046a - יש בכור פרק שמיני בכורות דף מו, ע"א

[… we make] him [vow] on the knowledge of the many.^[1]

Amemar said: The halachah is that even according to the one who says that a vow made in public can be released, [a vow made] on the knowledge of the many cannot be released.^[2]

And this applies to an optional matter, but for a matter of mitzvah it can be released.^[3]

והני מילי - that a vow made on the knowledge of the many cannot be released.

As in the case of that teacher of young children,^[4] whom Rav Acha made vow

דאדריה רב אחא - that he would no longer teach children.

because he was negligent with the children,

פשע בינוקי - he would beat them, and they died.

and Ravina reinstated him, since no one was found who was as meticulous as he.^[5]

"And one who makes himself tamei to the dead, etc."^[6] Why is it different here, that acceptance is enough for him,

בקבלה - without a vow. Regarding women, his inclination overpowers him; that is why we make him vow.

and why is it different there, that we make him vow?

There, his inclination overpowers him.

We will return to you, Mumin Elu

Chapter Eight – Yesh Bechor

MISHNAH

There is one who is a firstborn for inheritance^[7]

בכור לנחלה - to take a double portion.

but is not a firstborn for the kohen;

לכהן - to give the kohen his redemption, five sela'im.

a firstborn for the kohen but not a firstborn for inheritance;

a firstborn for inheritance and for the kohen;

and there is one who is a firstborn neither for inheritance nor for the kohen.

Which is a firstborn for inheritance but not a firstborn for the kohen?

One who comes after nefalim, even if [the nefel] put out its head alive;^[8]

הבא אחר נפלים - where the head of a nefel came out alive. For example, there were twins, one a nefel and one whose months were complete; the nefel put its head out alive and drew it back, and its brother came and went first and came out – this last one is a firstborn for inheritance, for the first did not make him lose it. And although the head that it put out counts as a proper birth – what is the reason? Regarding inheritance it is written "the first of his strength": one over whom his father's heart grieves if he dies. The nefel that put its head out first, though it counts as born, is not viable, and [the father's] heart does not grieve over it. But regarding the kohen, this last child is exempt, since the matter depends on opening the womb, and the first opened the womb.

and a nine-month child whose head came out dead;

ובן ט' שיצא ראשו מת - and [the mother] drew it back and its brother came out – [the brother] is a firstborn for inheritance, for the first does not count, since the [father's] heart does not grieve over it; but regarding the kohen, it opened the womb. But if the nine-month child came out first alive, and afterwards [the mother] drew it back and it died, the one who comes after it is not a firstborn even for inheritance.

one whose wife miscarried a form like an animal, a beast or a bird – these are the words of Rabbi Meir.

וכן המפלת בהמה כו' - to exempt from [the law of] inheritance they do not count, for the heart does not grieve over them; but they do open the womb.

And the Sages say: [it does not count] unless it has something of human form.

עד שיהא בו מצורת האדם - [if not,] it does not count as opening the womb, and the one who comes after it is a firstborn even for the kohen.

One whose wife miscarried a sandal,^[9]

סנדל - which has no facial form.

or an afterbirth,

או שליא - for there is no afterbirth without a child, only that it dissolved; yet it opens the womb.

or a formed sac,^[10]

שפיר - the actual skin of the fetus.

מרוקם - it is explained in Maseches Niddah, in [Perek] HaMapeles (25a), what the forming of a sac is.

and one that came out cut up –

מחותך - limb by limb, and it came out, etc. – this opens the womb; but a cut-up head does not open it. If its brother went ahead and came out before most of the limbs of the cut-up one came out, these too are firstborn for the kohen.

the one who comes after them is a firstborn for inheritance but is not a firstborn for the kohen.

One who had no sons and married a woman who had already given birth;

שכבר ילדה כו' - for regarding inheritance the matter depends on the father, as it is written (Devarim 21) "the first of his strength"; and regarding the kohen, [on] opening the womb.

she was still a maidservant and was freed;

עודה שפחה - even if she was still a maidservant at the first birth, and now she was freed.

she was still a gentile and converted – [and] when she came to Israel she gave birth:

עובדת כוכבים ונתגיירה - and when she came into the hands of a Jew she gave birth – he too is a firstborn for inheritance, since this man had no sons, but not for the kohen, since he does not open the womb.

he is a firstborn for inheritance but is not a firstborn for the kohen.

