A SAFEK ABOUT MA'ASER BEHEMAH [Ma'aser Behemah: Safek]
(Beraisa): Tumtum and Androginus enter the pen for Ma'aser;
R. Shimon says, they do not.
The first Tana holds that they are Sefekos. R. Shimon agrees, but even so they are invalid for Kodshim, for a definite male or female is required.
58a (Beraisa - Ben Azai): Because Tana'im argue whether Rosh Hashanah is the first of Elul or Tishrei, animals born in Elul are tithed by themselves.
(Rava): According to Ben Azai, if five were born in Av, five in Elul and five in Tishrei, he brings them into the pen for Ma'aser. He takes an Eluli for Ma'aser, and the others are exempt in any case;
If Rosh Hashanah is Elul 1, the Elulim and Tishrei'im joined, and there were only five from the year before. If Rosh Hashanah is Tishrei 1, the Elulim and Avi'im joined, and there are only five from the coming year.
Suggestion: In the latter case, the Tishrei'im should join animals that will be born later!
Rejection: Ma'aser must be a definite Asiri, not a Safek! (Since we are unsure, for perhaps the Tishrei'im were properly tithed, they are exempt from Ma'aser.)
58b (Mishnah): If a tithed animal re-entered the pen (and became mixed with the remaining animals), each is Ro'eh (grazes) until it gets a Mum, then the owner eats it.
If one of the counted animals re-entered the pen, they are all exempt.
Bava Metzi'a 7a (Abaye): We must say that the Torah requires a definite "Asiri (tenth)". A Safek (perhaps it was already counted) cannot be Ma'aser (even if really, it was not already counted.
Nidah 28a (Rav): If a Tumtum or Androginus saw Keri (a seminal emission) or blood, and 'he' entered the Mikdash and touched Terumah, 'he' is exempt. We do not burn the Terumah. If 'he' saw Keri and blood and touched Terumah, we burn the Terumah.
If 'he' entered the Mikdash, 'he' is exempt. "Mi'Zachar Ad Nekevah Tishalechu" commands a definite male or female, but not a Tumtum or Androginus.
Rambam (Hilchos Bechoros 6:16): If an animal exempt from Ma'aser, e.g. it was bought or orphaned, became mixed with the flock, all are exempt, because each of them is a Safek.
Ri Korkus: Even if an animal was obligated to be tithed, if it re-entered the pen and became mixed, it exempts all of them, and all the more so if an animal that was never obligated became mixed in! A Tosefta (Sof Bechoros) says so.
Lechem Mishneh: Even though a Tumtum or Androginus is a Safek male or female, in any case it is Vadai obligated to be tithed.
Rashi (57a DH Tumtum): R. Shimon holds that Tumtum or Androginus is a special creation (it is not a male nor female).
Question (Tosfos Bava Metzi'a 6b DH Kafatz): We should say that the animal that re-entered the pen is Batel in the majority, and all are exempt! Something that is counted is not Batel, but this is only mid'Rabanan! This is not an Isur Kavu'a, for that is when the Heter and Isur are recognizable.
Answer #1 (Ri Korkus): Tosfos did not give an answer. Perhaps here is different, for the Torah said "Asiri" to obligate a Vadai 10th. Also, if we would say that it were Batel, perhaps one would bring Chulin b'Azarah. We do not say Bitul in such a case. Chachamim have power to uproot a Torah law, just like they uprooted Ma'aser Behemah nowadays, lest one transgress (benefit from Kodshim). Since Chachamim said that any Davar sheb'Minyan (perhaps this should say 'living animal') is not Batel, they exempted all of them, to avoid Chulin b'Azarah, especially since a verse supports this.
Answer #2 (Tosefes Yom ha'Kipurim 74a DH Itztrich): Normally, the Torah is stringent about a Safek. This is why the Gemara asks only when a verse teaches a stringency about a Safek. Without a verse, we would say that the tithed animal is Batel, and we must tithe the entire mixture. The verse exempts Sefekos from Ma'aser Behemah
Answer #3 (Sha'arei Yosher 1:5): The Torah is lenient to exempt a Safek from being tithed, but if there is a Safek whether an animal became Ma'aser, we are stringent like for any Safek mid'Oraisa. Any Zevach, including Ma'aser, that became mixed with Chulin forbids them (Zevachim 71b). This is because a Safek count is not a count. The Taz (OC 489:6) explains that this is why one must know the day before blessing on Sefiras ha'Omer, unlike the Chayei Adam (who says that it is to avoid a Hefsek). This is why (in Chutz la'Aretz) we do not count the two possible days for Sefiras ha'Omer (and there was never such an enactment, even though Yom Tov Sheni was enacted due to a Safek about the day). If the owner was unsure about the count, even if later he found out that he was correct, it is not Ma'aser. However, if he counted nine, and two came out together after this, the 10th is automatically Kodesh. The owner must count only nine; and then the 10th is Kodesh by itself. We do not expound an extra word in the verse. Rather, since the Torah said "Asiri", we require a proper count.
Rambam (8:14): If one of the counted animals re-entered the pen, they are all exempt.
