Eduyos, chapter 5, mishnah 1. This chapter, throughout its mishnayos, continues to discuss the disputes between Beis Shammai and Beis Hillel in which it is specifically Beis Hillel who take the stricter position. But this chapter differs from the previous one: in the previous chapter twenty-four disputes were listed, and all of them were taught anonymously, without being attributed to any particular Tanna - the mishnah simply said: these are the places where Beis Hillel are stringent. In the mishnayos of this chapter, by contrast, the mishnah names a particular Tanna - in our mishnah, Rabbi Yehudah - who comes to say that in addition to the list of twenty-four in the previous chapter, there are further points of dispute between Beis Shammai and Beis Hillel in which Beis Hillel is the stringent one.
The other Tannaim in the chapter disagree with one another, and more than that - all of them disagree with the general consensus that emerges from the anonymous mishnayos of the previous chapter. These mishnayos cite various Tannaim, and according to some of the commentators they do not disagree at all; rather, they are all students of Rabbi Akiva who differed regarding additional, supplementary disputes and wished to add them to the list. Even so, none of them is the halachah, since each is an individual opinion.
In other words: in the previous chapter the halachah follows Beis Hillel stringently; in the chapter before us the halachah does not follow this Tanna, but rather Beis Hillel as they are taught elsewhere - leniently. Very often the words of our mishnah stand in direct contradiction to the way the mishnah is presented elsewhere in Shas, where Beis Hillel are presented as the primary opinion. These mishnayos run counter to that, and therefore they are not the halachah but merely individual opinions.
The opinion of Rabbi Yehudah:
"Rabbi Yehudah omer: shishah devarim mikulei Beis Shammai umechumrei Beis Hillel" - six additional points of dispute in which Beis Shammai are lenient and Beis Hillel are stringent.
1. The blood of neveilos:
Let us begin with the background. This matter relates to the tumah of foods. A neveilah is the carcass of an animal that died. Any animal that dies is a neveilah, unless it is a kosher species that underwent a valid shechitah - in which case it is not a neveilah but a slaughtered animal. That is, if a cow, a horse or a pig were shot in the head, the carcass is a neveilah, and a neveilah transmits tumah through contact (direct touching) and through carrying (bearing its weight). However, it is specifically the flesh that transmits tumah, as opposed to the bones, the hooves and the hide. Therefore a dried-out animal skull lying in the desert, white and dry, with no flesh attached to it and no moisture in it, does not transmit tumah.
The question is what the law is regarding blood. Our mishnah states that according to Beis Hillel even a revi'is of blood from a neveilah transmits tumah, since a revi'is of blood, when it thickens and congeals, becomes a mass that closely resembles flesh, and therefore it must be treated as flesh that transmits tumah. There is a dispute whether this law is from the Torah, and we will follow the straightforward approach that it is a rabbinic law: Beis Hillel are concerned that this piece of congealed blood, which looks and appears to be flesh in every respect, if people are lenient with it they will come to be lenient with ordinary neveilah flesh as well.
The language of the mishnah: "dam neveilos" - the blood that comes out of the body of an animal that died. "Beis Shammai metaharin" - it is pure in any amount whatsoever, like the other parts, such as the hooves and the horns. "uVeis Hillel metam'in" - it is impure, and not in the amount of a kezayis but in a revi'is, the volume of a kiddush cup of blood.
2. The egg of a neveilah:
The second case deals with an egg found inside a kosher bird that became a neveilah - let us say, a hen. The egg is not exactly comparable to the unborn fetus of a mammal, such as a calf in a cow's womb: the calf, until it is born, is considered part of the cow in every respect - if the cow is kosher and was properly slaughtered, the calf inside it may be eaten right there, and if the cow is not kosher, the calf is not kosher either, since it is like a limb of the mother.
The egg is somewhat different: it begins when it is small, the yolk alone, and afterwards the white is added, the soft material inside - material of the bird, which follows the bird's halachic status. But this process continues for about twenty-four hours, and at the end of it the egg is ready to be laid, it has a hard shell around it and it looks like the egg familiar to us. From the moment it has a hard shell and looks like any egg sold in the market, it has an independent halachic status, unconnected to the mother bird. It is as though you took an egg and pushed it down the bird's throat: it is inside its body, but it is not part of it - a separate and distinct entity from a halachic standpoint.
