, that a davar sheyeish lo matirin is never considered batel, inconsequential, even when it is mixed with 1000 times its volume of permitted substances (see also the Shulchan Aruch of Rav Yosef Caro, Yoreh Deah 102:1).

In such an instance, instead of permitting the prohibited substance to be eaten because it is part of a mixture containing a majority of permitted substances, our Sages ruled that one must wait to partake of the mixture until the time comes when the davar sheyeish lo matirin becomes permitted. Similarly, in the present instance, instead of permitting an object that may or may not be muktzeh, the Sages ruled that one should wait until the prohibition itself no longer applies.

In that source, the Alter Rebbe rules that when there is a doubt as to whether or not an object is muktzeh, the Sages ruled stringently because of the severity of the principle of muktzeh. Hence, the prohibition mentioned here applies even on the second day of a festival celebrated in the Diaspora. See also the Kuntreis Acharon (note 3) to sec. 515.

Beitzah 24b.

Literally this term means, “the time it would take to make it.” As mentioned in sec. 252:11, et al., there are situations when our Sages forbade benefiting from melachah performed on Shabbos or the festivals immediately after the holy dayends, and require the person to wait until the amount of time that it would take to perform the melachah has passed before he benefits from that melachah (see sec. 252:11, et. al.). This penalty was instituted to prevent people from performing certain activities forbidden by the Sages as a safeguard against the performance of melachah onthese holy days, for example, instructing a non-Jew to perform melachah on Shabbos (see sec. 252:11; see also sec. 325:6, 9), leaving food to cook on Shabbos when it was not thoroughly cooked beforehand (see sec. 253:12, 24, 25; see also sec. 318:1), and having articles brought from beyond the Shabbos or festival limits of a town (see sec. 515). That penalty is not instituted in the present instance for the reason the Alter Rebbe proceeds to state. See sec. 515:1, where this concept is also mentioned.

See sec. 515:2.

In that source, the Alter Rebbe explains that one may not prepare for Shabbos on a festival.

The rationale for this ruling is as follows: As the Alter Rebbe explains in sec. 495:15, sec. 505:7, sec. 513:8, and sec. 515:6, the second day of a festival observed in the Diaspora was instituted because of a doubt. Hence, fundamentally, one of the two days celebrated in the Diaspora is an ordinary weekday. If the first day of the festival is an ordinary weekday, it is permitted to slaughter the trapped animal on the second day of the festival because it is permitted to trap an animal on a weekday in preparation for a festival. Similarly, if the second festive day celebrated in the Diaspora is the ordinary weekday, the animal that was trapped on the festival is permitted immediately upon the festival’s conclusion, as the Alter Rebbe rules at the beginning of this subsection. It must, however, be emphasized that it is prohibited to prepare food on the first day of a festival to be eaten on the second day of the festival, as mentioned in sec. 503.

See also sec. 496, footnote 21, where the difference between the two days of Rosh HaShanah and the two days of the other festivals is explained.

See sec. 316:24, where the Alter Rebbe differentiates between dovecotes located on private property and those not located on private property. As the Alter Rebbe explains in that source, doves living in a dovecote that is not located on private property are considered as needing to be trapped. See also subsection 11 and subsection 16 below.

Beitzah 24a.

Shabbos 107a. The Alter Rebbe’s intent is that the person is not liable for performing the melachah of trapping.It should be noted however, that one who traps such doves on Shabbos violates the Rabbinic prohibition against trapping. Moreover, on Shabbos, taking such doves by hand is forbidden regardless, independent of the prohibition against trapping, because they are classified as muktzeh since it is forbidden to slaughter them on Shabbos. See sec. 308:8, 78, where the Alter Rebbe discusses the classification of these animals as muktzeh.

The rationale for this ruling is that since the person does not intend to partake of the doves’ meat, the prohibition against trapping mentioned in footnote 35, above, applies.

In that source, the Alter Rebbe states:

>>When does the statement that [it is forbidden to trap game animals or fowl raised in a home] apply? When they are located in a courtyard or in a house that is so large that, were they not raised among people, a trap [or] special techniques would be necessary to snare them there and they would be deemed as “yet to be trapped.” For example, they were located in a house so large that it is impossible to catch hold of them in one lunge, and one chases them until they enter a room that is not that large and closes the door there in front of them.

