QUESTION: The Gemara quotes a Beraisa that teaches that if a baby born to a Kohen's wife becomes mixed up with the baby of the Kohen's slave, and it is not known which baby is the son of the Kohen and which is the son of the slave, both children may eat Terumah. Since both a Kohen and the slave of a Kohen may eat Terumah, the child is permitted to eat Terumah regardless of his identity. In contrast, neither child may eat a Bechor until after the animal has become blemished. RASHI (DH Ela) explains that this is because one of the two children is a Zar (non-Kohen), and a Bechor may not be eaten by a Zar after it is sacrificed.

Why should the slave of a Kohen be considered a Zar with regard to eating from a Bechor that was sacrificed? The Gemara in Bechoros (33a) compares a Bechor that was sacrificed to the Chazeh and Shok (the parts of a Korban Shelamim that are given to a Kohen, like Terumah, for his personal consumption). Since the slave of a Kohen may eat the Chazeh and Shok, he also should be permitted to eat a Bechor! In fact, the RAMBAM (Hilchos Ma'aseh ha'Korbanos 10:5) rules explicitly that a Bechor may be eaten by the wife of a Kohen and by his slave. Why, then, does Rashi say that a slave may not eat a Bechor because he is not a Kohen?

(a) Perhaps Rashi learns like the RASHBA in Nedarim (11b, DH b'Ikaro) who quotes the RA'AVAD (Hilchos Nedarim 1:11) as saying that only male Kohanim may eat a Bechor. What is the source for such a statement? Apparently, the Ra'avad's source for this statement is the Gemara here, which excludes a Kohen's slaves (and, presumably, his wife as well) from eating a Bechor. (It is not clear, however, that this is the Ra'avad's intention. See LECHEM MISHNEH, Hilchos Nedarim 1:11.)

(b) The BRISKER RAV explains that although the slave of a Kohen may eat from a Bechor, he may not claim that it belongs to him (since the Kohen owns it, and not the slave; this is Rashi's intention when he says that a Bechor is not "eaten by a Zar"). The only reason why the child who is a Safek Kohen may keep the Bechor for himself is that he is Muchzak; he presently is in possession of the Bechor, and it cannot be proven that he is not the Kohen. If this Safek Kohen wants to sacrifice the Bechor (without a blemish), he is not permitted to do so. Rather, he must give it to a "Vadai" (definite) Kohen, because he might be the son of the slave, and a Kohen's slave may not sacrifice a Bechor. However, at the moment that the Safek Kohen gives the Bechor to a Vadai Kohen, he loses his Chazakah, and the Vadai Kohen may keep the Bechor for himself. This is what the Gemara means when it says that the two doubtful Kohanim should leave the Bechor to become a Ba'al Mum. When it becomes a Ba'al Mum, they are not required to give it to another Kohen, but they may eat it themselves (based on their Chazakah).

(c) It is possible that the Gemara here refers to a case in which the two children freed each other when they reached adulthood. (Each one said to the other, "If I am the son of the Kohen, then I hereby release you from your servitude.") Consequently, one of them is definitely a Zar (and not even the slave of a Kohen). Since there is a doubt that each one is a Zar, neither one may eat from a Bechor.

(This indeed is the way the case is presented in the Mishnah in Yevamos (99a), which seems to be the basis for the quote of the Gemara here. See, however, Hagahos ha'Gra #1.)

(It should be noted that RABEINU GERSHOM learns that the Gemara is not discussing the eating of a Bechor at all, but rather its sale. While it is not clear what Rabeinu Gershom means by this, it nevertheless would solve our question as well.)

OPINIONS: The Beraisa quotes Rebbi Shimon who derives from the word, "Behemtah" -- "its animals" (Devarim 13:16), that only animals owned by the residents of the Ir ha'Nidachas are to be destroyed with the city, but not an animal that is a Bechor or an animal of Ma'aser. Rebbi Shimon derives from the word, "Shelalah" -- "its spoils" (13:17), that money of Ma'aser Sheni is not burned with the rest of the possessions of the city. It seems that the reasoning behind both Derashos is that since these items are not considered the possessions of the city, but rather the possessions of Hash-m, they are not burned with the Ir ha'Nidachas.

