1) DESIGNATING ONE ANIMAL FOR A KORBAN AND A SECOND ANIMAL FOR "ACHRAYUS"
OPINIONS: The Gemara quotes the ruling of Rebbi Hoshiya that when one who is obligated to bring a Korban Chatas designates two animals -- one as the Korban Chatas and the other as a substitute in case the first one is lost, he offers one of them as the actual Korban, and the other must be left to graze until it receives a Mum.
In what case does Rebbi Hoshiya's ruling apply? Does his ruling apply when the two animals were designated at the same time, or when they were designated at different times?
(a) TOSFOS in Menachos (80a, DH Hifrish) explains that Rebbi Hoshiya cannot be referring to a case in which one animal was dedicated before the other, because in such a case it is obvious that the first animal should be used as the actual Korban. Rebbi Hoshiya's words -- that the person offers "one of them" -- clearly imply that either one of the animals may be used as the actual Korban.
Tosfos says further that Rebbi Hoshiya cannot be referring to a case in which the animals were dedicated at the same time, because the Gemara in Kidushin (50b) teaches a rule that "any two actions that cannot take effect when done consecutively, cannot take effect when done simultaneously either." Since two animals cannot each be sanctified as the primary animal for the Korban Chatas when they are dedicated one after another, they also cannot be dedicated as such simultaneously.
What, then, is the case according to Tosfos?
Tosfos explains that the case is where the person takes both animals and says, "One of these two animals should be a Chatas." As Tosfos in Pesachim (97b, DH Hifrish) points out, the person also says, "and the other animal should be Achrayus."
Tosfos in Pesachim asks, however, that if this is the case, then why should the second animal be left to graze until it receives a Mum? Neither of the animals in this case have any of the invalidating factors that require a sanctified animal to be left to graze! The second animal simply was made available to be a Korban in case something would happen to the first animal. Since nothing happened to the first animal, the second animal should not become Kadosh at all!
The RI answers that Rebbi Hoshiya had a tradition from his teachers concerning the Halachah in this type of case. (See also the MELECHES CHOSHEV here at length for a discussion of the reasoning of Rebbi Hoshiya.)
(b) The RAMBAM (Hilchos Pesulei ha'Mukdashin 4:5) records the Halachah as follows: "One who separates two Chata'os for [the purpose of] Achrayus atones with whichever animal he wants, and the second grazes until it receives a Mum, and its proceeds are used towards [the purchase of] a Nedavah."
RAV SHACH zt"l in AVI EZRI (Revi'ah) infers from the fact that the Rambam does not write the case as Tosfos understands it (that is, the person says, "One of these two animals should be a Chatas and the other should be Achrayus"), it is evident that the Rambam disagrees with Tosfos' understanding of the case. He suggests that the Rambam maintains that one indeed may designate two animals at once for the same Korban Chatas.
The MINCHAS ARIEL in Menachos adduces support for the Rambam's view from the Gemara in Menachos (64a). The Gemara there records two cases in which a Kohen slaughtered two Chata'os for the same Chatas Tzibur obligation that occurred on Shabbos (see RASHI there, DH Shachat b'Shabbos). The Gemara says, "If he had before him two Chata'os, one fat and one lean...," which implies that the two animals were designated as Chata'os for the same Korban obligation. The Minchas Ariel explains that the Gemara there cannot be discussing a case in which one of the animals is merely Achrayus for the other. The Gemara there says that if the weaker Chatas was offered, the Kohen is required to bring the fat animal as a Chatas as well. This ruling applies only if the second animal is not merely designated for Achrayus in case the other animal would not be brought, because in this case the first animal was brought, and yet the Kohen still must offer the second animal! It must be that the second animal is a Korban Chatas in its own right. Why, then, does Tosfos say that two animals cannot be designated for the same Chatas obligation simultaneously?
