For the above rule to apply, the mesorah needs to be "reliable." The Rosh (Shut Rabbenu Asher, Clal 20, #20) was asked whether a particular bird, the chasida, 23 could be eaten. He responded that in his region and in Spain there was a tradition that it was not kosher, i.e. they had a negative tradition. The Rosh emphasized that inspection of the signs is insufficient to render it kosher and even in the talmudic period errors were made. Although he conceded that others have what they term a mesorah to permit that bird, he insisted that he would not rely on such a mesorah since its origin is unknown, whereas he traces his negative mesorah to the saintly chachmei Ashkenaz - leaders of German Jewry. He explains that the talmudic dictum (Chullin 63b) that birds are eaten based on a mesorah means that an unfamiliar species may be eaten based on testimony of another locale that they have a tradition that it is kosher. However, a species that the sages know to be non-kosher cannot be eaten based on a mesorah of another, less trustworthy group. It could be that their mesorah originated when someone erroneously relied on his own interpretation of the indicia and declared it kosher.
A similar idea is mentioned in Shut Maharil, 95 (Cited in Da'at Torah, YD 82:3) who writes not to eat a particular bird even though some people have a mesorah since the higher quality mesorah of Ashkenaz says not to eat it. He further specifies that a mesorah can be introduced to a locale only by an important person, the likes of which don't exist any more today. (This extreme position of the Maharil is cited by the Pri Maggadim (YD:beginning of 82) and Chachmat Adam (36:9) as the halacha.)
Mei Be'er (#19) cites the Tzemach Tzedek (#29) 24 who raises the important issue regarding the origin of a mesorahin another locale. It is not sufficient to know that they eat a particular species. For example, they may be a Sefardic group relying on the goose comparison (see below), a leniency rejected by Ashkenazim. This is a very logical point, for otherwise it would mean that in practice all places are accepting any and all leniencies accepted by any recognized group.
Despite its cogency, this point is not mentioned by the Aruch Hashulchan (YD 82:32) who states that if a person from a place that treats a certain bird as prohibited because of a lack of a mesorah goes to a locale that has a reliable tradition, he may eat the bird based on their tradition. That is because his home town refrained from eating it not because of a known prohibition but because of a lack of a mesorah. As an extension of this, the Aruch Hashulchan (YD 82:33) emphasizes that there is no question whatsoever that if all the inhabitants in a particular place that does not have a mesorah want to rely on the mesorah of a locale with a mesorah, they may unquestionably do so. 25 The Gra and many others seem to also accept this position.
Can names of species be relied upon for a mesorah? In many places the Talmud seeks to translate biblical bird names into contemporary ones, possibly indicating that knowledge of the name is sufficient. However, all the commentators, seemingly without exception, held otherwise. Rashi (Chullin 59a, s.v. v'harei tzvi) explains why he held that what was called tzvi in his day was not the tzvi of the Talmud's time. Tosfot (Chullin 63a, s.v. netz) prove that the netz, nesher and korah in their time were different than the netz, nesher and korah of the talmudic period. Meiri discussed the bas haya'anah, one of the non-kosher birds listed in the Torah. In Aramaic, as rendered by Onkelos, this is a na'amiah 26. The gemara (Shabbat 128a) states that the na'amiah eats glass. Meiri says that he knows of a bird known as na'amiah that eats glass and yet it is clearly not a dores and even has webbed feet.
Beit Yosef (YD 82) quotes Rabenu Yerucham in emphasizing
that names cannot be relied upon. What we today call an orev does
not have the signs attributed to it by chazal. They said that it
has no zefek, yet our orev does. 27 Similarly, what we call a nesher has an extra toe,
yet chazal stated that the nesher had none of the kosher
signs. Finally, Rabenu Yerucham states that what we call the netz
has only one kosher sign, an extra toe, yet chazal indicated that
it had additional kosher signs. In deference to this naming conundrum the
new Artscroll Stone Chumash followed the lead of Rabbi Samson Raphel
Hirsch and transliterated rather than translated the bird names in Leviticus
and Deuteronomy. Apparently, relying on contemporary names is problematic. 28
TRANSMITTING A MESORAH: In 1832 Rav Isaac ben Meir ha-Kohen, of Leghorn (Livorna), central Italy, wrote Zivchei Cohen, a book on shechita, bedika, and nikkur. He provided diagrams and Italian names of 30 birds for which he says a mesorah existed. This list is reproduced with (the presumed) Hebrew, English and scientific names in Feliks (p. 109). It includes pheasant, peacock, quail, mallard, dove, and robin, but omits chicken and turkey. Early editions of the work with color diagrams have recently been found, and the color drawings have been republished. 29 Zivchei Cohen possibly held that a mesorah could be transmitted in writing. Similarly, the Chida (Machzik Bracha YD:82:6) and the Kaf Hachaim (YD 82:17) say they "saw" the mesorahs of Leghorn. 30 Furthermore, many works on the subject, such as Kaf Hachaim and Zivchei Tzedek, offer lists of names of permitted and forbidden birds. These authors presumably believed that they were fulfilling some purpose by providing these lists and must have believed that they participated in the transmission of a mesorah.
