1)

TOSFOS DH ha'Loke'ach Ubar Chamoro Shel Oved Kochavim veha'Mocher Lo

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(SUMMARY: Tosfos explains that these two laws are learned from different verses.)

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(a)

Explanation: One who buys [the fetus] is exempt from Bechorah due to the mother, which a Nochri owns. One who sells it is exempt due to the child, which is the Nochri's;

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1.

We learn from two verses, like it connotes that in the Gemara below regarding partnership with a Nochri, which is exempt from Bechorah due to the mother, even [if the Nochri owns only] the ear;

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2.

This is like we say (below, 3a), what is different about it (any Nochri ownership in the fetus exempts, because) we require "Kol Bechor", and this is not fulfilled? Also in the mother [any Nochri ownership exempts], for we require "v'Chol Miknecha Tizachar", and this is not fulfilled!

(b)

Implied question: Why does [the Gemara] make a Tzerichusa for buying and selling (explain why the Mishnah needed to teach both), and not say that it is because they are learned from two verses?

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(c)

Answer: It is because both (exemptions) were not taught regarding a buyer or seller. It could have taught "one who buys a fetus of a Nochri, or the mother", or "one who sells a fetus to a Nochri, or the mother";

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1.

[Since it did not teach so,] this shows that it needs [to teach] a buyer and a seller, like [the Gemara] explains, for from a buyer we cannot learn a seller.

('' ' ) [" ' - ] '

(d)

Question: Our Mishnah connotes that we learn both from one verse, for it taught 'he is exempt, for it says "b'Yisrael"!'

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(e)

Answer: We must say that it refers to a seller, for the entire Parshah does not discuss the mother, rather, the fetus.

2)

TOSFOS DH veha'Mishtatef

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(SUMMARY: Tosfos discusses the verses that exclude partnership with a Nochri.)

('' ' ) [" (:) ' - ]

(a)

Citation: Below (56b), we say that Bechor applies to a partnership, for it says "Bechoros Bekarchem v'Tzonchem."

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(b)

Question #1: I should know this already, since "b'Yisrael" is needed to exclude partnership with a Nochri. This implies that partnership with a Yisrael is obligated!

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(c)

Question #2: In Chulin (135b) it says 'why do we need "Bekarcha u[v]'Tzoncha"? This excludes partnership with a Nochri. Here we exclude it from "b'Yisrael"!

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(d)

Answer: According to what I explained (in the previous Tosfos) that there are two verses, one for the fetus, and one for the mother, this is fine. From "b'Yisrael" we exclude partnership [of a Nochri] in the fetus, and from Bekarcha we exclude partnership in the mother, and likewise we exclude it from "[v']Chol Miknecha Tizachar." (R. Yom Tov Algasi asks that still, why are two verses needed for the mother? He answers that one exempts a Hefker animal. Chidushei Basra says that the Sifri expounds Bekarcha for other Kodshim. Maharsha connotes that since also the Drashah from Mishneh Torah is based on the final Chaf, this is considered one verse);

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1.

[The Gemara in Chulin] prefers to bring Bekarcha, since it brought there "Bekarchem v'Tzonchem", like it says there 'even though it says "Bekarcha u[v]'Tzoncha", and one could say that yours, yes (Bechorah applies), but a partnership no, it says "Bekarchem v'Tzonchem" (to obligate partnership).'

2.

Below, it brings "v'Chol Miknecha" due to the Drashah of "Kol".

() [" - ]

(e)

Support: It is fine that we need "Bekarchem" due to partnership in the mother, for from the need for "b'Yisrael" to exclude partnership with a Nochri, we do not include partnership in the mother with a Yisrael from "b'Yisrael", for it is written about the fetus.

(f)

Implied suggestion: Perhaps because the Torah revealed about the child "b'Yisrael", we learn that Bekarcha excludes partnership with a Nochri, and "b'Yisrael" properly refers to all of them (also the mother)!

