058b - מעשר בהמה פרק תשיעי בכורות דף נח, ע"ב

And he takes one from the Elul animals, and the rest are exempt.^[1]

ונוטל אחד מן האלולין - And not that he aims to bring it out as the tenth, for it is written “he shall not inquire”;^[2] rather [he takes it] as it happens – for example, he counted them lying down or standing, so that now it is impossible to aim for one of the Elul animals to be the tenth. But if he were passing them through the opening under the rod, he would not know when [an Elul animal] comes out at the head of ten. And so too we say below: “[if he counted them] lying down or standing, these are tithed.”

Whichever way you look at it: if Rosh Hashanah [for the animal tithe] is on the first of Elul, those of Elul and Tishrei combine, and those of Av are exempt; and if Rosh Hashanah is on the first of Tishrei, those of Av and Elul combine, and those of Tishrei are exempt.^[3]

ודאב פטורין - For there are only five from that year.

What would you say – let [the Tishrei animals] combine with another goren?^[4]

מאי אמרת לצטרפו - Those five of Tishrei, with another goren: [let] those that will be born afterward in that same year join with them at the pras haPesach [tithing].

The Merciful One said a definite tenth, and not a doubtful one.^[5]

לא אפשר - Because the Merciful One said that a definite tenth shall be holy, and not a doubtful one – as here, for perhaps these five of Tishrei were already exempted by the one he took from the Elul animals, if Elul is Rosh Hashanah.^[6]

It is obvious!

פשיטא - That he takes from the Elul animals; for if [he took] from those of Av, it would not be a [valid] tenth, since perhaps Elul is Rosh Hashanah, and there are only five from the past year, and the law of maaser does not apply to them. And if from those of Tishrei, on behalf of the ten of Av and Elul – perhaps Tishrei is Rosh Hashanah, and the law of maaser does not apply to those five either; and moreover, those ten of Av and Elul would not be tithed.

You might have said: let us decree, lest he come to take from those [of Av or Tishrei];

למישקל מהנך - Of Av and Tishrei.

it teaches us [that we do not decree].

Mishnah

How does one tithe? He gathers them into a pen and makes a small opening for them, so that two cannot go out together,

מתני' לצאת כאחד - For if they went out together, the ninth and the tenth would be spoiled, as [explained] below.

and they count: one, two, three, four, five, six, seven, eight, nine; and the one that goes out tenth, he marks with red paint^[7] and says: This is maaser.

If he did not mark it with red paint, or did not count them with the rod, or counted them lying down or standing – these are tithed.^[8]

רבוצים - Lying down.

If he had a hundred and took ten, [and from each] ten took one – this is not maaser;

ונטל עשרה עשרה - That is, he did not count them one, two, three, but took ten at once each time, and from each ten he took one for maaser: this is not maaser, because he must count them so that the tenth by the count is holy.

Rabbi Yose b’Rabbi Yehudah says: It is maaser.

The reason of Rabbi Yose is explained in the Gemara.

If one of the counted animals jumped [back] among them, they are [all] exempt;

מן המנויין - From those that had already passed through the opening under the rod, even though they are not yet tithed – for example, he counted, and one of them went back and jumped into the pen. The counted ones are exempt by the count that was fit,^[9] as explained in the Gemara; and since it is not known which is the exempt one, therefore everything in the pen is exempt.

[if one] of the tithed animals [jumped back] among them, they must all graze until they become blemished, and they are eaten in their blemish by the owners.^[10]

מן המעושרין - From the tithed animals themselves.

Gemara

The Rabbis taught: How does one tithe? He gathers them into a pen and makes a small opening for them, so that two cannot go out together; their mothers [stand] outside and they inside, and [the mothers] bleat, and [the young] go out to meet their mother.^[11]

But let him take them out himself!

“It passes” is written, and not that they make it pass.^[12]

But let him throw them greens, and they will come out toward him!^[13]

Rav Huna said: It is a decree on account of a purchased animal and on account of an orphan.^[14]

גמ' יתום - One whose mother died before it was born. Now, if they threw greens, the orphan, which is exempt, would also come out. And although there is an orphan that is liable – for example, it was born and afterward its mother died – and that one would come out only by means of the greens, nevertheless, by setting the mothers of these outside, he will have a sign, and will remember that an orphan and a purchased animal are not subject to tithing.