Beitzah 23b. As stated at the end of sec. 316:1, there is a Rabbinic prohibition against trapping a trapped animal on Shabbos. However, that prohibition does not apply on a festival.

See subsection 14 below. See also sec. 518:13, where the Alter Rebbe issues a ruling based on this same principle.

In contrast to the doves mentioned in subsection 17 below, these fowl are the person’s property and are kept in his home. As such, they are considered to be prepared for him, and need not be designated on the day before the festival to be slaughtered on the festival.

The Alter Rebbe uses the word bayis, which is usually translated as “house,” “building,” or “structure.” However, itcan also refer to a single room.

Beitzah 24a. See also sec. 316:1, where the Alter Rebbe explains that forcing an animal into one of these enclosures is considered as having trapped it according to Rabbinic Law.

As stated in sec. 398:6 (based on Nedarim 56b), the area surrounding the city within 70 2/3 cubits from the last building of the city is considered iburo shel ir, (“the extension – literally, “the pregnant bulge” – of the city,”) and is considered as the city itself.

Beitzah 25a.

Since the lair is close to the city, it is assumed that the person knew of the fawns’ presence before the festival and intended to take them as food on the festival.

See sec. 316:1, 8. In those sources, the Alter Rebbe gives two examples of an animal that is categorized as, “yet to trapped”: a) it would probably take more than one lunge for a person to capture it, b) the enclosure has an opening through which the animal could escape.

I.e., the animal was caught on the festival in a snare that was set before the festival, and the person did not have to make any further effort to catch it.

The status of an object vis-à-vis the laws of muktzeh is determined during bein hashmashos, dusk, the period immediately preceding the start of Shabbos or the festival. See subsection 8 above, subsections 15 and 25 below, sec. 310:3, sec. 325:8, and sec. 515:4, 8.

See subsection 10, above.

See subsection 11, above. See also subsection 16, below. In these two subsections, the Alter Rebbe presents two different examples of living beings that are categorized as, “yet to be trapped.”

In that source, the Alter Rebbe presents an in-depth discussion of the topic of muktzeh on festivals. Although the Alter Rebbe ultimately states that the custom in these regions is to rule leniently regarding handling muktzeh on festivals, he nevertheless concludes “May blessing rest upon one who conducts himself stringently [regarding moving muktzeh] on festivals.”

Since these living beings are not categorized as muktzeh, even those authorities who forbid handling muktzeh on a festival accept this leniency. See subsection 14, above. See also sec. 495:13.

Here, the Alter Rebbe is indicating that it is desirable for one to show respect for the festival’s holiness by performing all the tasks that might lead to unnecessary effort on the festival before the festival begins.

Beitzah 24a.

Ibid. See subsection 14, above; see also sec. 316:24, where the Alter Rebbe distinguishes between these doves and doves raised in a household.

Beitzah, loc. cit. In subsection 10 above, the Alter Rebbe rules that privately owned fowl that are easy to catch may be caught on a festival, while here he rules that ownerless doves that are easy to catch may not be caught on a festival, because they are not his property.

By contrast, when a person knows that there are young doves that cannot fly on his property before the festival, they may be snared even if they were not designated before the festival. The rationale is that due to their inability to flee, they are considered as having been captured. Hence, since the doves can be easily taken, it is considered as if they were prepared to be taken. See subsection 14, above. There are thus three categories of doves: mature doves, young doves that can fly a bit, and doves that are so young that they cannot fly.

Beitzah 10a.

One can make such a sign by attaching a string to the doves’ feet. See sec. 495:14 and the Kuntreis Acharon (note 10) to that section, where the Alter Rebbe discusses the need for making a similar type of sign to designate figs and raisins to be eaten on the festival.

See the Kuntreis Acharon (note 2). In that source the Alter Rebbe explains that it is necessary to actually mark the doves mentioned here, while maintaining that no such sign is required when designating the fish mentioned in subsection 4 above. The Alter Rebbe explains that the rationale for these different rulings is that it is very likely that a person will find doves that he does not like and reject them, while it is unlikely that he will throw fish that he caught back into the water (see Turei Zahav 497:7). See footnote 13 above, where this Kuntreis Acharon is explained in greater detail.

Beitzah 10b.

See subsection 4 above, where the Alter Rebbe presents similar laws with regard to catching fish on a festival.

Beitzah 10b.

