Commentary for Bava Kamma 21:3

[He] should bring witnesses that [the animal] was mauled through circumstances beyond [his] control. The Gemara introduces a Braita that is discussing the meaning of a verse that deals with the obligations of a hired guard. The verse (Shemot 22, 12) reads as follows:
אם טרף ישרף יבאהו עד השרפה לא ישלם
The simple meaning of this verse is quite difficult. The words are the subject of a major dispute among the Tanoim as is mentioned in M’chilto on Parhas Mishpatim. Our Gemara deals with two of the explanations of these words.
We are discussing an animal that was given to a hired guard for safekeeping. The animal was torn to death by some wild animal in a way that was beyond the control of the hired guard. If the hired guard can prove this, he is exempt. According to the first Tano in the Braita this verse is requiring that he bring witnesses to prove that he is not liable. The words יבאהו עד, indicate that he must furnish testimony that the animal was torn to death by a wild animal and he is exempt, as the verse continues: if he furnishes witnesses, השרפה לא ישלם, he need not pay for the torn-apart animal. The situation was an אונס, an unavoidable mishap.
There is another approach to arriving at this very same conclusion. Issee in Bovo M’tzeeo Chapter Ho’umnim offers a different source for this ruling. The verse he quotes is in Sh’mos 22, 9: if a person will give to his neighbor a donkey or an ox or a sheep or any animal to guard and it will die or be broken or be captured, and there is no observer. The verse goes on to say that the guard must swear that his story is true and he need not pay.
And Issee expounds in Chapter Ho’umnim (Bovo M’tzee’o 83a) the verse in Sh’mos 22, 9, “there is no observer”, but if there is an observer who can testify, he, the guard, brings witnesses that it was torn apart and he is exempt.¹It is clear from Tosafot that both the first Tano of the Braita and Issee are teaching the same rule. See בית הלוי volume3, 35, 2, who says that there is no repetition because the two Braitas are not saying the same thing. It is clear from the Gemara in Bovo M’tzee’o 83a, that Issee is teaching us that one can exempt himself from payment by taking an oath only when the animal was attacked in an area where there usually are no observers. But if it is a place where there usually are observers, he must furnish witnesses and cannot absolve himself from payment by swearing. Our Braita may be saying something entirely different, that if one can prove by witnesses that the animal was torn to death in circumstances that were beyond his control, he is entirely exempt from all oaths that a hired guard is required to take. When a hired guard swears, he not only swears that the death of the animal was an unavoidable mishap, but that he did not attempt to steal the animal prior to the mishap and also that the animal is no longer in his possession. This ruling may be teaching us that once the guard furnishes witnesses that he was not negligent, he need not take the other two oaths. Actually this is the subject of a dispute between two approaches in Tosafot in Bovo M’tzee’o 6a בית הלוי .ד'ה שבועה שלא שלחתי בה יד concludes that our Tosafot must hold that when furnishing witnesses that the death of the animal was unavoidable, one must still take the other two oaths and the verse is not teaching us that he is entirely exempt from all oaths. If so, there is actually nothing new that is derived from this expounding of the verse. Tosafot is compelled to say that our Tano is in agreement with Issee, the difference between them is how the ruling is derived from the relevant verses.
This is the same ruling that the first Tano of the Braita derives from Sh’mos 22, 12. Is there perhaps a dispute between the first Tano of the Braita and Issee in Bovo M’tzee’o? Tosafot says: no, the difference between them is the way of understanding how to expound a verse. There is no substantial disagreement between the two Tanoim, they each arrive at the same conclusion from a different verse.

[He should] bring [the] accursed. Abo Sho’ul in our Braita offers an entirely different meaning for the words יבאהו עד. It appears that according to Abo Sho’ul the term has nothing to do with witnesses or testimony. It seems to be a reference to the carcass.
Abo Sho’ul understands that the verse is speaking of when the animal was torn apart as a result of the negligence of the guard. He is liable to pay. The Torah is saying – bring the carcass to the Bais Din and we will evaluate how much the guard must pay. Our Gemara according to Rashi and Tosfdos holds that we evaluate the carcass as it was worth at the time of death, and that is applied to the payment. If it deteriorated since the time of death it is the loss of the victim.
