Aiding or Abetting?
“However,…Due to Suspicion, We Check…”
(Chullin 12a, Rashi)
The Shulchan Aruch rules (Yoreh Deah 39:1): “One need not examine for any treifos…except for the lung… Anyone who breaches the fence and eats without examination may a snake bite him.”
Examining the Lung: Biblical or Rabbinical
All the Rishonim on our sugya emphasize that the obligation to examine the lungs is not from the Torah. This halacha is based on our sugya, which teaches that we should follow the majority; as most animals are not treifah and are assumed (bechezkas) to be healthy and kosher, there is no obligation to examine them. They may be eaten without bedikah as long as no suspicion has arisen that obligates examination.
Strictly speaking, the lungs should also not need examination, as Rambam writes (Hilchos Shechitah 11:7): “Although it appears so from the Gemara [that there is no need for bedikah], the common custom is to do so…and one examines the lung…” According to some Rishonim, the examination of the lungs was not yet instituted in the Talmudic era (Mordechai, Chulin, Perek 3:619, in the name of Rabbeinu Baruch), and the Geonim ruled likewise as halacha (Meiri, Chulin 9a). However, Ramban and Rashba (9a) prove that the Talmudic sages ruled so and that it resembles any Rabbinical decree (see Peri Megadim in the preface to 39).
Reasons for Examination
The Rishonim set forth a few reasons for this decree. According to Rashi (on our daf, s.v. Pesach), there is a reasonable suspicion that a lung will be found treifah and the Sages ruled that we should not rely on the majority. Some say (see Rashba 9a) that since the common treifos of the lung are openly visible, a treifah lung is likely to be revealed later, and then all the people who bought parts of that animal will have to dispose of anything cooked therefrom. The Chachamim suspected that not everyone would withstand the temptation. The Pri Megadim adds (ibid.) that bedikah of the lungs is very simple as opposed to checking for other treifos, and therefore Chazal obligated such examination. (This reason is close to Rashba’s additional reason (ibid.) that the lung should be checked because failing to do so is like shutting one’s eyes to a prohibition.)
A Shochet with a Long Beard
We now turn to a halachic question that was referred to the poskim. An observant shochet faced an extremely complicated dilemma: He received an offer to work at a certain place where the Jewish owner of the animals informed him that he was interested in shechitah but that dealing with treifos would be too complicated for him. It was enough for him that the animals be slaughtered by a shochet with a long beard, but if an animal were found to be treifah, he would nevertheless eat it. Since it was obvious that the behavior would not change, the poskim discussed whether there was a way to minimize the prohibitions that the Jews living there would transgress.
A Ruling Not to Check
If we analyze the situation, we discover that we are faced with various serious halachic hazards. If the shochet does not examine the lungs, this entails a gain and a loss. The loss is that the consumer transgresses a Rabbinical prohibition, as it is forbidden to eat meat from an animal whose lungs have not been examined. The gain is that the consumer is saved from the prohibition of treifah because, had the shochet examined the animal and found it to be treifah, its owner would still supply it to him. Now that the animal was not examined, by Torah law it may be eaten relying on “rov” (the majority), as most animals are not treifah. On the other hand, if the shochet examines the lungs, though he prevents the community from eating the meat of an animal which was not examined, at the same time a great risk arises that they will transgress the prohibition of eating a Biblically prohibited treifah if he does discern such a condition in an animal. How should he act?
Rabbi Tzvi Pesach Frank, zt”l, author of Har Tzvi (Responsa, Yorah Deah 19), instructed the shochet that he not examine at all, as in certain circumstances “we tell a person to sin so that [his] companion will gain (avoiding a greater sin).” In fact, in this instance he is not even being asked to sin, but to do nothing. Aside from that, the obligation to examine is not incumbent on the shochet but on the consumer, lest he eat meat which hasn’t been examined and transgress the prohibition of treifah. Since, in this instance, the meat will be eaten anyway, not examining is a greater saving than examining as, if he finds it to be treifah, they would transgress a Torah prohibition, but if he does not examine it, it is not treifah because we rely on the majority.
A Dissenting View
The author of Tzitz Eliezer (Responsa 9:36) rejects this decision for a few reasons. Firstly, he says, the rule that we sometimes tell a person to “sin [a minor transgression, not checking] so that your companion will merit [avoiding a major sin of eating ascertained treifah]” is said only when, if not for the minor sin, the major sin would certainly occur. In our case, there is no certainty that the animal will be found treifah; on the contrary, the animal more likely will not be treifah. The shochet therefore may not commit the sin of not checking. Moreover, if the shochet does not check, they will also sin – by eating meat of an unexamined animal. The rule allowing a person to sin is only if by doing so, the companion will gain entirely without any sin, whereas in this instance, the people will also transgress a prohibition as a result of his sin.