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Kollel Iyun Hadaf, Jerusalem

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Bechoros 28



(a) We explained in our Mishnah, that when, after permitting the retention of a Bechor that obtained a Mum within twelve months, the Tana adds 'le'Achar Shenaso, Eino Rashai Lekaymo Ela ad Sheloshim Yom', that if it obtained the Mum after the second year has already begun, one may keep it alive for thirty days. Alternatively, the Tana might mean - that in the original case, the owner may retain it for another thirty days.

(b) In the Beraisa that we cite to resolve the She'eilah - the Tana permits keeping a Bechor Tam alive nowadays for as long as two or three years.

(c) The Tana first gives the time limit for retaining a Bechor that obtained a Mum as not a moment more than twelve months. He then goes on to permit keeping it alive for another thirty days - because if he were to Shecht it at the end of the year, perhaps he will not find a Kohen to whom to give it, so he gives him another thirty days, at which time he is obligated to Shecht it (and salt it until such time as he finds a Kohen to whom to give it [see also Tosfos DH 'Mipnei Hashavas Aveidah']).

(a) We attempt to prove from the Beraisa - that the thirty days is an extension to the twelve month period in the original case.

(b) We refute the proof from there however - by suggesting that this Beraisa, like our Mishnah, is subject to the same She'eilah (whether the Tana means as we explained, or whether he too, is perhaps referring to a Bechor that obtained a blemish in its second year).

(c) Another Beraisa rules that if a Bechor obtained a Mum fifteen days before the end of its year - the owner may retain it for fifteen days into the second year, a proof that the Seifa in our Mishnah, must be referring to a Bechor that obtained a blemish in its second year.

(d) We use this Beraisa to support Rebbi Elazar - who states that one may keep a Bechor alive for thirty days from the time that it is born (and not one year plus thirty days).

(a) Rebbi Elazar in the second Lashon states that if a Bechor is born during its mother's first year - the owner may retain it for an extra thirty days.

(b) And he derives this from the Pasuk "Lifnei Hashem ... Sochlenu Shanah be'Shanah" - which implies that he has a period of time that is considered a year (i.e. thirty days, that is called a year in certain regards).

(c) We cannot reconcile this with the previous Beraisa, which only allows fifteen days into the second year - and which therefore proves this Lashon of Rebbi Elazar wrong.

(a) Rebbi Yehudah in our Mishnah, permits a Bechor whose blemish was inspected after being Shechted be'Isur and found to be permanent. Rebbi Meir rules - that since it was Shechted without being examined first, it is Asur.

(b) The Tana rules in a case where someone who is not an expert examined the blemish of a Bechor and declared it to be permanent ...

1. ... the Bechor - must be buried, and ...
2. ... the examiner - is obligated to reimburse the Kohen for his loss.
(c) According to Rabah bar bar Chanah, in a case where a Bechor with Dukin she'be'Ayin (eye's-webb) is Shechted before it has been examined, even Rebbi Yehudah will concede that it is forbidden - because that particular Mum tends to change after the animal's death (in which case any examination is unreliable).

(d) And the basis of the Machlokes between Rebbi Meir and Rebbi Yehudah is - whether we decree other blemishes on account of Dukin she'be'Ayin (Rebbi Meir) or not (Rebbi Yehudah).

(a) In the Beraisa that we cite in support of Rabah bar bar Chanah, Rebbi Meir says 'Echad Zeh ve'Echad Zeh Asur, Mipnei she'Mishtanin'. The problem with this is - that other than Dukin she'be'Ayin, blemishes do not change after the animal's death, as we just explained.

(b) So we amend it to read - 'Mipnei ha'Mishtanin' (meaning that we forbid even blemishes that do not change, on account Dukin she'be'Ayin, which do).

(c) Rav Nachman bar Yitzchak extrapolates from the words of Rebbi Meir in our Mishnah 'Ho'il ve'Nishchat She'Lo al-Pi Mumcheh - that they are arguing over whether to issue a K'nas or not, because had they been arguing specifically over Dukin she'be'Ayin, then he ought to have said 'Ho'il she'Mishtanin'.




(a) We ask whether Dukin she'be'Ayin always changes after the animal's death, or only sometimes. The ramifications of this She'eilah are - whether we can believe witnesses who testify that they did not change (which we cannot, assuming the appearance of the Dukin always changes).

(b) We resolve this She'eilah from Rebbi Oshaya from Usha who said to Rebbi Yochanan 'Come, let me show you a case of Dukin she'be'Ayin that changed' - a clear indication that this is not always the case.