In Tosafot text the word describing the carcass is ארורה, accursed. Why? The explanation of why it is called accursed: because it died without anybody reciting a b’rochoh, upon slaughtering and eating it. Since it was killed without the benefit of kosher slaughtering no b’rochoh was recited for its slaughtering. It cannot be eaten and no b’rochoh will be recited upon eating it.
And there are those whose text is עדורה - missing, as in (Y’shayoh 34, 16) even “one of them was not missing”. Rashi in Y’shayoh says the verse is referring to the animals that came to Noah’s ark. The prophet is stressing that each one that was called did in fact come, none were missing. The cow or sheep that was torn apart by a wild animal is called עדורה, because it is missing.
And Rashi’s text is עדודה, which is like “he will eat עד” (B’raishis 49, 27)¹The text of Rashi in Parashat Vay’chee: כל עד: לשון ביזה ושלל המתורגם עדאה. ועוד יש לו דומה בלשון עברית. Rashi there says that the word עד means booty. The carcass was the intended booty of the animal that killed it.

Says Shmuel - The Custom of the Judges is that they do not quote a price, not for the thief and not for the robber, that if one stole or robbed an animal or an object, and he reduces its value, its not quoted (as) the dead animal or the broken vessel so that it will be returned to the owner and the thief will only pay the difference, rather he pays the animal or the object as new, and the broken is for him.

In the Sh’iltos of Rav Achai, the text is as follows: Shmuel said: Abo, who is Rav, said to me. And this is not like the commentary of Rashi, who said that Shmuel was relating that this was the custom of the judges, without quoting any source. Sh’iltos holds that Rav was the source of this ruling.

[The court] does not appraise, neither for a thief or a robber.
Rashi explained: we do not evaluate the carcass and the broken utensil and return them to the owner, so that the thief will return the difference between the present and the original value, rather, he must pay the value of a complete animal and superior utensils, and the broken utensils and the carcass are his, the thief’s.
Shmuel is teaching us that the rule that is in effect for a damager that the carcass or broken utensils belong to the victim and the damager only pays the difference, does not apply to a thief or a robber. The thief or robber must make full payment for the object that they stole and they keep the carcass or broken parts of utensils.
And even though we rule that the superfluous word ישיב in the verse - כסף ישיב לבעליו – (Sh’mos 21, 34), comes to include items that are the value of cash are the same as cash and even bran that may be used to pay one’s obligation of damages, a thief and a robber are different, because it is written (Vayikra 5, 23) – “and he shall return the stolen object that he stole” – this superfluous phrase teaches us that the stolen object or its cash equivalent must be returned as he stole them. He stole an animal or utensils that were perfectly fine, therefore, he must return the stolen object or its cash equivalent and not bran.
And so is it to be understood from Yerushalmi that says: From where do we learn that we do not evaluate a carcass or broken utensils for the benefit of a thief and for a robber and allow the thief or robber to pay only the difference between its original and present value?
Rav Abo bar Mamol said: the Torah says in reference to a thief (Sh’mos 22, 2) – “if the stolen object is found in his possession, he must pay live double”. ‘Live’ teaches us – and not dead animals. This implies that even if the animal died while in the thief’s possession, he must return a live animal or it cash equivalent. He may not return the carcass and pay the difference.
Yerushalmi continues: Thus far you have explained how we derive this ruling for – a thief, from where do we learn that a robber is treated the same?
Ran Abo bar Mamol said: “and he shall return the stolen object that he stole”, the superfluous words ‘that he stole’ teach us that he must return it as he stole it, alive and well or its cash equivalent. And this is the reason for the difference between a thief and a robber on the one hand and a damager on the other is that a robber and a thief take possession¹This concept is referred to as קניני גזילה – taking possession through stealing. This does not mean that the stolen object is legally the property of the thief, because we know that the Torah requires the thief or robber to return the object when it is intact. The possession we are referring to is a negative type of possession. If the animal dies or the object breaks, the thief or robber is liable, even though the death or breakage was the result of an unavoidable accident. It is comparable to one who owns an animal. If the animal dies, even by accident, it is the loss of the owner. He has no recourse. So too, when a thief or robber steal from an owner, the object is theirs in the sense that if anything happens to it, it is their loss. of the object immediately as they remove it from the domain of its owner. It is as if the object becomes theirs and they must pay for it, when they remove it from its owner’s domain. They can free themselves from this payment if they return the object intact, but if the object is broken or the animal dead, they cannot use the shards or carcass as payment of the obligation they incurred when they removed the animal from the owner’s domain. This is comparable to purchasing an object for which one owes payment. The object breaks, through no fault of the seller. The buyer cannot use the broken object as payment for his initial purchase.