The Minchas Ariel writes that perhaps the case in Menachos is different, since it is discussing a Chatas Tzibur. A Chatas Tzibur is not brought for any specific sin. The obligation of the Tzibur is merely to ensure that the Korban is brought. In such a case, even Tosfos may agree that one can set aside many animals for this purpose. In contrast, the Chatas of an individual is offered for a specific sin, and thus only one animal can be set aside for this purpose. (The Minchas Ariel concludes, however, that this question requires further elucidation.) (Y. MONTROSE)
2) IS AN "UBAR" A "DAVAR SHE'LO BA L'OLAM"?
QUESTION: The Mishnah teaches that it is possible to circumvent the requirement to give one's firstborn male animal to a Kohen. By declaring the Bechor as Hekdesh before it is born, one prevents the Kedushah of Bechor from taking effect, since the Kedushah of a Bechor takes effect only after it emerges from the womb ("Kadosh me'Rechem") while the Hekdesh takes effect before it is born.
How can the Hekdesh take effect on the fetus before it is born? Before it is born, the fetus is considered a "Davar she'Lo Ba l'Olam" -- an object that does not yet exist, and no Kinyan or Kedushah can take effect on such an object (Bava Basra 79b)! (Although Rebbi Meir maintains that the sale of a Davar she'Lo Ba l'Olam does take effect, the Halachah follows the view of the Chachamim who maintain that one is unable to sell what is not yet in his possession.)
(a) The KETZOS HA'CHOSHEN (CM 209:1) cites this Mishnah (among other sources) as proof that a fetus in the womb of its mother is a "Davar she'Ba l'Olam."
(b) The TUR and SHULCHAN ARUCH (CM 209:4) rule that when one says to a buyer (with regard to his animal's fetus), "What will be born to my animal will belong to you," the sale is not valid, because a fetus is considered a Davar she'Lo Ba l'Olam until it is born.
The NESIVOS HA'MISHPAT (CM 209:2) cites support for the ruling of the Shulchan Aruch. The Gemara in Kidushin (62b) quotes a Beraisa that teaches that when a person says that he is Mekadesh (with Kidushin) his friend's unborn child if that child is a girl, and when the child is born she indeed is a girl, the Kidushin is valid. The Gemara there says that this follows the view of Rebbi Eliezer ben Yakov, who maintains that one may make a Kinyan on a Davar she'Lo Ba l'Olam, implying that all other Tana'im maintain that such a Kinyan does not take effect on a fetus. The BE'ER HA'GOLAH cites this Gemara as the source for the Shulchan Aruch's ruling.
How does the Ketzos ha'Choshen understand the Gemara in Kidushin? Why does the Gemara there say that it is only Rebbi Eliezer ben Yakov who maintains that one can be Mekadesh a fetus?
The Nesivos ha'Mishpat answers that there is a difference between one who attempts to effect an unconditional change in the Halachic status of a fetus, and one who attempts to effect a change in the status of the fetus conditional upon its health after birth. In the Gemara in Kidushin, the man was interested in marrying a healthy, young wife, and not in marrying the fetus. Accordingly, it is clear that the transaction involved the status of the child after birth. If, for example, a miscarriage would have occurred, or the fetus would have been born dead, then the entire transaction would have been irrelevant. In this case, the status that the man intends to give to the fetus clearly depends on the future state of the fetus which is presently unknown.
In contrast, when a person sanctifies a firstborn fetus to be an Olah instead of a Bechor, he wants this status to take effect immediately. He wants the fetus to have the status of an Olah, regardless of whether it will live after birth. Similarly, in a case in which a person sells the fetus of an animal as a "piece of meat" regardless of whether it is born healthy or dies, the sale is effective (according to the Ketzos ha'Choshen); it is no different from one who sells the liver or kidneys of an animal, which certainly are considered a Davar she'Ba l'Olam. (See CHIDUSHEI REBBI AKIVA EIGER (to the Shulchan Aruch there) who gives a similar answer, and therefore gives an alternate source for the opinion of the Shulchan Aruch.) (Y. MONTROSE)
(See further discussion regarding the sale of a fetus in Insights to Bechoros 2:1.)