QUESTION: The Mishnah (end of 49b) states that one who is fit to be a judge is also fit to be a witness, but it is possible for one to be fit to be a witness but not fit to be a judge. In the Gemara, Rebbi Yochanan explains that the Mishnah is teaching that one who is blind in one eye is fit to be a witness but not a judge, in accordance with the ruling of Rebbi Meir who maintains that there is a Hekesh that equates the laws of examining a Nega, which must be done by a Kohen who is not blind, with the laws of judging cases of law.

Rebbi Yochanan concludes that the Mishnah in Sanhedrin (32a) disagrees with the Mishnah here. The Mishnah in Sanhedrin permits cases of monetary law to be completed at night. The Mishnah there clearly does not equate judging cases of law with examining a Nega (which may not be completed at night).

The NIMUKEI YOSEF rules that a person who is blind in both eyes is invalid to be a judge. This is also the ruling of the SHULCHAN ARUCH (CM 7:2). Since Rebbi Yochanan concludes that the Halachah follows the Mishnah in Sanhedrin and not the Mishnah here, why should a blind person not be a valid judge?

(a) RASHI (DH v'Gomrin) understands that the Gemara here equates the Halachah of a blind person judging to the Halachah of judging at night. Since the Mishnah in Sanhedrin says that it is permissible only to conclude a court case at night but not to start one, it follows that a blind person may not preside over the beginning of a court case but he may preside over the conclusion of a court case. Accordingly, if a judge was not blind at the beginning of the case and then became blind before it was concluded, he is permitted to conclude the case.

The NESIVOS HA'MISHPAT points out that according to this approach, when a blind judge presides over a court case (from beginning to end), b'Di'eved his decision is valid, just as a court case judged entirely at night is valid post facto.

(b) The VILNA GA'ON disagrees and explains that even though the Gemara concludes that the Halachah does not follow the second part of the Mishnah, the Halachah nevertheless follows the former part of the Mishnah which says that in order to be a judge a person must be a valid witness. A blind person is an invalid witness, and thus he cannot be a valid judge.

Similarly, according to the Vilna Ga'on, if a blind person served as a judge, his decision is invalid even b'Di'eved.

QUESTIONS: The Mishnah states that anything that is obligated in Ma'aseros is fit to become Tamei with Tum'as Ochlin (because, as Rashi writes, only food is obligated in Ma'aseros). However, there are things that are fit to become Tamei with Tum'as Ochlin even though they are not obligated in Ma'aseros.

There seem to be exceptions to the Mishnah's rule that anything that is obligated in Ma'aseros is fit to become Tamei with Tum'as Ochlin.

(a) The Gemara in Chulin (6a) cites a Beraisa which states that if one gives food to his Am ha'Aretz neighbor to cook and he gives her spices ("Tavlin") together with the food, he need not be concerned that she exchanged his spices with her own that were not tithed. She is not suspected of stealing his property. The Gemara there teaches that spices are obligated in Ma'aseros, and yet the Mishnah there states that spices do not become Tamei with Tum'as Ochlin.

The Mishnah in Chulin (117b) says that "Kipah" combines with foods to make the minimum Shi'ur for Tum'as Ochlin. Rashi there (DH ha'Kipah) explains that "Kipah" is a spice, and even though it is not considered food itself, it still combines with other foods to complete the Shi'ur for Tum'as Ochlin (as Rav Papa explicitly states there in the Gemara, 120a). It is clear from there that even though spices must have Ma'aseros separated from them, they are not fit to become Tamei with Tum'as Ochlin.

(b) The Gemara later (51b) teaches that the Chachamim decided, through a majority consensus, that Pilpalin do not become Tamei with Tum'as Ochlin. However, the Gemara in Eruvin (28b) says that Zera Gargir (grain seed) is obligated in Ma'aseros because originally -- before Pilpalin were available -- Zera Gargir would be crushed up and used as a dip for roasted meat. This shows that Pilpalin are obligated in Ma'aseros, like Zera Gargir. If Pilpalin are obligated in Ma'aseros, then why do they not become Tamei with Tum'as Ochlin?

(a) TOSFOS (DH Kol) answers that there are two different types of spices. The first type are spices used only to give taste to the food. Such spices are neither fit to become Tamei with Tum'as Ochlin nor obligated in Ma'aseros. The second type are spices that can be eaten alone as well as used for giving taste to other food. Such spices, such as garlic and onion, are fit to become Tamei with Tum'as Ochlin and are obligated in Ma'aseros.

