056a - מעשר בהמה פרק תשיעי בכורות דף נו, ע"א

Just as your sons are not [subject to the law] by purchase or by gift, so too your flock and your cattle are not [subject to it] by purchase or by gift.^[1]

בניך אינו בלקוח - For purchase and gift do not apply to them; rather, they were born to him.

But this is written about the bechor (firstborn)!

ופריך והא בכור כתיב - And you derive ma’aser from it?! Moreover, a bechor is holy even when bought or given, for it is holy from the moment it is born.

The verse says (Shemos 22) “so shall you do” – if it is not needed for the bechor, which is not subject to “doing”, since it is holy from the womb, apply it to ma’aser beheimah (the tithe of animals).^[2]

אמר קרא תעשה - “So shall you do with your ox” – and this you certainly cannot apply to the bechor, for it is holy from the womb and needs no “doing”, that a man should sanctify it.

But say: apply it to the chatas (sin-offering) and the asham (guilt-offering)!^[3]

לחטאת ולאשם - That one may not bring them from a bought animal or a gift.

It is like your son: just as your son is something that does not come on account of a sin, so too your flock and your ox [refers to] something that does not come on account of a sin.^[4]

דומיא דבניך - For it speaks of the human firstborn: just as a firstborn does not come on account of a sin, etc.

But say: apply it to the olah (burnt-offering) and the shelamim (peace-offering)!^[5]

It is like your son: just as your son is something that does not come as a vow or a free-will offering, so too your flock and your ox, etc.^[6]

בכור - Is not a vow or a free-will offering, but an obligation.

But say: apply it to the olas re’iyah (the pilgrim’s burnt-offering)!^[7]

ואימא לעולת ראייה - Which is an obligation, and is not on account of a sin.

It is like your son: just as your son has no fixed time, so too your ox and your flock [refers to] something that has no fixed time.^[8]

בכור אין זמן קבוע לקדושתו - Rather, when it is born it is holy.

If so, just as your son is not [subject to the law] by purchase at all, so too your ox and your flock should not be [subject to it] by purchase at all; why then did Rabbi Assi say in the name of Rabbi Yochanan: “If one bought ten fetuses in their mothers’ womb, they all enter the pen to be tithed”?^[9]

Rava said: The verse says “you shall do” – at the time of “doing” the verse excluded [a bought animal].^[10]

בשעת עשייה - At the time when they are fit to be tithed, the verse excluded [them], that they should not be bought; and in their mothers’ womb is not the time of “doing”.

The statement itself: Rabbi Assi said in the name of Rabbi Yochanan: “If one bought ten fetuses in their mothers’ womb, they all enter the pen to be tithed.”^[11]

But we learned [in the Mishnah]: “One who buys, or to whom it was given as a gift, is exempt from ma’aser beheimah”!^[12]

Rabbi Elazar said: Rabbi Yochanan appeared to me in a dream – I will say a fine thing: the verse says “you shall do” – at the time of “doing” the verse excluded [a bought animal].^[13]

ר' יוחנן חזאי בחילמא כו' - Tonight Rabbi Yochanan appeared to me in a dream, and since he appeared to me, I know that today I will say something with sound reason.

Rabbi Shimon ben Elyakim objected to Rabbi Elazar: “Purchase takes effect on a mechusar zman”!^[14]

חל על מחוסר זמן - That if he bought it before seven days from its birth, it no longer enters the pen to be tithed, and all the more so if he bought it grown. Yet a mechusar zman is not the time of “doing”, and still the law of a bought animal takes effect on it.

He said to him: This is not a [reliable] teaching.^[15]

And if you will say it is a [reliable] teaching – it is Rabbi Shimon ben Yehudah in the name of Rabbi Shimon, who said: a mechusar zman enters the pen to be tithed, and it is like a bechor: just as a bechor is holy before its time and is offered after its time, so too a mechusar zman is holy before its time and is offered after its time.^[16]

ואם תימצי לומר משנה ודאי ר' שמעון היא - For according to him, mechusar zman is the time of “doing”, and therefore purchase takes effect on it; but in its mother’s womb he agrees that purchase does not take effect on it.

A Tanna taught before Rav: “Which esnan enters the pen to be tithed? Any that he gave her, and then bought back from her.”^[17]

וחזר ולקחו ממנה - And if he has nine [others] and it, they are obligated in ma’aser; and if one of the valid ones comes out tenth, well and good, and if the esnan comes out tenth, it is eaten with its blemish^[18] by the owners.

