Bava Metzia 12

a bath-house, about which two people had a dispute. One said, 'It is mine', and the other said 'It is mine'; then one of them rose up and dedicated it [to the Temple],<span class="x" onmousemove="('comment',' On dedication to Temple after the Destruction, v. A.Z. 13a. ');">¹</span> [in consequence of which] R. Hananiah and R. Oshaia and the rest of the Rabbis kept away from it. R. Oshaia then said to Rabbah: When you go to Kafri<span class="x" onmousemove="('comment',' [S. of Sura, v. n. 3.] ');">²</span>

to see R. Hisda ask him [for his opinion on this matter]. When [Rabbah] came to Sura [on his way to Kafri]<span class="x" onmousemove="('comment',' [Rabbah, whose seat was at Pumbeditha in the North, had to pass Sura on his journey to the South.] ');">³</span> R. Hamnuna said to him: This is [made clear in] a Mishnah:<span class="x" onmousemove="('comment',' Toh. IV, 12. ');">⁴</span>

[As regards] doubtful first-born,<span class="x" onmousemove="('comment',' I.e., first-born whose primogeniture is in doubt because, in the case of an animal, it is not known whether its mother has borne before, or, in the case of a human mother who had previously miscarried, it is doubtful whether it was a real miscarriage or not. According to Biblical law the first-born belong to the priest. (Num. XVIII, 15-16.) ');">⁵</span> whether a human first-born or an animal first-born, [and, as regards the latter,] whether of clean or unclean<span class="x" onmousemove="('comment',' E.g., an ass, the first-born of which has to be redeemed with a lamb. (Ex. XIII, 13.) ');">⁶</span>

animals, [the principle holds good that] the claimant must bring evidence [to substantiate his claim].<span class="x" onmousemove="('comment',' If the Israelite is still in possession of the first-born, the priest is regarded as the claimant, who has to bring evidence to clear up the doubt. But if the priest has acquired possession, and the Israelite, though silent at first, protests later, denying the primogeniture, then it is for the Israelite, as the claimant, to prove his claim. ');">⁷</span> And in regard to this a Baraitha teaches: [Such animals] must not be shorn nor worked.<span class="x" onmousemove="('comment',' Because of the prevailing doubt as to whether the young animal is 'holy' or not (cf. Deut. XV, 19). ');">⁸</span>

Now, it is obviously assumed here that if a priest seizes the firstling we do not take it away from him, for it is laid down that [we must apply the principle that] the claimant must bring evidence [to substantiate his claim];<span class="x" onmousemove="('comment',' Which is obviously meant to apply to either claimant, either the Israelite or the priest. ');">⁹</span> and [thus] if the priest has not seized it, [the Baraitha teaches] that it must not be shorn or worked.<span class="x" onmousemove="('comment',' The animal is thus regarded as 'holy' even when the Israelite is in possession, which would show that the sanctification by the litigant without seizing it takes effect, if we say that the seizing of the disputed articles entitles him to keep it. ');">¹⁰</span>

But Rabbah answered him: You speak of the sanctity of a firstling — [this proves nothing]. I could well maintain that even if the priest has seized it we take it away from him, and still it would be forbidden to shear or to work [this animal], because the sanctity that comes of itself is different.<span class="x" onmousemove="('comment',' The sanctity of the firstling is independent of any action on the part of the priest, as it is sacred from birth, in accordance with the Biblical Law. It cannot therefore be compared with the sanctity of an object that has been consecrated by a human being. ');">¹¹</span> R. Hananiah said to Rabbah: There is [a Baraitha]<span class="x" onmousemove="('comment',' The principal place where this law is taught is a Mishnah, Bek. 9a; cf. also ibid. 11a. ');">¹²</span>

taught supporting your view:<span class="x" onmousemove="('comment',' Viz., that if a priest has seized a doubtful firstling he has to return it. ');">¹³</span> The [sheep with which the] doubtful [firstlings of asses have been redeemed] enter the stall to be tithed.<span class="x" onmousemove="('comment',' The sheep that is used to redeem the doubtful firstling of an ass may be kept by the Israelite. He is under no obligation to give it to the priest, for the latter is in the position of a claimant who has to prove his claim, i.e. if the priest claims the sheep from the Israelite, he has to prove that the doubtful firstling is a real firstling. Such sheep, however, are liable to be tithed, if there are ten of them. (V. infra p. 28.) It follows that, in the same way, if in the Israelite's possession, they go into the stall with other sheep to be tithed, and if one of them comes out tenth it is offered as the tithe. ');">¹⁴</span>

