1) THE HALACHIC EFFECT OF BIRTH ON A BABY
QUESTION: The Mishnah (end of 55b) states that an animal that was purchased or received as a gift is exempt from Ma'aser Behemah.
The Gemara relates that a teaching of a Tana was related in front of Rav, in which the Tana taught that there is a case in which an animal that was given as an Esnan Zonah (which may not be offered as a Korban) nevertheless could be one of the ten animals that enter the corral in order to have Ma'aser Behemah separated from the tenth. The case is when a man gives the Esnan Zonah to the woman and then, afterwards, he buys it back from her. RASHI (DH v'Chazar) explains that if the man owns nine other animals, then the Esnan combines with them and the obligation to separate Ma'aser Behemah takes effect. If one of the other nine animals emerges from the corral as the tenth, then that animal is Ma'aser and is offered as a Korban. If the Esnan emerges as the tenth, then it is not offered as a Korban, but it is left to graze until it develops a blemish, and then it may be eaten by its owner.
Rav challenged this scenario, asking that if the man purchased the Esnan from the woman, then it should be exempt from Ma'aser Behemah for a different reason: it is a purchased animal! The Gemara answers that Rav was not aware of the ruling of Rebbi Asi in the name of Rebbi Yochanan that when one buys ten embryos in their mothers' wombs, he is obligated to separate Ma'aser Behemah from them. (Rava, earlier in the Gemara, explains that in this case even a purchased animal is subject to Ma'aser Behemah, as is derived from the verse, "Thus shall you do" (Shemos 22:29), implying that a purchased animal is exempt only at the time of "doing," while embryos in their mothers' wombs cannot have anything "done" with them; they cannot, in their present state, have Ma'aser separated from them.) As Rashi (DH Ishtamitei) explains, the case of the Esnan that the Gemara is discussing involved an embryo in its mother's womb.
However, if the case involves an Esnan that was given as an embryo, then it should no longer be forbidden as an Esnan when it is repurchased, born, and emerges from the corral as the tenth animal. The baby's birth is considered a Shinuy, a change in its body, as it goes from an embryo to a live animal. The Mishnah in Bava Kama (93b) teaches that when a person steals a pregnant cow and it gives birth in the thief's possession, the thief is obligated only to pay back the value of the cow just before birth; he is not obligated to return the additional value of the baby that was born. He acquires the baby through the Shinuy of birth. The Mishnah there teaches that the transition from an embryo to a live animal is considered a Shinuy. In addition, the Gemara in Temurah (30b) teaches that an Esnan that underwent a Shinuy is no longer forbidden as an Esnan. The Gemara there quotes Beis Hillel who rules that if a man gave wheat as an Esnan, and the woman made flour from it, it is no longer forbidden as an Esnan because it has undergone a change.
Similarly, when a man gives as an Esnan an embryo in the mother animal's womb, the birth of the animal should be considered a Shinuy, and the animal should not be forbidden to be offered as a Korban!
ANSWER: The RASHASH answers based on the Gemara in Avodah Zarah (46b) which states that even though the offering made from the flour of a stalk of wheat that was worshipped as an idol may be offered in the Beis ha'Mikdash, the baby born to an animal that was forbidden as a Korban because it was worshipped as an idol is also forbidden to be offered as a Korban. The Gemara makes the distinction that an embryo that was born is not considered a Shinuy, because both before and after the birth it is considered an animal (and it is not considered to have changed as a result of birth). The only difference between before birth and after birth is that until it is born it is considered to be concealed behind a locked door. In contrast, the wheat of a stalk is called "wheat" before being ground, while after being ground it is called "flour," which is an entirely new entity, and thus it is considered a Shinuy and may be offered as a Korban Minchah. Even though birth is considered a Shinuy with regard to the obligations of a thief, TOSFOS in Avodah Zarah (46b, DH Kol) points out that the Chachamim were more lenient with regard to a thief in order not to discourage the thief from repenting. They decreed that birth is considered a Shinuy, thereby permitting the thief to keep the baby animal so that the thief will be encouraged to do Teshuvah.
