003b - הלוקח עובר חמורו פרק ראשון בכורות דף ג, ע"ב

This is what Rabbi Yochanan said:^[1]

הכי אמר רבי יוחנן - in the beis midrash: that the “liable” which it teaches means liable to be given to a kohen; but it is not offered on the altar, for this change is a permanent blemish, on which it may be slaughtered outside, like a blemished bechor, which a kohen slaughters and eats.

even a slight blemish.

אפי' מום קל - and even if the idolater’s partnership is only in her ear, so that were he to take his share she would be neither a neveilah nor a treifah but merely a slight blemish — she is exempt from bechorah.

And that which we learned: a ewe that gave birth to a kind of goat, and a goat that gave birth to a kind of ewe, is exempt from bechorah; and if it has some of the signs, it is liable —^[2]

it is a permanent blemish, on which it may be slaughtered.

Granted “a slight blemish” — it teaches us in accordance with Rav Huna, and to exclude Rav Chisda and Rava.^[3]

כדרב הונא - who said: even its ear.

But “a permanent blemish” — what does it teach us, that since it has changed it is a blemish?!

We have already learned it!

תנינא - below, in the chapter Al Elu Mumin Shochtin es Habechor (40).

And its mouth resembles that of a pig — this is a blemish.

And if you say: there it changed into something of whose kind nothing is sanctified as a bechor, whereas here it changed into something of whose kind something is sanctified as a bechor?^[4]

הכא נשתנה כו' - and for this reason Rabbi Yochanan needed to teach us that it is a blemish.

This too we have learned!

One of its eyes large and one small.

או אחת גדולה - like that of a calf; or one small, like that of a goose.

And the Tanna taught: “large” — large like that of a calf; and “small” — small like that of a goose.

Granted small like a goose — there is nothing of its kind sanctified as a bechor.

But large like a calf — there is of its kind something sanctified as a bechor?

יש במינו קדוש בבכורה - and even so it is a blemish; so why did Rabbi Yochanan need to say it?

Rather, is it not because we say: since it changed, it is a blemish?

No.

It is because it is sarua.^[5]

לא משום דהוה ליה שרוע - for the sarua stated in the Torah is this: that one of its limbs is larger than its fellow. But another change, such as that its wool resembles a goat’s, we do not learn to be a blemish; therefore Rabbi Yochanan needed to teach us.

So too it stands to reason.

For we learned: these blemishes,

מומין אלו - which the Sages specified regarding a bechor.

whether permanent or temporary, disqualify.

בין עוברין בין קבועין פוסלין - in a man, in a kohen: whenever a blemish is upon him he may not serve.

A man has more than they: his eyes, both of them large, or both of them small.^[6]

It is with regard to a man that it is written: any man of the seed of Aharon [ויקרא כב, ד].

for we require a man who is alike with the seed of Aharon;

שוה בזרעו - who resembles human beings.

but in an animal, both large or both small is not a blemish either.

“One large and one small” — what is the reason?

If because of the change, then even both large or both small too?

Rather, is it not because it is sarua?

No.

In truth I may tell you that it is a blemish because of the change.

לעולם אימא לך כו' - and from here you should not reason that it is because of sarua.

And as for your difficulty, “even both large or both small?” —^[7]

there, if it is from excessive health, both of them ought to have grown so?

תרוייהו בעו - and this is certainly abnormal. And if it is difficult to you why Rabbi Yochanan needed to say it, since we have established that a change is a blemish — answer: since one might also say that it is not on account of the change but on account of sarua, Rabbi Yochanan needed to say it.

and if from excessive leanness, both of them ought to have wasted so?

There was a certain convert, to whom her brothers used to hand over animals to fatten.^[8]

אחי - they were idolaters.

She came before Rava.

אתאי לקמיה דרבא - to ask whether she is liable to bechorah.

He said to her: there is none who is concerned for this of Rabbi Yehudah, who said: partnership with an idolater is liable to bechorah.

Rav Mari bar Rachel had certain animals.^[9]

He used to transfer their ears to an idolater,

מקנה לאודנייהו לעובד כוכבים - to remove them from bechorah.

and he forbade them in shearing and in work,

ואסר להו - the firstborn, in shearing and in work, like complete bechoros; and he gave them to the kohanim.

and gave them to the kohanim.

And Rav Mari bar Rachel’s animals were destroyed.

וכלאי חיותא - his livestock died.

And since he forbade them in shearing and in work and gave them to the kohanim, why did he transfer their ears to an idolater?^[10]

Lest he come through them to a mishap.

לידי תקלה - that he not shear them or work with them.

If so, what is the reason that Rav Mari’s animals were destroyed?

אי הכי - since his intent was for the good, why were his animals destroyed?

Because he removes them from their sanctity.^[11]

But Rav Yehudah said: a man may impose a blemish on a bechor before it emerges into the air of the world?

קודם שיצא - and it is not yet sanctified, for a bechor’s sanctity depends on the womb, as it is written every firstborn that is born; and it is not like one who imposes a blemish on consecrated animals.

