056b - מעשר בהמה פרק תשיעי בכורות דף נו, ע"ב

But let [the harlot] herself tithe it!^[1]

ותיעשריה איהי - Since he gave it to her [while it was] in its mother’s womb, it is not disqualified on account of “given as a gift”,^[2] and it would be eaten with its blemish if the ethnan came out tenth; why do I need [the case where] he bought it back?

[The case is] with a gentile harlot.^[3]

But let [the beraisa] set it with a Jewish harlot, and let her tithe it herself!

It teaches us that [the fee of] a Jewish harlot is not ethnan.^[4]

הא קמ"ל - This beraisa, [which teaches] that this ethnan is not subject to tithing, [speaks of] a gentile harlot, [whose fee] is called ethnan; but if it were a Jewish harlot, it is not called ethnan, and [her fee] is permitted even for the altar.

As [taught by] Abaye, for Abaye said: A gentile harlot – her fee is forbidden, and a kohen who has relations with her is not lashed on account of “he shall not profane his seed”; a Jewish harlot – her fee is permitted, and a kohen who has relations with her is lashed on account of “he shall not profane his seed.”^[5]

“A gentile harlot – her fee is forbidden”:^[6] he derives “abomination” (Vayikra 18) [and] “abomination” (Devarim 23) from the forbidden relations.

Regarding the forbidden relations it is written: “of all these abominations”; and regarding ethnan it is written: “for it is an abomination of Hashem,” etc.

Just as the forbidden relations are those with whom kiddushin does not take effect, so too a harlot [means] one with whom kiddushin does not take effect.^[7]

מה עריות לא תפסי בהו קדושי - For they are [unions] liable to kares, and all agree that kiddushin does not take effect with those liable to kares, for there is no mamzer except from those liable to kares,^[8] in Maseches Yevamos (49a).

“And a kohen who has relations with her is not lashed on account of (Vayikra 21) he shall not profane his seed”:^[9] for the Merciful One said “he shall not profane his seed,” and this [child] is not his seed.

לאו זרעו הוא - For the child follows the gentile woman, [as taught] in the second perek of Yevamos (23a): “Your son from a Jewish woman is called your son, but your son from a gentile woman is not called your son, but her son.”

Mishnah

Brothers and partners who are obligated in kalbon^[10] are exempt from maaser beheimah;

מתני' האחין שהן שותפין כשהן חייבין בקלבון - As is explained below: where they divided their father’s property and afterwards became partners. If they weigh out a whole sela – that is, their two half-shekels together – each one is obligated to give a small ma’ah as kalbon, for they are two [separate] holdings, and they are like other people: whoever weighs out his shekel gives a kalbon with it. It is a kalbon as a makeweight; and some say, for the exchange, since two halves of a sela are not exchanged for a sela without a small exchange fee. And since most people each give half a sela with its kalbon, when two join and give a whole sela, they too give a second kalbon. And these brothers here, who divided and then became partners again, are like ordinary partners and are obligated in a second kalbon.

פטורין ממעשר בהמה - All the days of their partnership, always, as is taught in the beraisa in the Gemara: “It shall be yours – and not of a partnership.”

[when] they are obligated in maaser beheimah, they are exempt from kalbon.

וכשחייבין במעשר בהמה - For example, where they did not divide, and the estate,^[11] their father’s inheritance, still stands, so that they are not [counted] as a partnership, as it says in the Gemara: “One might think even if they acquired from the estate – the Torah says: ‘it shall be’”; evidently they are like their father.

פטורין מן הקלבון - [From] a second [kalbon], if they give a whole sela between the two of them, for the property stands in their father’s place; and had their father given a sela for his two sons, he would not give a kalbon for the exchange, since it is always the way that one who owes two half-shekels gives a whole shekel; and it is not like two people who join their two half-selas into a whole sela.

If they acquired [the animals] from the estate, they are obligated; and if not, they are exempt.

קנו בתפיסת הבית חייבין - In maaser beheimah, as we say in the Gemara. And this “acquired” does not mean they bought with money, but that they acquired, in that animals fell to them from their father.

If they divided, and then became partners again, they are obligated in kalbon and exempt from maaser beheimah.^[12]

חלקו וחזרו ונשתתפו - They are like ordinary partners, and are exempt from maaser beheimah and obligated in kalbon.

Gemara

The Rabbis taught: (Bamidbar 18) “It shall be yours” – and not of a partnership.^[13]

גמ' יהיה לך - (The males) “which shall be yours” (the males).

ולא של שותפות - For it implies: what is exclusively yours you give, and not of a partnership.

