BECHOROS 20 (2 Iyar) - Dedicated by Mrs. Libi Feinberg l'Iluy Nishmas her mother, Rachel Leah bas Reb Yaakov Ha'Levi, for the day of her first Yahrzeit.

1)

TOSFOS DH Machavreta R. Yishmael k'R. Meir Sevira Lei d'Chayish l'Mi'uta

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(SUMMARY: Tosfos explains that he considers it like an even Safek.)

'' ( .)

(a)

Explanation: The reason is, we join the minority that do not become pregnant to the Chazakah that it did not give birth, and the majority is weakened, and we do not consider it a Vadai Bechor, for it is only an even Safek, like it says in Yevamos (119a), and there I elaborated (119b DH Semoch).

( .)

(b)

Implied question: Why are we Metaher Safek Tum'ah, in Chulin (86a)? (If a child is next to a dough, holding a piece of dough, R. Meir is Metaher. He joins the minority of children who do not touch to Chezkas Taharah of the dough. He should not be Metaher an even Safek!)

() [" - ]

(c)

Answer: This is because we learn from Sotah to be Metaher a matter that Ein Bo Da'as Lish'ol (no one with intelligence saw, so there is no one to ask).

(d)

Support: This is why it says there "if they said [that we join the minority] to be Metaher Safek Tum'ah, will we say so to permit Safek Isur?!" (Ein Bo Da'as Lish'ol applies only to Tum'ah.)

2)

TOSFOS DH Ravina Amar Afilu Teima Rabanan

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(SUMMARY: Tosfos explains why we do not say so about human relations.)

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(a)

Question: [The Gemara] does not answer so in Yevamos (119a) on the Mishnah "she may not marry or do Yibum until we know, lest she or her Tzarah is pregnant"!

'' ('' .)

(b)

Answer: Bi'ah of people is not considered dependent on an action, like Bi'ah of animals, for sometimes one must mate an animal, like it says in Bava Metzi'a (91a) that one may insert [an animal's Ever into the female] like the stick into the tube [of mascara].

3)

TOSFOS DH R. Yehoshua Savar Chosheshin l'Tinuf

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(SUMMARY: Tosfos resolves this with R. Yehoshua's opinion elsewhere.)

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(a)

Question #1: We conclude below (20b) that R. Yehoshua is not concerned for the minority, like we infer from the Mishnah of [Leah] who left when she was pregnant (and her only son died without children). R. Yehoshua says, [the widow] need not be concerned [lest Leah gave birth to a son]. If so, why is he concerned here for the minority that secrete Tinuf?

'' ( :)

(b)

Question #2: In a case like here, even R. Meir is not concerned, like it says in Yevamos (119b) that when there is a majority and Chazakah [supports it], the minority is [considered] a miniscule minority [and even R. Meir is not concerned for it];

1.

Here there is a majority that do not secrete Tinuf, and the Chazakah is that it did not give birth!

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(c)

Answer #1: In any case it is not a Vadai Bechor to give it to the Kohen, for Chezkas Mamon is stronger [than the other Chazakah with the majority], and ha'Motzi me'Chavero Alav ha'Re'ayah.

('' .)

(d)

Implied question: Rav follows the majority in the case of one who sells an ox to his colleague, and it was found to be a gorer (Bava Kama 46a. If most people buy for plowing, it is a Mekach Ta'os, and the seller must return the money. Rav should likewise follow the majority here, and consider it a Vadai Bechor!)

(e)

Answer #1: That is because there, [the buyer] can say "I know that I am from the majority."

''

(f)

Answer #2: We can distinguish between money that no one can claim it (even a Vadai Bechor, no Kohen has a claim to it) and money [paid for the ox] that has a claimant.

(g)

Question: It is somewhat astounding, that to be lashed for shearing or working [with it], or to offer it on the Mizbe'ach, it is considered a Vadai Bechor, for we follow the majority and the Chazakah, but regarding giving it to a Kohen, it is considered a Safek!

()

(h)

Answer #2 (to Questions #1,2): We are concerned for the minority that secrete Tinuf because most animals become pregnant when they reach the age that it is proper to become pregnant. (We should say that it became pregnant, and the fetus became Tinuf! The majority that became pregnant offsets the majority that do not secrete Tinuf. We do not follow the Chazakah that it did not give birth, for this is prone to change when it reaches the age that it is proper to become pregnant and give birth.)

4)

TOSFOS DH l'Kula Lo Chayish

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(SUMMARY: Tosfos explains why we apply this even monetarily.)

(a)

Explanation: He even gives it to a Kohen, since it is offered on the Mizbe'ach. (Reishis Bikurim - since for Isur we consider the majority like Vadai, the same applies for Mamon.)

