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Bechoros, 28

1) ALLOWING THE OWNER TO KEEP THE "BECHOR" ALIVE AFTER IT BECOMES A "BA'AL MUM"

QUESTION: The Beraisa teaches that when a Bechor becomes a Ba'al Mum after twelve months have passed since its birth, the law should be that the owner slaughter it immediately and give it to a Kohen. However, the Rabanan instituted that the owner may keep it alive for an additional thirty days in order to prevent the Kohanim from suffering a loss (if the owner slaughters it immediately when it gets a Mum, the meat might rot before he is able to find a Kohen).

The Gemara asks that perhaps a Bechor that became a Ba'al Mum at any point within its first year should also be given a thirty-day period after its year completed, before it is slaughtered.

What is the Gemara's question? Why should a grace period be given under such circumstances? Allowing another thirty days before slaughtering the animal will not benefit the Kohanim, since the owner already kept the animal alive for an entire year after it became a Ba'al Mum, and the owner had plenty of time to find a Kohen!

ANSWER: It seems that the Gemara is assuming that since the Rabanan had reason to permit the owner to keep the animal alive for thirty days under certain circumstances, they enacted that under *all* circumstances ("Lo Plug") he may keep it alive for thirty days, even when the Kohanim do not benefit from the enactment. Moreover, it seems that the Rabanan allotted thirty days to slaughter the animal even when it is already in the hands of a Kohen (according to Rashi; see TOSFOS DH Mipnei). (M. Kornfeld)

QUESTION: The Mishnah discusses one who slaughters a Bechor and only afterwards shows it to a Mumcheh to decide whether it possessed a permanent blemish (Mum Kavu'a). Rebbi Yehudah states that the Bechor is permitted to eat (if the expert ruled, after Shechitah, that it indeed has a Mum Kavu'a), while Rebbi Meir states that it is forbidden (since it was slaughtered without it the permission of the expert, even though it was found afterwards to have a Mum Kavu'a).

Rabah bar bar Chanah says that when the Mum is found to be in the film of the eye (Dokin sheba'Ayin), everyone agrees that the Bechor that was slaughtered before being shown to a Mumcheh may not be eaten. This is because blemishes in the eye tend to change when the animal dies. A Mum that was not permanent might now appear to be permanent after the animal dies. Rebbi Yehudah and Rebbi Meir argue only about a Mum found on another part of the body. Rebbi Meir maintains that there is a Gezeirah that prohibits eating the Bechor, so that one not come to permit a Bechor with a blemish in the eye. Rebbi Yehudah maintains that there is no such Gezeirah.

Rav Nachman bar Yitzchak says that from the Mishnah it is also apparent that the dispute concerns only blemishes on the rest of the body. The Mishnah states that "Rebbi Meir prohibits it because it was slaughtered without the authority of the expert." This implies that the reason why it is prohibited is not because of an inherent problem in the animal itself, but because of a Gezeirah that is imposed for slaughtering the Bechor without permission. Had the dispute also applied to cases of blemishes in the eye, the Mishnah would have said that Rebbi Meir forbids the Bechor because the blemish might have changed after Shechitah. It must be that the dispute involves only blemishes on the other parts of the body, and Rebbi Meir maintains that a penalty was enacted so that one not come to permit a Bechor with a Mum in the eye.

There seems to be a contradiction in the terms used by the Gemara to explain why Rebbi Meir forbids the Bechor with a Mum found after Shechitah. The Gemara first says that it is prohibited because of a "Gezeirah," and then the Gemara says that it is prohibited because of a "penalty." If it is a Gezeirah, why does the Gemara call it a "penalty"?

ANSWERS:

(a) The TOSFOS CHITZONIYOS (cited by SHITAH MEKUBETZES MIZBE'ACH KAPARAH, beginning of 28b, and MAHARIT ALGAZI #28, end of DH v'Rabeinu) answers that even though the Gemara calls it a "Gezeirah," in truth it is a penalty. A Gezeirah would not have been enacted solely to prevent one from permitting an animal with a blemish in the eye.

The Maharit Algazi (DH Hen Emes) explains that the reason such a Gezeirah would not have been enacted is because it would have been a "Gezeirah l'Gezeirah," according to the RAMBAM and RAMBAN. They maintain that the rule that we are stringent in the case of a Safek d'Oraisa ("Safek d'Oraisa l'Chumra") is only mid'Rabanan. That is, the Rabanan decreed that in a case of a Safek d'Oraisa, we must act stringently (see Rambam, Hilchos Avos ha'Tum'ah 16:1, and Hilchos Tum'as Mes 9:12). Accordingly, the prohibition against eating a Bechor that was slaughtered and then a Mum in its eye was found to be a permanent Mum is only an Isur d'Rabanan. There is a Safek d'Oraisa whether or not the Mum was temporary (and therefore the animal is forbidden) before the animal was slaughtered. Since it is a Safek, the Isur itself is only mid'Rabanan. Therefore, the Rabanan could not have made a Gezeirah to prohibit a Bechor that had a Mum on another part of its body lest one permit a Bechor that had a Mum in its eye, because that would have been a "Gezeirah l'Gezeirah."