The question is this: if the hen is a neveilah, that is, a kosher hen whose shechitah was invalid, may one eat an egg found inside it? By Torah law, if the egg is not fully formed - for example, it is still in the ovary, has no shell and is entirely soft - it is part of the hen and shares its status; and if it has a hard outer shell, by Torah law its status is certainly independent.
By rabbinic law there is an intermediate period in which the egg is in transition, but we are not dealing with the intermediate state, rather with the final one: if the egg looks like any egg bought in the market, is there a problem eating it when it was found inside a hen that is a neveilah? By Torah law - no. By rabbinic law Beis Hillel say that there is a problem, out of concern for two errors:
If you permit eggs of a neveilah that are completely ready to be laid, you will come to permit even eggs at the intermediate stage, which are not ready and are not kosher, since their halachic status is that of the mother, and the mother is not kosher because she is a neveilah. Therefore Beis Hillel say: do not eat eggs found inside neveilos, even if they are ready to be laid.
Perhaps the animal was a tereifah. A tereifah is an animal that has sustained a fatal defect and is destined to die on its own. For example: a hen was shot and a hole was made in its heart, and before it died it was slaughtered - even though it was slaughtered while still alive it is not kosher, not because of neveilah but because of tereifah, since it was injured in a way that leaves it destined to die. An egg that developed inside a hen that is a tereifah is not kosher: even if in the end it looks like a kosher egg and has a hard shell, in the course of its development it was formed from the material of the hen, and that material did not come from a kosher hen but from a tereifah, and therefore this is a tereifah egg.
Beis Hillel are therefore concerned that if you permit eating the egg of a neveilah - an egg found inside an animal that is a neveilah - you will come to permit even an egg found in an animal that is a tereifah, and that is impossible under any circumstances. And although an egg laid by an animal that is a tereifah is forbidden, simply understood it is forbidden because of doubt: you do not know when the animal became a tereifah until the matter came to light afterwards, and we do not know whether the egg developed under those conditions, and this is a rabbinic doubt in which one must be stringent.
Beis Shammai are not troubled by these concerns, and therefore if the egg is fully developed and looks like an egg bought in the market, it is permitted even though it was found in a neveilah. And they certainly agree that in the case of a tereifah it may not be eaten, since the contents of the egg were not kosher to begin with.
And even where it is known with certainty that the contents were kosher - for example, one shot a bird and within five minutes slaughtered it and found inside it a fully developed egg, so that even though the bird is a tereifah because of the puncture that preceded the shechitah, it is known that the egg was already there beforehand - even so the Sages decreed that it is forbidden to eat the eggs of a tereifah even where there is certain knowledge, lest the next time one find the egg of a tereifah about which there is no such certainty.
The wording of the Mishnah: "beitzas ha'neveilah" - the egg found inside a bird that is a neveilah. "im yeish kayotzei bah nimkeres ba'shuk - muteres" - if it is developed to the point that it looks like any egg sold in the market, it is permitted. "v'im lav - asurah, k'divrei Beis Shammai" - if it is not yet fully developed, Beis Shammai agree that it may not be eaten by rabbinic law. "u'Beis Hillel osrin" - eggs that come out of neveilos are forbidden in every case, lest one come to permit the egg of a tereifah or the egg of a neveilah that is not fully developed. "u'modim b'beitzas tereifah she'asurah, mipnei she'gadlah b'issur" - all agree that an egg taken out of a tereifah is forbidden, because it grew from a hen that is a tereifah, and therefore its contents too are tereifah.
3-4. The blood of a non-Jewish woman and the blood of purity of a metzoras:
These two laws are grouped together in the wording of the Mishnah, but they are in fact two of the six. And this is the background: various sources of tumah come from living people - a woman who is a niddah, a yoledes or a zavah, and a man who is a zav or a metzora - and all of these apply to the Jewish people alone. A non-Jewish woman who experiences her period is not a niddah by Torah law. Nevertheless, the Sages decreed that all non-Jews, men and women alike, should be tamei like a zav and a zavah.