However a damager is liable only for the actual damage. He never took possession of the animal or object he damaged. He simply caused it to be worth less because of the damage. He pays the difference between its original and present value, which reflects the damage he caused. And that is the reason of the one who says that a borrower also pays in full, since he is liable for unavoidable mishaps,²See note 1. The litmus test for ownership is responsibility for unavoidable mishaps. Since the borrower does have this responsibility, he is thought of as an owner, for as long as the borrowed animal or utensil is in his possession. If the animal should die or the utensil should break, he must return a complete animal or utensil. He cannot absolve himself with the carcass or shards of the broken utensil. it is as if he took possession of the object or animal from the time he removed it from the owner’s domain, and he is liable for the money just as a thief and robber.

For you make her pure from the first day. For the sake of clarity, we will speak of an instance where a lady was miscarrying on Sunday the first of the month, towards the end of the day. The miscarriage was completed somewhat later that evening which is halachically Monday, the second. The embryo had deteriorated and was in liquid form. We are not sure if most of the embryo came out on Sunday the first. This would be deemed a birth and the mother would be unclean as of Sunday the first. If, however, the majority of the material had not left the womb on Sunday the first, the birth would then have occurred on Monday the second. Rovo is now arguing that if you want to be stringent in this matter and consider the events of Sunday as a birth, thus rendering the mother unclean at that time, you are automatically going to be lenient when calculating the end of her unclean days.
A lady, who gives birth to a female on Sunday the first, will be tomay till Shabbat the fourteenth. On Sunday the fifteenth she begins her days of cleanliness. During this period even if she menstruates, she remains clean. This continues till the eightieth day from the birth. Let us assume that the months were in order, which means that the first month was thirty days and the second twenty nine and so on, the eightieth day would be Wednesday the twenty first of the third month. On the next day, Thursday the twenty second, she resumes her regular cycle.
However, in the case our Gemara is discussing, we are not sure of the gender of the fetus. There is a possibility that it was a male. If it was a male, her unclean days end on Shabbat the seventh. Her clean days start on Sunday the eighth and continue till the fortieth day from the birth, which is Thursday the tenth of the next month. Since there is a doubt about the sex of the fetus, she will conclude her clean days on Thursday the tenth. On Friday the eleventh she must act as if her regular cycle resumed.
Tosafot explains Rovo’s reservations about saying that when a woman miscarries between the end of Sunday the first and the beginning of Monday the second, we should assume that the birth occurred on Sunday the first, because at the end of the two unclean weeks of a female, you will consider her clean as of Sunday the first.
The explanation: That she will count the fourteen unclean days for the birth of a female, since she cannot be sure if the fetus was a male or a female, as of Sunday the first. These will conclude on Shabbat the fourteenth, and any menstruation¹ שתראה – literally means – she will see. This the way our Sages refer to menstruation. that she sees on Sunday the fifteenth will be clean. In reality though, that Sunday is actually in doubt, since the birth may have actually taken place on Monday the second. The stringency of counting the birth as of Sunday the first, will lead to a leniency of counting Sunday the fifteenth, as the first of her clean days.
It is evident that all agree that Sunday the fifteenth should not be counted as the first of the clean days, because it is possible that the birth occurred on Monday the second, in which case Sunday the fifteenth is the last of her unclean days. Tosafot wonders why we do not apply the rule of a double doubt. Although we must be stringent when there is a doubt about a given circumstance, such as whether the birth was on Sunday or Monday, when there is a double doubt, as Tosafot will explain, we can be lenient.
And if you ask: why should it, Sunday the fifteenth, not be a clean day? Perhaps on Sunday the first its, the fetus’, head or the majority of the fetal material emerged, and that is its birth day, which makes Sunday the fifteenth a clean day even if the fetus was a female, and even if it did not emerge, on Sunday the first, but on Monday the second, perhaps the fetus was a male, and the clean days actually already started on Monday the ninth?
There is a double doubt:
A) The birth may have occurred on Sunday the first and the mother is in her clean days even if the fetus was a female.
B) Even if the birth occurred on Monday the second, Sunday the fifteenth may be a clean day because the fetus may have been a male, whose clean days start on Monday the ninth.