Ritva (in Shitah Mekubetzes Bava Metzi'a 6b, DH v'Zeh): The animal should be Batel, just like Terumah that fell into Tevel! Tosfos says that living animals are not Batel. Even though mid'Oraisa they are Batel, Chachamim can uproot Torah law through commanding that one be passive. This is wrong. Chachamim said so only for the sake of a fence. They did not say so without need! Here there is no need, and this steals from the Shevet (of Kohanim! The Ritva and R. Chananel hold that Ma'aser Behemah is given to Kohanim for a gift, just Yisre'elim may eat it - PF.) Rather, here it is not Batel due to "Asiri", which obligates a Vadai, and not a Safek.
Rosh (in Shitah 6b, DH Kafatz): Why isn't the animal that re-entered Batel in the majority? We can say that living animals are important, so they are never Batel. However, we could make them separate from the mixture, and then we would follow the majority! Chachamim decreed to be stringent and not do so when a Korban became mixed with others, lest one take from the Kavu'a. We could say that Chachamim made a uniform decree, and said so also here, even though it is a leniency. This is difficult. It seems that here also it is a stringency, lest one take from Kavu'a and offer it like Ma'aser, and it is Chulin b'Azarah. Alternatively, since we find that "Asiri" exempts a Safek even when we could tithe mi'Mah Nafshach (in a way that will be correct in any case. I.e. we tithe, and eat the Ma'aser after it gets a Mum. The others are exempt in any case), for the Torah requires a Vadai 10th, even if one separates follow the majority, it is called a Safek. The Torah relies on a majority to permit Isurim. The Isur is transformed to Heter through Bitul. However, here it will always be a Safek 10th.
Sha'arei Yosher (DH v'Al): The Rosh and Ritva say that even a majority is considered a Safek here, because the Torah requires Vadai. Many question this, for the Torah is lenient about Safek Tum'ah in Reshus ha'Rabim, yet we follow the majority, e.g. of frogs or Sheratzim, as long as it is not considered Kavu'a! Kesav veha'Kabalah says that R. Akiva Eiger answered that a majority does not help only when the Safek is only about this. When it is relevant also to other matters, since we follow the majority for them, we follow it also for Tum'ah or Ma'aser. If we would not say so, there is never Vadai Asiri, for every animal is Safek Tereifah! I disagree. Surely we can distinguish frogs from the Sheratzim, just we did not see which touched the Taharos! If we cannot distinguish them, there is no case of Kavu'a! Rather, we answer like I said. The majority does not clarify matters as well as witnesses. We rely on it for things that do not depend on man's knowledge, e.g. a Safek Mamzer. Ma'aser depends on the owner's knowledge. We can apply R. Akiva Eiger's reasoning to say that the owner has no Safek about Tereifah. This refers to a Ruba d'Leisa Kaman (a statistical majority, i.e. we know that most animals are not Tereifah), but not if something separated from a mixture known to contain Isur.
Divrei Malki'el (3:89): If the Torah Vadai exempts, this is even when one could say mi'Mah Nafshach. This is clear from Nidah 28a. Tosfos (Chulin 9b DH Hasam) says that when we are Metaher due to Chazakah, this is even if mi'Mah Nafshach it is Tamei. The Maharit (YD 1) says that the Torah permits a Safek Mamzer to marry a Bas Yisrael and a Mamzeres together, even though surely one of them is forbidden to him. This shows that when the Torah excludes a Safek, it is considered Vadai, even against mi'Mah Nafshach. Bechoros 58b connotes otherwise. A Tosefta and the Rambam exempt the entire flock if a Safek became mixed in. One could count 10 animals from the mixture, call the 10th 'ninth', and take an animal with a Vadai Chiyuv to tithe it and call the 11th '10th', with intent that since the 10th was truly the ninth (because one of the previous ones was exempt), the 11th is Ma'aser.
Note: Above he said that one takes 10 animals from the mixture. If so, perhaps all were exempt and the 10th truly gets Kedushah. Here he connotes that the exempt one is Vadai among the 10 (e.g. an exempt animal became mixed with nine). Perhaps he means to intend that if the 10th was truly the ninth, the 11th is Ma'aser.
Divrei Malki'el: Normally one may not do so, but here it would be permitted (for this is the only way to take Ma'aser, due to Safek). Rather, we must say that the Torah taught that they are Vadai exempt. This supports R. Akiva Eiger, the Sha'ar ha'Melech, Noda bi'She'arim and Radvaz (3:531), that a verse cannot exempt a Safek in Halachah. This is why Rava obligates tithing mi'Mah Nafshach, since the Halachah is a Safek. We cannot say that the verse exempts it. However, after passing the animals from Av and those from Tishrei through (and taking an Eluli for Ma'aser), it is a Safek in Ma'aseh whether the Tishrei animals were exempted, so then the verse Vadai exempts, even though the Safek arose due to a Safek Halachah. Therefore, one need not leave them to join with animals born afterwards. R. Akiva Eiger proved that a verse cannot teach about a Safek that is always one way.
Avnei Nezer (CM 128): The Shitah exempts a Safek 10th (from Ma'aser) even when a majority opposes this. A support for this is the Shev Shemaitsa, Beis Meir and the Mishnah that permits a Shtuki (Safek Mamzer) to marry a Mamzer (since the Torah permitted a Safek Mamzer, even though most Shtukim are Kesherim).
Pri Chodosh (DH v'Im Tomar l'Da'as): The Gemara brings verses to teach about Sefekos about Ma'aser Behemah (Bava Metzi'a 6a), a hair in a Nega, and Tum'ah in Reshus ha'Rabim. The Rambam says that all Sefekos are mid'Rabanan! We can say that these discuss when there was a Chazakah