041b - על אלו מומין פרק ששי בכורות דף מא, ע"ב

Rava asked: What is the reason of Rabbi Yishmael? Is it obvious to him that an androginos is a bechor and its blemish is with it, or perhaps he is in doubt about it, and he is speaking in terms of “if you will say”: if you will say that it is a bechor, its blemish is with it?^[1]

או דילמא ספוקי מספקא ליה - whether it is male or female. And when he says “its blemish is with it,” he is speaking in terms of “if you will say”: if you will say that it is a doubtful bechor, its blemish is with it.

What is the practical difference?

To give lashes for it on account of shearing and work;^[2]

למילקא עליה כו' - if you say it is a bechor, he receives lashes, for a blemished bechor too is forbidden in shearing and work; but if it is a doubt, we do not give lashes on account of a doubt.

alternatively, to give it to the kohen.^[3]

אי נמי למיתביה לכהן - if it is a bechor, he gives it to the kohen, who eats it with this blemish; but if it is a doubt, the Yisrael eats it with this blemish, according to the law of a doubtful bechor, which is eaten with its blemish by its owners, for the one who seeks to take from his fellow bears the burden of proof.

Come and hear: Rabbi Il’ai says in the name of Rabbi Yishmael: An androginos is a bechor, and its blemish is with it.

Learn from this that it is obvious to him!

But perhaps he is speaking in terms of “if you will say”!

דילמא אם תימצא לומר קאמר - that is to say: if it is a bechor, its blemish is with it.

Come and hear: (Vayikra 1:3) “A male” – and not a female;

ה"ג בתורת כהנים זכר ולא נקבה - this is the reading in Toras Kohanim. “Male” is written regarding an olah of cattle: he shall offer it a male without blemish, which implies: and not a female.

when it says “a male” below, for which there is no need, why does the verse say it? To exclude a tumtum and an androginos.^[4]

כשהוא אומר זכר למטה - regarding an olah of the flock.

שאין ת"ל - for it is not needed for itself, to exclude a female, since she has already been excluded.

להוציא טומטום ואנדרוגינוס - is what it comes for.

Whose [view is this]?

מני - this, that tumtum and androginos are excluded by the latter “male”.

If you say the Tanna Kamma – [for him] it is a doubt, and would a verse come to exclude a doubt?^[5]

אילימא ת"ק - of our Mishnah; but [for him] tumtum and androginos are a doubt.

ואיצטריכא קרא למעוטי ספיקא - this is asked in surprise: there is no doubt before Heaven! Rather, it surely excludes it because it is a creature of its own, and not like the Tanna Kamma.

Rather, the later Sages – they derive it from one verse, for regarding a bechor only one “male” is written, and they exclude all of them from it!^[6]

אלא רבנן בתראי - of our Mishnah, to whom it is obvious that it is a creature of its own, and they say: it is not a bechor, but it may be shorn and worked. [The question is:] let him derive tumtum, androginos and female from one “male,” for regarding a bechor only one “male” is written, and from it they exclude all of them, tumtum and androginos, from one “male”.

Rather, it is obviously Rabbi Yishmael.

אלא פשיטא כדר' ישמעאל - we establish it, and as we sought to explain, for we cannot establish it like those Sages; and it is obvious to him that it is male.

Now, granted if you say that it is obvious to Rabbi Yishmael, that is why a verse was needed to exclude it;

היינו דאיצטריך למעוטי - that although it is male, it is not sanctified with any sanctity if he consecrated it as an olah, and even shearing and work are permitted with it. And from the first “male” we could not derive its exclusion from sanctity, for regarding a bechor only one “male” is written, and Rabbi Yishmael does not exclude it from [the ban on] shearing, for on account of the blemish it is permitted only to be slaughtered.

but if you say that he is in doubt about it, would a verse be needed to exclude a doubt?

אלא אי ספוקי מספקא ליה - whether male or female, this [beraisa] can no longer be established according to him [Rabbi Yishmael], for a verse does not come to exclude a doubt; so according to whom would you establish it?

Actually, [it is] the later Sages, and regarding a bechor two verses are written: “the male” and “the males”.^[7]

לעולם רבנן בתראי - and as for what you said, let them derive it from one verse, since regarding a bechor they derive it from one verse – that is not so, for regarding a bechor two are written.

הזכר - the male you shall sanctify.

הזכרים - that you will have, the males are to Hashem.

And the Sages say: It is not a bechor, etc.:^[8]

Rav Chisda said: The dispute is about an androginos; but about a tumtum, all agree that it is a doubt, and it is sanctified out of doubt.^[9]

מחלוקת - in which the later Sages say that it is a creature of its own – it is about an androginos.

