QUESTION: The Mishnah describes a situation in which an animal can mistakenly be counted as the tenth animal for Ma'aser Behemah and nevertheless remain Kadosh. A person "pronounced the ninth animal to be the tenth, the tenth to be the ninth, and the eleventh to be the tenth." The person made three mistakes in his count.

The Mishnah and Gemara explain that the second mistake is necessary for the eleventh animal to become Kadosh when it is mistakenly called the tenth. If the person did not make the second mistake and proclaimed the tenth to be the tenth, his mistake in counting the eleventh also as the tenth will not grant it Kedushah (since it cannot be the tenth if there already is a tenth).

Is the first mistake (calling the ninth the "tenth") also necessary in order for the eleventh to be Kadosh, or is it unrelated to the eleventh, and it is mentioned only in order to teach what becomes of the ninth when a mistake is made?

ANSWER: TOSFOS (60b, DH Ad) leaves this question unresolved. Although it is possible that the mistake of calling the ninth the "tenth" is unrelated to the eleventh, Tosfos mentions the possibility that it is indeed a prerequisite for the eleventh animal to become Kadosh. If the ninth is called the "ninth," then the tenth automatically becomes the tenth even if it is declared to be a different number as it exits the corral; the animal that follows the ninth is none other than the tenth, whether it is called the tenth or not. Once it is known that the animal that follows the ninth is the tenth, the eleventh animal, of course, cannot become Kadosh.

QUESTION: The Mishnah describes a situation in which a person "pronounced the ninth animal to be the tenth, the tenth to be the ninth, and the eleventh to be the tenth." In such a case, all three animals have the Kedushah of Ma'aser Behemah. The ninth animal may be eaten by its owner when it becomes blemished, the tenth is the actual animal of Ma'aser, and the eleventh must be offered as a Korban Shelamim.

The Mishnah says that, according to Rebbi Meir, if the owner attempts to exchange the eleventh animal with an animal of Chulin, the animal of Chulin becomes Kadosh as a Temurah. Rebbi Yehudah argues and says that since the eleventh animal was called the "tenth," it is considered as though it was made a Temurah for the tenth (see BARTENURA). Since the eleventh animal itself is considered a Temurah, another animal cannot be made into a Temurah for it. The Gemara in Temurah (13a) derives from the verse (Vayikra 27:33) that the Temurah of a sanctified animal becomes Kadosh, but the Temurah of a Temurah does not become Kadosh.

The Mishnah continues and relates that "they said in the name of Rebbi Meir that if the eleventh would be a Temurah, then it could not be offered as a Korban." As RASHI (DH Ilu) explains, Rebbi Meir is responding to Rebbi Yehudah and proving that the eleventh animal cannot be considered a Temurah itself, because if it would be a Temurah, then it could not be offered as a Korban. The Gemara in Temurah (5b) compares Ma'aser Behemah to Bechor and says that just as the Temurah of a Bechor is not offered as a Korban, the Temurah of Ma'aser Behemah cannot be offered as a Korban. Since the Mishnah here says that the eleventh animal is offered as a Korban Shelamim, this proves that it is not a Temurah.

Why does the Mishnah change the way it quotes Rebbi Meir? When the Mishnah first quotes Rebbi Meir it says, "These are the words of Rebbi Meir." When the Mishnah quotes his response to Rebbi Yehudah, it says, "They said in the name of Rebbi Meir."

This question becomes more difficult in light of the Gemara in Horayos (13b). The Gemara there relates that when Raban Shimon ben Gamliel was the Nasi, Rebbi Meir the pre-eminent Chacham, and Rebbi Nasan the Av Beis Din, a certain incident happened wherein Rebbi Meir and Rebbi Nasan did not give appropriate honor to the Nasi. Raban Shimon ben Gamliel penalized them by declaring that their teachings would not be mentioned in their names. Instead, the teachings of Rebbi Meir would be referred to as "others say (Acherim Omrim)," and the teachings of Rebbi Nasan would be referred to as "some say (Yesh Omrim)." Rebbi, the son of Raban Shimon ben Gamliel and the redactor of the Mishnah, taught the Mishnah here to his son, Rebbi Shimon, by saying, "Others say that if the eleventh would be a Temurah, then it could not be offered as a Korban." Rebbi Shimon asked his father, "Who are these scholars whose waters we drink but whose names we do not mention?" As a result of his son's comment, Rebbi changed the way he taught the Mishnah and said, "They said in the name of Rebbi Meir that if the eleventh would be a Temurah, then it could not be offered as a Korban."

Why, when Rebbi first quoted the Halachah in the name of Rebbi Meir, did he say, "These are the words of Rebbi Meir," but when he quoted Rebbi Meir's response to Rebbi Yehudah, he said, "They said in the name of Rebbi Meir"?

