Or HaChaim on Leviticus 17:3/אור החיים על ויקרא י״ז:ג׳

1 איש איש …אשד ישחט, any person who slaughters, etc. Why is the word איש repeated here? In Zevachim 108 they explain this in terms of Rabbi Shimon who claimed that if someone slaughters an animal (intended as a sacrifice) on behalf of a private individual he would be guilty of slaughtering sacred things outside the Temple precincts. They base this on the repeated mention of איש meaning איש לאיש. They do not explain it as meaning that if two people combined in that act that they would both be culpable for that sin. The reason is that the Torah phrased culpability by referring to האיש ההוא, i.e. a single individual. The Talmud also explains the restrictive word ההוא as excluding anyone who committed this act accidentally, erroneously or inadvertently. At the same time they explain the word as excluding two people who combined to slaughter the animal by saying the Torah did not write ההם, but ההוא. We find this somewhat difficult seeing that Torat Kohanim is on record as deriving this halachah from the words דם שפך and not from the word ההוא. One may answer that inasmuch as there are two separate restrictive expressions, i.e. ההוא as well as שפך (verse 4), Torat Kohanim derives from the one that when two people slaughter jointly that they are not culpable, and from the other that if the act did not occur intentionally and without outside coercion the perpetrator is not punishable.

2אשד ישחט, who will slaughter, etc. Torat Kohanim phrases its comment thus: "From the mention of the words 'ox, sheep, and goat' I can only derive culpability for slaughtering four-legged mammals; whence do I know that slaughtering birds intended for the altar outside the precincts of the Temple or Tabernacle is also prohibited on pain of the karet penalty? Answer: from the words או אשר ישחט. I could have reasoned that if slaughtering the bird's neck, which is not the normal procedure is culpable, then someone who merely severed the bird's neck by pinching, i.e. מליקה i.e. the normal procedure, would certainly be culpable if he performed this act outside the precincts of the Temple, therefore the Torah had to tell us that he would only be culpable for שחיטה, slaughter, but not for מליקה, pinching." Thus far Torat Kohanim. From the above we learn that the word או serves to include culpability for slaughtering the bird in the wrong place whereas from the words אשר ישחט I derive that pinching is not culpable which I would otherwise have considered punishable due to the קל וחומר. How do I reconcile this with a Baraitha in Zevachim 107 where we are told by Rabbi Yishmael that he derives the culpability for slaughtering the bird from the expression אשר ישחט, whereas he derives the exclusion of culpability for pinching the bird's neck from the words זה הדבר (in verse 1) which I would have included on the basis of the קל וחומר had it not been for the words זה הדבר? Even Rabbi Akiva who disagrees with Rabbi Yishmael in Zevachim uses the extra words דם יחשב in order to derive the law that slaughtering sacrificial birds in the wrong place is culpable. He derives the exclusion of this culpability when the bird's neck is merely pinched from the expression אשר ישחט. We are forced to conclude that the author of Torat Kohanim was neither Rabbi Yishmael nor Rabbi Akiva. It is quite impossible to reconcile the view of Rabbi Yishmael with that of the author of Torat Kohanim, because the former uses the expression זה הדבר for an exegesis based on a גזרה שוה, comparing it to the same expression in Numbers 30,2, where the Torah speaks about who can cancel vows. On the other hand, the fact that Torat Kohanim does not record the exegetical comment of Rabbi Yishmael concerning the extraneous words דם יחשב, who includes culpability of someone who sprinkles the blood outside the precincts of the Tabernacle, it appears that the author of Torat Kohanim accepts the view of Rabbi Akiva. The exegetical use made by Torat Kohanim of the words או זבח in verse 8 i.e. that the blood is included in the prohibition and culpability of שחוטי חוץ makes it plain that Torat Kohanim does appear to accept the viewpoint of Rabbi Akiva as per the folio of the Talmud we quoted. From all this it emerges that the exegesis that the slaughtering of the bird is culpable when performed outside the courtyard of the Tabernacle is based on the words דם יחשב, whereas the exclusion of pinching the bird's neck as culpable is based on the words אשר ישחט. The question therefore arises why the author of Torat Kohanim derives two separate הלכות from the words אשר ישחט? Besides, why does the author of Torat Kohanim need the words דם יחשב in verse 4?