אבל טומטום דברי הכל ספק - and it is forbidden in shearing, and is slaughtered neither in the Mikdash nor in the country.

Rava said to him: If so, in [the laws of] arachin he should be valued…^[10]

אלא מעתה - that it is a doubt, in arachin he should be valued as a person, either at the value of a man or at the value of a woman.

אילימא ת"ק (סבר) ספיקא הוא ואתי קרא למעוטי ספיקא - And if you ask: how does [the Gemara] know that the reason of the Tanna Kamma is because of doubt? Perhaps it is like the inner teeth that were chipped or ground down, which are a blemish in that one may not slaughter in the Mikdash, yet not a blemish to slaughter it in the country, and it really is a definite bechor. One can answer: since Rabbi Yishmael says in the beraisa “it is a bechor, and its blemish is with it,” this implies that according to the Tanna Kamma it is not a definite bechor.

ואתי קרא למעוטי ספיקא - In this manner [the Gemara] asks in the last chapter of Yoma (Yoma 74a) regarding a koy,^[11] in Kerisus in the chapter Dam Shechitah (Kerisus 21a), and in the first chapter of Chullin (Chullin 22b) regarding the onset of yellowing in this one and in that one. This is unlike other places where we exclude a doubt from a verse: below in the last chapter (Bechoros 58b), “the Merciful One said a definite tenth, and not a doubtful tenth”; and likewise a bahares at the end of Nazir (Nazir 65b): where it is doubtful whether the bahares came first or the white hair came first, [the verse] excludes him from being declared pure or impure, since the verse opened with purity first; for at times it happened so. And a tumtum too was properly fit to be excluded, for some of them are male and some female, and the verse exempted him as long as he is in doubt. But a koy, the onset of yellowing and an androginos are all alike, for before Heaven it is revealed whether a koy is a wild animal or a domestic animal, whether the onset of yellowing counts as large or small, and whether an androginos is male or female. And if you ask: Rav holds that an androginos is a doubt, as is explained at the end of [the chapter] Hamapeles (Niddah 28a), that it becomes impure with white and with red [discharge]; and since he says at the end of [the chapter] Ha’arel (Yevamos 83a) that the halachah follows Rabbi Yosi, [this shows] that they did not decide whether it is male or female, and “a creature of its own,” which Rabbi Yosi says in the beraisa, is not exact; and even so Rav excludes it regarding entering the Mikdash, since it is written from male to female – a definite male, a definite female, and not a tumtum and an androginos. So how does a verse come to exclude a doubt? One can answer that here [the Gemara] asks well, for it excludes the androginos from the extra “the male” written regarding an olah; and if it comes to exclude it even though it is male, because it differs from other males, then since we exclude it from “the male,” learn from this that it is male and not female; so it does not accord with the Tanna Kamma, who says it is a doubt. But in that [verse] of Rav, two exclusions are written, for [the Torah] could have written “from male to person” or “from female to person,” and one of them comes for a tumtum and one for an androginos: if the androginos is male, “from male” comes to exclude it, and if it is female, “to female” comes to exclude it, because it is unusual. And according to this reasoning Rav can well hold what Rav Chisda says shortly: the dispute is about an androginos, but a tumtum is a doubt and is sanctified out of doubt – meaning, we should not apply an exclusion to a tumtum, which is definitely either this or that, only covered; and Rav applied the exclusion to a tumtum because there is an extra [word]. One can further explain that Rav’s two exclusions are needed: since [the Torah] needed to write “male” to exclude an androginos if it is male, because it is an unusual male, and “to female” to exclude it if it is female, it perforce had to write both, so that you would not say “male” specifically and not female, or “female” specifically and not male; and we should not explain that it could have written “to person.” In any event, Rav holds that we also apply an exclusion to a tumtum, not like Rav Chisda; for later too we find that Rabbi Yochanan does not hold like Rav Chisda. We can also say that for a tumtum alone both are needed, to exclude his doubt from the law of a male if he is later found to be male, and from the law of a female if he is later found to be female; and the same applies to an androginos, since it differs from other males or other females, and they are equal; and Rav does not hold that [view] of Rav Chisda. Likewise Abaye in the first chapter of Chagigah (Chagigah 4a) excludes a tumtum because there is an extra [word]. One may wonder: [the Gemara] asks later, If so, in arachin he should be valued, and brings a proof from a beraisa that excludes it from the value of a man and of a woman, from “the male” and “if a female,” and answers, remove tumtum from here – what is the difficulty? There, there is an extra [word], for on account of an androginos only one is needed! One can answer that there too both are needed for an androginos, for if “the male” alone were written to exclude it, I would say it is no worse than a female, and it would have the value of a female. And if you ask: what is the difficulty in [the Gemara’s] challenge from “if male, if female” – to exclude a tumtum and an androginos? Perhaps regarding shelamim there are two exclusions, “if male, if female,” for “if” is an exclusion, as is said in the chapter Hamapeles (Niddah 28a)! The Ri says that the reading is “male or female,” written in the verse about shelamim of the flock, for so it is expounded in Toras Kohanim; but “if male, if female,” written about shelamim of cattle, is expounded there in Toras Kohanim, and above in the second chapter (Bechoros 15b), and in Temurah in the chapter Eilu Kodashim (Temurah 17b), to include the offspring of blemished animals. And now [the Gemara] asks well against Rav Chisda, for in this verse only one exclusion is written; and “or” is to exclude, as in “or a sheep” – to exclude a hybrid, “or a goat” – to exclude one that only resembles it.

