The Gemara (Bava Metzi’a 32b-33a) discusses the prohibition of tza’ar ba’alei chaim, causing pain to animals, and whether it is from the Torah (d’Oraisa) or from the Rabbis (d’Rabbanan), concluding that it is a dispute amongst the Tannaim - most notably, R’ Yosi HaGlili holds of the latter view. In that discussion, the foremost source for the view that it’s d’Oraisa is the obligation to unload one’s animal (Shemos 23:5), while R’ Yose HaGlili disagrees with that proof on grounds that we’re concerned with the owner’s loss, not the animal’s pain. The succeeding Gemara addresses various sources, but they all have to do with unloading animals.

Other commentaries bring other sources for tza’ar ba’alei chaim, including:

  • Bilam being rebuked for hitting his donkey (Bamidbar 22:32 - Moreh Nevuchim 3:17)
  • Not muzzling an oz (Devarim 25:4 - Shitah Mekubetzes, Bava Metzi’a Ibid.)
  • Just as HaShem is merciful to all creatures (Tehillim 145:9), so should we (follow in His ways, Devarim 28:9 - Chasam Sofer to Bava Metzi’a Ibid.)

We then have three different sources for the prohibition against tza’ar ba’alei chaim. How, then, can R’ Yosi HaGlili possibly hold that it’s not from the Torah? How does he respond to these sources?

It is noteworthy that the Sefer HaChinuch (550) uses Tza’ar Ba’alei Chaim as a reason behind the prohibition against plowing with two different animals. However, I did not include that in the question as he begins by quoting the Rambam’s reasoning, that one who plows with them together may come to crossbreed them, itself a prohibition. Presumably R’ Yosi HaGlili would explain similarly.

  • Related, and indeed where I discovered some of these sources: judaism.stackexchange.com/a/84532/9682 – DonielF Aug 9 '17 at 3:42
  • (1) Regarding Bil'am hitting his donkey: It could be argued that the rebuke was for him hitting his own donkey, which he should have realized would not disobey him without good reason, as opposed to him hitting some other donkey, which he could be forgiven for expecting to be obstinate for no good reason. (2) Regarding ve-Halakhta bi-Drakhav: It could be argued that mi-De'oraita the Mitzvah only obligates being merciful towards humans. – Tamir Evan Aug 9 '17 at 10:55
  • I'm not sure how D'ORaita halachot work. Isn't the general rule that the Torah has to explicitly state something for it to be D'oraita? There is no explicit statement in the Torah saying "Don't hurt an animal". Is an asmachta considered a halacha D'Oraita? – DanF Aug 9 '17 at 14:31
  • @DanF See the link I quoted - that could be why Rabbeinu Peretz insisted on using a Halacha l’moshe misinai rather than an actual passuk. Isn’t the definition of an asmachta that it isn’t actually derived from that passuk? In which case, no, that’s not d’Oraisa. (Cont) – DonielF Aug 9 '17 at 17:52
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    @Gary I wanted to post Shiluach HaKan, the first source you mention, but all of the sources I could find indicate that the point of the mitzvah has absolutely nothing to do with having mercy on the mother bird so much as imparting on ourselves the principle of Hashgacha Pratis, that Hashem sees and cares about everything (see further, Sefer HaChinuch 545). Con't – DonielF Aug 10 '17 at 2:46

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