Bekhorot 47

הלכה כרבי יוסי בן המשולם למה לי

what need is there for the ruling that the law is in accordance with R'Jose B'ha-Meshullam? - If he had said that the law was according [to the Mishnah] in the whole chapter and did not state subsequently that the law was in accordance with R'Jose B'ha-Meshullam.

אי אמר הלכתא דכוליה פירקין ולא אמר הלכתא כר' יוסי בן המשולם הוה אמינא

I might have thought that he referred to R'Jose B'ha-Meshullam.

אדרבי יוסי בן המשולם קאי ומאי בכוליה פירקין דר' יוסי תרתי אמר ופלוגתא דברייתא פלוגתא היא

and that what [the expression] 'the whole chapter' meant<span class="x" onmousemove="('comment',' Implying as it does a number of things.');">¹</span>

אשמעינן הלכה כר' יוסי לאשמועינן דאדרבן שמעון בן גמליאל קאי ופלוגתא דברייתא לאו פלוגתא היא

was that R'Jose stated two things [in the subsequent Mishnah]<span class="x" onmousemove="('comment',' One thing. that we make a clear space in the neck for the butcher's hatchet in order to kill the firstling, and secondly, that we tear the wool to show the blemish of a firstling.');">²</span>

מאי ברייתא

and that the difference of opinion in the Baraitha [is considered] a genuine difference of opinion.<span class="x" onmousemove="('comment',' Which would exclude the ruling of R. Simeon b. Gamaliel.');">³</span>

דתניא

Therefore Rab informs us that the law is in accordance with R'Jose.

הלוקח בהמה מניקה מן העובד כוכבים הבא אחריו בכור מספק מפני שמרחמת אע"פ שאינה יולדת

so as to intimate to us that [in the other statement] he refers to R'Simeon B'Gamaliel, and thus the difference of opinion in th Baraitha is not considered a difference of opinion [of any importance].

רשב"ג אומר

What is the Baraitha [referred to above]? - As it has been taught: If one buys an animal giving suck from a gentile, the young which follows it, is a doubtful firstling,<span class="x" onmousemove="('comment',' For it is possible that the animal had never before given birth, and the fact that it gives milk is not a conclusive proof, as there is a minority which gives milk without having yet given birth. It is thus a doubtful firstling.');">⁴</span>

דבר בחזקתו

because it can give suck even to one to which it had not given birth.

וכן היה רשב"ג אומר

R'Simeon B'Gamaliel however, says: We follow the natural presumption.<span class="x" onmousemove="('comment',' That the offspring is surely its child and that therefore the succeeding offspring is exempted from the law of the firstling.');">⁵</span>

הנכנס לתוך עדרו בלילה וראה כעשר כחמש עשרה מבכירות ושאינן מבכירות יולדות למחר השכים ומצא זכרים תלויות בשאין מבכירות ונקבות תלויות במבכירות אינו חושש שמא בנה של זו בא לו אצל זו:

And so R'Simeon B'Gamaliel used to say: If one goes among his herd at night and sees about ten or fifteen animals, both those which had not borne previously and those which had previously given birth, and, the next day, he rises early and finds the males<span class="x" onmousemove="('comment',' Who were born now, clinging to and being given suck by animals which had already been exempted from the law of the firstling. And the females born now, he found clinging to and being given suck by animals that had now given birth for the first time. In these cases, the priest receives nothing, for as we presume that each offspring is near its own mother, the law of the firstling is not here applicable, as the males come from animals already exempted and the females are not subject to the law of the firstling.');">⁶</span>

איבעיא להו

clinging to the animals that had given birth previously and the females clinging to those which were now giving birth for the first time, he need not fear that perhaps the offspring of one came to the other.<span class="x" onmousemove="('comment',' So as to impose a restriction and make them questionable firstlings, fearing lest the males belong to the animals which are giving birth for the first time. The reason why R. Simeon the son of Gamaliel speaks of entering at night etc. and does not state simply that if one entered his herd and saw males clinging etc., is in order to inform us of a striking thing, that although their birth certainly took place in the night when the dams did not as yet recognize their offspring and were, therefore, liable to make a mistake, nevertheless we do not fear lest the offspring of the one came to the other.');">⁷</span>

דבר בחזקתו דקאמר רשב"ג דאינה מרחמת אלא אם כן יולדת

It was queried: Was the reason of R'Simeon B'Gamaliel's statement that we follow the natural presumption.

