Bekhorot 36
חליפין ביד כהן אין אין חליפין ביד כהן לא
The reason therefore is because the priest has [a beast] in its stead, but if the priest has nothing in stead, it would be other wise!<span class="x" onmousemove="('comment',' Thus we see It explicitly stated that the reason is because the priest has a beast in its stead.');"><sup>1</sup></span>
לדידך אודי לי מיהא היכא דחליפין ביד כהן דעשו שאינו זוכה כזוכה
But according to your view, at least admit that where the priest has [a beast] in its stead, [the Sages] put one who had not taken possession in the position of one who had taken possession.
לא
Said R'Papa: All [the authorities concerned] agree with reference to a doubtfully tithed animal<span class="x" onmousemove="('comment',' An animal numbered tenth in tithing, which jumped back among the untithed ones. There is in the case of each animal a doubt whether it is the tithed one and therefore the animals pasture until blemished, when they are eaten by the owners. (Infra 58b.)');"><sup>2</sup></span>
מהו דתימא
For R'Meir only makes him liable for the priest's gifts in connection with an animal which is a doubtful first-born, since the priest can make claim upon him from two sides,<span class="x" onmousemove="('comment',' If it is a firstling, then it is entirely his, and if not, then it is hullin and subject to the priest's gifts.');"><sup>3</sup></span>
טעמא דר' מאיר דלא תשתכח תורת מתנות אפילו ספק מעשר נמי קא משמע לן
but in the case of a doubtfully tithed animal, it is not so!<span class="x" onmousemove="('comment',' For the priest can only claim on the ground that it is hullin, an unconsecrated animal, since a tithed animal belongs to the owner.');"><sup>4</sup></span>
מהו דתימא
Have we not learnt: For R'Jose used to say that wherever the priest has [a beast] in its stead it is exempt, whereas R'Meir makes him liable?<span class="x" onmousemove="('comment',' Now, if the reason of R. Meir with reference to the firstling is because the priest can make his claim on two grounds and therefore R. lose argues for exemption, maintaining that the priest cannot say that if it is a firstling then it belongs entirely to him, since he holds that it is as if the priest had, after acquiring the firstling, sold it to the Israelite. But if you maintain that the reason of R. Meir is lest the law of the priest's gifts be forgotten, why does R. Jose give the reason that the priest has a beast in its stead, since possibly R. Meir himself might have exempted him on that ground. (Rashi) .');"><sup>6</sup></span>
ר' מאיר אפי' ספק מעשר מחייב והא דמיפלגי בחליפין להודיעך כחו דרבי יוסי דפטר אפי' היכא דכהן בא עליו משני צדדין קא משמע לן:
- You might have assumed that R'Meir, even in the case of a doubtfully tithed animal, makes him liable, and the reason why they differ [in the matter where the priest has a beast] in its stead, is to show how far R'Jose is prepared to go, since he exempts even where the priest can make a claim upon him from two sides.
ר"ע אומר המוציא מחבירו עליו הראיה:
And if the lean one died, it is the owner's [which has died] and the one remaining is the priest's! - Said R'Ammi: R'Tarfon retracted.<span class="x" onmousemove="('comment',' From his view in the early part of the Mishnah where he declared that the priest chooses the stronger one.');"><sup>8</sup></span>
ומשל דרבי עקיבא למה הדבר דומה לאחד שהפקיד אצל בעל הבית שהמוציא מחבירו עליו הראיה
That of two men who gave [two animals] in charge of a shepherd and [one died], where the shepherd leaves the living one between them and departs.<span class="x" onmousemove="('comment',' And similarly the Mishnah is dealing with a case where the surviving animal, a doubtful first-born, was given in charge of a shepherd, and both the owner and priest claim it. Here we cannot say that the claimant must produce the evidence, since the animal is in the possession of neither of them.');"><sup>9</sup></span>
ר' עקיבא פליג בשנים שהפקידו אצל רועה שמניח רועה ומסתלק ור' טרפון פליג באחד שהפקיד אצל בעל הבית
To that of a man who gave an animal in charge of an owner [of animals],<span class="x" onmousemove="('comment',' Who placed it among his herd of animals, one of which died. The owner declares that it is not his animal that has died, and the other makes a similar assertion. Here, since the animal is in the possession of the owner, the priest is the claimant.');"><sup>10</sup></span>
הכל מודים בשנים שהפקידו אצל רועה שמניח רועה ביניהם ומסתלק ובאחד שהפקיד אצל בעל הבית שהמוציא מחבירו עליו הראיה
Then what is the point at issue?<span class="x" onmousemove="('comment',' Since each of these Tannaim refers to different circumstances.');"><sup>11</sup></span>
לא נחלקו אלא בחצר בעה"ב ורועה כהן
Will R'Akiba deny where two give [two animals] in charge of a shepherd, that the shepherd leaves [the living one] and departs?<span class="x" onmousemove="('comment',' Here surely R. Akiba cannot maintain that the claimant must produce the evidence. And similarly, R. Tarfon cannot maintain that where one gave an animal in charge of an owner, the living animal is divided.');"><sup>12</sup></span>
אקנויי קא מקני ליה בחצירו וניחא ליה דליתעביד מצוה [בממוניה] והוה ליה כשנים שהפקידו אצל רועה שמניח רועה ביניהן ומסתלק
R'Papa: All the authorities concerned agree that where two men gave [two animals] in charge of a shepherd, the shepherd leaves [the living one] between them and departs.