This also explains why TOSFOS (28a, DH Rebbi Meir) rules that the Halachah here does not follow the view of Rebbi Meir. Tosfos writes that even though the Gemara is Kesuvos (57a) states that the Halachah always follows Rebbi Meir when he makes a Gezeirah, nevertheless the SHE'ILTOS D'RAV ACHAI GAON maintains that the Halachah does not follow Rebbi Meir when he institutes a *penalty*. Therefore, since the ruling of Rebbi Meir in the case of the Mishnah here is essentially a fine, as the Tosfos Chitzoniyos states, the Halachah does not follow his ruling.

(b) The ROSH (4:3) answers that even though the Gemara refers to the prohibition to eat the animal as a penalty, it does not intend to say that it is merely a penalty, and in fact it is a Gezeirah. Accordingly, the Rosh states that the Halachah does follow the opinion of Rebbi Meir here (in accordance with the Gemara in Kesuvos, as mentioned above). The Rosh adds that this is also the opinion of the BEHAG and RAMBAN. The Ramban cites further proof for this from the words of the Mishnah, which says that Rebbi Meir's reason for prohibiting the Bechor is "because it was slaughtered without the authority of the expert," and not "because he slaughtered it." This implies that even when someone else slaughters it -- in which case there is no reason to penalize the owner -- it is still forbidden. This proves that the prohibition must be a Gezeirah and not a penalty, and therefore the Halachah follows the view of Rebbi Meir. (D. Bloom)

28b

OPINIONS: The Mishnah (28a) teaches that when a person who is not an expert (Mumcheh) in the laws of blemishes of a Bechor examines a Bechor and permits it to be slaughtered, the Bechor must be buried, and the amateur-examiner must pay from his own funds for the loss incurred by the Kohen. The Gemara elaborates and says that for a Behemah Gasah (a large animal, such as a cow), he must pay half of the value of the animal, while for a Behemah Dakah (a small animal, such as a goat), he must pay only a quarter of the value of the animal (see following Insight). Why is the amateur-examiner not penalized by having to pay the full value of the animal?

(a) RASHI (DH k'Shehu) explains that the reason why the amateur-examiner must pay only half of the value of a Behemah Gasah is because of the doubt whether he actually caused the Kohen a loss. Perhaps the blemish that he examined was a disqualifying blemish, and had a Mumcheh examined it he would have permitted the animal to be eaten by the Kohen. By examining it himself, the amateur caused the Kohen to lose the entire value of the animal (since it must be buried). On the other hand, perhaps it was not a disqualifying blemish, and would not have developed one during its lifetime. By examining it himself, the amateur did not cause any loss to the Kohen. Since the value of the animal is "Mamon ha'Mutal b'Safek," money whose ownership is in doubt, the amateur-examiner is required to pay only half.

(b) TOSFOS (DH Revi'a) points out that it is only Sumchus (Bava Kama 35b) who maintains that in a case of Mamon ha'Mutal b'Safek, the money is divided. The Chachamim argue with Sumchus and maintain that the person presently in possession of the object in doubt keeps it until the other person brings proof that it is his -- ha'Motzi me'Chaveiro Alav ha'Re'ayah. Nevertheless, in this case the Chachamim agree that the money is divided, because this case involves a penalty imposed by the Rabanan, and not an actual monetary obligation incurred due to damage caused. The Rabanan did not impose a penalty of the full value of the animal, because it is not clear that a loss was actually incurred (as Rashi explains), but neither did they exempt the person entirely, since he acted improperly.

(c) Tosfos suggests further that perhaps the amount paid is based on the value of a Bechor before it is permitted by a Mumcheh. Since it is not clear whether or not the Bechor will ever become permitted (as Rashi explains), it depreciates to half of the value of a normal animal.

QUESTION: The Gemara suggests that the Mishnah that obligates a judge to pay for his mistakes in judgement is Rebbi Meir, who maintains that one is liable for damaging another person or his possessions even in an indirect manner ("Garmi").

Why does the Gemara not say that the previous Mishnah is also following the view of Rebbi Meir? That Mishnah also seems to maintain that one is liable for damages of "Garmi," since it says that an amateur-examiner must pay for the Bechor that he permitted to be slaughtered, thereby causing a loss to the Kohen! (TOSFOS DH Leima)

ANSWER: The ROSH (4:4) answers that the payment that the amateur-examiner is required to pay is *not* compensation for damage that he caused. Rather, it is a penalty imposed for ruling when one is not qualified to rule. Accordingly, even if one is not liable for "Garmi," such a penalty may be imposed.