But it is disqualified [from tithing] as a bought animal!^[19]

He [the questioner] overlooked what Rabbi Assi said in the name of Rabbi Yochanan: “If one bought ten fetuses in their mothers’ womb, they all enter the pen to be tithed.”^[20]

אישתמיטתיה - This questioner [overlooked] what Rabbi Assi said, etc.; and here too, it is where he gave it to her in its mother’s womb.

Tosfos

ומה בנך אינו בלקוח ומתנה כו' - And if you ask: we do not derive what is possible from what is impossible,^[21] as Rabbi Akiva says in Menachos, perek HaTodah (Menachos 82a)! One can answer: there it is a binyan av, deriving the Pesach of later generations from the Pesach of Egypt; but here it is a hekesh,^[22] and Rabbi Akiva agrees [to that], as we say in perek Bnos Kusim (Niddah 37b): “perforce the verse compared them.” And if you ask: but in that case of the todah too, we conclude that Rabbi Eliezer’s reason is from “va’avadta” (“you shall perform [this service]”) – that all the services of this month should be alike – and it is evident there that this is a hekesh, and even so Rabbi Akiva disputes him and does not accept it from him. And one cannot say that Rabbi Akiva does not hold of that hekesh, for in Pesachim, perek Mi Shehayah Tamei (Pesachim 96a), we compare them to each other in several matters from here – the Pesach of Egypt to the Pesach of later generations. One can answer: since the hekesh is needed for other matters, one cannot say there “perforce the verse compared them” with regard to possible from impossible. And if you ask: according to Rav Achdevoi bar Ami, who says in perek Bnos Kusim (Niddah 37b) that it is [the view of] Rabbi Eliezer, who says we derive possible from impossible, and he does not have the answer “perforce He compared them” – how would he answer here? One can answer that we would establish this too according to Rabbi Eliezer; alternatively, the hekesh of niddah was needed for other matters, and that is why he does not establish it according to Rabbi Akiva. However, it is difficult from that [teaching] of “we do not [impose lashes] three-fold” in Makos (at the end) (5a), where they derive lashes from death, and that is possible from impossible; and the gezeirah shavah there is needed for several matters.

אמר קרא כן תעשה אם אינו ענין לבכור - This is puzzling, for at the beginning of [perek] Ad Kamah, above (26b),^[23] we expound it regarding the bechor, as it says: “the verse says ‘so shall you do’ – the verse added for you another ‘doing’ for your ox.” One can answer: that we expound it regarding the bechor is because it is written about the bechor; but since the Torah expressed it in the language of “doing”, we expound it for ma’aser, because the sanctity of “doing” does not apply to a bechor (sanctity).

לקח עשרה עוברין במעי אמן כו' - Not specifically [fetuses],^[24] for the same applies to [animals already] born, since they are mechusar zman; alternatively, he mentioned “in their mothers’ womb” [so that it holds] even according to Rabbi Shimon ben Yehudah, who says a mechusar zman enters the pen to be tithed.

