The Mishnah (7:6) records the debate regarding whether the prohibition of the gid ha'nasheh applies to non-kosher animals. The Chachamim maintain that it only applies to kosher animals whereas R' Yehuda disagrees. R' Yehuda argues that we find that the prohibition of gid ha'nasheh was recorded after Yaakov grappled with the angel. At that time, which was prior to the giving of the Torah, there was no distinction between kosher and non-kosher animals. Consequently, the prohibition applies to all animals. The Chachamim however respond that the prohibition was given at har sinai yet recorded in the Torah by the incident with Yaakov and the angel. In other words, when the Torah writes "… and therefore Bnei Yisrael were commanded not to consume the gid ha'nasheh" it is to be understood as stating "… and therefore Bnei Yisrael were commanded later at har sinai not consume the gid ha'nasheh".
According to the Bartenura, the mitzvah was only given at sinai yet Moshe recorded it by the incident. The Beit Shaul however finds this explanation difficult. Considering that the Torah predated the creation of the world, suggesting that Moshe would rearrange it appears odd. The Beit Shaul therefore directs us to the Rambam who explains that the avot did receive mitzvot prior to Sinai, e.g. Avraham received the mitzvah of brit milah. Nevertheless, what obligates us in the performance of these mitzvot is that they were given again at Sinai – "torah tzivah lanu Moshe".
The Beit Shaul uses the Rambam to explain another debate. The Gemara (Yoma 28b) cites the opinion of Rav Safra that learns the earliest time for mincha from Avraham. R' Yosef questions whether one can learn laws from Avraham. The Beit Shaul explains that everyone agrees that the core obligation is not derived from Avraham – that can only be from Sinai. Nevertheless, Rav Safra however maintains that the details of a law can be learnt from Avraham.
The Gemara however provides a different reason for the position of the Chachamim. According to R' Yehuda, even if the mitzvah was given prior to Har Sinai, there are two prohibition at play, one gid ha'nasheh and the other that this animal is not kosher. Since the animals begin to develop prior to the gid ha'nasheh forming the prohibition of a non-kosher animals exists first and we have an issue of ein issur chal al issur. In other words, once a prohibition exists, in general a further prohibition cannot apply to that item. The Gemara however explains that according to R' Yehuda this case is one of the exceptions to the rule, since gid ha'nasheh is an issur chamur – extreme prohibition – in that according to R' Yehuda this prohibition also applies to bnei noach.
The Gemara explains the position of the Chachamim in two ways. Either they maintain that the gid has a flavour yet disagree with R' Yehuda arguing that we do have an issue of ein issur chal al issur. Alternatively, the gid does not have a flavour, and there is potentially only one prohibition to be concerned about – gid ha'nasheh. Nevertheless, since the Torah states "therefore Bnei Yisrael shall not eat the gid ha'nasheh", it implies we are dealing with an animal about which the rest of it may be consumed. Considering that the Chachamim have a logical position that is not based on the when the mitzvah was given, why was the timing raised in their response in the Mishnah?
The Rashba (102a) answers that the Chachamim in our Mishnah were working according to R' Yehuda's position. Granted that according to the Chachamim the chronology is irrelevant, according to R' Yehuda, for who the chronology is important, they argue that the mitzvah was given at Sinai. Considering the Rambam above, countering R' Yehuda with this line of reasoning also teaches us the important principle regarding mitzvot prior to Har Sinai.
The Rosh Yosef (cited ion the Ilkut Bi'urim) however explains that R' Yehuda's statement regarding the chronology was made to counter the position of the Chachamim. If they maintained ein issur chal al issur, then at the time of Yaakov Avinu, all meat was permitted – there was no other issur. Alternatively, if the Chachamim's position was based on the pasuk that it only applied to animal's whose meat was permitted for consumption, then at that time all meat was permitted. Consequently, that pasuk, when given, applied to all animals. This then explains why the Chachamim respond that the pasuk was referring not to the time of Yaakov Avinu, but rather when the mitzvah was given at Har Sinai.
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