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(g)

Rejection: In all of them we exclude partnership with a Nochri in Chulin (135b) - Terumah, for it says "Reishis Degancha", Pe'ah because it says "Pe'as Sadcha", and Ma'aser because it says "Masar Deganecha." We exclude them even though it is not written "b'Yisrael"!

3)

TOSFOS DH Maisi Lah li'Kedushah

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(SUMMARY: Tosfos concludes that this is Kedushas Bechorah.)

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(a)

Explanation #1 (Rashi): [Buying an animal from a Nochri, he brings it to Kedushah,] for it will rest on Shabbos. Similarly, [selling to a Nochri] is Mafki'a (uproots) Kedushah from it, for the Nochri will do Melachah with it on Shabbos.

(b)

Objection: The expression "Kedushah" does not connote like this!

(c)

Explanation #2: Rather, it refers to Kedushas Bechorah, like the case of Mari bar Rachel. Also his animals were finished off because he uprooted them from Kedushah. He used to be Makneh their ear to a Nochri.

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(d)

Implied question: Regarding a buyer, if the child is a male, bringing it to Kedushah does not apply! (Since a Nochri owned the mother, it has no Kedushah.)

(e)

Answer: Sometimes the fetus is female, and he brings it to Kedushas Bechorah. The child of the fetus will have Kedushas Bechorah.

(f)

Implied question: Without the reason of Bechorah, we can say that it is not applicable to fine [a buyer], since there is no Hafka'ah. This is unlike selling, in which there is Hafka'ah!

(g)

Answer: He prefers to say that [buying] even has bringing to Kedushah.

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(h)

Observation: He could say another reason. Had he taught a buyer, this is because he did not do an Isur. However, a seller did an Isur, like it teaches "even though he is not allowed", one might have thought that we fine him. It mentioned one of two reasons.

(i)

Support: All the more so it is fine now that it did not mention the reason I explained in our Mishnah, because we learn from two verses.

4)

TOSFOS DH Le'afukei mid'R. Yehudah

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(SUMMARY: Tosfos points out that in any case it needed to teach partnership.)

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(a)

Implied question: Also without R. Yehudah it needs to teach partnership, which we do not learn from the Reisha!

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(b)

Answer: All the more so it is needed more, since we find an argument about this.

5)

TOSFOS DH Aval Ubar Kivan d'Hainu Orchei Lav Shavur Hu

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(SUMMARY: Tosfos discusses the reason to forbid a fetus.)

(a)

Explanation #1: It is because one could come to confuse it with another animal.

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(b)

Explanation #2: It is because in the future it is destined to be born and be proper for work.

(c)

Support: For this reason we conclude that it is forbidden, for it says that also a fetus is like [a broken animal] that can heal. It mentioned one of two reasons.

6)

TOSFOS DH v'Nosen Chetzi Damav l'Kohen

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(SUMMARY: Tosfos discusses why he gives its value.)

( ) [" ] ' '

(a)

Explanation: However, it does not have Kedushas ha'Guf to be offered on the Mizbe'ach, due to the Nochri's share, like Rashi explained.

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(b)

Explanation: Below (9b), R. Yehudah permits shearing and working it. He expounds "Lo Sa'avod bi'Vchor Shorecha", but you may work with [the Bechor of] what you own with others. "V'Lo Sagoz Bechor Tzonecha", but you may shear [the Bechor of] what you own with others.

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(c)

Question: Granted, it does not have Kedushas ha'Guf. In any case, since mid'Oraisa it is obligated in Bechorah, the portion he has should belong to the Kohen. Why does he give the value of his share?

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(d)

Answer: It is for the benefit of the Kohen. He is unhappy to have partnership with a Nochri, for he cannot take his share from the Nochri so quickly.

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(e)

Question: In the Seifa, which teaches that we fine him until 10 times its value, and he gives its full value to the Kohen, since he buys it from the Nochri, it itself should be [the Kohen's]. Why [does he get only] its value?

