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

Is it not about the fetus?^[1]

מאי לאו אעובר - it says that he is not permitted.

No — about the animal.

But it teaches “its value”, in the masculine?

Read: “her value”.

But it teaches “he gives its whole value to the kohen”.

And if it is about the animal, what business has a kohen with it?^[2]

כהן מאי עבידתיה - with an animal — rather it must certainly be about the fetus.

With what are we dealing here? Such as where he gave him a pregnant animal to fatten,

for since we fine him on account of the animal, we fine him on account of the fetus.

לא - in truth, from here you cannot resolve it, for here we are dealing with a case where he gave him a pregnant animal to fatten and to take half the improvement, both in the fattening and in the offspring, so that since we fine him, and so forth. But if he sold him the fetus alone, no.

Rav Ashi said: come and hear.^[3]

Rabbi Yehudah permits a broken-limbed animal, because she cannot be healed.

שאינה יכולה להתרפאות - and do work on Shabbos.

But one that can be healed, he forbids.

And a fetus too is like one that can be healed?

Learn from it.

And some teach it on our Mishnah.^[4]

And one who sells to him, though he is not permitted.

Shall we say our Mishnah is not in accordance with Rabbi Yehudah?

For we learned: Rabbi Yehudah permits a broken-limbed animal.

מתיר בשבורה - and a fetus is comparable to a broken-limbed animal.

You may even say it is Rabbi Yehudah: a broken-limbed animal is not the normal way; a fetus is the normal way:

היינו אורחיה - and it is not called broken.

Come and hear: Rabbi Yehudah says: one who receives an animal from an idolater, and she gave birth —^[5]

they assess it at its value, and he gives half its value to the kohen.

And one who gives to him in kabbalah, though he is not permitted — they fine him up to ten times its value,

and he gives its whole value to the kohen.

Is it not about the fetus?

No — about the animal.

But it teaches “its value”, in the masculine?

Read: “her value”.

But it teaches “he gives its whole value to the kohen”.

And if it is about the animal, what business has a kohen with it?

With what are we dealing here? Such as where he gave a pregnant animal to fatten,

for since we fine him on account of the animal, we fine him on account of the fetus.

Rav Ashi said: come and hear.

Rabbi Yehudah permits a broken-limbed animal, because she cannot be healed.

But one that can be healed, he forbids.

And this one too is like one that can be healed.

Learn from it.

They asked: one who sold an animal for its offspring —^[6]

בהמה לעובריה - such as where she has not yet conceived, and he sold him all the offspring that are destined to be conceived, but the animal herself he did not sell him.

what is the law?

מהו - to fine him to redeem her, on account of one who sells an animal to an idolater.

Let the question be asked according to Rabbi Yehudah;

let it be asked according to the Rabbanan.

Let it be asked according to Rabbi Yehudah: Rabbi Yehudah permitted only a broken-limbed animal, which will not come to be confused with another;^[7]

but a whole one, which will come to be confused, he forbids?

דאתי לאיחלופי - to permit the sale of a whole animal.

Or perhaps: if a broken-limbed animal, which he has severed from himself,

דפסקה מיניה - that he retained nothing of her for himself once he sold her.

then all the more so a whole one, which he has not severed from himself?

וכ"ש שלמה - in a case such as this, where he has not severed her from himself, for he retained the body of the animal for himself; and as for the offspring, there is nothing to be concerned about, for she has not yet conceived and he sold him nothing at all, and when they come, they come into the idolater’s possession.

Let it be asked according to the Rabbanan:^[8]

the Rabbanan forbade only a broken-limbed animal, which he has severed from himself;

דפסקה מיניה - and it is an outright sale, and one will come to be confused and permit an outright sale of a whole animal. But here, where he has not severed her from himself, it is permitted, for it is not a sale.

but a whole one, which he has not severed from himself, they permit?

Or perhaps: if a broken-limbed animal, which will not come to be confused, they forbid, then all the more so a whole one, which will come to be confused?

וכל שכן שלמה דאתיא לאחלופי - in an outright sale of another whole animal.

And is that the reason of the Rabbanan?!^[9]

משום הכי הוא - this is said in astonishment: that we should have needed to ask at all.

But it was taught: they said to Rabbi Yehudah: but they mate her and she gives birth?

עליה - the broken-limbed one.

It follows that it is on account of her offspring?

אלמא טעמא דרבנן משום עוברין - resolve from it that according to the Rabbanan it is forbidden to sell an idolater an animal for her offspring, and according to Rabbi Yehudah it is permitted.

This is what they said to him: our reason is because she will come to be confused with another animal.

לעולם טעמא דרבנן משום איחלופי - and it was necessary to ask: since he has not severed her from himself, one might say it will not come to be confused with an outright sale. And this is what the Rabbanan said to Rabbi Yehudah.

But you — what is your reason for permitting?^[10]

Because she cannot be healed, it is as though he sold her for slaughter.

