QUESTION: The Mishnah (39b) states that if one slaughters an animal "for the mountains," the Shechitah is invalid. The Gemara infers from the Mishnah that although the Shechitah is invalid and the animal may not be eaten, the animal is not considered "Zivchei Mesim" (Tehilim 106:28) and is not Asur b'Hana'ah as Tikroves Avodah Zarah. The Gemara questions this from a Beraisa which states that an animal slaughtered "for the mountains" is considered "Zivchei Mesim." Abaye answers that the Mishnah refers to a case in which the person said that he was slaughtering the animal for "the mountain," while the Beraisa refers to a case in which the person said that he was slaughtering it for

"the angel of the mountain." Since the mountain itself cannot become forbidden as Avodah Zarah, an animal slaughtered for the mountain is not considered Zivchei Mesim.

If an animal slaughtered to a mountain is not considered Zivchei Mesim, then why is the animal prohibited to eat? (RASHI)

(a) RASHI (DH d'Amar) answers that the animal is prohibited to eat because of a Gezeirah. Since it looks as though he is slaughtering the animal for Avodah Zarah, the Rabanan prohibited the animal so that one not mistakenly think that an animal that is slaughtered to a real Avodah Zarah is permitted.

(b) The RAN explains that in the case of the Mishnah, the Shochet did not intend to serve Avodah Zarah at all. He intended to slaughter the animal to the mountain for the sake of healing a sick person, or for witchcraft. Since he did not accept upon himself the mountain as a god, he is not considered an idolater (even though he believes that the mountain has powers of healing), and his animal is not forbidden as Zivchei Mesim. However, since his act appears like an act of Shechitah for Avodah Zarah, the Rabanan prohibited the animal from being eaten. They did not make it Asur b'Hana'ah, since even Nochrim do not usually slaughter animals to mountains.

The Ran continues and says that when the Beraisa says that an animal slaughtered to the "angel of the mountain" is Asur as Zivchei Mesim, it also refers to one who did not accept upon himself the "angel of the mountain" as a god. Nevertheless, the animal becomes Asur b'Hana'ah because the Shochet's act in this case is very similar to one who slaughters for Avodah Zarah. Since it is common for Nochrim to slaughter animals to the "angel of the mountain," the Rabanan decreed that the animal becomes prohibited as Zivchei Mesim. The Ran cites the RAMBAM (Hilchos Shechitah 2:14) who also understands the Gemara in this way.

The Ran explains why he does not learn the Gemara as Rashi does. According to Rashi, who explains that the Shochet indeed intended to serve the mountain as a god, the animal should be considered Zivchei Mesim (even mid'Oraisa), even though the mountain itself does not have the status of an Avodah Zarah. Therefore, it must be that the Shochet did not slaughter the animal to the mountain for the sake of serving the mountain, but rather for the sake of Refu'ah.

(c) TOSFOS (DH Ha d'Amar) explains that the Mishnah refers to a case in which the person indeed slaughters the animal with intent to serve the mountain as a god, and he is Chayav Misah for his act. The SHITAH MEKUBETZES understands that Tosfos is addressing Rashi's question about why the animal is prohibited to eat if it is not considered to have been slaughtered for Avodah Zarah. Since the person slaughtered it with intent to serve Avodah Zarah and he is Chayav Misah for the act, his intent is enough to prohibit the animal from being eaten. The animal does not become Zivchei Mesim, however, because the mountain is not actually an Avodah Zarah, and thus the animal is not a Tikroves Avodah Zarah.

Why does the sin of intent for Avodah Zarah cause the animal to become prohibited from being eaten, if it does not cause the animal to become Asur as Tikroves Avodah Zarah?

The answer to this question may be derived from the words of the TIFERES YAKOV (39a), who writes that there are two ways to explain how an animal becomes forbidden when slaughtered with intent for Avodah Zarah. The first way is that the intent makes the animal a Tikroves Avodah Zarah, an object that is offered as a sacrifice to an idol. When it is offered to an idol, the animal becomes "Zivchei Mesim" (Tehilim 106:28), which is Asur b'Hana'ah.