Now, if the view were held that when the priest has seized [a doubtful firstling] we do not take it away from him, why [does the Baraitha teach that sheep with which doubtful firstlings of asses have been redeemed] enter the stall [to be tithed]? Would not the result be that this [Israelite, who owns the stall] would relieve himself of his liability [involved in the tithe] with the property of the priest, [who has a claim on it]?<span class="x" onmousemove="('comment',' If the priest has any kind of claim on the sheep, the Israelite should not be entitled to utilise this animal as the tithe. ');">¹⁵</span> — Abaye answered him: There is really nothing in that [Baraitha] to support the Master [Rabbah], For it deals with a case where [the Israelite] has only nine sheep, and this [makes the tenth], so that in any case [the Israelite is justified]: if he is obliged [to tithe the sheep] he has tithed them rightly,<span class="x" onmousemove="('comment',' If the redeemed ass is not a real firstling, then the lamb belongs entirely to the Israelite, and if there are nine other sheep belonging to him he is obliged to tithe them, and there is nothing wrong in his action. ');">¹⁶</span>

but if he is not obliged [to tithe them because the tenth sheep is not really his], then [he has had no advantage, as he only owned nine sheep, and] nine are not subject to tithe.<span class="x" onmousemove="('comment',' Therefore he has not relieved himself in any way, and in either case, not with anything belonging to the priest. ');">¹⁷</span> Later Abaye said: My objection is really groundless.<span class="x" onmousemove="('comment',' I.e., the Baraitha quoted by R. Hananiah does support the view of Rabbah that the priest has no right to a doubtful firstling or its substitute. ');">¹⁸</span>

For in [a case where the liability of an animal to be tithed is in] doubt, tithing does not take place,<span class="x" onmousemove="('comment',' I.e., the argument used by Abaye, that in any case the tithing could be proceeded with, is invalid, for doubtful cases are exempt from tithing, even when it could be said that in any case the owner could do no wrong, as the following Mishnah proves. ');">¹⁹</span> as we have learnt: If one of the sheep which were being counted [for the purpose of tithing] jumped back into the stall, the whole flock is free [from tithing].<span class="x" onmousemove="('comment',' Bek. 58b. If during the process of tithing, while the sheep were being led one by one out of the stall, so that the tenth one might be marked and offered to the priest, one of the counted sheep jumped back into the stall and disappeared among the uncounted sheep, and it cannot be recognised, the whole flock is exempt from tithing. The sheep that left the stall on being counted are exempt because they have already been numbered, and there are sufficient sheep left in the stall to make up the required number of ten. The sheep that remained behind in the stall are also exempt because each one of them may be the one that jumped back after being counted. V. Bek. 59b. ');">²⁰</span> Now, if the view were held that doubtful cases are subject to tithe,<span class="x" onmousemove="('comment',' I.e. that the sheep are liable to be tithed on the assumption that the owner will either have acted according to the law or have done nothing wrong. ');">²¹</span> [the owner] ought to tithe [the remaining sheep] in any case: if he is obliged [to tithe them]<span class="x" onmousemove="('comment',' I.e. if the tenth sheep that is taken when those left behind in the stall are numbered is not the one that jumped back after being counted. ');">²²</span> he will have tithed them rightly,<span class="x" onmousemove="('comment',' As that sheep will be subject to tithe. ');">²³</span> but if he is not obliged to tithe them, those already counted will be free because they were properly numbered,<span class="x" onmousemove="('comment',' As long as there are sufficient sheep left in the stall to make up the ten, when added to those already counted, the counted sheep are free from tithing. V. Bek., loc. cit. ');">²⁴</span> for Raba said: Proper numbering frees [the sheep from being tithed].