002a - הלוקח עובר חמורו פרק ראשון בכורות דף ב, ע"א

Mishnah^[1]

One who buys the fetus of an idolater's donkey,

הלוקח עובר חמורו - and it is a bechor, and it is still in its mother’s womb. And as for his taking a donkey and not taking a cow — it is explained in the second chapter (below 13a): since the laws of peter chamor are few, he settled them and set them aside here, and all the rest of the chapters deal with the firstborn of a tahor animal.

or sells one to him — though he is not permitted to —^[2]

אע"פ שאינו רשאי - as was taught in Maseches Avodah Zarah [עבודה זרה יד, ב]: and in every place one may not sell them a large animal, because he will do work with it on Shabbos.

or enters into partnership with him,

והמשתתף לו - that they put money in together between the two of them and buy an animal.

or receives one from him,^[3]

והמקבל בהמה ממנו - that the she-donkey belongs to the idolater and a Jew receives her so that they should share the offspring, but the body of the she-donkey belongs to the idolater.

or gives one to him in kabbalah —

is exempt from bechorah,

פטור מן הבכורה - if that fetus which he bought from the idolater, or which he sold to the idolater, is a bechor, it is not sanctified, since the idolater has a share in it or in its mother.

for it is said: in Israel — but not in others:^[4]

שנאמר - I have sanctified to Myself every firstborn in Israel [במדבר ג, יג] — but not in others, the idolaters.

Gemara^[5]

Why do I need all of these?

They are necessary.

For had he taught only the buyer, I would have said it is because he brings it into sanctity.

מייתי לה לקדושה - that it should rest on Shabbos; and since he is performing a mitzvah, there is no room to fine him.

But a seller, who removes it from sanctity — say we should fine him.

אימא ליקנסיה - to redeem the fetus from the idolater and give it to a kohen.

It teaches us otherwise.

And one who enters into partnership with him — why do I need it?

To exclude the view of Rabbi Yehudah, who says: partnership with an idolater is liable to bechorah.^[6]

מדרבי יהודה - who says below: one who receives an animal from an idolater — they assess it at its value and he gives half its value to the kohen.

It teaches us that it is exempt from bechorah.

And one who receives — why do I need it?

Because he wants to teach: and one who gives to him in kabbalah.

And one who gives to him in kabbalah — why do I need it?

It is necessary.

It might have entered your mind to say: since the body of the animal is the Jew’s, let us fine him.

ועיקר בהמה - the body of the animal and half the offspring.

Lest one come to confuse it with another animal — it teaches us otherwise.

דלמא אתי לאיחלופי בבהמה אחריתי - in which the idolater has no share, neither in her nor in her offspring, and one would come to exempt that one too from bechorah.

We learned there:^[7]

תנן התם - in Maseches Avodah Zarah [עבודה זרה יד, ב].

Rabbi Yehudah permits a broken-limbed animal.

רבי יהודה מתיר בשבורה - to sell to an idolater an animal whose legs have been broken, and in a place where they are not suspected of bestiality. And Ben Beseira permits a horse, with which no work is done that would carry liability for a chatas, since an ordinary horse stands for riding, and one who rides on Shabbos transgresses only a shevus, for a living thing carries itself.

Ben Beseira permits a horse.

They asked: as for a fetus, what would Rabbi Yehudah say to me?^[8]

עובר מה לי א"ר יהודה - to sell it to an idolater — is it permitted or forbidden?

Is Rabbi Yehudah’s reason for permitting there because it is broken-limbed,

משום דשבורה - and it is not fit for work.

and a fetus too is broken?

ועובר נמי שבור הוא - with respect to work.

Or perhaps: a broken-limbed animal is not the normal way of things,

או דלמא שבורה לאו היינו אורחה - for an animal to be broken-limbed; therefore it is an unusual thing, and one will not come to confuse it and permit the sale of a whole animal.

but a fetus, since this is its normal way, is not called broken?