The second way in which an animal of Chulin becomes forbidden through intent of Avodah Zarah is that the intent invalidates the Shechitah, leaving an animal that was not slaughtered properly. While the Heter of Shechitah does not take effect to permit the animal, there is no actual Isur of Avodah Zarah that takes effect on the animal. Consequently, it is forbidden to eat the animal, but it is permitted to derive benefit from the animal. (See Insights to Chulin 39:1.) This explains why the person's intent to serve the mountain by slaughtering the animal to it prohibits the animal from being eaten, but it does not make the animal Asur b'Hana'ah as Tikroves Avodah Zarah. (Mordechai Zvi Dicker)

QUESTION: Rav Huna (40a) says that if an idolater cuts even one Siman of one's animal, the animal becomes prohibited. Rav Nachman challenges Rav Huna's ruling from the Beraisa that states that one who inadvertently slaughters a Korban Chatas on Shabbos outside of the Beis ha'Mikdash for the sake of Avodah Zarah is obligated to bring three Korbenos Chatas (one for his inadvertent desecration of Shabbos, one for slaughtering a Korban outside of the Beis ha'Mikdash, and one for slaughtering an animal for Avodah Zarah). According to Rav Huna, he should not be Chayav for Shechutei Chutz, because at the time that he cuts one Siman for the sake of Avodah Zarah the animal becomes forbidden, and when he completes the Shechitah he is not considered to be slaughtering a Korban outside of the Beis ha'Mikdash. It is considered as though "he is merely cutting earth" ("Mechatech b'Afar Hu"). This implies that the Shechitah is not a valid Shechitah at all; the cutting of the second Siman does not accomplish a Shechitah.

However, this seems to contradict the Mishnah later (81b) that says that when one slaughters an animal to Avodah Zarah and, afterwards, on the same day, slaughters that animal's offspring, he transgresses the prohibition against slaughtering an animal and its offspring on one day (Vayikra 22:28). If, however, the Shechitah of the mother is not considered Shechitah (since, after cutting one Siman for Avodah Zarah, the animal is considered like "earth"), then why is the person Chayav for transgressing the Isur of slaughtering the mother and its child on the same day? It must be that the first act is considered a Shechitah!

Moreover, TOSFOS in Bava Kama (71b, DH Isurei Hana'ah) proves from the Gemara there that slaughtering an animal to Avodah Zarah is considered a valid act of Shechitah. The Gemara there discusses the obligation of a thief to pay back "Arba'ah v'Chamishah" when he slaughters the animal to Avodah Zarah. The Gemara says that he should not be Chayav, because the animal becomes forbidden as soon as he begins the Shechitah. Since the animal becomes Asur b'Hana'ah, it is no longer considered the property of the original owner. When the thief completes the Shechitah, "it is not the animal of the original owner" that he has slaughtered. It is clear from the Gemara there that the act of cutting the two Simanim of the animal is considered an act of Shechitah, for otherwise the Gemara there would have said that the reason why the thief is not Chayav is because he did not do an act of Shechitah! (REBBI AKIVA EIGER)

(a) RASHI (DH Mechatech) writes that "since it has become forbidden because of idolatry, its status of Kodshim has left it, and it becomes an animal of idolatry, and it is [nothing more than] ordinary earth." The TIFERES YAKOV explains that Rashi maintains that the slaughter of the animal is considered Shechitah, as he infers from the fact that Rashi does not say that there is no Shechitah at all. Rashi says only that since the animal is Tikroves Avodah Zarah it is no longer Kodshim, and since it is no longer Kodshim its slaughter outside the Beis ha'Mikdash is not Shechutei Chutz.

In the case of the Gemara later (81b) which discusses the Isur of "Oso v'Es Beno," as well as the case in Bava Kama (71b) of the thief who slaughtered the animal for Avodah Zarah, the animal was not a Korban, and thus the Isur of Avodah Zarah does nothing to it. Therefore, the Gemara later says that one is Chayav for "Oso v'Es Beno," and the Gemara in Bava Kama needs to say that the reason why the thief does not pay Arba'ah v'Chamishah is that the animal he slaughtered no longer belongs to the owner. Only in the case of the Gemara here, in which the Chiyuv is for slaughtering Kodshim outside of the Azarah, is it relevant to ask that since it is no longer considered Kodshim because of the Isur of Avodah Zarah, he should not be Chayav for Shechutei Chutz.

(b) TOSFOS in Bava Kama (ibid.) explains that the Gemara here means that as soon as the Shechitah begins, the animal becomes disqualified from being offered as a Korban, and thus the person who slaughters it should not be Chayav for transgressing the prohibition of Shechutei Chutz. In order to be Chayav for Shechutei Chutz, the animal that is slaughtered must be fit to be brought into the Beis ha'Mikdash as a Korban. Here, even before the Shechitah was finished, the animal was not fit to be brought into the Beis ha'Mikdash. Nevertheless, the cutting of the second Siman does effect a Shechitah (and the Gemara's comparison to "cutting earth" is not literal).