כיון דאית ליה פסידא לא מקני ליה מידעם והוה ליה כאחד שהפקיד אצל בעל הבית שהמוציא מחבירו עליו הראיה:
The point at issue, however, is where the ground is the owner's and the priest is the shepherd.<span class="x" onmousemove="('comment',' Where, e.g., the living firstling is in the ground of the owner and the priest is the shepherd of all his animals. A ground has the power to acquire chattels on behalf of its owner, v. B.M. 9b.');"><sup>13</sup></span>
<big><strong>מתני׳</strong></big> שתי רחיליו שלא ביכרו וילדו שני זכרים שניהם לכהן
R'Tarfon holds: The owner gives possession to the priest in his ground<span class="x" onmousemove="('comment',' So that the priest might acquire the firstlings immediately after birth.');"><sup>14</sup></span>
זכר ונקבה הזכר לכהן
since he is desirous that a mizwah<span class="x" onmousemove="('comment',' A good deed, by rearing the firstlings of the priest in his ground. Therefore it is as if the ground belonged to both. The ground also is like the shepherd in the case where two gave animals in charge of a shepherd and therefore they divide the surviving animal.');"><sup>15</sup></span>
וחייב במתנות רבי יוסי פוטר
[IF THEY GAVE BIRTH] TO TWO MALES AND A FEMALE, ONE REMAINS WITH HIM,<span class="x" onmousemove="('comment',' For there was a female with it, and therefore one can say that the female came first.');"><sup>18</sup></span>
הכהן בורר את היפה
[IF THEY GAVE BIRTH TO] TWO FEMALES AND A MALE OR TWO MALES AND TWO FEMALES, THE PRIEST RECEIVES NOTHING IN SUCH CIRCUMSTANCES.<span class="x" onmousemove="('comment',' For one can say that each ewe gave birth to a male and a female and in each case there is a doubt as to whether the male came first.');"><sup>20</sup></span>
כל שחליפיו ביד כהן פטור מן המתנות
FOR R'JOSE SAYS: WHEREVER THE PRIEST RECEIVES [AN ANIMAL] IN ITS STEAD,<span class="x" onmousemove="('comment',' Where the priest receives one of the animals of uncertain first-birth, the other animal is exempt from the priests' gifts.');"><sup>21</sup></span>
<big><strong>גמ׳</strong></big> צריכא דאי אשמועינן קמייתא בההיא קאמר ר' עקיבא דתרי מחדא אבל רחיליו שלא ביכרו דתרי מחדא וחד מחדא אימא מודי ליה לר' טרפון דהך דילידא חד שביח טפי
[IF THEY GAVE BIRTH] TO A MALE AND A FEMALE, THE PRIEST RECEIVES NOTHING IN SUCH CIRCUMSTANCES.<span class="x" onmousemove="('comment',' Since perhaps the ewe which had never given birth begot the female, and the ewe which had given birth before begot the male.');"><sup>23</sup></span>
ואי אשמועינן הא בהא קאמר רבי עקיבא דתרוייהו לא ביכרו אבל אחת ביכרה ואחת שלא ביכרה וילדו שני זכרים אימא מודי ליה לר' טרפון
<big><b>GEMARA: </b></big>[All these cases where R'Tarfon and R'Akiba differ] are necessary [to be stated]. For if we had been informed of the first case above,<span class="x" onmousemove="('comment',' Where a ewe begot two males.');"><sup>24</sup></span> [I might have assumed] that in that case R'Akiba held that the claimant must produce the evidence, because two males came from one ewe,<span class="x" onmousemove="('comment',' And as there is a doubt, we say that the claimant must produce the evidence.');"><sup>25</sup></span> but in the case of two ewes which had never previously given birth, and where two animals [a male and a female] were born from one, and one [male] from the other, I might have said that he agrees with R'Tarfon that the animal which came forth singly is much the better one.<span class="x" onmousemove="('comment',' For the reason why this is the strong one is because it came forth without a companion and had more room in emerging; therefore it is undoubtedly the firstling.');"><sup>26</sup></span> And if he had stated only the latter case, I might have assumed that in this case R'Akiba [held that the claimant must produce the evidence], for neither had previously given birth, but where one ewe had given birth and the other had not given birth and they begot two males, I might have said that he agrees with R'Tarfon,