The Prohibition of Eiver Min Ha-Chai

  • Rav Moshe Taragin

The prohibition of eiver min ha-chai, the prohibition to consume an animal limb or animal flesh while the animal is still alive, is typically viewed as autonomous from the issur of eating neveila, an animal that died through any means other than proper shechita. Presumably once the animal dies, the prohibition of eiver min ha-chai is discontinued. If a correct shechita was performed, the animal becomes halakhically permissible to eat. If the shechita was not properly performed, a new prohibition of neveila devolves upon the animal.

Proof of the independent nature of the neveila prohibition is the added tuma (impurity) entailed. A live animal, although prohibited to eat, is not tamei, whereas a neveila confers several varieties of tuma. This seems to indicate that a completely new prohibition has emerged once the animal dies.

However, an interesting statement of Rashi may indicate that the prohibitions of neveila and eiver min ha-chai are one continuum. A well-known statement of R. Huna, (Chullin 9a) claims that any doubts regarding the validity of shechita yield a “prohibition” upon the animal meat. This ruling is based upon the principle of chazaka, which assumes that halakhic identities remain intact until incontrovertibly proven otherwise. Before the questionable shechita, the animal was prohibited; since we are unsure about the status of the shechita, we extend the original prohibition based on the laws of chazaka. R. Huna does not specify the basis of the original prohibition which determines the shechita extension, and several Rishonim develop solutions to explain why the animal was “originally” prohibited before shechita. Rashi claims that the original issur was the eiver min ha-chai prohibition, which predated the questionable shechita. Since the animal was forbidden to eat because of eiver min ha-chai, we assume that the questionable shechita was invalid and the animal is deemed a neveila.

Presumably, Rashi assumes that the prohibition of eiver min ha-chai and neveila are not separate or distinct prohibitions. If they were, it is unlikely that chazaka could extend the original prohibition (eiver min ha-chai) to create a NEW one (neveila). Indeed, the Rashba reads Rashi in the latter manner, implying that Rashi endorses a chazaka extending a halakhic status despite a discrepancy between the original status and the currently extended one (a principle known as “machzikin mei-issur le-issur”). However, many authorities (see, for example, R. Akiva Eiger) assume that a chazaka CANNOT fuse an original issur with a completely independent and emergent one. Accordingly, it appears that Rashi maintains that eiver min ha-chai is the precursor prohibition to neveila. The Torah describes two related phenomena; animals that did not undergo shechita are prohibited: If the animal is still alive, the issur is deemed eiver min ha-chai and does not confer tuma. If the animal dies without proper shechita, the original prohibition is deemed neveila and, in addition to the prohibition to eat, also confers tuma.

There are several intriguing applications of this approach. An interesting machloket about the scope of eiver min ha-chai appears in the gemara in Chullin (101). Intuitively, we would assume that the prohibition of eiver min ha-chai extends to all animals. Indeed, R. Yehuda adopts this expanded scope of the prohibition. Subsequently, the Chakhamim limit the prohibition to animals that are permissible to eat if slaughtered properly. Animals that are otherwise forbidden are not included within the prohibition of eiver min ha-chai. Although this limitation could have been justified on different counts – for example, the inability of one prohibition (eiver min ha-chai) to overlap with a primary issur (eating non-kosher animals) – the Chakhamim derive this limitation from a pasuk. The source of eiver min ha-chai (Devarim 12:23) prohibits eating the “soul” (nefesh) with the meat; interpreting the term “nefesh” as the life-force of an animal, the gemara derives the prohibition of eiver min ha-chai. Since the pasuk is referring to animals that can be eaten, the Chakhamim limit eiver min ha-chai to animals that can be eaten if shechted properly.

Perhaps this limitation of the issur of eiver min ha-chai implies that eiver min ha-chai is based on a lack of successful shechita. Only animals upon which shechita can be effective are prohibited pre-shechita as eiver min ha-chai. Those which are unaffected by shechita – that is, non-kosher animals – are thus immune to eiver min ha-chai.

Further linkage between “shechita-dependence” and the prohibition of eiver min ha-chai can be found in a statement of the Tosefta (Terumos, perek 9), which excludes grasshoppers and fish from the eiver min ha-chai prohibition. The Tosefta does not explain the rationale for this exemption, but the Rambam (Hilkhot Shechita 1:3) develops a theory that only animals that require shechita are prohibited while still alive due to eiver min ha-chai. Since grasshoppers and fish do not require shechita, they are not subject to the prohibition of eiver min ha-chai. While others have suggested alternate logic for the exclusion of fish and grasshoppers from the eiver min ha-chai prohibition, the Ramban’s theory is reminiscent of Rashi’s comment and suggests that the prohibition stems from a need for shechita.

