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Bechoros, 16

1) THE DIFFERENCE BETWEEN THE OFFSPRING AND THE "TEMURAH" OF "PESULEI HA'MUKDASHIN"

QUESTION: The Gemara here discusses the Beraisa (15b) that says that when an animal sanctified as a Korban develops a Mum, the laws of Temurah apply to it both before and after it is redeemed. Thus, one who designates another animal as a substitute for the Korban transgresses the Isur of Temurah, and both animals are Kadosh.

Rav Nachman here rules that if the Temurah was made after Pidyon, then the Temurah animal must be left to die. It cannot be offered as a Korban, because its Kedushah comes from an animal of Pesulei ha'Mukdashin, which is a "Kedushah Dechuyah." It also cannot be redeemed, because its Kedushah is too weak to be able to be transferred by the Pidyon to the money.

What is the difference between the case of an animal that is made as a Temurah for an animal of Pesulei ha'Mukdashin that was redeemed, in which case the Temurah takes effect and the animal must be left to die, and the case of offspring born to an animal of Pesulei ha'Mukdashin that was redeemed (before the fetus was conceived), in which case the offspring are not considered to be Kadosh at all (15b)? If the redeemed animal is not considered to have Kedushah, then the Temurah should also not take effect!

ANSWER: TOSFOS answers that in the case of newborn calves, the only way that the calves can become Kadosh is by receiving the Kedushah from the mother animal at birth. However, since the mother was redeemed, she has no Kedushah. Even though it is prohibited to shear or work with her, this degree of Kedushah that the mother retains after her redemption is not strong enough to transfer itself to the calves at birth.

In contrast, the act of Temurah transfers the exact status of the redeemed animal to the new animal, regardless of how minimal its Kedushah might be.

QUESTION: The Gemara cites a Beraisa that teaches the source for the Halachah that there are five types of Korban Chatas that cannot be offered but must be left to die. This Halachah is derived from the verse, "umi'Mafrisei ha'Parsah" -- "But this is what you may not eat... from those that have cloven hooves..." (Vayikra 11:4). The words "from those that have cloven hooves" imply that there are animals that possess all of the signs of a Kosher animal but nevertheless are forbidden. This includes the five Chata'os that must be left to die.

The Gemara says that even though the law of the five Chata'os are a "Hilchesa," a Halachah l'Moshe mi'Sinai, it is still necessary to have a source for the law in the verse. If not for the verse, we might have thought that the Halachah l'Moshe mi'Sinai teaches only that one who eats any of the five Chata'os transgresses an Isur, but not a Lo Sa'aseh. The verse teaches that he transgresses a Lo Sa'aseh as well. On the other hand, if not for the Halachah l'Moshe mi'Sinai, we would have understood from the verse that the five Chata'os do not need to be left to die, but may be put out into the pasture to graze. The Halachah l'Moshe mi'Sinai teaches that they must be left to die.

Why would we have thought that without a verse, the Halachah l'Moshe mi'Sinai teaches that one who eats any of the five Chata'os transgresses, but not that he violates a Lo Sa'aseh? What makes eating the Chata'os forbidden if not for a Lo Sa'aseh?

ANSWER: The SHEMEN ROKE'ACH cites the RAN in Shabbos (31b of the pages of the Rif, DH veha'Motzi) who explains that the reason why the Mishnah in Shabbos (73a) includes the Melachah of taking an object out of one domain into another ("Motzi") as one of the 39 Melachos is because Motzi is the Av Melachah, the primary Melachah of carrying on Shabbos from which the other Melachos of carrying derive. Even though the Gemara in Shabbos (96b) says that the Melachah of carrying an object four Amos in Reshus ha'Rabim

("Ma'avir") is a "Hilchesa," a Halachah l'Moshe mi'Sinai, nevertheless it is only a Toldah of the primary Melachah of Motzi. Had the only source for the Melachah of Ma'avir been the Halachah l'Moshe mi'Sinai, one who transgressed would not have received any punishment in Beis Din. However, since Ma'avir is included in the Melachah of Motzi, one who is Ma'avir on Shabbos is punished because he has performed the Melachah of Motzi, which is written in the Torah.

The same applies to the Halachah l'Moshe mi'Sinai of the five Chata'os Mesos. Had this Halachah only been a Halachah l'Moshe mi'Sinai with no source in the verse, one who ate them would not have received a punishment, even though he committed a transgression. It is only because of the verse that a punishment is also administered.

The Ran gives a similar approach in Sanhedrin (81b; see Insights there). The Mishnah there says that a Halachah l'Moshe mi'Sinai teaches unusual forms of punishment for various types of transgressions. For example, if a person repeatedly commits sins which are punishable with lashes, he may eventually be punished by being placed in a Kipah, a small confining structure, in which he is fed barley until his stomach ruptures. A similar punishment is given to a person who killed intentionally but there is no proper testimony of witnesses. A person caught stealing a vessel used in the Beis ha'Mikdash is liable to "Kana'im Pog'in Bo" -- if a zealous, righteous person catches him then he may kill him. The Ran there (in Chidushim to 81b, DH v'Li Nir'eh) explains that while many Halachos were transmitted to Moshe at Har Sinai that were not mentioned in the verses of the Torah, there is no Halachah of capital punishment that is not written in the Torah. In order for Beis Din to administer the death penalty, it must be written in the Torah.

The Ran is consistent with his view that while a Halachah l'Moshe mi'Sinai teaches that an object is forbidden, nevertheless Beis Din cannot administer punishment for it unless the punishment is stated explicitly in the Torah. (D. Bloom)

16b

QUESTION: The Mishnah discusses the case of a limited partnership in which a Nochri entrusts his animals to the care of a Jew for a certain period of time, and all of the offspring produced by the animals are divided between them. In the case of the Mishnah, the Jew must return the established value of the animals at the end of the stipulated time period. The Mishnah teaches that the Nochri is considered to be a partner in the parent animals and in the first generation of offspring. Consequently, all of the firstborn animals of those two generations are exempt from the laws of Bechor. The Mishnah adds that if the Jew and Nochri agree to "place the first generation of offspring in the place of their mothers," the Nochri's joint ownership extends to one more generation.

Why does the Mishnah refer to the extension of the Nochri's joint ownership as applying to "the offspring of the offspring," and find it necessary to teach that it is exempt from Bechorah? The Jew and Nochri are merely making a separate agreement with regard to the third generation, and thus the Nochri's ownership is nothing more than the ownership of the *first* generation in a new agreement! It is obvious that the Nochri's ownership applies to that generation and the next generation!

ANSWERS:

(a) RASHI (DH He'emid) explains that they did not make a formal, unconditional partnership in the second generation of animals. Rather, they merely agreed that *if* the first generation of offspring dies, then the Nochri will have partial ownership of the next generation of offspring.

(b) TOSFOS (DH Ta'ama), based on a Tosefta, explains that the Mishnah is discussing a case in which the first generation of offspring indeed died, and the Jew made a new agreement with the Nochri. However, the new agreement was only verbal, and no formal Kinyan was made to finalize it. The Mishnah teaches that even though no formal Kinyan was made, the Nochri's ownership still extends to the following generation.