ANSWER: RAV YOSEF SHAUL NATANSON (in BEIS SHAUL, printed at the end of the Mishnayos) answers this question based on the words of the RIF in Shabbos (48b of the pages of the Rif). The Rif states that even though the rule is that whenever there is a dispute between Rebbi Meir and Rebbi Yehudah, the Halachah follows the view of Rebbi Yehudah (Eruvin 46b), this rule applies only when they openly argue. If, however, the Mishnah mentions Rebbi Meir anonymously (according to the principle that an anonymous Mishnah is the view of Rebbi Meir; see Eruvin 96b) and Rebbi Yehudah disagrees with that view in the Mishnah, the Halachah follows the view of Rebbi Meir.

The Beis Shaul asserts that the Rif's reasoning is that Rebbi, when he compiled the Mishnah, did not want to mention Rebbi Meir's name, as the Gemara in Horayos relates. He quotes the ruling of Rebbi Meir anonymously to show that the Halachah follows Rebbi Meir, but he does not mention Rebbi Meir's name. When, however, Rebbi quotes the ruling of Rebbi Meir and says, "These are the words of Rebbi Meir," his intention is negative -- to indicate that the Halachah in this case does not follow Rebbi Meir.

Therefore, since the Halachah does not follow Rebbi Meir's ruling that a Temurah can be made for the eleventh animal (as the Rambam rules in Hilchos Bechoros 8:2), Rebbi states openly that "these are the words of Rebbi Meir" in order to make it clear that the Halachah does not follow Rebbi Meir. However, Rebbi Meir's second statement, "if the eleventh would be a Temurah, then it could not be offered as a Korban," is the Halachah, as Abaye and Rava teach in Temurah (5b) that one cannot offer the Temurah of a Bechor or the Temurah of Ma'aser Behemah (as the Rambam rules in Hilchos Temurah 3:1). However, even though the Temurah of a Bechor and Ma'aser cannot be offered as a Bechor and as Ma'aser, they can be offered as Shelamim. The Gemara here (61a) derives from the verse, "If from the herd a Korban is offered" (Vayikra 3:1), that the eleventh animal is brought as a Shelamim even though the eleventh animal itself is considered the Temurah of Ma'aser, in accordance with the view of Rebbi Yehudah.

The Halachah that does follow the view of Rebbi Meir -- that if it would be a Temurah it would not be offered as a Korban -- was originally taught anonymously, with no mention of Rebbi Meir's name (as mentioned in Horayos 13b). Even when Rebbi changed the way he taught the law and decided to mention Rebbi Meir's name, he did not mention it directly ("Rebbi Meir says" or "these are the words of Rebbi Meir"), but rather he said that "they said in the name of Rebbi Meir," in order to show that the Halachah follows Rebbi Meir in this regard. However, Rebbi Meir's ruling that the eleventh animal makes another animal a Temurah is not the Halachah, because the Halachah is that the eleventh animal itself is a Temurah (which cannot make another Temurah). In order to teach that the Halachah does not follow Rebbi Meir with regard to this Halachah, Rebbi states the ruling explicitly in the name of Rebbi Meir -- "these are the words of Rebbi Meir." (D. BLOOM)

QUESTION: The Gemara teaches that if one counts the animals backwards (from ten to one) as the animals leave the corral, the tenth animal is Ma'aser Behemah, "because, in the Persian method of counting, a group of ten is called 'one'."

The RAMBAM (Hilchos Bechoros 8:7) rules: "If one counts the flock backwards, pronouncing the first one as the tenth and the second as the ninth and so on, and the tenth as the first, [the first animal] is Kadosh, because the tenth becomes Kadosh automatically (Asiri me'Elav Hu Kadosh)."

Why does the Rambam ignore the Gemara's reasoning for this Halachah and give his own reasoning? Moreover, the principle of "Asiri me'Elav Hu Kadosh" applies only when the animal before the tenth was called the "ninth." In this case, however, the animal before the tenth was called the "second"! (CHAFETZ CHAIM in LIKUTEI HALACHOS)

There is another difficulty with the words of the Rambam. If, as the Rambam writes, the reason why the animal counted as number one becomes Kadosh as Ma'aser Behemah is the principle, "Asiri me'Elav Hu Kadosh," then why does the Rambam (Hilchos Bechoros 8:5) rule like Rav Mari, who says that when a person counts his animals in pairs, the tenth group of two is Kadosh? The tenth animal should always be Kadosh, no matter what number it is called!

ANSWER: Apparently, although the tenth becomes Kadosh by itself, it is up to the person counting to determine what kind of a count to use -- to count single animals, to count pairs of animals, and so on. Once he chooses to count pairs of animals, the tenth pair automatically becomes Kadosh.

The same applies to a backwards count. The rule of "Asiri me'Elav Hu Kadosh" works only after the Halachah has determined that counting backwards is considered a valid form of counting -- since it is used by the Persians. Once it is considered a legitimate method of counting, the Rambam can rule that the tenth is Kadosh even though it is pronounced "one" and not "ten" because "Asiri me'Elav Hu Kadosh." (Z. Wainstein)