וקמעטי כולהו מיניה - Meaning, all of them: female, tumtum and androginos. And according to Rav Chisda too, who says shortly “remove tumtum from here,” it says “all of them” on account of the female and the androginos.

אי אמרת בשלמא מיפשט פשיטא ליה - Meaning, that it is a bechor and its blemish is with it; that is why a verse was needed to exclude it. And it is difficult: for this very reason no verse should be needed, since, being blemished, it is unfit for the altar! The Kuntres explained that this is what it means: “that is why a verse was needed to exclude it: although it is male, it is not sanctified with any sanctity if he consecrated it as an olah, and even shearing and work are permitted; and from the first ‘male’ we do not derive its exclusion from sanctity, for regarding a bechor only one ‘male’ is written, and Rabbi Yishmael does not exclude it from shearing, for on account of the blemish it is permitted only to be slaughtered” – until here are his words. And it is difficult for his explanation: an animal blemished from the start is forbidden in shearing and work only rabbinically, as is proven above in the second chapter (Bechoros 14a), where it says: sanctity [for the altar’s value] can be confused with sanctity of the body, [so] the Rabbis decreed about it. There are other explanations of Rashi in which it is written: that is why a verse was needed to exclude it – although it is male, we do not offer it, for its female organ is a blemish. According to this one must say that this verse comes to teach us that in a place of flesh it is a blemish, unlike the expositions of Abaye and Rava above. And he answered that it was needed to exclude it, to teach that it is worse than a blemished animal, for a blemished animal is taken hold of by temurah.^[12] And if you ask: if so, what is [the Gemara] asking, “If you say the Tanna Kamma, it is a doubt, and would a verse come to exclude a doubt?” It was properly needed to exclude it, [to teach] that it is not taken hold of by temurah! For one might think it is taken hold of even if it is female, [like] a female for an asham, which grazes [until blemished], according to the Sages who differ with Rabbi Shimon in Temurah, the chapter Eilu Kodashim (Temurah 19b): since it has sanctity of the body, it implies that it is taken hold of by temurah; and it also makes a temurah with fitting sanctity, like the temurah of the pesach, which is fit though it is not offered, and even so is taken hold of by temurah for a pushed-off sanctity, and grazes. And regarding an androginos, the verse excludes it here even if it is a doubt, because it is neither a complete male nor a complete female. One can answer that this is what [the Gemara] asks: from the fact that a verse, “male,” was needed to exclude it from being offered as an olah, given that it is a doubtful female – for if it were to exclude it from the law of temurah, even if it were female, [the Torah] should not have written an extra [word] in “male,” which implies that it excludes it because it is not a complete male. And if you ask: how does [the Gemara] infer that it is obvious to Rabbi Yishmael? Perhaps it follows other Tannaim who hold that it is male, such as Rabbi Yosi in the chapter Ha’arel (Yevamos 81a): “and an androginos is male,” and there is one who says even regarding eating breast and thigh; and Rabbi Elazar said there that one is liable to stoning for it [as for a male]; or [it follows] the Tannaim of the beraisos shortly, who exclude tumtum and androginos from “the male,” or exclude it from an extra [word]. One can answer that according to what I explained, that it excludes it on account of a blemish, it is well, for it is reasonable to establish it according to Rabbi Yishmael, since it can be established completely according to him.

הזכר הזכרים - And if you ask: even without “the males” one could exclude an androginos from “the male,” as shortly regarding arachin, and in Niddah in the chapter Hamapeles (Niddah 28a) regarding a tumtum and an androginos who saw white or red [discharge]. One can answer that perhaps there are yet other expositions, for many verses are written about the bechor, such as (Shemos 34:19) and all your livestock that is male, and all of them are needed. And as for what we say in the first chapter (Bechoros 9a): “you may even say Rabbi Yosi HaGelili; here it is different, for it is written ‘the males’” [and asks] “let him learn from it,” “the Merciful One excluded with ‘the males’” – while here it applies it to another exposition: one can answer that [that Gemara] does not hold like the later Sages here.