כמאן דזבנה לשחיטה דמי - and there is no concern for confusion, for whoever sees knows that he is selling her only for slaughter, and he will not come to sell an animal that is not for slaughter.

But they mate her and she gives birth.

And since they mate her and she gives birth, he keeps her?

משהא לה - for the sake of the offspring; and whoever sees her in the idolater’s house at the end of a year or two will think it is permitted to sell an animal to an idolater not for slaughter.

And he said to them: as for when she gives birth —

she does not accept a male.

Come and hear: and one who gives to him in kabbalah —^[11]

ת"ש - from our Mishnah.

and it does not teach “though he is not permitted”.

ולא קתני אע"פ שאינו רשאי - it follows that it is permitted to sell an animal for her offspring, for kabbalah is a sale of the offspring, since the idolater shares only in the offspring — for it was assumed that the idolater does not share in the improvement from fattening the animal.

And according to your reasoning: one who enters into partnership with him, which it does not teach — so too he is permitted?!

But Shmuel’s father said: it is forbidden for a man to enter into partnership with an idolater, lest he become liable to him an oath, and he will swear to him by the name of his idolatry.^[12]

And the Torah said: it shall not be heard upon your mouth [שמות כג, יג]?

על פיך - through what your mouth brings about.

Rather, he taught selling, and the same law applies to partnership.

תנא במכירה - that he is not permitted — and the same applies to all of them.

So too here: he taught selling, and the same law applies to kabbalah.

And why did he specifically take selling?^[13]

ומאי שנא מכירה דנקט - to say of it that he is not permitted, and he did not take it with any of the others.

Because selling is the principal case.

דעיקר מכירה היא - the principal prohibition is the selling of an animal.

Come and hear: Rabbi Yehudah says: one who receives an animal from an idolater, and she gave birth —^[14]

they assess it at its value, and he gives half its value to the kohen.

And one who gives in kabbalah, though he is not permitted — they fine him up to ten times its value,

and he gives its whole value to the kohen.

And the Sages say: whenever the idolater’s hand is in between, it is exempt from bechorah.

Tosafos

מאי לאו אעובר - that is: and it deals with a pregnant animal.^[15]

No — about the animal.

That is: it does not deal with a fetus, but with an animal sold for her offspring.

And so it is implied below, at the question: an animal for her offspring, what is the law?

and it wanted to resolve from here that it is forbidden,

for it says: is it not about the animal?

Learn from it — that if it refers to the animal, it deals with an animal sold for her offspring.

But at first glance it does not deal with an animal sold for her offspring,

for if so, what is its difficulty from “but it teaches its value”?

Let it say that it refers to the fetus?

And if you say that it was implied to him that it refers to the animal — if so, below too let it be inferred the same way?

Rather, here it deals with an animal given for fattening, as it concludes below with “for her offspring”:

דלא מקבלת זכר - not on account of treifah.^[16]

from what is said in the chapter Elu Treifos (Chulin 57b) regarding Rabbi Shimon ben Chalafta, who was a man of affairs: and perhaps Rabbi Yehudah holds that a treifah gives birth and improves.

And there are texts that do not read “gives birth”, since there is no need there for birth but only for improving.

And in any case it stands to reason here that even from the knee and below Rabbi Yehudah permits, because she does not accept a male:

ולטעמיך המשתתף לו כו' - as for kabbalah, it is not apt to ask,^[17]

for it is forbidden on account of partnership, since kabbalah does not so readily lead to an oath.

And he specifically took partnership;

but other dealings are not forbidden:

אסור לאדם שיעשה שותפות עם העובד כוכבים - that which was taught in the first chapter of Maseches Avodah Zarah (22a): a Jew and an idolater who received a field in partnership.^[18]

And likewise the case of the idolater taking the years of orlah and the Jew taking the permitted years.

And it says in the chapter Hazroa (Chulin 133a): one who enters into partnership with an idolater must make a mark.

All these cases disagree with Shmuel’s father:

שמא יתחייב לו עובד כוכבים שבועה - from here Rabbeinu Shmuel forbids accepting the oath, by a kal vachomer.^[19]

And Rabbeinu Tam permits it,

because it is like saving from their hand,

as was taught in the first chapter of Maseches Avodah Zarah (6b): a loan by word of mouth may be collected from them, because it is like saving from their hand — although he goes and gives thanks.

And one may distinguish between a doubt and a certainty.

Rabbeinu Tam further brings a proof from that passage in the last chapter of Megillah (28a): Avuha bar Ihi said: may this come to me, that I never entered into partnership with an idolater.

And if it were forbidden, what is his special merit?

And so Rabbeinu Tam explained, that they were not careful about the three meals,

from what is said in the chapter Kol Kisvei (Shabbos 118b): may this come to me, that I fulfilled three meals.

It implies that not all of them were careful about them.

Rabbeinu Tam further explained that in our time they all swear by their holy things, and do not hold them to be a deity.^[20]

And although they mention the Name of Heaven together with them, and their intent is to something else?

still, this is not a name of idolatry,

for their intent is to the One who made heaven and earth.