One might think: even if they acquired from the estate? The Torah says: “it shall be.”^[14]

יהיה - In any case.

But this is written about a firstborn!^[15]

If it is not needed for the firstborn – for that applies in a partnership, as it is written (Devarim 12): “and the firstborn of your cattle and of your flocks” – apply it to maaser beheimah.^[16]

ובכורות בקרכם - It is plural; it implies that it speaks to two [owners]: “your cattle.”

Rabbi Yirmiyah said:^[17] Sometimes they are obligated in both this and that; sometimes they are exempt from both this and that; sometimes they are obligated in kalbon and exempt from maaser beheimah; and sometimes they are obligated in maaser beheimah and exempt from kalbon.

בזה ובזה - In kalbon and in [animal] tithe.

Obligated in both: where they divided the money and did not divide the animals.

שחלקו בכספים - And then became partners again, and did not divide the animals; for regarding kalbon they are like other partners, and regarding the animals it is still the estate.

Exempt from both: where they divided the animals and did not divide the money.

Obligated in kalbon and exempt from maaser beheimah: where they divided both this and that.

Obligated in maaser beheimah and exempt from kalbon: where they divided neither this nor that.

This is obvious!^[18]

[The case where] “they divided the animals and did not divide the money”^[19] was needed by him.

חלקו בבהמה ולא חלקו בכספים - Since it is a leniency, that they are exempt from both, he needed to teach it to us. I might have thought: since they divided the animals, let us go to the stringent side and say they have revealed their intention that they stand to divide the property as well, and let them be obligated in kalbon.

You might have thought: since they divided the animals, they have revealed their intention that they stand to divide [everything], so let them be obligated in kalbon –

it teaches us [otherwise].

Rav Anan said:^[20] They taught this only where they divided kids against grown goats and grown goats against kids.

לא שנו - That it is a partnership exempting them from maaser beheimah when they rejoined – except where they divided by appraisal.

גדיים כנגד תיישים ותיישים כנגד גדיים - According to their value; for there one cannot say “this is his share that came to him from the death of their father,” for certainly at the time of death this one acquired half the kids and half the grown goats, and that one half the kids and the grown goats; therefore now it is a purchase, this one buying from that one; and the young present at the time of the division are exempt from maaser beheimah as purchased, and those yet to come are exempt because of partnership.

But if they divided kids against kids and grown goats against grown goats, one says: this is his share that was due to him from the first moment.^[21]

אבל חלקו גדיים כנגד גדיים ותיישים כנגד תיישים - We say bereira: this is the share that came to each one from the death of his father, and it is still an inheritance and bears the name of inheritance; and when they rejoined, the estate returns as at the start, and it is not a partnership. Therefore the young present at the time of the division are not exempt as purchased, nor are those yet to come exempt because of partnership.

And Rav Nachman said: Even if they divided kids against kids and grown goats against grown goats, one does not say: this is his share that was due to him from the first moment.^[22]

אפילו חלקו כו' - There is no bereira; from the start they are purchasers, and then partners.

And Rabbi Elazar said:^[23] They taught this only where they divided nine against ten and ten against nine.

Rabbi Elazar and Rabbi Yochanan disagree [along the lines of] the dispute of Rav Anan and Rav Nachman.

ט' - Nine large [animals] against ten lesser ones, which is appraisal, and one cannot say bereira.

But if they divided nine against nine and ten against ten, one says: this is his share that was due to him from the first moment.

And Rabbi Yochanan said: Even if they divided nine against nine and ten against ten, one does not say: this is his share that was due to him from the first moment.^[24]

Tosfos

זונה ישראלית אתננה מותר וכהן הבא עליה כו' - And if you will ask: but Rava said in Perek Merubah (Bava Kamma 70b) that “the Torah forbade ethnan even if he came upon his mother”; and in Temurah it is taught: “[Rebbi] (Reish Lakish) says: there is no ethnan except where it comes to him through a transgression, but the fee of his wife who is a niddah,” etc. One can answer: [our sugya] does not speak of where she stands under the prohibition of an ervah; it speaks specifically of [a woman] with whom kiddushin takes effect, as it explains the reason – that this is why her fee is permitted. And that a kohen who has relations with her is lashed – [it speaks] of a convert or a freed maidservant, who is a zonah, or who became a zonah through another man who was forbidden to her under kares: once he came upon her, he made her a zonah; or according to the one who says that an unmarried man who comes upon an unmarried woman not for the sake of marriage makes her a zonah.^[25] And as for the implication that with a Jewish harlot [the case of] “let her tithe it herself” cannot be found – one could have found it with an ervah; but it comes to teach us that a Jewish harlot’s fee is permitted. [And if you will ask:] according to Rava, who said in the last perek of Temurah (29b) that both a gentile harlot and a Jewish harlot – her fee is forbidden, the beraisa is difficult! One can answer: it was not taught in the academy of Rabbi Chiya and Rabbi Oshaya.^[26] Alternatively, he could have said that [the case of] “let her tithe it herself” can indeed be found, but it teaches us [the law of] a purchase in the mother’s womb, like Rabbi Yochanan. Yet this novelty too we learn from “let her tithe it herself,” when he gives it to her in its mother’s womb and it is not exempt on account of purchase or of having been given as a gift.

