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Bechoros, 24

1) WHO ARGUES WITH REBBI YOSI BEN HAMESHULAM

QUESTION: Rav (23b) says that the Halachah follows the opinion expressed in the Mishnah in this chapter whenever there is no argument. The Gemara asks what Rav is referring to, since in every Mishnah in the chapter there is either an argument, or Rav already stated that the Halachah follows that view.

The Gemara suggests that Rav is referring to the opinion of Rebbi Yosi ben Hameshulam, expressed in the Mishnah later (24b, where he says that one may remove the hair of a Bechor in order to slaughter it, even though shearing a Bechor in the ordinary manner is prohibited). The Gemara asks that Rav explicitly said that the Halachah follows Rebbi Yosi ben Hameshulam. The Gemara answers that he nevertheless repeated this ruling (by saying that the Halachah follows the opinion expressed in the Mishnah whenever there is no argument) in order to teach that the Halachah follows Rebbi Shimon (23b) as well, and that we do not take into account the Chachamim in a Beraisa who argue with Rebbi Shimon.

The Gemara implies that no one argues with the ruling of Rebbi Yosi ben Hameshulam. However, if no one argues with Rebbi Yosi ben Hameshulam, then why does Rav need to state that the Halachah follows his view? It must be that there *is* some Beraisa in which Tana'im argue with Rebbi Yosi ben Hameshulam, and that is why Rav needs to state that the Halachah follows his view! (TOSFOS DH u'Plugta)

ANSWER: TOSFOS answers that there indeed is no Beraisa or Mishnah in which any Tana argues with Rebbi Yosi ben Hameshulam. However, there was a tradition that such a dissenting opinion exists, and therefore Rav found it necessary to teach that the Halachah follows the view of Rebbi Yosi ben Hameshulam.

QUESTION: The Gemara quotes a Beraisa in which Raban Shimon ben Gamliel discusses a case in which one enters his herd at night and notices that ten or fifteen cows in his herd are about to give birth, some of which are giving birth for the first time. The next morning, he finds that the cows who gave birth for the first time are nursing female calves, while the other cows are nursing male calves. Raban Shimon ben Gamliel rules that all of the calves are exempt from the law of Bechor, because we do not assume that a mother cow nurses a calf that is not hers.

Why does the Beraisa mention that the owner enters his herd at night and sees his animals about to give birth? What difference does it make what he sees at night? The only relevant fact is that, in the morning, he sees the first-time mothers nursing baby females, and the veteran mothers nursing baby males!

ANSWER: TOSFOS (DH ha'Nichnas) explains that the Beraisa is teaching an additional Chidush by pointing out that the animals began to give birth at night. Even though the animals gave birth at night and it is possible that the mothers do not recognize their young, we may nevertheless rely on their nursing to identify which calf belongs to which mother.

QUESTION: In the Mishnah (23b), Raban Shimon ben Gamliel states that when one buys an animal from a Nochri and finds that it is nursing a calf, we do not suspect that the calf is the offspring of another cow. Rather, we assume that the young calf is the offspring of the nursing mother, and any subsequent birth is not subject to the laws of Bechor.

The Gemara here quotes Rabah bar bar Chanah who says in the name of Rebbi Yochanan that when one sees what appears to be a baby pig clinging to (and nursing from) a sheep, the sheep's subsequent birth is exempt from Bechorah, but the pig is forbidden to eat (because of the doubt whether or not the pig, or what looks like a pig, is actually the offspring of the sheep).

The Gemara concludes that it is clear to Rebbi Yochanan that the Halachah follows the view of Raban Shimon ben Gamliel (that an animal does not nurse the offspring of another animal), but he is in doubt whether Raban Shimon ben Gamliel maintains that an animal that already gave birth has compassion on a baby which is not hers. Therefore, he rules that any subsequent birth is not a Bechor, because if it had never given birth before it would certainly not take pity on a strange baby. Once it has given birth, though, it might be that it would look after a strange baby. The pig, therefore, might not be the sheep's offspring, and, consequently, it is forbidden to eat the pig because of the doubt.

It is apparent from the Gemara that the only reason why it is forbidden to eat the "pig" is because it may be a real pig, and the sheep is merely having compassion for a baby which is not hers. However, if it would have been clear to us that she cares only for her own children, then the "pig" would have been permitted to eat. This seems difficult in light of the principle (Kidushin 80a) that when a Chazakah contradicts a Rov, the Rov overpowers the Chazakah and we follow the Rov. Even though there is a Chazakah that an animal does not care for a baby that is not hers, there is a conflicting Rov that tells us that most animals give birth to a baby which is the same species as the mother (as the Gemara states in Chulin 77b). Accordingly, even when the mother sheep has compassion on a baby that looks like a pig, and even if this creates a Chazakah that the "pig" is her baby, nevertheless there is a Rov that tells us that most sheep do not give birth to pigs. Since this Rov opposes the Chazakah, why would we have followed the Chazakah to permit eating the "pig" (had we known for certain that a mother sheep has compassion only for its own young)? We should follow the Rov to prohibit it!