The TOSFOS YESHANIM (81b, end of DH l'Lamedcha) cites support for this distinction from the Gemara (51b) that says that Sheves (dill) is fit to become Tamei when it is fit to be eaten by itself (see Rashi there, DH l'Kemech), but when it is fit only to give taste, it cannot become Tamei.

(b) The RITVA answers that only dry Pilpalin do not become Tamei with Tum'as Ochlin, because they are not edible and are considered food that became unfit for consumption. Moist Pilpalin, however, are fit to become Tamei with Tum'as Ochlin and are obligated in Ma'aseros.

Moreover, even dry Pilpalin are obligated in Ma'aseros; since they became obligated when they were moist and fit for consumption, their obligation remains in force even when they become dry and are no longer considered a food that can become Tamei. (D. BLOOM)

QUESTION: Rav Papa states that a Tarnegol d'Agma (the male rooster of the swamp) is forbidden to be eaten, while a Tarnegolta d'Agma (the female hen of the swamp) is permitted. The Gemara says that the mnemonic for remembering Rav Papa's ruling is that a male Amoni is not permitted to a Jewish woman, but a female Amonis is permitted to a Jewish man.

How is it possible that in the same species, the male is forbidden while the female is permitted?

(a) TOSFOS (DH Tarnegolta) explains that the male is forbidden because it does not possess the signs of a Kosher bird (as described in Chulin 59a). We do not apply the rule that "everything that emerges from a Kosher animal is Kosher" (Bechoros 5b) and say that the male is Kosher simply because the female (its mother) is Kosher, because the mother did not directly give birth to the chick. Rather, the mother laid eggs and the chick developed out of the raw materials ("Afra," literally "dust") of the egg. Since the male possesses the signs of a non-Kosher bird, it is forbidden.

Tosfos uses this reasoning to explain why, according to the opinion that "Zeh v'Zeh Gorem" is forbidden (when an object was created by two other objects, one of which was forbidden, the resultant object is forbidden; see Pesachim 27a), the female is not forbidden even though it was created by a forbidden father and a permitted mother. Since the female chick was not created by the father directly, but rather was formed from the "Afra" of the egg, it is permitted.

(The MESHECH CHOCHMAH (Devarim 14:12) suggests that the explanation of Tosfos is alluded to in the Torah. The verse states, "You may eat every pure bird (Tzipor)" (Devarim 14:11). The next verse states, "And this is what you may not eat from them: the Nesher, the Peres, and the Ozniyah...." The words "from them" are puzzling, because they imply that there are some types of permitted birds that one must not eat! This is especially difficult to understand according to the statement of Rebbi Yitzchak in Chulin (end of 139b) that the word "Tzipor" refers exclusively to pure birds. The Meshech Chochmah explains that according to the explanation of Tosfos, the meaning of the verse is clear. There indeed is a forbidden bird that comes "from them," from permitted birds -- the male Tarnegol d'Agma, which was born to a Kosher bird but has the signs of a non-Kosher bird.)

The CHAZON ISH (YD 14(a):12) explains that according to Tosfos, the male of this species was not Kosher, and the female was Kosher, from the six days of Creation. In future generations, the offspring follows the eggs: the eggs that bear the males are an impure species, while the eggs that bear females are a pure species. The offspring does not follow the mother, but rather the eggs.

(b) In his second answer, Tosfos explains that Tarnegol d'Agma and Tarnegolta d'Agma do not refer to a "rooster of the swamp" and to a "hen of the swamp," because indeed it is not possible for the male of a species to be a non-Kosher bird while the female of the same species is a Kosher bird. (See also Tosfos to Chulin 62b, DH Tarnegolta.) Rather, these are two entirely different species of birds. Both the male and female of the species called "Tarnegol d'Agma" are forbidden, and both the male and female of the species called "Tarnegolta d'Agma" are permitted.

Tosfos comments that his first explanation does not seem to be correct, because the same species would not possess a male that is forbidden and a female that is permitted. Moreover, since the Torah does not include in its list of non-Kosher birds the male Tarnegol d'Agma, the bird cannot be deemed forbidden unless it possesses all four signs of a non-Kosher bird (see Chulin 61a).

The Chazon Ish writes that Tosfos does not rule in accordance with his first answer. (See Insights to Chulin 62b.) (D. BLOOM)