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The Bais HaVaad Halacha Center
The Center for the Study and Practice of Monetary Halacha
THE BAIS HAVAAD HALACHA JOURNAL: Volume 5777 Issue XIII Mikeitz
ANIMAL RIGHTS
How far does the halacha of Tzaar Baalei Chaim go?
By: Rav Yosef Greenwald, Member of the Bais HaVaad
Edited by R' Nechemya Klugman

The halachah of tzaar baalei chaim requires us not cause pain to an animal. The question that arises is how far this obligation goes. Does the Torah actually award “rights” to an animal and thus paining an animal must be avoided in all circumstances? Or is tzaar baalei chaim an action that we try to avoid when possible, but if there is a valid reason to cause the pain it would be permitted.

Let us take the following real-life example. A certain institution in Yerushalayim had a problem with stray cats coming into their building. They were eating food and causing financial loss. Is it permitted to kill the cats to prevent the institution from losing money, or would this violate the issur of tzaar baalei chaim?

A Torah Source for Tzaar Baalei Chaim

The Rambam in Moreh Nevuchim learns the prohibition of tzaar baalei chaim from a passuk in the Torah. The Torah relates that when Bilaam was on his way to curse the Jews he hit his donkey three times, and a malach admonished him for doing this.1 This teaches, says the Rambam, that a person must train himself in the ways of compassion and should not treat animals cruelly. Therefore, while one may kill or pain animals for a constructive purpose, such as eating, it is forbidden to do so without a constructive purpose, such as for sport. This would seem to indicate that tzaar baalei chaim is de’oraysa, and there is a real obligation to avoid it.

We find another stringency regarding tzaar baalei chaim in the Nimukei Yosef’s explanation of a Gemara in Bava Metzia. The Gemara in Bava Metzia2 says that the mitzvah of “perikah,” unloading an animal that is collapsing under its burden, must be done “bechinom,” for “free”; the Gemara says that this is because of tzaar baalei chaim.The Nimukei Yosef3interprets this to mean that even if one will incur a loss by helping to unload the animal, he is still obligated to do so because of tzaar baalei chaim. So again we see that tzaar baalei chaim is a real chiyuv.4

Leniencies of Tzaar Baalei Chaim

However, the meforshim point out that there is a contradiction in the Rambam. In the Gemara in Bava Metzia that we mentioned there is a question whether tzaar baalei chaim is de’oraysa or derabanan. It is apparent in the Rambam that he adopts the view that tzaar baalei chaim is derabanan.5 But how does this fit with the Rambam in Moreh Nevuchim who learns tzaar baalei chaim from a passuk?

Furthermore, the halachah regarding perikah is that a person of prestige is not obligated to unload the animal since it is not dignified for him to do so (zaken ve’eino lefi kevodo). And we see in the Gemara in Berachos6 that this is because perikah is essentially a mitzvah bein adam lechaveiro, a mitzvah to help out another Jew, which does not apply where a person’s dignity is at stake. However, according to the Nemukei Yosef cited earlier, the mitzvah of perikah is also because of tzaar baalei chaim, whose purpose is to save the animal from pain. It would thus come out that perikah is really a mitzvah bein adam lemakom, not just bein adam lechaveiro. If so, how do we reconcile the Nimukei Yosef with the Gemara?

Two Aspects of Tzaar Baalei Chaim

Obviously, then, tzaar baalei chaim is not a clear-cut chiyuv. Rather, tzaar baalei chaim operates in one of two ways. One is that there is a middah to be compassionate to other living things and not to cause them unnecessary pain. This, however, does not have halachic significance; rather, its purpose is to develop one’s character. This aspect of tzaar baalei chaim is de’oraysa, and this is what the Rambam in Moreh Nevuchim is discussing.

Then there is the halachic angle of tzaar baalei chaim. In the halachic aspect, tzaar baalei chaim merely acts as an addition to another mitzvah but is not a mitzvah of its own. Therefore, in the context of the mitzvah of perikah, the tzaar baalei chaim of the animal adds a stringency to the mitzvah of helping out one’s friend with his animal; it is because of this stringency that one is mechyav to incur a loss to unload the animal. However, in essence it is a mitzvah of bein adam lechaveiro, and therefore one is not required to sacrifice his dignity to do this mitzvah.

Summary

What emerges from all of this is that animals do not have any intrinsic rights. Rather, a person must be a baal middos and act with compassion when dealing with animals. Tzaar baalei chaim has halachic ramifications only in combination with another mitzvah. Therefore, when it is a question of financial loss to a person, it is permitted to cause an animal pain. Similarly, the issur does not apply if people will gain in some way. For example, one may perform medical experiments on animals if this will help to improve the quality of life for humans, even though the animals will experience pain.

In Conclusion

Let us now return to the case with the cats. R’ Elyashiv ruled that the owners of the institution should try to get rid of the cats without killing them because of tzaar baalei chaim. However, if this is not possible, they are permitted to kill the cats in order to save themselves from financial loss.

1 במדבר כ"ב, ל"ב

2 דף לא ע"א ול"ב ע"א, עיי"ש.

3 על הגמ' שם בשם הר"ן

4 עיין במנחת חינוך שדייק מדברי הנמ"י שפריקה הוא מצווה דאיסורא ולא ממונא משום צער בעלי חיים, ולכן כמו שצריך אדם לאבד ממונו כדי לעשות מצוות שבין אדם למקום (כמו לולב) ה"ה שצריך לעשות כן משום צער בע"ח.

5 עיין במנח"ח פ' משפטים מצוה פ' אות ב' ובביאור הגר"א חו"מ סי' רע"ב אות יא'.

6 ברכות דף י"ט ע"ב