In the case of a Jewish zav or zavah, and likewise a yoledes, not only are their bodies tamei but so are their 'wellsprings'. A 'wellspring' is a term for the fluids that collect in the body and come out of it - saliva, mucus, urine and the like - and these too are tamei with the status of an av ha'tumah.
Similarly, the uterine blood of a zavah and of a niddah, the very blood that makes them a niddah or a zavah, is also an av ha'tumah. However, the blood of a niddah or a zavah is not a wellspring at all, but something else and more severe: it is the source of the tumah itself. And the difference is significant: the wellsprings, such as urine, mucus and saliva, transmit tumah only as long as they are moist, and once they have dried they are no longer a source of tumah - a used tissue of a niddah, once it has dried, is no longer a source of tumah, while as long as it is moist inside it is an av ha'tumah. Uterine blood, by contrast, transmits tumah whether it is moist or dry, and in this respect it is more stringent; therefore a woman's sanitary pad, even after it has dried, is still a source of tumah.
The Mishnah asks: what is the law regarding the uterine blood of a non-Jewish woman? Do we treat it like the blood of a Jewish zavah? Seemingly, once we have given them the status of zavos, all the laws should apply. But the concern - and similar concerns appear in many places in Shas in matters of rabbinic decrees regarding tumah - is that people should not come to think that this is a Torah-level status. We do not want people to think that an ordinary non-Jewish woman, or a non-Jewish woman who is a niddah, is tamei by Torah law; that is not so, it is rabbinic only.
The reason for this care is as follows: if they came into contact with your Terumah and transmitted tumah to it, to challah and the like - the rule with Terumah is that if it became tamei it must be burned, and if it is tahor, burning it is forbidden by Torah law. So if you think it became tamei when in fact by Torah law it is tahor, and you go ahead and burn it, you have violated a Torah prohibition of failing to guard the Terumah. That is why the Sages always want their decree to carry a distinguishing mark that announces that something unusual is going on here, to remind you that this is only a rabbinic tumah.
For this reason Beis Shammai are lenient in our Mishnah and say that blood that comes from a non-Jewish woman, her uterine blood, does not transmit tumah at all, and that will be the distinguishing feature, the mark that tells you she is tamei only by rabbinic law. Beis Hillel say: why be so lenient? We will treat her uterine blood like any other flow, like saliva and the like - as long as it is moist it transmits tumah, and once it dries it no longer transmits.
The second of the two cases is the blood of purity of a metzoraas - a woman who has a tzaraas affliction. A metzora and a metzoraas are a very powerful source of tumah, and they convey tumah even through their flows. In light of this, the question arises regarding the uterine blood of a metzoraas: this is not exactly a flow, but uterine blood. However, there is a period, as we have already seen twice in the tractate, that after seven days for a boy and fourteen days for a girl, during the thirty three or sixty six days following the birth, a woman's blood - even uterine blood - does not transmit tumah and does not render her temeiah, and this is called dam tohar, blood of purity.
The question, then, is this: uterine blood of a metzoraas who gave birth, which by right should be tahor - do we nevertheless declare it tamei because she is a metzoraas? Beis Shammai say: why do so? This is not a flow but uterine blood, and therefore it is completely tahor. Beis Hillel have a derivation from a verse that there is a special law that blood coming from a metzoraas is tamei, even though it is uterine blood and even though it is blood of purity. That is their dispute, according to Rabbi Yehudah in our Mishnah.
The words of the Mishnah: "Dam nochris v'dam taharah shel metzoraas" - blood that came from the womb of a non-Jewish woman, and blood of purity of a metzoraas who gave birth to a boy or a girl and seven or fourteen days have passed. "Beis Shammai metaharin" - it is still tahor, and there is no rabbinic problem here. "U'Beis Hillel omrim: rukah k'meimei ragleha" - we treat it like her other flows, like her saliva and her urine: tamei as long as they are moist, and they do not convey tumah once they have dried.