There, he removes it from the sanctity of the altar; he does not remove it from the sanctity of the kohen.^[12]

מקדושת כהן לא מפקע ליה - for it is like a blemished bechor that is given to a kohen, and the kohen is obliged to treat it with sanctity: not to shear it and not to work with it; and when he slaughters it, he does not slaughter it in the market, it is not sold in the market, and it is not weighed by the litra, as below (31).

Here, he removes it even from the sanctity of the kohen.

הכא - from the moment he transfers it to the idolater, no name of sanctity takes hold of it; and although he treats it with sanctity, it is like treating wholly unconsecrated animals with sanctity.

And if you wish, say: Rav Mari bar Rachel knew how to transfer with a complete acquisition, and another man would see him and go and do likewise,^[13]

קנין גמור - to take money from the idolater, for an idolater acquires only with money, as we say below in the second chapter (13).

and would think that Rav Mari had merely done a formality,

מילתא הוא דעבד - a mere formality, in words, and he does not take its value.

and would come through it to a mishap:

Mishnah^[14]

Kohanim and Leviim are exempt by a kal vachomer:

כהנים ולוים פטורין - it is assumed that it refers to a peter chamor.

if they exempted those of Israel in the wilderness,

אם פטרו - the Leviim exempted the firstborn of Israel in the wilderness.

it is right that they should exempt their own:

דין הוא כו' - and it implies that the persons of the Leviim exempt the donkeys of Israel.

Tosafos

אלא לאו משום דהוה ליה שרוע - and a change is not a blemish.^[15]

And if you should ask: if so, it is more difficult for Rabbi Yochanan, who said above that since it changed it is a blemish — for here we infer that both being large is a change and is not considered a blemish?

One may answer: that case above is a more severe change than both being large or both being small:

דקא מפקע להו מקדושתייהו - as for the fact that people are not careful about this nowadays, even though Rav Mari was punished?^[16]

Rabbeinu Tam explained: Rav Mari was punished because he was transferring the ear of the fetus, and there is a removal in the body of the fetus itself; but a transfer in the mother is permitted.

And although there are texts that read “her ear”, in the feminine?

that is because it refers to the animal;

and so too he forbade her in shearing and in work.

And if you should ask: below in the ninth chapter (53a), where it asks regarding maaser beheimah that it does not apply nowadays so that one should not come to a mishap — if so, let a bechor also not apply nowadays, because of a mishap? And it answers: it is possible, as Rav Yehudah said.

why did it not find a remedy in the mothers, as I explained?

One may answer: there, since there is a concern of a mishap and they can remedy it without removing it from the kohen — by acting as Rav Yehudah said — they did not wish to enact that one should always act so, by way of removal.

But if he did so, he did so.

Or alternatively: in the days of Rav Mari they were expert at imposing a blemish on a bechor before it came into the world, and it is forbidden to act by way of removal; but we, who are not expert in that, it is better to transfer to an idolater before coming to a mishap — as is implied in the last chapter (below 53a).^[17]

For were it not that it is possible to act as Rav Yehudah said, we should have enacted to transfer to idolaters; and we, who are not expert, are as though it were not possible.

(And even in this of Rav Yehudah, in the chapter Ein Ma’arimin) it is forbidden by law, as a decree lest he bring out its head before he imposes a blemish on it; were it not for this of Rav Yehudah, it is preferable to impose a blemish on it before it comes into the world, since otherwise one would have to keep it until a blemish falls upon it of itself.

And it appears that transferring the ear alone is permitted,

for we hold like Rav Huna, since Rabbi Yochanan stands with him and said “even a slight blemish”; and Rav Mari too, who transferred their ears, was punished only on account of the removal.

And below in the last chapter (ibid.) it asks: let him transfer their ears to an idolater.

And at most it is permitted by transferring something that renders her a treifah or a neveilah.

And according to the other version, which explains that Rav Mari was punished because he knew how to transfer while everyone else did not, and they thought Rav Mari had done a mere formality, and would come to a mishap — one may explain likewise: Rav Mari, who was expert in the ruling of Rav Yehudah, should not have acted by way of acquisition, since one might come to err; but for us it is not possible in another way.^[18]

Rabbeinu Tam further explained: Rav Mari, who transferred the ear of a fetus to an idolater — that is a thing not yet come into the world; rather he would transfer the animal for the ears of the fetus, like a palm tree for its fruit, and a person would err and say that he was transferring the ears of the fetus as one transfers the fruit of a palm, and would come to a mishap. But when he transfers the ears of the animals themselves it is permitted, for one will not come to err.

And according to Rashi’s explanation it cannot be explained so, for he explained that Rav Mari knew how to effect a complete acquisition, to take money from the idolater, for an idolater acquires only with money, as it says below in the second chapter (13a); and they thought it was a mere formality and that he does not take the money.

