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Bechoros, 20

BECHOROS 19-20 - Ari Kornfeld has generously sponsored the Dafyomi publications for these Dafim for the benefit of Klal Yisrael.


OPINIONS: In the Mishnah (19b), Rebbi Yishmael says that when one buys a goat from a Nochri and does not know whether the goat has ever given birth before, if the goat is not older than one year old, we may assume that it has never given birth before, and the next birth may be assumed to be its first one, and the firstborn male is considered the Bechor and must be given to a Kohen. If the goat is older than one year, then it is a doubt whether this birth is its first or not, and the newborn kid is left to graze until it gets a Mum, and the owner may then eat it.

The Gemara asks why Rebbi Yishmael considers the kid born to a goat older than one year to be a Safek Bechor. There is a Rov that tells us that a majority of goats became pregnant in their first year, and thus we should follow the Rov and assume that this kid is *not* the Bechor. The Gemara suggests that Rebbi Yishmael follows the view of Rebbi Meir who rules that we are concerned for a minority (Mi'ut). Since a minority of goats do not became pregnant in their first year, we must be concerned that this goat is of the minority, and its kid indeed might be a Bechor.

Ravina suggests that Rebbi Yishmael can be following the view of the Chachamim who are not concerned for a minority. The Chachamim follow the majority only when it does not depend on an action occurring (for example, when a piece of meat is found in a place with a majority of Kosher stores, we follow the Rov because it does not depend on any action). The Chachamim do *not* follow the majority when it depends on an action occurring -- a "Rov ha'Taluy b'Ma'aseh." In the case of the Mishnah, the majority depends on the goats breeding. We cannot assume that an action has taken place based on a Rov.

What is the logic behind this ruling?

(a) The SEFAS EMES suggests that the Torah allows us to rely on a Rov only when there is a question regarding the *nature* of the object before us. For example, when we have a doubt such as, "Is this piece of meat Kosher or not," or, "Is this person a Jew or a Nochri," or, "Is this object Tamei or not," the doubt involves the nature of the object before us. In contrast, in the case of the Gemara here, the question is not what the *nature* of the object is at present, but rather what *happened* to the object in the past; did this goat give birth once or not? If it gave birth in the past, then today it is no different from any other goat in the flock physically and Halachically, and the Rov (that most goats have given birth) cannot tell us anything about this goat. (The Halachic difference is reflected not in the goat itself, but in the next child that it bears.)

(b) The most simple understanding of the Gemara is that a Ruba d'Leisa Kaman is more reliable when its perpetuation is determined by *natural* events, and not by the intervention of a man or animal. ("Ruba d'Leisa Kaman" refers to a majority in *frequency* -- something usually occurs in this manner. The majority is not present and countable, but rather it is a predictable consequence of natural events. For example, we know that there is a Rov that "most animals are not Tereifos." This Rov is not in front of us, but, nevertheless, there exists a fact in the frequency of the occurrence of Tereifah animals that tells us that most animals are born healthy.)

A Rov such as "most animals are not Tereifos when they are born" perpetuates itself without the intervention of man or animal. When human, or even animal, intervention is required and the outcome of the event in question (such as if an animal gave birth in the past) can be determined only by the conscious act of a living being, we cannot assume that the living being in question "made the decision" to become part of the Rov.


QUESTION: Rebbi Chanina of Sura says that the argument between Rebbi Akiva and Rebbi Yehoshua concerns whether "Chalav Poter." Rebbi Akiva maintains that we follow the majority of female animals, which do not have milk unless they have given birth. Therefore, if an animal is observed to have milk, and afterwards it gives birth to a male, we assume that this is a subsequent birth and the law of Bechor does not apply. Rebbi Yehoshua maintains that since there are a minority (Mi'ut) of animals that have milk even though they have not yet given birth, we must be concerned that the animal in question is of the minority. Consequently, when it gives birth to a male, that calf is assumed to be the Bechor and must be given to a Kohen.