Notes

1. 1. This continues from the previous amud [Bechoros 55b]. The Mishnah there rules that an animal one bought, or received as a gift, is exempt from ma’aser beheimah. Rav Kahana derived this from the verse “the firstborn of your sons you shall give to Me; so shall you do with your ox and with your flock” [Shemos 22:28–29], which sets the animals beside “your sons”: a man’s sons are born to him, never bought or received as gifts, so the animals in question must likewise be his own.
2. 2. “Im eino inyan” (“if it is not needed for its own subject”) is a rule of exposition: a verse that cannot apply where it stands is applied to another subject. “So shall you do” implies an act by the owner, but a bechor is holy from birth with no act at all. Ma’aser beheimah is the tithe of each year’s newborn cattle, sheep and goats: the animals are counted one by one, and the tenth becomes holy through that counting – an act, a “doing”.
3. 3. The chatas and the asham are obligatory offerings brought to atone for particular sins. The suggestion is that “so shall you do” teaches that they may not be brought from a bought or gifted animal (Rashi).
4. 4. The verse pairs “your ox and your flock” with “the firstborn of your sons”. The firstborn son is not redeemed on account of any sin, so the verse can only be teaching about an offering that likewise does not come for a sin – which rules out the chatas and the asham.
5. 5. The olah is burnt whole on the altar; the shelamim is shared between the altar, the kohanim and the owner. Both may be brought voluntarily, and neither comes for a sin – so the previous answer does not exclude them.
6. 6. A neder (vow) is “I take upon myself an offering”, and he must replace it if it is lost; a nedavah (free-will offering) is “this animal is an offering”. A bechor comes by obligation, never by vow. “Etc.” stands for: so too your flock and your ox refers to something that does not come by vow or free-will offering.
7. 7. Every male who comes up to Yerushalayim for the festival must bring an olah when he “appears” in the Beis HaMikdash. It is an obligation, not for a sin – so both earlier distinctions fit it, and the Gemara needs a third.
8. 8. The olas re’iyah is bound to a fixed time – the festival. A bechor has no fixed time: it becomes holy whenever it is born (Rashi). So the verse speaks of something without a fixed time, which leaves ma’aser beheimah.
9. 9. The tithing is done by putting the young animals into a pen and letting them out one at a time through a narrow opening; the owner counts them with a rod, and every tenth is holy (“whatever passes under the rod, the tenth shall be holy”, Vayikra 27:32). Rabbi Assi was a leading student of Rabbi Yochanan, the great Amora of Eretz Yisrael. If a bought animal is exempt because it is compared to “your sons”, fetuses that were bought should be exempt too.
10. 10. Rava was one of the great Amoraim of Bavel. “You shall do” points to the time of tithing – when the animals are fit to be counted. Only an animal bought at that stage is exempt; fetuses bought in the womb are born in the buyer’s possession and are tithed like the rest of his flock.
11. 11. “The statement itself”: the Gemara now examines Rabbi Assi’s statement on its own. It means that one who buys ten unborn calves or lambs (the mothers remaining the seller’s) must tithe them once they are born in his possession, like the rest of his flock.
12. 12. This is the Mishnah on the previous amud [Bechoros 55b]. The fetuses were bought too, so the Mishnah seems to exempt them.
13. 13. Rabbi Elazar (ben Pedas) was Rabbi Yochanan’s student and successor in Teveryah. Seeing his teacher in a dream he took as a good sign (Rashi), and he gives the same answer as Rava: purchase exempts only when it happens at the time of tithing.
14. 14. A mechusar zman (“lacking time”) is an animal within seven days of its birth, not yet fit for an offering until the eighth day (Vayikra 22:27). The teaching says that buying it then still exempts it – though that is not yet the time of tithing (Rashi). This contradicts Rabbi Elazar’s rule.
15. 15. “This is not a Mishnah”: Rabbi Elazar rejects the teaching as unreliable, not an established tradition one may build on.
16. 16. Rabbi Shimon (bar Yochai), as reported by Rabbi Shimon ben Yehudah, holds that an animal under eight days old can already be tithed – just as a bechor is holy from birth though offered only from the eighth day. For him, then, the first week is already the time of tithing, and purchase then exempts; but he agrees that purchase in the womb does not (Rashi).
17. 17. An esnan is the hire given to a harlot; an animal so given is forbidden for the altar (“you shall not bring the hire of a harlot… into the House of Hashem”, Devarim 23:19). Rav (Rav Abba Arikha) was among the first and greatest Amoraim of Bavel.
18. 18. Ma’aser beheimah is never sold or redeemed. A tenth that may not go on the altar – such as an esnan – is left to graze until it develops a blemish, and is then eaten by its owners.
19. 19. He bought it back from her, and the Mishnah says a bought animal is exempt from ma’aser beheimah – so how can it enter the pen?
20. 20. The questioner overlooked Rabbi Assi’s ruling: the teaching speaks of an animal given to her and bought back while still in its mother’s womb (Rashi), and a purchase in the womb does not exempt. The discussion continues on the next amud [Bechoros 56b], which asks why she herself should not tithe it.
21. 21. Rabbi Akiva’s rule: a law may not be derived for a case where an option exists from a case where it does not. Sons can never be bought or given, so how can we learn from them that bought animals are exempt?
22. 22. A hekesh is a comparison the Torah itself makes by placing two subjects together, so their laws are shared; a binyan av is a general rule built up from one case. Where the verse itself joins the subjects, “perforce the verse compared them”, and the objection of possible-from-impossible does not stand.
23. 23. On Bechoros 26b, Rava expounds “you shall do” for the bechor itself: “the verse added for you another ‘doing’ for your ox” – a longer period of raising a firstborn ox before it is given to the kohen. Tosfos asks how the same word can be used here for ma’aser.
24. 24. That is, Rabbi Assi’s ruling is not limited to fetuses: the same applies to animals already born but still under eight days old, which are not yet at the time of tithing.