אבל טומטום דברי הכל ספיקא הוא כו' - Rav Chisda does not say that it is sanctified out of doubt for the reason that a verse does not come to exclude a doubt, for regarding a tumtum, some of whom are male and some female, that does not apply, as I explained above; rather, it is not reasonable to him to apply the exclusion to a tumtum, considering it a complete male or a complete female. And Rabbi Yochanan, who differs with Rav Chisda later, holds that it is a creature of its own, and sanctity does not take effect on it even if it is found to be male. And if you ask: why does [the Gemara] not ask against Rav Chisda from that [Mishnah] at the start of [the chapter] Keitzad Ma’arimin (Temurah 24b): if male, it will be offered as an olah, and if female, shelamim, where it says there, if it gave birth to a tumtum or an androginos, sanctity does not take effect on them, and explains there that it holds the offspring of consecrated animals become holy at their birth, for if they were holy in their mother’s womb, the sanctity of their mother would take hold of them. According to Rav Chisda, who says a tumtum is a doubt, a tumtum should be holy even if [offspring] are holy at their birth, for he said explicitly, “if male, it will be offered as an olah, and if female, shelamim.” And although one could say “remove tumtum from here,” why does [the Gemara] ask shortly from beraisos? It should have asked from the Mishnah! One can answer that Rav Chisda explains “sanctity does not take effect on them” [of his words], yet at their birth sanctity falls on them, as with all offspring of consecrated animals, since it is definitely either male or female. And the reason [the Gemara] does not answer there that the sanctity of his mouth does not take effect on them, and establish it with a non-consecrated animal, to which the sanctity of its mother does not apply, is that it understands [the Mishnah] to refer both to a non-consecrated animal and to a consecrated animal, which it is discussing.

Notes

1. 1. In the Mishnah on 41a, Rabbi Yishmael says of an androginos: “You have no blemish greater than this” – that is, it is a bechor, and its female organ is itself its blemish [Bechoros 41a]. An androginos is an animal with both male and female organs. Rava asks whether Rabbi Yishmael is certain that it is a bechor, or only means: even if it is one, it is blemished.
2. 2. A bechor (firstborn male of a kosher animal) may not be shorn or worked, even after it becomes blemished, and one who does so receives lashes. Lashes are given only for a definite violation, so if the androginos is only a doubtful bechor there are no lashes.
3. 3. A doubtful bechor stays with its owner and is eaten by him once blemished, because “the one who seeks to take from his fellow bears the burden of proof”: the kohen cannot take it without proof that it is a bechor.
4. 4. A beraisa in Toras Kohanim. “A male” is said of an olah from cattle, and again of an olah from the flock [Vayikra 1:10]. The first excludes a female; the second, being extra, excludes a tumtum – an animal whose genitals are covered, so its sex is unknown – and an androginos.
5. 5. The Tanna Kamma of the Mishnah rules that a tumtum and an androginos are slaughtered neither in the Mikdash nor in the country, because each is a doubtful bechor. But the Torah does not write a verse to exclude a case of doubt, since before Hashem nothing is in doubt.
6. 6. The “later Sages” are those at the end of the Mishnah, who say that an androginos is not a bechor, because it is a creature of its own. Since for a bechor they exclude a female, a tumtum and an androginos all from a single “male,” they would not need a second “male” here.
7. 7. “The male” – the male you shall sanctify [Devarim 15:19]; “the males” – that you will have, the males are to Hashem [Shemos 13:12]. With two words, one excludes a female and the other the tumtum and androginos, so the beraisa can follow the later Sages after all.
8. 8. The Mishnah’s clause in full: “And the Sages say: It is not a bechor, but it may be shorn and worked.” That is, an androginos has no sanctity of a bechor at all, and may be shorn and worked like an ordinary animal.
9. 9. A tumtum is truly either male or female; only its organs are hidden. So all agree that it is a doubtful bechor and holy out of doubt; the later Sages call only the androginos a creature of its own.
10. 10. Arachin: one who pledges “my value” pays the Mikdash a fixed sum set by the Torah according to age and according to male or female [Vayikra 27:2-7]. Rava objects: if a tumtum is only a doubt, he should be valued as a man or as a woman. The objection continues on the next amud.
11. 11. A koy is a creature about which the Sages were in doubt whether it is a wild animal (chayah) or a domestic animal (behemah).
12. 12. Temurah: one who declares an ordinary animal a substitute for a consecrated one makes both holy. A consecrated animal that is blemished can still be “taken hold of” this way: the animal exchanged for it becomes holy.