Generally, we follow the principle of min bemino batel berov, when a forbidden substance is mixed together with a larger quantity of permitted substances of the same type, the presence of the forbidden substance is nullified within the larger quantity of permitted substances (see sec. 442:14ff, sec. 447:1,18, sec. 626:9). Nevertheless, as the Alter Rebbe proceeds to explain, this principle is not applied in the present instance.

The additional dove is prohibited because it is muktzeh. As with all articles that are muktzeh the dove is not inherently forbidden. Rather, it is only forbidden for the duration of the festival. As soon as the festival ends, the dove will be permitted.

This factor is the basis for forbidding the mixture. In such instances, the Sages maintained that since the prohibition against the substance will not be in effect in a short time, why permit the currently forbidden substance? Let the time for the prohibition run its course and then the entire mixture will be permitted. See Rashi, Beitzah 3b. See also sec. 513:4. See also sec. 447:18.

However, it should be noted that the doves may not be eaten separately. Instead, they must be eaten together, in a manner that each bite contains meat from both doves. The rationale is that this way, the person will be certain that some of the food he is eating is unquestionably permitted. See the Shulchan Aruch of Rav Yosef Caro, Yoreh Deah 110:7. See also sec. 453:12, where the Alter Rebbe issues a similar ruling.

This section is not extant in the Alter Rebbe’s Shulchan Aruch. See the Shulchan Aruch of Rav Yosef Caro (Yoreh Deah 110:7), which states: “When an entity whose presence will never be nullified, because it is… a davar sheyesh lo matirin, mixed with other entities of that type and one of them is eaten inadvertently… or fell into the sea in a manner that it was lost to people at large, all others are permitted, for we operate under the assumption that it was the forbidden object that was lost.” See also sec. 447:14 and sec. 453:12, where the Alter Rebbe rules according to this principle.

Beitzah 11a. See also subsection 23, below, where the Alter Rebbe explains the laws that apply if the doves cannot fly.

I.e., on the day before the festival.

Tosefta, Beitzah 1:7.

Beitzah 10b. The rationale is that since the doves have not departed from the dovecote entirely, it is assumed that these are the doves that were designated before the festival. Therefore, they are permitted.

I.e., on a small perch in front of the entrance to the dovecote (Beitzah 11a).

The Alter Rebbe is referring back to the laws stated at the beginning of this subsection and at the beginning of subsection 21. See also subsection 23, below.

The Alter Rebbe is referring to doves that are very young, and are not yet able to fly. In this instance, the doves could not have come from outside the dovecote because they cannot fly. Hence, they could only be the doves that were designated, or doves from a dovecote that is very nearby.

In his Kuntreis Acharon (note 4), the Alter Rebbe explains his ruling in the main text here, stating that the person is only required to act stringently and refrain from using the doves on the festival when, after finding the doves hopping in front of the dovecote, he checked the other nearby dovecote(s), and found that some of the doves that had been nesting there are missing. However, if the person finds that the same number of doves are in the nearby dovecote(s) as were there before the festival, stringency is not required. He states that this ruling is based on the Pri Chadash 597:14 and that its logic is also evident from Rashi’s interpretation of the relevant passage in Beitzah 11a.

The Alter Rebbe’s ruling is based on the fact that since these doves cannot fly, there is no way they could have come from anywhere other than the dovecote at whose entrance they were found or another dovecote nearby. Since the dovecote at whose entrance they were found is closer, stringency is only required if there are two factors that raise a doubt as to where these doves originated: a) that the other dovecote(s) are visible and are within 50 cubits of the original dovecote, and b) that some of the doves from the other dovecote(s) are missing. Needless to say, if the person is not sure if any doves are missing from the other dovecote(s), then stringency would be required. Hence, although it is not required, it is advisable for the person to count the doves in the nearby, visible dovecotes when he designates the doves in his dovecote for use on the festival.

The rationale is that since these doves cannot fly, and a dove will not go to a dovecote that it cannot see or that is more than 50 cubits away, there is no alternative but to say that both the black doves and the white doves came from these dovecotes, and they merely changed places.

Beitzah 10b.

Beitzah, loc. cit. As explained in that source, the rationale for this lenient ruling is as follows: Doves that cannot yet fly, will hop. Therefore, it can be assumed that one dove hopped out of the dovecote. There is no concern that another person took the three doves that were designated to be used on the festival, and left two other doves in their place. Accordingly, since a doubt has not arisen regarding the status of these doves, we do not suspect that they are not the ones that were designated before the festival. Instead, we assume that the doves remained in their place the entire time.