(b)

Question: Regarding a donkey, it is difficult. We should establish money in the owner's hand, and not follow the majority! (Reishis Bikurim - we are stringent about the Isur, but it is not proven that we consider it Vadai. Even amidst Safek we would be stringent! Alternatively, this is like R. Shimon (9b), who permits benefit from a Peter Chamor, so there is no Isur - PF.)

'

1.

Even Rav agrees here that we do not follow the majority, like I explained above (DH v'R. Yehoshua. The Kohen cannot say that "I know that it is from the majority." Alternatively, this is money that no one can claim it!)

''

(c)

Answer: He decrees about a donkey due to a Tahor animal.

5)

TOSFOS DH v'Iba'is Eima Bein l'Kula Bein l'Chumra Chayish

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(SUMMARY: Tosfos discusses whether R. Meir is concerned for the minority mid'Oraisa.)

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(a)

Observation: Also initially that he wanted to say that he is not concerned to be lenient, it connotes that this is according to R. Yishmael, but R. Meir is concerned everywhere.

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(b)

Implied suggestion: One can derive from here that R. Meir is concerned for the minority, this is mid'Oraisa, since he is concerned here even to be lenient, i.e. he does not give it to a Kohen!

(c)

Rejection #1: [One cannot derive this,] for we do not follow the majority for Mamon.

''

(d)

Rejection #2: [One cannot derive this,] for there is a majority that becomes pregnant when they reach the age proper to become pregnant, which supports the minority.

' ('' :) ''

(e)

Citation: In Avodah Zarah (34b), regarding cheese of Beis Onaiki, it says that R. Meir is concerned for the minority and decrees the majority due to the minority, and he does not decree other places due to that place;

1.

Inference: Also in that place (Beis Onaiki, he is) not [concerned] mid'Oraisa, rather, mid'Rabanan, due to a decree due to the minority.

'' ( .) ''

(f)

Citation: Also in Chulin (12a, the Gemara) asks according to R. Meir [who is concerned for the minority], how can we answer for Pesach and Kodshim? The Torah permitted [eating them. We are not concerned lest it is Tereifah, e.g. there was a hole where the knife cut!]

1.

Inference: It did not say "how can we answer for Besar Ta'avah (eating meat without a Mitzvah), which the Torah permitted?" This connotes that he is concerned mid'Rabanan, and even if he decrees about Besar Ta'avah, he does not decree about Pesach and Kodshim, for it is impossible [to be stringent without being Mevatel the Mitzvah];

2.

And even though [Chachamim] could not uphold their decree there [for Pesach and Kodshim], they upheld it where it is possible (Besar Ta'avah).

i.

Note: There is an implied question. There, the Gemara suggested that for Torah laws, we follow the majority only when there is no alternative. It supported this from R. Meir, who is concerned for the minority, but does not forbid eating Pesach and Kodshim, for there is no alternative. If R. Meir is concerned for the minority only mid'Rabanan, how can we learn from him to Torah Isurim? (Tzon Kodoshim)

'' [" - ]

(g)

Answer: Likewise, mid'Oraisa, when it is possible to check [when it is Tereifah], it is possible, and when it is impossible to check, it is impossible;

1.

If it were true that mid'Oraisa there is no difference between possible and impossible, Chachamim would not be stringent to decree when it is possible, since they saw some place where they were not concerned, e.g. when it is impossible.

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(h)

Distinction: However, when a Chazakah supports the minority, it seems that R. Meir is concerned for the minority mid'Oraisa, since he is Metaher regarding a child [holding dough. Rabanan are Metamei, for they rely on the majority, and therefore consider it to be a case of Yesh Bo Da'as Lish'ol.]

( :)

(i)

Support: Also, [the Gemara] in Chulin (86b) wanted to [say that he would] permit to slaughter Oso v'Es Beno after the Shechitah of a Cheresh, lunatic or child, and even though most of their actions are not ruinous (he would rely on the minority that do disqualify Shechitah, since the Chazakah that the animal was not slaughtered supports it).

'' ('' :) ''

(j)

Question: In Bava Metzi'a (55b) regarding the five [cases in which one must add a] Chomesh, it connotes that Demai is mid'Rabanan, even according to R. Meir, for it says "[Chachamim] strengthened their words." Why is it not Tevel mid'Oraisa, for we join the minority [of Amei ha'Aretz] who do not tithe, to Chezkas Tevel?

'' ( .)

(k)

Answer #1: It is not a Chazakah, for perhaps he did like R. Oshaya, that he entered the grain with its chaff (so it is not forbidden due to Tevel).

