A Ruling Too Novel?
‘One Who Ate Nevelah On Yom Kippur Is Exempt’
(Kiddushin 77b)
Our daf cites R. Shimon who taught in a baraisa that “one who ate nevelah on Yom Kippur is not subject to any penalty for eating on Yom Kippur.” He is only subject to the punishment of lashes for having eaten nevelah.
This ruling of R. Shimon is based on the principle of “Ein issur chal al issur,” a prohibition cannot be imposed when a pre-existing prohibition is already in place. That is, since the prohibition to eat nevelah came into effect even before the onset of Yom Kippur, the additional prohibition of eating on Yom Kippur does not apply.
Either Or
Rashi (ad loc. s.v. “patur mi’kareth”) explains that R. Shimon’s reasoning applies even if the animal was alive when Yom Kippur started. The nevelah prohibition may not have been in place when Yom Kippur started but another prohibition was: eiver min hachai. This, the animal was prohibited for consumption before Yom Kippur started – whether it was alive or dead.
It Isn’t Slaughtered
Tosafos (Shevuos 24a, s.v. “ha’ochel nevelah…”) finds difficulty with Rashi’s explanation because of the rule (Chullin 103a) that an animal does not stand to be dismembered while still alive.
Tosafos explains, therefore, that a person has not violated Yom Kippur by eating nevelah – even if the animal was alive when Yom Kippur started – because there is a prohibition against eating a non-slaughtered (“vezavachta…ve’achalta – you should slaughter…and eat” [Deuteronomy 12:21]), and this prohibition was in place before Yom Kippur started.
Two Prohibitions
The Ritzba (Rabbenu Yitzhak b. Avraham, a 12th-century Tosafist, cited in Tosafos ad loc.) dissents and maintains that a person who eats an animal that died on Yom Kippur has indeed violated the laws 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 was only temporary, and when the animal died on Yom Kippur, both the Yom Kippur prohibition and the nevelah prohibition came into effect simultaneously.
Thus R. Shimon’s rule only applies if the animal died before Yom Kippur.
Non-Kosher Food
Rabbi Yechezkel Landau (Noda BiYehuda, First Edition, Responsum 36 s.v. “Ve’omnam“) was asked: What should a critically ill person do if he is ordered to eat by his doctor? Based on R. Shimon’s rule, Rabbi Landau answered that it is preferable for the patient to eat nevelah (whose consumption on Yom Kippur normally carries a penalty of lashes) rather than kosher food (whose consumption on Yom Kippur normally carries a penalty of kares).
The Rosh (Yoma, Ch. 8), however, might disagree due to the possibility that a critically ill person will be unable to stomach eating non-kosher food and thus endanger himself even further. It is better for the person to eat less than a “kekoseves hagassa” (the volume of a large date) in increments. In this manner, he will not have eaten the amount of food on Yom Kippur for which one is usually punished. Halacha lema’aseh, most authorities rule in accordance with the view of the Rosh.