הא היכא דאוליד חיישינן לרחומי

because no dam gives suck [to a stranger] unless it has had a child of its own,<span class="x" onmousemove="('comment',' And R. Simeon refers to an animal which never gave birth previously.');">⁸</span>

או דלמא

but where it had given birth before, we do fear lest it gives suck to a stranger.

דידה מרחמא דלא דידה לא מרחמא ליה

Or perhaps was it that it gives suck to its own but it does not give suck to a stranger?

למאי נפקא מינה למלקא עלה משום אותו ואת בנו

What is the practical differ ence?<span class="x" onmousemove="('comment',' For in either case, if it had given birth previously, whether it is its own offspring or a stranger, it is exempt from the law of the firstling.');">⁹</span>

אי אמרת

To punish with lashes on its<span class="x" onmousemove="('comment',' That of the offspring which clings to the animal.');">¹⁰</span>

דידה מרחמא דלא דידה לא מרחמא לקי

account for transgressing the prohibition of killing the mother and its young [on the same day].

ואי אמרת

If you say that it gives suck to its own but not to a stranger, then there is here a liability of lashes, whereas if you sa that it gives suck also to a stranger.

דלא דידה נמי מרחמא לא לקי

then there is no liability of lashes?<span class="x" onmousemove="('comment',' As we presume that it is not its own offspring.');">¹¹</span>

מאי

- Come and hear: R'Simeon B'Gamaliel says: If one buys an animal from a gentile, he need not fear that perhaps it was the offspring of another!<span class="x" onmousemove="('comment',' But presumes that the offspring belongs to the animal. Consequently we see that in his opinion it does not give suck, except to its own offspring.');">¹²</span>

ת"ש

- [No].

רשב"ג אומר

Does R'Simeon say [that perhaps] it is?<span class="x" onmousemove="('comment',' In which case we could properly have made this deduction.');">¹³</span>

הלוקח בהמה מן העובד כוכבים אינו חושש שמא בנה של אחרת היה

He says: [That perhaps] it was.

מי קתני הוא

What he means is this:<span class="x" onmousemove="('comment',' And in either case it is exempt from the law of the firstling, for we only entertain a doubt that it might be a stranger if the animal had given birth previously. But in respect of the infringement of the prohibition of killing the animal and its young on the same day, there is a doubt.');">¹⁴</span>

היה קתני

He need not fear that perhaps it was the offspring of another, except when it had previously given birth.

ה"ק

Come and hear: If one went among his herd and saw [both the animals] now bearing for the first time giving suck and those not now bearing for the first time giving suck, he need not fear that perhaps the offspring of this one came to the other or the offspring of the other came to this one.

אינו חושש שמא בנה של אחרת אלא א"כ היה לה ולד מעיקרא

Why is this so?

ת"ש

Why not fear lest it gave suck to a stranger?<span class="x" onmousemove="('comment',' Since they all possess offspring. Therefore the reason must surely be that even if it were not now bearing for the first time, it gives suck only to its own, thus solving the above query.');">¹⁵</span>

נכנס בתוך עדרו וראה את המבכירות מניקות ואת שאינן מבכירות מניקות אינו חושש שמא בנה של זו בא לו אצל זו או שמא בנה של זו בא לו אצל זו

- Where it has its own offspring.

אמאי

it does not leave its own and give suck to a stranger.<span class="x" onmousemove="('comment',' But where it has none of its own offspring, it may give suck even to a stranger, and so the above query remains.');">¹⁶</span>

ליחוש דלמא רחומי רחים

Come and hear: 'We follow the natural presumption'.