The Rabbis taught: “All that passes under” (Vayikra 27) – excluding a treifah, which does not pass under the rod.^[15]

טריפה אינה עוברת - For example, its legs were broken from the knee upward, and it cannot walk.

It is a mitzvah to count them with the rod.

If he did not count them with the rod, or counted them lying down or standing, from where [do we know they are tithed]? The verse states “the tenth shall be holy” (Vayikra 27) – in any case.

And I only know [this] where he called it “tenth”; if he did not call it “tenth”, from where? The verse states “shall be holy” (Vayikra 27) – in any case.^[16]

It might be [thought that if] he had a hundred and took ten, [and from each] ten took one, they would be tithed? The verse states “tenth”, and this is not a tenth.

This is how we read [the beraisa]: “It might be [thought that if] he had a hundred” etc.

Rabbi Yose b’Rabbi Yehudah says: It is maaser.

What is the reason of Rabbi Yose b’Rabbi Yehudah?

He holds like Abba Elazar ben Gomel, for it was taught: Abba Elazar ben Gomel says: “And your terumah shall be reckoned for you” (Bamidbar 18) – the verse speaks of two terumos, one terumah gedolah and one terumas maaser;^[17]

בשתי תרומות - And although this verse, “your terumah”, is written only about terumas maaser, we derive that it speaks [also] of terumah gedolah from what is written, “as the grain from the threshing-floor” – that is, like terumah gedolah, which a Yisrael takes from his threshing-floor. And now terumas maaser is compared to terumah gedolah for this matter: just as terumah gedolah etc.

just as terumah gedolah is taken by estimation and by thought^[18]

Tosfos

ונוטל אחד מן האלולין - And there is no reason to forbid it here on account of “he shall not inquire”, as [the Gemara] forbade bringing out a blemished animal at the head of ten, at the beginning of our perek (53b).^[19]

