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A Ruling Too Novel?
“One Who Ate Nevelah On Yom Kippur Is Exempt”
(Kiddushin 77b)



Our daf cites R. Shimon in a baraita where he taught that “one who ate nevelah – an animal that died without being slaughtered – on Yom Kippur is not subject to any penalty for eating on Yom Kippur.” Rather, he is only subject to the punishment of lashes (malkos) for having eaten nevelah.

This ruling of R. Shimon is based on the principle of “Ein issur chal al issur,” namely, a prohibition cannot be imposed when there is a pre-existing prohibition already in place. That is, since the prohibition of eating the non-slaughtered animal came into effect even before the onset of Yom Kippur due to its status of nevelah, the additional prohibition of Yom Kippur does not apply. Hence R. Shimon’s lenient ruling.


Either Or

Rashi (ad loc. s.v. “patur mi’karet”) resolves the difficulty with R. Shimon’s reasoning, explaining that if the animal died on the eve of Yom Kippur, the animal is a nevelah and as such, its prohibited status preceded any prohibition of Yom Kippur. On the other hand, if the animal died on Yom Kippur, then it is still not prohibited because of Yom Kippur but rather because for part of Yom Kippur it was still alive, and eating of it would fall under the prohibition of ever min hachai (a limb severed from a live animal), as stated (Deuteronomy 12:23), “You shall not eat the life with the meat.”


It Is not Slaughtered

Tosafos (Shevuos 24a – s.v. “ha’ochel nevelah…”) find difficulty with Rashi’s explanation because of the rule (Chullin 103a) that an animal does not stand to be dismembered while still alive. Thus, the prohibition of Yom Kippur should take precedence over the prohibition of ever min hachai.

They explain, rather, that what precedes the Yom Kippur injunction is due to another prohibition (Deuteronomy 12:21), “You [may] slaughter … you [may] eat …” Thus, any animal, whether dead or alive, is prohibited the entire day of Yom Kippur and this prohibition precedes any Yom Kippur injunction.


Two Prohibitions

Ritzba (Rabbeinu Yitzhak b. Avraham, a 12th-century Tosafist cited in Tosafos ad loc.) dissents and maintains that if one were to eat from an animal that died on Yom Kippur, one would indeed be in violation of Yom Kippur because the Yom Kippur prohibition took effect before the animal died.

As far as the ever min hachai prohibition is concerned, it is a prohibition that is effective on a temporary basis only, for if the animal dies on Yom Kippur, both the Yom Kippur injunctions and the nevelah prohibitions take place simultaneously.

Thus, the only instance where R. Shimon’s rule can apply is if the animal died on the eve of Yom Kippur.


Non-Kosher Food

Rabbi Yechezkel Landau (Noda BiYehuda, First Edition, Responsum 36 s.v. “Ve’omnam”) was asked regarding a critically ill patient who was ordered by a physician to eat on Yom Kippur: what is he to do in order to incur the least possible transgression?

Based on R. Shimon’s rule, Rabbi Landau offered a novel solution. It would be preferable for the patient to eat nevelah (obviously a nevelah as of erev Yom Kippur) and thus incur only lashes, as opposed to eating kosher food and incurring karet (lit. “to be cut off” – i.e., death at Heaven’s hand).

Yet such a ruling might be a bit too novel for the Rosh (Yoma, Ch. 8), who might not have agreed to such a solution due to the possibility that the critically ill person would be unable to stomach eating non-kosher food, thus endangering himself even further. However, if he eats less than “kekoseves hagassa, the volume of a large date, of kosher food in increments, he would not be liable for eating on Yom Kippur. In fact, in practical halacha, most authorities rule in accord with the view of the Rosh.


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Rabbi Yaakov Klass is Rav of K’hal Bnei Matisyahu in Flatbush; Torah Editor of The Jewish Press; and Presidium Chairman, Rabbinical Alliance of America/Igud HaRabbonim.