057a - מעשר בהמה פרק תשיעי בכורות דף נז, ע"א

And Rabbi Yochanan follows his own reasoning,^[1] for Rabbi Assi said in the name of Rabbi Yochanan: “Brothers who divided [an inheritance] are purchasers, and they return [their portions] to one another in the Yovel.”^[2]

ואזדא רבי יוחנן לטעמיה - That there is no bereira.

And [both rulings] are needed: for if he had taught us [only] here, [one might say that] in this case Rabbi Yochanan said [it] because [the tithe is] like “your son”:^[3] just as your son is clearly yours, so too your ox and your sheep [must be] clearly yours; but a field – it is a sale that the Torah said should return in the Yovel, not an inheritance or a gift.

וצריכי - Those two [rulings] of Rabbi Yochanan.

בהא א"ר יוחנן - That there is no bereira and they are exempt, because maaser beheimah is compared to “your son,” as it is written (Shemos 22): “The firstborn of your sons you shall give to Me; so shall you do,” etc.

בברור לך - That was born in your possession.

And if he had taught us [only about] a field, [one might say he ruled so there] as a stringency, or alternatively [because land must return] to its original [state]; but here, say [he does] not. [Both] are needed.

ואי אשמעינן שדה - I would have said: in that case Rabbi Yochanan said [it] because he goes to the stringent side on account of the doubt; but here, where it is a leniency – that it would be exempted from maaser – [not so]. Alternatively, “lechatchilah” – for regarding Yovel we require that the land return to its original state, when it was together; but regarding maaser one cannot say this.

They raised an objection: “And likewise partners who divided, one took ten and one took nine and a dog – those opposite the dog are forbidden; those with the dog are permitted.”^[4]

וכן השותפין - [This is taught] in Tractate Temurah, in Perek Kol HaAssurin.

אחד נטל עשרה טלאים ואחד תשעה טלאים וכלב - With them; those ten lambs that are opposite the dog are forbidden for the altar, for one of them was the exchange for the dog and was “the price of a dog,” and we do not know which one it is.

שעם הכלב - The nine that are with the dog have no prohibition in them.

But if you say there is bereira,^[5] let him select one of them as [the counterpart] of the dog and take it, and let those [others] be permitted!

Rav Ashi said: If they are all equal to one another, indeed so.

אי דשוו כולהו להדדי - That every lamb among those nine has a partner among those ten that is worth the same as it, so it turns out that the tenth is opposite the dog; indeed there is bereira, and he takes one as the price of the dog and eats it, and the rest are permitted for the Most High.

Here, with what are we dealing? Where they are not all equal to one another, and this dog is worth one [lamb] and a bit, and this bit extends and comes into all of them.^[6]

הכא במאי עסקינן - That all of them are forbidden; for example, where they are not equal to one another: the nine lambs within the ten are worth more than the nine that are with that dog, and the dog is worth the tenth; and that bit by which those nine opposite are worth more than the nine with it – now the price of the dog extends over all the nine opposite it, a little in each one, and the tenth is opposite it. And the Teacher reads: for example, where each one is worth four zuz and half a fifth, and the dog five zuz, so that that zuz extends and comes into all of them. And the explanation is thus: each one of those ten opposite the dog is worth four zuz and half a fifth of a zuz; it turns out that all ten are worth forty-one zuz, for ten half-fifths make five fifths, which is a zuz. And the dog is worth five zuz; it turns out that the nine with it are only fifty-six zuz, and it is five – together forty-one. Now those with the dog are worth only four zuz each, and those opposite it are worth four zuz and half a fifth of a zuz each; it turns out that the dog evens them all out, and the exchange for the dog applies to all those opposite it: that half-fifth by which each one is worth more than four zuz is the exchange for that zuz by which the dog is worth more than four.

Mishnah

All enter the pen to be tithed,^[7] except for kilayim, a tereifah, one born by caesarean, one lacking time, and the orphan.^[8]

And which is an orphan? Any whose mother died, [or] was slaughtered, and afterwards it was born.

מתני' כל שמתה אמו - At the time of birth. And the whole reason of the Mishnah is explained in the Gemara.

Rabbi Yehoshua says: Even if its mother was slaughtered and the hide is intact, this is not an orphan.^[9]

והשלח קיים - And the hide is intact.

אין זה יתום - In the Gemara it explains the reason.

