1) THE RELIABILITY OF A "NOCHRI" SELLER
QUESTION: The Mishnah (19b) discusses whether the law of Bechor applies when one buys an animal from a Nochri and the animal gives birth, and it is not known whether this is the animal's first birth. The Gemara asks what is the Halachah in a case in which one buys an animal from another Jew, and it is not known whether the animal has given birth before or not.
Rav says that when one buys an animal from another Jew, the first baby that is born afterwards is considered to be a definite Bechor. Had the animal given birth before, the seller certainly would have informed the buyer in order to praise the merchandise that he was selling.
RASHI (DH Ishtabuch) explains that the seller would have informed the buyer in order to assure him that he will not lose the first animal that is born by having to give it to a Kohen.
TOSFOS (DH Ishtabuch) has a different text in the words of Rashi. According to his text, the seller certainly would have informed the buyer that the animal had already given birth in order to assure the buyer that the animal was healthy, because an animal that has safely undergone a birth will not be in mortal danger at subsequent births. According to this explanation, though, why should the same reasoning not apply to an animal bought from a Nochri? If the Nochri's animal has given birth before, then certainly the Nochri will praise the animal in order to promote the sale (and perhaps to take a higher price), and he will tell the Jew that it has given birth in the past. The fact that he does not tell the Jew that the animal has given birth should indicate that it has never given birth!
Tosfos explains that the reason why we do not apply the same logic when one buys an animal from a Nochri is because even the Nochri tells the Jew that the animal gave birth, we do not rely on his word. Tosfos write that we learn from Rashi's explanation that a Nochri is not believed, even when he is "Mesi'ach l'Fi Tumo" and is unaware that we are relying on his word with regard to a Torah law (see Insights to Chulin 66:6
Tosfos implies that the reason we assume that he is lying is because he wants to praise his merchandise. However, the Gemara in Bava Kama (114b) states that a Nochri is not believed with regard to an Isur d'Oraisa, even when he is "Mesi'ach l'Fi Tumo" (with the exception of testifying l'Fi Tumo about the identity of a woman's husband who died in order to permit the widow to remarry)! Why, then, does Tosfos need to say that the reason the Nochri is not believed is because he was merely promoting his merchandise, implying that a Nochri is believed when he is not promoting his merchandise? (See SHACH YD 316:2, in the name of the TERUMAS HA'DESHEN #13a, and MAHARIT ALGAZI, p. 14, #29, DH v'Hineh mi'Divrei, in the name of the MAHARNACH.)
ANSWER: The MAHARIT ALGAZI answers that Tosfos maintains that when one buys an animal from a Nochri and does not know whether it has given birth in the past, the obligation to give the next animal that is born to a Kohen as the Bechor is not a Chiyuv d'Oraisa.
This is evident from the Gemara earlier (19b). In the Mishnah there, Rebbi Yishmael says that when one buys a goat from a Nochri and does not know whether the goat has ever given birth before, if the goat is not older than one year old, we may assume that it has never given birth before, and the next birth may be assumed to be its first one, and the firstborn male is considered the Bechor and must be given to a Kohen. If the goat is older than one year, then it is a doubt whether this birth is its first or not, and the newborn kid is left to graze until it gets a Mum, and the owner may then eat it. The Gemara asks why Rebbi Yishmael considers the kid born to a goat older than one year to be a Safek Bechor. There is a Rov that tells us that a majority of goats became pregnant in their first year, and thus we should follow the Rov and assume that this kid is not the Bechor. The Gemara suggests that Rebbi Yishmael follows the view of Rebbi Meir who rules that we are concerned for a minority (Mi'ut). Since a minority of goats do not became pregnant in their first year, we must be concerned that this goat is of the minority, and its kid indeed might be a Bechor.
Tosfos (20a, DH v'Iba'is) states that Rebbi Meir's concern for the minority is only a stringency, a Chumra d'Rabanan. Therefore, since the baby born to an animal over one year old is only a Bechor mid'Rabanan, a Nochri would be believed to say that the animal had already given birth, if not for the suspicion that he is lying in order to praise his merchandise.
The Maharit Algazi adds that this explanation is true even according to Ravina, who says that Rebbi Yishmael in the Mishnah can be following the view of the Chachamim who are not concerned for a minority. Ravina explains that the Chachamim follow the majority only when it does not depend on an action (see Insights to Bechoros 20:1
). The Chachamim do not
follow the majority when it depends on an action occurring -- a "Rov ha'Taluy b'Ma'aseh" (in the case of the Mishnah, the majority depends on the goats breeding, and the Rov does not tell us that an action has taken place). When the Chachamim follow a minority, however, they only follow the minority mid'Rabanan. Therefore, we would rely on the words of a Nochri who is "Mesi'ach l'Fi Tumo" if not for the suspicion that he is lying to promote his merchandise.
(However, see TESHUVOS REBBI AKIVA EIGER 1:162, DH b'Hineh, who states that the RAMBAM maintains that a Rov that depends on an action is not considered a Rov even mid'Oraisa. The RASHBA argues and maintains that mid'Rabanan it is not considered a Rov. The Rashba's view supports the approach of the Maharit Algazi. See also CHAZON ISH YD 190:10.) (D. BLOOM)
2) BURYING A LARGE CLUMP OF BLOOD
QUESTION: In the Mishnah, Rebbi Eliezer ben Yakov says that a large clump of blood that was discharged from the womb of an animal must be buried, because, as RASHI explains, it might have been composed of the fetus of a firstborn male which became Kadosh upon exiting the womb.
However, we find that the Mishnah in Chulin (77a) says that when a cow miscarries with the fetus of its firstborn, the fetus may be fed to the dogs (i.e. discarded). Why, then, does the Mishnah here state that when a cow discharges a large clump of blood at its first pregnancy, the clump must be buried?
ANSWER: TOSFOS (DH Behemah) explains that the reason why the clump of blood must be buried is not because it has Kedushah. Rather, it must be buried in order to publicize that any further offspring from this cow is exempt from the law of Bechor.
Why, though, is a miscarried fetus of a cow not buried for the same reason?
The RAMBAN here (in Hilchos Bechoros l'ha'Ramban) and TOSFOS in Nidah (27b, DH Kedei) answer that if the cow gave birth to a stillborn fetus, it is apparent to all that this was its firstborn and that any further offspring is exempt from Bechorah. However, not everyone is aware that giving birth to a clump of blood can exempt subsequent animals from Bechorah, and therefore it must be publicized.