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Tza’ar Ba’ale Hayim – Causing Distress or Pain to an Animal
Dayan Yonatan D. Hool
The Halacha forbids one from causing any unnecessary pain or distress to an animal. There is a debate whether this prohibition, known as “Tza’ar Ba’ale Hayim”, is a Torah prohibition or a rabbinic prohibition. The Tana’im, cited in the Gemara Bava Metzia[1] argue about this point: R. Yosse HaGelili holds that it is only a rabbinic prohibition, whereas Hachamim hold that it is forbidden from the Torah. The opinion that forbids Tza’ar Ba’alei Chayim from the Torah.
Helping a Struggling Donkey, Not Muzzling a Threshing Ox
According to Rashi[2], Hachamim derive this prohibition from the verse that teaches us that if one sees an animal struggling under its load, one is obliged to help the owner unload the burden from the animal. This teaches us that there is a general prohibition to cause pain to an animal. Others[3] derive this prohibition from the fact that the Torah forbids muzzling an ox whilst it is threshing grain, because the animal is distressed when it works with food and cannot eat from it.
There are other Poskim, however, who rule that Tza’ar Ba’ale Hayim is only a rabbinic prohibition, because the Gemara implies that the Halacha follows the opinion of R. Yosse HaGelili. The Rambam[4] seems to follow this view, because he explains the rationale for the Mitzvah of helping someone unload his animal in a different manner altogether: If one comes across a fellow man who is attempting to aid his struggling animal, he says, there is a Mitzvah to help him, because if you abandon him on the wayside, he may be delayed further and it can be dangerous for someone to be left alone on the highway. The Bi’ur HaGr“a[5] deduces that the Rambam is of the opinion that Tza’ar Ba’ale Hayim is not forbidden from the Torah, only Miderabanan. However, Maran in his commentary to the Rambam, “Kesef Mishne” understands that the Rambam follows Hachamim and maintains that Tza’ar Ba’ale Hayim is forbidden on a Torah level.[6]
Those who hold that there is no Torah prohibition to cause pain to animals explain that the prohibition to muzzle an ox whilst it threshes is not because of distress caused to the animal, but because the Torah is teaching us, as the Sefer HaHinuch (596) writes, “that we should choose uprightness, and cling to it, and pursue kindness and mercy. When we get used to this, even with-regard-to animals, which were created only to serve us, to pity them and to award them a share in their hard work, the soul will become used to doing good to people, too… and to pay them their deserved wages, and to sate them from the hard work that they have performed. This is the correct way for the holy chosen people…”
For Human Benefit
There are circumstances, though, in which this prohibition is suspended, and that is if to prevent distress one would also be preventing some benefit to humans. It is surely permitted to place a yoke on an ox and make it plough a field, for example, or to make an animal carry a load. Animals were created to serve mankind, and therefore man’s needs take precedence over Tza’ar Bale Hayim, as is clearly stated in Shulhan Aruch.[7]
On this basis, contemporary Poskim[8] permit medical testing and research on animals, seeing as there is a clear benefit to humans, although if this can be done in a painless way (such as by administering an anesthetic) it is preferable.
Nonetheless, Shulhan Aruch[9] says that it is customary from refraining from such activities as plucking feathers from a live duck, even though there may be some benefit to a person, because it is deemed unnecessarily cruel. Furthermore, Rav Moshe Feinstein[10] limits this exception to a benefit to man that is apparent and genuine. To force-feed an animal, for example, simply for the meat to appear to be of better quality, when in fact there is no actual difference, is forbidden, because such dubious benefit does not justify Tza’ar Ba’ale Hayim.
Fish
Although this prohibition applies to birds as well as animals, interestingly, Siyah Yitzhak[11] points out that there would appear to be no prohibition of Tza’ar Ba’ale Hayim with regards to fish.
Tza’ar Ba’ale Hayim – to Humans?
What if someone sees not an animal struggling under a burden, but a person? Does the Mitzvah of Perika – unloading a struggling animal – apply to people as well?
Teshuvot Havot Ya’ir[12] rules that the Mitzvah does not apply in the case of a person. That is because an animal that was overloaded had no say in the matter, but a person has intelligence, and if he chose to overload himself, there would be no Mitzvah to help him unload the burden. The Hida in Birke Yosef[13] quotes the same idea from the Radvaz[14], but notes that if this logic would not apply (for example, the man was made to carry the burden against his will) these authorities would agree that the Mitzvah does apply.
However, the consensus of the Poskim, such as the Rambam[15], Sefer HaHinuch[16], Rashb”a[17] appears to be that the Mitzvah of Perika applies to people as well. The Sm”a[18] writes that although this concept does not appear in the Gemara, the Rambam understood that if the Torah instructs a Jew to be concerned for the pain and distress of an animal, it surely follows that the Torah would be likewise concerned for the distress of the Jew himself!
[1] 32b onwards
[2] Shabbat 128
[3] Ra’avad, Shitta Mekubetzet, Bava Metzia 32b; Da’at Zekenim, Devarim 25:4
[4] Hilchot Rotzeah U’Shmirat Nefesh, 13:14
[5] Hoshen Mishpat, 272:11
[6] Indeed, the Rambam himself in Hilchot Shabbat, 21:30, 25:26 implies that the Issur is Torah-mandated.
[7] Even Ha’Ezer, 5:14
[8] See Tzitz Eliezer, 14:68
[9] ibid
[10] Igrot Moshe, Even Ha’Ezer, 4:92
[11] Siman 387. C.f. Yabia Omer Vol. 5 Orah Hayim Siman 26
[12] Siman 191
[13] Yore De’a, 372:2
[14] Teshuvot, 2:728
[15] Sefer HaMitzvot 203
[16] Mitzvah 541
[17] Teshuvot Vol. 1 Siman 252
[18] 272:13