(c) We initially assume that the Seifa of our Mishnah, which requires a Bechor that was Shechted before a Chacham examined it to be buried, is a S'tam like Rebbi Meir - because, according to Rebbi Yehudah, in most cases, the Shechitah is Kasher once a Chacham has examined it.

(d) We refute this suggestion however - by establishing the Mishnah by Dukin she'be'Ayin, which will then conform even with the opinion of Rebbi Yehudah.

(a) A Beraisa rules that, in the previous case, the examiner pays the Kohen only a quarter of the price of a Beheimah Dakah - and half of the price of a Beheimah Gasah ...

(b) ... because it is 'Mamon ha'Mutal be'Safek' (since we do not know whether a Chacham would have permitted it or not), and we rule 'Yachloku'.

(c) We reject Rav Papa's suggestion that he pays only a quarter of the price of a Dakah due to the fact the loss is that much smaller - because then he ought still to pay half the cost of the animal (in which case, the discrepancy between the two is automatically taken care of).

(d) Rav Huna bar Mano'ach in the name of Rav Acha bar Ika attributes it - to the extra care that a Beheimah Dakah requires (as we learned above).

(a) Our Mishnah rules that someone who judges, and errs by declaring the one who is Chayav, Patur and what is Tahor, Tamei, or vice-versa - his ruling is valid, and he is obligated to compensate the loser from his own pocket.

(b) If he is a Mumcheh le'Beis-Din -(meaning that he has the authorization from the Beis-Din to issue rulings (i.e. he has Semichah), he is Patur.

(c) We suggest that this is a S'tam Mishnah like Rebbi Meir, who holds of Diyna de'Garmi - which refers to someone who causes damage without an act (see Hashmatos Tosfos of the Shitah Mekubetzes).

(d) We counter this suggestion - by establishing our Mishnah where the Dayan actually took the article from the hand of the litigant and damaged it (as we shall now see).

(a) We have no problem with 'Chiyev es ha'Zakai', which speaks when the Dayan took the money out of the defendant's hands and gave it to the claimant. Ravina establishes the case of Nasa ve'Nasan be'Yad by 'Zikah es ha'Chayav' - where the Dayan took the security from the hand of the claimant, and returned it to the defendant.

(b) And the case of 'Nasan ve'Nasan be'Yad' by ...

1. ... 'Timei es ha'Tahor' is - where he took a Sheretz and touched the Taharos, to demonstrate that it really is Tamei.
2. ... 'Tiher es ha'Tamei' - where he took the fruit that he had declared Tahor and mixed it with other fruit belonging to the same man.
(c) When a case of a cow whose womb had been removed came before Rebbi Tarfon - he declared it Tereifah, and to stress this, he took the cow and fed it to the dogs.
(a) The Chachamim in Yavneh disagreed with him on the basis of Todos the doctor - who declared that every cow and pig that left Alexandria had had its womb removed ...

(b) ... to prevent it from breeding (so that they could retain the monopoly on their high-quality cows and pigs), yet they survived.

(c) When Rebbi Tarfon lamented that he had lost his donkey - he meant that he was now obligated to compensate the owner of the cow, and that he intended to give him his donkey instead.

(d) Rebbi Akiva commented - that this was not necessary, since Rebbi Tarfon was a Mumcheh le'Rabim.

(a) We query Rebbi Akiva, who declared Rebbi Tarfon Patur because he was a Mumcheh la'Rabim. Even if he hadn't been, he ought to have Patur - because his mistake fell under the heading of 'Ta'ah bi'Devar Mishnah', since it is a S'tam Mishnah in Chulin 'Nitlah ha'Eim Kesheirah' (which Rebbi Tarfon did not dispute).

(b) The reason that 'Ta'ah bi'Devar Mishnah is Patur' is - because the Dayan is able to retract (in which case, his ruling is meaningless, and if the owner took the animal and fed it to the dogs, he has only himself to blame [see Ya'avetz]).

(c) A Ta'us be'Shikul ha'Da'as' - means that there is a Machlokes Tana'im (or Amora'im) in the matter, and that this particular Tana or Amora rules against the generally accepted opinion.

(d) We answer that in fact, Rebbi Akiva mentioned just 'Mumcheh le'Rabim' - as a second reason, as if to say that Rebbi Tarfon was Patur not only because he was To'eh bi'Devar Mishnah, but also because he was a Mumcheh le'Rabim.

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