:

(l)

Answer #2: We should not establish any person (seller) to be a Rasha due to the minority who do not tithe.

20b----------------------------------------20b

6)

TOSFOS DH Chalav Poter Ika Beinaihu

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(SUMMARY: Tosfos discusses how we rule about concern for the minority.)

'' ( .) '' . ''

(a)

Pesak (R. Tam): Milk does not exempt, for below (24a) we conclude like R. Shimon ben Gamliel, who says that one who buys a nursing animal from a Nochri that it is exempt from Bechorah, for it does not love [and nurse] it unless it gave birth [to the child];

1.

However, he does not exempt due to milk alone, if not that there is a child with it, and we see that it loves it and nurses it.

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(b)

Inference (R. Tam): This is the Halachah, that we are concerned for the minority when there is a Chazakah with it, like here that the Chazakah is that it did not give birth;

( :)

1.

And even if we do not hold like R. Meir, who is Metaher in this case of most children who touch [dough], because he joins the minority to the Chazakah, however, to be stringent, we are concerned.

'' '' ( :) '' ''

(c)

Implied question: In Chulin (11b) it connotes that the Halachah does not follow R. Meir even to be stringent, for it says "according to R. Meir, who is concerned for the minority, how does he eat meat?"

1.

Inference: The Halachah does not follow this, for it did not say "how do we eat meat?"

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(d)

Answer: In any case, when a Chazakah supports the minority, we are concerned, and here there is a Chazakah to establish the animal in the Chazakah that it did not give birth. We join the minority, which give milk even though they [did] not [yet] give birth, to the Chazakah.

'' ( :)

(e)

Implied question: We say in Chulin (3b) that most who slaughter are experts, and we do not say join the minority who are not experts to the Chazakah that an animal is in Chezkas Isur until it is slaughtered!

( :) '' ' '' ( .)

(f)

Answer: That majority is very common and frequent, like we find in Gitin (2b), and even R. Meir, who is concerned for the minority, Stam scribes of judges know the Halachah (that a Get must be written Lishmah), and the minority is not common, and R. Meir is not concerned for it, like we say in Nidah (32a).

'' ( :) [" - ]

(g)

Support: And so we can say in Yevamos (121b) that [if a man fell into] water without an end (one cannot see the shore in every direction), his wife is permitted [to remarry] b'Di'eved, and we do not say join the minority who survive to Chezkas Eshes Ish, because the minority who survive is not common;

1.

We are stringent there l'Chatchilah, due to the severity of Eshes Ish.

[" - ]

(h)

Support #1 (for Answer (d)): Also a Goses (a Choleh close to death), we do not follow the majority to testify about him to permit his wife to remarry, because we join the minority who live, to Chezkas Eshes Ish.

( :)

(i)

Support #2 (for Answer (d)): Also, in a place where most people sent gifts and later are Mekadesh, and the minority are Mekadesh and later send gifts, there is a majority and Chazakah (she is single) to permit, we are concerned for the minority to be stringent, according to R. Chananel's text in Kidushin (50b).

' '' ( .)

(j)

Question: Why do we challenge here R. Yehoshua, who says that milk does not exempt, from R. Yehoshua's teaching in Yevamos (119a) that if [Leah] who left when she was pregnant (and her only son died without children, the widow) need not be concerned, like it explains that he is not concerned for the minority of males (some fetuses are Nefalim, and half the viable fetuses are females), and we give a difficult answer Eifuch (switch the opinions)?

1.

What was the question? In the case in Yevamos there is no Chazakah with the minority, but here, with the minority of animals that milk (before giving birth) there is a Chazakah. Therefore [R. Yehoshua] is concerned!

'

(k)

Strengthening of question: You are forced to say that the Mishnah there proves that there is a distinction, for in the Reisha (when Leah's husband went overseas with a Tzarah, and we heard that he died) she may not marry or do Yibum... (We do not assume that the Tzarah is from the majority of women who get pregnant and have children!)

'

1.

[The Gemara] explains there that we join the minority (who do not give birth) to the Chazakah (that Leah will not fall to Yibum when her husband dies), and R. Yehoshua does not argue.

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2.

Implied suggestion: Perhaps he argues in the Seifa, and likewise he argues in the Reisha (the Tana did not need to teach this)!

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3.

Rejection: Just the contrary, [if so] he should have taught that he argues in the Reisha, even though there is a Chazakah, and all the more so in the Seifa!

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(l)

Answer: Since we find a Beraisa [in which the opinions] are switched, [the Gemara] was not concerned to answer (without saying Eifuch).

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(m)

Answer: According to this that we switch the opinions, all the more so it is difficult that here R. Yehoshua says that milk exempts - this shows that he is not concerned for the minority, even though there is a Chazakah with it;

'

1.