The Gemara in Kedushin (54b) and in other places records a dispute about the status of produce of Ma'aser Sheni, which is supposed to be eaten in Yerushalayim. Is Ma'aser Sheni considered the possession of the owner ("Mamon Hedyot") or does it belong to Hash-m ("Mamon Gavoha"), and the owner is given permission by Hash-m to eat it in Yerushalayim? Rebbi Shimon apparently follows the view that Ma'aser Sheni is Mamon Gavoha, because if he would maintain that it is Mamon Hedyot, then how would the verse of "Shelalah" exclude it from the requirement that all of the possessions of the Ir ha'Nidachas be burned? If it belongs to a resident of the Ir ha'Nidachas, then it should be burned and it should not be excluded! Is this indeed the view of Rebbi Shimon?

(a) RASHI (DH Perat) writes that Rebbi Shimon maintains that Ma'aser Sheni is Mamon Gavoha. Although Rashi does not explain his reasoning, it is clear that Rashi understands that it must be Mamon Gavoha in order to be excluded from the spoils of the Ir ha'Nidachas.

(b) The SHITAH MEKUBETZES asserts that there is no proof that Rebbi Shimon agrees with either opinion. The Gemara in Sanhedrin (112b) says records a dispute about whether dough of Ma'aser Sheni in Yerushalayim is exempt from Chalah. According to the opinion that Ma'aser Sheni is Mamon Gavoha, such dough is exempt. According to the opinion that Ma'aser Sheni is Mamon Hedyot, such dough is not exempt from Chalah. However, outside of Yerushalayim, as Rav Chisda there states, everyone agrees that Ma'aser Sheni is exempt from Chalah.

The MELECHES CHOSHEV explains the intention of the Shitah Mekubetzes. Rashi in Sanhedrin (112b, DH Aval b'Gevulin) gives two reasons for the ruling of Rav Chisda. It is possible that everyone considers Ma'aser Sheni outside of Yerushalayim to be Mamon Gavoha, since it is forbidden to eat it outside of Yerushalayim. Alternatively, everyone agrees that Ma'aser Sheni outside of Yerushalayim is exempt from Chalah because the verse says, "Arisoseichem" -- "your dough" (Bamidbar 15:20). This verse teaches that the dough (or other produce of Ma'aser Sheni) must be "yours" -- it must be able to be eaten by the owner at the time that it becomes obligated in Chalah. Since the dough of Ma'aser Sheni was outside of Yerushalayim, it could not be eaten by the owner, and thus it did not become obligated in Chalah.

According to Rashi's explanation for Rav Chisda's ruling, Rashi here should not say that Rebbi Shimon, who excludes money of Ma'aser Sheni from the category of "Shelalah," follows the view that Ma'aser Sheni is Mamon Gavoha. According to the first approach of Rashi in Sanhedrin, even the opinion that Ma'aser Sheni is Mamon Hedyot says that this is true only in Yerushalayim, but not outside of Yerushalayim (such as in an Ir ha'Nidachas). Why, then, does Rashi say that Rebbi Shimon specifically follows the opinion that Ma'aser Sheni is Mamon Gavoha? Everyone agrees that Ma'aser Sheni is Mamon Gavoha outside of Yerushalayim!

According to the second explanation of Rashi in Sanhedrin (that a special verse -- "Arisoseichem" -- exempts Ma'aser Sheni outside of Yerushalayim from the obligation of Chalah), it seems that all opinions agree that this Ma'aser Sheni is not called "your dough." Similarly, the verse of "Shelalah" teaches that even according to the opinion that Ma'aser Sheni is Mamon Hedyot, Ma'aser Sheni is excluded from "Shelalah," just as it is excluded from the obligation of Chalah, because it is not "yours" (since it cannot be eaten). (See Meleches Choshev at length for a defense of Rashi's explanation here.) (Y. MONTROSE)

QUESTION: Rav Chisda states that a Kohen may sell an unblemished Bechor to a fellow Kohen, but he may not sell it to a Yisrael. The Chachamim were concerned that the Yisrael might deliberately maim the animal, bring it to a Chacham to have it examined, and say that he received the Bechor from a Kohen when it already had a Mum. (The Gemara later quotes Rav Sheshes who gives a different reason for why a Yisrael may not sell an unblemished Bechor to a Yisrael.)