And although he associates the Name of Heaven with something else?

there is no you shall not place a stumbling block before the blind here,

for the sons of Noach were not warned about this.

And as for us, we have not found a prohibition in causing such an association:

דעיקר מכירה - Rashi explained: that the principal prohibition is the selling.

It implies that he means to say that the principal prohibition is the selling.

And it is difficult: partnership is not forbidden on account of selling, but rather as Shmuel’s father said?

And one must say: the principal, plain prohibition is selling,

as we learned in the first chapter of Maseches Avodah Zarah [עבודה זרה יד, ב]:

1. 1. The daf opens mid-argument. The beraisa of Rabbi Yehudah quoted at the end of 2a spoke of a fine of ten times the value, and the question is whether that fine was imposed for selling the fetus or for selling the animal herself — which decides whether selling a fetus to an idolater is forbidden at all.
2. 2. The sharpest argument for reading the beraisa as speaking of the fetus: the kohen’s claim is a claim of bechorah, and bechorah attaches to the offspring, not to the mother. If the beraisa were about the mother, the kohen would have no standing in it.
3. 3. Rav Ashi brings the decisive proof, and it settles the first version of the sugya: Rabbi Yehudah permits a broken-limbed animal only because she can never be healed, whereas a fetus will in time be perfectly capable of work.
4. 4. A second version of the whole exchange now follows, attached to our Mishnah rather than to the beraisa. The material repeats almost word for word; what changes is what the proof is being brought against.
5. 5. The beraisa is quoted again in full, and the same back-and-forth runs a second time. Read the two versions as alternative reports of one discussion, not as two separate arguments.
6. 6. A new question, and the one the rest of the daf turns on: selling not the animal and not a fetus already conceived, but the animal’s future offspring, while keeping the animal herself. Is that a sale that the fine reaches?
7. 7. The first side of the question, on Rabbi Yehudah’s view. Two ways to read his leniency: either he permits only where there is no risk of confusion with an ordinary sale, or he permits wherever the seller has not fully parted with the animal — and selling only future offspring is the least complete parting of all.
8. 8. The same question is now put on the Rabbanan’s side, and the two readings pull in opposite directions there: if their concern is confusion, selling future offspring is safe; if their concern is the parting itself, it is not.
9. 9. The Gemara interrupts itself: is confusion really the Rabbanan’s reason at all? A beraisa suggests their concern was the offspring, which would have settled the question without asking it.
10. 10. The exchange in the beraisa laid out plainly: the Rabbanan press Rabbi Yehudah on his reason, he answers that a broken-limbed animal is effectively sold for slaughter, and they answer back that she will be kept alive and bred — to which he answers that she cannot conceive at all.
11. 11. An attempted proof from the silence of our Mishnah: kabbalah is in effect a sale of the offspring, and the Mishnah does not say of it “though he is not permitted”.
12. 12. The proof is dismissed by the same move used on 2a — silence proves nothing — and in the course of it the Gemara brings Shmuel’s father’s ruling against partnership with an idolater, on the concern that a dispute will end in the idolater swearing by his own deity.
13. 13. Having said that the Mishnah teaches only the case of selling and leaves the rest to be inferred, the Gemara asks why selling was the case chosen — and answers that it is the principal prohibition, the one the others are measured against.
14. 14. The beraisa a third time, now with the Sages’ closing statement, which is the general rule the whole chapter rests on: any share held by an idolater, at any point, removes the obligation of bechorah.
15. 15. Tosfos reads the sugya differently from Rashi. On his reading the Gemara’s “no, about the animal” does not mean a pregnant animal sold outright, but an animal sold for her offspring — which is exactly the case the Gemara will raise as a question further down, and Tosfos works through why that reading does and does not fit.
16. 16. Why a broken-limbed animal cannot conceive: Tosfos rules out the obvious explanation, that she is a treifah and treifos do not reproduce, since the Gemara in Chulin leaves open that a treifah does give birth. He concludes the reason is physical, and that Rabbi Yehudah’s leniency therefore extends even to a break below the knee.
17. 17. Tosfos explains why the Gemara’s rejoinder was framed around partnership rather than kabbalah: the prohibition rests on the risk of an oath, and a kabbalah arrangement is far less likely to end in a dispute than a full partnership.
18. 18. Tosfos collects three passages in which Jews and idolaters are assumed to be in partnership, and states plainly that they stand against Shmuel’s father — he does not reconcile them.
19. 19. The practical question behind the sugya in Tosfos’ time: may a Jew accept an oath from a non-Jew in court? Rabbeinu Shmuel forbade it; Rabbeinu Tam permitted it as a way of recovering what is owed, and brought several proofs that partnership itself was not treated as forbidden in practice.
20. 20. Rabbeinu Tam’s further ground of leniency, and the passage most often cited from this Tosfos: that the oath of the nations of his day, even where another name is joined to the Name of Heaven, is not an oath by a deity, and that such association is not forbidden to non-Jews.