In opposition to this, Darkei T'shuva (82:34) cites sources that require a verbal and personal, rather than a written, testimony to the acceptability of a bird. This seems to have been the opinion accepted by Rav Moshe Feinstein (Igrot Moshe YD 1:34). This would be similar to other areas of halacha. For example, the Ramo (YD 64:7) writes that the details of nikkur (removing the forbidden fats - chailev) cannot be adequately explained in writing and in order to really understand them one must observe an expert.
What about reliance on a non-Jewish mesorah? In other words, if a non-Jewish text (according to those who would rely on written transmission) or a group of non-Jews attest to the fact that Jews of a certain locale consumed a particular type of bird, would that be a sufficient "mesorah" to reinstate a Jewish mesorah for that species? The Radbaz (Shut Haradbaz 6:2206) uses a non-Jewish tradition, in conjunction with other evidence, to establish one of the borders of the Land of Israel by identifying the biblical Nachal Mitzrayim with Wadi El Arish.
EXTENDING OR "CREATING" A MESORAH: There are several alternative methods for establishing the kashrut of an unknown bird species and these fall into two general categories. Of those listed below, the first two and the last one enable an unknown bird to be subsumed under the mesorah of a known bird. The fourth and fifth are circumventions of the requirement for an existing mesorah and enable the "creation" of a new one for the unknown species. 31
Kilayim: If two birds are not kilayim with each other, then the mesorah of one applies to the other (Chatam Sofer, YD:74). Today, the determination of which birds are kilayim are based on mesorah as well, and I don't believe there exist any "non-kilayim" mesorahs that would expand the pool of kosher species.
Eggs: If one can demonstrate that the eggs of an unknown bird are indistinguishable from the eggs of a known kosher species that is sufficient grounds to encompass the new bird within the old mesorah (Avnei Nezer, YD:1:76:6-12). Unfortunately, turkey eggs are significantly different from chicken eggs. They are almost twice as large as ordinary chicken eggs (100 g compared to 55-65 g) and are pale creamy tan and speckled with brown as opposed to either plain white or brown chicken eggs.
The Gemara (Chullin 64a) and Shulchan Aruch (YD 86) provide indicators to distinguish kosher from non-kosher eggs. All eggs which have two rounded ends or two pointed ends are definitely from non-kosher species, but all eggs that have one rounded and one pointed end may be from kosher birds. If the yolk is inside and the albumen (white) is on the outside it may be kosher, but if the yolk is outside, it is non-kosher and if the two are intermingled, it is the egg of an insect.
This test would seem to only rule out non-kosher species but be ambivalent about declaring an egg kosher. Arugot Habosem claims that even Rashi would agree that three physical indicators in conjunction with the egg test is sufficient to declare a bird as kosher.
Shachen V'nidmeh: The gemara concludes (Chullin 65a) that if an unknown species of bird lives with and resembles a known non-kosher species it too is non-kosher. Similarly, if it dwells with a kosher species and resembles it, it too is kosher. T'shuvot Beit Yitzchok (1:YD:107:10) was asked whether this can be applied to a new type of bird that lives among chickens. He prohibited it since although the Yam Shel Shlomo (siman 117) had cited this Gemara, the Shulchan Aruch does not, and the Rambam (Ma'achalot Asurot, 1:20) only cites it in the direction to prohibit an unknown species. 32 In addition, he contends that this new species was not living with chickens on its own volition. A farmer had placed them together, and thus their living together does not prove anything. There are some sources, such as Arugot Habosem, who permitted birds based on shachen v'nidmeh and simply expressed surprise at the Shulchan Aruch's omission.
Minchat Yitzchak (5:31:25 33 ) cites earlier sources who argue that it is a logical flaw to use only half of the shachen v'nidmeh principal. If an unknown bird lives with a known kosher species and we cannot thereby permit the new bird, then it is by default forbidden. Now the known species is shachen v'nidmeh with a non-kosher species and it should be prohibited! Although it may be logically inconsistent, the halachic response is that the mesorah of the accepted species is salient enough to outweigh shachen v'nidmeh and leaves it as a permitted species despite the fact that the new species is now prohibited.