TOSFOS (DH Dilma) questions Rav Chisda's reasoning. The Halachah is that in order to permit a Bechor that became blemished while in the possession of a Kohen, the Kohen -- or, in this case, the Yisrael who bought the Bechor from a Kohen -- must bring witnesses who testify that the Kohen did not intentionally inflict the Mum on the animal. This testimony is necessary because the Kohanim are suspected of inflicting blemishes on Bechoros in order to keep the animals for themselves (see Bechoros 35a). Since, in this case, the Yisrael claims that the animal became blemished while in the hands of a Kohen, he must bring witnesses to testify that it became blemished by itself. What, then, does the Yisrael accomplish by inflicting a Mum on the animal and telling the Chacham that he received a blemished Bechor from a Kohen? He is not believed because he has no witnesses!

Tosfos answers that Rav Chisda's concern is not as we initially thought. Rav Chisda's concern is that the Yisrael will claim that the Kohen gave him the animal while it was Tam (unblemished), and the animal subsequently suffered a blemish while in his (the Yisrael's) possession.

Tosfos is not satisfied with this answer. Since there is no source that a Yisrael is suspected of deliberately injuring a Bechor, why does the Gemara here entertain this possibility? Tosfos adds that not only is there no basis to suspect a Yisrael in the case of a definite Bechor (in which case there is absolutely no reason for a Yisrael to do an Aveirah in order for him to be able to give the Bechor to the Kohen), but even in the case of a Safek Bechor -- which the Yisrael does not need to give to a Kohen if it becomes blemished -- there is no basis to suspect a Yisrael. The Gemara in Bechoros (35b) quotes Rav Nachman who states that the Yisrael is believed to testify that the Bechor received the Mum by itself! Why, then, does Rav Chisda prohibit a Kohen from selling a Bechor to a Yisrael out of concern that he will intentionally blemish the animal?

(a) Tosfos answers that when the Bechor is born while in the possession of a Yisrael, we assume that he is afraid to make a blemish in the animal because he knows that he will be subject to suspicion. However, in this case, where there is reason to believe that the Kohen gave the animal to the Yisrael when it already had a Mum, the Yisrael is not afraid to claim that the animal become blemished naturally. Therefore, in this case he is suspected.

(b) The MELECHES CHOSHEV answers that although a Yisrael, unlike a Kohen, is believed to testify about how a Bechor became blemished, he is still suspected, to a certain degree, of having inflicted the Mum himself. A precedent for this appears in Avodah Zarah (23a). The Mishnah there (22a) states that one may not give his animals to Nochri shepherds out of fear that they will have relations with the animals (causing the Jew to transgress the Isur of "Lifnei Iver"). On the other hand, a Beraisa there (22b) states that one may buy animals from a Nochri to use as Korbanos, and there is no need to suspect that the Nochri had relations with his animal (which would render it unfit for a Korban). Ravina (23a) explains that these two statements are not contradictory: l'Chatchilah one may not give his animals to a Nochri shepherd out of fear that he will have relations with the animal (causing the Jew to transgress the Isur of "Lifnei Iver"). However, b'Di'eved one may assume that the Nochri did not have relations with the animal, and therefore one may buy animals from the Nochri to use as Korbanos.

In the Gemara here, Rav Chisda maintains that a similar level of suspicion exists with regard to a Yisrael inflicting a Mum on a Bechor. In general, a Yisrael is believed to testify about a Bechor. However, in a case in which a Yisrael might be tempted to deliberately maim a Bechor so that he can give it to his favorite Kohen, the Chachamim prohibit a Yisrael from having the opportunity to do so. This is why a Kohen is forbidden to sell a Bechor Tam to a Yisrael. (Y. MONTROSE)