Tosafot will now introduce a new clause in the rules of a double doubt. We may be lenient with a double doubt only when the conclusions we reach will not be self-contradictory, however, if the conclusions are self- contradictory, the double doubt leniency may not be employed.
And one can answer: That we cannot permit Sunday the fifteenth as a clean day, because of a double doubt, because the result would then be two leniencies that contradict each other.
Tosafot explains: the first leniency is Sunday the fifteenth, as explained. The second leniency will be:
That if she will menstruate on the forty first day, Friday the eleventh of the second month, she should also be permitted because of a double doubt: for perhaps the majority of the fetus did not emerge on Sunday the first, but on Monday the second, and Friday the eleventh is actually the fortieth day from the birth of a male, and even if its head did emerge on Sunday the first, perhaps it was a female and Friday the eleventh is within her clean eighty days.
A) Once again we have a double doubt to permit Friday the eleventh:
B) Perhaps the birth occurred on Monday the second.
C) Even if the birth occurred on Sunday the first, perhaps the fetus was a female and in any case Friday the eleventh is a clean day.
And now we are faced with the following: initially we permitted Monday the fifteenth, because perhaps the fetus was a male, and now we will permit Friday the eleventh, because perhaps it was a female. Behold, however you wish to view the events a prohibition was transgressed, the leniency on Monday the fifteenth was because the fetus was a male and the leniency on Friday the eleventh of the next month was because the fetus was a female. One fetus could not have been both male and female.
And there is a similar case that we learned in a Mishna in HaMapeles (Needoh 29a) where the Mishna says that a woman who is in doubt as to whether she was pregnant or not and then menstruated: there is a possibility that this was a regular menstruation and also the possibility of a birth of either a male or a female, the Mishna rules: she must sit for a male female and a Needoh. She must consider all three possibilities,
even though for each prohibition individually, there is a double doubt.²See Tosafot נדה כט. ד'ה תשב. For example, one could argue that there should be no birth tumoh in the second week, because of a double doubt.
A) Perhaps there was no birth at all and her menstrual tumoh ends on Shabbat the seventh.
B) Even if there was a birth, perhaps the fetus was a male and her birth tumoh ends on Shabbat the seventh.
But there is a reverse side to this double doubt as well. If the woman will menstruate on the thirty-fourth and forty-first days from the birth, we can argue that she should only be tomay for one day.
A) It is possible that originally there was no birth at all. The menstruation on the thirty-fourth day is her regular cycle of Needoh which makes her tomay for seven days. The menstruation on the forty- first day is the beginning of her Zovoh period which makes her Tomay for only one day.
B) Even if there was a birth, it is possible that it was a female and the menstruation on the forty-first day is in her clean days.
Even so the Mishna tells us that she must be consider the possibility of the birth of a male, in which case the forty-first day is the beginning of her regular cycle and she is tomay for seven days. Tosafot is telling us that the reason we cannot adopt the first leniency of not observing the second week of birth tumoh because of the possibility that the fetus was a male, is because on the forty first day there is a possibility of a leniency because the fetus may have been a female. Since these leniencies are self- contradictory, we cannot adopt them even though each case individually is a double doubt.

For there is no partial placenta without a fetus.
And if you ask: According to R’ Elozor who says that we are concerned with the possibility of a birth, because it is impossible that even a small part of the amniotic sac emerged without some part of a fetus, we must therefore consider the possibility that the head or majority of the fetus may have emerged, but if there was a possibility of part of the amniotic sac emerging without any part of the fetus, she need not be concerned that a birth occurred, because there would be a double doubt.
A) Perhaps no part of the fetus emerged.
B) Even if some of the fetus emerged, perhaps it was not the head or the majority.
From Tosafot’ analysis of R’ Elozor, there seems to be no doubt that the rule of being lenient when there is a double doubt would be in effect. Tosafot based on a Mishna in Masechet Taharos (Chapter 6, Mishna 4) challenges this conclusion. The Mishna there is discussing some rules about doubts that occur in matters that deal with tumoh and taharoh. The rule depends on where the doubt happened, whether in a public or private domain.
