046b - יש בכור פרק שמיני בכורות דף מו, ע"ב

Shmuel said: The head does not exempt in the case of nefalim.^[1]

אין הראש פוטר בנפלים - An eight-month child that put out its head alive and withdrew it, and then its brother came out first: [the brother] is a bechor for the kohen, for the head of a nefel does not exempt him until its head and most of its body have emerged.

What is the reason? (Bereishis 7:22) All in whose nostrils was the breath of the spirit of life – wherever the breath of the spirit of life is in its nostrils, its head counts; otherwise its head does not count.

רוח חיים באפיו - One who is viable goes by its nostrils, that is, its head; but if it is not viable, its face does not count.

We learned: One who comes after nefalim whose head emerged alive, and a nine-month child whose head emerged dead.^[2] In any case it teaches “its head”?

קתני מיהא נפל שיצא ראשו - [A nefel whose head emerged] exempts the one who comes after it from the kohen.

What does “its head” mean? Most of it.

Then let it teach “most of it”?

By right it should have taught “most of it,” but since it wanted to teach the latter clause, a nine-month child whose head emerged dead^[3] – [implying:] the reason is that its head emerged dead, but if its head emerged alive, the one after it is not a bechor even for inheritance – it taught “its head” in the first clause too.

איידי דבעי למתני סיפא בן ט' שיצא ראשו מת - For he could not teach “most of it” explicitly, even though [the word “head”] itself means only “most of it.” And he could not teach “most of it” in the latter clause because he wanted us to infer from it: the reason is that its head emerged dead, but if its head emerged alive, the later one is not a bechor even for inheritance, for the head of a nine-month child emerging alive is certainly a birth. Had he taught “most of it emerged dead,” it would imply that if most of it emerged alive the later one is not a bechor even for inheritance; but it would not imply that if its head emerged alive the later one loses the inheritance – whereas we hold that if its head emerged alive it is as born. Therefore he taught “its head” in the first clause and in the latter clause, even though in the latter clause itself, which says “its head dead,” it means only its head and most of it.

And what does it teach us – that once it puts out its head it is a birth?

ומאי קמ"ל - [What does] our Mishnah [teach us]? Granted if you say “its head” is precise, it teaches us that the head of nefalim exempts, and the latter clause was taught on account of the first clause. But if you say “its head” is not precise and the head does not exempt in the case of nefalim, then it teaches us nothing except the inference we draw: the reason is that its head emerged dead, but if its head emerged alive, [the next one] is not a bechor even for inheritance – for once a nine-month child put out its head alive, since it is not a nefel, it is a birth even if it withdrew it.

We have [already] learned: “If it put out its head, even though it withdrew it, it is as born”?^[4]

הא תנינא - In the chapter Beheimah HaMakshah: if a fetus put out its head at the time of its mother’s shechitah, it is as born even if it withdrew it, and it is not permitted through its mother’s shechitah.

And if you say: there it taught us about an animal, and here it teaches us about a person – [for] a person cannot be derived from an animal, since it has no prozdor,^[5] [and] an animal cannot be derived from a person, because its facial form is significant.

בהמה לית ליה פרוזדור - Its womb is not between its thighs; therefore the head counts as birth, since it is exposed. But a woman, whose thighs cover the womb – the head does not count as birth.

This too we have learned?

הא נמי תנינא - Regarding a person, in Maseches Niddah: once most of its head emerged it counts as born, so that even if it withdrew and was not born until after a hundred days, it counts as born from the first day, and we count her days of tumah and taharah^[6] from the first day.

“If it came out in its normal way – from when most of its head emerged. And what is ‘most of its head’? From when its forehead emerges.”^[7]

יצא כדרכו - To exclude where it came out feet first, which certainly does not count as born until most of it emerged.

The refutation of Shmuel is a [conclusive] refutation.

תיובתא דשמואל - For certainly “its head” of nefalim in our Mishnah is precise.

Rabbi Shimon ben Lakish said: The forehead exempts everywhere, except for inheritance.

פדחת - The forehead.

[פוטרת] בכ"מ - For it counts as birth from the emergence of the forehead; and “everywhere” he explains further on.

חוץ מן הנחלה - For the one who comes after it is a bechor for inheritance, unless the face of the first one emerged.

What is the reason?

(Devarim 21) The Torah said: “he shall recognize.”^[8]

דכתיב יכיר - And recognition exists only with the facial form.

And Rabbi Yochanan said: Even for inheritance, everywhere.

אף לנחלה - For the forehead too is a [means of] recognition.

To include what?

To include that which the Rabbis taught: “A convert, the forehead of whose child emerged while she was a gentile,

A gentile woman does not become tamei through niddah, zivah or birth.

and afterwards she converted – we do not give her days of tumah and days of taharah, and she does not bring a birth offering.”^[9]

They raised an objection: “He shall recognize” – this is recognition of the face. And what is recognition of the face? The facial form with the nose.