3I have seen the following comment by Maimonides in chapter 18 of his treatise on Ma-asseh Hakorbanot. "When two people get hold of a knife and they perform ritual slaughter jointly they are free from punishment because the Torah wrote: אשר ישחט או אשר ישחט, i.e. one who slaughters not two who slaughter." Why did Maimonides have to look for a different expression in our verses and could not derive this הלכה from the existing exegesis either in the Talmud or Torat Kohanim ? Another difficulty in the statement by Maimonides is that the very words from the verse used by Maimonides for exonerating two people who slaughter jointly have already been used exegetically to derive the law about slaughtering birds, something which both Rabbi Yishmael and Rabbi Akiva had agreed on in Zevachim 107? We have explained earlier that according to one of these Rabbis the word אשר ישחט is used to include culpabiity for slaughtering the bird, whereas according to the other Rabbi this word serves to exclude culpability if one merely pinched the neck of the bird in question. Maimonides accepts this latter ruling in chapter 19 of the treatise we mentioned earlier. We have still another difficulty with the exegesis of Maimonides' ruling in the matter of someone slaughtering on behalf of a private individual, i.e. איש. He derives this from the words דם יחשב לאיש ההוא דם שפך. This is how Maimonides explains his exegesis: "Although the person in question had not intended to slaughter these קדשים, sacrificial animals, for G'd as such, he will still be culpable because the Torah wrote: "it shall be accounted as blood (guilt) for that man, he has spilled blood." The latter words mean that though in his own mind this blood was similar to ordinary blood spilled on the ground and not blood intended for the altar at all he is guilty. Thus far Maimonides. The Talmud, on the other hand, uses the words איש איש as the basis for the culpability of someone who slaughters such an animal; furthermore, Torat Kohanim uses the words דם שפך as the exegetical base for excluding joint slaughter by two parties or people who slaughtered inadvertently or while under duress as we mentioned earlier. How can we use the same words exegetically to derive the prohibition of שחוטי חוץ? The last mentioned explanation is offered in the name of Rabbi Yossi who disagrees with Rabbi Shimon concerning the meaning of איש איש in Zevachim 108.

4We must understand therefore that Maimonides chose to bring proof for his הלכה from the superfluous words דם שפך, as it is a stronger kind of proof than the exegesis based on the repetition of the word איש. Proof of this is found in Baba Metzia 31 where the repetition of the word העבט תעביטנו in Deut.15,8 is discussed. In that instance Rabbi Shimon took the view that the Torah employed normal human syntax and that the extra word was not intended for special exegetical purposes. Tossaphot write there that when there is evidence in the verse under discussion that the repetition is not justifiable in the context of that verse, we say that it has exegetical significance. When there is some justification for the repetition, however, we may choose not to look for further הלכות based on that word. Rabbi Shimon holds that in the case of Deut. 15,8 the words די מחסורו אשר יחסד לו, "in the amount that he is short," provide ample reason to rule that when the impoverished person does not want to turn his assets into cash and prefers to receive handouts, one need not assist such a person. This is what is meant by our "ignoring the repetition תעביטנו and declaring that the Torah uses ordinary human syntax." Considering this comment by Tossaphot, we can appreciate why the words איש איש are not as good an exegetical base as are the words דם שפך which are used by the Talmud as the exegetical basis according to Rabbi Yossi. Although the Talmud uses this exegetical basis only according to the view of Rabbi Yossi, we are entitled to assume that Rabbi Shimon feels the same way about it seeing we have no reason to assume that the two Rabbis disagree. While it is true that the Talmud (Zevachim 108) presents Rabbi Shimon as using the repetition by the Torah of the word איש איש as teaching that it is culpable to slaughter a mammal outside the precincts of the Temple if said animal was slated to be a sacrificial animal, this was only before Rabbi Shimon had heard of the exegetical value of the words דם יחשב לאיש ההוא דם שפך. This is presumably why Maimonides also quoted this latter exegesis as the basis for our הלכה.

5[The author proceeds to deal with the first question he raised against Maimonides. I have decided to skip this. Ed.]