The Gemara in Needoh 3a says that this is derived from the laws of the sotoh, the suspected adulteress. When describing the events of the sotoh, the Torah constantly uses the expression ונטמאה and she will become tomay. Having an adulterous affair is not an issue of tumoh and taharoh; it is rather an issue of the sotoh becoming forbidden to her husband as a result of the adulterous relations. Why does the verse refer to it a tumoh? Our sages understood that the Torah is teaching us that the rules that govern doubts that occur in matters of tumoh are derived from the laws of the sotoh. The sotoh is forbidden to have relations with her husband as long as there is a suspicion that she committed adultery, so too when there is a suspicion that something may have become tomay, we are stringent. But the doubt that arises about a sotoh is always in a private area where a woman secluded herself with another man; therefore the rule of tumoh is that we are stringent only in a private area. If the doubt occurs in a public area we are lenient.
Tosafot asks: What exactly is the case? If it, the birth in question happened in a public domain, even if there is only one doubt, we rule that it is tohor.
And if it, the birth, happened in a private domain, even if there is a double doubt, there is also birth tumoh, for we have learned in a Mishna (Taharos Chapter 6, Mishna 4): all doubts that you can add in a private domain, even a double doubt is tomay.
Tosafot holds that the assumption of the question is correct. If the issue of this doubtful birth pertains to her status in relation to the laws of tumoh and taharoh, we must follow the ruling of the Mishna in Taharos and be stringent even in the case of a double doubt. However, the question of when this birth occurred not only affects her status of tumoh and taharoh, it also effects whether she is permitted to live with her husband.
And one can answer: that our Gemara is speaking about the matter of prohibiting her to her husband.¹Tosafot’ conclusion that our Gemara is speaking of the prohibition of a woman to her husband and not about her status for tumoh, is in direct opposition to Rashi in ד'ה לחומרא, חוששת ועוד, who clearly says that our Gemara is speaking about the status of the birth as far as tumoh is concerned. How does Rashi deal with Tosafot question? There are two suggestions:
a) Rashi holds that the ruling of the Mishna in Taharos is only for such tumoh that is external. For example a dead rodent that may have touched the woman. This is derived from a sotoh who may have been in contact with a man other than her husband. The tumoh of birth is internal, it comes from within her body and that is not derived from sotoh. The rule of such tumoh is the same as all other areas of Torah law. One doubt is forbidden; a double doubt is permitted.
b) Rashi essentially is in agreement with Tosafot that this doubt should be governed by the Mishna in Taharos. Here we are speaking of when the doubt occurred in a public area. According to the Mishna, the ruling should be lenient. However Rashi holds that since as far as the prohibition to her husband we must rule stringently, because that is not a doubt of tumoh, to rule otherwise for the tumoh issue would be self-contradictory. Therefore we must rule stringently for the tumoh issue even though the doubt occurred in a public area. If however there is a double doubt, where we may rule leniently even as far as the prohibition to her husband is concerned, we can also rule leniently for matters related to tumoh. That doubt is not governed by the Mishna in Taharos. It reverts to the standard rule that we are stringent for one doubt and lenient with a double doubt.

A placenta which was partially expelled is forbidden to be eaten. Usually if portion of a limb is extended from the womb of a cow while it is being slaughtered, the portion that was out of the womb is forbidden, but that which remained inside is permitted to be eaten. This is based on a verse in D’vorim 14, 6:
וְכָל־בְּהֵמָ֞ה מַפְרֶ֣סֶת פַּרְסָ֗ה וְשֹׁסַ֤עַת שֶׁ֙סַע֙ שְׁתֵּ֣י פְרָס֔וֹת מַעֲלַ֥ת גֵּרָ֖ה בַּבְּהֵמָ֑ה אֹתָ֖הּ תֹּאכֵֽלוּ׃
Our sages understood that the superfluous word which translates ‘in the animal’ is telling us, and anything that is within the animal at the time it is slaughtered, may be eaten. Therefore, the portion of a limb that was outside the animal at the time it was slaughtered is forbidden, because it is not within the animal. The portion that is inside the animal may be eaten.
All this changes when the amniotic sac is in the process of emerging at the time of birth. Then the determining factor is whether a birth has occurred or not. If a birth has occurred then even the portion of the amniotic sac that has not yet emerged is considered ‘born’ and is no longer a part of the mother. When is it considered that a birth has occurred? The majority of the fetus or its head must emerge for a ‘birth’ to occur. This holds true even when the fetus has dissolved and is in a liquidly form. Usually, when the fetus has already dissolved, it is nearly impossible to determine how much of the fetus emerged and we must consider the various possibilities.