[" " " - ]

(f)

Answer #1: It is because sometimes the Kohen cannot buy it so quickly from the Nochri.

[" - ] ( .)

(g)

Answer #2: If we discuss a Peter Chamor (firstborn donkey) it is better in the Reisha and in the Seifa. He gives its value, because the Peter Chamor itself is not given to the Kohen, rather, it is redeemed for a Seh Kol d'Hu (of any value) or for [the Peter Chamor's] value, like it says below (9a. Acharonim ask that the Tosefta proves that we discuss Tahor animals. Merumei Sadeh adds that we discuss R. Yehudah, and we conclude (11a) that he permits Pidyon Peter Chamor only with a Seh! Rather, since there is no Kedushah, it suffices to give the value.)

7)

TOSFOS DH Konsin Oso Ad Asarah b'Damav

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(SUMMARY: Tosfos explains that this applies only to a big animal.)

[ " ', ]

(a)

Explanation: We forbid only for a big (work) animal, but not for a small animal. Since the Isur is only due to custom, even in a place where [Nochrim] are suspected of bestiality, for a Nochri is concerned for his animal that it not become sterile [through bestiality], they did not fine, even in a place where the custom is not to sell (small animals);

:

1.

Below, Reish Lakish said that if one sells a big animal to a Nochri, we fine him until 10 times its value. This is only for a big animal, but not for a small animal.

2b----------------------------------------2b

8)

TOSFOS DH Mai Lav a'Ubar

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(SUMMARY: Tosfos discusses what we infer from the Beraisa.)

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(a)

Explanation: It discusses a pregnant animal.

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(b)

Explanation (cont.): [The Gemara] answers "no, the animal." I.e. we do not discuss the fetus, rather, an animal for its fetus.

(c)

Support: It connotes like this below regarding the question of an animal for its fetus - what is the law?, and it wants to resolve from here (this Beraisa) that it is forbidden. It says "doesn't it refer to the animal?!"

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1.

Inference: If it refers to the animal, it discusses an animal for its fetus.

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(d)

Question: Seemingly, it does not discuss an animal for its fetus, for if so, what was the question "[the Beraisa] taught Damav (in the masculine)!"? He should say that it refers to the fetus!

1.

Suggestion: It connotes to [the Gemara] that it refers to the animal.

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2.

Rejection: If so, also below it should infer like this! (On 3a, we suggest that the Beraisa discusses a female for its offspring, and rejects that [perhaps] it discusses a fetus. It supports this from "he is fined until 10 times b'Damav." It should have immediately rejected absolutely like here, that it cannot refer to the mother, for it says "Damav"! And why does it cite there more than the word Damav?)

( ) [" - ]

(e)

Answer: Here we discuss an animal to be fattened, and below, for its fetus." (This is why below, the masculine "Damav" is fine, but here we must change it to the feminine.)

9)

TOSFOS DH d'Lo Mekabeles Zachar

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(SUMMARY: Tosfos explains that it is not due to being Tereifah.)

( :) '' [ ] '

(a)

Explanation: This is not because it is Tereifah, since it says in Chulin (57b) about R. Shimon ben Chalafta that he engaged in matters. (He had a chicken whose small feathers had fallen out, and caused it to grow more feathers, to persuade R. Yehudah to retract his opinion that such a bird is Tereifah. It says) "perhaps R. Yehudah holds that a Tereifah can give birth, and can improve!"

(b)

Disclaimer: In some Seforim the text does not say "give birth", for there is no need for [ability to] give birth, only for improvement.

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(c)

Assertion: In any case, presumably, here even if it is broken even from the knee or below (which does not make it a Tereifah), R. Yehudah permits, for it will not mate with a male.

10)

TOSFOS DH ul'Taimech ha'Mishtatef Lo v'Chulei

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(SUMMARY: Tosfos explains why we do not ask from Kabalah.)

(a)

Explanation: One cannot ask from Kabalah (accepting to take care of an animal and share the profits) that it should be forbidden due to partnership, for through Kabalah, he does not come to swear so often;

1.

