Chezkat Eino Zavu'ach

An animal is forbidden to eat while alive due to the prohibition of eiver min ha-chai. Once the animal dies, the prohibition of eiver min ha-chai no longer applies, but the prohibition of neveila may come into effect. If the shechita (ritual slaughter) was performed correctly, the prohibition of neveila does not apply. However, if the shechita was not done properly, the prohibition of neveila emerges. Essentially, before death, the only prohibition affecting the animal is eiver min ha-chai. After death, a new prohibition, depending on the validity of the shechita, may arise.

There is a fascinating question regarding the relationship between the pre-death prohibition of eiver min ha-chai and the post-death prohibition of neveila. Specifically, if neveila does not arise immediately after a failed shechita but may remain latent, it raises the question of whether eiver min ha-chai and neveila are essentially one continuous prohibition with different labels at different stages. If they are, then a successful shechita would be necessary to remove both prohibitions. Alternatively, if the two prohibitions are distinct, neveila only emerges in the absence of proper shechita and does not preexist it.

This shiur will not directly analyze these topics. Instead, it will focus on whether an additional prohibition applies to both the pre-death and post-death stages. Specifically, many Rishonim assert that there is an additional prohibition known as "eino zavu'ach," which prohibits eating an animal that was not properly slaughtered.

Several Gemarot suggest the existence of this additional prohibition. Firstly, the gemara in Shevuot (24a) discusses the principle known as ein issur chal al issur — an additional prohibition cannot be imposed upon something that is already forbidden due to a different prohibition. For example, if pig meat is cooked with milk, it is not considered basar be-chalav because the meat was already forbidden as pig meat before being cooked with dairy. The new prohibition of basar be-chalav cannot be added to something that is already prohibited.

Applying this principle, the Gemara in Shevuot (24a) asserts that if neveila (meat from an improperly slaughtered animal) is eaten on Yom Kippur, there is no additional violation of Yom Kippur, since the meat is forbidden as neveila independently of Yom Kippur. The Gemara does not clarify when the meat became neveila, but it is presumed that the prohibition of neveila predates Yom Kippur, thereby preventing the Yom Kippur prohibition from overlapping with the original neveila prohibition. Most Rishonim adopt this approach.

Tosafot ( s.v. ha-ochel), however, disagree, arguing that even if the animal became a neveila only after Yom Kippur began, the prohibition of Yom Kippur cannot apply. Before the animal became neveila, it was already forbidden based on a separate prohibition known as "eino zavu’ach," which prohibits eating meat that hasn’t been properly slaughtered. This prohibition is independent of neveila and exists from the moment the animal is born, continuing even after death. Since the prohibition of eino zavu’ach predates Yom Kippur, it prevents the Yom Kippur prohibition from applying to the meat, which is already forbidden. Tosafot infers from this Gemara that there is an additional prohibition against eating improperly slaughtered meat that applies both before and after the failure of shechita.

A second Gemara that may indicate the existence of a separate prohibition of eino zavu’ach, is found in Chullin (9a). This Gemara addresses the laws of chazaka and states that if there is uncertainty about whether the shechita was performed correctly, the meat remains forbidden. According to the principle of chazaka, a preexisting state of prohibition is extended to cover the current uncertain state. In this case, since the animal was initially forbidden before the shechita, the uncertainty surrounding the shechitah leads us to assume that it was not performed properly and that the animal remains forbidden.

The Rashba raises a pertinent question: before its death, the animal was forbidden due to eiver min ha-chai. After its death, this prohibition ceases, and we are left to determine whether the shechitah was performed correctly, which introduces the prohibition of neveila. Why should the previous prohibition of eiver min ha-chai influence the current uncertainty that will determine the status of neveila?

Assuming we cannot extend a chazaka status from one prohibition to another, the Rashba infers from the Gemara that prior to its death, the animal was forbidden for two reasons: both because of eiver min ha-chai and because it was eino zavu’ach. Although the prohibition of eiver min ha-chai has ceased, the question of whether the animal was properly slaughtered will affect whether the initial prohibition of eino zavu’ach has been eliminated or continues after death. This represents a classic application of chazaka. Since the animal was certainly forbidden as eino zavu’ach before its death, we assume that the shechita was not properly performed and extend the previous state into the current uncertain state.

The question of whether an animal is forbidden based on an independent prohibition of eino zavu’ach may be traced back to an intriguing issue raised by Rav Yirmiya in Chullin 17a. According to Rabbi Akiva, during the forty years in the desert, we were permitted to consume basar nechira —meat from animals slaughtered without proper shechita. Rav Yirmiya inquires: if meat slaughtered through nechira while we were still in the desert was subsequently brought into Eretz Yisrael, where proper shechita is required, would we still be allowed to eat it?

Logically, the meat should remain permissible in Eretz Yisrael. Once it was permitted (or in Gemara language, "it underwent a matir "), why and how should it revert to being forbidden?

Rav Yirmiya may be exploring this question: if the mitzva of shechita introduces a prohibition against eating non-shechted meat, then meat that was previously permitted could now become forbidden. In the desert, only the prohibitions of eiver min ha-chai and neveila applied, both of which could be resolved with nechira. However, upon entering Eretz Yisrael, a new mitzva and prohibition emerged. We are commanded to perform shechita, and a new prohibition against eating meat that is eino zavu’ach arises. The introduction of a new mitzva thus generates a new prohibition.

The question of whether eino zavu’ach constitutes an independent prohibition that preexists shechita has significant implications for the other two prohibitions. If eino zavu’ach already forbids the animal from birth, how can eiver min ha-chai emerge? Wouldn't the principle of ein issur chal al issur prevent this overlap? This is central to the Ritzva's (a 12^th century Tosafot who was a student of Rabbeinu Tam) disagreement with Tosafot.

Furthermore, if the prohibition of eino zavu’ach exists before shechita, how does this affect the nature of the prohibition of neveila ? Presumably, neveila  is not latent in a living animal, waiting to emerge in the absence of a proper shechita. Instead, neveila  likely has no preexisting latency and only materializes as a result of an unsuccessful  shechita.

A related question impacted by the separate prohibition of eino zavu’ach is whether there is a mitzva of shechita. Assuming, as the Rambam claims, that there is a mitzva, is this mitzva linked to achieving a matir (permit) or is it an independent obligation? Most mitzvot, such as lulav and matza, do not trigger a matir; they do not permit what was previously forbidden. Instead, most mitzvot are ritual actions that do not induce a halakhic change in the status of items.

Is the mitzva of shechita, assuming it exists, similar in nature? In addition to serving as a halakhic matir to remove prohibitions, is it also an act of mitzva, akin to tefillin or sukka? Or is the mitzva of shechita essentially fulfilled through the achievement of the matir itself? This distinction has significant implications for how we understand the mitzva of shechita. By positing the presence of an eino zavu’ach prohibition stemming from the mitzva, Tosafot and the Rashba each assume that: There is a mitzva of shechita and that the mitzva is defined by the achievement of the matir.