THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
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1) ALLOWING THE OWNER TO KEEP THE "BECHOR" ALIVE AFTER IT BECOMES A "BA'AL
QUESTION: The Beraisa teaches that when a Bechor becomes a Ba'al Mum
after twelve months have passed since its birth, the law should be that
the owner slaughter it immediately and give it to a Kohen. However, the
Rabanan instituted that the owner may keep it alive for an additional
thirty days in order to prevent the Kohanim from suffering a loss (if the
owner slaughters it immediately when it gets a Mum, the meat might rot
before he is able to find a Kohen).
2) THE PROHIBITION AGAINST EATING A BLEMISHED "BECHOR" THAT WAS
SLAUGHTERED BEFORE IT WAS SHOWN TO AN EXPERT
The Gemara asks that perhaps a Bechor that became a Ba'al Mum at any point
within its first year should also be given a thirty-day period after its
year completed, before it is slaughtered.
What is the Gemara's question? Why should a grace period be given under
such circumstances? Allowing another thirty days before slaughtering the
animal will not benefit the Kohanim, since the owner already kept the
animal alive for an entire year after it became a Ba'al Mum, and the owner
had plenty of time to find a Kohen!
ANSWER: It seems that the Gemara is assuming that since the Rabanan had
reason to permit the owner to keep the animal alive for thirty days under
certain circumstances, they enacted that under *all* circumstances ("Lo
Plug") he may keep it alive for thirty days, even when the Kohanim do not
benefit from the enactment. Moreover, it seems that the Rabanan allotted
thirty days to slaughter the animal even when it is already in the hands
of a Kohen (according to Rashi; see TOSFOS DH Mipnei). (M. Kornfeld)
QUESTION: The Mishnah
discusses one who slaughters a Bechor and only afterwards shows it to a
Mumcheh to decide whether it possessed a permanent blemish (Mum Kavu'a).
Rebbi Yehudah states that the Bechor is permitted to eat (if the expert
ruled, after Shechitah, that it indeed has a Mum Kavu'a), while Rebbi Meir
states that it is forbidden (since it was slaughtered without it the
permission of the expert, even though it was found afterwards to have a
Rabah bar bar Chanah says that when the Mum is found to be in the film of
the eye (Dokin sheba'Ayin), everyone agrees that the Bechor that was
slaughtered before being shown to a Mumcheh may not be eaten. This is
because blemishes in the eye tend to change when the animal dies. A Mum
that was not permanent might now appear to be permanent after the animal
dies. Rebbi Yehudah and Rebbi Meir argue only about a Mum found on another
part of the body. Rebbi Meir maintains that there is a Gezeirah that
prohibits eating the Bechor, so that one not come to permit a Bechor with
a blemish in the eye. Rebbi Yehudah maintains that there is no such
Rav Nachman bar Yitzchak says that from the Mishnah it is also apparent
that the dispute concerns only blemishes on the rest of the body. The
Mishnah states that "Rebbi Meir prohibits it because it was slaughtered
without the authority of the expert." This implies that the reason why it
is prohibited is not because of an inherent problem in the animal itself,
but because of a Gezeirah that is imposed for slaughtering the Bechor
without permission. Had the dispute also applied to cases of blemishes in
the eye, the Mishnah would have said that Rebbi Meir forbids the Bechor
because the blemish might have changed after Shechitah. It must be that
the dispute involves only blemishes on the other parts of the body, and
Rebbi Meir maintains that a penalty was enacted so that one not come to
permit a Bechor with a Mum in the eye.
There seems to be a contradiction in the terms used by the Gemara to
explain why Rebbi Meir forbids the Bechor with a Mum found after
Shechitah. The Gemara first says that it is prohibited because of a
"Gezeirah," and then the Gemara says that it is prohibited because of a
"penalty." If it is a Gezeirah, why does the Gemara call it a "penalty"?
(a) The TOSFOS CHITZONIYOS (cited by SHITAH MEKUBETZES MIZBE'ACH KAPARAH,
beginning of 28b, and MAHARIT ALGAZI #28, end of DH v'Rabeinu) answers
that even though the Gemara calls it a "Gezeirah," in truth it is a
penalty. A Gezeirah would not have been enacted solely to prevent one from
permitting an animal with a blemish in the eye.
The Maharit Algazi (DH Hen Emes) explains that the reason such a Gezeirah
would not have been enacted is because it would have been a "Gezeirah
l'Gezeirah," according to the RAMBAM and RAMBAN. They maintain that the
rule that we are stringent in the case of a Safek d'Oraisa ("Safek
d'Oraisa l'Chumra") is only mid'Rabanan. That is, the Rabanan decreed that
in a case of a Safek d'Oraisa, we must act stringently (see Rambam,
Hilchos Avos ha'Tum'ah 16:1, and Hilchos Tum'as Mes 9:12). Accordingly,
the prohibition against eating a Bechor that was slaughtered and then a
Mum in its eye was found to be a permanent Mum is only an Isur d'Rabanan.
There is a Safek d'Oraisa whether or not the Mum was temporary (and
therefore the animal is forbidden) before the animal was slaughtered.