It specifically mentioned partnership, but other business [with Nochrim] is not forbidden.

11)

TOSFOS DH Asur l'Adam she'Ya'aseh Shutfus Im ha'Oved Kochavim

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(SUMMARY: Tosfos brings sources that permit.)

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(a)

Implied question: A Beraisa in Avodah Zarah (22a) says that if a Yisrael and Nochri received a field in partnership... And similarly, the episode in which [a Nochri and Yisrael accepted to plant trees on a field in partnership]. The Nochri took the years of Orlah, and the Yisrael took the years of Heter...

( .)

1.

And it says in Chulin (133a) that if one is a partner with a Nochri [in an animal], he must make a Siman (so people will know why he does not give Matanos)!

(b)

Answer: All of these argue with Shmuel's father. (How can he argue with a Beraisa and Mishnah? The Ra'ah, Ritva and Ran bring from the Ramban that Shmuel's father "forbids" only from Midas Chasidus; R. Tam in the coming Tosfos connotes like this. Merumei Sadeh says that Tana'im argue about "Lo Yishma Al Picha"; Shmuel's father holds like those who forbid only if one benefits from mentioning the idolatry. Mar Dror suggests that the Isur is only with Nochrim wont to mention idolatry.

12)

TOSFOS DH Shema Yischayev Lo Oved Kochavim Shevu'ah

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(SUMMARY: Tosfos discusses whether or not one may accept a Nochri's Shevu'ah.)

[" - ] ''

(a)

Opinion #1: From here, the Rashbam forbids accepting a Shevu'ah from him, from a Kal v'Chomer. (One may not join with him, lest he swear in the name of idolatry. All the more so one may not accept the oath!)

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(b)

Opinion #2: R. Tam permits, for it is like saving [one's property] from them.

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(c)

Source #1 (Avodah Zarah 6b - Beraisa): One may collect a Milveh Al Peh (a loan without a document) from [Nochrim shortly before their festival], for it is like saving from them. [We permit] even though he will thank his idolatry!

(d)

Rebuttal: (This is not a proof.) We can distinguish between Safek [lest he thank] and Vadai [swearing in its name].

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(e)

Source #2: In Megilah (28a), Avuha bar Ihi said "I will receive [reward], for I did not make partnership with a Nochri." If it is forbidden, what was special about him?!

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(f)

Remark: R. Tam similarly explained that people were not careful about three meals [on Shabbos], since [Rav Nachman] said "I will receive, for I fulfilled three meals." This implies that not everyone was careful about them.

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(g)

Explanation (R. Tam): Further [it is permitted, for] nowadays all [Nochrim] swear in [the name of] their Kodshim (bible), and they do not consider them to be divine;

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1.

Even though they mention [with their Kodshim] the name of Heaven (Hash-m), and they intend for [Oso ha'Ish], in any case this is not idolatry, for they intend for the Maker of Heaven and earth;

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2.

Even though he joins the name of Heaven (Hash-m) with another matter, this is not "v'Lifnei Iver Lo Siten Michshol" (causing him to transgress), for a Ben Noach is not commanded about this. We do not find an Isur to cause [a Nochri] to join (Hash-m's name with another matter, even though a Yisrael may not do so).

13)

TOSFOS DH d'Ikar Mechirah

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(SUMMARY: Tosfos concludes that this Isur is more known.)

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(a)

Explanation #1 (Rashi): The primary Isur is selling.

(b)

Inference: [Partnership and Kabalah are forbidden due to] the primary Isur, [which] is selling.

(c)

Objection: Partnership is not forbidden due to selling, rather, like Shmuel's father taught (lest the Nochri swear in the name of idolatry)!

'' ' '' ( :):

(d)

Explanation #2: The primary, obvious Isur is selling, like a Mishnah (Avodah Zarah 14b) teaches. (The other Isurim are not taught in Mishnayos.)

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