1) HOW CAN A "MOSTLY BORN" ANIMAL BECOME "KADOSH"?
QUESTION: The Mishnah (24b) 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.
Rav Amram asked Rav Sheshes what the Halachah is in a case in which the owner proclaims the firstborn fetus to be an Olah at the moment that most of the animal emerges from the womb. Which Kedushah takes effect, the Kedushas Bechor or the Kedushas Olah?
Rav Amram's question is difficult to understand. There is a rule that an animal that is "Mechusar Zeman" -- it is less than eight days old and therefore unfit to be brought as a Korban -- cannot become Kadosh, even if the owner declares it to be Kadosh (see Bechoros 21b). Even though a number of sources imply that an animal can become Kadosh while it is in the womb (and is certainly less than eight days old), TOSFOS (10b, DH v'Azda) explains that in the case of an animal in utero, a special Gezeiras ha'Kasuv teaches that a fetus can become Kadosh. Once an animal is born, however, it cannot become Kadosh until eight days have passed.
Why, then, does Rav Amram have any doubt that the animal in this case might be a Korban Olah? It is Mechusar Zeman, and thus it cannot become Kadosh as an Olah, but only as a Bechor. (YAD BINYAMIN)
(a) The YAD BINYAMIN first suggests an answer to this question based on a different explanation for why a fetus can become Kadosh. The SHITAH MEKUBETZES (Hashmatos to 19b) explains that the reason why one can be Makdish a fetus is that it is not called "Mechusar Zeman." "Mechusar Zeman" refers only to an animal that has been born and can physically be offered as a Korban, but has not yet matured. A fetus, in contrast, cannot possibly be brought as a Korban in its present state. The Yad Binyamin explains that any animal that cannot physically be offered in its present state can be made Hekdesh, since it does not have the deficiency of being Mechusar Zeman. Similarly, an animal that is not yet fully born cannot possibly be brought as a Korban, and therefore the Pesul of Mechusar Zeman does not apply to it.
However, the Yad Binyamin argues that this assertion is incorrect. The Gemara in Bechoros implies that an animal that is not yet fully born is also considered to be Mechusar Zeman. The Gemara there derives that just as a Bechor is Kadosh before eight days have passed since its birth, an animal can be counted as Ma'asar Behemah before eight days have passed since its birth. The law is, however, that a Bechor becomes Kadosh with "Yetzi'as Rubo," when most of the animal emerges from the womb. According to the Yad Binyamin's suggestion that such an animal cannot be Mechusar Zeman, how can the Gemara compare a Bechor (that has not fully emerged from the womb) to an animal of Ma'asar Behemah that has fully emerged from the womb? Mechusar Zeman does not apply to such a Bechor, while it does apply to a fully born animal! It must be that the Pesul of Mechusar Zeman does apply to an animal that has not fully emerged, and thus the Gemara is able to learn from Bechor, which is not Pasul because of Mechusar Zeman, that Ma'asar Behemah is also not Pasul because of Mechusar Zeman.
(b) The Yad Binyamin quotes his father, RAV ELYASHIV shlit'a, who explains that the animal indeed cannot become Kadosh as an Olah when it is not yet fully born. When Rav Amram suggests that the animal is an Olah, he means that perhaps the animal becomes Kadosh with Kedushas Damim of an Olah. The Gemara earlier (10b) teaches that Kedushas Damim that takes effect on an animal in the womb can effectively preempt the Kedushas Bechor from taking effect. Although the Gemara here says that perhaps it should be an Olah because "every small part that emerges is due to be burned [as an Olah]," it does not necessarily mean that the animal itself is a Korban. Rather, it also can mean that its value is designated for the purchase of an animal that is supposed to be burned. (Y. MONTROSE)
2) THE PRINCIPLE OF "TOCH KEDEI DIBUR" AS APPLIED TO SANCTIFYING A KORBAN
OPINIONS: The Mishnah (25a) states that when one proclaims a pregnant animal to be a Korban Shelamim, and then he changes his mind with regard to its fetus and says that the fetus is an Olah, his second statement is ineffective. The fetus has the same status as the fetus of any Shelamim.
The Gemara asks that this seems obvious. Once the mother is a Shelamim, the fetus automatically becomes Kadosh with the Kedushah of the offspring of a Shelamim. Rav Papa answers that the Mishnah is teaching that the fetus remains Kadosh with the Kedushah of a Shelamim even though the owner's declaration about the fetus was made "Toch Kedei Dibur" of his first statement.
