BECHOROS 35 - Dedicated by Josh Danziger of Cliffside Park, New Jersey.

QUESTION: The Mishnah relates an incident in which a Kasdor, a Roman government official, saw a Jew's old, male sheep with very long, uncut hair. He asked why the sheep was left alive for so long (and not slaughtered for its meat). The Jews replied that the animal is a Bechor and cannot be slaughtered unless it becomes blemished. The Kasdor took his lance and cut the sheep's ear. The case was brought before the Chachamim, who ruled that the animal may now be slaughtered and eaten due to the Mum.
RASHI (DH v'Hetiru) explains that it cannot be that the Nochri wounded the animal with intention to permit it (in which case the penalty prohibiting the Bechor would have taken effect), because the Nochri did not know that the Bechor would become permitted as a result of the injury that he inflicted upon it. When the Jews told him that the sheep would become permitted only with a Mum, the Nochri assumed that only a natural Mum would permit it.
The SHULCHAN ARUCH (YD 313:3) cites the ROSH (in Teshuvos) who gives a ruling that seems to contradict the Gemara. The Rosh rules that if a Nochri-maidservant working in the home of a Jew was told that one may not slaughter and eat a Bechor unless it has a Mum, and she went and cut off its ear, the penalty prohibiting the Bechor from being eaten applies. The Jews who told her that it cannot be eaten without a Mum deliberately encouraged her to make a Mum, and the Mum is considered to be a Mum intentionally inflicted in order to permit the animal.
How is the ruling of the Rosh to be reconciled with the Gemara?
ANSWER: The TAZ (YD 313:2) mentions several possible answers but refutes them. Perhaps in the case of the Rosh, the Nochri-maidservant was an employee in the home of a Jew, and thus she presumably intended to help her employer by inflicting a Mum on his Bechor, while in the case of the Gemara the Nochri was not an employee of the Jew. Although the Shulchan Aruch mentions that she was a worker in the home, the Rosh in his Teshuvah states simply that she was a Nochri and does not mention that she was employed by a Jew, implying that his ruling applies even when the Nochri does not work for a Jew.
Similarly, one cannot answer that in the case of the Rosh, the Jews informed the Nochri-maidservant about the law of a Bechor with a Mum without being prompted by any question, while in the case of the Gemara the Jews told the law to the Kasdor only after they were prompted by his question. This is not a valid distinction, because the Gemara explains that when the Mishnah says that if the Mum was inflicted "without knowledge" the Bechor is permitted, it means that even "Mesi'ach l'Fi Tumo" is permitted. RASHI (DH Mesi'ach) explains that even if the Kasdor would not have asked why the sheep was left alive for so long, but the Jews themselves innocently mentioned ("Mesi'ach l'Fi Tumo") to him that the Bechor could not be slaughtered until it became blemished and they did not intend for the Kasdor to blemish the animal, the animal remains permitted.
The Taz, therefore, suggests a novel approach to explain the ruling of the Rosh. He cites the story of Bar Kamtza in Gitin (56a), in which Bar Kamtza -- in his attempt to slander the Chachamim -- suggested to the Caesar that he send a Korban to the Beis ha'Mikdash and see whether the Jews accept it. The Caesar gave an animal to Bar Kamtza to bring to Yerushalayim, and on the way he inflicted a type of Mum in the animal which is not considered a Mum for the Korban of a Nochri, but it is considered a Mum for the Korban of a Jew. Rashi there (DH l'Didhu) explains that the only type of Mum that invalidates a Korban for a Nochri is a missing limb.
The Rosh understands that in the incident related in the Mishnah here, the Kasdor did not cut off the ear, but rather he pierced it with his lance. He did not know that by doing so, the animal would become permitted for Jews; he knew that for Nochrim such a wound is not considered a Mum. Therefore, the Chachamim permitted the animal. In contrast, in the case of the Rosh, the maid cut off the entire ear. She knew that the loss of a limb, such as the ear, is considered a Mum, and thus it is obvious that her intention was to permit the animal for the Jews. Therefore, the Jews are penalized and the animal is prohibited. (See also EVEN HA'OZER (in the margin of the Shulchan Aruch) and CHAZON ISH.) (D. BLOOM)
QUESTION: Rav Yehudah states that one is permitted to make a blemish in a Bechor before its head emerges from the womb, so that when it is born it will not have the Kedushah of a Bechor.
Why should this be permitted? According to the view of Rav Huna (Chulin 69b), the Kedushah of a Bechor takes effect retroactively. Once the head (or majority) of the animal has emerged, the animal is Kadosh retroactively, from even before the head emerged! Why, then, is one permitted to inflict a Mum in the animal? (TOSFOS DH Ika)
(a) TOSFOS first suggests that Rav Yehudah here does not follow the view of Rav Huna. Rather, he follows the view of Rabah in Chulin, who says that the Kedushah does not take effect retroactively, but only from the time that the majority of the animal emerged. According to Rav Huna, one indeed is prohibited to inflict a Mum on a Bechor as it emerges from the womb.
(b) Tosfos further suggests that Rav Huna agrees with the ruling of Rav Yehudah, but he maintains that Rav Yehudah permits one to blemish the Bechor only while it is entirely inside the womb, before even the ear or lip has emerged.
(c) In his third answer, Tosfos says that perhaps Rav Huna maintains that the Bechor becomes Kadosh retroactively only with regard to the prohibition against selling the animal. Retroactively, it may not be sold from the moment that it started to emerge from the womb (since it belongs to the Kohanim at that point). However, the Kedushah does not take effect on the Bechor until most of it emerges from the womb.


OPINIONS: The Gemara concludes that the Halachah follows the view of Raban Shimon ben Gamliel in the Mishnah (35a), who states that a Kohen shepherd is trusted to say that another Kohen's Bechor developed a Mum naturally, and we do not suspect that the shepherd inflicted the Mum himself. He is not trusted to testify about a Mum on his own animal.
What is the Halachah in the case of a Kohen who is a shepherd for the animals of a Yisrael? Is he trusted not to inflict a Mum on the Bechor of the Yisrael?
(a) The RAMBAM (Hilchos Bechoros 2:16) rules that a Kohen shepherd working for a Yisrael is not trusted. The RAMBAN explains that the Rambam understands that the Halachah follows the first version of the Gemara's explanation of the opinions in the Mishnah, according to which the Tana Kama rules that a Kohen shepherding the animals of a Yisrael is not trusted with regard to the Mum of a Bechor, because he expects the owner to give him all of the Bechoros in the flock. The Rambam maintains that Raban Shimon ben Gamliel does not argue with the Tana Kama on this point. They argue only with regard to whether a Kohen who is a shepherd for another Kohen is trusted (Raban Shimon ben Gamliel says that he is trusted). The SHULCHAN ARUCH (YD 314:2) quotes the Rambam's ruling.
(b) The RAMBAN (in Hilchos Bechoros here) disagrees with the ruling of the Rambam. He asserts that a Kohen who is a shepherd of a Yisrael is trusted with regard to the Bechoros of the Yisrael's flock. He does not accept the Rambam's interpretation of Raban Shimon ben Gamliel's opinion in the Mishnah.
The Ramban adds that even if the Rambam's interpretation would be correct, the Halachah would follow the more lenient conclusion of the Gemara's second version of the Machlokes in the Mishnah. According to the second version, the Tana Kama maintains that a Kohen who shepherds a Yisrael's animals is trusted. This is because the case involves only a penalty instituted by the Rabanan, as opposed to a prohibition mid'Oraisa (see Insights to Bechoros 34:5). The REMA (YD 314:2) sides with this opinion.