008a הכל ממירין פרק ראשון תמורה ח ע"א - HAKOL MEMIRIN CHAPTER ONE TEMURAH

They raised an objection: regarding the firstborn^[1] it is said, "It shall not be redeemed; and it shall be sold^[2]". In what case are we dealing?

בבכור נאמר לא תפדה - It has no redemption, since the redemption would enter into the holiness and it would go out to chullin.

אבל נמכר הוא - And it is eaten in holiness; this is the holiness: one may not slaughter it in the butcher shop, nor weigh it by the pound.

If you say it is when the Temple no longer stands, then say the second clause, "And its blood you shall dash on the altar". Nowadays, is there an altar^[3]?

אימא סיפא - The second clause of the verse, "it shall not be redeemed".

Rather, obviously it is when the Temple stands.

And if you say it is about a blemished firstborn^[4], then say the second clause, "And its blood you shall dash on the altar, and its fat you shall burn". Is a blemished animal fit for sacrifice?

Rather, surely it is about an unblemished firstborn^[5], and the Tanna teaches "it shall be sold".

Why would the first clause have to be about a blemished animal and the last clause about an unblemished one?

רישא דקרא בבעל מום - That is why we deduce from "and it shall be sold"; and its end is written: "and its blood you shall dash", with an unblemished one.

Rav Mesharshia raised an objection:

"A kohenes whose offspring was mixed up with the offspring of a slave woman"

בולד שפחתה - And one does not know which one is the kohen and which one is the slave.

"Once they have grown up, they release one another^[6], and both of them eat terumah"

משחררין זה את זה - Each one writes: "If I am the master and you are the slave, you are a free man", and both are permitted to marry a daughter of Israel. And both eat terumah as long as they have not released each other, since a slave of a kohen also eats terumah.

"and they divide one portion on the threshing floor"

וחולקין חלק אחד על הגורן - That is: when both are together, they are given terumah in the threshing house^[7]; but to one of them they do not give a share until the other comes, since perhaps this one is the slave. This Tanna holds that terumah is not given to a slave unless his master is with him, lest he come to raise him into the priestly lineage.

"Their firstborn animals shall graze until they become blemished, and they shall eat them with their blemish".

ובכורן - Of these mixed-up ones: if a firstborn animal is born in their herd, it shall graze, etc., as he explains.

In what case are we dealing? If you say it is nowadays, what is different about "ours" and what is different about "theirs"? Ours too requires a blemish.

Rather, surely it is when the Temple stands.

אלא לאו בזמן המקדש - For ours we would have given it to the kohen to bring near; but theirs, they acquire. Even though a kohen too is obligated in the beast's firstborn status, as we say in Bekhorot in the second chapter, in the Mishnah (13a): "they are released only from the redemption of the son, and the firstborn donkey", these shall graze, because in other firstborns the kohen loses nothing, since he himself offers the fats of the firstborn and eats it. But in these, where one of them is a non-kohen, if he gave its firstborn to be brought near, they would no longer eat from it; for an unblemished firstborn in the time of the Temple is not eaten by non-kohanim, as we say in Zevachim (56a): the firstborn is eaten by the kohanim. Therefore it shall graze, and when it becomes blemished he shall eat it in its blemish; since each one says to the kohen, "I am a kohen and I will eat the firstborn". Since a blemish has fallen on it, there is only a prohibition of robbery, and here there is no robbery prohibition either, since perhaps this one is a kohen and acquired it, and the one who takes from another bears the proof.

If you say that the kohen indeed has acquisition in its body, it is fine.

שפיר - For this reason he has the power to keep it and to say: perhaps I am a kohen and I acquired it first, so I will not give it to the kohen; and I will wait until I can eat it.

But if you say he has no such acquisition,

אלא אי אמרת לית ליה - The kohen has no acquisition in the firstborn while alive. Why do we let it be taken from the altar? Let the treasurer come and take it and give it to the kohen properly, since acquisition exists only from the altar onward. Rather, surely he has acquisition while alive in an unblemished firstborn, for surely we speak of the unblemished, since it teaches "they shall graze until they become blemished".

let the treasurer^[8] come and take it,

always it is nowadays.

לעולם בזמן הזה - For this reason it grazes, since it is not fit for sacrifice, and he acquires it while alive. And for ours we give them to the kohanim with their blemish: even though it is blemished and permitted to non-kohanim, there is a prohibition of robbery. But in those mixed cases there is no prohibition of robbery, since each one says, "I am a kohen and I acquire it"; it is money in doubt, and the one who takes from another bears the proof.

