QUESTION: The Gemara quotes a Beraisa in which Rebbi Meir rules that when one says, "Half [of this animal] should be an Olah and half should be a Chatas," the animal is an Olah. Rebbi Meir maintains, "Tefos Lashon Rishon" (literally, "grasp the first expression") -- when one makes two consecutive, contradictory statements, we follow the first of the two. Since the person's first statement -- that the animal should be "half an Olah" -- by itself would make the entire animal an Olah, when he adds that the second half should be a Chatas the entire animal remains an Olah.

Rebbi Yosi disagrees and says that the animal must die. Rebbi Yosi maintains that both parts of such contradictory statements take effect.

Why does Rebbi Yosi say that the animal must die? If both statements take effect, then the animal should be half-Olah and half-Chatas. It should be redeemed and the proceeds used to buy two animals, one to be offered as an Olah and one to be offered as a Chatas! Why must the animal die?

(a) RASHI (DH Tamus) explains that in this case the person was not obligated to bring a Chatas. Since he had no obligation to bring a Chatas, the animal must die.

Rashi apparently learns that such a Chatas -- designated by a person who had no obligation to bring a Chatas -- is like a "Chatas she'Kipru Ba'aleha," a Chatas that was designated but another animal was brought in its place, in which case the original animal is left to die (15a).

The BIRKAS HA'ZEVACH questions Rashi's explanation. Why does Rashi explain that the case of the Beraisa is one in which the owner had no obligation to bring a Chatas? Even if the owner was obligated to bring a Chatas, in this case the animal would be half-Olah and half-Chatas, and thus it would be entirely unfit to be brought as a Korban. Designation as a Chatas must be total an absolute in order for the animal to be offered as a Chatas.

1. The Birkas ha'Zevach suggests two ways to understand the words of Rashi. He explains that Rashi may understand that according to Rebbi Yosi, it is possible to offer a "mixed" Chatas. Rashi seeks to present a case in which everyone agrees that the animal is left to die, and therefore he says that the case is one in which the owner was not obligated to bring a Chatas at all.

2. The Birkas ha'Zevach says that it is more probable that Rashi gives this case because of the end of the Beraisa. The Beraisa concludes, "and they agree that if he says half the animal is a Chatas and half is an Olah that the animal should die." This case cannot be one in which the person is obligated to bring a Chatas, because in such a case Rebbi Meir would rule that we take into account only the first statement, and the animal would be a Chatas. If the end of the Beraisa clearly refers to a case in which the person was not obligated to bring a Chatas, it makes sense to assume that the beginning of the Beraisa also refers to this type of case.

3. The TZON KODASHIM answers that Rashi understands that if the owner of the animal was obligated to bring a Chatas, then there is no reason to say that the "mixed" Chatas should be killed. Since the person did not yet atone for his sin and must still bring a Chatas, the Halachah should be that the animal should be put out to pasture until it receives a Mum, and then he should sell it and buy another animal with half of its value and bring that animal as his Chatas.

(b) TOSFOS (DH Rebbi Yosi) has another difficulty with Rashi's explanation. The Gemara in Nedarim (6a) says that when a person is Makdish an animal as a Korban Chatas, but he has no obligation to bring a Chatas, his words are meaningless and the animal remains Chulin. Accordingly, why does Rashi write that in the case of the Beraisa, the owner of the animal was not obligated to bring a Chatas? If he had no obligation to bring a Chatas, then his words that half of the animal is a Chatas are totally inconsequential!

Tosfos quotes the RI who explains that this case is actually a case in which the owner makes an animal half a Temurah for an Olah, and half a Temurah for a Chatas. A Temurah for a Chatas can be made even by one who is not obligated to bring a Chatas.

How, though, does Rashi understand the Gemara in Nedarim?

