The opening section of Parashat Metzora outlines the procedure whereby a metzora regains his state of purity. This ritual includes two birds, one of which is slaughtered, after which the remaining bird is dipped in its blood and later sent away.
The Gemara in Masekhet Kiddushin (57b) establishes that although the bird which is slaughtered as part of this ritual is forbidden for any sort of personal benefit, the other bird is entirely permitted. The proof, the Gemara explains, lies in the fact that the second bird is sent away back into freedom, such that anybody can then hunt it and eat it. The Gemara comments, “Lo amera Torah shalach le-takala” – it is inconceivable that the Torah would issue a command that might likely result in an unwitting violation. If the live bird were forbidden, the Torah would not have instructed that it be let free and thus potential cause a person to sin by catching it and partaking of its meat.
Numerous Acharonim raised the question of how to explain the Gemara’s rationale in light of the well-established rule of bittul be-rov (“nullification” by a majority). Even if the bird used for the metzora’s purification was forbidden, it would be entirely permissible to catch and slaughter birds, as the overwhelming majority of birds have not been used for the metzora’s purification. In light of the clear, undisputed principle of rov, which allows relying on a statistical majority, there would, seemingly, be no “takala” (“offense”) resulting from sending free a bird that is forbidden for consumption. As such, the Gemara’s line of reasoning seems, at first glance, flawed.
Rav Shimon Shkop, in his Sha’arei Yosher (Sha’arei Ha-sefeikot, chapter 2), cites the Gemara’s comment amidst his discussion of the nature of the halakha which permits, under certain circumstances, committing an act which might possibly constitute a violation. Rav Shimon asserts that even in such circumstances, if it turns out that the violation was committed, then the invidual is considered to have committed a sin and requires atonement. Although Halakha permitted him to take this risk, he nevertheless must seek atonement if he discovers that he had, indeed, violated the law in question. Thus, for example, if a person had a piece of meat which may have been cheilev (forbidden animal fat), but because of the statistical probability that it was permissible he was halakhically entitled to eat it, if he later determines that it was cheilev he must bring a sin-offering. Even though it was entirely permissible to eat the piece in question, once he discovers that he ate something forbidden, he requires atonement. By the same token, Rav Shimon writes, if somebody knows that a given piece of meat is forbidden, he may not present it to somebody to eat, even though Halakha would permit that other person to eat the meat given the statistical probability that it is kosher. When Halakha permits acting leniently in a situation of safeik (halakhic doubt), it does not suspend the prohibition in question, but rather authorizes the individual to risk violating a prohibition. But if it is determined that the prohibition has been violated, atonement is needed, and thus it is forbidden to place somebody in such a situation, given the prohibition against causing one’s fellow to sin (“Lifnei iver lo titein mikhshol”).
Rav Shimon draws proof from the Gemara’s comment regarding the bird of the metzora’s purification ritual. Although one would be permitted to hunt and eat birds even if the Torah had forbade this bird, in light of the statistical probability that any given bird is permissible, nevertheless, one who would eat the forbidden bird would be considered to have inadvertently transgressed Torah law. The Gemara understandably found it inconceivable that the Torah would create a situation where a person would unwittingly committed a violation.
Rav Shimon notes that the exception to this rule is the case of orla outside Eretz Yisrael. Although the prohibition of orla (fruit produced by a tree within three years of being planted) applies even outside the Land of Israel, it is forbidden there only when one knows for certainty that a given fruit is orla. Whereas in Israel one must ensure before eating a fruit that it is not orla, outside the land one may eat any fruit as long as he does not know that it is orla. Rav Shimon establishes that safeik orla – fruit whose status vis-à-vis orla is uncertain – is permitted outside Eretz Yisrael intrinsically, and not merely as a matter of policy. That is to say that when one eats safeik orla outside the land, he is not running any risk of violating the orla prohibition. The prohibition outside Eretz Yisrael is inherently dependent upon the certainty of the fruit’s status. Therefore, if a person ate a fruit in chutz la-aretz and afterward discovered it was orla, no atonement is necessary. Moreover, it is entirely permissible to knowingly feed a person orla in chutz la-aretz without informing him of the fruit’s status. Since knowledge of the fruit’s status is a prerequisite for the application of the orla prohibition outside Eretz Yisrael, the individual in such a case does not violate any law by eating the orla, even inadvertently.