In his Kuntreis Acharon (note 5), the Alter Rebbe substantiates the ruling in the main text, explaining that he ruled in accordance with the ruling of Rama (Orach Chayim 594:13) and other later authorities.

The Alter Rebbe explains that the source for this ruling is found in the discussion in Beitzah 10b.In that source, the Talmud addresses the situation presented in the first clause of the main text here – a person designated three doves and found only two – and compares it to the following situation: A person left in a drawer 200 silver pieces onto which the holiness of produce that had been separated as maaser sheni (the second tithe) had been transferred, and then only found 100 silver pieces when he returned. The Talmud questions: Should the person assume that the 100 silver pieces he found are part of the 200 silver pieces he originally set aside, or should he assume that someone took his 200 silver pieces and someone else left 100 silver pieces in that same place? (Maaser sheni must be eaten in Jerusalem. Similarly, the money onto which the holiness of maaser sheni is transferred must be spent on food that is eaten in Jerusalem.)

The Talmud presents a difference of opinion between Rabbi Yehudah HaNasi and the other Sages regarding how to address this situation. Rabbi Yehudah HaNasi maintains that although 100 silver pieces are missing, the 100 silver pieces that remain are considered to be from those coins that the holiness of the maaser sheni had been transferred to. The other Sages, by contrast, maintain that all 200 coins were taken, and the 100 coins that were discovered came from another source. Thus, the 100 coins that were found have no special significance or holiness.

There is a general principle that when there is a difference of opinion between Rabbi Yehudah HaNasi and another Sage, the halachah follows Rabbi Yehudah HaNasi’s opinion. However, if there is a difference of opinion between Rabbi Yehudah HaNasi and other Sages, the halachah follows the other Sages (Pesachim 27a, et al.).

Thus, if that logic would be followed regarding the question concerning the doves mentioned above, the remaining doves would be considered forbidden. To avoid coming to such a conclusion, Beitzah, loc. cit., explains that there is a fundamental difference between money and doves. Doves hop from place to place. Therefore, it can be assumed that the third dove hopped away on its own. Money, by contrast, is immobile and would have had to be taken by another person. The Sages maintain that it is logical to assume that a person took all the money rather than only a portion of it. (Similarly, regarding the meat and chametz mentioned below, since they are inanimate objects that cannot move on their own, if they were tied together, it can be assumed that one person or animal took all of them.)

The Talmud proceeds to discuss that conclusion, explaining that there is a difference of opinion regarding the situation concerning the coins. One opinion maintains that Rabbi Yehudah HaNasi and the Sages differed only in an instance when the money was kept in two purses. If, however, the money was kept in one purse, even Rabbi Yehudah HaNasi would agree that all of the original money had been taken. Therefore, with regard to the doves, since they are each individual entities, like separate purses, it is necessary to make the distinction mentioned above, otherwise, the halachah regarding the doves would conflict with the Sages’ view.

However, another opinion maintains that the difference of opinion between Rabbi Yehudah HaNasi and the Sages only applied to an instance when all of the money was kept in one purse. If, however, the money was kept in two purses, even the Sages would agree that only the money from one purse was taken and the money remaining in the second purse is deemed consecrated. Therefore, with regard to the doves, it could be said that all authorities would agree that the ones originally designated were the ones discovered. According to this understanding, it is unnecessary to make the distinction mentioned above.

Beitzah, loc. cit., continues, stating that Rav Ashi explains that the distinction made above is necessary even according to this understanding. The opinion that the Sages and Rabbi Yehudah HaNasi differed regarding money in one purse was actually speaking about money that had been kept in two purses that were tied together. Accordingly, it is considered as if they were one purse.

Extending that logic, one would say that when doves were tied together, the majority opinion would be that all the doves were taken. For that reason, the Talmud differentiates between doves and purses, explaining that as living beings, when doves are tied together, they struggle to free themselves. In contrast to this, purses are inanimate objects that do not move on their own. Hence, the ruling regarding the purses cannot be used as proof regarding a ruling regarding doves.

Although there are other authorities who understand the passage in Beitzah 10b differently, this is the understanding that should be followed. This is particularly true because the instance presented here in the main text involves only a Rabbinic prohibition, and when there is a doubt regarding whether or not a Rabbinic prohibition applies, leniency is granted.