TOSFOS (DH Chalav) cites RABEINU TAM who rules according to the view of Rebbi Yehoshua. Rabeinu Tam concludes that the Halachah is that we are concerned for the Mi'ut whenever there is a Chazakah that supports the Mi'ut, as in the case of the Gemara here, where there is a Chazakah that the animal has not yet given birth.

Rabeinu Tam cites the Gemara in Chulin (11b) that says that where it is impossible to be take into account the Mi'ut, even Rebbi Meir (who maintains that we always are concerned for the Mi'ut) agrees that we disregard the Mi'ut. The Gemara there is discussing the Halachah that when one cuts the esophagus during Shechitah at a place where there was a hole, the Shechitah is not valid. If Rebbi Meir is concerned for the Mi'ut, then no Shechitah should be valid according to Rebbi Meir, because he must be concerned that perhaps the cut was made at a point at which there was a hole! Rabeinu Tam infers from the fact that the Gemara asks only how Rebbi Meir can eat meat, and it does not ask how *we* can meat, that the Halachah does not follow the view of Rebbi Meir that we must be concerned for a Mi'ut even when there is no Chazakah supporting it. However, when there is a Chazakah supporting the Mi'ut, then we do follow the Mi'ut.

Tosfos points out that even though there is a Chazakah supporting the Mi'ut in the case of Shechitah -- the Chazakah that until Shechitah an animal is forbidden to be eaten (since it is alive) should support the minority of Shochtim who are not expert -- the Rov in that case is much stronger than an ordinary Rov. The majority (Rov) of experts present at Shechitah is very common, and is more powerful than an ordinary Rov, and thus we do not need to be concerned for the minority in that case at all.

According to Rabeinu Tam, why does the Gemara in Chulin (11b) not ask its question even according to the Chachamim who disagree with Rebbi Meir? According to Rabeinu Tam, even the Chachamim agree that when a Mi'ut is supported by a Chazakah, we take into account the Mi'ut! In the case of Shechitah, the Mi'ut (that the knife cut the esophagus at a point where there was a hole in the esophagus) is supported by the Chazakah that every animal is forbidden until Shechitah (since it is alive). Why does the Gemara not ask its question even according to the Chachamim?

ANSWER: The MAHARSHA answers that when an animal is slaughtered correctly, in accordance with the laws of Shechitah, even though there is a possibility that the cut occurred at a place in the esophagus where there was a hole, the animal nevertheless does not have a Chazakah of being forbidden. This is because an animal with a hole in its esophagus is a *Tereifah* animal, and not a *Neveilah*. Therefore, when such an animal is slaughtered, the Shechitah is considered to be valid insofar that the animal does not render other objects Tamei the way a Neveilah does. It is merely a Tereifah that has been slaughtered properly and has been removed, through Shechitah, from the Chazakah of Neveilah. Since it no longer has the Chazakah of a Neveilah, there is no Chazakah to support the Mi'ut. (There is no Chazakah that it was a Tereifah, because the animal, while alive, was assumed to be a healthy animal.)

The RASHASH points out that the Maharsha's answer is not consistent with the opinion of the RAMBAM (Hilchos Shechitah 3:19). The Rambam rules that any hole in the esophagus in a place fit for Shechitah renders the animal a *Neveilah* (and not merely a Tereifah; see Insights to Chulin 42:2), even while it is still alive, and Shechitah would not be effective to change its status. The PRI MEGADIM (Sifsei Da'as 33:5, DH v'Ra'isi, cited by the SHEMEN ROKE'ACH here) also asks this question on the Maharsha's explanation.

The CHOCHMAS BETZALEL to Nidah (23b, p. 285) answers this question based on the words of Rava in the Gemara in Nidah. Rava states that when a baby is born with a hole in the esophagus, this is considered a birth and the mother is Tamei just as a woman is Tamei after a normal birth. RASHI there (DH Veshto) explains that Rava maintains that a Tereifah is capable of living more than twelve months, and therefore it is a viable birth. TOSFOS there (DH Amar Rava) also says that a hole in the esophagus is a Tereifah. Accordingly, the Maharsha here was justified in saying that a hole in the esophagus renders the animal a Tereifah, and not a Neveilah. (D. Bloom)

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