כשם שהתרומה גדולה ניטלת מאומד - By Torah law estimation does not apply to it, for a single grain of wheat exempts the whole pile,^[20] and the Torah gave it no measure, for it is written “the first of your grain” (Devarim 18). Rather, since estimation applies to terumas maaser, whose measure is written (Bamidbar 18): “a tenth of the tithe”, and for terumah gedolah too the Sages instituted a measure, estimation applies to it. However, on this point one cannot compare terumas maaser to terumah gedolah so that a single grain should suffice when done deliberately, for it is written “a tenth of the tithe”. But if he deliberately adds, it would seem to be effective; for that is why it is compared to terumah gedolah, which is taken by estimation as the mitzvah, so that he will separate with a generous eye:^[21] since he fears lest he take too little, he takes generously, as we learned in the first perek of Terumos (Mishnah 7): “One does not separate terumah by measure, by weight or by count.” And in the Tosefta the reading is: “Just as terumah gedolah is taken only by estimation and by thought”, and so too Rabbeinu Tam read; and on it the Yerushalmi, in the first perek of Terumos, reads: Rabbi Elazar ben Gomel taught: not by measure etc. And in Perek Kol HaMenachos Ba’os Matzah (55a, see there) the beraisa of our sugya concludes: “and just as terumah gedolah is with a generous eye etc.”; and there Rabbi Elazar ben Gomel said: “One separates terumas maaser of fresh figs for dried figs by count, and of dried figs for fresh figs by measure”, because of a generous eye. So he mentioned “it is taken only by thought and by estimation” only so that he would act with a generous eye. And if you will ask: at the end of Perek Kol HaGet (Gittin 30b, see there) Abaye explains [the case of] a Yisrael who said to a Levi, “Thus my father told me: you have maaser in my hands,” or “your father’s maaser is in my hands” – we are concerned for the terumas maaser in it, since it is not a fixed amount^[22] he did not [separate and] prepare it; “a kor of your father’s maaser is in my hands,” or “a kor of maaser of yours is in my hands” – we are not concerned for the terumas maaser in it, since it is a fixed amount he certainly prepared it. And [the Gemara] sets this according to Abba Elazar ben Gomel, who compares terumas maaser to terumah gedolah: just as the householder has [the right] to separate terumah gedolah, so he has [the right] to separate terumas maaser. Now, since it is possible by estimation, then even when it is not a fixed amount let us be concerned lest he prepared it by estimation! One can say: granted that a Levi is obligated to act with a generous eye, nevertheless a householder need not act with a generous eye with others’ property; and even though he has the right, he need not do so, in order to spare himself the complaints of the kohen and the Levi, so that neither of them complain against him if he errs in his estimate. And if you will ask: [regarding] what we learned in the fourth perek of Terumos (Mishnah 6): “One who counts is praiseworthy, one who measures is more praiseworthy than he, and one who weighs is the most praiseworthy of the three” – the Yerushalmi, in the first perek of Terumos, raises the difficulty and answers: here regarding terumah gedolah, here regarding terumas maaser. And Rabbi Elazar ben Gomel taught: From where [do we know] that one does not separate terumah by measure, by count or by weight? The verse states, “And your terumah shall be reckoned for you” [and] “you shall raise up” – by thought you separate, and you do not separate by weight, by measure or by count. Explanation: the [teaching] that one does not separate [by measure] refers to terumah gedolah, whose mitzvah according to all is by estimation; and the [Mishnah] “one who counts is praiseworthy” refers to terumas maaser and follows the Rabbis; and the beraisa of Abba Elazar ben Gomel is brought to teach us that they disagree about terumas maaser. And if you will ask: in the Yerushalmi it says on that [Mishnah], “one who counts is praiseworthy” – more praiseworthy than whom? Rav Huna said: than one who separates by estimation. This implies that by estimation it is terumah, only that one who counts is praiseworthy. And it also says there: Rabbi Hillel said: the Mishnah says so: “and one who weighs is the most praiseworthy of the three” – explanation: this implies that there are three besides the one who weighs. And Rabbi Chanina said: explain it [as the most praiseworthy] of the three [mentioned], and nothing can be learned from it. Now if [the Mishnah follows] the Rabbis, according to them terumas maaser is not [valid] by estimation; and if Abba Elazar ben Gomel, he said that the mitzvah is to do it by estimation! It seems [correct] to explain that according to Rabbi Elazar ben Gomel too we learn only that estimation is effective, not that he makes estimation a mitzvah; and now the answer “here regarding terumah gedolah, here regarding terumas maaser” follows Rabbi Elazar ben Gomel, and it is now well that the beraisa of Abba Elazar ben Gomel is brought on it. Alternatively, the Rabbis agree with Abba Elazar ben Gomel that by estimation it is terumah, but there is no mitzvah to do it by estimation. And if you will ask: how did the Rabbis permit doing it by estimation? If so, he is one who over-tithes!^[23] One can say: that is when he over-tithes deliberately; but when he intends to estimate well, he is not considered one who over-tithes. However, regarding something that is permitted by estimation, it is implied in Perek Kol HaMenachos Ba’os Matzah (Menachos 54b, see there) that we are not concerned if he gives too much, even deliberately; for it teaches: one separates [terumas maaser of] fresh figs for dried figs by count, and it asks that he is over-tithing – and it speaks of terumas maaser, as the latter clause proves – and it answers: it is Abba Elazar ben Gomel, and because of a generous eye. And there he gives extra deliberately, and whatever he wishes to add counts as a generous eye. And it seems that he does not hold [the rule], “One who over-tithes, his tithes are spoiled”, for with maaser too estimation is permitted, as is proven in our sugya, as it says: “And the Merciful One called maaser terumah, as it is written of it: ‘the tithe of the children of Israel which they raise up to Hashem as terumah’” – and it speaks of maaser rishon, as it is written at the end of the verse, “I have given to the Levites as an inheritance”. And there is a difficulty with our sugya: why [does it need] to set it this way, that Rabbi Elazar ben Gomel and Rabbi Yose b’Rabbi Yehudah hold the same view? Let it say that animal tithe is compared to grain tithe: just as grain tithe is one of ten, so animal tithe is one of ten, without passing under the rod, but only that there are ten before him and he takes one of them! One can say: it brings Abba Elazar to say that we learn terumas maaser from terumah gedolah regarding estimation, even though it is not logical to learn so, since terumah gedolah has no measure while terumas maaser has a measure; and we compare them to each other even though it is [like learning] what is possible from what is impossible; and so too we learn animal tithe from grain tithe, taking the verse out of its plain meaning, for it is written “all that passes”. But this explanation does not sit well with the heart. And it seems [correct] to explain that according to Rabbi Yose b’Rabbi Yehudah it is maaser even though [the animals] are not equal, when he brings them into the pen to be tithed, for presumably they are then not usually equal; therefore [the Gemara] needs to set it according to Abba Elazar ben Gomel, who permits estimation and is not concerned about over-tithing, as I explained, or at least permits it with a generous eye, as is stated explicitly in Menachos (54b). And were it not for Abba Elazar, I would say that although with passing [under the rod] we are not concerned about equality, in a case like this, where he takes one of ten, which we learn from grain tithe, we require them to be equal. And if you will ask: since Abba Elazar permits [estimation] even with maaser, why did [the Gemara] need to set in Menachos (ibid.) the statement of Rabbi Elazar b’Rabbi Yose, “Father used to take ten dried figs from the corner for ninety in the basket”, as referring to terumas maaser? Let it set it as referring to maaser itself! One can say: granted that Rabbi Yose b’Rabbi Yehudah holds [that] maaser is like it, perhaps Abba Elazar does not hold that reasoning; and moreover, it prefers to set it as terumas maaser because the first clause proves that it speaks of terumah, since it teaches “one separates terumah”.