Rabbi Yosi HaGelili says: a firstborn for inheritance and for the kohen,

לנחלה ולכהן - for the children born to her while she was a gentile do not exempt.

as it says (Shemos 13:2): "that opens the womb among the Children of Israel"^[11] – [it is not counted] until they open the womb from Israel.

One who had sons and married a woman who had not given birth;

she converted while pregnant, she was freed while pregnant, and gave birth –

נתגיירה מעוברת - and her husband [converted] with her, and she gave birth – that child is a firstborn for the kohen, since he opened the womb in Israel, but not for inheritance, since he was conceived not in holiness and is not fit for inheritance; and the Torah disregarded the seed of an Egyptian, as it is written (Yechezkel 23): "and whose issue is like the issue of horses."^[12]

she and a kohenes,^[13]

היא וכהנת - that is, an Israelite woman giving birth for the first time who gave birth together with a kohenes giving birth for the first time, and it is not known which child is the Israelite's.

she and a Leviyah,

או היא ולויה - for the son of a Leviyah too is exempt from the five sela'im, as we said in the first chapter.

she and a woman who had already given birth;

או היא ואשה שכבר ילדה - and it is not known whose son is the firstborn for the kohen. The novelty it teaches us is that the husband of the woman giving birth for the first time is obligated [to give] five sela'im to the kohen, for the male child is his wherever he is; but not for inheritance, since it is not known whose son he is.

and likewise one who did not wait three months after her husband,^[14] and married and gave birth, and it is not known whether [the child] is a nine-month child of the first or a seven-month child of the last –

וכן מי שלא שהתה כו' - he too is a firstborn for the kohen, and he redeems himself; but not for inheritance, since it is not known whom he inherits. And in the Gemara it asks that he is not even [an ordinary son, who inherits as] a pashut.

– [such a child] is a firstborn for the kohen but is not a firstborn for inheritance.

אמר אמימר הלכתא אפי' למ"ד כו' - In Perek HaSholei'ach (Gittin 36a) he reads "The halachah is: even according to the one who says, etc."; and in Makkos (16a) most texts read "The halachah is: a vow made in public can be released." And even according to our reading, "even according to the one who says a vow made in public" – meaning he did not now come to rule on a vow made in public – one can still infer: since he needed to rule that [a vow] on the knowledge of the many cannot be released according to all, it follows that he holds that [a vow made] in public can be released. For if it could not be released, all the more so [a vow] on the knowledge of the many; and [then], not in the language of a ruling, he should have said "even according to the one who says." And although we concluded in Perek HaSholei'ach (Gittin 35b), according to Rav Nachman, that we make him vow in public – which implies that he holds so, and we rule like him in monetary law, and the question was asked about [practical] law – it asks after that "This works well according to the one who says, etc.", and that does not refer only to the Mishnah of our chapter that is brought there, but refers also to Rav Nachman. From the fact that Rav Acha too made that teacher of children vow on the knowledge of the many, it implies that he holds [a vow made] in public can be released; for it is not reasonable to say that he needed "on the knowledge of the many" and did not make him vow in public because there were not many people available before him. And Rav Yosef, who said in Arvei Pesachim (Pesachim 107a) "(I said) [I vowed] in public not to drink beer," which implies that he holds [a vow made] in public cannot be released – we do not hold so.

אבל לדבר מצוה יש לו הפרה - Rabbeinu Tam says: [this is] because presumably the many are agreeable. And Rabbeinu Tam further said that "on the knowledge of the [many]" means when he specifies "on the knowledge of so-and-so and so-and-so," even not in their presence; but "on the knowledge of the [many]" without specifying is nothing. And [a vow] on the knowledge of an individual, even if he specified [that it is] on his knowledge, a sage can release.

מתני' יש בכור לנחלה כו' איזהו בכור לנחלה כו' - Here [the Mishnah] takes up the [case] it opened with; and sometimes it takes up the one it finished with, as is explained at the beginning of Nedarim (2b).

המפלת סנדל כו' - In Perek HaMapeles (Niddah 26a) it explains: "The sandal that we learned regarding bechoros – for what halachah? For the one who comes after it, etc." And if you ask: what is the novelty? It is taught explicitly here! One can answer: one might have thought that "the one who comes after it" in our Mishnah here means the one born in a later pregnancy, and not the one that is with the sandal, since usually it is born before the sandal. That is why it asks "for what halachah?" – let me derive it [simply], since he comes after the child that is with the sandal, for there is no sandal without a child with it. And it explains that [the Mishnah] is needed for that very child born with the sandal, for sometimes it comes after the sandal.