(c) REBBI AKIVA EIGER suggests a different answer. In the case of the Gemara here, the person is Chayav a Chatas for desecrating Shabbos by performing the Melachah of Shechitah. RASHI (40a, DH Shalosh) explains that the act of Shechitah is not considered a destructive act ("Mekalkel"), because by killing the animal he enables it to be eaten by a Nochri.

The RAV of KALISH asked Rebbi Akiva Eiger a question regarding this point. The Halachah is that Shechitah permits an animal to a Jew even though the animal is still quivering. However, an animal must stop moving entirely in order to be permitted to a Nochri. Nevertheless, an animal that became permitted to a Jew also becomes permitted to a Nochri, because of the logic that something cannot be permitted to a Jew but prohibited to a Nochri. Accordingly, when the Shechitah does not permit the animal to a Jew (such as when the Shechitah was done on Shabbos), the animal should remain prohibited to a Nochri until it stops moving entirely. However, RABEINU TAM (cited by TOSFOS to Shabbos 106a, DH Chutz mi'Chovel) explains that the reason why Shechitah is not considered an act of Mekalkel on Shabbos is that the productive element of the act occurs at the same moment as the destructive element. However, in the case of the Gemara here, the productive element (becoming permitted to a Nochri) occurs after the destructive element of the act. Why, then, is the person Chayav for slaughtering the animal on Shabbos? According to Rabeinu Tam, his act should be considered Mekalkel!

Rebbi Akiva Eiger answers that Rabeinu Tam's statement was said only according to the opinion of Rebbi Yehudah, who maintains that one who is "Mekalkel b'Chaburah" is Patur. Rebbi Shimon, though, disagrees and maintains that one who is "Mekalkel b'Chaburah" is Chayav, and thus, according to Rebbi Shimon, it is not necessary for the productive element of the act to occur immediately. Accordingly, the case of the Gemara here follows the opinion of Rebbi Shimon.

Based on this approach, the words of the Gemara, "Mechatech b'Afar Hu," may be understood as follows. The Gemara (Sukah 31b) teaches that an object that is Asur b'Hana'ah is considered to have no measurable weight or volume ("Ketutei Michtas Shi'urei"). Why is that principle not applied here? Since the animal became Asur as Tikroves Avodah Zarah, the animal is missing the Shi'ur of Shechitah (i.e. two Simanim). The answer is that there is no minimum requirement for the thickness of the Simanim in order for the Shechitah to be valid. The Shechitah must cut the Simanim regardless of their size. Therefore, "Ketutei Michtas Shi'urei" does not apply here. However, the RAN in Gitin writes that a Get that is written on an object that is Asur b'Hana'ah is invalid according to Rebbi Shimon, even though a Get also needs no Shi'ur. Rebbi Shimon maintains that "anything that needs to be destroyed is considered to be destroyed already" ("Kol ha'Omed Lisrof, k'Saruf Dami"). This principle differs from "Ketutei Michtas Shi'urei." The principle of "Ketutei Michtas Shi'urei" states that the Shi'ur is missing (and thus it does not invalidate a Get), while "Kol ha'Omed Lisrof" teaches that the object is entirely nonexistent (and thus it does invalidate a Get).

The same distinction applies in the case of one who slaughters an animal for Avodah Zarah. The fact that the Simanim of the animal have no Shi'ur (because of "Ketutei Michtas Shi'urei") is not a problem; as long as they exist, they do not need a Shi'ur in order for the Shechitah to be valid. However, according to Rebbi Shimon, the Simanim are considered to have been burned already and they do not exist at all, and thus the animal cannot become permitted through Shechitah. As Rebbi Akiva Eiger proves, the Gemara here follows the opinion of Rebbi Shimon (and that is why it is not necessary for the productive element of the Shechitah to occur at the same time as the destructive element). According to Rebbi Shimon, the Gemara's question is clear. The person should not be Chayav for the Shechitah of the animal, because it is considered as destroyed already when he cuts the first Siman for Avodah Zarah. This is what the Gemara means by the words "Mechatech Afar Hu."

In contrast, the case of "Oso v'Es Beno" and the case of Arba'ah v'Chamishah do not follow the view of Rebbi Shimon, and therefore in those cases the slaughtering of the animal is considered an act of Shechitah. (Mordechai Zvi Dicker)