Notes

1. 1. This continues Rava’s statement from the previous amud [Bechoros 58a]: according to Ben Azzai, if five animals were born to him in Av, five in Elul and five in Tishrei, he gathers them into the pen to be tithed.
2. 2. “He shall not inquire whether it is good or bad” (Vayikra 27:33): the owner may not choose which animal will come out tenth.
3. 3. Rosh Hashanah for the animal tithe is disputed: Rabbi Meir holds the first of Elul, Rabbi Elazar and Rabbi Shimon the first of Tishrei, and Ben Azzai is in doubt. One may not tithe the animals of one year for those of another, and ten from one year are needed; so either way one group of five is left alone and exempt.
4. 4. A goren (“threshing-floor”) is one of the fixed times for tithing animals; there are three a year, shortly before Pesach, Shavuos and Sukkos. The question is why the five Tishrei animals should not wait and join that year’s later-born animals at a later goren.
5. 5. “The tenth shall be holy” means a definite tenth. If the Tishrei animals were joined to a later group, perhaps they were already exempted by the Elul animal he took, so the new tenth would be a doubtful one.
6. 6. Rashi’s text reads here “it is not possible”, words not found in our Gemara.
7. 7. Sikra is a red dye; the tenth animal is marked with it so that it is recognised as maaser.
8. 8. That is, if the procedure was not followed as prescribed, after the fact the tenth is still holy and the rest are exempt.
9. 9. “A fitting count exempts”: an animal that passed under the rod in a valid count is exempt, even though no tenth was yet taken for it. This is Rava’s principle on the next amud [Bechoros 59a].
10. 10. A maaser animal is now mixed among them and cannot be identified, so none can be offered; they graze until each becomes blemished and are then eaten by the owners, as a blemished maaser animal is.
11. 11. The mothers are set outside so that the young will go out by themselves toward them, without the owner driving them out.
12. 12. “All that passes under the rod” (Vayikra 27:32) implies that the animal passes by itself.
13. 13. Greens, to lure the animals out.
14. 14. A purchased animal and an orphan are exempt from the animal tithe. Lured by greens they would come out too, and might be tithed; with the mothers outside, these have no mother to draw them, which reminds the owner that they are exempt.
15. 15. A treifah is an animal with a defect from which it cannot survive; it is not included in the tithe count.
16. 16. That is, even if he did not declare “this is maaser”, the tenth is holy by itself.
17. 17. Terumah gedolah is the portion a Yisrael separates from his crop for the kohen; the Torah sets no measure for it. Terumas maaser is the tenth of his maaser that the Levi separates for the kohen. The verse “your terumah shall be reckoned for you” is said to the Levites.
18. 18. By estimation – without measuring or counting; by thought – designating the terumah in his mind. The beraisa continues on the next amud [Bechoros 59a], where Rashi’s comments on “by estimation” and “by thought” stand.
19. 19. At the beginning of the perek [Bechoros 53b] the Gemara forbade bringing out a blemished animal at the head of ten, because of “he shall not inquire”.
20. 20. By Torah law a single grain can serve as terumah for a whole pile; the Sages fixed a measure, one-fiftieth for an average giver.
21. 21. A “generous eye” means giving generously, more than the bare minimum.
22. 22. A fixed, known amount (such as a kor); when the amount is fixed, he presumably separated its terumas maaser.
23. 23. One who over-tithes – separating more than a tenth – spoils his tithes, since the excess is not a valid tithe.