ט״ז באלול ה׳תשע״א (September 15, 2011)

Hullin 81a-b – When a more severe penalty negates a lesser one

We have learned (see above, daf, or page 78) that the Torah forbids the slaughter of a parent and its offspring on the same day (oto ve-et beno – see Vayikra 22:28). The Mishnah on today’s daf discusses situations where the shehitah has a problem attached to it.

  • What if the animal was a terefah – it suffered from a terminal condition and was not kosher?
  • What if the animal was slaughtered for idol worship?
  • What if it was slaughtered as a parah adumah – a Red Heifer – or for some other purpose that makes it forbidden for ordinary use?

In cases such as these, Rabbi Shimon rules that the laws of oto ve-et beno will not apply, since the slaughter that took place did not permit the animal to be eaten. The disagree and rule that we still consider this to be shehitah, and the law of oto ve-et beno remains in effect.

 

Resh Lakish opens the discussion in the Gemara by pointing out that in this case the order in which the animals are slaughtered will make a difference. If the first animal was slaughtered for idol worship and the second was slaughtered for ordinary purposes, then the person can indeed be punished. If, however, the first animal was slaughtered for ordinary purposes and the second was slaughtered for idol worship, then he cannot possibly be punished for oto ve-et beno, since he is liable for a more severe punishment for performing the act of shehitah – he will be killed for performing idol worship – and we apply the rule of kim lei be-derabah minei. According to the rule of kim lei be-derabah minei, when a person who commits an act for which he is liable to receive two separate punishments, Jewish law will only allow him to be punished once, i.e. he will receive the more severe of the two punishments and be freed of the lesser punishment. Thus, if a person performs an act for which he would receive both capital punishments and lashes, he will not receive the lashes, as the capital punishment suffices as punishment for this act.

 

Rabbi Yohanan objects to Resh Lakish’s teaching by saying that every school child knows that law. He suggests that even if the second animal were slaughtered for idol worship there could still be a situation where the man would receive punishment for oto ve-et beno. That would be in a case where the only warning that he received was about the lashes that he would receive if he slaughtered the mother (or the child), but that he was not warned about the capital punishment that he would receive for performing idol worship. The Gemara points out that Resh Lakish disagrees with Rabbi Yohanan’s assumption. According to his view, performing a transgression for which one is liable to receive a severe punishment will always erase the lesser punishment, even if the punishment is not actually applied.