במקום דידה לא שבקא דידה ומרחמא דלא דידה

And so.<span class="x" onmousemove="('comment',' V. supra.');">¹⁷</span>

ת"ש

Now does not the first part [of the Baraitha above]<span class="x" onmousemove="('comment',' Which says: If one buys an animal which gives sock from a gentile etc.');">¹⁸</span>

דבר בחזקתו [וכן] כו'

resemble the second part,<span class="x" onmousemove="('comment',' Viz., And so R. Simeon etc.');">¹⁹</span>

מאי לאו רישא דומיא דסיפא

so that just as the second part refers to a case where the offspring is certainly its own,<span class="x" onmousemove="('comment',' That each offspring clinging to the animal belongs to it For you explained above that where it possesses its own offspring, it does not give suck to a stranger.');">²⁰</span>

מה סיפא ודאי דידה אף רישא ודאי דידה

so the first part also refers to a case where [the offspring] is certainly its own?<span class="x" onmousemove="('comment',' And therefore with reference to the prohibition of killing the mother and the young on the same day. there is the liability of lashes, for we presume that it is certainly the animal's offspring.');">²¹</span>

מידי איריא

- Is this an argument?

האי כדאיתא והאי כדאיתא

The first part deals with its own case and the second part deals with its own case.<span class="x" onmousemove="('comment',' In the second part of the Baraitha it is certainly its offspring, whereas there is a doubt in this respect in the first part.');">²²</span>

ומאי וכן

And what does [the Baraitha] mean [by the phrase] 'and so'?<span class="x" onmousemove="('comment',' Since they are not necessarily similar.');">²³</span>

אפטורה דבכורה

- It refers to the exemption from [the law of] the firstling.<span class="x" onmousemove="('comment',' In that respect alone the two parts of the Baraitha are alike. For just as in the second part they are certainly exempt from the law of the firstling, as certainly the females cling to those which have now given birth for the first time, for they would not leave their own offspring and give suck to strangers, in the first part of the Baraitha also, they are exempted in the future from the law of the firstling. And in the first part, even if they are not their own offspring, they are exempted, having already given birth, since otherwise they would not have given suck to strangers. But in respect of the prohibition of killing the mother and its young on the same day, there may still be a doubt.');">²⁴</span>

ארבב"ח אר"י

Rabbah B'Bar Hana reported in the name of R'Johanan: If one saw a swine clinging to a ewe,<span class="x" onmousemove="('comment',' And being given suck by it.');">²⁵</span>

ראה חזיר שכרוך אחר רחל פטורה מן הבכורה ואסור באכילה (הושע י, יב) עד יבא ויורה צדק לכם

it is exempted from [the law] of the firstling,<span class="x" onmousemove="('comment',' And the succeeding offspring is not a firstling. vruh');">²⁶</span>

פטור מן הבכורה כמאן כרשב"ג ואסור באכילה כרבנן

and it is forbidden to be eaten Until he come and teach<span class="x" onmousemove="('comment',' The word is used here in the sense that Elijah will teach. The usual rendering of the word, however, is 'to cause to rain'.');">²⁷</span>

ותו אי כרבנן מאי עד יבא ויורה צדק לכם

righteousness unto you.<span class="x" onmousemove="('comment',' Hosea X, 12.');">²⁸</span>

עד שיודע לך דבר מיבעי ליה

[You say] 'It is exempted from the law of the firstling'.

וכי תימא

Whose view is followed?

מספקא ליה אי הלכה כרשב"ג אי כרבנן

The view of R'Simeon B'Gamaliel.<span class="x" onmousemove="('comment',' Who maintains that the animal only gives suck to its own offspring, and the swine itself is not sanctified, as it is a nidmeh.');">²⁹</span>

אי מספקא ליה אמאי פטורה מן הבכורה

[You say] 'And it is forbidden to be eaten'.

ותו מי מספקא ליה

Whose view is followed?