והיוצא מחותך - Rashi explained that most of the limbs [coming out] cut up open the womb, but a head does not open [the womb] when cut up. This matter is a dispute of Amoraim in Perek HaMapeles (Niddah 29a), for Rabbi Yochanan holds there that even a cut-up head exempts.

נתגיירה מעוברת - Rashi explained: and her husband [converted] with her, and she gave birth – that child is a firstborn for the kohen, since he opened the womb in Israel, but not for inheritance, since he was conceived not in holiness and is not fit for inheritance, for the Torah disregarded the seed of an Egyptian, as it is written "and whose issue is like the issue of horses." But he gave this reason needlessly, for even without it he is not fit for inheritance, because a convert who converted is like a newborn child,^[15] and his father is not considered [his father]. And although while he was an Egyptian his father was considered [his father] regarding inheritance, and we do not say that the Torah disregarded his seed in this respect – for an Egyptian inherits his father by Torah law – nevertheless in Perek Nos'in Al HaAnusah (Yevamos 98a) we say: what the Rabbis said, "an Egyptian has no father," is not because they are steeped in lewdness and [the father] is not known; for [there are] two twin brothers who were one drop that split in two, and it teaches "and they are not liable on account of a brother's wife" – learn from it that the Torah disregarded the seed of an Egyptian. So one needs the reason that He disregarded [it] even though they converted, and the reason that he is like a newborn child does not suffice; and this is astonishing. One can answer: if not for the reason that He disregarded his seed, we would have had to forbid [the brothers] to marry each other's wives, because people would come to confuse it with Jews; and there it implies there is not even a prohibition, and "they are not liable" is not precise. And we would also have had to require chalitzah, yet there it teaches "they neither perform chalitzah nor yibum."

Notes

1. 1. Continued from the previous amud (Bechoros 45b). The Mishnah there says that a kohen who married a woman forbidden to him is disqualified from the service until he vows to derive no benefit from her. The Gemara asked: why not fear that he will go to a sage and have the vow released? The answer: we make him vow "on the knowledge of the many," and such a vow cannot be released by a sage.
2. 2. "Release" here means release by a sage. A vow "in public" is made in the presence of many people; a vow "on the knowledge of the many" is made dependent on their consent, so it can be released only with their agreement.
3. 3. A vow touching a mitzvah – for example, a vow not to do a mitzvah – can be released even if it was made on the knowledge of the many, because presumably the many agree to it (Tosfos in the name of Rabbeinu Tam).
4. 4. מקרי דרדקי – a teacher of young children.
5. 5. Ravina released the vow and reinstated him even though it had been made on the knowledge of the many, because teaching Torah to children is a mitzvah. This story illustrates Amemar's ruling.
6. 6. The Mishnah (Bechoros 45b) teaches that a kohen who makes himself tamei to the dead is disqualified from the service until he accepts upon himself not to do so again, whereas one who married women forbidden to him must vow to derive no benefit from her.
7. 7. Two separate laws apply to a firstborn son. The firstborn for inheritance takes a double portion of his father's estate; this depends on the father, "the first of his strength" (Devarim 21:17). The firstborn for the kohen must be redeemed with five sela'im (pidyon haben); this depends on the mother, "that opens the womb" (Bamidbar 18:15–16).
8. 8. A nefel is a non-viable birth. The emergence of the head counts as birth, so it has "opened the womb"; but the father's heart does not grieve over it, so it is not "the first of his strength."
9. 9. A sandal is a fetus that was crushed flat into the shape of a fish called a sandal, with no facial form; a sandal always comes together with a twin (Tosfos).
10. 10. A shafir is the sac in which the fetus lies; "formed" means that the fetus has already taken shape in it. This is explained in Niddah 25a.
11. 11. Shemos 13:2. Rabbi Yosi HaGelili reads "among the Children of Israel" as requiring the womb to be opened in Israel. Children she bore as a gentile did not open the womb in Israel, so the one after them is a firstborn even for the kohen.
12. 12. That is, the Torah does not trace a gentile's offspring to his father. So a child conceived before conversion does not inherit his father who converted.
13. 13. The son of a kohenes or of a Leviyah is exempt from pidyon haben. When their babies are mixed up with the Israelite woman's, it is not known which child is the Israelite woman's firstborn.
14. 14. A woman must wait three months before remarrying (havchanah), so that it can be seen whether she was pregnant by the first husband. If she did not wait, it is in doubt whose son the child is.
15. 15. A convert is regarded as a newborn child: for lineage he is as if just born, with no legal relation to his father and family from before his conversion.