מה עריות דלא תפסי בהו קדושין כו' - This is puzzling: since we learn from the forbidden relations, he should have excluded a gentile harlot! For we require [a case] like the forbidden relations, where kiddushin does not take effect for him but does take effect for others – which excludes a gentile harlot, with whom kiddushin takes effect neither for him nor for others; as it says in Perek HaCholetz (Yevamos 45a), according to the one who says that “a gentile or a slave who comes upon a Jewish woman – the child is kosher,”^[27] because it is not like the forbidden relations, for this very reason. And Rava himself, who holds [ethnan applies] to a gentile harlot in the last perek of Temurah (29b), holds in Perek HaCholetz (Yevamos 45b) that the child is kosher. One can answer: regarding a gentile harlot, since kiddushin does not take effect with her at all, all the more so does it bring upon her the name of harlotry; but regarding mamzerus, the child cannot be a mamzer, since she is no more fit for another man than for this one.

דהא איתיה בשותפות - As it is written: “and the firstborn of your cattle and of your flocks.” At the beginning of our masechta I explained why this verse is needed: let him derive it from the fact that [a verse] was needed to exclude a partnership with a gentile.^[28]

Notes

1. 1. This continues the sugya from the previous amud [Bechoros 56a]. A beraisa there taught that an ethnan – an animal given to a harlot as her fee – enters the pen to be tithed when he gave it to her and then bought it back from her. The Gemara objected that a bought animal is exempt from maaser beheimah, and answered with Rabbi Yochanan’s ruling that animals bought while still in their mother’s womb are tithed. The question now assumes that, if so, the harlot who received it in the womb could tithe it herself, and the buy-back is not needed.
2. 2. An animal that was bought or received as a gift is exempt from maaser beheimah. Rashi notes that since this gift was made while the animal was in its mother’s womb, it does not exempt it, just as Rabbi Yochanan said of a purchase in the womb. An ethnan that comes out tenth is holy, but since it is unfit for the altar, it is eaten by its owner once it has a blemish.
3. 3. A gentile is not obligated in maaser beheimah, so a gentile harlot cannot tithe the animal herself; only once the Jew buys it back can it enter his pen to be tithed.
4. 4. Ethnan: the Torah forbids bringing a harlot’s fee as an offering: “You shall not bring the fee of a harlot… for it is an abomination of Hashem” (Devarim 23:19). The beraisa speaks of a gentile harlot, to teach that the fee of a Jewish harlot is not ethnan at all.
5. 5. Abaye was a leading Amora of Pumbedisa. “He shall not profane his seed” (Vayikra 21:15) is the basis on which a kohen who lives with a zonah is lashed, since his children from her are chalalim, unfit for kehunah. Abaye’s two rulings run in opposite directions: for a gentile harlot the fee is forbidden but the kohen is not lashed; for a Jewish harlot the fee is permitted but the kohen is lashed.
6. 6. The clause means that the prohibition of ethnan applies to a gentile harlot. The Gemara gives its source: a gezeirah shavah, a link between two passages that use the same word. Ethnan is called an “abomination” (Devarim 23:19), and so are the forbidden relations, “of all these abominations” (Vayikra 18:29), as Rashi explains. So ethnan is defined by the forbidden relations.
7. 7. Kiddushin (betrothal) does not take effect with the forbidden relations, nor between a Jew and a gentile. A gentile harlot is therefore like the forbidden relations, and her fee is ethnan; with an unmarried Jewish harlot kiddushin does take effect, so her fee is not ethnan.
8. 8. A mamzer is a child of a forbidden union, who may not marry into the community (Devarim 23:3). In Yevamos (49a) the view is taught that a mamzer is born only of a union liable to kares; Rashi brings it to show that kiddushin cannot take effect in such unions.
9. 9. The clause means that a kohen who lives with a gentile harlot is not lashed. “He shall not profane his seed” forbids him to father chalalim, children unfit for kehunah; but a child born of a gentile woman follows his mother and is not counted as his child at all (Yevamos 23a, cited by Rashi), so there is no “seed” of his to profane.
10. 10. Kalbon is a small surcharge added to the half-shekel that every Jew gave each year for the communal offerings. Rashi gives two reasons for it: a makeweight to make up full weight, or a fee for changing coins. Two people who pay one whole sela together each owe a kalbon. The same Mishnah is taught in Shekalim (1:7).