And as for your question, "what is different about ours and what is different about theirs": we give it to the kohen with its blemish. But in the other cases, since there is a kohen among them, the kohen is excluded from them.

מאי שנא דידן מדידהו - Ours too has no remedy until it is blemished. Now the one objecting did not consider the final clause, which teaches "he shall eat it in its blemish, to the owners"; whereas for ours we would have given it to the kohen with its blemish. Rav Nachman answers it so in the final conclusion of the matter.

Another explanation: nowadays. What is the question about firstborns of these doubtful cases? Even ours should graze. Rather, obviously it is when the Temple stands.

Rather, obviously it is when the Temple stands.

And if it is about a blemished animal, they should graze until they become blemished; the blemished ones are unfit and remain as they are.

Rather, surely it is about unblemished animals [and these, which are not sold, are certainly sold]; certainly, nowadays

Certainly, it is always nowadays. What is your difficulty? Even ours should graze too.

We have not found that the kohen is pushed away, since here there is no doubt about priesthood^[9].

These doubtful cases push the kohen away: each one says to the kohen, "I am a kohen and I am a kohen."

They raised an objection: Rabbi Shimon says (Deut. 13), "the beast thereof" excludes the firstborn animal and its tithe; "its spoil" excludes the money of second tithe in it.

בהמתה - Regarding the ir hanidachat it is written (Deut. 13), "and its beast by the sword"; "its beast" implies the animal that is its own, in which the Most High has no share.

"except the money of second tithe^[10] in it"

פרט לכסף מעשר שני שבה - According to the opinion that second tithe is property of the Most High.

In what case are we dealing? If you say nowadays, is there an עיר הנדחת? "But we have learned: one does not make a city led astray except by a court of seventy-one^[11]".

אין עושין עיר הנדחת כו' - In the first chapter of Sanhedrin he explains the reason.

Rather, obviously it is when the Temple stands.

In what case are we dealing? If we say it is about a blemished animal, that is the "beast" itself.

היינו בהמתה - That is "beast": the kohen eats the firstborn and the Israelite eats the tithe, and the Most High has no share in them.

Rather, obviously it is about an unblemished animal.

If you say that the kohen indeed has acquisition in its body, it is fine.

שפיר - For this reason the verse was needed to exclude it, so that it not go out from "spoil" and not be spoil of Heaven; for this is not spoil of Heaven, since the kohen acquires it in its body. Another interpretation: obviously it is an unblemished one, and the verse excludes it from the category of "beast"; this shows that it is the kohen's property. It is also explained according to the first version: since the verse needed to write "beast", and it would not have been derived from "spoil", learn from this that the kohen has acquisition in its body while alive.

But if you say he has no such acquisition, why do we need "from the beast"? Let it be excluded from "spoil", and the spoil of Heaven is not included.

Always it is about a blemished animal. And as for your question, "that is the beast".

Those eaten by way of beast, the firstborn and the tithe are excluded, since they are not included in beast; for we have learned: "all disqualified consecrated animals are sold in the butcher shop^[12] and weighed by the pound, except the firstborn and the tithe, whose benefit belongs to the owners."

The Gemara raises an objection: "And if a person commits a trespass against the Lord" (Lev. 5) includes light offerings^[13], which are the property of the owners; the words of Rabbi Yosei HaGelili.

לרבות קדשים קלים - For if he deposited peace offerings, or a firstborn, or a tithe, with another and denied it and swore, and then admitted, he pays principal and a fifth, and the guilt offering of the deposit oath^[14], since they are his property, and "and he denied his fellow" applies to him.

Ben Azzai says: it includes peace offerings^[15].

בן עזאי אומר לרבות שלמים - He comes to include them, since they are certainly his property; but a tithe is not his property, and he cannot sell it alive or slaughtered, neither unblemished nor blemished. So it is explained in chapter "Arba'ah Avos" of Nezikin.

Abba Yosei ben Dostai says: Ben Azzai said it only about the firstborn alone.

לא אמר בן עזאי אלא בבכור - That is, a kohen who deposited his firstborn with another and denied it and swore, and admitted. But peace offerings were not his property, since holiness rests on them, requiring leaning, libations, the waving of the breast and the thigh; and tithe too, since he cannot sell it. So it is explained in the first chapter of Nezikin (BK 12b).