The explanation of it is forbidden to be eaten is: even that portion of the fetus which remained inside the womb is forbidden, because perhaps in that small part of the amniotic sac that emerged, the dissolved head of the fetus emerged and it is as if it, the fetus, is entirely ‘born’, even the portion of the fetus and sac that remained inside the womb, and we cannot apply the verse which reads: “everything that is in the animal may be eaten”. If it is considered born, it is no longer ‘within’ the animal, even though it is presently located within the womb, in the legal sense it has already left the womb via the process of birth.
The primary focus of our Gemara is to bring out that the novelty of Ulo in the name of R’ Elozor which is that whenever even a minor portion of an amniotic sac emerges, there must be some part of the fetus in that minor portion of the sac, has already been stated in this Mishna.
For, if there is any possibility of a small part of the amniotic sac emerging without any fetus, we should permit the portion remaining in the womb because of a double doubt.
A) perhaps no portion of the fetus emerged in the part of the womb that came out.
B) Even if some portion of the fetus did emerge, perhaps it was less than the majority and did not contain the dissolved head.
Since we in fact rule that the entire amniotic sac is forbidden, we are perforce discounting the possibility that no portion of the fetus came out. It is evident that the Mishna holds that when any portion of an amniotic sac emerges, some part of the fetus emerges with it. If so, what is the novelty of Ulo in the name of R’ Elozor?
This is the explanation of the Gemara’s question. The Gemara will answer that there is another possible understanding of that Mishna and Ulo’s statement in the name of R’ Elozor is needed.
This is bewildering! For in the course of our Gemara it is evident that R’ Elozor would permit an amniotic sac that partially emerged to be eaten if there was a double doubt to permit it. The Gemara clearly states that R’ Elozor must hold that no portion of the amniotic sac emerges without at least some of the fetus, otherwise there would be no tumoh on Sunday the first, because there would be a double doubt that a birth had not occurred. From the Gemara’s comparison to the Mishna in Chulin, it is evident that the Gemara holds that the same applies as far as the prohibition of eating the amniotic sac.
The Gemara in Chulin 77b is discussing R’ Elozor’s statement about the Mishna that discusses an amniotic sac. R’ Elozor says that the ruling of the Mishna is in effect only when the amniotic sac is not attached to a fetus, but if it is attached to a fetus, we may assume that the amniotic sac is the sac of that fetus. If that fetus has not yet emerged, no ‘birth’ has occurred and it is permitted to eat the portion of the sac that remained in the womb.
The Gemara supports R’ Elozor’s opinion from a Braita. The Braita is discussing birth tumoh and it says: a woman aborted a fetus resembling a domesticated animal, a wild beast or a bird, and there is an amniotic sac with the miscarriage. If the sac is attached to the fetus, we are not concerned that there may have been another (human like) fetus, and there is no birth tumoh. If the sac is not attached to the fetus, we are concerned that perhaps there was another (human like) fetus which would generate birth tumoh. She must observe two weeks of birth tumoh, because the human like fetus may have been a female. She has no clean days, because perhaps there was no human-like birth at all.
Tosafot will now show us how the Gemara in Chulin 77b contradicts what we have learned in our Gemara. And at the end of B’haimoh Ham’kasheh (Chulin 77b) it is to be understood that even when there is a double doubt, R’ Elozor prohibits eating the amniotic sac. For it is about this Mishna that discusses an amniotic sac that partially emerged that R’ Elozor says:
It was only taught that we may not eat an amniotic sac, when it is not attached to a fetus, but when it is attached to a fetus we are not concerned that there may have been another fetus. We may assume that the sac we see is the sac of the fetus to which it is attached and there is no other fetus. As long as that fetus did not emerge, there was no ‘birth’ and the section of the sac that was inside the womb is permissible. Our problem with an amniotic sac is when it is not attached to the fetus we see. Since they are not attached, we must consider the possibility of a second fetus that was dissolved and emerged with the visible sac, and that the dissolved head or majority of the fetus was in the section that emerged.
Tosafot will now show us that when there is a sac that is unattached, there is a double doubt in favor of being lenient. And when the sac is unattached to the fetus, we are compelled to say that the likelihood that it is forbidden is only a double doubt, as the Braita there teaches:
For the Braita there teaches, we must consider the possibility that perhaps the embryo of the sac that we see dissolved etc. [and perhaps the sac of the visible embryo was also dissolved.] The existence of a second human-like fetus is not certain, it is only a doubt.