Gemara

From where are these words [derived]?

For the Rabbis taught: (Vayikra 22) “An ox or a sheep” – to exclude kilayim; “or a goat” – to exclude a nidmeh; “when it is born” – to exclude one born by caesarean; “and it shall be seven days” – to exclude one lacking time; “under its mother” – to exclude an orphan.^[10]

גמ' שור או כשב - Is written regarding all the other offerings.

נדמה - Whose mother is a ewe and it resembles a goat.

כלאים - It comes from a he-goat and a ewe.

Rabbi Yishmael the son of Rabbi Yochanan ben Berokah says: It says here (Vayikra 27) “under the rod,” and it says there “under its mother”;^[11] just as there, to exclude all these names, so too here, to exclude all these names; and just as here, to exclude a tereifah, so too there, to exclude a tereifah.

נאמר כאן - In maaser beheimah: “under the rod.”

ונאמר להלן - In all the offerings: “under its mother.”

מה להלן - In all the offerings.

פרט לכל השמות הללו - As I explained: kilayim, nidmeh, one born by caesarean, one lacking time and an orphan; in maaser likewise, and this is the reason of the Mishnah. And just as maaser [excludes] a tereifah, for it is written regarding it (Vayikra 27): “all that passes” – to exclude a tereifah, which does not pass; for an animal whose legs were cut off from the knee joint and above – this is one of the eighteen tereifos.

“All” – to include what?^[12]

הכל - That it teaches in the Mishnah – to include what?

To include that which the Rabbis taught: “One that lay with a person, one that was lain with, the muktzeh, the worshipped, the ethnan, the price, a tumtum and an androginus – all enter the pen to be tithed”;^[13] Rabbi Shimon ben Yehudah says in the name of Rabbi Shimon: “A tumtum and an androginus do not enter the pen to be tithed.”

מוקצה - That they set it aside to offer it to idolatry.

נעבד - That he worshipped the animal itself, for example, he poured a libation between its horns.

And our Tanna – if he derives “under” “under” from offerings, these too should not [enter]; and if he does not derive it, from where does he [know] these?^[14]

ותנא דידן - The Tanna of our Mishnah, who taught “all” to include all these of the Mishnah.

אי גמר - [If] maaser [derives] “under” “under” from offerings.

הני נמי לא - For all of them are disqualified for offerings, as it is taught in Temurah, in Perek Kol HaAssurin (28a): “from the animal” – to exclude one that lay or was lain with, and [this is] where there is only one witness to the matter, for if there were two witnesses it would be subject to death, as it is written: “and the animal you shall kill”; “from the cattle” – to exclude the worshipped; “from the flock” – to exclude the muktzeh.

ואי לא יליף - From offerings – these others, one lacking time and an orphan, from where does he [know] that they are not tithed?

In fact he does derive it, and these the Torah included, as it is written (Vayikra 22): “for their corruption is in them, a blemish is in them; they shall not be accepted for you,”^[15]

והני - One that lay or was lain with and all the others – the Torah included them to be tithed, and even though they are not fit for offering, they are eaten by the owners with their blemish.

and the school of Rabbi Yishmael taught: “Wherever ‘corruption’ is stated, it means nothing but sexual immorality and idolatry.”^[16]

Sexual immorality – as it is written (Bereishis 6): “for all flesh had corrupted its way upon the earth”; idolatry – as it is written (Devarim 4): “lest you act corruptly and make for yourselves a graven image, the likeness of any figure, the form of male or female”.

And whatever a blemish disqualifies, sexual immorality and idolatry disqualify; and whatever a blemish does not disqualify, sexual immorality and idolatry do not disqualify.

כל שהמום פוסל בו דבר ערוה ועבודה זרה פוסלין בו - For the Torah juxtaposed them to a blemish, as it is written (Vayikra 22): “for their corruption is in them, a blemish is in them”.

And this maaser – since a blemish does not disqualify it, as it is written (Vayikra 27): “he shall not inspect whether it is good or bad, nor shall he exchange it,”^[17] sexual immorality and idolatry also do not disqualify it.

One that lay or was lain with – sexual immorality; the muktzeh and the worshipped – idolatry; and the ethnan – sexual immorality; and the price [of a dog] is compared to ethnan.^[18]

A tumtum and an androginus – he holds it is a doubt.^[19]

טומטום ואנדרוגינוס ספיקא הוא - Whether male or female; therefore, whichever way, they are tithed. And Rabbi Shimon holds it is a creature in its own right.