Since it is a Safek, the Isur itself is only mid'Rabanan. Therefore, the
Rabanan could not have made a Gezeirah to prohibit a Bechor that had a Mum
on another part of its body lest one permit a Bechor that had a Mum in its
eye, because that would have been a "Gezeirah l'Gezeirah."
This also explains why TOSFOS (28a, DH Rebbi Meir) rules that the Halachah
here does not follow the view of Rebbi Meir. Tosfos writes that even
though the Gemara is Kesuvos (57a) states that the Halachah always follows
Rebbi Meir when he makes a Gezeirah, nevertheless the SHE'ILTOS D'RAV
ACHAI GAON maintains that the Halachah does not follow Rebbi Meir when he
institutes a *penalty*. Therefore, since the ruling of Rebbi Meir in the
case of the Mishnah here is essentially a fine, as the Tosfos Chitzoniyos
states, the Halachah does not follow his ruling.
(b) The ROSH (4:3) answers that even though the Gemara refers to the
prohibition to eat the animal as a penalty, it does not intend to say that
it is merely a penalty, and in fact it is a Gezeirah. Accordingly, the
Rosh states that the Halachah does follow the opinion of Rebbi Meir here
(in accordance with the Gemara in Kesuvos, as mentioned above). The Rosh
adds that this is also the opinion of the BEHAG and RAMBAN. The Ramban
cites further proof for this from the words of the Mishnah, which says
that Rebbi Meir's reason for prohibiting the Bechor is "because it was
slaughtered without the authority of the expert," and not "because he
slaughtered it." This implies that even when someone else slaughters it --
in which case there is no reason to penalize the owner -- it is still
forbidden. This proves that the prohibition must be a Gezeirah and not a
penalty, and therefore the Halachah follows the view of Rebbi Meir. (D.
3) THE PENALTY GIVEN TO AN AMATEUR BLEMISH-EXAMINER WHO PERMITS A "BECHOR"
TO BE SLAUGHTERED
OPINIONS: The Mishnah (28a) teaches that when a person
who is not an expert (Mumcheh) in the laws of blemishes of a Bechor
examines a Bechor and permits it to be slaughtered, the Bechor must be
buried, and the amateur-examiner must pay from his own funds for the loss
incurred by the Kohen. The Gemara elaborates and says that for a Behemah
Gasah (a large animal, such as a cow), he must pay half of the value of
the animal, while for a Behemah Dakah (a small animal, such as a goat), he
must pay only a quarter of the value of the animal (see following
Insight). Why is the amateur-examiner not penalized by having to pay the
full value of the animal?
(a) RASHI (DH k'Shehu) explains that the reason why the amateur-examiner
must pay only half of the value of a Behemah Gasah is because of the doubt
whether he actually caused the Kohen a loss. Perhaps the blemish that he
examined was a disqualifying blemish, and had a Mumcheh examined it he
would have permitted the animal to be eaten by the Kohen. By examining it
himself, the amateur caused the Kohen to lose the entire value of the
animal (since it must be buried). On the other hand, perhaps it was not a
disqualifying blemish, and would not have developed one during its
lifetime. By examining it himself, the amateur did not cause any loss to
the Kohen. Since the value of the animal is "Mamon ha'Mutal b'Safek,"
money whose ownership is in doubt, the amateur-examiner is required to pay
4) "DINA D'GARMI"
(b) TOSFOS (DH Revi'a) points out that it is only Sumchus (Bava Kama 35b)
who maintains that in a case of Mamon ha'Mutal b'Safek, the money is
divided. The Chachamim argue with Sumchus and maintain that the person
presently in possession of the object in doubt keeps it until the other
person brings proof that it is his -- ha'Motzi me'Chaveiro Alav
ha'Re'ayah. Nevertheless, in this case the Chachamim agree that the money
is divided, because this case involves a penalty imposed by the Rabanan,
and not an actual monetary obligation incurred due to damage caused. The
Rabanan did not impose a penalty of the full value of the animal, because
it is not clear that a loss was actually incurred (as Rashi explains), but
neither did they exempt the person entirely, since he acted improperly.
(c) Tosfos suggests further that perhaps the amount paid is based on the
value of a Bechor before it is permitted by a Mumcheh. Since it is not
clear whether or not the Bechor will ever become permitted (as Rashi
explains), it depreciates to half of the value of a normal animal.
QUESTION: The Gemara suggests that the Mishnah that obligates a judge to
pay for his mistakes in judgement is Rebbi Meir, who maintains that one is
liable for damaging another person or his possessions even in an indirect
Why does the Gemara not say that the previous Mishnah is also following
the view of Rebbi Meir? That Mishnah also seems to maintain that one is
liable for damages of "Garmi," since it says that an amateur-examiner must
pay for the Bechor that he permitted to be slaughtered, thereby causing a
loss to the Kohen! (TOSFOS DH Leima)
ANSWER: The ROSH (4:4) answers that the payment that the amateur-examiner
is required to pay is *not* compensation for damage that he caused.
Rather, it is a penalty imposed for ruling when one is not qualified to
rule. Accordingly, even if one is not liable for "Garmi," such a penalty
may be imposed.