Mahar”m’s responsa

We conclude that the gift of the foreleg cheeks and abomasum is applicable also outside the land of Israel..we don’t follow Rabbi Elai’s ruling only by reishit hagez and not with the foreleg cheeks and abomasum. Since the talmud dosn’t state “נהוג עלמא” (everybody acts this way) regarding the gifts (of the foreleg, cheeks and abomasum) and Reishit HaGez..and Rabbi Nachman bar Yitzchak himself , who said נהוג..would penalize (the shochet who wouldn’t give the gift),…and there isn’t room to say he was being stringent (beyond the letter of halacha) even though he didn’t need to be,.. and there isn’t room to say that there are places places (some lands outside of Israel are obligated to give while others aren’t), since (the talmud) said “נהוג” -implying that that everyone (and everywhere) are (where) acting that way.

Only, we are pressed (to say) that regarding Reishit HaGez everyone acts like (the directive of) Rabbi Elai, but not regarding the gift of the foreleg, cheeks and abomasum -and as I will explain the reason. ..Antoher proof is that we find much (recorded incidences) that in bavel they give the foreleg cheeks and abomasum, but, we don’t find (recorded incidences) where an amorah would give Reishit HaGez.

Another proof, in the chapter of שילוח הקן (chullin, 138b); “anywhere (the mishna) quotes both in the land of Israel and outside the land of Israel is not necessary to mention, aside for by Reishit HaGez (where it is neccessary to mention, in order to counter Rabbi Elai) who says reishit hagez is applicable “only” in the land of Israel“. So, why didn’t (the talmud) also state “aside for the foreleg, cheeks and abomasum” to counter Rabbi Elai? Moreso, (the talmud) should have saw the need to say “aside for the foreleg, cheeks and abomsaum” since the chapter (discussing the halachos) of “zroa, lechayayim v’keiva” (ch. 10) is ordered (in the mishna) before the chapter of reishit hagez (ch. 11)!

 

And since the chapter of Hazroa (ch. 10 of chullin) we are tought in the land of isrel and outside of it to oppose the opinion of Rabbi Elai, if so, the tanna unneccessarily repeated in the land of israel and outside it in the perek of Reishit HaGez since fromt eh chapter of hazroa we already heard the opposition to rabbi elai since they are both rooted in the same reason and he who shares his opinion with him does so in both places and he who disagrees with him does so in bothe places.

 

Or say, anywhere where we learn (in the mishna)in the land of Israel and outside it is unnecessary aside for the giing of the foreleg cheeks and abomasum and reishit hagez to oppose the opinion of rabbi Elai in both instances.

 

Only, we are pressed to say that “in the land of israel and outside it” that we see in the chapter of hazroa is considered by the talmud too to be unnecessary. at it it simple that the halacha is not like him. and there is no-one that agrees with him since his reasoning isn’t sound.  but by Reishit HaGez it is needed since his reasoning is sound and we agree with him on it, the tanna of our mishna did not agree with him.

 

And the reason? it appears to me that by reishit hagez we agree with him since there is a hekesh (comparison) joining them -trumah and reishit hagez and the same term “נתינה” is  written (by the torah) by both of them.  And this that is said  we learn (“יליף”) “netinah” from “netinah” is not a gzeirah shava proper but merely a “יליף” (to instruct us that) the giving of of Reishit HaGez should be like that of trumah as the term is shared by them both.  thus, just as trumah is not applicable outside of Israel so too reishit hagez.

 

Or likewise (another angle to prove the requirement of giving the foreleg cheeks and abomasum to the kohen outside the land of Israel), there is a full gzeirah shava using the term “netinah” – “netinah” from trumah, since here it is written תתן and by challah it is written תתנו -where they are similair enough to each other (to warrant a full gzeirah shava).  But by the foreleg cheeks and abomasum the term ונתן is used, that is entirely different both from the תתן of Reishit HaGez and the תתנו of Challah.

 

And we don’t compare the ונתן term found by the foreleg cheeks and abomasum to the “לך נתתים למשחה” (found by challah and trumah)..but it is written there (in parshat korach) “אך בכור שור” and we do learn from there halachot regarding the foreleg cheeks and abomasum “just as bechor is applicable outside of Israel so to the foreleg cheeks and abomasum”.  Thus we are pressed to compare the foreleg cheeks and abomasum from “לך נתתים למשחה” since if you wouldnt say so where does Rabbi Yochanan derive that the kohen should eat the foreleg cheeks and abomasum roasted and with mustard? is it from the term למשחה? (that couldn’t be since) parshat korach dosnt at all mention the gifts of the foreleg cheeks and abomasum!

 

So, likewise from this reasoning, we learn (compare) the giving of the foreleg cheeks and abomasum outside the land of Israel from the halachot of bechor -as I’ve explained.

 

And, even though we could entertain the notion to absolve the mitzvah of giving the foreleg cheeks and abomasum to kohen outside of Israel from “נתתי לך” (B’midbar 18:8) -just as trumah isn’t given outside of the land of Israel so too the foreleg cheeks and abomasum.  (This dosn’t hold true) Since  ונתן and נתינה are comparative as it is comparative to נתתים, as it is not comparative to entirely to one and not entirely comparative to the other.  In any event (when there is an issue of) to be lenient or stringent (regarding comparing similar terms) we compare them following the stringent view.

 

And, another great proof..in the ch. reishis hagez (chullin 136a) it is asked “if so, as by trumah, in the land of Israel no so too the foreleg cheeks and abomasum” and it is replied “yes, since weve learnt, Rabbi Elai says ‘the foreleg cheeks and abomasum is not acted on outside of Israel’, and so would Rabbi Elai say, reishis hagez is not acted on but in the land of Israel, what is the reason of Rabbi Elai? he aquaints נתינה from trumah -just as by trumah..so too reishis hagez”

 

Now, this is quite questionable to me; he opened his quote discussing the foreleg cheeks and abomasum but gives reasoning about reishis hagez?

 

With my explanation it all fits well, as we don’t agree with Rabbi Elai regarding this that he acquaints (foreleg cheeks and abomasum with reshis hagez) but only with his ruling on reishis hagez proper.  Thus, rava wasn’t concerned about explaining his reasoning about the foreleg cheeks and abomasum but only his reasoning about reishis hagez as we agree with him on that only i.e. that he compares reshis hagez with trumah.

 

Morese, there is room to bring proof from trumah, as in the alfasi work he (Rabbi Alfasi) explained it much..but skipped over the chapter of reishis hagez.  And this is the method of the Alfasi, to write only that which a psak comes out of it and to skip over that which no psak comes out of.  We thus see, that he agrees that the foreleg cheeks and abomasum is acted on nowatimes -but not reishis hagez.

 

And everyone that separate (it) and be cautious about it due to the curse of Rabbi Chisda who said “that kohen shochet who dosnt give the foreleg cheeks and abomasm should be excommunicated from י”י אלהי ישראל” and all the moreso a yisroel (shochet, who dosnt give the gifts).

 

As the foreleg cheeks and abomasum is acted on outside the land of Israel and the entire of congregation Israel will do it. |Responsa of Mahar”m of Rotherberg, no. 7 (p. 11 of vol. 2 of mossad harav kook edition, Yerushalayim 5720)

 

 

הובא מכת”י סיני (מאת רבי אברהם אחי רבי מאיר, ברשית בית המררש דק”ק אשכנזים בלונדון א. נייבוער, קטלוג כתבי היד של בית המדרש הנ”ל לונדון-אוקספורד 1886 עמ’ 5 מספר 14. צילום ב “מוסד הרב קוק”)

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