In what case are we dealing? If you say nowadays, it is like peace offerings, which are taught here; but peace offerings do not exist nowadays.

הא דומיא דשלמים קתני - And peace offerings do not exist nowadays.

Rather, obviously it is when the Temple stands.

And if you say it is about a blemished animal, it is like peace offerings, which are taught here.

דאי בבעל מום הא דומיא דשלמים קתני - And peace offerings, certainly unblemished peace offerings, are what the verse includes, since they are his property; there is no misappropriation of them while alive. In the case of a firstborn with a kohen one could distinguish between unblemished and blemished: for the unblemished, one could say the kohen acquired it only from the Most High's table, meaning after the burning of the fats; but the blemished, which has no sacrifice, the Merciful One gave to him at once. But for an Israelite's peace offerings one cannot say an Israelite acquired from the Most High's table; therefore it makes no difference, unblemished or blemished, he acquires them while alive.

Rather, surely it is about an unblemished animal, and from this we learn that the kohen has acquisition in its body.

אלא לאו בתם - And he is liable to pay with a guilt offering of an oath [regarding the firstborn]; thus it is the kohen's property (and regarding the firstborn).

Tosafot

בבכור נאמר לא תפדה - It is always in its holiness, in that it is not sold in the butcher shop and is not weighed by the pound.

אימא סיפא את דמם תזרוק על המזבח - He means the second clause of the verse.

ובמאי אילימא בבעל מום היינו בהמתה - And if you say, let us say it follows the Rabbis who hold it is not his property: the answer is that the main difficulty is only from the tithe, for everyone agrees that a blemished animal is his property. Ha-Ramah^[16].

אילימא בזמן הזה והא דומיא דשלמים קתני - In the first chapter of Bava Kamma (12b) Rashi explains that it speaks of the time of the Temple, since the verse on the deposit oath speaks of the time of the Temple, when one is liable to a guilt offering. It seems that for this reason the Gemara here used "like peace offerings" and did not want to say it as Rashi explains in Bava Kamma, because otherwise it would still need "like peace offerings" to prove that it speaks of an unblemished animal, as is said below.

Notes

1. 1. Bekhor (firstborn) – a firstborn animal is holy from the womb and cannot be redeemed; when the Temple stands it is given to the kohen and eaten in holiness.
2. 2. “And it shall be sold” refers to a firstborn with a blemish, which is sold for meat and eaten by its owner with its blemish.
3. 3. Altar – the bronze altar of the Temple; dashing the blood on it is a service that cannot be performed without the Temple.
4. 4. Ba'al mum (blemished) – an animal with a permanent blemish that disqualifies it from sacrifice, so it may be eaten with its blemish.
5. 5. Tam (unblemished) – a whole animal without a blemish, fit to be offered on the altar.
6. 6. Mutual release – each writes a document freeing the other; afterwards both are free and may marry a daughter of Israel.
7. 7. Threshing house – the place of threshing, where terumah is given to the kohen.
8. 8. Treasurer (gizbar) – the official in charge of the Temple treasury and its funds.
9. 9. A doubt about priesthood – uncertainty whether a person is a kohen; in doubt, property is not taken away from its holder.
10. 10. Second tithe – a tithe set aside from produce in years one, two, four and five of the shemittah cycle and eaten in Jerusalem. It may be redeemed for money, which is taken up to Jerusalem and spent on food there; because that money carries sanctity, it is not chullin and cannot buy an obligatory offering.
11. 11. Ir hanidachat – a city whose inhabitants were led astray to idolatry; its law is to destroy it and its property, and this is done only by a court of seventy-one.
12. 12. Butcher shop (itliz) – a shop where meat is sold to the public; disqualified consecrated animals are sold there as ordinary meat.
13. 13. Light offerings (kodashim kalim) – offerings of lesser sanctity, which for the purposes of the law of trespass are the owners' property.
14. 14. The oath of deposit – the oath a person swears that he holds no deposit of another's; if he admits after swearing, he pays principal, a fifth, and a guilt offering.
15. 15. Peace offerings (shelamim) – an offering whose fats and blood are offered on the altar, the breast and thigh go to the kohanim, and the rest is eaten by the owners.
16. 16. Ha-Ramah – Rabbi Meir ha-Levi, one of the Tosafists whose view is quoted here.