“Rabbi Shimon ben Yehudah says, [etc.]”:^[20] he holds it is a doubt; the Torah limited [the law] regarding offerings [to] a definite male and a definite female, and not a tumtum or an androginus; maaser too derives “under” “under” from offerings.

The Rabbis taught: “All enter the pen to be tithed except for kilayim and a tereifah” – the words of Rabbi Elazar the son of Rabbi Yehudah of Kfar Bartusa, who said [it] in the name of Rabbi Yehoshua.^[21]

Rabbi Akiva said: “I heard from him also one born by caesarean, one lacking time, and an orphan.”

And the first Tanna – if he derives “under” “under” from offerings, these too should not [enter]; and if he does not derive it, granted a tereifah – (Vayikra 27) “all that passes under the rod” is written, to exclude a tereifah, which cannot pass; but kilayim, from where does he [know it]?^[22]

הני נמי לא - One born by caesarean, one lacking time, and an orphan.

In fact he derives it, and with one born by caesarean^[23]

Tosfos

ואזדא ר' יוחנן לטעמיה כו' - Even though here Rabbi Elazar disputes Rabbi Yochanan, and above, at the end of Yesh Bechor (22b),^[24] it implies that he agrees in that case that they are purchasers, and [the Gemara there] answers: what is [meant by] “they do not return”? – to nullify [the division]. But here [the Gemara] shows that the two statements of Rabbi Yochanan are [both] needed! Alternatively, there above it needed to answer [so] only so that there should be no difficulty from it against Rabbi Yochanan.

לברור חד מיניהו להדי כלב כו' - And if you will ask: what will it help? It is not known which one is the one opposite the dog. And if you will say: because it is equal [in value] to the dog – but that is what he says: “if they are all equal to one another, indeed so”; and then how can he select the one opposite the dog to permit the others? One can answer that this is the reasoning of the Gemara: since there is bereira, the matter can depend on his intent, for presumably this was his intent from the start – that the one he will select is the one opposite the dog.

חוץ מן הכלאים כו' - [The Mishnah] could also have taught nidmeh, since the Gemara explains the reason – because we derive “under” “under” from offerings. But wherever [the Tanna] lists [them], (tereifah) he usually skips nidmeh, as if it were included in kilayim, because it somewhat resembles it.

כל שהמום פוסל בו דבר ערוה ועבודה זרה פוסלין בו - Everyone holds this exposition, even the one who excludes one that lay or was lain with, the muktzeh and the worshipped from “from the animal” and “from the cattle,” in Perek Kol HaAssurin (Temurah 28a), as I explained (above in Perek HaLokei’ach Beheimah).

זכר ודאי נקבה ודאית לא טומטום כו' - This sugya is not according to Rav Chisda and Reish Lakish, as I explained above at the end of Al Eilu Mumin (42b).

פרט לטרפה שאינה עוברת - For an animal whose legs were cut off from the knee joint and above is one of the eighteen tereifos. And there in Menachos (6a) [the Gemara] requires three verses for a tereifah: one for a tereifah from its mother’s womb, which never had a time of fitness;^[25] one for [an animal that became] a tereifah and afterwards he consecrated it; and one for [one that] he consecrated and afterwards it became a tereifah. And from the knee joint and below, we consider it [able to] pass, since it is not a tereifah.