The Alter Rebbe further substantiates his ruling in the main text by explaining that the conclusion that the difference of opinion between the Sages and Rabbi Yehudah HaNasi involves money kept in two purses that were tied together is also reflected in a stringent ruling of Sifsei Kohen (Yoreh Deah 63:8) with regard to pieces of meat that were tied together that were lost and later discovered, and in a stringent ruling of the Tur (Orach Chayim 439) regarding pieces of chametz that were found in the search for chametz that were tied together and were later lost.

Beitzah, loc. cit. Thus, the fact that one dove is missing, and even the fact that the two remaining doves are not tied together is not of any consequence. The rationale is that we assume that even if the doves had been tied together originally, they somehow managed to break loose.

It is not logical to assume that a third dove wanted to or was able to insert itself into the bond that tied the other two together. Therefore, it is assumed that a person tied the third dove to the other two, thus designating it for use on the festival.

Tying is one of the melachos forbidden on a festival (see sec. 317). The Alter Rebbe is assuming that a person would not violate a prohibition on the festival.

See subsection 20, above.

The Alter Rebbe specifies that the doves did not need to be snared, because as he proceeds to explain, if the non-Jew had to snare the doves, they would have been forbidden for a Jew to use on the festival.

If, however, the dovecotes are located outside the town’s festival limits, it is forbidden for the Jew to use the doves until after the festival, even if the non-Jew did not have to snare them (see sec. 515:11-12).

Talmud Yerushalmi, Beitzah 3:2. See also sec. 498:6 and sec. 505:4, where the Alter Rebbe mentions this principle.

In that source, the Alter Rebbe states: “[The rationale is that] everything a non-Jew [possesses] is prepared to be used; he does not set anything aside, [but instead,] thinks about [using] everything. Thus, since [the produce in his possession] is prepared for one person, it is prepared for all people.” Nevertheless, as explained in that source, there are two exceptions to this general rule: a) produce that is connected to the ground, and b) animals that are yet to be trapped.

Were the non-Jew to have snared the doves specifically for the Jew, there would be a further prohibition involved, since a non-Jew may not perform a melachah on a festival specifically to benefit a Jew (see sec. 515:1, 3).

I.e., the doves would fly away were the non-Jew to try and catch them without snaring them.

See subsection 13, above.

See sec. 310:3, where the Alter Rebbe explains the rationale for this ruling: “Since [the animal] was not under the person’s control at all, it is not considered as designated for use [even though he made his intentions known].”

Simply put, it cannot be said that the doves were prepared to be used on the festival since the possibility existed that the non-Jew would not be able to catch them.

See also the Kuntreis Acharon (note 1) to the present section, where the Alter Rebbe mentions similar concepts.

The Sages ordained that the lungs of an animal that was slaughtered must be checked to verify that the animal was not treifah (see the Shulchan Aruch of Rav Yosef Caro, Yoreh Deah 39:1).

See Shabbos 156b.

See subsection 28 below, where the Alter Rebbe specifies that this prohibition applies according to those authorities who forbid nolad on a festival. True, even if the animal was discovered to be treifah, its carcass could be cut up and fed to dogs. Nevertheless, since the animal was not designated to be used as food for dogs before the festival, these authorities maintain it is considered to be nolad. See sec. 495:13, where the Alter Rebbe defines the term nolad, and states that the ruling forbidding nolad on a festival should be followed.

See Kuntreis Acharon (note 2) to sec. 498. See also sec. 323:10, where the Alter Rebbe states:

>>It is permitted to deliver any and all rulings permitting [the use of a food or a k’li]. One is not considered to be making an object fit for use, for the object is intrinsically fit to be used; it is only that the inquirer does not know [its status] until the halachic authority comes and delivers the ruling to him.

As the Alter Rebbe proceeds to explain, skinning is a melachah that is not directly associated with producing food. Nevertheless, a person is still permitted to skin an animal on a festival because that is the only way he can access the meat (see Aruch HaShulchan 497:25).

The Alter Rebbe permits skinning the animal before it has been checked to see whether or not it was treifah, because as he proceeds to state, since most animals are kosher, we assume this one is also kosher. Furthermore, if it turns out that the animal was treifah, then the person will be forbidden to skin it on the festival, and he will thus lose the animal’s hide as well as its meat. Because of that possibility, the person might refrain from slaughtering on the festival. Due to the leniency mentioned here, such a situation would not arise, because even if the animal is discovered to have been treifah, the person will have had the opportunity to put away the hide for use after the festival.

