Volume 15 - RJJ Journal of Halacha and ... - YU Torah Online

16 THE JOURNAL OF HALACHAof Rivash in the context of his own lenient ruling.The first two reasons he adduces for his position also apply tothe subject under discussion:A) Where the unkosher species is never to be found, even Rivashhimself concurs that we rely on the prevailing probability (ascited in note 12, regarding the bearded vulture and theosprey).B) Rivash's intent was to indicate that we should not rely on theprevailing probability in a situation where the Torahspecifically directs "You shall segregate," which it does inconnection with the examination of birds. This shows thatinspection of birds is a positive precept.;.Consequently,wherever the possibility of inspecting the cre.}ture exists, oneis obliged to check and segregate the unkosher birds.(Rivashimplies the same in Responsum 191); but where examinationis completely impossible, then we rely on probability. Thesame logic employed by the author of Har zf![ in the case ofbirds applies as well to the tuna situation.H. The Ban on Chilek and Rashi's Opinion:There is another theoretical basis for issuing a ban on consumptionof canned tuna. In Avoda Zara 35b the Mishnah states:"The following are items of non-Jews which are forbidden ... andchilek." Discussing this on p.39a, the Gemara explains, "Why isSince the Torah commanded us to examine the characteristia; ofeach bird to ascertain that it is not one the 24 nonkO!iherspecies... we must therefore be alert for any of the 24 specieseven though each constitutes a small minority except for thebearded vulture and the osprey which are completely absent frominhabited areas. as Ramban states: "They are found only indeserts and extremely remote islands at the edge of civilization."But where the possibility of their appearance exists. then eachbird is susped. as we say by animals "he must be capable ofrecognizing a wild ass," despite the fact that the wild assrepresents an insignificant percentage of the total kosher animalpopulation.