Notes

1. 1. This continues the sugya from the previous amud [Bechoros 56b], where Rabbi Yochanan held that even when brothers divided nine against nine and ten against ten, one does not say that each received the share due to him from the first moment – that is, there is no bereira. The Gemara now shows that this matches another ruling of his.
2. 2. In the Yovel (fiftieth) year, a field that was sold returns to its original owner (Vayikra 25). Since there is no bereira, each brother is considered to have bought half of his portion from the other, so the portions return at Yovel and are pooled again.
3. 3. Maaser beheimah is compared to a firstborn son: “The firstborn of your sons you shall give to Me; so shall you do with your oxen and your sheep” (Shemos 22:28–29). Just as a son is clearly one’s own, the animals subject to the tithe must be clearly one’s own; bought animals are exempt.
4. 4. “The price of a dog” may not be brought to the altar (Devarim 23:19). Here partners owned nineteen lambs and a dog; one took ten lambs and the other nine lambs and the dog, so one of the ten was received in exchange for the dog. Since we do not know which, all ten are forbidden. The beraisa is in Temurah, Perek Kol HaAssurin.
5. 5. Bereira – the principle that a later choice clarifies retroactively what was so from the start. If it applies, the partner could choose one lamb now as the one received for the dog, and the rest would be permitted. Tosfos below discusses how such a choice can help.
6. 6. Rav Ashi answers: if the lambs were of equal value, there would indeed be bereira. But the beraisa speaks of a dog worth one lamb and a bit more; the extra bit is spread among all ten, so each contains part of the dog’s price and all are forbidden.
7. 7. Maaser beheimah, the animal tithe: the year’s newborn cattle, sheep and goats are gathered into a pen and let out one at a time under the rod; every tenth is marked and becomes holy (Vayikra 27:32). It is offered as a shelamim and eaten by the owner.
8. 8. Kilayim – an animal born of a sheep and a goat; tereifah – one with a fatal defect; yotzei dofen – one born by caesarean section; mechusar zman – one less than seven days old (Vayikra 22:27); the orphan is defined next.
9. 9. Rabbi Yehoshua holds that if its mother was slaughtered and her hide is still whole, it is not an orphan. The Gemara explains his reason on the next amud [Bechoros 57b].
10. 10. Vayikra 22:27: “An ox or a sheep or a goat, when it is born, shall be seven days under its mother.” The verse is said of offerings, and each phrase excludes one kind of animal from the altar.
11. 11. This is a gezeirah shavah – a link between two passages that share a word, here “under” (tachas): “under the rod” (Vayikra 27:32), said of maaser, and “under its mother,” said of offerings. Each passage lends its exclusions to the other.
12. 12. The Mishnah says “All enter the pen” and then lists exceptions. The Gemara asks what the word “all” comes to add, since every other animal would enter anyway.
13. 13. Rovei’a – an animal that lay with a person; nirva – one that a person lay with; muktzeh – one set aside for idolatry; ne’evad – one that was itself worshipped; ethnan – a harlot’s fee; mechir – the price of a dog. All are unfit for the altar. A tumtum is an animal whose genitals are concealed; an androginus has both.
14. 14. These animals are disqualified for offerings (Temurah 28a). If our Tanna holds the gezeirah shavah, they should be excluded from maaser too; if he does not, he has no source to exclude the five in the Mishnah.
15. 15. Vayikra 22:25, said of offerings from a gentile. The verse sets “corruption” beside “blemish,” so the two are treated alike.
16. 16. The school of Rabbi Yishmael shows from Bereishis 6:12 and Devarim 4:16 that “corruption” refers to sexual immorality and idolatry. An animal disqualified for these reasons is therefore treated like a blemished one.
17. 17. Vayikra 27:33. A blemished animal that comes out tenth is still holy as maaser; it is not offered but eaten by the owner. Since a blemish does not keep an animal out of the tithe, neither do immorality and idolatry.
18. 18. Devarim 23:19 lists “a harlot’s fee and the price of a dog” together, so the price of a dog takes the same law as ethnan.
19. 19. The first Tanna holds that a tumtum or androginus is of doubtful gender. Either way it is male or female, so it is tithed.
20. 20. Rabbi Shimon ben Yehudah also holds it is a doubt, but offerings require “male or female” (Vayikra 3:1) – definitely one or the other. Since maaser learns from offerings through “under” “under,” these are excluded from maaser too.
21. 21. Rabbi Elazar the son of Rabbi Yehudah of Kfar Bartusa was a Tanna. Rabbi Akiva reports a fuller tradition from Rabbi Yehoshua, adding the three cases listed in our Mishnah.
22. 22. The first Tanna excludes only kilayim and tereifah. If he holds the gezeirah shavah, he should exclude all five; if he does not, a tereifah is excluded by “all that passes under the rod,” since it cannot walk, but kilayim has no source.
23. 23. The answer continues on the next amud [Bechoros 57b].
24. 24. At the end of Perek Yesh Bechor [Bechoros 22b] the Gemara implies that Rabbi Elazar agrees that brothers who divided are purchasers, while here he disputes Rabbi Yochanan.
25. 25. Shaas hakosher – a time when the animal was fit to be offered. A tereifah from its mother’s womb never had such a time.