זו הכרת פנים - For one whose face was recognized first is the bechor for inheritance.

עם החוטם - And this is difficult for Rabbi Yochanan.

Teach: “up to the nose.”

Come and hear: We do not testify

אין מעידין - To permit his wife to remarry, for perhaps it is not he.

except on the facial form with the nose?^[10]

Teach: “up to the nose.”

Come and hear: The forehead without the facial form, the facial form without the forehead – we do not testify, until both are there, with the nose.

And Abaye said, and some say Rav Kahana: What is the verse? (Yeshayahu 3:9) “The recognition of their faces testifies against them”?

הכרת פניהם ענתה בם - For the recognition of their facial form is their testimony; evidently the facial form is required. And the plain meaning of the verse is written about adulterers: the recognition of the children’s faces testifies against the adulterers, for the Holy One, blessed be He, forms the mamzer in the likeness of the adulterer’s face.

Testimony concerning a woman is different, for the Rabbis were stringent about it.

But were they stringent? Have we not learned: [יבמות קכב, א] “They were accustomed to permit [remarriage] on a witness from the mouth of a witness, from the mouth of a woman, from the mouth of a slave, from the mouth of a maidservant”?^[11]

When the Rabbis were lenient, it was at its end; at its beginning the Rabbis were not lenient.

בסופה - After they had identified him well – at this the Sages were lenient at the end of their testimony, to accept them even from a slave or a maidservant.

אבל בתחלה - The beginning of the testimony, that is, seeing the dead man – they were not lenient until they recognize him well.

And if you wish, say:^[12]

Tosfos

ואיידי דבעי למיתני סיפא בן ט' כו' - From [the first clause] itself he could have said that it said “its head” because it implies only a nefel, but [after] a viable one, the one who comes after it is not a bechor even for inheritance; but from the latter clause he infers it more simply.

דאדם מבהמה לא יליף דלית לה פרוזדור - The prozdor here, and at the beginning of Beheimah HaMakshah (Chullin 68a), and in Shabbos, chapter Amar Rabbi Akiva (86b), are the same, and it is not like that of chapter Yotzei Dofen (Niddah 42b), [which says] that once a child put its head outside the prozdor it is as born. For if [it meant] the prozdor there, what could we say here – how can the prozdor hold back the birth once the head is outside it? Rather, the prozdor there is the outer chamber, and the prozdor here is the thickness of the thighs that cover the womb between the thighs, and I would have thought that the head does not count as birth upon leaving the womb. And it is no wonder that the term is the same and its meaning is not the same, for we find likewise above in chapter HaLokei’ach Beheimah (20a) that a tinuf exempts from bechorah,^[13] since it counts as offspring, and it is not like the tinuf of chapter HaMapeles (Niddah 29a), that most women giving birth soil.

תיובתא דשמואל - He could not have challenged Shmuel from what we learned in chapter Beheimah HaMakshah (Chullin 77a): an afterbirth part of which emerged is forbidden to eat^[14] – from which we infer there at the beginning of the chapter (68a) that a birth is by the emergence of the head, since we forbid it when part emerged, lest the head be in that part – because that applies only to an animal, but about a person we learn nothing from there. For what it teaches in the latter clause, “as the sign of offspring in a woman, so is the sign of offspring in an animal,” refers to the afterbirth, that it is a sign of offspring. And one should not ask: how does [the Gemara] in Beheimah HaMakshah infer from it that by the emergence of the head it is as born – perhaps it is forbidden because we decree part of it on account of most of it, as it says in the first chapter of Bava Kamma (11a)? For if the emergence of the head were not a birth, it would not be fitting to decree, since with part of it, it could never come to be considered a birth. And if you ask: since Shmuel was refuted, what is that which it says in chapter HaMapeles (Niddah 26a) regarding the sandal,^[15] “a child that has life – once its head comes out it is a birth; a sandal – not until most of it comes out”? Even without the reason of life, even dead ones the head exempts! One may answer that “life” is not precise, but [it means] fit for life; and since it used that expression earlier there, “a child that has life clings and does not come out; a sandal, which has no life, slips and comes out,” it used it afterwards too. And some books read there: “a child that has life – once most of it comes out; a sandal – not until all of it comes out”; and one may explain that the “most of it” it says means most of the head. And some read explicitly: “most of the head came out.” And what we say there in chapter HaMapeles (29a) in our sugya – that if it came out cut up or reversed, [once most of it emerged it is as born]; thus [if it came out] properly, the head exempts; Rabbi Yosei says: once it came out properly for life – [is] not as Rabbeinu Chananel^[16] explained, that “for life” means viable, for even with nefalim the head exempts, since Shmuel was refuted here; but rather as the Kuntres^[17] explained there: “properly for life” – whole, to exclude one cut up.