Come and hear: and one who sells to him, though he is not permitted —^[9]

ת"ש - which deals with a fetus, and it teaches that he is not permitted, on account of work on Shabbos.

and Rabbi Yehudah does not disagree.

And according to your reasoning: one who enters into partnership with him, one who receives from him, and one who gives to him in kabbalah, which he does not teach — here too he does not disagree?!^[10]

וליטעמיך המשתתף לו - which our Mishnah teaches with regard to bechorah, that he is exempt, and it does not teach that Rabbi Yehudah holds him liable — so here too he does not disagree? But we see below in our sugya that he does disagree in that beraisa.

Rather, he does disagree and it is not taught.

Here too: he disagrees and it is not taught.

Come and hear: Rabbi Yehudah says: one who receives an animal from an idolater, and she gave birth —^[11]

רבי יהודה אומר המקבל בהמה כו' - and she gave birth to a bechor.

they assess it at its value

מעלין - they appraise.

and he gives half its value to the kohen.^[12]

ונותן חצי דמיו לכהן - but it is not sanctified with sanctity of the body, to be offered on the altar, since half of it belongs to the idolater.

And one who gives to him in kabbalah, though he is not permitted —

והנותן לו בקבלה - this too is not sanctified with sanctity of the body, since half of it belongs to the idolater, and it is exempt from bechorah. And as for his giving its whole value to the kohen, that is a fine — they fine him because he sold her to an idolater. And “one who gives to him in kabbalah, though he is not permitted” means: although he is not permitted to give it to the idolater as a gift.

they fine him up to ten times its value^[13]

קונסים אותו - since he paid no heed to the words of the Sages.

and he gives its whole value to the kohen.

Tosafos

הלוקח עובר חמורו של עובד כוכבים והמוכר לו - the buyer is exempt from bechorah on account of the mother, who belongs to the idolater.^[14]

And the seller is exempt on account of the offspring belonging to the idolater.

And they come from two verses, etc.

And partnership with an idolater exempts from bechorah, even as little as its ear.

And as we say (below 3a): what is different about it? We require every firstborn, and there is not; about its mother too, we require all your cattle, the males, and there is not.

And as for his making a tzerichusa with buyer and seller, and not saying that they come from two verses —

it is because he did not teach both of them under the buyer or under the seller; from this we learn that buyer and seller are each necessary, as it goes on to explain.

For from the buyer we do not learn the seller.

For he could have taught: one who buys from an idolater a fetus or the mother; one who sells to an idolater a fetus or the mother.

And so too it is implied from our Mishnah that they come from a single verse.

For it teaches: exempt, for it is said in Israel; and one must say that this refers to the seller, since the whole passage deals not with the mother but with the offspring:

והמשתתף - in Toras Kohanim, parshas Emor: a bechor exists in partnership, since it is written the firstborn of your cattle and of your flocks.^[15]

And if you should ask: let me derive it from the fact that in Israel was needed to exclude partnership with an idolater — from which it follows that partnership with a Jew is liable?

And a further difficulty: in the chapter Reishis Hagez (Chulin 135b), where it says: the firstborn of your cattle and your flock — why do I need it? To exclude partnership with an idolater.

And here we exclude it from in Israel?

And according to what I explained, that there are two verses — one about the fetus and one about the mother — it is fine: from in Israel comes partnership in the fetus, and from your cattle comes partnership in the mother.

And the same would hold that he could derive it from all your cattle, the males.

And it suited him to bring your cattle, since there he brings your cattle and your flocks.

As it says there: although it is written your cattle and your flock, and one might say — yours, yes; a partnership, no — the Torah wrote your cattle in the plural.

And below it brings from all your cattle, on account of the exposition of all.

And it is fine that your cattle in the plural was needed on account of partnership in the mother.

For from the fact that in Israel was needed to exclude partnership with an idolater, we do not include partnership in the mother from in Israel.

For that is written about the offspring.