Similar logic emerges from the exemption of human flesh from the prohibition of eiver min ha-chai. Most Rishonim assert that cannibalizing a live person would not violate the eiver min ha-chai prohibition and suggest different rationales for the prohibition. In his commentary to Ketuvot (60a), the Ran cites a statement of the Ramban, who justifies the lack of the eiver min ha-chai prohibition upon human flesh because shechita is irrelevant. Since human flesh cannot be affected by shechita, it is not labeled as eiver min ha-chai. Once again, it appears that eiver min ha-chai is not simply a prohibition of eating flesh from a living organism. Rather, it is defined as circumventing shechita and eating flesh. In situations in which shechita is inapplicable, eiver min ha-chai does not apply.

The intriguing situation of ben peku'a provides an additional example of a live animal which is not prohibited as eiver min ha-chai. The gemara (Chullin 74a) allows (under certain circumstances) a live fetus of a slaughtered animal to be eaten without performing a separate shechita. According to some opinions, even a full term animal discovered in the womb of a shechted animal may be eaten without an additional shechita. Logically, it is unclear why this live baby does not require separate shechita. Is the shechita performed upon the mother considered as having been executed upon the baby as well? Or has the Torah established a new category, establishing that shechita is not required until a living organism has been born? Either way, this is a practical example of an animal that may be consumed without shechita. According to the majority of opinions – at least on a Biblical level – this baby may be eaten alive! Presumably, this allowance also confirms that the prohibition of eiver min ha-chai only applies to animals that require shechita because the issur is defined as shechita circumvention. Animals that do not require shechita do not pose an eiver min ha-chai prohibition.

Perhaps the most compelling indicator of a linkage between eiver min ha-chai and the shechita requirement is not the absence of the prohibition when shechita is unnecessary, but the absence of the issur if shechita has been executed. This scenario sounds unlikely; if shechita has been executed, presumably the animal is dead and eiver min ha-chai is no longer relevant. The gemara, (Chullin 121b) however, conjures up an interesting case in which shechita has been rendered but the animal is still alive. This situation is known as “mefarcheset” and relates to an animal who still responds with signs of life even after successful shechita. The gemara in Chullin claims that the animal may be eaten, since successful shechita has been completed. Even though the animal is still halakhically alive, eiver min ha-chai does not apply! One might argue that this exemption of eiver min ha-chai in fact indicates that the halakha defines such an animal as legally dead. However, a similar mefarcheset animal that was killed through IMPROPER shechita is still considered alive and prohibited as eiver min ha-chai. Evidently, then, the parameters of eiver min ha-chai are not dictated by whether the animal is considered legally dead or alive but rather by whether a proper shechita was rendered. If proper shechita was performed, the prohibition of eiver min ha-chai is eliminated even for live animals. This strongly indicates that eiver min ha-chai is based on shechita circumvention and not merely eating live animals.

Determining a linkage between eiver min ha-chai and the shechita potential would affect the applicability of eiver min ha-chai to a gentile. A gentile is prohibited from eating eiver min ha-chai despite the absence of a shechita requirement on his part. If eiver min ha-chai for a Jew is defined as shechita circumvention, this "category" cannot apply to a gentile. Consequently, a gentile’s prohibition of eiver min ha-chai must represent an entirely distinct category and autonomous prohibition of eiver min ha-chai from that of a Jew, and some of the guidelines that govern eiver min ha-chai for a Jew may not govern the prohibition for a gentile.

Finally, the possible linkage between the prohibition of eiver min ha-chai and the absence of shechita may also influence an abstract but important debate about the chronology of this issur. The gemara in Chullin (102a) cites a dispute as to whether the prohibition emerges before a body limb is severed from the animal. This question has very limited practical application. One consequence would pertain to a person who consumed an entire live bird whose size is smaller than the typical ke-zayit requisite. If the prohibition of eiver min ha-chai applies to the bird even BEFORE any limb has been severed, the issur would apply even to a small "less than ke-zayit" bird. If the issur of eiver min ha-chai only applies to an actual severed limb of a live animal, no prohibition would apply in such a case. Most issurim are only considered violated once a ke-zayit sized item has been ingested, but eiver min ha-chai may be unique in that eating even less than a ke-zayit of flesh constitutes an issur.

If eiver min ha-chai represents a circumvention of the shechita process, it may only emerge in the wake of an action that can be cast as shechita circumvention. Tearing a limb from an animal (which ultimately advances its death) can be framed as executing a substitute for shechita and thereby circumventing it. This would be a clear violation of eiver min ha-chai. Perhaps eating AN ENTIRE animal may constitute "avoiding" shechita, but not circumventing or advancing an alternative process. This may explain why the prohibition might not evolve unless a limb is actually severed.