Rabbi Tarfon Declares It Treif
Still stuck on the daf I delivered this past Sunday, Sanhedrin 33a. Recall the story with Rabbi Tarfon incorrectly ruling on a cow (? see earlier post) from Beit Menachem (? see earlier post) whose womb had been removed:
אֵיתִיבֵיהּ רַב הַמְנוּנָא לְרַב שֵׁשֶׁת: מַעֲשֶׂה בְּפָרָה שֶׁל בֵּית מְנַחֵם שֶׁנִּיטְּלָה הָאֵם שֶׁלָּהּ, וְהֶאֱכִילָהּ רַבִּי טַרְפוֹן לִכְלָבִים.
Rav Hamnuna raised an objection to Rav Sheshet from the continuation of the mishna cited earlier (Bekhorot 28b): There was an incident involving a cow of the household of Menaḥem whose womb was removed, and when Rabbi Tarfon was consulted he ruled that it is an animal with a wound that will cause it to die within twelve months [tereifa], which is forbidden for consumption. And based on the ruling of Rabbi Tarfon, the questioner fed it to the dogs.
וּבָא מַעֲשֶׂה לִפְנֵי חֲכָמִים בְּיַבְנֶה, וְהִתִּירוּהָ. שֶׁאָמַר תּוֹדוֹס הָרוֹפֵא: אֵין פָּרָה וַחֲזִירָה יוֹצֵאת מֵאֲלֶכְּסַנְדְּרִיָּא שֶׁל מִצְרַיִם אֶלָּא אִם כֵּן חוֹתְכִין הָאֵם שֶׁלָּהּ, כְּדֵי שֶׁלֹּא תֵּלֵד. אָמַר רַבִּי טַרְפוֹן: הָלְכָה חֲמוֹרְךָ, טַרְפוֹן! אָמַר לוֹ רַבִּי עֲקִיבָא: פָּטוּר אַתָּה, שֶׁכׇּל הַמּוּמְחֶה לָרַבִּים פָּטוּר מִלְּשַׁלֵּם.
The mishna continues: And the incident came before the Sages of the court in Yavne, and they ruled that such an animal is permitted and is not a tereifa. As Theodosius [Todos] the doctor said: A cow or pig does not emerge from Alexandria of Egypt unless the residents sever its womb so that it will not give birth in the future. The breeds of cows and pigs in Alexandria were of exceptional quality and the people of Alexandria did not want them reproduced elsewhere. The fact that these animals lived long lives after their wombs were removed proves that the hysterectomy did not render them tereifot. Upon hearing this, Rabbi Tarfon said: Your donkey is gone, Tarfon, as he believed he was required to compensate the owner for the cow that he ruled to be a tereifa. Rabbi Akiva said to him: You are exempt, as any judge accepted as an expert for the public is exempt from liability to pay.
וְאִי אִיתָא, לֵימָא לֵיהּ: טוֹעֶה בִּדְבַר מִשְׁנָה אַתָּה, וְטוֹעֶה בִּדְבַר מִשְׁנָה חוֹזֵר.
Rav Hamnuna states his objection to Rav Sheshet: And if it is so that there is a distinction between the two types of judicial errors, let Rabbi Akiva say to Rabbi Tarfon: You err in a matter that appears in the Mishna, as the ruling that an animal whose womb has been removed is permitted is recorded in a mishna (see Ḥullin 54a), and in the case of one who errs in a matter that appears in the Mishna, the decision is revoked.
A while ago, when I was discussing purported pseudepigraphic attributions in the Talmud, and my conservative approach to them, Mitchell First mentioned to me one that he had thought of — Rabbi Tarfon was perhaps named for this incident, in which he declared the cow treif. But then, he continued, that this wasn’t so, because Tryphon is a well-established secular name for that approximate time and place.
What does it mean that Rabbi Tarfon erred in a dvar Mishnah? Rashi explains that it refers to a specific Mishnah in Chullin 54a:
מתני׳ ואלו כשרות בבהמה ניקבה הגרגרת או שנסדקה עד כמה תחסר רשב"ג אומר עד כאיסר האיטלקי נפחתה הגולגולת ולא ניקב קרום של מוח ניקב הלב ולא לבית חללו נשברה השדרה ולא נפסק החוט שלה ניטלה הכבד ונשתייר הימנה כזית
MISHNA: And these, despite their condition, are kosher in an animal: If its windpipe was perforated or cracked lengthwise. How much can the windpipe be missing and still be kosher? Rabban Shimon ben Gamliel says: Until the perforation is the same size as the Italian issar. If the skull was fractured but the membrane of the brain was not perforated, it is kosher. If the heart was perforated and the perforation did not reach its chamber, or if the spinal column was broken but its cord was not cut, or if the liver was removed and an olive-bulk of it remained, it is kosher.
המסס ובית הכוסות שניקבו זה לתוך זה ניטל הטחול ניטלו הכליות ניטל לחי התחתון ניטלה האם שלה וחרותה בידי שמים הגלודה רבי מאיר מכשיר וחכמים פוסלין:
Additionally, it is kosher if the omasum or the reticulum was perforated one into the other. If the spleen was removed, or the kidneys were removed, or if its lower jaw was removed, or if its womb was removed, or if its lung shriveled by the hand of Heaven, the animal is kosher. In the case of an animal whose hide was removed, Rabbi Meir deems it kosher, and the Rabbis deem it a tereifa and unfit for consumption.
My big issue with this being the to’eh bidvar Mishnah of Rabbi Tarfon is its dating. We have Rabban Shimon ben Gamliel II and Rabbi Meir weighing in, meaning fifth-generation Tannaim. Meanwhile, Rabbi Tarfon is approximately third-generation, and the teacher (and maybe quasi-colleague) of third-generation Rabbi Akiva. Yes, the ניטלה האם שלה clause as not stated as a dispute involving the later Tannaim, so one could argue it was an earlier stratum, but who says? The default according to Rabbi Yochanan (the Amora) is that stam Mishnah is Rabbi Meir, according to Rabbi Akiva.
After thinking this, I see an Artscroll footnote that quotes Margoliot Hayam quoting another source with a similar question. If this was a known Mishnah, why did the Sages at Yavneh have to appeal to the statement of Theodosius the doctor? And apparently he gives a different answer than Rashi, that was not elaborated upon.
I would offer two possibilities:
Indeed, that testimony of Todos HaRofeh counts as dvar Mishnah.
We don’t need to point to an actual “Mishnah” Mishnah. And by this I don’t mean the extension to other authoritative statement of Torah Sages. Rather, looking at Bavli and Yerushalmi, we might argue that there are three levels.
toeh bidvar Mikra — erring in something in Scriptures, maybe even something the Tzedukim admit to, where we would say zil krei bei rav, go study in elementary school
toeh bidvar Mishna — erring in some essential knowledge, but not necessarily as basic as “murder is disallowed in Judaism”.
toeh bishikul hadaat — erring in deciding between ambiguous sources, but still something that ultimately can be pointed to as an error
So, maybe there is no explicit Mishnah, but this is something about the world that competent halachic decisors should have been expected to know. And so, that level of scientific knowledge is considered dvar Mishna.