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Yevamos, 99

YEVAMOS 99 (1 Adar Bet, 5760) - dedicated in honor of the Yahrzeit of Mordecai ben Elimelech Shmuel Kornfeld, who perished in the Holocaust along with most of his family. May the martyrs of the Holocaust atone for Klal Yisrael like Korbanos and bring, in their merit, the return of Hashem to Tziyon, speedily in our days.


QUESTIONS: The Mishnah teaches that if the son of a Kohenes becomes mixed up with the son of her maidservant, each son is a Safek Kohen and Safek Eved. When they grow up, they free each other, and then each son is a Safek Kohen and Safek Yisrael. As such, we do not give them Kodshim which normal Kohanim are entitled to. On the other hand, the normal Kohanim are not entitled to take away the Kodshim of those sons, because each son can claim that he is a Kohen. Similarly, if they have an animal that is a Bechor, they are not required to give it to a Kohen, but rather they may let it graze until it gets a blemish, and then they may eat it themselves.

RASHI offers two explanations for what the Mishnah means when it says that "we do not give them Kodshim, but we may not take Kodshim away from them." According to Rashi's first explanation, the Kodshim that the Mishnah is referring to are Korbanos.

These two Safek Kohanim may not personally offer Korbanos on the Mizbe'ach themselves, because they might be Zarim. On the other hand, if they have a Korban that they need to offer, we cannot take it away from them and force them to give it to the Kohanim who are serving in the Beis ha'Mikdash at that moment so that those Kohanim will be able to keep the parts of the animal to which they are entitled (the hide and parts of the meat). Rather, since each son is a Safek Kohen, they can claim that they have the right to offer the Korban themselves and to keep the hide and meat. Although they may not actually offer the Korban themselves, they have three options regarding what they may do with their Korban: (1) They can give it to the Kohanim of the Mishmar serving at the present moment and stipulate that those Kohanim must return to them the hide and the meat (and then they may give the meat to whichever Kohen they want); (2) They may designate any Kohen as a Shali'ach to bring the Korban, even though it is not presently his Mishmar. (A Kohen does not have to wait until his Mishmar to bring his own Korban, and thus the Safek Kohen may appoint a Shali'ach who is a definite Kohen to bring his Korban for him even though it is not his Mishmar); (3) They may simply wait for the Mishmar to whom they want to give their Korban to have its turn in the Mikdash, and then they may give their Korban to that Mishmar to benefit from it. This is Rashi's first explanation of the Mishnah.

According to Rashi's second explanation, the "Kodshim" that the Mishnah refers to are not Korbanos, but rather Bechor and Chermei Kohanim. We do not give the Safek Kohanim a Bechor or Chermei Kohanim, because of their doubtful status. But if they own their own Bechor or Chermei Kohanim, other Kohanim may not take it away from them. Rather, they keep the Charamim mi'Safek, and they let the Bechor graze until it gets a blemish. They are advised not to bring the Bechor as a Korban, for then the Kohen who sacrifices it will keep it for himself and not give it to them.

Rashi continues and explains why, in his second explanation, he rejected the approach of the first explanation. He says that it does not seem correct that the Safek Kohen should be able to appoint a Shali'ach to bring the Korban for him. Since he cannot bring the Korban himself, he does not have the authority to make a Shali'ach to do so. Therefore, there is no way for him to retain the hide or the meat by having the Kohen of his choice bring it for him.

There are a number of difficulties with Rashi's explanation (as the ARUCH LA'NER points out).

(a) Rashi's second explanation says that if the Safek Kohen gives the Bechor to a Kohen, the Kohen will keep it for himself, and therefore it is better to let it graze and get a blemish. It is implicit in Rashi's words that it is permitted for a Safek Kohen to eat the Bechor before it gets a blemish, but the Kohen to whom he would give it to sacrifice it will not consent to let him eat it. However, in Rashi's next comment (DH u'Vechoro), Rashi says that an unblemished Bechor may be eaten only by Kohanim, and not by a Safek Kohen!

(b) Rashi rejects the first explanation just because a Safek Kohen cannot make a Shali'ach to bring a Korban for him. Rashi earlier mentioned that a Safek Kohen has three options. Besides making a Shali'ach, he may give it to the present Mishmar of Kohanim and make a stipulation that he is to receive the hide and meat back, or, alternatively, he may give it to whichever Mishmar he so desires when that Mishmar's turn arrives. Why, does Rashi reject the first explanation? The two options would seem still viable!