And in the case in Yevamos it connotes that R. Yehoshua argues only in the Seifa, but he agrees in the Reisha!

(n)

Answer #1: If we would say that it is not considered a minority because there is a Chazakah with it, for just the contrary, you should establish the child in the Chazakah that it does not have Kedushas Bechorah, for it is Chulin in its mother's womb, it would be fine, and also [it would be fine] that we needed to say Eifuch.

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(o)

Question #1: However, this is difficult, for if so, R. Shimon ben Gamliel, who holds that milk does not exempt, this shows that he is concerned for the minority, even though there is no Chazakah with it;

('' :) ''

1.

And in Avodah Zarah (40b) it connotes that he is not concerned for the minority, and he does not decree other places due to that place, like R. Meir decreed, because he is concerned for the minority!

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

(p)

Question #2: In Avodah Zarah (39b) it connotes that R. Yochanan, who holds that the Halachah follows a Stam Mishnah, holds like R. Meir, for we say that according to R. Yochanan [the Mishnah] excludes fish brine and cheese of Beis Onaiki, for it is Stam like R. Meir, and R. Meir's reason is because he is concerned for the minority, like it explains in that Perek;

'' ( :) ' '' ''

1.

And in Chulin (5b) it says that R. Yochanan ate from what a Kusi slaughtered, and he was not concerned for the minority who are suspected, like R. Meir says there about their wine, even though there is a Chazakah with it, that it was not slaughtered!

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(q)

Answer #1: There are many Stam [Mishnayos] that are not concerned for the minority.

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(r)

Answer #2: Also, there it is Stam v'Achar Kach Machlokes in Avodah Zarah (40b); R. Meir and Rabanan argue about it.

' ( .) ' ''

(s)

Question: Still it is difficult, for below (24a) it connotes that R. Yochanan holds that the Halachah follows R. Shimon ben Gamliel regarding one who saw a pig cling to [and nurse from] a ewe!

(t)

Answer: We should not establish all Kusim to be Resha'im, only the Rasha himself.

' ( .) '

(u)

Question: In Kidushin (80a), regarding most children touch [dough], it connotes that R. Yochanan holds like Rabanan, for it taught two matters that do not have Da'as Lish'ol, and Chachamim made them as if Yesh Bo Da'as Lish'ol!

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

(v)

Answer: We can say that really, the primary teaching of R. Shimon ben Gamliel, R. Yochanan holds like him. It connotes that he exempts because it does not love [an animal] to nurse it unless it gave birth;

[ '' ]

1.

This affects when we say that it had milk before giving birth. If afterwards we see it nurse, it is not exempt due to milk, if not that it does not love [unless it gave birth];

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

(w)

Consequence: It is possible that even R. Shimon ben Gamliel holds that milk exempts, and there is no proof for R. Tam that we are concerned for the minority when a Chazakah supports it, from this that we rule like R. Shimon ben Gamliel.

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

(x)

Question #1: However, still R. Shimon ben Gamliel contradicts himself! He said that any human baby that lived 30 days is not a Nefel. This implies that if he did not last [30 days], he is a Safek Nefel;

( ) [" - ]

1.

It explains in Shabbos (136a) that this is even he fell from the roof or a lion ate it. This shows that he is concerned for the minority of Nefalim;

2.

And in Avodah Zarah (40b), he is not concerned for the minority!

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(y)

Question #2: Even without the contradiction in R. Shimon ben Gamliel, the Halachah contradicts itself! We are not concerned for the minority, like it implies in Chulin, that [the Gemara asks how R. Meir eats meat, but it] did not ask "how do we eat meat?";

( .) ''

1.

And in Shabbos (136a), we hold like R. Shimon ben Gamliel, like is proven there!

'' ( .)

(z)

Answer: According to letter of the law, we should rule like Rabanan, and we rule like Rabanan in pressed circumstances, like is proven in Yevamos (37a), just mid'Rabanan they were stringent about a Yevamah, since he died within 30 days;

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1.

And even though he fell from the roof or a lion ate it, perhaps the matter will be forgotten, and people will say that he yawned and died (and he was a Nefel), and scandalous talk (that she remarried b'Isur, without Chalitzah) and ruin will result...

() [" - ]

i.

Therefore, they made this like a Safek also for Aveilus, lest people come to be lenient about Ervah.

ii.

Also, everywhere the Halachah follows the lenient opinion in Aveilus.

' ( )

2.

And if an animal did not live eight days, they established [the Halachah] like R. Shimon ben Gamliel, for if not so, this [stringency to rule like him for people] would not last.

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