והאמר רבה בר בר חנה אמר ר' יוחנן

The view of the Rabbis.<span class="x" onmousemove="('comment',' Who fear that the animal gives suck to a stranger. For if it were in accordance with the view of R. Simeon, it should be permitted to be eaten, as in the case of an unclean animal which comes from a clean animal. V. supra 5b.');">³⁰</span>

כל מקום ששנה רשב"ג במשנתינו הלכה כמותו חוץ מערב וצידן וראיה אחרונה

And, moreover, if it is according to the Rabbis, why 'Until he come and teach righteousness to you'? 'Until it be known to you' is what is required?<span class="x" onmousemove="('comment',' As this is not a question of pronouncing a legal decision but merely of revealing or intimating whether it is its offspring.');">³¹</span>

לעולם פשיטא ליה הלכה כרבן שמעון בן גמליאל מיהו מספקא ליה אי סבר רבן שמעון בן גמליאל יולדת מרחמת או אינה מרחמת

And should you say that R'Johanan is in doubt whether the law is in accordance with R'Simeon B'Gamaliel or the Rabbis,<span class="x" onmousemove="('comment',' And the text 'Until he comes etc.' means as follows: Until he comes and teaches whether the law is in accordance with R. Simeon and therefore it may be eaten or according to the Rabbis. It is, consequently, forbidden to be eaten because of the doubt that it perhaps gave suck to a stranger.');">³²</span>

אי הכי עד דאשמעינן חזיר לישמעינן טלה ולמילקי עליה משום אותו ואת בנו

if R'Johanan is in doubt then why is it exempt from the law of the firstling?

חזיר איצטריכא ליה

And further, is there a doubt?

דאי אשמעינן טלה הוה אמינא

Did not Rabbah B'Bar Hana report in the name of R'Johanan: Wherever R'Simeon B'Gamaliel expressed a view in the Mishnah, the halachah is in accordance with him, with the exception of his view regarding suretyship,<span class="x" onmousemove="('comment',' B.B. 174a.');">³³</span>

אם תמצא לומר דסבר יולדת מרחמא דמינה דלא מינה לא

Sidon,<span class="x" onmousemove="('comment',' Git. 77a.');">³⁴</span>

אשמעינן חזיר דמרחמת ואפילו דלאו מינה נמי דאיכא למימר דלמא מרחמא

and the last [case dealing with] evidence?<span class="x" onmousemove="('comment',' Sanh. 31a.');">³⁵</span>

והיינו דאמר רבי יוחנן בעי

- One may still say that R'Johanan is in no doubt that the law is in accordance with R'Simeon B'Gamaliel.<span class="x" onmousemove="('comment',' That it is certainly exempted from the law of the firstling, for if the offspring were not its own, it would not have given suck unless it had already given birth.');">³⁶</span> He is in doubt, however, whether R'Simeon B'Gamaliel holds that an animal which has given birth, gives suck [even to a stranger],<span class="x" onmousemove="('comment',' It is therefore exempt from the law of the firstling. for if the offspring belongs to the animal, then it is exempt. and if it is a stranger. then the animal must have already given birth, since it gives suck to strangers. It is also forbidden to be eaten, for the offspring might be a stranger and its own might have died,');">³⁷</span> or whether it does not give suck [to a stranger].<span class="x" onmousemove="('comment',' And it is therefore permitted to be eaten, for it certainly belongs to the animal to which it clings.');">³⁸</span> If so, instead of stating [this ruling] in connection with the case of a swine, why not state it in connection with the case of a lamb, and as regards the punishment with lashes for infringing the prohibition of killing the mother and its young [on the same day]? - He had need to state [this ruling] in connection with the case of a swine. For if he had stated [this ruling] in connection with the case of a lamb, I might have thought that even if you assumed that R'Simeon holds that an animal which gives birth, gives suck [to a stranger], this only applies [to a stranger belonging] to its own species, but not to [an animal] not belonging to its own species.<span class="x" onmousemove="('comment',' I.e., a swine. And it is permitted to be eaten, for to one not belonging to the ewe species it would not give suck, and since the animal does give suck, it must of a certainty belong to it.');">³⁹</span> Consequently. R'Johanan states the case of a swine [to inform us that this ruling applies] although it does not belong to the species [of the ewe], for even here one can say that perhaps it gave suck. And this is what R'Johanan meant above.