Does Rav Papa mean that the principle of "Toch Kedei Dibur k'Dibur Dami" does not apply when one is Makdish a Korban?
(a) TOSFOS (DH Lo Nitzrechah) explains that this is not the case. The Gemara in Bava Kama (73b) teaches that the time period of Toch Kedei Dibur can be one of two amounts. It can be the length of time that it takes for a student to say a greeting to his teacher ("Shalom Alecha Rebbi u'Mori"), or it can be the amount of time that it takes a Rebbi to greet his student ("Shalom Alecha"). Tosfos asserts that the Gemara here is saying that only the longer time period of Toch Kedei Dibur does not apply in the case of the Mishnah. However, if the owner adds the statement, "And the child is an Olah," to his first statement within the shorter time period of Toch Kedei Dibur, then his statement is effective and the fetus becomes an Olah.
(b) Tosfos in Menachos (81b) and the RAMBAM (Hilchos Pesulei ha'Mukdashin 2:4) rule that the principle of Toch Kedei Dibur never applies to sanctifying an animal as a Korban.
This view is problematic, however, in light of the Gemara in Bava Kama (73b), which clearly implies that the principle of Toch Kedei Dibur does apply to Kodshim. The Gemara there discusses the application of the rule of Toch Kedei Dibur to the case of the Mishnah here (25b), which discusses a case in which the owner of two Korbanos of different types declares that a third animal is Temurah for the two different Korbanos, and he says that the animal should become "a Temurah for the Olah, a Temurah for the Shelamim." Rebbi Yosi says that we assume that the owner had in mind to make the animal a blend of two Korbanos, and he merely was unable to say both at once. As a result, he must keep the animal until it becomes unfit to be a Korban, sell it, and use half of the money to buy an animal that he must offer as an Olah and half to buy an animal that he must offer as a Shelamim. Rebbi Yosi adds, though, that if the reason for his double statement of Temurah was that after he said that he wanted the animal to be a Temurah for the Olah he changed his mind and decided that it should be a Shelamim, then he agrees (with Rebbi Meir) that the animal is an Olah. The Gemara there concludes that Rebbi Yosi maintains that "Toch Kedei Dibur k'Dibur Dami" applies only when the two statements are made within the shorter
span of time ("Shalom Alecha"), and not the longer span of time. (See Insights to Zevachim 30:1
The Gemara there clearly implies that the principle of Toch Kedei Dibur applies to designating an animal as a Korban, in contrast to the view of Tosfos and the Rambam!
The YAD BINYAMIN in Menachos (81b) suggests that the answer to this question may be found in the words of the RAMBAM in Perush ha'Mishnayos here. The Rambam lists the areas of Halachah where Toch Kedei Dibur is ineffective. He states that "for these things, it will not help to retract or to add a condition, even Toch Kedei Dibur." He then writes, "However, [the law in the case of] one who is Makdish and Meimar is as taught here. Thus, if one says to a woman, 'Harei At Mekudeshes' or 'Harei Zeh Gitech,' gives her the Get or the Kidushin, and then says within Toch Kedei Dibur... that the Get or Kidushin should take effect only with a certain condition, it is ineffective and we do not listen to him."
The Yad Binyamin explains that when the Rambam says that the Halachah of Makdish and Meimar is "is as taught here," he does not mean merely that these cases are taught in the Mishnayos here. Rather, he means that there is an essential difference between the category of Makdish and Meimar and the category of Gitin and Kidushin. The cases of Makdish and Meimar in which Toch Kedei Dibur is not effective are the types of cases mentioned in the Mishnah, wherein the owner, in that short period of time, changed his mind and quickly declared that the child of the animal should be an Olah. The Mishnah explicitly says that the person was "Nimlach" (changed his mind). However, as the Gemara in Bava Kama implies, there is a case in which the smaller period of Toch Kedei Dibur would be effective even in a case of Makdish and Meimar. This case is where the person never changed his mind, but rather he explained his original intent, immediately, within Toch Kedei Dibur of the transaction.
The Rambam in Perush ha'Mishnayos adds that with regard to Gitin and Kidushin, even if the man says that when he added a condition after his original statement, this was his original intent all along, the Get or Kidushin is invalid, even if the condition was added within this small period of Toch Kedei Dibur. (Y. MONTROSE)