And one cannot explain that because the verse revealed in Israel with regard to the offspring, we learn that your cattle comes to exclude partnership with an idolater, and in Israel applies well to all of them.

For in all the cases where partnership with an idolater is excluded, in the chapter Reishis Hagez (ibid.) —

terumah, from what is written the first of your grain;

peah, from what is written the corner of your field;

maaser, from what is written the tithe of your grain —

it excludes them although in Israel is not written:

מייתי לה לקדושה - Rashi explained: that she should rest on Shabbos.^[16]

and correspondingly she is removed from sanctity, since the idolater does work with her on Shabbos.

But the expression sanctity does not imply that.

Rather, the sanctity of bechorah.

Like that case of Rav Mari bar Rachel, whose animals died, because he removed them from sanctity, for he used to transfer their ears to an idolater.

And although with a buyer, if the offspring is male, bringing it into sanctity does not apply?

Sometimes the fetus is female, and he brings her into the sanctity of bechorah,

for the offspring of that fetus is sanctified as a bechor.

And even without the reason that he brings it into sanctity, he could have said that there is no room to fine him,

since there is no removal from sanctity.

and it is not comparable to a seller, where there is removal?

Rather, it suited him to say that there is even a bringing into sanctity.

And further, he could have given another reason.

Had he taught only the buyer, it would be because he committed no transgression; but a seller, who did commit a transgression, as it teaches “though he is not permitted” — say we should fine him?

And he took one of the two reasons.

And all the more so it is now fine that he did not take here the reason I explained on the Mishnah, that they come from two verses:

לאפוקי מדר' יהודה - even without Rabbi Yehudah it would be necessary to teach us partnership,

for we do not learn it from the first clause.

But all the more so is it the more necessary,

since in this case a dispute is found:

אבל עובר כיון דהיינו אורחיה לאו שבור הוא - that is: that one would come to confuse it with another animal.

And further, he could have said: because it is destined to give birth and to become fit for work.

for it is on account of this reason that we conclude that it is forbidden.

as it says: and this fetus too is like one that can be healed?

And he took one of the two reasons:

ונותן חצי דמיו לכהן - it is not sanctified with sanctity of the body, to be offered on the altar, on account of the idolater’s share, as Rashi explained.^[17]

And at the end of the chapter, Rabbi Yehudah permits it in shearing and in work,

for he expounds you shall not work with the firstborn of your ox — but you may work with what is yours and with what belongs to others; and you shall not shear the firstborn of your flock — but you may shear what is yours and what belongs to others.

And if you should ask: granted it is not sanctified with sanctity of the body, still, since by Torah law it is liable to bechorah, that share which he has in it should belong to the kohen. Why does he give the kohen the value of his share?

One may answer: it is for the kohen’s benefit — he does not want a partnership with an idolater, since he cannot get his share out of the idolater’s hand so quickly.

And if you should ask: and in the last clause, which teaches that they fine him up to ten times its value and he gives its whole value to the kohen — since it will come out of the idolater’s hand, it will itself be his; so why its value?

One may answer: because sometimes the kohen cannot sell it and buy it back from the idolater.

And if it were dealing with a peter chamor, it would be more readily understood, in the first clause and in the last, that he gives its value,

since the peter chamor itself is not given to the kohen, but is redeemed with a lamb of any value, or with its worth,

as it says below (9a):

קונסין אותו עד עשרה בדמיו - specifically with a large animal did they fine him; but a small animal, since there is no prohibition in it, only a custom —^[18]

in a place where they are suspected of bestiality,

for an idolater spares his animal so that she should not be made barren —

they did not fine,

even in a place where they were not accustomed to sell.