מאי טעמא יכיר כתיב - It is puzzling: in chapter Asarah Yuchasin (Kiddushin 78b) and in chapter Yesh Nochalin (Bava Basra 127b) it strains, according to the Rabbis who differ with Rabbi Yehudah, [to explain] why “yakir” is needed – let it say that it is needed for what we expound here, for even Rabbi Yochanan does not disagree, since he says “even for inheritance” because he holds that the forehead too is recognition. And it also strains in Yesh Nochalin (ibid.), according to Rabbi Meir who says a person can transfer etc., that “yakir” comes for property that fell to him while he was a goses. One may answer that there the word “yakir” was difficult for it, since it implies that there is power in the father’s recognition.

לאתויי הא דת"ר גיורת שיצא פדחת ולדה כו' - And if you ask: what novelty is there in this matter more than the other things in which [the child] counts as born, such as binding his brother’s wife to yibum and exempting from yibum, and that one who kills it is liable, and the other things taught in chapter Yotzei Dofen (Niddah 43b)? One may answer that it was needed here to teach us, for one might have thought: even though the emergence of the head counts as birth, nevertheless the birth of the rest of the body, which came out afterwards in holiness, also counts as a birth, and we should give her days of tumah and days of taharah.

מאי קראה הכרת פניהם ענתה בם - The Kuntres explained that the recognition of their facial form is their testimony; evidently the facial form too is required. But it is puzzling, for in Yevamos (120a, and there s.v. Hakaras) it brings the verse “the recognition of their faces testifies against them,” implying that there is something in a person by which the face is recognized, and that is the forehead, since the nose is included in the facial form. And there in Yevamos (ibid.), after this verse, it brings the incident of Abba bar Marta, from whom the Exilarch’s household were claiming money: he brought wax, stuck it on a rag, stuck it on his forehead, passed before them, and they did not recognize him.

Notes

1. 1. A nefel is a non-viable fetus, such as one born in the eighth month. A “bechor for inheritance” is the father’s firstborn son, who takes a double portion; a “bechor for the kohen” is the mother’s first issue that “opens the womb,” who must be redeemed for five sela’im.
2. 2. Our Mishnah (Bechoros 46a) lists one who comes after nefalim whose head emerged alive, and after a nine-month child whose head emerged dead, among those who are a bechor for inheritance but not for the kohen: the earlier birth already “opened the womb,” but it was not the father’s “first of his strength.”
3. 3. In the latter clause the full-term child was born dead, so it was never the father’s living son; hence the son after it is still firstborn for inheritance, though not for the kohen.
4. 4. Mishnah Chullin 68a. A fetus found inside an animal that was slaughtered is permitted through its mother’s shechitah. If before the shechitah it put out its head, it counts as born and is not permitted by its mother’s shechitah.
5. 5. Prozdor, literally “corridor.” Here, per Rashi, it is the thighs that cover a woman’s womb: since the birth is hidden, the head’s emergence might not count as birth in a woman, whereas an animal’s womb is exposed.
6. 6. After bearing a boy a woman is tamei for seven days, followed by thirty-three “days of purity” in which blood she sees does not make her tamei; for a girl, fourteen and sixty-six.
7. 7. Mishnah Niddah 28a, on when a child counts as born for the mother’s tumas leidah: one born head-first counts as born once most of its head, that is its forehead, has emerged.
8. 8. Devarim 21:17: “For he shall recognize (yakir) the firstborn, the son of the hated one, to give him a double portion.” The Gemara reads yakir as recognition of the face: the firstborn for inheritance is the one whose face was seen first.
9. 9. A gentile woman is not subject to tumas leidah (Rashi). If the child’s forehead emerged before she converted, the birth already took place while she was a gentile, so afterwards she counts no days of tumah and taharah and brings no korban yoledes, the offering brought after childbirth (Vayikra 12).
10. 10. Mishnah Yevamos 120a. Testimony that a husband died, which permits his wife to remarry, is accepted only when the witnesses recognized his face including the nose; otherwise perhaps it was someone else.
11. 11. Mishnah Yevamos 122a. To free a woman from being an agunah the Sages relaxed the rules of testimony, accepting a single witness, hearsay from another witness, and even a woman, a slave or a maidservant, who are not valid witnesses elsewhere.
12. 12. The Gemara’s second answer continues on the next amud (Bechoros 47a).
13. 13. Tinuf: above (Bechoros 20a) a clot of blood discharged by an animal, which counts as offspring and exempts from bechorah; in Niddah 29a it means the soiling that most women have before giving birth.
14. 14. Shilya: the afterbirth, the sac in which the fetus lies. If part of it emerged before the shechitah it is forbidden to eat, lest the fetus was in it.
15. 15. Sandal: a flat, shapeless fetus, usually born together with a living twin.
16. 16. Rabbeinu Chananel of Kairouan (11th century), one of the earliest commentators on the Talmud.
17. 17. “The Kuntres” (booklet) is what the Tosfos call Rashi’s commentary.