And if so, when the sac is not attached to the fetus, it should be permitted to eat that which remained inside the womb, because perhaps there is no other fetus than the one we see, and even if there was another dissolved fetus, perhaps the majority did not emerge.
As is evident from the Braita, it is not certain that there ever was a second embryo. It is entirely possible that the unattached sac is the sac of the fetus we see. The Braita teaches us that we must consider the possibility of another dissolved embryo. If so there is a double doubt:
A) Perhaps the situation is as we see it. The sac belongs to the unborn fetus and whatever is inside the womb is permissible.
B) Even if there was another dissolved embryo that emerged with the unattached sac, perhaps the head or majority did not emerge with the minor portion of the sac and whatever remained inside the womb is ‘that which is within the animal’ and is permitted to be eaten when the mother is slaughtered.
Ultimately, the Gemara in Chulin 77b is prohibiting eating the sac even when there is a double doubt, while our Gemara is clearly saying that if there was a double doubt it would be permitted?
Tosafot will resolve this contradiction by establishing that there are two possibilities of unattached amniotic sacs that the Gemara is discussing:
A) One that emerges after the fetus.
B) One that emerges before the fetus.
And one can answer: that the Braita there that teaches: perhaps etc. [when there is an unattached sac, the embryo of the visible sac dissolved as well as the sac of the visible embryo] and the existence of a second dissolved fetus is at the most a suspicion, is speaking of when the sac comes after the fetus. The Braita teaches us that as far as birth tumoh is concerned when there is a non-human like being, which does not generate birth tumoh, and an unattached sac that may be the sac of a dissolved human embryo, which does generate tumoh, we must be stringent and the mother must observe two weeks of birth tumoh. As far as the birth tumoh is concerned there is only one doubt: was there another dissolved human-like embryo or not? We must be stringent.
And R’ Elozor who explains that the Mishna about a sac that partially emerged is speaking of when the sac was not attached to the visible fetus and even so the Mishna rules that it is forbidden to eat the sac, is speaking of when the sac emerged before the fetus, because then, when the sac is not attached to it, we assume that there definitely was another dissolved fetus in addition to the visible fetus. Since there definitely was another dissolved embryo, there is only one doubt: did the head or majority of the fetus emerge in the minor portion of the sac or not. Since there is only one doubt, we must be stringent.
Tosafot offers support to this distinction between a sac that emerges before the embryo or after it.
As the Gemara says (Needoh 26b) that we do not say that we attribute the sac to the child, only when discussing a sac that emerged after the child, it is only then that we say this sac is not evidence of another birth, rather, it is the sac of the previously born child, but if an unattached sac emerges before the child we assume that there definitely was another dissolved fetus. There is no doubt that there was a fetus, the only doubt is how much of that fetus emerged together with the minor portion of the sac and since there is only one doubt, we must be stringent.
Tosafot now explores an entirely different approach to resolving the contradiction between our Gemara’s understanding of Ulo in the name of R’ Elozor and what appears to be a contradiction in Chulin 77b.
Our Gemara later considers the possibility that a minor portion of an amniotic sac might emerge without any part of a fetus and even so it is forbidden to eat the sac because of a decree that if we are lenient when a minor part of the sac emerges people will be confused and be lenient even when the entire sac emerges. See Gemara at the very end of this page.
Tosafot says that it is entirely possible that the Gemara in Chulin 77b, which seems to be saying that even when there is a double doubt that would permit eating the section of the sac that remained inside the womb, it is still forbidden to eat the remaining portion of the sac, is following the suggestion in our Gemara that even when there is a double doubt that permits eating the portion of the sac that remained inside the womb, it is forbidden because of the decree that if one is lenient when the minor portion of the sac emerges, he may also be lenient when the entire sac emerges.
There are now two distinct positions in our Gemara:
A) That R’ Elozor would definitely be lenient in the case of a double doubt.
B) That even in the case of a double doubt R’ Elozor would be stringent because of a Rabbinic decree.