5. Sheviis produce with gratitude:
The fifth case deals with eating the produce of the seventh year, the crop of the Shemittah year. Every seven years the produce becomes ownerless, and anyone who wishes to take for himself from the animals and from the produce may take. And keep in mind: the land itself on which the farmer's trees grow remains his private property, and the trees too remain his; only the fruit itself is ownerless, and he must provide access to the public so that they can obtain the ownerless fruit.
The question our Mishnah comes to answer is: may you express gratitude and say thank you to the farmer for the delicious oranges you are eating? True, right now they are ownerless, but this is a ten year old orange tree, and for the past nine years the farmer has been cultivating it. May you say to him: delicious, thank you very much? Or perhaps you may not, because by doing so you imply that the oranges really are his, which they are not - they are ownerless. The world belongs to Hashem, and the tree is His tree, and Shemittah comes to remind you of this: the oranges you are eating do not belong to the farmer at all.
Similarly, if you say to him: the oranges are so good, next time come to my house and I will give you some tasty apples - here too you are implying that he is doing you a favor by giving you his oranges, when in fact they are not his to give. So is it permitted to express gratitude? Beis Shammai are lenient in our Mishnah and say it is permitted, and Beis Hillel say it is forbidden. In Maseches Sheviis the positions are entirely reversed, and the halachah there follows Beis Hillel - meaning that it is permitted to express gratitude.
The words of the Mishnah: "Ochlin peiros sheviis b'tovah v'lo b'tovah" - the ownerless produce of the Shemittah year may be eaten either with an expression of gratitude or without an expression of gratitude, and the choice is yours; and even if it may be preferable not to express it, it is nevertheless permitted, "k'divrei Beis Shammai". "U'Beis Hillel omrim: ein ochlin b'tovah" - one may not express gratitude, because doing so misleads regarding the nature of Shemittah and what it comes to teach.
Take note of a textual issue: in many editions of the Mishnah the word "ela" appears - "ein ochlin ela b'tovah". That version would reverse the meaning one hundred percent, but it is not correct. Therefore the word "ela" should be removed (or placed in parentheses), and the correct version is "ein ochlin b'tovah": you may not express gratitude, but rather eat because it is ownerless, and it is yours to eat from Hashem.
6. The waterskin:
The last case again deals with tumah. A chemes is a wineskin, a leather pouch used for storing liquids. If a hole develops in the pouch, it leaks, and it can no longer serve its purpose as a wineskin or as a water container. And the rule with vessels is that once they no longer fill the function for which they were made, they lose their capacity to receive tumah. Therefore a chemes that has been breached no longer receives tumah.
And what if it was repaired? Suppose you tied a knot at the bottom of the skin at the spot where the hole is, and now it holds water again. Is that enough? True, it functions, but this is like a temporary repair. On this point there are two opinions. You should know that leather, when left in such a position, tends to shrink and harden, and therefore it is possible that if you tie it and leave it that way, after a while, even if you untie the knot, it will hold water again, because the leather has contracted and the hole has effectively sealed up.
Beis Shammai, who are lenient in this Mishnah (and leniency here means that the vessel is tahor and does not receive tumah), say: unless the chemes can hold water even after the knot is untied, this is no better than someone holding the hole shut with his finger, a temporary repair that does not make the vessel count as fixed. It is broken, and therefore it does not receive tumah. And Beis Hillel are stringent and say: it does receive tumah. Even though if you were to untie the knot it would leak again, right now the knot is in place and it does not leak, and it functions as a chemes, as a water skin or a wineskin, and therefore it receives tumah.
The words of the Mishnah: "HaChemes" - the leather sack meant to hold liquids, a skin for water or a skin for wine. "Beis Shammai omrim: tzarah v'omedes" - only if the seal will hold even once you untie the knot does it receive tumah, since it can function and this is like a permanent repair. "U'Beis Hillel omrim: af al pi she'einah tzarah" - even if it did not seal up on its own, it is enough that it was repaired temporarily with a knot: it still functions as the vessel it was meant to be, and therefore it receives tumah, and this is the stringent view.
The halachah: As in all the cases in this Mishnah, the halachah follows Beis Hillel, but not as they are presented here. Just the opposite: the halachah is lenient, that the chemes does not receive tumah unless it was repaired permanently.