The "Goose Comparison": An avenue around the need for a mesorah is provided by a statement of the Baal haMaor which is almost universally accepted (Shuts Harosh, clal 20:5 in the name of Rabbeinu Zerachia HaLevi; Rashba; Tur; Beit Yosef; Ran). He states that any bird that has a wide beak and 34 webbed feet like the avaz (goose) is not a dores. This, in conjunction with all three physical indicia (Shut Mei Be'er # 19), can be used according to the Shulchan Aruch to permit an unknown species.
Some of the later authorities make an effort to relate this to the original four methods of understanding the Talmud. The Taz and Prisha say that Rashi would not accept the "goose comparison." It only works because the halacha in reality follows Rabbenu Tam and the mesorah that is required is only a token in deference to Rashi. The Kreisi uPlaysei in his monograh Pnei Nesher used the goose comparison to permit a bird. He argued that since the Rosh and Rashba were strict like Rashi many followed suit, but really the halacha is not like Rashi and three physical signs should be sufficient. Therefore, in conjunction with the goose comparison we can unquestionably permit an unknown species that has all three physical signs. Darkei Moshe held that since the "goose comparison" removes any doubt of the bird being a dores, even according to Rashi it should be efficacious, since there is no longer any need to be concerned that it is a dores. Divrei Aharon (#27) proves that Rashi would accept the goose comparison since Rosh, who agrees with Rashi, explicitly accepts the goose comparison. 35 Nonetheless, the Darkei Moshe says that one should reject it and be stringent, and that is precisely what he does in Ramo YD 82:3. 36
A straight-forward analysis is provided by Tzemech Tzedek (YD:60). He explains that the goose comparison is intended to remove any doubts as to the bird being a dores. According to the Baal haMaor, who defines a dores as a bird that hunts and eats other birds, similar to a lion, a bird which passes the goose comparison is physically incapable of being a dores. However, according to Rashi's explanation that dores simply means that the bird holds its food down with its feet, even a bird that passes the goose comparison can be a dores. Hence, it is perfectly logical and clear that Rashi would reject the goose comparison.
Hybridization Test: With regard to quadrupeds, the Talmud (Bechorot 7a) states that kosher and non-kosher species cannot cross-breed. This is cited as an undisputed halachicly valid and sufficient, but not necessary, means of distinguishing between kosher and non-kosher animals (Rambam, Maachalot Assurot 1:13). The Chatam Sofer (YD:74) was unsure whether this rule applies to birds while the Netziv (Meshiv Davar YD:22) and Arugot Habosem, based on the Rambam's language, seem convinced that it does but were hesitant to apply it in practice.
The Avnei Nezer (YD:1:75), while discussing a new bird that was brought to Warsaw from a part of Russia where there were no Jews, opines that although the Chatam Sofer presented both sides, he actually held that this rule applies to birds. Similarly, The Maharsham (the Bezhana Rav, Rav Shalom Mordechai haCohen Schvadron; Da'at Torah YD82:3) felt that the Chatam Sofer accepted the hybridization test. The Avnei Nezer claims that Tosafot also held that the rule applies to birds, and he therefore concludes (YD:1:75:19) that in his opinion if an unknown bird can mate with a known kosher bird and produce live offspring then the unknown bird may be treated as kosher. 37 He felt that this alone was enough to permit an unknown species. There is, however, a dissenting opinion. Among others, the Beit Yitzchak (YD 1:106) and Minchat Yitzchak (5:31) disagree and say that kosher and non-kosher birds can successfully mate, and hence such a hybridization does not prove anything. 38
It must be emphasized that the hybridization test is circumventing the need for a mesorah, not broadening an existing mesorah. It is not labeling the new species as being of the same species as the old one, but rather of the same very broad category - permissible to eat. It is clear that different halachic species can cross-breed. That is the basic assumption behind the prohibition of kilayim (prohibited cross-breeding). The ability to hybridize therefore could not possibly be used to include the new bird under the same species as the old.
Zivug Test: Both the Netziv (Meshiv Davar YD:22)
and Arugot Habosem (Kuntrus Hatshuvot, 16), who accepted the hybridization
test in theory but were hesitant to use it in practice, were willing to
use the zivug test in practice. That is, if the questionable bird is placed
together with birds of the opposite sex of both its species and a known
kosher species and of its own volition sometimes chooses the kosher species,
the Netziv was willing to permit the new bird. He is claiming that even
if the hybridization test is no good, and really kosher and non-kosher
birds can breed, this test reveals that they are actually one and the same
species. Similarly, the Nachal Eshkol (ed. Halberstadt, 1868, p.62 note
10) concludes a lengthy discussion of the hybridization test that if an
unknown species regularly reproduces with a known kosher species, the three
physical indicators can be relied upon, and no further tradition is required,
since they are considered one species. Chesed L'Avraham agrees as well. 39
KASHRUT OF THE TURKEY
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