Thus, the first position of our Gemara A) which holds that R’ Elozor would be lenient in the case of a double doubt is definitely in disagreement with the position of the Gemara in Chulin which holds that R’ Elozor is stringent even in the case of a double doubt. There is no contradiction between the two Gemaras, because the position of the Gemara there is in fact following the second position B) of the Gemara here. And we can also answer: that the Gemara there that prohibits eating the part of the sac that remained inside even when there is a double doubt, that is because of a decree that if you are lenient when a minor portion emerges, you may be lenient when all of the sac emerges, as the Gemara says here at the conclusion of our present discussion.

As it is a sign of a fetus by a woman; [so] it is a sign of a fetus by an animal. The Mishna is explaining that even a minor portion of an amniotic sac is an indication of a viable fetus¹When we speak of a viable fetus, we do not mean that at this point in time it is viable. As we have explained we are speaking of a dissolved fetus which is obviously not viable. What is meant is that at conception the embryo was viable and had the potential to develop into a viable fetus. Some time between conception and the emergence of the amniotic sac an event occurred that caused the then viable fetus to dissolve. Since it was once a viable fetus, its emergence in the sac is considered a ‘birth’. in an animal as it is in a human. By saying that it is an indication of a birth in an animal as it is in a human, it seems that it is more apparent that it is a sign of birth in a human than it is in an animal. Why is the Mishna convinced that the emergence of some of the amniotic sac is an indication of birth in a human, more so than in an animal?
And if you ask: why does the Mishna say, that the sign of birth in an animal is dependent on the sign of birth in a woman,²Tosafot Rid answers that the Mishna in HaMapeles (Needoh 24b) says that a woman who aborts an amniotic sac must be consider the possibility that it was a male or a female. This Mishna is a statement that an amniotic sac is a sign of a viable fetus in a woman. The Mishna in Chulin is then saying that just as it is a sign of a birth in a woman, so too, it is a sign of a birth in an animal. Perhaps Tosafot does not consider the Mishna in HaMapeles relevant to his question. The Mishna there is speaking about a woman who aborted an entire amniotic sac and is saying that this is a sign of a viable fetus. The Mishna in Chulin is discussing the emergence of only a minor portion and is saying that it is a sign that some portion of the fetus emerged. This detail is not the same as the Mishna in HaMapeles which is discussing an entire sac. and this Mishna is speaking only of an animal?³The last phrase of this question is a bit unclear. Tosafot has a legitimate question: why is the Mishna saying that a partial amniotic sac is a sign that at least some of the fetus emerged in the birth of an animal as it is in the birth of a human. How do we know that it is a sign that some of the fetus has emerged in a human, so that we can say: just as it is a sign in a human, it is also a sign in an animal? Tosafot second phrase that the Mishna is speaking only of an animal is irrelevant to the point that he is making. Perhaps Tosafot is explaining why he does not accept Rashi’s explanation that the Mishna is saying that a human and an animal are equal. He does not read the Mishna as Tosafot does that there is a comparison between an animal and a human, but rather it is a simple statement that both are equal. Tosafot is rejecting Rashi’s explanation, because the Mishna is not discussing a human at all. The Mishna is only discussing an animal. Why mention a human? If so, the Mishna must be comparing an animal to a human and Tosafot is legitimately asking: what is the basis for this comparison? How do we know that it is more likely that a minor portion of a sac is a sign of a birth for a human than for an animal? And one can answer: it is because it is plainer to him, the Tano, that for a woman an amniotic sac it is a sign of birth, than for an animal. For there is an embryo that is a sign of a fetus in a woman and not for an animal,⁴Tosafot seems to be saying that even though there is no source for the ruling that a partially emerged amniotic sac in a woman contains some of the fetus, other than this Mishna, the Mishna can refer to this as if it is a known fact, because it is more likely that it is a sign of a birth for a woman than for an animal. See Tosafot B’choros 19b, ד'ה ובגסה שליא where Tosafot says that the Mishna is to be understood as follows: despite the fact that an embryo is considered a sign of a viable fetus in a human and not in an animal, even so the partial emergence of an amniotic sac is a sign of emergence of some of the fetus in both a human and an animal. as we learned in a Mishna in Halokai’ach (B’choros 19b):
A sign of a fetus in an animal is an amniotic sac, and for a woman an embryo and an amniotic sac. There is a greater incidence of signs of what was a viable fetus in a woman than there is for an animal. It is therefore plainer to the Mishna that even a minor portion of an amniotic sac is a sign that at least some of the fetus emerged when the subject is human as compared to when the subject is an animal.