However, according to his words he should not have brought a proof from below; for on the contrary, according to Rabbi Yochanan, who says that by Torah law money acquires, he expounds it below (13b) from from the hand of your fellow — with money; but from an idolater, by drawing. And we hold like Rabbi Yochanan:

כהנים ולוים פטרו עצמן מק"ו - and if you should ask: even without the kal vachomer, let it be derived from the Kuntrokos of the officer, as it answers below (5b) — that those three hundred were firstborn, and a firstborn does not exempt a firstborn, because it is enough that it exempts its own; learn from it that its own, at least, it does exempt?^[19]

One may answer: were it not for the kal vachomer, we could have answered that those three hundred were firstborn and required redemption.

And if you say: if so, let them be counted together with the two hundred and seventy-three that were in excess — one may say: Scripture was not concerned to count any but those of Israel alone:

1. 1. The answer Rabbi Assi gives, carried over from the end of 3a: where a partnership does make the animal liable, “liable” means only that the animal goes to the kohen. It is not brought on the altar, because the very change that made it liable counts as a permanent blemish.
2. 2. The Mishnah brought as a difficulty is about an animal born looking like a different species. It is exempt from bechorah unless it carries some of its mother’s signs — and Rabbi Yochanan has just said that even then it is only given to the kohen, never offered.
3. 3. The Gemara accepts half of what Rabbi Yochanan said and challenges the other half: that a share as small as an ear exempts is a real ruling, siding with Rav Huna against Rav Chisda and Rava; but that a change counts as a blemish seems obvious and already taught.
4. 4. The first attempt to defend Rabbi Yochanan: the case already taught — a mouth like a pig’s — is a change into a species that never carries bechorah at all, whereas here the animal changed into a species that does. The Gemara rejects the distinction from the case of the eyes.
5. 5. The whole question turns on this: is an abnormal eye a blemish because it is a change, or because of sarua — the specific Torah disqualification of one limb being larger than its fellow? If it is sarua, nothing has yet been taught about change as such, and Rabbi Yochanan is saying something new.
6. 6. The proof for sarua: in a kohen, both eyes being large or both small disqualifies, but in an animal it does not. If mere abnormality were the test, both eyes should be as disqualifying as one — so in an animal the disqualification must be the mismatch itself, which is sarua.
7. 7. The proof is answered: both eyes being large or both small is not abnormal at all, since a healthy animal grows evenly and a lean one wastes evenly. So nothing follows from it, and the case of one large eye may still be a matter of change rather than sarua.
8. 8. Two practical cases now follow, both about arranging an idolater’s share in order to avoid bechorah. The first is straightforward: Rava tells a convert whose idolater brothers own the animals she fattens that she has nothing to worry about, since the halachah is not like Rabbi Yehudah.
9. 9. The second case is the famous one, and the Gemara treats it as a warning. Rav Mari transferred the ears of his animals to an idolater so that no bechorah would take hold — and then treated the firstborn as holy anyway and gave them to kohanim. His herd died.
10. 10. The obvious question: if he was going to treat them as holy in any case, what did the transfer achieve? The answer is that he wanted a safety margin — if sanctity never attached, an accidental shearing or a day’s work would not be a transgression.
11. 11. The first answer for why he was punished all the same: good intentions or not, he was stripping the animals of a sanctity the Torah would have given them.
12. 12. The distinction that makes the answer work. Rav Yehudah’s permission to blemish a bechor before birth only downgrades it — it still goes to the kohen. Rav Mari’s transfer left nothing at all: no altar, no kohen.
13. 13. A second answer, and the one Tosfos will take up: Rav Mari was punished not for what he did but for what others would make of it. He knew the transfer had to be a real sale for money; onlookers would copy the form without the substance and end up with animals they wrongly believed were exempt.
14. 14. A new Mishnah. Kohanim and Leviim are exempt from the firstborn obligations, and the Mishnah first offers a kal vachomer as the reason — since the Leviim served to redeem the firstborn of Israel in the wilderness, all the more so their own.
15. 15. Tosfos reads the Gemara’s conclusion the opposite way from how it might seem: on his reading the passage does establish sarua as the operative reason, which leaves him with a difficulty against Rabbi Yochanan that he answers by degree — some changes are drastic enough to count on their own.
16. 16. The question every reader of this daf asks, and Tosfos asks it outright: Rav Mari was punished for this, so why is the same arrangement in ordinary use in Tosfos’ own time? The rest of this Tosfos is his answer, and it runs to the end of the page.
17. 17. The heart of the answer: Rav Yehudah’s remedy — blemishing the animal before birth — requires expertise that Tosfos says his contemporaries no longer had. Where that remedy is unavailable, transferring a share to a non-Jew is the lesser evil against the near certainty of an accidental transgression.
18. 18. Tosfos then works through the second explanation of Rav Mari’s punishment, and Rabbeinu Tam’s reading that the flaw lay in transferring the ear of an unborn animal — something not yet in the world — rather than the ears of animals already born. He ends by noting that Rashi’s explanation cannot be squared with the proof Rashi himself cites.
19. 19. On the new Mishnah: Tosfos asks why a kal vachomer is needed at all, when a passage further on already shows that a firstborn Levi exempts himself. His answer is that without the kal vachomer, that passage could have been read differently.