11. 11. Tefisas habayis, “the holding of the house,” is the father’s estate held undivided by his heirs. As long as it stands, the brothers are treated as their father, one owner, and not as a partnership.
12. 12. Once the brothers divide, each owns his share as a separate person; if they then pool their animals again, they are ordinary partners, and the inheritance status is gone. Whether a division makes them purchasers is the dispute at the end of the amud.
13. 13. Rashi quotes the verse on firstborn animals, “which shall be yours, the males” (Shemos 13:12). “Yours” is read as “exclusively yours,” which excludes animals owned in partnership.
14. 14. “One might think” raises a possible exemption: heirs who have not yet divided might also count as partners. The extra word “it shall be” includes them in any case, so the undivided estate is liable.
15. 15. The question: the verse “it shall be yours” speaks of the firstborn, not of maaser beheimah; how can a law of maaser be learned from it?
16. 16. Im eino inyan: when a verse is not needed for its own subject, its teaching is applied to a related subject. The firstborn law applies even to animals owned in partnership, as the plural “your cattle and your flocks” (Devarim 12:6) shows, so “and not of a partnership” cannot refer to the firstborn and is applied to maaser beheimah.
17. 17. Rabbi Yirmiyah was an Amora who went up from Bavel to Eretz Yisrael. He lists the four combinations of the Mishnah’s two laws: kalbon depends on whether the money was divided, and maaser beheimah on whether the animals were.
18. 18. The question assumes that all four cases follow simply from the Mishnah: dividing the money makes them ordinary partners for kalbon, and dividing the animals makes them partners for maaser.
19. 19. The clause quoted back: where they divided the animals but not the money, they are exempt from maaser beheimah, since the animals are now held in partnership, and from kalbon, since the money is still the undivided estate.
20. 20. Rav Anan was a Babylonian Amora, a student of Shmuel. He limits the Mishnah’s rule that brothers who divided and rejoined are exempt from maaser beheimah: it holds only when they divided by value, young kids against grown goats.
21. 21. Bereira, retroactive clarification: when a share is chosen later, the choice is taken to reveal what was his from the start. If each brother took like for like, this share was his from the father’s death, so he inherited it and did not buy it; when they rejoin, it is the undivided estate again and is liable.
22. 22. Rav Nachman was a leading Amora of Bavel, in Nehardea. He holds there is no bereira: every division is an exchange in which each brother buys from the other. So the animals present at the division are exempt as purchased, and later young are exempt as partnership property (Rashi).
23. 23. Rabbi Elazar (ben Pedas) was the leading student of Rabbi Yochanan in Eretz Yisrael. He and Rabbi Yochanan repeat the dispute of Rav Anan and Rav Nachman (Rashi). “Nine against ten” means nine large animals against ten small ones, a division by appraisal, where bereira cannot apply.
24. 24. The sugya continues on the next amud [Bechoros 57a]: Rabbi Yochanan follows his own view that brothers who divided an estate are purchasers, and return their shares to each other in Yovel.
25. 25. In the laws of kehunah, a zonah is not only a harlot: the term includes a convert, a freed maidservant, and a woman who had relations with a man forbidden to her; a kohen may not marry her (Vayikra 21:7). The last view is Rabbi Elazar’s in Yevamos (61b): an unmarried man who lives with an unmarried woman not for the sake of marriage makes her a zonah.
26. 26. Rabbi Chiya and Rabbi Oshaya compiled the authoritative collections of beraisos; a beraisa not taught in their academy is not relied upon.
27. 27. In Yevamos (45a–b) the Gemara discusses a child born to a Jewish woman from a gentile or a slave: one view holds he is a mamzer, the other that he is kosher, since this is unlike the forbidden relations, for kiddushin does not take effect with them at all.
28. 28. At the start of the masechta [Bechoros 2a] the Mishnah exempts from the firstborn law an animal owned in partnership with a gentile; it follows that a partnership of Jews is liable, and Tosfos there discussed why the verse “your cattle” is needed.