See Chulin 11b.

The Alter Rebbe uses the words chezkas heter, which we have translated as “presumption that [the animal] is permitted.” The term chezkas is a variation of the Talmudic term chazakah, which refers to an accepted presumption.

If left in the sun, the animal’s meat is likely to spoil and be unfit for consumption by a non-Jew or by animals. Even so, it is prohibited to move it on the festival. See sec. 308:12, where the Alter Rebbe issues a similar ruling.

See Shabbos 29a. See also sec. 518:11, where this law is mentioned. The meat is placed in this category because on the festival it became fit for a purpose, food for animals, for which it would not have been used before the festival. Then, it would have been used as food for humans.

See also Kuntreis Acharon (note 6) to this section, where the Alter Rebbe explains this ruling.

To understand his ruling, it is necessary to understand the definitions of muktzeh and nolad, as explained in sec. 495:13. As the Alter Rebbe explains there, the term muktzeh refers to entities that a person set aside before a festival because he did not intend to use them on the festival. The term nolad refers to entities that first came into existence on the festival. The classic example of nolad is an egg that was laid on a festival (Beitzah 2a). A modern-day example of nolad would be water that resulted from an air-conditioner’s condensation. In both of these instances, the article did not exist at all before the festival.

However, the Sages (Beitzah 28b; see sec. 495:13, where the concept is discussed) extend the concept of nolad further to include an instance when a container broke on a festival and its pieces could no longer be used as containers, only as covers. Although one could argue that the pieces existed before the festival, they existed as part of the container, and not as independent entities. Hence, the individual pieces are considered to have first come into existence on the festival, and are therefore categorized as nolad.

Based on these concepts, the Rabbis debate the reason for the ruling in Shabbos 156b that an animal that was slaughtered on a festival and discovered to have been treifah is forbidden to be cut up and fed to the dogs. Some authorities maintain that the carcass is muktzeh, and therefore, it is forbidden to be moved. However other authorities maintain that although the animal existed before the festival, it is nonetheless considered nolad because its halachic status changed on the festival. Beforehand, it was designated as food for humans and now it is only fit to be eaten by animals. This opinion is the basis for the Alter Rebbe’s ruling here.

Rambam (Hilchos Shevisas Yom Tov 2:16) rules that the carcass of such an animal is deemed muktzeh. Rambam maintains that the carcass is not considered nolad because the animal existed before the festival. However, since the animal’s owner did not intend to feed its meat to dogs before the festival, the treifah carcass is considered as muktzeh. Furthermore, Rambam maintains that it is forbidden to move articles that are muktzeh on a festival. Thus, Rambam substantiates the ruling in Shabbos, loc. cit., on the basis of these two principles. (Other authorities, including the author of Sefer Mitzvos Gadol and Maharshal, also classify the animal’s carcass as muktzeh. However, unlike Rambam, they rule that muktzeh is permitted on a festival.)

The second approach to the ruling in Shabbos 156b is that the carcass is forbidden to be moved because it is considered nolad. This is the approach of Rashi and Tosafos in that source. It is also the approach of Magen Avraham (see Magen Avraham 499:9), and it is the approach presented by the Alter Rebbe in this subsection.

The rationale for classifying the carcass as nolad despite the fact that the animal existed before the festival is as follows: Before the festival, the owner had the option of slaughtering the animal on the festival so that its meat could be eaten as part of a festive meal. At that time, the animal was considered fit to be eaten by Jews as part of a festive meal. However, when the animal is discovered to have been treifah after it was slaughtered on the festival, it is no longer fit for that purpose. Rather, after it was slaughtered, the animal’s meat became fit to be used as food for other animals. This distinction is a new development, which causes the meat to be classified as nolad, rather than as muktzeh.

The Alter Rebbe substantiates this approach in this Kuntreis Acharon by citing a passage in Shabbos 29a. In that source, the Talmud states that although on a festival, one may use dates and nuts as kindling for a fire, the person may not use the date pits and nut shells for that purpose after they were separated from the dates and nuts. The rationale is that before the shells and pits were removed from the nuts and dates, they were considered batel, i.e., inconsequential, to the nuts and dates. Hence, the dates and pits, and the nuts and shells, were all considered to be food. As long as an entity is fit to be eaten, it is also fit to be used for any other purpose. However, once the pits are removed from the dates and the nuts are removed from their shells, the pits and the shells are considered to be independent entities which are not food. Thus, they are no longer fit for the purpose for which they were prepared on the day before the festival, i.e., to serve as food for people. Hence, the pits and shells are forbidden as nolad.