And below Reish Lakish says: one who sells a large animal to an idolater, they fine him up to ten times its value.

specifically a large animal, but not a small one:

1. 1. The chapter opens on bechorah — the firstborn male of an animal. A firstborn of a tahor animal is holy from birth and is given to a kohen; a firstborn donkey, a peter chamor, is not itself given but is redeemed, normally with a lamb. The Mishnah’s whole list turns on one point: an idolater’s share in the animal or in its mother removes the obligation entirely.
2. 2. Selling large livestock to an idolater is forbidden in its own right, because he will work the animal on Shabbos. The Mishnah says the sale is effective for bechorah even so — the man acted wrongly, and the exemption stands nonetheless. That gap between “forbidden” and “effective” is what drives the whole sugya.
3. 3. Kabbalah here is a receivership arrangement: the animal stays the owner’s and the other party raises her, the two dividing the offspring. Receiving from an idolater and giving to an idolater are two separate cases, and the Gemara will ask what each adds.
4. 4. The verse is I have sanctified to Myself every firstborn in Israel — the words in Israel are read as a limitation, excluding an animal in which a non-Jew holds a share.
5. 5. The Gemara’s opening move is a tzerichusa: a demonstration that each case in the Mishnah’s list teaches something the others would not have taught, so that none of them is redundant. It works through them one at a time.
6. 6. Rabbi Yehudah’s position, which the Mishnah is taking pains to exclude, is that a partnership with an idolater does not remove the obligation. It will be quoted in full further down the daf.
7. 7. The Gemara now leaves bechorah and turns to the separate question of whether selling to an idolater is permitted at all — the Mishnah in Avodah Zarah on which Rabbi Yehudah and Ben Beseira disagree. What links the two subjects is our Mishnah’s phrase “though he is not permitted”.
8. 8. The question: Rabbi Yehudah permits selling a broken-limbed animal, which cannot work. Is a fetus in the same category, since it cannot work either — or is the comparison wrong, because being broken is an abnormal state and a fetus’s condition is perfectly normal and temporary?
9. 9. The first attempted proof: our Mishnah speaks of a fetus and says “though he is not permitted”, without Rabbi Yehudah objecting — so he too forbids selling a fetus.
10. 10. The proof is dismissed. Silence in the Mishnah proves nothing, because the Mishnah is equally silent about the other cases in the list where Rabbi Yehudah demonstrably does disagree.
11. 11. A second proof, from a beraisa of Rabbi Yehudah himself. This is the source of his view that partnership with an idolater does not exempt, cited above.
12. 12. Half the value, not the animal: because the idolater owns half, the bechor never acquires sanctity of the body and cannot be brought on the altar, so the kohen’s right is settled in money.
13. 13. Ten times the value is a fine, not a valuation — imposed because the man sold to an idolater against the ruling of the Sages, and set high enough that he gains nothing by it.
14. 14. Tosfos’ opening point, and the frame for much of what follows: buyer and seller are exempt for different reasons — the buyer because the mother is the idolater’s, the seller because the offspring is — and therefore, on Tosfos’ reading, from two separate verses rather than one.
15. 15. Toras Kohanim is the halachic midrash on Vayikra. Tosfos’ difficulty: if in Israel already excludes a partnership with an idolater, then a second verse excluding the same thing is redundant — and the Gemara in Chulin does derive it from a second verse. His two-verse reading resolves it: one verse is about the fetus, the other about the mother.
16. 16. Tosfos disputes Rashi’s explanation of “he brings it into sanctity”. Rashi takes it as the sanctity of Shabbos rest; Tosfos takes it as the sanctity of bechorah itself, and brings Rav Mari bar Rachel, who transferred the ears of his animals to an idolater in order to keep them out of that sanctity, as the case where the phrase carries its proper sense.
17. 17. Two questions Tosfos raises on the beraisa, both about why the kohen is paid in money rather than given a share in the animal: first in the case of half the value, and then in the case of the tenfold fine. His second answer is that the whole beraisa reads more smoothly as speaking of a peter chamor, which is never given to the kohen in the first place.
18. 18. Tosfos limits the fine to large livestock. Selling small livestock is not forbidden outright but is a matter of local custom, so no fine attaches to it — and he reads Reish Lakish below the same way.