Indeed, in the following gloss of Rashi (DH u'Vechoro), Rashi discusses why one may not give an unblemished Bechor to a Kohen with a stipulation that he return the hide and meat to the owner. It seems that Rashi *is* accepting the first option as valid, and if so, why does he reject the first explanation as if that option is not valid?

(a) In truth, there is a Machlokes between Beis Shamai and Beis Hillel in the Mishnah (Bechoros 32b) whether or not a non-Kohen is permitted to eat the meat of a Bechor. Beis Hillel says that even a Nochri may eat it, and certainly a Zar may eat it. Beis Shamai says that only a Kohen may eat it. When Rashi says here that it can only be eaten by Kohanim, he is clearly following the opinion of Beis Shamai.

Why, though, does Rashi explain our Mishnah according to Beis Shamai and not according to Beis Hillel? The reason is because according to the first explanation of Rashi, the Mishnah can *only* be understood to be following the view of Beis Shamai, for otherwise, the Safek Kohen would not have to wait for the Bechor to get a blemish. He could give it to a Kohen with the stipulation that the Kohen give him back the meat. The Mishnah must be following Beis Shamai's opinion that only a Kohen may eat the Bechor, and thus the only way that the Safek Kohen can get to eat the meat is by waiting for the Bechor to get a blemish.

When Rashi, in his second explanation, advises that the Safek Kohen should not give the Bechor to a Kohen because the Kohen will not let him eat it, he means that according to the second explanation, the Mishnah can be following the view of Beis Hillel, who *permits* a non-Kohen to eat the Bechor. In the next gloss (DH u'Vechoro), Rashi is returning to his first explanation. That is why he writes that a Bechor cannot be eaten by a non-Kohen, because according to the first explanation the Mishnah follows the opinion of Beis Shamai.

It is further evident that Rashi (DH u'Vechoro) is returning to the first explanation because he repeats what he said about making a stipulation to get back the hide and meat when giving the Korban to the Kohen, an option which the second explanation does not accept.

(b) From Rashi's words in DH u'Vechoro it is evident that he is following the first explanation, and that is why he mentions the possibility of making a stipulation with the Kohen (as we mentioned above, (a)). The second explanation, though, does not permit making a stipulation, because a Safek Kohen cannot make a normal Kohen into a Shali'ach to bring his Korban. Why, though, can he not give it to one of the Kohanim of the present Mishmar with a stipulation that the Kohen give him back the hide and the meat?

The answer seems to be that if the Safek Kohen gives the animal to a Kohen to sacrifice for him, then unless that Kohen is his Shali'ach, that Kohen may assert his hold on the animal and say that it belongs to him (evoking the principle of "ha'Motzi me'Chavero Alav ha'Re'ayah"). Therefore, if the Kohen in the present Mishmar is not considered to be his Shali'ach, once he gives the Kohen the Korban to sacrifice, the Kohen does not have to return anything because he can claim that the person is a Zar and not a Kohen. That is what Rashi means when he says "the Kohen who is Makriv the Bechor will "keeps the meat for himself."

For the same reason, the Safek Kohen does not have the option to wait for the Mishmar of his choice to give them his Korban. Let us first analyze this option. What is this Safek Kohen doing that a Vadai Zar, a definite non-Kohen, is not able to do? Can't any Zar wait to give a Korban to a specific Mishmar, as long as he does not delay giving the Korban too long and transgress the Isur of "Bal Te'acher?" (RASHASH)

Apparently not. Once the Korban has already been designated, the Gizbar (treasurer) of Hekdesh has the right to take it away from the owner and bring it to the Mikdash as a sacrifice. The Safek Kohen, though, may object to the Gizbar, and the Gizbar has no right to take it from him, because the Safek Kohen may claim that he is a Kohen, and that he has appointed a Kohen from another Mishmar to be his Shali'ach to bring the Korban. Hence the Gizbar has no right to take possession of the Korban for the present Mishmar.

But if the Safek Kohen cannot make a Shali'ach, then the Kohanim of a later Mishmar have no more right to sacrifice the Korban than those of the present Mishmar, and thus the Gizbar may claim it for the Mikdash immediately. Only if he is able to make another Kohen his *Shali'ach* is he able to avoid the Gizbar. That is why Rashi's second explanation rejected the assertion that the Safek Kohen can delay giving the Korban to the Gizbar until the Mishmar of his choice is serving. (M. Kornfeld)

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