The Talmud questions why it is necessary to mention both dates and nuts. In resolution, the Talmud states that the date pits were covered by the fruit, while the nut shells were visible. The Alter Rebbe clarifies this statement, explaining that were the nut shells not forbidden, one could suggest that the reason the date pits are forbidden is because they were hidden and the person did not intend to use them on the festival, i.e., one could suggest that the date pits are prohibited because they are muktzeh. However, since the Talmud also mentions nut shells, which are visible, it is clear that the date pits are not forbidden because they are muktzeh.

Instead, the pits and the shells are forbidden because they are classified as nolad, because when the dates and nuts were separated from their pits and shells, the pits and shells became fit for a purpose for which they would not have been used before the festival. Although the Alter Rebbe permits moving articles that are muktzeh on a festival, he rules stringently in this subsection, regarding objects that are nolad. As the Alter Rebbe clearly states in sec. 495:13, he maintains that one should be stringent regarding using nolad on a festival.

The Alter Rebbe proceeds to further substantiate his ruling here by citing other Talmudic passages and interpretations by Rishonim that support this concept. See also the Kuntreis Acharon to sec. 495 (note 7).

This concept is first mentioned by Maharshal (see Yam Shel Shlomoh, Beitzah 3:17), who lived in Poland from 5270 (1510) until 5335 (1574). However, Maharshal does not state exactly when this change in approach was initiated. Due to this change in approach, the practice mentioned in subsection 26 above – checking an animal in a place where it can be left if it is discovered to be treifah – is no longer followed.

See sec. 529:7.

See sec. 499:3, where the Alter Rebbe repeats this leniency.

I.e., so that people will not refrain from slaughtering an animal on the festival. Since the meat will spoil if it is not sold shortly after the animal’s slaughter, the Rabbis permitted selling an animal that was discovered to have been treifah to a non-Jew on the festival.

This leniency is also mentioned by Maharshal. See Yam Shel Shlomoh, Beitzah 3:17.

See sec. 500, where the Alter Rebbe explains how such a sale should be carried out.

It is evident from sec. 500:3, and from Levush 500:1, that the leniency of selling meat on a festival is usually only granted when selling to a Jew, so as to enhance his rejoicing on a festival, but not to a non-Jew. Indeed, all sales to a non-Jew on Shabbos and festivals should be forbidden unless there is a severe financial loss involved. See sec. 323 and sec. 517, where the Alter Rebbe addresses selling food on Shabbos and festivals.

See sec. 307:20.

It is Scripturally forbidden to eat the sciatic nerve, known as the gid hanasheh, and the non-kosher fats, known as the cheilev, around it. In addition, the Sages forbade certain fats and blood-vessels surrounding the sciatic nerve. It is rather complicated to remove these parts of an animal’s hindquarters, and doing so requires professional expertise. See the Shulchan Aruch of Rav Yosef Caro (Yoreh Deah, secs. 64-65). In this instance as well, since the meat will spoil if it is not sold shortly after the animal’s slaughter, the Rabbis permitted selling this portion of an animal to a non-Jew on a festival.

In the present era, when refrigeration is usually accessible, this prohibition would seem to apply.

See sec. 499:5, where the Alter Rebbe issues a similar ruling.

See sec. 499:5 and sec. 518:1, where the Alter Rebbe issues rulings based on a similar logic.

The Alter Rebbe is referring to an instance in which the overwhelming majority of a given species are not commonly treifah.

In such an instance, the rationale for permitting a person to sell the meat to a non-Jew, or even to move the carcass, does not apply (see subsection 29, above). Therefore, as the Alter Rebbe proceeds to rule, the prohibitions against moving the carcass or selling it to a non-Jew remain in force (see subsection 28, above).

Although the Alter Rebbe gives examples of fowl, the same laws apply to any species in which disqualifying factors are generally not found.

There are contemporary authorities who maintain that in the present era, it is more common for disqualifying factors to be found in animals and fowl, and therefore, this law does not apply. In reality, with the advent of refrigeration, it is very rare to slaughter animals on a festival. Thus, in the present era, there are various reasons why the issue is more theoretical than practical.