ANSWER: The MAHARIT ALGAZI (#39) answers based on a principle expressed by the TESHUVOS MAHARIT (EH #27, DH Teshuvah). The Teshuvos Maharit says that the rule that a Rov is stronger than a Chazakah applies only to a Chazakah that is not itself based on a Rov, nor based on logic, but is merely a Chazakah that tells us to assume the status quo of a situation in which a doubt has arisen.

For example, the Gemara in Kidushin (80a) discusses a case in which a young child was found next to a pile of dough of Terumah, with some yeast in his hand. Is the dough assumed to be Tamei? There is a Chazakah that the dough was Tahor until now, and that it is still Tahor. On the other hand, there is a Rov that most children play in the garbage and become Tamei by touching Neveilos and Sheratzim. In this case, the Chazakah merely tells us to apply the previous status of the dough to the dough at the present moment (when the Safek has arisen). The Rabanan maintain that since a Rov is stronger than a Chazakah of this type, we must assume that the dough is Tamei.

This is in contrast to a Chazakah that is based on logic, which is considered a strong Chazakah that can overpower a Rov. For example, the Chazakah that a person does not repay his debt before the set time for repayment arrives (Bava Basra 5a) is a strong Chazakah, because it is based on logic (a person will delay paying as long as he can -- "if only he would repay at the designated time!"). This Chazakah is so strong that it is considered as though there are witnesses who say that the debt was not returned before the set date.

According to this differentiation, the Maharit Algazi explains that if there would be a Chazakah that an animal has compassion only on her own baby, then this Chazakah indeed would be stronger than the Rov that most babies are the same species as their mothers, because this Chazakah is based on logic. In such a case, we would not say that a Rov is stronger than a Chazakah. (The Maharit Algazi states that our Gemara is clear proof for the proposal of the Teshuvas Maharit.) (D. Bloom)

24b

QUESTION: In the Mishnah, Rebbi Yosi Ben Hameshulam permits moving the wool away from the neck of a Bechor in order to prepare it for Shechitah, even though shearing a Bechor in the ordinary manner is prohibited. In the Gemara, Rav Huna asks whether it is permitted to remove the hair of an ordinary animal on Yom Tov in order to prepare it for Shechitah. Perhaps the only reason why it is permitted to remove the hair of a Bechor for Shechitah is because plucking wool by hand is not considered "shearing" (which involves removing hair with an instrument). However, plucking hair by hand *is* considered to be the Melachah of "Oker Davar mi'Gidulo," which is forbidden on Yom Tov. On the other hand, perhaps Rebbi Yosi ben Hameshulam permits moving away the hair from a Bechor before Shechitah because the person does not intended to pluck the hair, but merely to move it away. The fact that the hair is removed is a Davar she'Eino Miskaven, and thus the act would be permitted on Yom Tov as well.

Why does Rav Huna not ask his question in a much simpler manner? He should ask simply whether Rebbi Yosi ben Hameshulam permits even the intentional plucking of hair from the neck of a Bechor before Shechitah (since plucking hair by hand is not considered shearing), or does he permit only moving the wool even though there is a chance that it will be inadvertently plucked in the process. (TOSFOS DH v'Hainu)

ANSWERS:

(a) TOSFOS explains that even if plucking by hand is not considered shearing, the Rabanan prohibited plucking hair by hand from a Bechor. Accordingly, Rebbi Yosi ben Hameshulam permits only moving the wool away before Shechitah when one does not intend to pluck the wool. Rav Huna's question, therefore, is whether moving the wool away before the slaughter is prohibited on Yom Tov, when an Isur *d'Oraisa*, and not merely an Isur d'Rabanan, prohibits plucking the wool intentionally, or whether it is permitted, since it is a Davar she'Eino Miskaven.

(b) RASHI (DH v'Tolesh) does not appear to accept the explanation of Tosfos. The Gemara is indeed asking what Rebbi Yosi ben Hameshulam means by the words, "v'Tolesh Es ha'Se'ar." Does he mean that one may *intentionally* pluck the wool of the neck, or only that one may move the hair even though one will *inadvertently* pluck it?

The reason why Rav Huna does not ask this question explicitly may be because Rav Huna wants to teach an additional point. Rav Huna is teaching that if a Davar she'Eino Miskaven is permitted with regard to shearing a Bechor, then it is certainly permitted with regard to Yom Tov and Shabbos. The Rabanan did not prohibit it on Shabbos or Yom Tov, even though the intentional transgression of a Melachah is punishable with Sekilah (Shabbos) or with Malkus (Yom Tov). (M. Kornfeld)