The SHA'AR HA'MELECH (Hilchos Ma'aseh ha'Korbanos 14:8) quotes the RAMA MI'PANO who answers that Rashi learns that the Gemara in Nedarim is not saying that the animal does not have the Kedushah of a Chatas. The Gemara is saying that a person cannot bring a Chatas as a Neder or Nedavah, as he can bring other Korbanos (such as an Olah or Shelamim). This is what the Gemara means when it says, "He has said nothing." However, once he declares the animal to be a Korban Chatas (and the animal cannot be brought as a "Chatas Nedavah"), the animal is put to death like other Chata'os that cannot be offered as Korbanos. (See the MELECHES CHOSHEV at length.) (Y. MONTROSE)

QUESTION: Abaye says that in a case in which one says, "Half [of this animal] is an Olah and half is Ma'aser Behemah," everyone agrees that the animal is an Olah. Abaye asks, what is the Halachah when a person says, "Half is Temurah and half is Ma'aser Behemah"? Is it a Temurah, because Temurah has a stringency in that it applies to all Korbanos, or is it Ma'aser Behemah, because Ma'aser Behemah has a stringency in that it takes effect when one calls the ninth or eleventh animal the "tenth"? The Gemara leaves this question unresolved ("Teiku").

In the first case, in which one says, "Half is an Olah and half is Ma'aser Behemah," the reason why the animal is an Olah is that Ma'aser Behemah cannot take effect when one is not counting the animals. Ma'aser Behemah involves more than just a declaration; it involves counting ten animals and separating the tenth. In this case, even Rebbi Yosi -- who maintains that when one makes two contradictory statements, both of them take effect -- agrees that the statement regarding Ma'aser Behemah is inconsequential.

What, then, is Abaye's question in the second case? When one says, "Half is Temurah and half is Ma'aser Behemah," the animal definitely cannot be Ma'aser because it was not separated as part of a count of ten animals. Similarly, the animal cannot be a Temurah, because Temurah takes effect only when there is another, Kadosh animal present with which one is making Temurah. Merely calling an animal a Temurah should be just as meaningless as calling an animal Ma'aser Behemah without counting ten animals. Accordingly, the statement, "Half is Temurah and half is Ma'aser Behemah," should have no effect whatsoever.

(a) RABEINU GERSHOM writes that this question is exactly Abaye's question. Abaye is asking what the Halachah is in a case in which the person did nothing right.

Why, though, would one think that either statement should take effect in such a case?

The TEMURAS TODAH explains Rabeinu Gershom's intention. Although Temurah is usually done in the presence of another animal that is a Korban, if a person says, "Harei Zo Temurah" -- "this is a Temurah," the person's declaration gives the animal the status of a Korban. Declaring an animal to be "Ma'aser" has a similar effect. While the word is usually used to designate Ma'aser Behemah, if a person declares a lone animal to be "Ma'aser" without counting ten animals, he effectively gives it the Kedushah of a Korban. If, however, either of these terms is used together with a normal designation of an animal as a Korban, such as in the first case of Abaye, then certainly the clear and appropriate designation ("Olah") takes total precedence over the strange usage of "Ma'aser," and thus the animal is an Olah.

The question arises when these two unusual terms for designating a Korban, "Temurah" and "Ma'aser," are used together. Which one takes precedence -- the Ma'aser aspect or the Temurah aspect? The Gemara is uncertain and leaves this question unresolved.

This also seems to be the intention of RASHI (DH Chatzyah).

(b) TOSFOS (DH Amar Abaye) questions how the Gemara can even entertain the possibility that the animal becomes Ma'aser, since one must separate Ma'aser in order to make something become Ma'aser. Tosfos quotes the RI who answers that Abaye refers to a case in which the animal indeed is being separated from nine other animals. In Abaye's first case, the person separating the animals says that when the tenth animal goes under his staff (to be counted), "It should be half an Olah and half Ma'aser." In such a case, the designation of Olah takes precedence.

Many commentaries, including the OLAS SHLOMO and the YAD BINYAMIN, have difficulty with the explanation of Tosfos. Tosfos omits an important point. Just as Tosfos was bothered by the question that calling an animal "Ma'aser" should be ineffective when one is not separating Ma'aser Behemah, Tosfos also should have asked that calling an animal "Temurah" should be ineffective as well, when no other Korban is present. They do not answer this question on Tosfos. (Y. MONTROSE)