The Rashash writes that although the Gemara in Temurah (30b) says that the baby of the animal given as an Esnan is permitted as a Korban, which implies that birth is considered a Shinuy, nevertheless there is a distinction between the case there and the case of the Gemara here. In the case of the Gemara in Temurah, the man gave a pregnant animal as an Esnan with intention that the mother animal be the Esnan, and not the baby. In the case of the Gemara here, the man specifically intended that the embryo inside of the mother animal be the Esnan. Accordingly, when the embryo is born, it is not considered a Shinuy to remove the Isur of Esnan from the baby. (This distinction made by the Rashash is actually stated by Tosfos to Bava Kama 66a, end of DH Hem. See also KETZOS HA'CHOSHEN 278:3 and 354:1.) (D. BLOOM)
2) THE "ESNAN" OF A JEWISH "ZONAH"
QUESTION: The Beraisa teaches that an animal given to a woman as an Esnan is included in the Ma'aser count when the man later buys it back from the woman. The Gemara learns from here that only a sheep given to a Nochri Zonah is considered an "Esnan Zonah" and may not be offered as a Korban. Since a Nochri does not separate Ma'aser Behemah, it will be included in the Ma'aser count only if it is bought back by a Jew.
The Gemara relates that a teaching of a Tana was related in front of Rav, in which the Tana taught that there is a case in which the obligation of Ma'aser Behemah may apply to an animal that was given as an Esnan Zonah (which may not be offered as a Korban). The case is when a man gives the Esnan Zonah to the woman and then, afterwards, he buys it back from her. When he puts the Esnan in the pen with nine other animals, the Esnan combines with them and the obligation to separate Ma'aser Behemah takes effect. If one of the other nine animals emerges from the corral as the tenth, then that animal is Ma'aser and is offered as a Korban. If the Esnan emerges as the tenth, then it is not offered as a Korban, but it is left to graze until it develops a blemish, and then it may be eaten by its owner.
The Gemara asks why the Tana discusses a case in which the man repurchases the animal from the woman. He should teach that it enters the pen when the Zonah herself counts her own animals for Ma'aser! The Gemara answers that the case involves a Nochri Zonah, and not a Jewish one.
The Gemara then asks that the Tana should discuss a Jewess and teach that the Esnan enters the corral when she counts her animals for Ma'aser. The Gemara answers that the Tana is teaching that the Esnan of a Jewish Zonah is not considered an Esnan (and it may be offered as a Korban).
The Gemara's assertion seems problematic, because the verse that discusses the Isur against offering an Esnan as a Korban (Devarim 23:19) does not explicitly state that what is given to a Jewish Zonah is not forbidden as an Esnan. Rather, the verse merely implies that only a wage given to a Zonah with whom Kidushin cannot take effect becomes unfit to be offered as a Korban. Accordingly, the wage of a Jewish Zonah with whom Kidushin cannot take effect (such as one's sister or aunt) should also be forbidden to be offered as a Korban! Why, then, does the Beraisa insist that the Zonah's Esnan must be sold to a Jew in order to be included in a Ma'aser count? It might already be in the hands of a Jew!
ANSWER: TOSFOS (DH Zonah) explains that the Esnan of a Jewish Zonah is indeed unfit to be offered as a Korban when Kidushin with her cannot take effect. The Beraisa means that the wage of an ordinary Zonah (who is not a relative of the man) is not prohibited for use as a Korban unless the Zonah is a Nochri.
3) BROTHERS AND PARTNERS WITH REGARD TO "MA'ASER BEHEMAH"
QUESTION: The Mishnah teaches that animals owned by partners are exempt from Ma'aser Behemah just as purchased animals are exempt. Only animals that are born to a single owner are subject to the obligation of Ma'aser Behemah.
The RAMBAM (Hilchos Erchin 6:10) writes that the second generation of jointly-owned animals are subject to the obligation of Ma'aser Behemah. Similarly, animals purchased by partners with money that was already invested in the partnership are also obligated (since a partnership is the same as a single owner). Only animals that were first owned by an individual and then became jointly owned by partners are exempt, since they are considered to be purchased animals.
What is the source for the Rambam's ruling? The Mishnah itself makes no distinction between first generation animals and second generation animals of a partnership.
ANSWER: The LECHEM MISHNEH points out that it is clear from the words of the Rambam in Perush ha'Mishnayos that his text of the Mishnah included the extra letter "Vav" which the BACH (#2) removes from our text. The Mishnah is not discussing "brothers who are partners," but "brothers or any other partners." Both brothers and partners can sometimes be obligated in Ma'aser Behemah, such as when they "bought the animals with the money of Tefusas ha'Bayis" -- referring either to money of the inherited estate, or to money of an existing partnership. Accordingly, second generation animals logically are equated with animals that were bought from jointly-owned money, and thus the obligation of Ma'aser Behemah applies to them.
(The Rambam understands the word "Kanu [mi'Tefusas ha'Bayis]" to mean "bought," unlike Rashi, who understands it to mean "received" or "owned." See also Rambam in Hilchos Shekalim 3:4.)